Appealing a Refusal to Carry out an Assessment

The legal test for deciding whether to secure an EHC needs assessment is contained in the Children and Families Act 2014 section 36(8):

The local authority must secure an EHC needs assessment for the child or young person if, after having regard to any views expressed and evidence submitted under subsection (7), the authority is of the opinion that:

(a) the child or young person has or may have special educational needs, and

(b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

A refusal to assess appeal is considered ‘on the papers’, meaning there is not actually a hearing which you need to attend. You just need to send in all of your evidence and explain your arguments in writing.

If you would like a hearing you can still make a request for this in writing, explaining your reasons for wanting the hearing and this will be considered by a Registrar or Judge.

This is an appeal under section 51(2)(a) of the Children and Families Act against a decision made under section 36 of the Act. You will not have the right of appeal if the LA has carried out an EHC needs assessment in the past six months.

You can read the steps to appeal on our RTA Appeal Flow Chart

Appeal deadlines

To check your deadline for sending your appeal to the SEND Tribunal, first, look at the date on the letter from the LA – make a note of the date two months after this. You have 2 months to obtain a mediation certificate and make your appeal. When you have your mediation certificate your appeal date is one month from the date on the mediation certificate or 2 months from the date on the decision letter, whichever is the later.

The law says you have to consider whether to enter mediation before you can register your appeal. This means you must ring the number the LA gives you (Global Mediation), talk to the mediation advisor and get a certificate from them saying you have done so. This is normally emailed to you within 3 working days.

You do not have to engage in mediation to register your appeal, only consider it and if you have had a lot of discussions already with your LA you may feel it would be of little use and you want to save time, then get your certificate and appeal right away.

Some people, who have not talked to their SEND Operations Team about why they have refused assessment feel that mediation may help. Some also feel that mediation gives them more time to appeal (as mediation has to happen within 30 days and if it doesn’t then a certificate is issued after this time and again you have 30 days (1 month) after the date on the mediation certificate to appeal). Read more about mediation