The legal test the local authority must apply
Under section 36(3) of the Children and Families Act 2014, the local authority must secure an EHC needs assessment if it considers it necessary to do so in order to determine whether EHC provision is required. The SEND Code of Practice (paragraph 9.14) sets out the criteria a local authority should use 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 assessment may be necessary to work that out. 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 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.
How to appeal a refusal to assess
- 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
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
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.
- 4
State the outcome you want
In your SEND35A, clearly state that you want the Tribunal to order the local authority to carry out an EHC needs assessment. You can also indicate which professionals you believe should be involved in the assessment.
- 5
Submit the SEND35A within your deadline
Send the completed SEND35A (with mediation certificate number) to the SEND Tribunal before your deadline. Keep a copy and a record of when you submitted it.
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
- Your SEND35A states the outcome you want (order the local authority to assess)
- You have your mediation certificate reference number to include in the SEND35A
Common mistakes in refusal to assess appeals
- Waiting until close to the deadline before contacting a mediation adviser
- Writing grounds of appeal that only say 'the local authority is wrong' without specific reasons
- Not including your own detailed parent evidence — the Tribunal wants to hear from you
- Submitting without requesting all the professional reports you are entitled to
- Confusing the assessment threshold with the EHCP threshold — they are different
- Not keeping copies of everything submitted to the Tribunal
What your pack includes
- Draft grounds of appeal for your SEND35A — specific to a refusal to assess appeal
- Parent evidence framework — what to include and how to structure it
- Evidence checklist — what reports to gather and how to request them
- Chronology of your child's needs, support tried, and outcomes
- Correspondence templates — requesting evidence from school and the local authority