Can I request an EHC needs assessment without a diagnosis?

The local authority must complete an EHC needs assessment if your child has or may have special educational needs, and if your child may need special educational provision to be made through an EHCP. You do not need a formal diagnosis in order to request an EHC needs assessment.

We receive a number of enquiries from parents who did not think they could request an Education Health and Care (EHC) needs assessment because their child does not yet have a formal diagnosis. This is not the case.

A diagnosis simply gives the difficulties your child is facing a name that is recognised. Your child will face the same challenges with or without a diagnosis.

The Children and Families Act 2014 states that a child or young person has special educational needs (SEN) if they have a learning difficulty or disability which calls for special educational provision to be made for them.

A child or young person has a learning difficulty if they have:

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

b) A disability which prevents or hinders them from making use of the facilities of a kind generally provided for others of the same age in a mainstream school/post-16 institution.

The Equality Act 2010 defines a disability as:

a) A physical or mental impairment

b) An impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities

It should not be assumed that all children who are making slower progress than expected have SEN. However, some children receive extra support and still fail to make progress. If this is the case, they may need additional provision through an EHC Plan (EHCP).

The EHC needs assessment is the process for the local authority to establish your child’s needs and the provision they require. Specific people can request an EHC needs assessment:

• A child/young person’s parents
• A young person over the age of 16 and up to 25
• A person on behalf of a school

You can submit your request at any time.

If a local authority is requested to carry out an EHC needs assessment, they must consider:

• Whether the child has or may have special educational needs, and
• Whether they may need special educational provision to be made through an EHCP

This legal test is set out in the Children and Families Act 2014 (section 36 (8)), so these are the vital questions the local authority should be addressing when considering whether or not to carry out an EHC needs assessment. 

The SEN and Disability Code of Practice (paragraph 9.14) SEND code of practice: 0 to 25 years - GOV.UK (www.gov.uk) states that the local authority should take into account a wide range of evidence, paying particular attention to:

• Evidence of the child’s academic attainment and rate of progress
• The nature, extent and context of the child’s SEN
• Evidence of the action already taken by the school or other setting
• Evidence that where progress has been made, it has only been as the result of much additional intervention and support, over and above that which is usually provided
• Evidence of the child’s physical, emotional and social development and health needs, drawing on relevant evidence from clinicians and other health professionals and what has been done to meet these by other agencies

If you are able to provide the information above, you can still have enough evidence of your child’s SEN without a diagnosis.

Once you make a request for an EHC needs assessment, the local authority has six weeks to decide whether it will make the assessment.

If the local authority agrees to complete an EHC needs assessment, it will send requests for information to various professionals to obtain the following:

• Child’s and parents’ views
• Educational advice (usually from the head teacher)
• Medical advice and information from a health care professional (this does not have to specifically be a doctor)
• Psychological advice and information from an Educational Psychologist
• Advice and information in relation to social care
• Advice and information from any other person the local authority thinks is appropriate

You can ask that advice is sought from anyone within education, health or social care as long as it is reasonable. A request will be reasonable if your child has been identified as needing an assessment already (e.g. if they are on a waiting list) or where the school or other professional has said it may be needed.

If the local authority decides that it will not issue an EHCP, you have the right to appeal to the Special Educational Needs and Disability Tribunal (SENDIST). There is a specific window in which you can appeal. We can help you before sending your request for an EHC needs assessment to the local authority, and as soon as any decision is reached by the local authority giving you a right of appeal.

Our Boyes Turner Education team can help you through any (and every) stage of the EHCP process. You can contact us on 0118 952 7219 or via senexpertsolicitors@boyesturner.com