Refusal to assess
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What does refusal to assess mean?
If you believe your child or young person may need extra support in education, you can ask your local authority (LA) to carry out an Education, Health and Care (EHC) Needs Assessment. This is the first step in deciding whether a child or young person needs and EHC plan.
Sometimes, the local authority decides not to carry out the assessment. This is called a refusal to assess. It means that the LA do not think your child or young person needs to be assessed to see if an EHC plan is necessary.
What should the Local Authority consider?
When a request for an EHC needs assessment is made, the LA must consider two key questions:
- does the child or young person have, or possibly have special educational needs (SEN)?
- might they need support through an Education, Health and Care (EHC) plan?
If the answer to both is ‘yes’ then the LA is legally required to carry out the assessment. (see page on ehc needs assessment for more info)
This rule is in the Children and Families Act 2014, section 36(8). The law also tells LAs to follow the SEN and Disability Code of Practice 2015. In paragraph 9.14, it says the LA should check:
- has the school or setting already tried to help?
- has the child or young person still not made enough progress, even with help?
If the LA has said no to your request, you can appeal the decision. This means asking the SEND Tribunal to look at the decision again.
What happens if the LA says ‘no’
If the LA refuses to assess, they must explain their decision clearly. They should tell you:
- why they made the decision
- that you have the right to appeal
- how to access mediation before appealing
- what evidence they used to make their decision.
You can ask the LA for a meeting to discuss the decision and request copies of any reports or information they relied on. You can also ask what support the school or college is expected to provide without an EHC plan.
If you don’t choose to appeal the decision, you can still make another request for an EHC needs assessment later, especially if your child or young person’s needs change.
Appealing the decision
You have the right of appeal if the LA refuses to assess your child or young person.
Before you can appeal to the SEND tribunal, you must first consider mediation. This means contacting the mediation service to discuss your options. You’ll then receive a mediation certificate, which you will need to include with your appeal.
You must submit your appeal within:
- 2 months from the date on the LA’s decision letter
OR
- 1 month from the date on your mediation certificate, whichever is later.
How to appeal
To appeal, you need to complete a form called SEND35A form. You can fill it in online or download a copy to send by post. The form asks for details about you, your child or young person, and the decision you’re appealing.
One of the most important parts of the form is your reasons for appeal. This is where you explain why you disagree with the council’s decision. Try to be clear and structured. Use short paragraphs or numbered points, and focus on the facts.
You should include any evidence you have, such as school reports, assessments, or letters from professionals. If you don’t have all the evidence yet, you can say what you plan to send later.
What to send with your Appeal
Along with the completed form, you should include:
- a copy of the council’s refusal letter
- your mediation certificate
- any supporting evidence
- a list of the documents you’re sending
It’s a good idea to keep copies of everything you send, in case you need them later.
What happens after you submit your Appeal
Once your appeal is received the SEND Tribunal will contact you, usually within 10 working days. You should receive:
- key dates for the appeal
- you’ll get a letter saying your appeal has been received.
- you’ll be given a hearing date and information on how the appeal will be decided.
Most refusal to assess appeals are decided on paper, meaning the judge makes a decision based on the written evidence from you and the local authority. This is called a paper hearing.
However, if you or the local authority request an oral hearing, the tribunal will arrange one. You can attend by phone, video or in person.
The judge will consider all the evidence and make a decision. You’ll receive the outcome in writing.
Costs and Support
Appealing is free. You don’t need to pay any fees to the Tribunal.
You don’t need a lawyer, but you can choose to get legal advice or representation if you wish, this would be at your own cost. If you’re on a low income, you may be eligible for legal aid.
Appeal pack
- IPSEA have a refusal to assess pack, which is a detailed guide to preparing for and carrying out a refusal to assess appeal: Refusal to assess appeal pack
