Q:

05.01 Are there any particular rules about when an LA has to undertake statutory assessment of a child or young person’s SEN?

Noddy 'no-nonsense' Guide

Noddy 'no-nonsense' Guide
Authors: David Wolfe QC, Leon Glenister
14 Feb 2022
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  • 14 Feb 2022
  • Yes

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    Yes. But it is quite complicated! The overarching requirement is set out in the CFA2014:

    CFA2014 s36:
    “(1) A request for a local authority in England to secure an EHC needs assessment for a child or young person may be made to the authority by the child’s parent, the young person or a person acting on behalf of a school or post-16 institution…
    (3) When a request is made to a local authority under subsection (1), or a local authority otherwise becomes responsible for a child or young person, the authority must determine whether it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan…
    (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.”

    That means that the focus is now (consistently with earlier case law on EA1996 even though EA1996 had framed the test differently) directly on the question of whether an EHCP is required as the practical means to secure the SEP which the CYP requires.

    However, the structure of CFA2014 s36 is not totally clear. It appears to provide for a 2-stage process where a request has been made:

    • The first stage is for LA to determine whether it may be necessary for SEP to be made in accordance with a LA (section 36(3)) in consultation with the child’s parent or young person (section 36(4)). At this stage the statutory provisions do require any actual assessment of those needs. Where it is determined it is not necessary the child’s parent or young person is notified (section 36(5)). 
    • The second stage arises where the LA has determined it may be necessary for SEP to be made in accordance with an EHCP (section 36(6)). It requires the LA to notify the parent or young person that they have a right to express views and submit evidence (section 36(7)). If after considering this, there is a duty to assess where the LA considers the CYP may have SEN and it may be necessary for SEP to be made in accordance with EHCP (section 36(8)).

    Note that COP2015 identifies additional considerations and factors which bear little resemblance to the statutory test – see COP2015 #9.14 (with its focus on progress made and related matters). See more: Can the SEN Code of Practice trump the CFA2014?

    Per Cambridgeshire CC v FL-J [2016] UKUT 225 (AAC) #4, the two questions to be asked are (1) has the CYP a learning difficulty or disability, and (2) is it one that ‘calls for’ SEP? The question of whether SEP is “necessary” is at a later stage. The initial question on assessment is a “provisional and predictive” one. 

    The FTT will make a legal error if it asks itself “was special educational provision necessary” rather than “whether it may be necessary for special provision” to be made: RB v Calderdale MBC (SEN) [2018] UKUT 390 (AAC) #22

    Some of the old case law in relation to the test in EA1996 section 323 will continue to be relevant (the old test was required considered of whether “it is necessary for the authority to determine the educational provision which any learning difficulty…calls for”). See for example Buckinghamshire CC v HW [2013] UKUT 470 (AAC) in which the UT rejected Buckinghamshire CC’s argument that the FTT had been wrong to order an assessment without identifying the SEP the CYP required – that was the point of the assessment (#12). As to what is ‘necessary’, the UT stated it is a standard that is “somewhere between indispensable and useful or reasonable” (#16); “Whether something is necessary assumes a reason and a purpose. The reason and purpose is obviously to identify whether a child needs further educational provision and, perhaps, a statement of special educational needs” (#18).

    See further: SC & MS v Worcestershire CC [2016] UKUT 267 (AAC) (LA of opinion child is “probably” a child for whom it is necessary to determine SEP, which is informed by “certainty and stability” of statement); MC v Somerset CC [2015] UKUT 461 (AAC) (may be lawful for authority not to assess where even if child exceeds general provision of schools, in the particular case the child has access to provision required).

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    Noddy 'no-nonsense' Guide

    Noddy 'no-nonsense' Guide
    Authors: David Wolfe QC, Leon Glenister

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