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Perspective

Justice-Involved Children with Special Educational Needs and Disability: What Are the Implications for Access to Identification and Support Through an Education, Health and Care Plan? A Thought Piece

by
Tristan Middleton
School of Education & Science, University of Gloucestershire, Cheltenham GL50 2RH, UK
Soc. Sci. 2025, 14(5), 273; https://doi.org/10.3390/socsci14050273
Submission received: 9 March 2025 / Revised: 24 April 2025 / Accepted: 28 April 2025 / Published: 29 April 2025
(This article belongs to the Special Issue International Perspectives on Secure Childcare)
Review Reports Versions Notes

Abstract

:
This thought piece exposes the gap in the operationalised support in England for young people within the justice system who have special educational needs and disabilities. It exposes inequity within the system which serves to create barriers for justice-involved young people, who are likely to already be disengaged from education, in accessing appropriate provision. It presents gaps in key educational advice and practice relating to access to Education, Health and Care Plans as a route to support for justice-involved young people, identifying a negative bias for this group of children who are already marginalised. Within the context of an English Special Educational Needs system which is widely recognised as broken, and an ongoing parliamentary consultation into ways to improve the situation, this piece suggests key changes to reduce the inequitable access to special education provision for young people accommodated in the secure estate. These suggestions make a contribution to the agenda of English politicians and the Department of Education.

1. Introduction

1.1. The Local Authority Context in England

Since the late 1990s, when the nations of Wales, Scotland, Northern Ireland and England were devolved and their powers separated between the UK Parliament and national parliaments (Keating 2002), the education systems of the separate nations have developed in distinct directions. This distinction is evident in the national legislation and guidance relating to special educational needs and disability (SEND), and this paper will, therefore, maintain a focus on the case for England.
Local authorities in England have ultimate responsibility for the provision of SEND resources for all children and young people residing within the local authority boundary, regardless of their school attendance.
The current context of SEND and Education, Health and Care Plans (EHCPs) is one of an overloaded system where statutory timelines for the processing and implementation of statutory assessments are severely delayed. In England, only 49.2% of EHCPs were issued within the statutory 20-week timeframe and there has been an increase of 23% in initial requests for an EHCP in one year (DfE 2023a). Evidence of the wider SEND system indicates, “unlawful practice, bureaucratic nightmares, buck-passing and a lack of accountability, strained resources and adversarial experiences, and ultimately dashed the hopes of many” (House of Commons Education Committee 2019); a system “beset with serious problems”, where 87% of parental complaints were upheld (LGO 2019). The National Audit Office (2024) has identified that, six years on, no consistent improvement has been made in outcomes for children and young people with SEND and Sibieta and Snape (2024) point to rising SEND needs and funding not keeping pace with these needs.

1.2. EHCPs

1.2.1. What Is an EHCP

An EHCP is simply described by the DfE (n.d.) as something
“…for children and young people aged up to 25 who need more support than is available through special educational needs support”.
An EHCP offers the holder a legal definition of their particular educational, health and care needs, the provision they require to meet their particular needs and targeted long-term outcomes for their education. As such, an EHCP supports children and young people and their families to ensure that their needs are being addressed and supports professionals to understand the needs and provision required. Furthermore, at transition points, particularly where children and young people are moving away from education settings, an EHCP can support the continuity of provision. An EHCP is often equated with additional funding for an individual’s provision (see, for example, IBB Law 2024); however, the reality is that an EHCP acts as a stepping stone towards additional funding, but it is not a guarantee.

1.2.2. What Is the Process of Receiving an EHCP

The process for children and young people being given an EHCP is represented in law as simple. The Children and Families Act (2014), Section 36, identifies that a request can be made and the local authority will make an Education Health and Care (EHC) needs assessment, where they may decide to carry out an assessment for an EHCP if they are 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”.
However, the process set up by individual local authorities is much more complicated. There are many hoops to jump through (House of Commons Education Committee 2019) and the process by which the local authority determines points a and b above is often unclear.
The legislation (Children and Families Act 2014, Section 36) states that an application for an EHC needs assessment can be made, “by the child’s parent, the young person or a person acting on behalf of a school or post-16 institution”. In addition to this, the SEND Code of Practice (DfE/DoH 2015, Section 9.9) states:
“In addition, anyone else can bring a child or young person who has (or may have) SEN to the attention of the local authority, particularly where they think an EHC needs assessment may be necessary. This could include, for example, foster carers, health and social care professionals, early years practitioners, youth offending teams or probation services, those responsible for education in custody, school or college staff or a family friend”.
With specific reference to children and young people in secure accommodation, the SEND Code of Practice states (DfE/DoH 2015, Section 9.10):
“Children and young people under 19 in youth custodial establishments also have the right to request an assessment for an EHC plan. The child’s parent, the young person themselves or the professionals working with them can ask the home local authority to conduct an EHC needs assessment while they are still detained”.
(DfE/DoH 2015, Section 9.10)
Furthermore, in the chapter which specifically addresses children and young people with SEND who are in youth custody (DfE/DoH 2015, Section 10.68), it states,
“Where a detained person does not have an EHC plan, the appropriate person or the person in charge of the relevant youth accommodation can request an assessment of the detained person’s post-detention EHC needs from the local authority”.
The regulations pertaining specifically to young people in conflict with the law (The Special Educational Needs and Disability (Detained Persons) Regulations 2015) offer no additional information about the process of applying for an EHC needs assessment nor the decision-making process.
Once a local authority has decided to undertake an EHC needs assessment, further information is gathered, and the local authority then either decides an EHCP is not required or they issue an EHCP.

