You’ve anxiously waited up to six weeks for a decision from the LA about your request for a needs assessment. You’ve just heard…. unfortunately, it’s bad news. The LA has refused to do an assessment.

The LA must provide its decision to you in writing, together with a reason why it is not going to assess.

It might have stated, for example, that your child does not require an EHCP, as needs can be met from within normal school resources, or they do not believe your child has special educational needs that requires special educational provision.

Of course, how can they know this, if arguably, they have not carried out an assessment?

What are your options?

• Whatever the reason stated, the decision provides you with the opportunity to appeal to the Special Educational Needs and Disability Tribunal (SENDIST). You will find this right to appeal contained in the decision letter that you are sent by the LA.
• If you have not had a letter with the decision from the LA, you should request it from the case worker, by email, dated on the day you were advised of the decision.
• If you have evidence that your child may have SEN and may require special educational provision above what is available within a school’s normal resources, and you do not agree with the decision, you should appeal.
• You have two months from the date of the decision letter to submit your appeal or one month from the date of the mediation certificate, whichever is the longer.

It sounds daunting! But many have been in your position and successfully appealed the decision of the LA.

Appeals to SENDIST for a refusal to assess are typically paper hearings and you will not be expected to appear personally or online at a hearing.

Mediation

The decision also provides you with the right to mediation ahead of submitting an appeal. You must contact the mediation services either to book a mediation appointment, which must be within one month, or to request a mediation certificate. You cannot submit the appeal without the mediation certificate.

You are not obliged to attend and it does not impact the outcome of the Tribunal.

With a legal criteria for an EHC needs assessment at a low threshold, you may not wish to mediate on this point, and appeal immediately.

Whatever your decision, be mindful that mediation adds time to the process. If you have already been trying to secure an assessment via school, or taken time to get to this point with little engagement from the LA, you may wish to appeal immediately, particularly if you have good evidence and the LA has provided a higher level criteria than the law requires.

Legal criteria

The legal criteria set out in Section 36(8) of the Children and Families Act 2014 states that the LA should conduct an assessment if it is determined that:​

• the child or young person has or may have special educational needs; and​
• it may be necessary for special educational provision to be made for the CYP in accordance with an EHC Plan.​

Applying any other higher level criteria, such as your child has not had 3 cycles of access-plan-do-review, or has not been seen by an EP, are unlawful.

Speak to us about how we can help you with your appeal. We can support you with advice and paperwork to submit your appeal.