EHC needs assessments and plans – what the law says

This page quotes excerpts of law and you can refer to the Children and Families Act 2014 and SEND Regulations 2014 for a full description of the duties.

Carrying out an EHC needs assessment

Section 36 (8) of the Children and Families Act 2014 says:

‘The local authority must secure an EHC needs assessment for the child or young person if, after having regard to any views expressed and evidence submitted under subsection (7), the authority is of the opinion that—

(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.’

NB 9.14 of the SEND Code offers examples of evidence a LA should pay attention to, to help them with their decision.  However, the law does not say that any of these must happen to meet the above threshold. For this reason, EHC needs assessments can be requested at any time and stand separately to the graduated approach.

Determining whether a child under compulsory school age has ‘SEN’

Section 20 (3) of the Children and Families Act 2014 says:

‘A child under compulsory school age has a learning difficulty or disability if he or she is likely to be within subsection (2) when of compulsory school age (or would be likely, if no special educational provision were made)’

Reminder that subsection (2) states:

(2)A child of compulsory school age or a young person has a learning difficulty or disability if he or she—

(a)has a significantly greater difficulty in learning than the majority of others of the same age, or

(b)has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions.

For young people, there is an additional consideration:

Section 36 (10) of the Children and Families Act 2014 says:

‘In making a determination or forming an opinion for the purposes of this section in relation to a young person aged over 18, a local authority must consider whether he or she requires additional time, in comparison to the majority of others of the same age who do not have special educational needs, to complete his or her education or training.’

Information and advice to be obtained of EHC Needs Assessments

In addition to seeking information and advice from families, the educational setting, psychological, health, and social care: SEND Regulation 6(h) says the local authority must seek:

‘advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from.’

This might include a speech and language therapist, occupational therapist, physiotherapist or someone from CAMHS (Child and Adolescent Mental Health Services), for example. The local authority would have to deem the request as ‘reasonable.’

Duty to cooperate in EHC needs assessments

SEND Regulation 8 (subject to certain exceptions) says:

Where a local authority requests the co-operation of a body in securing an EHC needs assessment in accordance with section 31 of the Act, that body must comply with such a request within 6 weeks of the date on which they receive it.’

Issuing an EHC plan

Section 37 (1) of the Children and Families Act 2014 says:

‘Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan—

(a) the local authority must secure that an EHC plan is prepared for the child or young person, and

(b) once an EHC plan has been prepared, it must maintain the plan.’

Naming a school/college in section I of the plan

Supporting and involving children and young people

Section 19 of the Children and Families Act 2014 says:

In exercising a function under this Part in the case of a child or young person, a local authority in England must have regard to the following matters in particular—

(a) the views, wishes and feelings of the child and his or her parent, or the young person;

(b) the importance of the child and his or her parent, or the young person, participating as fully as possible in decisions relating to the exercise of the function concerned;

(c) the importance of the child and his or her parent, or the young person, being provided with the information and support necessary to enable participation in those decisions;

(d) the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes.’

The parent or young person has the right to request a particular school or setting to be named in an EHC plan (upon issue of a draft new or amended plan)

Parents or young people have a legal right to request that a particular school or college is named in an EHC plan (or to express a preference for an independent school, college or other institution). This might be when a parent is getting an EHC plan for the first time; if the EHC plan is being amended after an annual review; or if the EHC plan is being amended at any other time (for example, if the child or young person has to move schools and the EHC plan needs to be amended to reflect that).

Section 38 of the Children and Families Act 2014 says:

‘The local authority must then—

(a) send the draft plan to the child’s parent or the young person, and

(b) give the parent or young person notice of his or her right to—

(i) make representations about the content of the draft plan, and

(ii) request the authority to secure that a particular school or other institution within subsection (3) is named in the plan.

