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• 31 Mar 2026

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Can't answer yes or no.:

Ms Crosby,

It may well be worth pursuing, but the chances of success are likely to be stronger if there is relevant expert evidence, especially about your son’s needs, the emotional strain he is under, how fragile the current arrangements are, and the risk of school avoidance or refusal if those arrangements change.

The legal test on a refusal to assess is not whether your son is doing badly at school. The question is whether he has, or may have, special educational needs, and whether it may be necessary for special educational provision to be made through an EHCP. The threshold at this stage has been described in the case law as a “low test”, and the question is a “provisional and predictive” one. In other words, the issue is not limited to how things look right now.

On the facts you describe, it could be argued that the real concern is not your son’s academic results, but the fact that he seems able to cope only because of adjustments which may not last. He is able to attend school only because he is allowed to wear a significantly adapted uniform, and you describe that as coming at a considerable emotional cost to him. There also appears to be a real risk of difficulty if things change, whether because the school alters its uniform policy, because your husband no longer works there, or because your son moves to secondary school. The issue, therefore, may be less whether he is coping now, and more whether the current arrangement is stable, realistic and likely to continue.

The law is also meant to look ahead. EHCP decision-making should take account of important transition points, and that can include the stage of deciding whether an assessment should be carried out. A child’s needs do not have to be judged only by what is happening at the present time if there is a clear and important change coming up. As your son is in Year 5, the move to secondary school is close enough to be relevant.

The case law also suggests that the question is not simply whether the current school is managing. The issue is whether, without an EHCP, your son’s needs can be met from the support normally available, and whether they will in fact be met. That may matter in a case like this, where a child may appear to be coping on the surface, but only because of arrangements that may be unusual, fragile, or hard to repeat in a new setting. For that reason, strong academic performance does not necessarily rule out an assessment.

Against that background, a privately funded educational psychologist’s report may be helpful. It could help to show your son’s underlying needs, the emotional burden of coping at school, the importance of the uniform issue, the extent to which his current functioning depends on unusual adjustments, and the risk of school avoidance or refusal if those adjustments are removed. It may also help to identify what support he might need in future, especially on the move to secondary school. Evidence of that kind could support both a request for assessment and any later discussion about adjustments.

The fact that he is currently in a private school does not, by itself, prevent a request for an EHCP assessment. A child in a private school can still be the subject of such a request. That may be especially relevant where there is a real possibility of a move into the state sector for secondary school and a need to understand, in advance, what the child’s needs are and what provision may be required.

Overall, there appears to be a reasonable basis for considering the matter further. The strongest way of putting the case may be to focus on the fragility of the current arrangements, the risk of future difficulty if those arrangements change, and the need to plan properly for the move to secondary school, rather than on academic performance alone.

Kind regards,

Sean Kennedy



Sean Kennedy

31 Mar 2026

This is helpful

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