EHCPs - how the law can support education for neurodivergent children and young people

Written by Erin Smart. A practical guide to Education, Health and Care Plans under the Children and Families Act 2014.

Neurodiversity in Law Mar 24, 2026 2 Share Preface: As many will be aware, the Policy Paper, ‘Every child achieving and thriving’, published in February 2026, proposes a number of changes to the Special Educational Needs (“SEN”) system, including a tiered support system, individual support plans and specialist packages of support. However, the Children and Families Act 2014 remains the primary legislation governing SEN and continues to be the basis for any request for an Education Health and Care Plan. The definitions in the act continue to apply to decisions being made.

The Children and Families Act 2014 provides for children and young people aged 0-25 years old. The legislation, helpfully, defines special educational need, in section 20, as follows:

(1) A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her.

(2) A child of compulsory school age or a young person has a learning difficulty or disability if he or she—

(a) has a significantly greater difficulty in learning than the majority of others of the same age, or

(b) has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions.
As can be seen from subsection 1, above, this requires definition of special educational provision. This is detailed in section 21:

(1) “Special educational provision”, for a child aged two or more or a young person, means educational or training provision that is additional to, or different from, that made generally for others of the same age in—

(a) mainstream schools in England,

(b) maintained nursery schools in England,

(c) mainstream post-16 institutions in England, or

(d) places in England at which relevant early years education is provided.
The definition is appropriately wide in order to allow for support to all those who require it. It is the starting point for the protection afforded, for those who need it, in education.

Importantly, this means there is no requirement for formal diagnosis or a requirement to, essentially, fail in an education setting, in order to get support under this legislation. Therefore, evidence of experiencing difficulties with social demands of an educational setting; dealing with changes and transitions around the school setting; struggling with attention; and impulsivity would, in many instances, meet the threshold for special educational need, based on the definition above. Clearly, those with neurodiversity will often fall into the definitions. That being the case, it is important to be aware of the protections, duties and provision, the legislation provides.

It is my professional view that anyone with neurodiversity is likely to meet the definitions required as it is often the case that provision is required beyond that which is usually available.

A child or young person who has or may have special educational needs and may need special educational provision must be assessed by the local authority as part of an Education, Health and Care Needs assessment (section 36). A request for an assessment can be made by the school, college, young person or parent. On receipt of the request, the local authority must consider the evidence to determine whether the threshold in section 36 is met, importantly, with reference to the definitions as identified above. As with the definitions outlined, the threshold for assessment is low. It is my professional view that anyone with neurodiversity is likely to meet the definitions required as it is often the case that provision is required beyond that which is usually available. This could include additional adult time in the classroom to assist in attention and specific teaching; or specialist intervention, either as part of a group or individually; a safe space available for use at designated times during the day; or bespoke and personalised timetables for the child or young person to assist with transitions.

Whatever the decision, the local authority must confirm this, in writing, within 6 weeks of the request being made. If refused, parents or the young person has a right to appeal to the SEN First Tier Tribunal who will decide the appeal, usually, on the paperwork alone.

If the local authority agrees to assess the child or young person, it has 10 weeks to gather the necessary evidence, usually from the school; educational psychologist; therapists; and parents. Following the assessment, the local authority must decide whether or not to issue an Education, Health and Care Plan (”EHCP”). It must do so if it determines that special educational provision is required in accordance with an EHCP. As above, there are numerous supports which benefit neurodiverse children and young people at school and, if these meet the definition of special educational provision, it is likely that an EHCP is required. Further examples of provision would include any therapy needs identified as part of the assessment, for example, speech and language therapy to assist with social interactions and/or occupational therapy to provide support for sensory processing or dysregulation needs.

As per section 37 of the Children and Families Act 2014, an EHCP is a legally binding document that details a child’s or young person’s special educational, health, and social care needs. It must comprehensively outline all identified needs; specify the support required to address each one; and ensure that provisions are clearly prescribed, specific and quantified. Should the provision not be delivered, this can be challenged by way of judicial review.