Schools and settings which can be requested (includes special schools and academies):

(3) A school or other institution is within this subsection if it is—

(a) a maintained school;

(b) a maintained nursery school;

(c) an Academy;

(d) an institution within the further education sector in England;

(e) a non-maintained special school;

(f) an institution approved by the Secretary of State under Section 41 of the Children and Families Act 2014 (independent special schools and special post-16 institutions: approval).’

The local authority must name the school/college requested by the young person or parent/carer – unless it can demonstrate that it would be unsuitable, or incompatible with the efficient education of others, or the efficient use of resources.

Section 39 of the Children and Families Act 2014 says:

‘The local authority must secure that the EHC plan names the school or other institution specified in the request, unless subsection (4) applies.

(4) This subsection applies where—

(a) the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or

(b) the attendance of the child or young person at the requested school or other institution would be incompatible with—

(i) the provision of efficient education for others, or

(ii) the efficient use of resources.’

Pupils to be educated in accordance with their parent’s wishes:

Section 9 of the Education Act 1996

The right to a mainstream education

Section 33 (2) of the Children and Families Act 2014 says:

‘In a case within section 39(5) or 40(2), the local authority must secure that the plan provides for the child or young person to be educated in a maintained nursery school, mainstream school or mainstream post-16 institution, unless that is incompatible with—

(a) the wishes of the child’s parent or the young person, or

(b) the provision of efficient education for others.’

NB in addition, section 33 (4) states that:

A local authority may rely on the exception in subsection (2)(b) in relation to a particular maintained nursery school, mainstream school or mainstream post-16 institution only if it shows that there are no reasonable steps that it or the governing body, proprietor or principal could take to prevent the incompatibility.

Note, however, that this is a right to mainstream education but not necessarily a right to a particular mainstream school.

If a parent would like an independent setting which is not approved under Section 41

A parent can make representations (ask and argue) for an independent setting which is not on the Section 41 list. The LA must have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure (section 9 Education Act 1996). If a young person is requesting an independent school or college, the LA should consider this as part of their duty to consider the young person’s views, wishes and feelings (section 19 CAFA 2014). There must be an offer of a place from the independent setting. Unlike the section 38(3) schools listed above, an LA cannot order an independent school to accept a child or young person.

Unit provision

If a Unit is listed as a separate institution on the Department for Education’s register, it can be named in section I of an EHC plan.

Special educational provision otherwise than in schools, post-16 institutions etc – EOTAS

The Children and Families Act 2014 says:

(1)A local authority in England may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school or post-16 institution or a place at which relevant early years education is provided.

(2)An authority may do so only if satisfied that it would be inappropriate for the provision to be made in a school or post-16 institution or at such a place.

(3)Before doing so, the authority must consult the child’s parent or the young person.

NB That education in an school or college setting would be ‘inappropriate’

Annual Review of an EHC plan

Timescale for conducting an annual review

Section 44 of the Children and Families Act 2014 says:

(1) A local authority must review an EHC plan that it maintains—

(a)in the period of 12 months starting with the date on which the plan was first made, and

(b) in each subsequent period of 12 months starting with the date on which the plan was last reviewed under this section.

ie not 12 months from the date an amended EHC plan is issued.

And

A local authority may also secure a re-assessment of those needs at any other time if it thinks it necessary.

Amending an EHC plan following a review

Regulation 22 from the SEND Regulations 2014 says:

(3) ‘Where the local authority decides to amend the EHC plan following representations from the child’s parent or the young person, it must send the finalised EHC plan to—

(a) the child’s parent or to the young person;

(b) the governing body, proprietor or principal of any school or other institution named in the EHC plan; and

(c) to the responsible commissioning body

as soon as practicable, and in any event within 8 weeks of the local authority sending a copy of the EHC plan in accordance with paragraph (2)(a).’

