The envelope arrives from the council. You open it expecting a date for your child’s assessment. Instead, it says they’ve decided not to assess.
The refusal letter is full of phrases like “needs can be met through ordinary SEN support” and “insufficient evidence of significant difficulty.” It feels final. It feels like they’re telling you your child doesn’t matter enough.
Take a breath. Then read this.
A refusal to assess isn’t the end of the road. You can challenge it, and the numbers show that parents and carers who challenge it usually win.
That range isn’t a typo. The system has a built-in correction mechanism called the SEND Tribunal, and it consistently finds that LAs are getting these decisions wrong.
Why LAs refuse to assess
Before you decide what to do, it helps to understand why refusals happen so frequently.
The legal test for an EHC needs assessment is deliberately low. The LA must assess if your child “has or may have” SEN and it “may be necessary” to make provision through an EHCP. Both parts use the word “may.” A realistic possibility is enough.
But many LAs apply their own, higher thresholds. And those thresholds are often unlawful.
Some of the most common unlawful reasons include: requiring a diagnosis first (not required), expecting the school to have spent a minimum amount before assessment (no such threshold exists), imposing a minimum duration on SEN Support (no duration requirement), demanding specific evidence like an educational psychology report before they’ll assess (no evidence type is prescribed), or claiming that academic progress proves needs aren’t significant (progress with intensive support doesn’t mean the support isn’t needed).
If your refusal letter uses any of these reasons, the LA has applied the wrong test. That matters, because it gives you strong grounds for appeal.
Step 1: Decode the refusal letter
Read the letter carefully and note the specific reasons given. The LA is required to explain why they’ve decided not to assess.
Common phrases and what they really mean:
“Needs can be met by ordinary SEN support” means the LA thinks the school should handle it without extra funding. Counter this by showing exactly what the school has tried and why it isn’t working.
“The child is making progress” means the LA sees academic results and considers them adequate. Counter this by showing what level of support was needed to achieve that progress, and what happens when support is reduced.
“Insufficient evidence” means the LA wants more documentation. This is often the easiest to fix. Gather additional reports and request reconsideration.
Compare the refusal reasons against the actual legal test in section 36(8) of the Children and Families Act 2014. If the LA has used criteria that aren’t in the legal test, say so in writing.
Step 2: Gather additional evidence
Whether you’re asking for reconsideration or going to tribunal, stronger evidence makes the difference.
Focus on filling the gaps the refusal letter identified. If they said “insufficient evidence of significant difficulty,” get professionals to write letters. If they said “needs can be met by SEN Support,” document specifically why they can’t.
Evidence that carries weight:
- Letters from professionals stating your child’s needs can’t be met within SEN Support alone
- Progress data showing plateaued or declining achievement despite intervention
- Attendance records if anxiety or unmet needs are affecting school attendance
- A detailed parent statement describing daily support needs
- Incident logs from school showing challenging behaviour linked to unmet needs
- Reports from any assessments (educational psychology, speech therapy, occupational therapy)
When gathering evidence, frame everything in terms of need, not diagnosis. “My child needs 1:1 support for transitions between activities because without it, they become distressed and can’t participate” is stronger than “my child has autism.” The tribunal is assessing whether needs require EHCP-level provision, not whether a diagnosis exists.
Step 3: Contact the mediation adviser
Before you can appeal to the SEND Tribunal, you must contact a mediation adviser. This is a legal requirement under section 55 of the Children and Families Act 2014.
The contact details will be on your refusal letter. Here’s the important part: you don’t have to actually participate in mediation. You just have to “consider” it.
“Considering” mediation means:
- Contact the mediation adviser
- Discuss whether mediation might help
- Decide whether to participate or decline
If you decline, the adviser issues a mediation certificate within 3 working days. This certificate is what you need to lodge your tribunal appeal.
Note the date on the refusal letter today. You have two months from that date to lodge your tribunal appeal, or one month from your mediation certificate, whichever is later, so contact the mediation adviser as soon as you can to keep that window open.
Should you actually mediate?
Sometimes mediation works. Many mediations do reach an agreement, but a significant number of those agreements aren’t properly implemented afterwards.
