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 is not the end. It's a decision you can challenge. And the numbers show that challenging it works.
That number 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.
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)
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."
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.
Should you actually mediate?
Sometimes mediation works. About 75% of mediations reach an agreement. But there's a catch: 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 is 2 months from the refusal letter or 1 month from your mediation certificate, whichever is later.
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
The hearing is 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.
Those numbers speak for themselves. If your case reaches a hearing, you're almost certainly going to succeed.
What if you miss the deadline?
If you miss the 2-month deadline for contacting the mediation adviser, 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.
The LA has 5 weeks from the tribunal order to issue the amended EHCP if one already exists, or to begin the assessment process if this was a refusal to assess.
If the LA doesn't comply with the tribunal order, you can enforce it. IPSEA can advise on enforcement options.
Getting help
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 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.
How our free tool can help
The AI assistant at SEND Parents Help covers the entire appeals process. You can ask it to help you analyse your refusal letter, check whether the LA's reasons are lawful, and understand what evidence would strengthen your case.
For a more personalised conversation about your specific situation, the assistant can work through the legal test with you and help you decide whether to mediate or go straight to tribunal.
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. The legal test is low. The tribunal success rate is overwhelming. 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.
Sources and further reading
Legislation and official guidance
- Children and Families Act 2014, section 36 (the legal test for EHC needs assessment)
- Children and Families Act 2014, section 55 (mediation requirement before appeal)
- Appeal an EHCP decision (SEND Tribunal information)
- SEND Code of Practice (statutory guidance)
Statistics
- SEND Tribunal Statistics, 2024-25 (appeal success rates)