Appealing a Refusal to Issue an EHCP

The LA's legal duty to issue an EHCP

Under section 37 of the Children and Families Act 2014, after completing an EHC needs assessment the LA must issue an EHCP if the child has SEN and it is necessary for EHC provision to be made. This duty typically arises when assessment reveals needs that cannot be met through SEN support alone — where the provision required exceeds what is available from a school's notional SEN budget (approximately £6,000 per year).

The Tribunal reviews this decision afresh — it does not only ask whether the LA followed its process, but whether the LA was right. If assessment reports show significant needs requiring specialist provision, the Tribunal can order an EHCP to be issued.

Common LA reasons — and why they may be wrong

• "The school can meet needs from its SEN budget"

  If provision required is specialist, intensive, or not reliably available within the notional SEND budget, an EHCP may be necessary. Schools' assurances about what they can provide are not legally binding.

• "Needs can be addressed through graduated SEN support"

  If SEN support has been tried and has not worked — if the child has not made adequate progress — this argument loses force. The history of failed SEN support is often the strongest argument for an EHCP.

• "There is no EHCP-level need"

  This is often circular reasoning. The assessment reports may clearly show complexity. The LA needs to explain specifically why the legal threshold has not been met, not simply assert it.

How to appeal a refusal to issue an EHCP

1. 1

   Request all assessment documentation

   Ask the LA for every report from the EHC needs assessment — EP, SALT, OT, medical, and the LA's decision rationale. Review them carefully: do they reflect your child's actual needs? Identify any gaps or professionals who were not consulted.

2. 2

   Obtain a mediation certificate

   Contact a mediation adviser immediately. You cannot submit a SEND35A without a certificate for a refusal to issue appeal. Ask for the certificate to be issued quickly if you choose not to pursue mediation.

3. 3

   Identify gaps in the assessment

   Consider whether key professionals were not consulted — ADOS/ADHD evaluation, detailed OT, specialist literacy assessment, or a mental health assessment. Gaps in the assessment strengthen your argument that it was incomplete.

4. 4

   Commission any missing private assessments

   If you can obtain a private EP, SALT, or OT assessment not included in the LA's assessment, do so. Independent evidence that contradicts or supplements the LA's assessment is often decisive at Tribunal.

5. 5

   Draft your grounds of appeal

   In the SEND35A, explain why the LA was wrong: assessment reports show significant unmet SEN, the EHCP threshold has been met, and provision needed cannot be secured through SEN support alone. Reference specific findings in the reports.

6. 6

   Submit before your deadline

   Submit the SEND35A with mediation certificate number to the SEND Tribunal. Request a confirmation of receipt and continue gathering evidence after submission — you can add to your evidence bundle as the appeal progresses.

Documents and evidence to gather

• •The LA's refusal to issue decision letter (dated)
• •All assessment reports from the EHC needs assessment (EP, SALT, OT, medical)
• •LA's written explanation of why an EHCP is not necessary
• •School SEN records, progress data, and intervention records
• •Private assessments you have obtained (if any)
• •Your parent evidence statement
• •Correspondence with the school SENDCO and LA
• •Mediation certificate (once obtained)

Common mistakes in refusal to issue appeals

• !Not requesting all assessment reports before drafting grounds — you need to see exactly what was said
• !Waiting for a private EP report before registering — register within deadline and add reports later
• !Accepting LA assurances that school can meet needs without scrutinising the evidence
• !Not addressing the LA's specific stated reasons in your grounds of appeal
• !Missing the 2-month deadline — once missed you need Tribunal permission to appeal late

What your pack includes

• •Draft grounds of appeal specific to a refusal to issue appeal
• •Assessment report analysis framework — identifying gaps and strong passages
• •Parent evidence framework — how to write a statement the Tribunal will find persuasive
• •Evidence checklist — private assessments to consider and professionals to contact
• •Working document to track reports received, gaps identified, and arguments developed

What the SEND Tribunal considers in a refusal to issue appeal

When you appeal a refusal to issue an EHCP, the Tribunal re-examines the LA's decision from scratch. It asks whether, on the evidence before it, your child requires an EHCP. The Tribunal is not limited to the evidence the LA had when it made its decision — you can and should submit additional evidence including private assessments obtained after the LA's refusal.

The Tribunal will consider:

• •Whether your child has a learning difficulty or disability that calls for special educational provision (SEP)
• •Whether SEP cannot reasonably be provided through the resources normally available to mainstream schools without an EHCP
• •Whether the existing support in school has been sufficient, or whether your child continues to fall behind or struggle despite it
• •Whether professional reports (EP, SALT, OT, CAMHS, paediatric, etc.) establish needs of the type and severity requiring an EHCP
• •The severity, persistence, and impact of the difficulties on your child's education and wider development

The Tribunal's standard is not whether your child is failing — it is whether their needs are sufficiently complex and persistent that an EHCP is appropriate. Many children who struggle significantly in school still do not meet the LA's threshold; the Tribunal applies the statute, not the LA's internal thresholds. This is why many families succeed at Tribunal even where the LA's assessment found the child did not require an EHCP.

Building your evidence base after a refusal to issue

The most common reason families succeed at Tribunal in refusal to issue cases is a private educational psychologist (EP) assessment. An independent EP provides an objective, expert analysis of your child's needs — and carries significant evidential weight with the Tribunal. If the LA's own EP concluded an EHCP was not required, a private EP who concludes the opposite gives the Tribunal a direct basis to prefer the evidence supporting your case.

Typical timeline for a refusal to issue appeal

From receiving the LA's refusal letter to a final Tribunal hearing, the process usually takes 6–9 months. Many cases are resolved by consent before the hearing when the LA concedes or agrees amended provision after seeing the parent's evidence.

1. Weeks 1–2Contact mediation adviser, receive certificate. Begin drafting SEND35A grounds and gathering evidence.
2. Week 3–8Submit SEND35A to SEND Tribunal before your deadline. Tribunal registers the case and issues directions.
3. Month 2–3LA submits its case response (Working Document). Parties exchange evidence — request all reports the LA relied on.
4. Month 3–5Evidence bundles exchanged. Private assessments commissioned and received. Parent statement drafted.
5. Month 5–6Parties may negotiate a consent order. If not agreed, hearing date confirmed — typically Month 6–9 from registration.
6. Final hearingTribunal hears oral evidence. Judgment usually within 2–3 weeks of the hearing date.