The contents of an EHCP are broadly described below:

Section A must set out the views, interests and aspirations of the child and his or her parents or the young person. This section will also include a summary of how to communicate with the child or young person and any relevant history.

Section B should detail the child or young person’s diagnoses and reflect all special educational needs. This should include any difficulties the child or young person has in accessing education or a broad and balanced curriculum. The needs are usually identified in the professional reports, as part of the education health and care needs assessment.

Section C contains any medical needs and Section G will list the health provision required to meet needs.

Section D must set out any social care needs of the child or young person. This will normally require a social care assessment. Section H will list the provision required to meet social care needs, if any. It is important, however, that any needs, or lack thereof, are identified as part of the assessment and properly considered as part of the process.

Section E sets out the outcomes for the child or young person to meet. These are required to be holistic and “SMART” in order to develop all areas of need identified and should be measurable in order to ensure achievability.

Section F should provide for, and link to, every need identified in Section B. Provision must be detailed, specific and quantified. The local authority will have a legal duty to secure any provision and therapies included in this section. Any therapy provision identified in the assessment will usually appear in this section.

Section I relates to the school or setting to be attended. This must be suitable to the child or young person’s needs and must be considered in line the legislation in respect of parental preference. The local authority must consult with any schools requested.

As above, the EHCP should also name the school or educational setting to be attended. If a school has not been identified, the local authority can name a type of school, for example, “a maintained special school” in an EHCP whilst consultations are ongoing. Importantly, should the local authority fail to name the parents’ or young person’s preferred setting, or fail to specify a setting, this is appealable to the SEN First Tier Tribunal, as is the contents of the EHCP, specifically, Section B (description of special educational needs) and Section F (prescription of special educational provision).

The parental school of preference should be communicated with the local authority at the point of a draft EHCP being prepared and issued to the parents. This can be for any setting, maintained, non-maintained, or independent, special, specialist or mainstream. The local authority must then consult with the school to request the offer of a place.

The local authority can only refuse to name the parental preference school, that has offered a place, if section 39(4) is engaged. Specifically:

(a) the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or

(b) the attendance of the child or young person at the requested school or other institution would be incompatible with—

(i) the provision of efficient education for others, or

(ii) the efficient use of resources.
There are different considerations where mainstream, independent or a school which has not offered a place but, generally, it is the above which is relevant for those seeking a school to be named.

For those with neurodiversity there are a number of school options available should mainstream not be suitable to meet their needs and provision requirements. Therefore, the above may well be a relevant consideration and, whilst the local authority need not provide “the best” school for a child or young person for whom they are responsible, they must provide an educational setting which is suitable. If there are concerns about suitability then the legislation is engaged and any dispute in respect of the school named is capable of resolution by the SEN First Tier Tribunal.

There is a lot of discussion at the moment about the proposed changes in the system and the crisis in SEND. It is, unfortunately, true that parents and young people often describe a “battle” to get the support needed. Hopefully, with greater access to professionals and better funding in schools, the process can be more evidenced based and become less adversarial.

Key Legislation Referenced:

• Children and Families Act 2014 (sections 20, 21, 36, 37, 39)

Further Reading:

• SEN First Tier Tribunal - gov.uk/courts-tribunals/first-tier-tribunal-special-educational-needs-and-disability
• IPSEA (Independent Provider of Special Education Advice) - www.ipsea.org.uk
• Council for Disabled Children - www.councilfordisabledchildren.org.uk
• Policy paper, Every child achieving and thriving, Published 23 February 2026 - Every child achieving and thriving (HTML version) - https://www.gov.uk/government/publications/every-child-achieving-and-thriving

Erin Smart is an Education Associate at Russell Cooke. Committed to ensuring neurodiverse individuals access the support they need to achieve their potential. Contributor, The Journal (2025)

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