A child has special educational needs if he or she has a learning difficulty or disability (as defined by law) which requires special educational provision (as defined by law) to be made for that child.

If an EHC assessment is carried out and it is necessary for special educational provision to be made for a child or young person, then the provision must be made in accordance with an Education, Health and Care (EHC plan). Local authorities are responsible for ensuring that EHC plans are prepared and maintained for children and young people that require special educational provision.

The legislation that provides for EHC plans is the Children and Families Act 2014. EHC plans replace statements of special educational needs, which were created under the Education Act 1996. All children and young persons with statements of special educational needs are supposed to have transitioned to EHC plans.

A key document that sits alongside the Children and Families Act 2014 is the SEND Code of Practice. Local authorities, schools, academies and further education institutions (among others) must have regard to the SEND Code of Practice by law.

What is the process to getting a Education, Health and Care (EHC plan)?

The first stage of the EHC plan process is where a local authority carries out an assessment of a child or young person’s educational, health and social care needs. Such an assessment can be requested by a child’s parent, a young person, or a person acting on behalf of a school or post-16 institution (often colloquially known as an EHC plan application).

When deciding whether or not to carry out an EHC needs assessment, there is a test set out by law that must be applied. An EHC needs assessment must be carried out if (having regard to any views expressed and evidence submitted by the parent), a local authority is of the opinion that:

1. the child or young person has or may have SEN and
2. it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

After an assessment, if it is necessary for special educational provision to be made in accordance with an EHC plan, a local authority must ensure that an EHC plan is prepared. If it decides not to make an EHC plan, the local authority must notify of the right to appeal to the Special Educational Needs and Disability Tribunal (SENDIST).

If an EHC plan is to be prepared, there are further steps in the process. At certain points in the process and depending on what happens, you may have a right to appeal (sometimes colloquially known as an EHC plan appeal).

How can the Birkett Long education team help?

Our Special Educational Needs (SEN) solicitors in the education law team at Birkett Long provide practical SEN law advice based on years of experience. We believe in responding to you in a timely fashion whenever you need us and to keep you up to date as matters progress. We are proud to provide the best advice and assistance to our clients when they need it, taking into account their budget.

We provide clear and transparent pricing structures and fee estimates. In addition, we are pleased to offer our clients some services on a fixed fee basis, including EHC plan health checks. We provide such health checks on a fixed fee basis because we want to encourage, and we recommend, that EHC plans are reviewed at regular intervals. This is to ensure they are or remain in accordance with the then current law and guidance, continue to reflect an individual’s special educational needs and disabilities and state the required special educational provision to ensure they obtain the provision they need.

Our expert education law solicitors advise parents of children and young persons on statements of special education needs, education, health and care plans, appeals relating to EHC needs assessments, Special Educational Needs and Disability Tribunal (SENDIST) appeals and with judicial reviews.

We also assist with disability discrimination claims, tribunal appeals relating local authority decisions, including in relation to the content of EHC plans, tribunal appeals after annual reviews, tribunal appeals after a refusal by a local authority to issue an EHC plan and appealing a decision to cease to maintain an EHC plan.

In addition to being able to advise you on anything related to special educational needs, EHC plans and judicial reviews, our education solicitors can help you in all areas of education law, including admissions, exclusions, school complaints, claims against independent schools, home schooling and Office of the Independent Adjudication (OIA) appeals to name but a few. Further details about the full range of assistance we can provide can be found on this website.

For a no commitment phone call, please contact Thomas Emmett, Head of Education, on 01245 453847 or email thomas.emmett@birkettlong.co.uk.

We do not undertake legal aid work.

We do not advise or act for local authorities in education law matters, including in SEND law matters.