Do You Need a Diagnosis for an EHCP? No, and Here Is the Law

Updated 4 July 2026 · Legal citations verified against legislation.gov.uk

"Come back when you have a diagnosis" may be the most common piece of wrong advice parents receive on the road to an EHC plan. Schools say it kindly, council letters say it firmly and it parks families on NHS waiting lists while a child keeps struggling without the right support. The law says something different: no diagnosis is required to request an EHC needs assessment and none is required before the council must consider that request properly. This article sets out exactly where the law says so and what to write instead.

What section 36(8) actually says

Under section 36(8) of the Children and Families Act 2014, the local authority must secure an EHC needs assessment if it is of the opinion that both of the following are true:

• the child has or may have special educational needs
• it may be necessary for special educational provision to be made in accordance with an EHC plan

"May have" is doing deliberate work in that sentence. Parliament set the threshold for an assessment low, lower than the threshold for issuing a plan, precisely because the assessment is the tool for finding out what a child's needs are. Requiring certainty before the investigation begins would defeat the point. A diagnosis is one way of showing that a child may have special educational needs. It has never been the only way and the statute does not mention it at all.

The assessment exists to answer the question, not the other way round

Think about what a diagnosis-first rule would mean in practice: prove the conclusion before we begin the investigation. The structure of the Act points the other way. The request stage asks only whether needs may exist. The assessment then gathers the evidence: under regulation 6(1) of the SEND Regulations 2014 the council must seek advice from the parent, the school, an educational psychologist, health and social care and any person the parent reasonably requests. That is the process designed to establish what is going on. A family should not have to complete a medical process first in order to unlock an educational one, and the law does not ask them to.

Waiting lists are evidence, not a barrier

If your child has been referred to CAMHS, a neurodevelopmental pathway, a speech and language service or a paediatrician, that referral is written proof that professionals think your child may have needs worth investigating. It speaks directly to the "may have" limb of section 36(8). Include with your request:

• The referral letter, with its date
• Confirmation of the place on the waiting list and how long you have already waited
• Any screening or triage outcome that accompanied the referral

Far from weakening a request, a long wait strengthens the argument that education cannot simply pause until the health system catches up. Your child is in school now, with needs that are visible now. If the school shares your concerns, ask the SENCO to put them in an email. A sentence from school saying it also suspects an underlying need is strong support for the "may have" limb, whatever stage the health system has reached.

What to write instead of a diagnosis

Describe the needs themselves, specifically. What a diagnosis would summarise in a word, you can evidence in detail:

• What your child finds difficult, with frequencies: how many mornings a week, how many incidents a term, how far behind in which subjects
• Dated examples: what happened, when and what the school recorded
• What the school has tried and what changed, if anything
• What professionals have said so far, even informally in emails or meeting notes

Our guide to writing parental views shows how to turn daily reality into exactly this kind of evidence, and our evidence checklist covers what to collect before you apply.

When councils demand a diagnosis anyway

Some councils publish criteria or send standard letters implying that no request will succeed without a diagnosis. A blanket rule of that kind is not the statutory test. Paragraph 9.16 of the SEND Code of Practice 2015 acknowledges that local authorities may develop criteria as guidelines but says they must be prepared to depart from them where there is a compelling reason to do so. A rigid diagnosis requirement that overrides the wording of section 36(8) is exactly the kind of inflexible approach we examine in our guide to why blanket policies are unlawful. If you meet one, reply in writing and ask the council to identify the statutory basis for requiring a diagnosis. There is not one, and putting the question on record matters if you later appeal. Keep the reply short and calm: one paragraph quoting section 36(8), one asking for the statutory basis and one restating that you expect the request to be decided on the legal test.

Private reports must be considered

If you do hold an assessment from a private psychologist, therapist or other professional, regulation 7(b) of the SEND Regulations 2014 requires the local authority to consider any information provided by the parent or at the parent's request. A council cannot set a private report aside because of where it came from. Equally, nothing requires you to pay for one: the duty to gather advice during an assessment sits with the council, not with your bank account. Send what you have, in whatever form you have it.

If the council still says no

A refusal to assess can be appealed to the First-tier Tribunal (SEND) on form SEND35A, within 2 months of the decision letter or 1 month of a mediation certificate, whichever is later. You must contact a mediation adviser for a certificate first, but you only have to consider mediation, not attend it. There is no fee and refusal-to-assess appeals are normally decided on the papers without a hearing. The results speak plainly: in 2024/25 about 25,000 SEND appeals were registered, 24% of them were against a refusal to assess and 99% of decided appeals went in the family's favour (Ministry of Justice tribunal statistics). Councils sometimes apply tests that are not in the statute. Tribunals apply the law, which is why so many refusals do not survive contact with one.

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