Picture the meeting. You ask about an EHC needs assessment for your child, and someone across the table says, kindly and with total confidence: “We do not assess children in Reception.”
It sounds official. It lands like a rule, and most parents accept it as one.
It is not the law. A sentence like that is an EHCP blanket policy: an unwritten local rule doing the job of a law it was never given. This guide sets out the test the law actually applies, why a local policy cannot change it, and what to do the next time a rule is quoted at you.
One thing first. This is not about the person who says it. These rules are habits of a stretched system, repeated from meeting to meeting until they sound like statute. The answer is not an argument with an individual. It is the law, in writing.
The rules you will hear
Four versions come up again and again, from schools, from the Local Authority’s SEN team (the body many parents still call the council), or written into local guidance:
- “We do not assess children in Reception.” Often softened to “let them settle in first”.
- “Your child has to be at least two years behind.” An attainment gap presented as the price of entry.
- “You need two terms of SEN support first.” Sometimes counted as two full cycles of assess, plan, do, review.
- “Wait until Year 3.” The idea that nothing useful can happen before Key Stage 2.
Notice how precise they sound. A year group, a number of terms, a measurable gap: the precision feels like the wording of a statute. It is not. None of these rules appears in any statute at all.
The test the law actually sets
When you request an EHC needs assessment, the Local Authority’s answer is governed by section 36(8) of the Children and Families Act 2014. It must carry one out where 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… in accordance with an EHC plan”.
Read that again slowly, because its most important word appears twice: may.
You do not have to prove your child definitely has special educational needs. It is enough that they may have. You do not have to prove an EHC plan is definitely necessary. It is enough that it may be. The bar Parliament set is possibility, not proof. Certainty is what the assessment itself exists to establish, so certainty cannot be the price of entry to it.
Now hold the four rules up against that test. There is no age in it. No year group. No attainment gap measured in years. No minimum number of terms on SEN support. None of those conditions appears anywhere in section 36, and none appears in regulation 5 of the Special Educational Needs and Disability Regulations 2014, which governs the decision whether to assess.
Source: section 36(8), Children and Families Act 2014, legislation.gov.uk. Checked July 2026.
Why a policy cannot outrank the Act
English law has a simple pecking order, and it settles this argument.
Parliament makes Acts, known as primary legislation; the Children and Families Act 2014 is one. Beneath an Act sit the regulations made under it. Beneath those sits statutory guidance, such as the SEND Code of Practice. Beneath all of it sit local documents: the criteria, checklists, panel guides and thresholds a Local Authority writes for its own staff.
Local documents can be useful; they help a busy team apply one law consistently. What they cannot do is change that law. A local policy cannot add a condition Parliament did not enact. It cannot turn “may need” into “must prove”, or bolt a minimum age onto a test that contains no age at all. Where a local policy and the Act point in different directions, the Act prevails. Every time.
So the real question is never “what does the local policy say?” It is “what does section 36(8) say?” If a rule adds a hurdle the Act does not contain, the rule gives way. Your request does not.
The Code bans blanket policies
You do not have to rely on the legal hierarchy alone. The SEND Code of Practice, the statutory guidance Local Authorities in England must have regard to, deals with this head on. Paragraph 9.16 says:
“Local authorities must not apply a ‘blanket’ policy to particular groups of children or certain types of need, as this would prevent the consideration of a child’s or young person’s needs individually and on their merits.”
The same paragraph requires Local Authorities to be prepared to depart from their own local criteria where there is a compelling reason to do so in a particular case. Local criteria may exist as a guide. They may never operate as a wall.
Now look back at the four rules. “We do not assess in Reception” applies one answer to a whole group of children. “Two years behind” applies one threshold to every child. “Two terms of SEN support first” and “wait until Year 3” do the same thing with time. Each decides a category of case in advance, which is precisely what paragraph 9.16 prohibits. Every request must be considered on the individual child’s merits.
Source: Special educational needs and disability code of practice: 0 to 25 years (2015), paragraph 9.16, gov.uk. Checked July 2026.
What to do when quoted a rule
You do not need to argue on the spot, and you do not need to fall out with anyone. Four calm steps do the work.
1. Ask for the rule in writing. “Could you send me that policy in writing, please?” is a fair request. Rules that live out loud often soften once someone has to put them on paper.
2. Ask which law it comes from. Not as a trap, but as a genuine question: “Which section of the Children and Families Act 2014 sets that condition?” For all four rules, the honest answer is that no section does.
3. Make your request anyway. A quoted rule is not a decision, and it has no power to stop you. Put your request to the Local Authority in writing. That starts the statutory process: the Local Authority must decide it against the section 36(8) test and give you a formal answer. If the answer is no, you get a decision letter, and with it a right of appeal to the SEND Tribunal.
4. Keep the quote as evidence. Note who said it, the date and the exact words, or keep the email or guidance page where it appears. If your request is refused and you appeal, evidence that a blanket rule was applied, not your child’s individual case considered, belongs in front of the Tribunal.
The law in this guide applies in England. Wales, Scotland and Northern Ireland each run different systems.
This guide is information, not legal advice. For free, expert advice on your own situation, contact IPSEA or your local SENDIASS, the free Special Educational Needs and Disability Information, Advice and Support Service.
Frequently asked questions
Can the Local Authority refuse to assess because my child is in Reception?
Age is not part of the legal test. Section 36(8) asks only whether your child has or may have special educational needs, and whether an EHC plan may be necessary. A refusal based on year group alone is a blanket rule applied to a group of children, which paragraph 9.16 says must not happen. You can make the request in any year group, and appeal if it is refused.
Does my child really have to be two years behind?
No. The “two years behind” threshold is not in section 36 of the Children and Families Act 2014 or in regulation 5 of the SEND Regulations 2014. Attainment is evidence, not a gateway. A child can be keeping up academically and still have special educational needs, for example where the effort of keeping up is creating real difficulties elsewhere.
Do we have to finish two terms of SEN support first?
No law sets a minimum time on SEN support before you can request an assessment. A fixed “two terms first” rule applied to every child is exactly the kind of blanket policy paragraph 9.16 rules out. Evidence of what the school has tried can strengthen a request, but it is helpful evidence, not a legal precondition. You can request an assessment at any time.
What to read next
- How to request an EHC needs assessment yourself: the request letter and what happens next.
- What to do if the Local Authority refuses your assessment request: the deadline, mediation, and how the appeal works.