Mediation might help when:
- The LA’s decision was based on incomplete information
- You have new evidence the LA hasn’t seen
- You want to preserve a working relationship with your council
Skip mediation (get certificate only) when:
- The LA’s refusal uses unlawful criteria
- You’ve already provided extensive evidence
- Time is critical for your child
- You’ve tried informal resolution and it hasn’t worked
Either way, getting the certificate doesn’t hurt your case. It’s just a procedural step.
Step 4: Appeal to the SEND Tribunal
The SEND Tribunal is an independent panel that reviews the LA’s decision from scratch. They apply the law, not the LA’s local policy.
You appeal using form SEND35A (specifically for refusal to assess). The deadline, set out in the gov.uk guidance on appealing an EHCP decision, is 2 months from the refusal letter or 1 month from your mediation certificate, whichever is later.
- Receive refusal letterNote the date carefully. Your deadlines run from here.
- Contact mediation adviserDetails are on the refusal letter. Decline or participate.
- Receive mediation certificateIssued within 3 working days if you decline mediation.
- Lodge tribunal appealComplete SEND35A form and submit with evidence.
- LA respondsThe LA has 30 working days to submit their response.
- Hearing date setThe tribunal sets a hearing date.
- Hearing takes placeA panel of 2-3 people hears your case. You can attend in person or by phone.
This process moves through clear stages. Keeping track of the dates ensures you don’t miss any critical deadlines.
You don’t need a lawyer. Most parents represent themselves at tribunal. Your local SENDIASS can help you prepare, and IPSEA can advise on the legal arguments.
What happens at the tribunal hearing
Most refusal-to-assess appeals are decided on the papers: the tribunal reads the written evidence from you and the LA and reaches a decision without a hearing. A paper decision needs both sides to agree to it, so if you’d rather have a hearing, you can ask for one and it must be held.
If your case does go to a hearing, it’s less formal than you might expect. A panel of two or three people (including a specialist member with SEND expertise) will:
- Ask the LA to explain why they refused
- Ask you to explain your child’s needs
- Review the evidence from both sides
- Make a decision, often on the day
The hearing typically lasts 2-3 hours. You can bring a supporter (a friend, SENDIASS worker, or representative). The panel’s focus is your child’s needs and whether the legal test is met, not whether the LA followed its own policy. The evidence in your favour is strong either way: the system consistently finds that refusals are wrong, and the odds you saw earlier still hold whether your case is decided on the papers or at a hearing.
What if you miss the deadline?
If you miss the 2-month appeal deadline, you may still be able to appeal if you have a good reason for being late. But don’t rely on this. Note the deadline the day the refusal letter arrives and act on it promptly.
The 2-month deadline is strict. Even if the LA’s refusal was clearly unlawful, a late appeal isn’t guaranteed to be accepted. Don’t wait.
After the tribunal rules in your favour
If the tribunal orders the LA to carry out an EHC needs assessment, the LA must comply. The 20-week assessment process then begins.
If the tribunal orders an assessment, the LA must notify you within 2 weeks of the order. After assessing, it must issue a final EHCP within 14 weeks of the order, or notify you of a decision not to issue a plan within 10 weeks. If the order is instead to amend an existing plan’s provision, the amended plan must be issued within 5 weeks.
If the LA doesn’t comply with the tribunal order, you can enforce it. IPSEA can advise on enforcement options.
Getting help
Independent Provider of Special Education Advice (IPSEA) provides free legal advice on EHCP appeals. They have template letters, detailed guides on the tribunal process, and a legal advice line.
Your local Special Educational Needs and Disabilities Information, Advice and Support Service (SENDIASS) can help you prepare for mediation and tribunal hearings, review evidence, and attend meetings with you.
SOS!SEN offers free workshops on the tribunal process and can help parents understand their rights.
A refusal is just the first answer
The system makes it too easy for LAs to say no. Funding pressures, understaffing, and risk-averse decision-making all contribute to a refusal rate that the tribunal consistently shows is too high.
But the law is on your side, and the legal test is low. Across all SEND Tribunal appeals that reach a decision, 99% are resolved in the family’s favour, and Parliamentary written answers confirm the pattern holds year after year. And there are free organisations ready to walk you through every step.
Your child’s needs haven’t changed just because the council said no. And neither have your rights.