1.3. Educational Inclusion

This thought piece is premised upon a standpoint of educational inclusion. The concept of educational inclusion is a philosophical principle (Ydo 2020) which is contested and constantly changing (Imray and Colley 2017) and this thought piece is not the place to engage with this debate. Rather, a working definition of educational inclusion can provide the reader with an understanding of the author’s positionality. This definition of educational inclusion begins from a humanist ontology (Rogers et al. 2014) and is situated within the arena of human rights and social justice (Ackah-Jnr 2020, p. 179), with the view that education is a basic human right (Ainscow 2019, p. 17). It supports and welcomes diversity amongst all learners. It challenges the status quo which engenders othering, and marginalising attitudes and responses to diversity in relation to race, social class, ethnicity, religion, gender and ability, and emphasises community participation as an essential approach to education.

2. The Problem

The “Exclusion to Prison pipeline” is a strong narrative which is especially pertinent for learners identified with SEND and particularly as it is known that almost 80% of young people who go on to offend were identified with SEND (ONS 2022). Those identified with SEND are as much as five times more likely to come into conflict with the law, though only 18% of young people who are sentenced in England have an EHCP (Smithson and Runswick-Cole 2016). It is also important to acknowledge the intersectional nature of the challenges experienced by justice-involved children and young people; for example, the additional barriers experienced within the SEND system by black children (SEN Mamas CIC 2025). Access to an EHCP and the EHC needs assessment is widely reported as being extremely difficult (see, for example, Contact (2025); Keer (2024)); however, there is limited contemporary academic research evidence in this area. Research papers which do address this issue tend to focus on a particular learner profile; for example, Keville et al. (2024) focus on the experience of mothers of children with autism, and Lee et al. (2024) identify issues of access to EHCPs for children and young people with intellectual and developmental disabilities. Ahad et al.’s (2022) meta-analysis of research papers between 2015 and 2019 identified inconsistency within the EHCP process between local authorities and a recent review of the EHCP process (Marsh 2023) confirmed this, identifying significant differences in the proportion of children and young people with EHCPs across local authorities. The results of multi-level modelling (Fuller et al. 2023, p. 87) suggest that children among offending groups were more likely to be issued with an EHC plan at an older age, compared to other children. However, no current research addresses the experiences of justice-involved children and young people’s experiences of the EHCP process.

3. Focus

This thought piece examines the issue of access to EHC needs assessments for children in conflict with the law, with a particular focus on identifying particular barriers to effective educational support for this particular cohort of young people. This examination provides evidence to better understand why children and young people in conflict with the law are not receiving the identification and protection of their special educational needs at the same level as other children and young people, and for those who do access an EHCP, why this is not happening in a timely manner.

4. Rapid Review of Local Authority Websites

An examination of key national legislation and guidance, alongside a rapid review of a selection of local authority websites pertaining to the application process for EHC needs assessments was undertaken to provide evidence for this thought piece.
This thought piece was undertaken to present a reflection upon the current context of the field, which is under-researched, and as a way of initially scoping the evidence in order to establish the need for a more substantial research project. There are 317 local authorities in England; amongst these, there are 36 identified as Metropolitan Districts. It was decided that this collection of just over 10% of the total population would offer a contained case by which to establish a general understanding of the current context. As such, a rapid review of the publicly available information about the process of an EHC needs assessment was conducted by visiting the 36 Metropolitan Districts’ web pages pertaining to support at the EHCP level. This rapid review identified the range of advice provided to the public about the EHCP process, serving as a way of understanding the transparency and consistency of the information available to parents, carers, children, young people and professionals.

