This case study reflects advice and assistance given to a parent who challenged the Local Authorities decision not to issue an EHCP after Statutory Assessment.

Names have been changed to protect the identity of child and parent.

The case was decided at Tribunal and centred around the legal test set out in The Children and Families Act 2014 s. 37(1), which states:

“Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan –

(a) The local authority must secure that an EHC plan is prepared for the child or young person, and

(b) Once an EHC plan has been prepared, it must maintain the plan.

Miriam’s daughter Alice attends a mainstream primary school and was placed on the Special Educational Needs register.

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Alice had an access plan from school, but it was Miriam’s belief that the access plan was insufficient to meet Alice’s level of need. Miriam felt that school had underestimated Alice’s level of need and therefore had not put in the correct level of support she required. Moreover, Miriam felt that there was sufficient evidence within the numerous reports provided by professionals to warrant Statutory Assessment.

Miriam felt that in order for Alice to bridge the gap against her peers, build confident self-esteem and to be able to make significant progress she would need an EHCP to clearly specify the support needed.

Miriam decided to request Statutory Assessment and sent in a Parental request to the Local Authority. The Local Authority carried out Statutory Assessment but declined to issue an Education Health and Care Plan.

SENDIASS supported Miriam to understand her right of appeal and firstly the necessity of considering mediation. Miriam chose to enter into mediation with the Local Authority and SENDIASS supported her at that meeting. Although Miriam strongly articulated her case in mediation and was persuasive with her arguments the LA declined to alter their decision.

Miriam submitted her Tribunal application, and the case went to a formal hearing.

Before the hearing SENDIASS supported Miriam with preparing her arguments for the hearing.



SENDIASS supported Miriam at the hearing on the day and Miriam was able to confidently, accurately and convincingly articulate her points to the panel.

The Tribunal panel concluded that:

The school and the LA had underestimated the extent of Alice’s special educational needs.

The Educational Psychology report was not sufficiently detailed and did not contain any SMART outcomes and what outcomes were contained in the report were very time limited.



On the Panel decision letter when refusing to issue an EHC Plan, no special educational needs were specified on the form, which cast doubt on precisely what information was before the panel when they concluded that Alice’s needs were well known, that the provision provided by the school continued to meet her needs and that the provision was well within the school’s resources.

Despite being exempted from Year 2 SATs, and her well documented difficulties with reading and handwriting, no special arrangements had been contemplated by the school for Alice with regard to exams, even though she would be disadvantaged without such support. They concluded for all of these reasons that the complexity of Alice’s needs has been underestimated.

The provision put in place so far had not resulted in Alice making adequate progress. The LA acknowledged that the outcomes proposed by the Educational Psychologist have not been met and seemed content to wait until the end of Year 6 to see if they have been achieved.

At the hearing, neither the LA nor the school were able to tell the panel whether they thought Alice was of average or low average ability The SENCo herself cast doubt on the accuracy of the Discussion Report which said that Alice was now meeting age related expectations in Maths.

Apart from the sparse information contained in the school reports, (which have all merely indicated that Alice was working towards age related expectations), and two Access Plans which date from XXX, the school provided little evidence of a graduated approach or specific, detailed and quantified termly targets and progress made.

The LA had not been able to demonstrate with any clarity or certainty that with the specific provision in place Alice has made adequate progress

It was not clear why the LA had not yet implemented all of the recommendations from the professional reports it commissioned. The LA accepted that neither of the recommended individualised programmes for spelling or handwriting was being provided. In the absence of a satisfactory explanation from the school, the panel concluded that it had carried out the recommendations to the extent that they can be accommodated with the existing staffing levels within the classroom. The provision that had been made to date is inadequate and an EHC Plan is needed to ensure that adequate provision will be made.

The panel had been given no detailed costings or a breakdown of hourly support being provided to Miriam. The little information that they saw was to the effect that the money would be available from within the school’s resources without the need for an EHC Plan. However, resources are not available just because they exist if the LA is unwilling to use them because, wrongly as here, it did not consider that they were needed. The benefit of an EHC Plan is not just that money will be available for the provision, but also that the precise terms of the provision can be agreed, or if not, can be the subject of an appeal procedure.

 In any event, just because provision may cost less than the age weighted pupil unit plus £6,000, does not automatically equate to refusal to issue an EHC Plan. For the reasons set out above, the panel were satisfied on the balance of probabilities that Miriam demonstrated that unless the special educational provision is provided for Alice via an EHC Plan, the necessary provision is not in fact going to be made.

The panel also concluded that we have to look to Alice’s future transfer to secondary school. The panel followed the reasoning in Wilkin v Goldthorpe and Coventry City Council [1998] ELR 345, because the same approach is appropriate; we cannot realistically limit ourselves to the immediate present. The evidence presented to us does not demonstrate that provision at Alice’s current school is sufficient to meet her needs and those needs are likely to increase at secondary school.

On the evidence presented the panel concluded that the LA must issue an EHC Plan for Alice.

This case was successful as the Parent had a detailed knowledge of her child’s needs and was able to argue her case particularly well. From the start the school had consistently argued that they had identified and met need and as such the LA called them as a witness at the Tribunal.

SENDIASS provided support to the parent to prepare for the hearing, but it was the parent’s arguments that ultimately settled the case.

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