Explain

The legal test for an EHC needs assessment (section 36(8))

The council must carry out an EHC needs assessment if two things are true. The child or young person has or may have special educational needs. And it may be necessary for special educational provision to be made through an EHC plan. That is the whole test. The council must also consider whether a young person over 18 needs more time than most others of the same age without special educational needs to finish education or training. The Upper Tribunal has said the two-part test is a lower bar than the test for issuing a plan.

Plenda never says whether the test is met: that is for the council and, on appeal, the tribunal. Some things are not part of the legal test. These include a diagnosis, a set number of terms of SEN support, or the school spending a set amount first. Being a set amount behind, or using the council's own form, are not part of it either. The council must consider the views and evidence the parent or young person gives it. The Code of Practice lists evidence the council should consider, such as progress and the help already given. These are things to consider, not extra conditions in the Act. The Code also says local criteria can be used only as guidelines: the council must be ready to depart from them where there is a compelling reason, and must not apply a blanket policy.

Type of rule

Law (Act or Regulations)

Rule id

legal_test_s36_8

Rules version

england-2026.10

Law as at

30 September 2026

Sources

• Children and Families Act 2014, s 36(8)Law (Act or Regulations)
• Children and Families Act 2014, s 36(7)Law (Act or Regulations)
• Children and Families Act 2014, s 36(10)Law (Act or Regulations)
• Cambridgeshire County Council v FL-J [2016] UKUT 225 (AAC)Case law, to verifyStill to confirm the citation, the holding, that the decision has not been overturned on appeal, and that it is treated as binding on the First-tier Tribunal.
• SEND Code of Practice 2015, para 9.14Code of Practice: should (follow unless there is a good reason not to)
• SEND Code of Practice 2015, para 9.16Code of Practice: must (restates the law)

Related

• Asking for an EHC needs assessment
• The legal test for issuing an EHC plan (section 37(1))
• Special educational needs (SEN)
• SEN support (help without an EHC plan)
• "Ordinarily available provision"

In an assistant, the ehcp_check_letter tool helps with this: Check a council letter.

All words explained · The rulebook