EHCNA stands for Education Health and Care Needs Assessment. It is the first stage in the process of obtaining an Education Health and Care Plan (“EHCP”) which is a legal document setting out the Special Educational Needs (“SEN”) a child or young person has and the Special Educational Provision (“SEP”) that they require to meet those needs. This blog post will look at how to request one and the legal test that should be, but isn’t always, applied.
EHCNAs are carried out by local authorities and are most commonly requested by parents/carers, young people and schools/colleges, although a wide range of professionals such as GPs and Health Visitors, can ask for them, as can the local authority themselves.
You should think about asking for an EHCNA if you feel that the school or college your child or young person attends is not able to provide the help and support that they require. This might be, for example, because they need significant adult support throughout the day or weekly interventions from specialised professionals such as speech and language therapists or occupational therapists.
When considering whether or not to carry out an EHCNA, the local authority is required to make its decision in accordance with the test set out in s.36(8) of the Children and Families Act 2014 (“CAFA”). This test has two parts and asks:
(1) Whether the child or young person has or may have special educational needs (“SEN”); and
(2) Whether they may need special educational provision to be made through an EHC plan.
If the answer to both parts is yes, then the local authority must carry out an EHCNA. Local authorities are free to set their own criteria as guidelines to help them decide when to conduct EHCNAs, and the SEND Code of Practice 2015 (“SENDCOP”), sets out (at paragraph 9.14) a variety of factors to which local authorities should have particular regard when deciding whether to conduct an EHCNA. These include:
evidence of the child or young person’s academic attainment (or developmental milestones in younger children) and rate of progress;
information about the nature, extent and context of the child or young person’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 or young person’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.
However, local authorities cannot apply blanket criteria and must depart from any criteria where there are compelling reasons to do so. In short, they cannot impose criteria which are more onerous than the legal test. Unfortunately, this is exactly what many local authorities frequently do, for example by stipulating that a child must be academically behind by 2 or more years or that a school must have done 2 or more cycles of the Graduated Response. (Assess, Plan, Do, Review). Although both of these are relevant considerations, they are not determinative, and the SENDCOP does not require that any, much less all, of these factors be present in order for an EHCNA to be carried out. So, whilst it is certainly helpful to have evidence of a child or young person’s lack of academic attainment, and to detail action already taken by the school or other setting (to name two of the relevant factors), if a child is not academically behind and/or the school has not done one or more cycles of the Graduated Response, that alone is not sufficient to refuse an assessment.
Once a request for an EHCNA has been submitted, the local authority has six weeks to provide its response. If they refuse to do an EHCNA (often on the grounds that the educational setting can provide all the SEN needed from its own resources) there is an automatic right of appeal and parents/carers are overwhelming succesful in such appeals. You can also simply submit a fresh assessment straight away; it is only when an EHCNA has been carried out and the decision made not to issue an EHCP that there is a mandatory six month wait before re-applying. It is also open to parents/carers to mediate with the local authority to try and persuade them to revise their position, perhaps in light of information that was previously unavailable or overlooked, which if successful is likely to be significantly quicker than the appeal route.
At SEND Advocacy we can support you to request an EHCNA or submit a request on your behalf. We can also support you to appeal against a refusal to assess. If you need someone in your corner to help you secure the education your child deserves, contact us today.