Children and Families Act 2014 Section 19 and Section 36: The Two Rules That Drive Every EHCP Decision

Two sections of the Children and Families Act 2014 form the backbone of almost every EHCP dispute. If you are fighting a refusal to assess, a decision you were not properly consulted on, or a plan that seems to ignore your child's real needs, these are the clauses that give your challenge its legal teeth.

Understanding them precisely — not just knowing they exist, but knowing how to apply them in writing — is the difference between an effective advocacy letter and an emotional plea the LA can sidestep.

Section 19: The Principles That Bind Every LA Decision

Section 19 of the Children and Families Act 2014 establishes the foundational principles of the entire SEND system. It is not a procedural rule — it is a statement of values that every local authority must legally apply when exercising any function relating to a child or young person with SEN or a disability.

The three Section 19 duties require local authorities to have specific regard to:

1. The views, wishes, and feelings of the child or young person, and their parents

This is not a courtesy requirement. A local authority that makes a decision about an EHCP without meaningfully soliciting and considering the child's views and the family's perspective has breached Section 19. Examples of Section 19 breaches include:

• Holding an EHCP review meeting and then finalising the plan without addressing the family's written representations
• Amending Section I to name a different school without consulting the parents about their preference
• Ignoring a child's expressed views about their educational environment when determining placement

2. The importance of participating fully in decision-making

Local authorities must actively facilitate family participation, not passively allow it. If parents are given reports 48 hours before a review meeting, if professional advice is withheld, or if meetings are conducted in a way that effectively excludes family input, Section 19(b) is engaged.

3. The need to support the child to achieve the best possible educational and other outcomes

"Best possible outcomes" is a legally significant phrase. It does not mean adequate outcomes, or the outcomes the LA can afford — it means the best that can reasonably be achieved. An EHCP that caps provision at what a school can easily deliver, rather than what the child genuinely needs to progress, may be failing this duty.

How to Use Section 19 in Practice

When writing to challenge an LA decision, explicitly cite Section 19 where the procedural or substantive failings align with its three limbs. Examples:

"In reaching the decision to name [School X] in Section I without consulting us about our preference for [School Y], the local authority failed to have regard to our views and wishes as required by Section 19(a) of the Children and Families Act 2014."

"The final EHCP fails to reflect the provision recommended by the independent Speech and Language Therapist, and therefore does not support [child's name] to achieve the best possible outcomes as required by Section 19(c) of the Children and Families Act 2014."

At the SEND Tribunal, evidence that the LA disregarded Section 19 principles — particularly by ignoring professional advice or excluding the family from meaningful decision-making — substantially undermines the LA's position. It signals to the panel that the LA's decision-making process was legally deficient from the outset.

Section 36: The Legal Threshold for an EHCP Assessment

Section 36 of the Children and Families Act 2014 governs when a local authority must agree to carry out an Education, Health and Care needs assessment (EHCNA).

Section 36(1) establishes who can request an assessment: a parent, a young person over 16, or — importantly — the school. You do not need the school to support your request. Parents can apply directly.

Section 36(8) is the critical provision. It sets out the legal test the LA must apply when deciding whether to agree to an assessment:

The local authority must secure an EHC needs assessment if, after having regard to any views expressed and evidence submitted under subsection (7), the authority is of the opinion that: (a) the child or young person has or may have special educational needs, and (b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

The test is deliberately low. It asks whether the child "may have" SEN and whether provision "may be necessary" via an EHCP. Not certainty — possibility. If there is a realistic prospect that the child has SEN and might need an EHCP, the LA must assess.

The Unlawful Criteria Local Authorities Invent

Despite this clear statutory test, local authorities across England regularly apply invented local criteria to refuse EHCNA requests. Common examples:

• Requiring that a child be a specific number of years behind age-related expectations (e.g., "two years behind peers")
• Demanding that the school prove it has first spent its delegated inclusion budget (£6,000)
• Requiring a formal medical diagnosis before considering an assessment
• Asserting that the child is "making progress" and therefore doesn't qualify, regardless of whether that progress is adequate

All of these criteria are unlawful. They represent the LA substituting its own invented threshold for the two-part statutory test in Section 36(8). If the child "may have" SEN and an EHCP "may be necessary," the assessment is required — full stop.

When a refusal cites these unlawful criteria, write back immediately:

"We note that the local authority's decision letter cites [specific criterion]. This criterion is not contained in Section 36(8) of the Children and Families Act 2014, which requires only that the child 'may have' SEN and that provision 'may be necessary.' We respectfully submit that the authority has applied an unlawful threshold and request that the decision be reconsidered in accordance with the correct statutory test."

If the LA does not reconsider, the decision is highly likely to be overturned on appeal. Refusal to assess appeals are among the most straightforward Tribunal cases precisely because LAs so routinely apply unlawful criteria.

Chapter 9 of the SEND Code of Practice

Chapter 9 of the SEND Code of Practice 2015 provides the statutory guidance that accompanies the Part 3 framework of the CFA 2014. Local authorities must have regard to it — departing from it requires specific justification.

Chapter 9 sets out:

• The 20-week timeline from assessment request to final EHCP
• The specific statutory advice that must be obtained during the EHCNA (from an Educational Psychologist, a health professional, a social care officer, and others)
• The requirements for drafting each section of the EHCP, including the specificity required in Section F
• The Annual Review process and amendment procedures

The most important Chapter 9 provision for parents challenging vague EHCPs is paragraph 9.69, which states that provision in Section F must be "detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise."

Phrases like "access to," "opportunities for," and "as required" in Section F are incompatible with paragraph 9.69. When the LA's EHCP contains this kind of language, cite the Code directly: "The provision in Section F does not comply with SEND Code of Practice paragraph 9.69, which requires specific, detailed, and normally quantified provision."

Putting the Two Sections Together

Section 19 governs the quality of the LA's decision-making process — was the family involved, were their views considered, is the outcome truly aimed at the best outcomes? Section 36 governs the threshold for the assessment itself — has the LA applied the correct legal test?

Together, they provide the two most frequently applicable legal hooks in any EHCP challenge. The England SEND Tribunal Playbook includes worked examples of how to apply both sections across the most common EHCP disputes, along with template letters that cite the exact statutory language needed to put the LA on notice.

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