5. Key Issues

5.1. Assumption of School Attendance

The majority of the reviewed webpages begin from an assumption that the child or young person will be attending a school. Some of the local authorities make specific reference to expectations about school support as a pre-cursor to an EHC needs assessment request:
“If the special educational provision being made for a child or young person by an early years setting, school or college is not enabling the child or young person to make adequate progress then it may be necessary to request an Education, Health and Care (EHC) Assessment”.
(Rotherham Borough Council 2025)
“If you apply for a plan, you should demonstrate that the child/young person has had universal and targeted support and that this is not closing the gap in their learning”.
(South Tyneside 2025)
“For an assessment request to be successful it must be shown that the child or young person has not made progress even with the provision of the £6000 of additional support from the school and that progress will be made with the additional resources that will come with an EHCP”.
(Sandwell Metropolitan Borough Council 2025)
Coventry City Council (2025) offer a range of detailed documents about the EHC needs assessment process. Within these, they make the assumption of school attendance:
“When requesting EHC needs Assessment there should be objective evidence of a pupil’s attainments, initially as compared with the peer group, but also as compared with the general school population and national data”.
Meanwhile, the EHC needs assessment form posted on the Coventry City Council website (2025) states, “The parent(s)/carer(s) and the school/setting should then sign the form”.

5.2. Who May Apply for an EHC Needs Assessment

The explanation of who may apply for an EHC needs assessment is inconsistent across the local authorities reviewed. Generally, the local authorities consistently identify parents, carers, the child or young person and education settings as being able to make a referral to the local authority. One example of this is City of Bradford Metropolitan District Council (2025), which has two sub-headings relating to who may request an EHC needs assessment, identified as “Parents, Carers and young people aged 16 to 25” and then “professionals”. The later sub-heading is easy to interpret as meaning the SENCo or headteacher, as these are the professionals to whom parents/carers are directed in previous sections. Trafford Council (2025) only offer the option of self-referral by a parent carer or young person, or a teacher or tutor with a SENCo.
By exception, there are a very small number of local authorities who do not explicitly state who may make an EHC needs assessment. For example, Coventry City Council (2025) do not explicitly explain this part of the EHC needs assessment process.
Some local authorities more clearly identify that any professional can request an EHC needs assessment:
“Any professional working with a child, young person or family can make a referral for an EHC Assessment”.
(Wigan Borough Council 2025)
See also Barnsley Metropolitan Borough Council (2025) and City of Wolverhampton Council (2025).
A handful of local authorities specifically identify professionals who would be involved with children and young people in conflict with the law as potential referrers for an EHC needs assessment (See also Bury Council (2025) and Sunderland City Council (2025)):
“This includes for example Foster Carers, health and social care professionals or teams that work with young people such as youth offending teams”.
(Knowsley Borough Council 2025)
“This could include foster carers, health and social care professionals, early years practitioners, youth offending teams or probation services. It may also include those responsible for education in custody, school or college staff or a family friend”.
(Newcastle Upon Tyne City Council 2025)

5.3. The Evidence That Is Required for an EHC Needs Assessment

There is further inconsistency between local authorities in relation to the information provided about what evidence is needed when an EHC needs assessment is requested.
Some local authorities offer no requirements of evidence which should be submitted with an EHC needs assessment request beyond simple information and a medical questionnaire (see, for example, Dudley Borough Council, whose information is disseminated via Dudley Community Information Directory (2025)).
Other local authorities stipulate that school-based intervention must be evidenced:
“Evidence of the action already being taken by the early years provider, school or post-16 institution to meet the child or young person’s SEN”.
(Solihull 2025a)
One local authority requires evidence of an SEND provision budget over the notional school-based budget:
“For an assessment request to be successful it must be shown that the child or young person has not made progress even with the provision of the £6000 of additional support from the school and that progress will be made with the additional resources that will come with an EHCP”.
(Sandwell Metropolitan Borough Council 2025)
Another local authority requires evidence of a graduated approach to school-based support:
“Has the educational setting identified the young person’s needs, and then provided support which is relevant to these needs, and which shown a clear outcome? Have learning levels and rates of progress been provided?”
(Calderdale Council 2025)
In some cases, very specific documentation is required alongside an EHC needs assessment request:
“In addition to completing this form, the referral should be accompanied by evidence of provision made from Element 2 (Additional Support) Funding over three school terms. This could be in any form, but a Costed Provision Map Template is available on the Local Offer website”.
(Wigan Borough Council 2025)

5.4. Clarity About EHC Needs Assessment Process and Decisions

There is wide variation between the different local authorities’ approaches to explaining the EHC needs assessment process. A number of local authorities offer statements referring to the legal threshold:
“Every request for an EHC needs assessment received by Wakefield LA will be considered alongside the two-part test as outlined within section 36(8) of the Children and Families Act 2014.
Part one of the test is that the child or young person has or may have special educational needs.
Part two of the test is that it may be necessary for special educational provision to be made for the child/young person through the issuing of an EHC plan”.
(Wakefield City Council 2025)
Or a simple statement such as:
“With threshold criteria to help, members of this panel discuss new cases and make a decision”.
(Trafford Council 2025)
Other local authorities provide more detail about the assessment process:
“The KAPP Panel considers the request and looks for clear evidence that despite the best efforts of the school, the child or young person continues to have a significant barrier to learning and the school cannot respond from within its own resources”.
(Knowsley Borough Council 2025)
“We will decide if an assessment is needed or not based on the evidence provided. When making a decision, we’ll review a wide range of evidence, including:
  • checking academic attainment, developmental milestones and rate of progress records
  • information about the SEN and care or health needs assessing any actions already being taken to meet needs
  • giving consideration to information provided by the parent or carer and child or young person”.
(Leeds City Council 2025)
Stockport Borough Council (2025) list a range of evidence that will be considered by the panel that makes the decision on whether to carry out an EHC needs assessment.
As an exception, a small number of local authorities offer a banding document, according to which thresholds of provision need could be used to identify the criteria by which an EHC needs assessment would be necessary (See Solihull (2025b)). Salford City Council (2025a) currently offer a banding document dated 2017, which references stages of SEND identification which was superseded with the SEN Code of Practice of 2015. This local authority also has web pages which use the terminology of “statement of special educational needs” (Salford City Council 2025b), which were replaced with EHCPs in 2015.
What is common, however, is that none of the local authorities offer details as to how the decision is actually reached or what threshold criteria are for the decision as to whether an EHC needs assessment will be carried out.

6. Why the Situation Is Inequitable for Children and Young People in Conflict with the Law

6.1. School Attendance

Disrupted school journeys are often the result of entering into conflict with the law (Fuller et al. 2023, p. 123); furthermore, school may be a risk factor for anti-social behaviours (Ashkar and Kenny 2007). When children and young people are within the Youth Justice System, they are likely to be moving around (Ahmed Shafi 2019) and not have a stable school setting (De Boer et al. 2022) where the evidence can be collected and collated. Many of the local authority processes for assessing an EHCP and allocating provision are predicated upon children and young people being in school, where a series of steps and documents are required to be produced by the school over many months to evidence the need for additional SEND support (see, for example, DfE/DoH 2015). Children and young people in conflict with the law are therefore at a disadvantage in terms of access to an EHCP by the nature of the likelihood of not having a prolonged and stable period of time in one school. Furthermore, the need for an EHCP, as a legal document outlining the child’s or young person’s needs and the required provision, is enhanced for children and young people in conflict with the law, as they are likely to be moving through different educational contexts. If an EHCP is in place, the need for the assessment and identification of required provision is reduced when a transition between places of education takes place.

6.2. Application for an EHC Needs Assessment

Where children and young people with SEND in conflict with the law are less likely to be within a stable school setting, they will be more likely to rely on family or youth offending professionals to refer them for an EHC needs assessment. The rapid review has shown that information available to parents and professionals about who can refer for an EHC needs assessment is inconsistent. Where parents/carers are within local authorities where it is inferred that schools need be the prime movers in a referral, this is likely to act as a barrier to accessing an EHCP. Where parents/carers are unfamiliar with the process, there is a likelihood that, without a school to lead a referral, they would perceive they were not in a position to request an EHC needs assessment.
For youth offending professionals working outside of the few local authorities which specifically identify their roles, it is also likely that they would not understand the opportunity for them to make a referral for an EHC needs assessment for a child or young person within their remit.

6.3. The Evidence Required for an EHC Needs Assessment

A child or young person in conflict with the law, who has not maintained regular and long-term attendance at school, is less likely to reach the threshold for an EHC needs assessment. Within local authorities which identify school-based evidence produced over time, a significant barrier is in place for access to support for children and young people in conflict with the law. Evidence of provision and support could also be accepted from education provision within secure accommodation; however, research shows that the majority of young people within secure accommodation stay within a single setting for a limited period of time (Hayden 2008). The thresholds for an EHC needs assessment decision within a local authority, whilst low within the legal definitions, are not public; however, anecdotal evidence points to the requirement for evidence of school-based support over a prolonged period, which has not resulted in expected outcomes for the child or young person. As such, a child or young person in conflict with the law and with disrupted school attendance is disadvantaged as a result of being unlikely to be able to provide adequate evidence for an EHC needs assessment.

