There is a story that plays out in thousands of households across England every year. A parent notices something. A child is struggling in school — not keeping up, not coping, not quite fitting. The parent mentions it to the teacher. The teacher suggests a possible referral. Then, almost without exception, comes the waiting.
Waiting for a CAMHS appointment. Waiting for a community paediatrics assessment. Waiting for a diagnosis of autism, ADHD, dyslexia, or something else that will finally unlock the support their child so clearly needs.
Some families wait years. In Sheffield, waiting times for autism and ADHD assessments currently range from two and a half to over eight years. Nationally, as of late 2024, over 224,000 people in England were waiting for an autism assessment, with around 90% having already waited longer than the recommended 13-week guideline. The average wait is now over 14 months, and in some areas significantly more.
All this time, the child’s needs do not wait. They are in school every day, struggling every day. All this time, many parents have been told (directly or indirectly) that they cannot apply for an EHCP until the diagnosis arrives.
This is wrong. It matters enormously.
What the law actually says
The legal framework for SEND support in England is set out in the Children and Families Act 2014. It defines a child as having special educational needs (SEN) if they have “a learning difficulty or disability which calls for special educational provision to be made for them.”
Notice what is absent from that definition: any mention of a diagnosis.
Section 36(8) of the same Act sets out the legal test the local authority must apply when deciding whether to carry out an EHC needs assessment. There are precisely two criteria:
• 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.
The threshold is deliberately low. The law says “may have” and “may be necessary”...not “definitely has” or “has been diagnosed with.” Parents do not need to prove their case beyond doubt. They need only show that it is possible their child has SEN and that an EHC plan may be needed.
A diagnosis is not part of this legal test. It never has been.
The myths that are stopping families from acting
In practice, parents encounter a wall of informal statements that have no basis in law. Here are the most common ones, and the reality behind each.
“You need a diagnosis before we can apply for an EHCP.”
Not true. The Children and Families Act 2014 contains no such requirement. A child or young person does not need to have received a formal diagnosis in order to get support from a school or apply for an EHC needs assessment. Evidence of need...from teachers, parents, therapists, or GP letters...is what matters, not a diagnostic label.
“Your child won’t get an EHCP because they’re doing fine academically.”
Not true. Paragraph 9.14 of the SEND Code of Practice is clear that when considering whether assessment is necessary, the local authority must pay attention not just to academic attainment or rate of progress, but also to evidence of the child’s physical, emotional, social development and health needs. A child who is masking their difficulties and appearing to cope in lessons can absolutely have significant unmet SEN. The legal framework is not about grades.
“The school needs to have spent its £6,000 SEND budget first, and an educational psychologist needs to have been involved.”
Not true. These are not lawful criteria. There are only two legal criteria set out in Section 36(8) of the Children and Families Act 2014. The local authority cannot add extra hurdles that do not appear in the law.
“Only the school can apply for an EHCP.”
Not true. Parents can, and frequently should, apply directly. If a school is telling you there is a waiting list, that you will not get a plan, or that you do not need one, you are entirely within your rights to apply yourself, directly to the local authority, at any time.
So what does a diagnosis actually do?
None of this means that a diagnosis is worthless. It is not. A diagnosis can:
• Give a name to difficulties that have been hard to explain, providing clarity and sometimes relief for the child and family
• Help align professionals around a shared understanding of a child’s needs
• Carry significant weight as evidence in an EHCP needs assessment or at Tribunal
• Unlock access to specific resources, support groups, and sometimes disability benefits
• Help the child themselves understand their own mind and experience
What a diagnosis cannot do is change the legal position. A child without a diagnosis and a child with one face exactly the same two-part legal test when it comes to EHCP eligibility. A diagnosis is strong evidence, it is not a key that unlocks a door that was otherwise closed.
Critically, if a diagnosis arrives after an EHCP is already in place, it can be incorporated at the next annual review. EHCPs are living documents, designed to evolve as a child’s needs become better understood. Waiting for a diagnosis before applying means waiting for support the child may already legally be entitled to.
What does count as evidence?
If not a diagnosis, then what? The SEND Code of Practice sets out the kinds of evidence a local authority should consider when deciding whether to assess. This includes:
• Evidence of academic attainment and rate of progress, including whether progress has stalled despite support
• Evidence of the child’s physical, emotional and social development and health needs
• Information from the school about what interventions have been tried and their effect
• Views of the parents and the child themselves
• Reports from any involved professionals: speech and language therapists, occupational therapists, educational psychologists, GPs, or paediatricians. This is even the case where no formal diagnosis has been reached
• Observations from parents about what they see at home
The Code of Practice is guidance, not law. This means the evidence listed at paragraph 9.14 is what the local authority should consider...if some of it is unavailable, and the child still meets the two-part legal test, the local authority should proceed with the assessment. Evidence of need is not the same as diagnostic evidence.
There is also no basis in law for a local authority to reject a professional report simply because it was privately obtained. A private speech and language assessment, occupational therapy report, or independent educational psychology assessment that documents need clearly must be considered.
The cost of waiting
The practical consequences of the “wait for a diagnosis” myth are serious. An EHCP application triggers a legal 20-week process. The local authority has 20 weeks from receiving the request to issue a final plan. Every week a family waits before applying is a week of that clock that has not started.
For a child waiting over two years for an NHS autism assessment, that is potentially two years of unmet educational need, two years of missed provision, and two years of a child struggling in a system that could have been legally required to support them much sooner.
If a diagnosis comes through after the EHCP process has begun (or even after a plan has been issued) it can strengthen and inform the plan. It does not need to come first.
What you can do right now
If your child is struggling and you believe they may have SEN, you do not need to wait for a diagnosis before requesting an EHC needs assessment.
• Write to your local authority directly. A parent can request an EHC needs assessment at any time. Find your local authority’s SEND team contact details via the Local Offer on their website. The request does not need to be formal or lengthy, it simply needs to explain your concerns about your child’s needs and why you believe an assessment may be necessary.
• Gather evidence of need. Collect letters from the school, reports from any involved professionals, your own written account of what you observe at home, and any correspondence that shows the school has tried to support your child. This is the evidence that matters, not a diagnostic letter.
• Know your rights if you are refused. If the local authority refuses to assess, they must tell you in writing and give you the right to appeal to the SEND Tribunal. The Tribunal applies the same legal test: does the child have or may they have SEN, and may they need an EHC plan? A diagnosis is not required to succeed at appeal.
• Get advice. We at The SEN Advocate can support you through the process. Please use our contact firm to reach out.
The bottom line
The SEND system in England is built on a needs-based framework. The law is explicit: what matters is whether your child has, or may have, special educational needs — not what label, if any, has been attached to those needs.
Diagnoses are valuable. They are not gatekeepers. Any school, local authority, or professional who tells you otherwise is, however unintentionally, giving you information that does not reflect what the law says.
Your child’s needs are real whether or not a clinician has named them yet. The law recognises this. You are entitled to act on it.