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• 08 Jan 2026

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Can't answer yes or no.:

Ms Derrick,

The information below summarises the legal framework in England and practical considerations that sometimes arise where a child is not currently in school. It is not legal advice, is not tailored to any individual case, and outcomes will depend on the evidence and the local authority’s decisions. If specific advice is needed, independent specialist SEND advice or legal advice may be appropriate.

1) Is a diagnosis required, and how can the nature and extent of a learning difficulty be identified?

A diagnosis (for example ASD/ADHD) is not a legal requirement to seek SEND support or to request an EHC needs assessment. The legal focus is on whether a child has, or may have, special educational needs and what special educational provision may be required.

Under the Children and Families Act 2014:

SEN arises where a child has a learning difficulty or disability that calls for special educational provision (section 20).

Special educational provision means educational provision that is additional to, or different from, what is generally available for children of the same age (section 21).

Where there is concern about a learning disorder but diagnostic pathways have been inconclusive, the most useful evidence is often educational functioning and barriers to learning, for example:

• attainment and standardised information (e.g., reading/spelling/numeracy, and any prior standardised assessments);
• evidence of the gap between age expectations and current working level (the Sandwell results may be relevant);
• evidence of access barriers (severe anxiety around learning, avoidance, distress, escalation of tics, shutdown, etc.);
• existing health information (e.g., visual processing disorder; anxiety-related Tourette’s; any clinician letter referencing learning difficulties).

Practical reassurance about assessment routes

If an EHC needs assessment is agreed, the local authority will normally seek professional advice as part of that statutory process. This commonly includes educational psychology advice, and may also include advice from health professionals and specialist teachers, depending on the presenting needs. This is relevant where a family cannot realistically arrange private assessments in advance.

Where there is current or recent self-harm risk or significant mental health concern, it may be appropriate to ensure there is suitable clinical follow-up (for example via a GP referral pathway). This is a general safeguarding/health point rather than a statement about legal entitlement.

2) How can an EHCP process be started where a child is home educated and there is limited professional input?

A parent can request an EHC needs assessment from the local authority under section 36 of the Children and Families Act 2014.

The test is whether the child:

• has or may have SEN; and
• it may be necessary for special educational provision to be made through an EHC plan (section 36(8)).

This is a relatively low and predictive threshold at the assessment stage. A confirmed diagnosis is not required.

Being out of school is relevant, but it does not prevent assessment

It is often helpful to state clearly that a child is not currently on roll at a school and is being home educated, because it explains the context and why current evidence may come primarily from the family and previous settings. Being home educated does not in itself remove the local authority’s obligation to consider an EHC needs assessment request.

Timescales (England)

Under the SEND Regulations and the SEND Code of Practice (subject to limited exceptions):

decision whether to assess: usually within 6 weeks of the request; and

a final EHC plan (if issued): usually within 20 weeks of the request.

What evidence can be used where the child is not in school?

A request can still be supported by clear, practical evidence, for example:

• Sandwell assessment outcomes and any private school reports;
• primary school records, SATs outcomes, and SEN documentation (if any);
• medical letters (visual processing disorder; Tourette’s/anxiety; any clinician comments about learning difficulty);
• a brief chronology of education history and why education is currently out of school;
• home education records: short logs of what has been attempted, what has not been tolerated, and the observable impact (avoidance/distress/tics/shutdown);
• examples of work attempted (even limited samples can illustrate barriers and working level).

If the local authority refuses to assess, or refuses to issue a plan after assessment, there should be rights of appeal to the First-tier Tribunal (SEND) under section 51 of the Children and Families Act 2014.

3) Is an EHCP the only way to access alternative provision?

An EHCP is not the only possible route, but it is often the clearest framework where a family is seeking publicly arranged or funded specialist provision.

It is helpful to distinguish three separate legal concepts:

A) Elective home education

Elective home education is the parent arranging education otherwise than at school under the general duty in Education Act 1996, section 7. Where parents have made suitable alternative arrangements, the local authority’s duty to secure the special educational provision in an EHCP can be affected (Children and Families Act 2014, section 42(5)). The detail is fact-specific.

B) Education Otherwise Than At School (EOTAS)

Under Children and Families Act 2014, section 61, special educational provision can be arranged otherwise than in a school where it would be inappropriate for it to be made in a school setting. This is different from elective home education and, where relevant, is usually considered within the EHCP framework.

C) “Suitable education” duties where a child is out of school

Separately, local authorities have duties under Education Act 1996, section 19 to arrange suitable education (at school or otherwise) for children of compulsory school age who, because of illness, exclusion, or “otherwise”, would not receive suitable education unless the authority makes arrangements. Whether and how this applies is fact-specific and can be disputed.

Short practical note on “1–2 days per week” alternative provision (without overstating entitlements)

In practice, part-time alternative provision can be difficult to source privately because many providers take placements via local authority commissioning or school referral pathways. A family may therefore find that a sustainable, funded arrangement often depends on one (or a combination) of the following being considered by the local authority, based on evidence:

• an EHC needs assessment leading to an EHCP that specifies provision, potentially including provision delivered otherwise than in school where appropriate (CFA 2014, s61);
• consideration of whether EA 1996, s19 duties are engaged because suitable education is not otherwise being received; and/or
• local arrangements for part-time attendance or flexible provision (where a school placement exists and agrees such arrangements), noting that these vary across areas and are not always available.

A neutral way to express the request is to explain that the child cannot currently access full-time mainstream education due to anxiety and learning barriers, and that the family is seeking assessment of need and consideration of whether a structured, gradual re-engagement package (for example, 1–2 days per week in an appropriate setting, with the remainder delivered differently) may be necessary to deliver suitable education and/or special educational provision. The evidence will be central.

Support with legal costs

It may be worth checking eligibility for Legal Help (and, in some cases, legal aid) in relation to SEND matters. Eligibility is means-tested. The Civil Legal Advice helpline can be contacted on 0345 345 4 345.

I hope this is of some assistance and I look forward to reading other contributions,

Sean Kennedy.

 

 



Sean Kennedy

08 Jan 2026

This is helpful

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