6.4. The Process of an EHC Needs Assessment

The likelihood of either the parent/carer or youth offending professional being the best-placed individual to refer a child or young person in conflict with the law for an EHC needs assessment is high, given the statistics relating to disrupted schooling. It is also likely that, unlike school staff such as SENCos, who will have experience of making such referrals, parents/carers and youth offending professionals will have little or no experience of making a referral. The lack of transparency about the thresholds for acceptance and the decision-making process are both likely to act as deterrents to these key adults when deciding whether to make a referral. The key adults are likely to be unsure about the process, the requirements of the process and the likelihood of achieving a successful outcome.

7. Discussion

This thought piece, with a rapid review of a sample of local authority web pages, has highlighted inconsistencies and a lack of transparency relating to the EHC needs assessment process. These issues with the publicly available information have been shown to contribute to the inequitable access granted to children and young people in conflict with the law who have special educational needs.
Whilst this thought piece is limited by the small sample and rapid review approach, it has identified particular systemic barriers and established the need for a more comprehensive study of all 317 local authorities in England, including the consistency of information published on publicly available web- pages and the prevalence of applications for EHC needs assessment for children in conflict with the law. Further research which examines the process of the EHC needs assessment process, from the perspective of children and young people in conflict with the law and their families and the local authority staff involved in the assessment process, as well as professionals involved in supporting children and young people in conflict with the law, is also suggested as a way of developing understanding of the field.
This paper calls for this issue to be addressed by both local authorities and the Department for Education. If there is a real commitment to educational inclusion, these bodies need to prioritise the provision for children and young people in conflict with the law who have special needs; however, this demands a refocusing of their work in this area. The consistency of publicly available information across local authorities can be the first step in reducing marginalisation of this group of learners and explicit guidance for families and professionals working with this group would be an initial way of improving the situation. There is, however, a need for focused consideration of how justice-involved learners are subject to marginalisation in the education system and for guidance and policy to address the needs of this group in an explicit way. The current reform document for the special educational needs system in England, the “SEND and Alternative Provision Improvement Plan” (DfE 2023b), contains just four mentions of youth justice, in relation to drawing on expertise in the creation of National Standards and their connection with Alternative Provision (AP) and preventing reoffending. None relate to children and young people’s experiences in the system of statutory SEND recognition and provision. The SEND and AP Roadmap (DfE 2023c) makes no mention of youth justice nor those at risk of youth violence. The youth justice statistics (Youth Justice Board for England and Wales 2024) do not include SEND as an area of consideration. Given that these children and young people are not explicitly included in statistics or national plans for SEND system development is significant and warrants review.
Furthermore, in the journey towards educational inclusion, attention will need to be directed towards the intersection of other minoritised identities that this group of children and young people are likely to experience, including disadvantages, such as poverty and poor housing (Bobbio et al. 2020), personal and family struggles with alcohol and substance abuse (Hughes et al. 2018) and belonging to an ethnically minoritised group (Strand and Lindorff 2018).

Funding

This research received no external funding.

Data Availability Statement

No new data were generated in the preparation of this paper.

Conflicts of Interest

The author declares no conflicts of interest.

Abbreviations

The following abbreviations are used in this manuscript:
EHCEducation Health Care
EHCPEducation Health Care Plan
SENDSpecial Educational Needs and Disabilities

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MDPI and ACS Style

Middleton, T. Justice-Involved Children with Special Educational Needs and Disability: What Are the Implications for Access to Identification and Support Through an Education, Health and Care Plan? A Thought Piece. Soc. Sci. 2025, 14, 273. https://doi.org/10.3390/socsci14050273

AMA Style

Middleton T. Justice-Involved Children with Special Educational Needs and Disability: What Are the Implications for Access to Identification and Support Through an Education, Health and Care Plan? A Thought Piece. Social Sciences. 2025; 14(5):273. https://doi.org/10.3390/socsci14050273

Chicago/Turabian Style

Middleton, Tristan. 2025. "Justice-Involved Children with Special Educational Needs and Disability: What Are the Implications for Access to Identification and Support Through an Education, Health and Care Plan? A Thought Piece" Social Sciences 14, no. 5: 273. https://doi.org/10.3390/socsci14050273

APA Style

Middleton, T. (2025). Justice-Involved Children with Special Educational Needs and Disability: What Are the Implications for Access to Identification and Support Through an Education, Health and Care Plan? A Thought Piece. Social Sciences, 14(5), 273. https://doi.org/10.3390/socsci14050273

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