How to appeal an EHCP refusal to assess

A refusal to assess can be appealed to the SEND Tribunal. The key question is not whether you can already prove that an EHC plan is required. It is whether the child or young person has or may have special educational needs, and whether it may be necessary for provision to be made through a plan.

This is general information for England, not legal advice.

Understand the legal test

Section 36(8) of the Children and Families Act 2014 has two parts:

1. The child or young person has or may have special educational needs.
2. It may be necessary for special educational provision to be made through an EHC plan.

The repeated word "may" matters. An assessment exists to gather evidence and decide what is necessary. You do not need a diagnosis or a complete set of professional reports before the authority can assess.

Check the decision date

The local authority should decide whether to assess within six weeks of receiving the request, subject to limited exceptions. The refusal letter should explain reasons, mediation and appeal rights.

The usual appeal deadline is two months from the decision letter or one month from the mediation certificate, whichever is later. A mediation certificate is normally required, although attending mediation is optional.

Use form SEND35A

A refusal-to-assess appeal uses form SEND35A. Download the current version and instructions from GOV.UK.

State clearly:

• why the first limb of the test is met
• why the second limb may be met
• which facts in the refusal reasoning are wrong or incomplete
• that you seek an order requiring an EHC needs assessment

Avoid turning the grounds into a long history with no connection to the statutory test.

Evidence for the first limb

Show that the child or young person has or may have SEN. Evidence can include:

• teacher observations and attainment information
• communication, sensory, emotional or physical needs
• progress despite support
• attendance, suspension or reduced-timetable records where relevant
• professional letters or waiting-list evidence
• the child and family's account

A diagnosis can help describe need but is not a legal prerequisite.

Evidence for the second limb

Show why provision through a plan may be necessary. Relevant points may include:

• support needed beyond what the setting can reliably arrange
• repeated APDR cycles without sufficient progress
• specialist provision requiring coordination
• uncertainty that only a statutory assessment can resolve
• significant differences between need, current support and professional recommendations

There is no rule that a school must spend a fixed amount or complete a fixed number of APDR cycles before a request can succeed. Local criteria cannot replace the national statutory test.

What happens if the appeal succeeds?

A successful refusal-to-assess appeal orders the local authority to assess. It does not automatically order an EHC plan.

After the Tribunal order, shorter statutory timescales apply. The authority must begin the assessment process and later decide whether a plan is necessary. If it refuses to issue a plan after assessment, that is a separate appealable decision.

Watch for the six-month rule

An authority may rely on a recent assessment in some circumstances. Check whether an EHC needs assessment was completed within the previous six months and whether there has been a material change. This is fact-specific and worth discussing with an adviser.

Keep the appeal focused

Use a short chronology, a numbered evidence list and headings matching the two legal limbs. Save the refusal letter, certificate, submitted form and delivery proof.

Unisen helps families connect needs, support history and evidence to a single statutory timeline.

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