I’m afraid the aforementioned legal test isn’t quite right. The “Test” as its been referred to is found at Section 36(8)(a)(b) of the Children and Families Act, its no secret. Its also “in the local authorities opinion”.
(a) Does or May the child or young person have Special Educational Needs (those are also defined in law)
(b) Does or May the child your young person require Special Educational Provision (also defined in law) in accordance with an EHC Plan.
Special Educational Needs as defined as when a child or young person has “A Significantly greater difficulty in learning that their peers”
Special Education Provision is defined in law as “Education or Training provision which is additional and different to” that which is provided to the same peer group.
There is no legal definition for what constitutes “Special Educational Provision in accordance with an EHC Plan” so Local Authorities rely on the evidence produced from school to show that they are exhausting wave 1 and 2 educational support (QFT and SEN Support using the Notional Budget).