Can a Child be Assessed for an EHCP in Anticipation of Needs?
Our local authority has just rejected an application for an EHCP assessment for our daughter, who is in year 5 and has diagnoses of ASD and ADHD. She is coping in primary school and is working at expected levels (though things are getting more challenging) but her primary, who handled the application, feel she would not cope in a mainstream secondary environment.
Before addressing your specific question, we should point out that your letter from the local authority (LA) is required by law to advise you of a free independent mediation service and also your right to appeal to the SEND First Tier Tribunal. The time limit for lodging an appeal is two months from the date of the LA’s decision letter or one month from the date of the mediation certificate, whichever is the later.
When considering how to proceed, it is worthwhile taking the time to go back to the applicable law. The legal test is found at section 36 (8) of the Children and Families Act 2014:
“(8) 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.”
Given your daughter has a diagnosis of both ASD and ADHD it is most likely that the first limb of the legal test ((a) above) is satisfied (s20(2) CFA 2014 provides the definition of special educational needs). Thus focus for you and the school is demonstrating that (b) above is also satisfied.
This initial question for the LA is a “provisional and predictive” one (Cambridgeshire County Council v FL-J  UKUT 0225 (AAC)). The LA will not have applied the law correctly if it asks itself “was special educational provision necessary” rather than “whether it may be necessary for special provision to be made in accordance with an EHC plan” (RB v Calderdale MBC (SEN)  UKUT 390 (AAC)) (emphasis added).
Section 36(8)(b) is sometimes the more difficult aspect of the test but before going on to the question of how this may be established, remember that under the Act (s21(1) CFA 2014) special educational provision (“SEP”) is not just about education, but education or training – which is additional to or different from what is available in mainstream schools in England.
The CFA 2014 does not say why it may be necessary, recent case law has confirmed that this question is very much one of judgment in each individual case, and reported decisions or examples from the SEND Code of Practice: 0-25 years (Jan 2015) cannot replace a considered decision about whether a plan may be necessary for an individual child.
Case law that is of particular relevance (note that cases concerning Statements, the predecessor to EHC Plans, are still good law) to your situation includes:
- Buckinghamshire County Council v HW (SEN)  UKUT 0470 (AAC)
In this case, Judge Jacobs agreed with the reasoning in the earlier case of NM v London Borough of Lambeth  UKUT 499 (AAC) and confirmed that it is the statutory test which must be applied, i.e. the test of whether it might be necessary for there to be a statement and explained the term thus:
“Necessary sets a standard that is somewhere between indispensable and useful or reasonable. I am not going to define it more precisely. It is a word in general usage and it is that usage that the SEND Tribunal must apply.”
The UT also considered whether or not the First-tier Tribunal had been right to look to the future in this case as the child was about to transfer from primary to secondary. The UT decided that Wilkin v Goldthorpe and Coventry City Council  ELR 345 was correct, albeit that the Wilkin case related to a child who was already statemented (rather than being assessed for one), because an analysis of the language alone showed that the same approach was appropriate.
“The statutory test inevitably directs attention to something that will happen after the assessment has been made. The assessment is made for a purpose. That purpose involves identifying provision necessary to meet a child’s needs. The assessment cannot realistically limit itself to the immediate present. When there will be a change of circumstances in the near future, it is impossible to ignore that future”.
So in answer to your specific question, your daughter’s future needs in a different school environment can and arguably should be taken into consideration as she approaches phase transfer from a primary to a secondary setting. However, this will clearly be a more persuasive argument when your daughter is in year 6.
- MC v Somerset County Council (SEN)  UKUT 0461 (AAC)
In this case, Judge Ward accepted that it might be ‘necessary’ for there to be an assessment in order to: “open the door to the issue of a statement and with it the enforceability of rights via s.324(5)”.
You mention that your daughter’s school has concerns about her coping in a mainstream secondary environment. Evidence to support this contention would be very useful. For example, if you have secondary school settings in mind then it would be an idea to make contact with the SENCO at each school to discuss your daughter’s special educational needs, the support she currently requires and the concerns envisaged when she transfers. If it is a specialist setting, then an EHC Plan may be a pre-requisite for admissions. Or it may be that within a mainstream secondary, in order to guarantee the level of support envisaged, the school would expect an EHC Plan to be in place.
If you are able to evidence that it MAY BE NECESSARY for SEP to be set out in accordance with an EHC Plan, that is all that is required at this stage to satisfy s36(8)(b) and require the LA to undertake the EHC needs assessment.
Further information can be accessed for free on the IPSEA website www.ipsea.org.uk, in particular, you might find the IPSEA Refusal to Assess Pack helpful: