Special Educational Needs and the Needs Assessment

By Bren Prendergast, Specialist Teacher & parent-trainer for sen-help.org.uk. Sen-help provides training on a range of topics related to SEN and EHC plans.

If you are reading this, then chances are you have a child ‘with SEN’ (Special Educational Needs). You may have known this before your child was born, or you may come to this conclusion sometime later. We all arrive at our destination from different start points, but the destination somehow becomes a shared one as we find a whole new tribe of friendships out there, often through social media.

But what is this word ‘SEN’? What does it actually mean? Well, not what most people think. In legal terms, it means:

“A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her” [1]

This will be the result of having a significantly greater difficulty in learning than most children of the same age, and/or a disability which creates difficulty in accessing school facilities classmates can. Special educational provision is anything additional to, or different from, that generally made in mainstream. The ‘measure’ is always ‘typical same-age peers’ and ‘mainstream’.

The more mainstream schools do ‘as standard’ the fewer children will have SEN. SEN, therefore, is likely to rise and fall with the money put into the education system. The less money schools get, the less schools can provide, and the more children will ‘have SEN’. SEN is, therefore, more socially constructed rather than physical ‘thing’; most children with SEN are in mainstream schools.

The local authority (LA) becomes responsible for a child as soon as they have identified or had their attention brought to, a child who has or may have SEN [2]. Often this will be via a health worker, but it could be anyone. At that point, the LA must consider if a Needs Assessment should be carried out but must not carry one out without your knowledge. The main point is from that moment, the LA became ‘responsible’ for your child’s SEN.

A few children will have complex needs from, or soon after birth which are obvious. Education, Health and Care plans run from 0-25, so a Needs Assessment could be requested soon after birth if you want to apply early, this would be a personal choice. A Needs Assessment can be requested anytime during this age range.

No diagnosis is required – remember, it is about a learning difficulty or disability. Nor does the child need to be academically behind. An autistic child may have a significantly greater difficulty in learning social communication and have anxiety disabling him or her while achieving very high scores on tests.

If the school thinks your child may be experiencing difficulties, they will invite you in for ‘the chat’, i.e., to discuss this with you and tell you what they plan to put in place. This will be ‘SEN Support’, where they ‘assess, plan, do review’. That is, identify what your child needs support with, put in some support, then review if it was successful and adapt as needed.  If your child, after a few cycles of support, still experiences difficulties, the school should apply for a Needs Assessment and in this situation, the LA must assess.

You do not have to wait for school to do apply, you can apply yourself for a Needs Assessment. Whether you or the school applies, you must be given a Right of Appeal to the SEND Tribunal no more than 6 weeks after the request, if the LA says no. The legal test is:

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. [3]

This is a two-part test, may have SEN and may need an EHC plan. There is no burden of ‘proof’, or even ‘probability’, only a possibility that your child may have SEN. However, taking a common-sense approach, it helps if you do have an idea of why it may be ‘necessary’. The law also only states ‘request’, so the LA cannot make you fill in loads of forms. You could call, write, email, etc. I would advise email as you have proof you applied, and when. Give as much supporting evidence as you can, it will help the LA time-wise. The 6-week clock starts as soon as the LA receives your application.

A Needs Assessment does not mean that you will get an EHC plan, often it will not be known if one is necessary until an assessment has been carried out. If the LA agrees to assess, it must ask for advice and information about your child’s needs, provision and outcomes from the following [4]:

• You (or your child if over 16)
• Education
• Medical
• Educational Psychologist
• Social care
• Anyone the LA considers appropriate
• Transition (from Yr9 up)
• Anyone you reasonably request
• A specialist teacher if your child has visual, hearing or multisensory impairment

Where the LA requests information from another ‘body’, eg a speech and language therapist from the NHS, that body has 6 weeks in which to comply. [5]

The list is not a ‘wish list’, but an absolute duty. However, the LA must not seek new advice and information if the existing information is available and you, the LA and the report writer all consider this to be enough. This means that it does not matter how old the report is, if you disagree that it is not enough, the LA will need to go back to that service again.

Do remember that your child does not need a diagnosis to apply for a Needs Assessment. Also, in turn, your LA does not have to diagnose anything. The EHC plan is to specify needs, provision, and outcomes. These will be the same whether or not there is a diagnosis and for some children, their condition may be so rare, no diagnosis will ever be given.

Anyone who picks up the EHC plan should be able to understand who is doing what, why, when and if necessary, the qualifications of the person. The EHC plan must not use vague statements which are unquantifiable. I will end with a favourite piece of case law, one of many reinforcing the needs for a plan to be specific. The child here had a statement, but this is still valid. Part 3 is the equivalent of section F.

Statement: “access to multi-sensory teaching may be helpful using visual, auditory and kinaesthetic teaching”.

Tribunal: “Whether provision may be helpful is beside the point. Part 3’s purpose is to specify the educational provision that is required. It is not at all clear what, if anything, is required by this entry” [6]

Bren Prendergast, Specialist Teacher & parent-trainer for sen-help.org.uk. Sen-help provides training on a range of topics related to SEN and EHC plans.

Click here to read a blog about the SENDIST appeals process

Click here to read a blog about what to expect from a SENDIST tribunal

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[1] Children and Families Act 2014, s20(1)

[2] Children and Families Act 2014, s24(1)

[3] Children and Families Act 2014, s36(8)

[4] Special Educational Needs and Disability Regulations 2014, s6

[5] Special Educational Needs and Disability Regulations 2014, s8

[6] JD v South Tyneside Council (SEN) [2016] UKUT 0009 (AAC)