In March 2022, the High Court made a judgement about the interpretation of the SEND Regulations, in relation to Annual Reviews: R (L, M, P) v Devon CC [2022] EWHC 493 (Admin)

The High Court confirmed:

  • Following an annual review meeting, if the local authority proposes to amend the EHC Plan they must notify the parents/young person within 4 weeks of the review meeting: Reg 20(10). At the same time, the local authority must send a notice specifying the proposed amendments: Reg 22(2)(a).
  • Where the local authority – after receiving representations on the proposed amendments from the parents/young person – decides to amend, they must issue the final amended EHC plan as soon as practicable and within 8 weeks of sending the notice specifying the proposed amendments: Reg 22(3).
  • Accordingly, there is a maximum timescale of 12 weeks from the review meeting until a final amended EHC plan must be issued.

Reviewing a plan in the year of a phase transfer (to enable sufficient time for transition planning to take place)

Regulation 18 from the SEND Regulations 2014 says:

18.—(1) Except where paragraph (3) applies, where a child or young person is within 12 months of a transfer between phases of education, the local authority must review and amend, where necessary, the child or young person’s EHC plan before—

(a) 31 March in the calendar year of the child or young person’s transfer from secondary school to a post-16 institution; and

 (b) 15 February in the calendar year of the child’s transfer in any other case, and where necessary amend the EHC plan so that it names the school, post-16 or other institution, or type of school or institution, which the child or young person will attend following that transfer.

NB: the review must be completed and the setting named in the plan by the transfer deadline.

Cease to maintain

Section 45 of the of the Children and Families Act 2014 says:

‘(1) A local authority may cease to maintain an EHC plan for a child or young person only if—

(a) the authority is no longer responsible for the child or young person, or

(b) the authority determines that it is no longer necessary for the plan to be maintained.’

An LA would no longer be responsible if:

  • the young person has taken up paid employment (excluding apprenticeships);
  • the young person has started higher education (university);
  • a young person aged 18 or over has left education and no longer wishes to engage in further learning;
  • the young person has turned 25; or
  • the child or young person has moved to a different LA.

An EHC plan can still be maintained when a young person wishes to undertake a supported internship or traineeship, ie continuing their education or training.

Situations in which an EHC plan would no longer be necessary could be because the child or young person no longer needs the provision set out in the EHC plan (because their needs have changed).

For a young person over 18, the LA must have regard to whether the educational or training outcomes in the EHC plan have been achieved. If they have not, that is an indication that the special educational provision should continue. However, the LA cannot cease to maintain an EHC plan just because the outcomes have been achieved – they should consider whether it is necessary for new outcomes to be set.

The SEND Code says that LAs must not cease to maintain the EHC plan simply because the young person is aged 19 or over (paragraph 9.200). LAs should also not cease to maintain just because the young person has finished their current course at school or college; “Young people with EHC plans may need longer in education or training in order to achieve their outcomes and make an effective transition into adulthood” (paragraph 9.151).

NB there is no need for a young person to be working towards qualifications, employment or independent living for an EHC plan to be maintained. In Buckinghamshire County Council v SJ [2016] UKUT 254 (AAC) the Upper Tribunal made clear that it rejected “any suggestion that the attainment of qualifications is an essential element of education. For many of those to whom the 2014 Act and Regulations apply, attaining any qualifications at all is not an option. That does not mean that they do not require, or would not benefit from, special educational provision.” In this case there was: “no doubt, that any further achievements would be small. That does not mean that they would not be valuable for [the young person] in his adult life.”

Where a young person aged 18 or over ceases to attend the educational institution specified in their EHC plan, the LA cannot cease to maintain that EHC plan. It must first hold a review (following all of the steps it should for an annual review) and then it can only cease to maintain the EHC plan if it has ascertained that the young person does not wish to return to education or training at any setting, or the LA has determined that returning to education or training would not be appropriate for the young person (Regulation 30 of the Special Educational Needs and Disability Regulations 2014).

If the young person wishes to return to education at a different setting, the LA must amend the EHC plan to name an appropriate setting (see the section on choosing a school for more information).