Appealing a Refusal to Carry Out an EHC Needs Assessment | EHCP Clarity
SEND Appeal Guide

Appealing a Refusal to Assess for an EHCP

If the local authority (LA) has refused to carry out an EHC needs assessment, you have the right to appeal to the First-tier Tribunal (Special Educational Needs and Disability). You do not need to accept the LA's decision. This guide explains the legal test, how to build your case, and what to expect from the Tribunal process.

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Quick answer

The LA must carry out an EHC needs assessment if it may be necessary to determine what EHC provision your child needs — a low legal threshold. If they have refused, you have 2 months from the decision letter date to register your appeal. Contact a mediation adviser immediately; this extends your deadline and is a legal requirement before you can appeal.

The legal test the LA must apply

Under section 36(3) of the Children and Families Act 2014, the LA must secure an EHC needs assessment if it considers it necessary to do so in order to determine whether EHC provision is required. The SEND Code of Practice (paragraph 9.14) sets out the criteria an LA should use when deciding whether to assess:

  • The child or young person has or may have special educational needs
  • It may be necessary for EHC provision to be made in accordance with an EHCP

This is a relatively low threshold. The question is not whether the child will definitely get an EHCP, but whether assessment may be necessary to work that out. If the LA has applied a higher bar — for example, requiring certainty that the child needs an EHCP — it has misapplied the law.

Common grounds for appeal

The Tribunal will consider whether the LA was right to refuse assessment. Well-evidenced grounds include:

  • The LA applied the wrong legal threshold — requiring certainty rather than possibility
  • The LA failed to properly consider all professional reports and parent evidence provided
  • SEN support in school has not and cannot meet the child's needs adequately
  • The child's needs are complex, fluctuating, or have not yet been fully assessed
  • The LA mischaracterised the child's needs or minimised the severity of difficulties
  • New evidence has emerged since the LA made its decision
  • The LA's decision was inconsistent with the evidence of professionals involved in the child's care

Your right to appeal

Parents, carers, and young people aged 16-25 can appeal a refusal to assess to the First-tier Tribunal (SENDIST) under section 51 of the Children and Families Act 2014. The right to appeal exists regardless of whether the school supports your position, regardless of the child's age (up to 25), and regardless of whether you have sought independent professional advice.

The Tribunal is an independent judicial body — it reviews the LA's decision afresh based on the evidence presented. It can order the LA to carry out an EHC needs assessment even if the LA disagrees.

How to appeal a refusal to assess

  1. 1

    Obtain a mediation certificate

    Contact a mediation adviser immediately after receiving the refusal letter. Ask about the timeline for receiving a certificate quickly. You must have the certificate reference number before you can submit the SEND35A.

  2. 2

    Gather your evidence

    Collect all reports (EP, SALT, OT, medical), school records, IEPs or SEN support plans, your own diary records, and correspondence with the LA and school. The Tribunal needs to see that your child has SEN and that EHC provision may be needed.

  3. 3

    Draft your grounds of appeal

    In the SEND35A, explain why you disagree with the LA's decision. State that the LA failed to apply the correct legal test, misinterpreted the evidence, or failed to consider all relevant information. Be specific — refer to particular reports or incidents.

  4. 4

    State the outcome you want

    In your SEND35A, clearly state that you want the Tribunal to order the LA to carry out an EHC needs assessment. You can also indicate which professionals you believe should be involved in the assessment.

  5. 5

    Submit the SEND35A within your deadline

    Send the completed SEND35A (with mediation certificate number) to the SEND Tribunal before your deadline. Keep a copy and a record of when you submitted it.

