What do I need to say to the EP to get an EHCP?

Hi there, my daughter is 3.5 years old and has recently been diagnosed with ASD and she is due to start school in September 2024. On 4th January 2024 the EP is coming to assess her at nursery for the EHCP process. I am really worried about this as when (a different) EP came to visit her before they said ‘there are other kids in this position that will not get an EHCP’ - however I (and the nursery SENDCo) don’t see how my daughter will be able to cope or learn anything at school without an EHCP. So basically I’m super worried the EP is going to assess my daughter based on what our local authority can afford rather than provide her the care that she needs.

I’m sure this is a common question but greatly appreciate any help!


Matt Riley
18 Dec 2023

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A: SenseCheck

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  • 02 Jan 2024
  • Yes


    Mr Riley,

    Thank you for your question.

    It is unclear whether you have applied for an EHC needs assessment to commence for your daughter or if the assessment has already commenced. 

    In any case, let us commence by discussing the criteria for initiating the EHC needs assessment (EHCNA). This is detailed in the "Noddy Guide" and can be found here:

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

    The answer is quite detailed and should be reviewed thoroughly. However, in simple terms, the criteria for securing a needs assessment are as follows: 

    (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 Education, Health and Care (EHC) plan.

    Please note the emphasis on MAY be necessary .. to have an EHCp

    Once the needs assessment is completed, a different test is applied, which is also explained in the Noddy Guide here:

     05.02 Does a child or young person automatically get an EHCP following a statutory assessment?

    Again, the contents of the Guide should be carefully considered in its entirety. That said, in simple terms, the initial "MAY be necessary" criterion changes to "IS necessary" to have an EHC plan. (note statutory assessment equates to EHCNA)

    What is certainly not the case is that the process is arbitrary and based on what a local authority thinks it can afford. Without an EHC plan, your daughter could only be eligible to receive SEN support in school and  (amongst other things) there is a notional £6000 limit on the amount of support she can receive. 

    As part of the EHCNA (whether when applying for it to start or as a parental contribution during the assessment), providing evidence that identifies your daughter's special educational needs and the required special educational provision to meet these needs should help the LA determine whether an EHC plan is necessary. Hence the more comprehensive you can be in this regard the better. In reference to the EP who will be visiting the school, it is important to ensure that this information is conveyed clearly to them. Additionally, it is essential to remember that both you and the school (who should be consulted in any event) have the option to submit this type of information directly to the local authority.

    If your request for an EHC needs assessment is refused, or if after such an assessment is conducted, the LA decides not to issue an EHC plan, you have the option to seek assistance from the First-tier Tribunal (FtT), who will stand in the shoes of the LA and apply the relevant test.

    I trust this information is of assistance, and I sincerely hope that your daughter receives the support she requires.

    Sean Kennedy

    Sean Kennedy
    Talem Law