Refusal to Carry out an Assessment Appeal

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.

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

You must contact Global Mediation before your two month right of appeal expires.

If you have decide to go straight to lodging an appeal, you will need a mediation certificate first.   This certificate must be issued within 3 working days of you telling them that you do not want to take part in mediation.  Once you have the certificate, you can lodge your appeal, either within two months of the original decision letter or within one month of receiving the certificate, whichever date is later. 

Delaying this contact for a certificate can be used strategically to extend your overall appeal deadline.  By waiting to contact Global Mediation towards the end of your two month right of appeal timeframe, the certificate will be dated later, thereby giving you an additional month to lodge an appeal. However, if you are ready to lodge your appeal, ask for your mediation certificate asap.

 Download our flow chart explaining Way Forward and Mediation for RTA appeals 

The SEND Tribunal is introducing SEND Appeal Resolution Meetings (SARM) to support earlier resolution of some Special Educational Needs and Disability (SEND) appeals. SARM is a structured, facilitated discussion that takes place during the tribunal appeal process and provides parents, carers and local authorities with an opportunity to explore whether issues can be resolved before a full hearing is required.

The SARM pilot will initially focus on the Refusal to carry out an Education, Health and Care (EHC) Needs Assessment and Refusal to issue an Education, Health and Care Plan.

The pilot will start late September and will run for a 12-month period.

SARM does not replace the tribunal’s role in determining appeals. Where agreement cannot be reached, the appeal simply continues through the tribunal process as planned.

To find out more about these meetings, download these guidance from HM Courts & Tribunal Service

SEND Appeal Resolution Meetings

How to prepare for your SARM