Documents and evidence to gather

  • The LA's refusal-to-assess decision letter (dated)
  • Your child's school SEN support plan or EHCP (if any)
  • Educational psychologist report (if available)
  • Speech and language therapy assessment (if available)
  • Occupational therapy report (if available)
  • Medical reports or letters from paediatrician, CAMHS, or other specialists
  • School progress data, target records, and annual reports
  • Correspondence with the school SENDCO and LA SEND team
  • Your own detailed parent statement describing your child's needs and daily difficulties
  • Mediation certificate (once obtained)

Before you submit your SEND35A

  • You have the LA's decision letter and have noted its date
  • You have contacted a mediation adviser and know your certificate date
  • You have calculated your appeal deadline (the later of 2 months from letter or 1 month from certificate)
  • You have gathered all available professional reports
  • Your grounds of appeal clearly state why the LA was wrong
  • Your SEND35A states the outcome you want (order the LA to assess)
  • You have your mediation certificate reference number to include in the SEND35A

Common mistakes in refusal to assess appeals

  • Waiting until close to the deadline before contacting a mediation adviser
  • Writing grounds of appeal that only say 'the LA is wrong' without specific reasons
  • Not including your own detailed parent evidence — the Tribunal wants to hear from you
  • Submitting without requesting all the professional reports you are entitled to
  • Confusing the assessment threshold with the EHCP threshold — they are different
  • Not keeping copies of everything submitted to the Tribunal

What your pack includes

  • Draft grounds of appeal for your SEND35A — specific to a refusal to assess appeal
  • Parent evidence framework — what to include and how to structure it
  • Evidence checklist — what reports to gather and how to request them
  • Chronology of your child's needs, support tried, and outcomes
  • Correspondence templates — requesting evidence from school and the LA

Frequently asked questions

What legal test must the LA apply when deciding whether to assess?
Under section 36(3) of the Children and Families Act 2014, the LA must assess if it is necessary to determine what EHC provision is needed. The SEND Code of Practice sets out criteria: the child may have SEN, and it may be necessary for EHC provision to be made in accordance with an EHCP. The bar for assessment is not whether the child will definitely get an EHCP — only whether assessment may be necessary.
What is the 2-month deadline for appealing a refusal to assess?
You have 2 calendar months from the date on the LA's decision letter to register your appeal. If you contact a mediation adviser and obtain a certificate, your deadline extends to the later of 2 months from the letter or 1 month from the certificate date. Use our deadline calculator to confirm your exact dates.
Does the school have to support my application for the appeal to succeed?
No. The SEND Tribunal makes its own decision based on your child's needs, not on whether the school agrees with you. Parents often appeal successfully without school support. In fact, some of the strongest evidence may come from parents themselves — detailed logs of your child's needs, difficulties, and the support that has not worked.
What evidence is most persuasive in a refusal to assess appeal?
The Tribunal needs to see that your child has SEN (broadly defined) and that it may be necessary for EHC provision to be made. Useful evidence includes: educational psychologist reports, SALT or OT assessments, medical records, school records showing the support tried and why it has failed, your own detailed parent evidence, and any private assessments you have obtained.
Can I request an independent educational psychologist assessment for my appeal?
Yes. A private EP assessment can be powerful evidence. If you can obtain one before your appeal, include it. If not, you may be able to arrange one after submitting the SEND35A. The Tribunal can also request that a professional assessment be carried out as part of the appeal process in some circumstances.
What happens after I register my appeal?
After registering, the Tribunal will send you directions — typically asking the LA to provide its response and a bundle of documents, then asking you to provide your response. There will usually be a directions hearing or case management conference. The final hearing where the Tribunal makes its decision typically takes place several months after registration.
Can the LA change its decision before the hearing?
Yes. After a SEND35A is submitted, LAs sometimes agree to carry out an assessment before the hearing — particularly when presented with clear evidence. This can happen at any point before the hearing. If the LA agrees to assess, you can withdraw your appeal or stay proceedings. Always get any agreement in writing.
What can the Tribunal order?
In a refusal to assess appeal, the Tribunal can order the LA to carry out an EHC needs assessment. The Tribunal cannot order the LA to issue an EHCP — that requires a separate decision after the assessment. If assessment is ordered and the LA then refuses to issue an EHCP, you would need to appeal that separately.

Related guides

Sources and further reading

This is general information, not legal advice. EHCP Clarity helps parents organise and prepare their own materials. It does not provide legal advice, legal representation, or tribunal advocacy, and nothing on this page should be relied on as a substitute for advice about your specific situation. For free independent expert support, contact IPSEA, SOS!SEN, or your local SENDIASS. For legal representation, instruct a SEND solicitor.