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Common myths about applying for an EHCP

Gateley Legal

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A significant proportion of families applying for an EHCP for their child are refused at the first hurdle, sometimes for reasons based on the Local Authority (LA) policy rather than the law.

Some families do not even get as far as applying as they have heard at school, a therapist (e.g OT or physio) or on the grapevine from other families, that it is very difficult to get an EHCP or that they do not think their child has complex enough needs to qualify.

In fact, the legal test for a LA to assess whether a child needs an EHCP is a remarkably low bar. It is found in paragraph 36(8) Children and Families Act 2014. The test to be applied is:

“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.”

That is it. Nothing else needs to be demonstrated by the application for an EHCP assessment. Do not be put off applying by any of the following common myths (many of which I was told when attempting to apply for an EHCP for my own daughter):

1. He/ she is not behind/ not far enough behind academically to qualify for an assessment

This is irrelevant to the legal test and is not a lawful reason to not assess. Special educational needs encompass much more than academic achievement. The broad areas of SEND are (1) communication and interaction (2) cognition and learning (3) social, emotional and mental health (4) physical and sensory. Keeping up academically is therefore only a part of one broad category of needs covered by EHCPs.  

2. School need to spend X amount of terms/ years with the graduated approach under SEN Support before an LA is obliged to carry out an EHCP assessment

Wrong. SEN Support and the graduated approach can be used by schools to provide extra support to children without an EHCP with increasing levels of support if no progress is made but this is not required at all or for any length of time before families/ school can apply for an EHCP, if they choose to do so and provided they meet the criteria set out above.

3. Only pre-school aged/ school aged children are able to have an EHCP

Not true. The Children and Families Act 2014 supports children from 0 to 25.

4. You cannot get an EHCP if your child is diagnosed with X (e.g. high functioning autism, dyslexia)

Incorrect. If you can show your child may have special educational needs and those needs may need to be met by way of an EHCP that is all you need to show regardless of the type or complexity of needs/diagnosis.

5. Your child does not have a diagnosis so cannot have an EHCP assessment

Wrong again. The legislation is focused on needs rather than diagnoses. If you are able to evidence (e.g. with school reports) that your child may have special educational needs (e.g. struggling in class academically, emotionally, socially), it does not matter if your child has a diagnosis.

6. Until the school have spent £X extra on my child than their classmates, the LA are not required to assess for an EHCP

This is a myth. Again, it is only the legal test that matters. You/ school do not need to demonstrate this nor does it need to have happened.

If you would like advice on any aspect of the EHCP process or SEND law, please do get in touch or listen to our podcast episode which will be available from June 17th.

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