An Education, Health and Care needs assessment (“EHC NA”) is the first formal step in securing an Education, Health and Care plan (“EHCP”). This article will identify what it is, when to ask for one, how to do so, and how to avoid common mistakes that lead to failure, frustration and lengthy appeals.
By design, an article can only cover so much ground. Those interested in a more detailed discussion (especially those who are appealing against an LA refusal) that includes legal references and directly liftable quotes from the law and case law should consider reading Chapter 13 of my book SEN & EHCPs.
Chapter 13 EHC Needs Assessment: Definition and Requesting
13.1 Stock check
13.2 EHC Needs Assessment defined
13.3 EHC Needs Assessment in context
13.4 When should you request an EHC NA
13.5 The legal test the LA must apply for an EHC NA
13.5.1 Extra LA tests are unlawful
13.6 Who can request an EHC NA?
13.7 How to request an EHC NA
13.7.1 TIP1 BEFORE APPLYING
13.7.2 What should your covering letter contain?
Why go for an EHC NA?
The idea is that schools should be using their “best endeavours” to secure SEN provisions for the child or young person; be providing auxiliary aids and services; and making reasonable adjustments. You are expected to have worked with the school to identify SEN needs and secure these provisions before embarking on a formal EHC NA.
But “best endeavours” is not an absolute duty, and perhaps more importantly, asides from complaints there is no real way to compel a school to comply with this obligation other than a costly and complicated judicial review.
A school’s disability discrimination is actionable in the First-tier tribunal (“FTT”) and county court but legal action is not the first port of call.
Equally a SEND child may require a high level of support whose fulfillment far exceeds the money available from the school’s pupil premium.
Whatever the underlying reason:
- if the child may have SEN needs and
- if it may be necessary for the consequential SEN provisions to be formally placed on a legally-enforceable document (EHCP) which also
- designates the school where this will occur then
the LA must accept a request for an EHC NA.
Who can ask for an EHC NA?
The parent, young person or the school. (The SEND Code widens this although I am not convinced this has any legal basis.) It always helps if a school is supportive but be under no illusions that parents have an independent right which many parents exercise.
How to request an EHC NA?
Most LAs will have a form on their website. If they do not then simply write a letter to the Director of Children’s Services. I’ll deal with the contents of the letter shortly.
The legal test the LA must apply
The LA must apply a legal test when it assesses whether to grant a request for an EHC NA. The legal test is contained in section 36(8) of the Children and Families Act 2014 and comprises two limbs:
- the child or young person has or may have special educational needs, and
- it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.
LAs typically try to bump up the may requirement to has been proven. This is unlawful. The entire purpose of the EHC NA is to identify what SEN needs the child has, and then decide whether the consequential SEN provisions should be left to the school’s best endeavours or be placed onto a legally enforceable EHCP. The Upper Tribunal explains:
“the issue at the initial stage is a provisional and predictive one. It is only when an assessment has been made that a definitive decision has to be made.”
The Local Government Ombudsman has complained about this:
…we have found councils…introducing additional requirements to trigger an assessment decision.
So as long as you have some objective evidence that you child “may” have SEN and that it “may” be necessary for this SEN provision to be made via an EHCP, the LA must conduct the EHC NA.
Template letter – EHC NA
Here is a template letter (free for personal use; not for commercial use). Please do personalise it for your own situation. There is nothing more off-putting for an LA to receive a template letter. It signals the person doesn’t independently know anything, they’ve just downloaded a template from somewhere. Change the words, paragraph names – make it sound unique as if you’ve personally composed it.
The Director of Children’s Services
Dear <Enter NAME>
I am writing to request an EHC Needs assessment per s. 36(1) of the Children and Families Act 2014.
My name is <enter your full name> and I am <child’s full name> <mother/father/legal guardian/legal carer>. My home address is <enter address> and I can be also be contacted by email on <email address>. <Child’s first name> is currently attending <enter school and full address> in <Year x>, class <x>. His class teacher is <enter teacher’s name>.
The test that the LA must apply in considering this request is contained in section 36(8) of The Act and has two limbs:
“(a) the child or young person has or *may* have special educational needs, and
(b) it *may* be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.”
<If applicable, explain how any extra LA criteria are unlawful. Delete this next block if not relevant>
Unlawful LA Conditions
I am deeply concerned by the introductory notes to the LA’s EHC needs assessment application form.
The bullet points (e.g.: the school has tried to address the difficulties over at least three terms; a minimum of twelve hours a week of teaching assistant support (or equivalent) has been provided over at least the last year) simply have no basis in statute and appear to be an attempt to replace the “it may be necessary” threshold with “it has been proven to be necessary”.
This is unlawful, counterintuitive and setting up a waste of money. How are schools expected to effectively allocate money and resources to the care of special needs children in the absence of specialist formal assessments? The Upper Tribunal explains: “the issue at the initial stage is a provisional and predictive one. It is only when an assessment has been made that a definitive decision has to be made.”
The Act elucidates:
“An “EHC needs assessment” is an assessment of the educational, health care and social care needs of a child or young person.”
The raison d’être of the EHC assessment is for specialists to specify what the child’s needs are and what specific provisions are needed.
Having clarified the law, I take this opportunity to remind the LA that attempts to impose thresholds or conditions not present in statute:
- Are illegal;
- Are harmful to <child’s name> (as care for his needs will be denied/delayed)
- Will be appealed; and
- Reckless indifference or deliberate flouting of the law that is harmful leaves the case worker and LA exposed to civil claims including Misfeasance in Public Office.
I hope the LA will apply the law correctly in assessing my special needs child who is in need of help.
The Legal Test Applied to <child’s name>
<Child’s name> fulfills the correct legal test because
<Show how, at a minimum (s)he may have SEN>.
<Then show why it may be necessary for the resultant SEN provision to be placed on an EHCP and not left to a school’s best endeavours. Has the school been denying his/her SEN? Has the school refused to provide SEN provision or been patchy in its provision? Does the school lack resources?>
Enclosed supporting information
<If you have supporting information, enclose it. Teacher’s reports, independent reports, at the very least your own observations.>
I understand you have six weeks from the date of receipt of this letter to inform me if you intend to conduct this EHC NA. This would make the deadline <calculate six weeks from the day you email the letter to the LA; or two days after if you post it>.
<END OF LETTER>
Make sure you get the EHC NA request right. If you get it wrong, or blindly fill in the LA’s template form that is often set up to make it difficult by asking leading questions then you will be refused and forced down the route of lengthy legal appeals in the First-tier tribunal that take months to complete – your child being denied the support he needs meanwhile.
Ensure you have engaged your school first. Document things in writing. Do not be scared of asking for fear of rejection. The school’s refusal is vital evidence in proving the legal test’s second limb: why an EHCP may be necessary. If you haven’t asked – and then been refused, the LA will be emboldened to deny your EHC NA request on the grounds that the school’s best endeavours is sufficient to fulfill any SEN needs hence an EHCP is not necessary, hence an EHC NA is not necessary.
Remember: don’t ask, don’t get.
The above template letter should help avoid the major pitfalls.
 Cambridgeshire County Council v FL-J  UKUT 0225 (AAC) at .
 LGO, ‘Not Going to Plan? Education, Health and Care Plans Two Years On’; page 8.