Refusal to assess EHCP appeal — SEND35A grounds | EHCP Clarity
Refusal to assess appeal

Refusal to assess EHCP appeal

A refusal to assess EHCP appeal is how a parent challenges that decision at the SEND Tribunal. You have two months. We prepare the SEND35A grounds. You review them. You send them.

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What is your EHCP situation?

Tell us where you are. We match the document you need to send, then an assigned case professional prepares it. You review it. You send it.

What we prepare for this

Appeal grounds · £349

Numbered grounds ready to paste into the Tribunal form after a refusal.

  • The document you send
  • How to send it, and what to attach
  • One revision round of factual corrections

One case professional prepares and checks it. You review it. You send it.

Typically 5 working days after we have what we need.

Other documents: request letter £249 · appeal grounds £349 · challenge to the plan £449

Sample of appeal grounds · mock names
The local authority’s decision letter of 14 March 2025 does not appear to reference either the educational psychology report or the speech and language assessment.

Read the full examples · What each price includes

Case preparation support only · Not legal advice or tribunal representation

Quick answer

The local authority 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 local authority must apply

Under section 36(8) of the Children and Families Act 2014, the local authority must secure an EHC needs assessment if it 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 in accordance with an EHC plan. The SEND Code of Practice (paragraph 9.14) sets out evidence a local authority should consider 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 the section 36(8) limbs are met — including that an EHC plan may be necessary. Where a local authority appears to require certainty that an EHCP will be needed, parents may argue that is a higher bar than section 36(8) allows — the Tribunal then decides whether the refusal was lawful.

Common grounds for appeal

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

  • Parents argue the local authority applied a higher threshold — requiring certainty rather than possibility
  • The local authority 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 local authority mischaracterised the child's needs or minimised the severity of difficulties
  • New evidence has emerged since the local authority made its decision
  • The local authority'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 local authority's decision afresh based on the evidence presented. It can order the local authority to carry out an EHC needs assessment even if the local authority disagrees.

What strong cases do next

  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 local authority 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 local authority's decision. State that the local authority 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.

2 further steps when you submit or appeal — Requesting, appealing, and negotiating Section F are where most parents need help — that is what we prepare for you.

This guide shows what strong cases look like. We prepare the request letter, appeal grounds, or plan letter for your route.

Match my situation →Get yours prepared — From £249

Documents and evidence to gather

  • The local authority'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 local authority 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 local authority'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 local authority was wrong

2 more items depending on your case. Plus turning this evidence into one coherent pack an LA or tribunal takes seriously.

This guide shows what strong cases look like. We prepare the request letter, appeal grounds, or plan letter for your route.

Match my situation →Get yours prepared — From £249

Common mistakes in refusal to assess appeals

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

This guide shows what strong cases look like. We prepare the request letter, appeal grounds, or plan letter for your route.

Match my situation →Get yours prepared — From £249

What your pack includes

  • Numbered SEND35A grounds for a refusal to assess — you review before you send
  • Council-response matching and SEND law in those grounds
  • Named reports referred to by author, date and what they show
  • Assigned case professional who prepares and checks it
  • How to lodge, one revision, and 14 days of email support

Frequently asked questions

England · SEND

What legal test must the local authority apply when deciding whether to assess?
Under section 36(8) of the Children and Families Act 2014, the local authority must secure an EHC needs assessment if the child or young person has or may have special educational needs, and it may be necessary for special educational provision to be made in accordance with an EHC plan. The SEND Code of Practice (paragraph 9.14) sets out evidence the LA should consider. The bar for assessment is not whether the child will definitely get an EHCP — only whether those two limbs of section 36(8) are met.
What is the 2-month deadline for appealing a refusal to assess?
You have 2 calendar months from the date on the local authority'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 local authority 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 local authority change its decision before the hearing?
Yes. After a SEND35A is submitted, local authorities 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 local authority 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 local authority to carry out an EHC needs assessment. The Tribunal cannot order the local authority to issue an EHCP — that requires a separate decision after the assessment. If assessment is ordered and the local authority then refuses to issue an EHCP, you would need to appeal that separately.

Related guides

Sources and further reading

  1. Children and Families Act 2014 — section 36 (request for EHC needs assessment) — Statutory basis for assessment requests and appeals
  2. SEND Code of Practice 2015 — Chapter 9 (EHC needs assessments) — Criteria for deciding whether to assess
  3. IPSEA — challenging a refusal to assess — Free independent legal guidance
  4. SEND Tribunal — how to appeal a SEND decision — GOV.UK — includes SEND35A form and guidance