How to appeal a refusal to assess for an EHCP (SEND35A)
If the local authority has refused to carry out an EHC needs assessment, you have the right to appeal to the SEND Tribunal using Form SEND35A. The legal threshold is low - the LA only needs to accept the possibility that your child may have SEN and may need an EHCP. Between 90 and 98 per cent of parents who appeal a refusal to assess win, and the Tribunal is free.
- Deadline
- 2 months from the local authority decision letter, or 1 month from your mediation certificate date, whichever is later
- Time to complete
- Allow a couple of hours, plus time to gather reports and write your grounds
- Who it’s for
- Parents or carers appealing a local authority decision not to carry out an EHC needs assessment for a child under 16, or a young person aged 16 to 24 (or their advocate) appealing in their own right.
- Where it applies
- England
The SEND tribunal only covers England. Wales, Scotland and Northern Ireland each have their own appeal route.
GOV.UK is the official source and is always the most up to date. These copies are provided for convenience.
We’ve put the parts that decide the claim first. The question numbers tell you where each one sits on the form.
The low legal threshold - and why most appeals win
The statutory test for an EHC needs assessment is deliberately set low. Under Section 36(8) of the Children and Families Act 2014, the local authority must carry out an assessment if (a) the child or young person has or may have special educational needs, and (b) it may be necessary for special educational provision to be made in accordance with an EHC plan. Both parts use the word "may." The LA doesn’t need to be certain your child has SEN, or certain that an EHCP will be needed. It only needs to accept the possibility. If the LA refused, it almost certainly applied a higher test than the law requires - which is why 90 to 98 per cent of parents who appeal win.
Section 2, Q5 - Describing the SEN your child has
- What they’re really asking
- Whether the child or young person has or may have SEN. The Tribunal is applying the low "may have" threshold, not asking for certainty.
- How to answer it well
- List every difficulty your child has: learning, communication, sensory, social, emotional, and behavioural. You don’t need a formal diagnosis. Describe the day-to-day impact, what the school has tried, and why it hasn’t been sufficient. Quote the LA’s own stated reasons for refusing and explain directly why each one doesn’t override the low statutory test.
- Common mistake
- Writing only about the diagnosis and not about the functional difficulties. The test is about the child’s needs, not their label.
Show the wording on the form
Q5, page 3
Describe any special educational needs that the child or young person has
Section 2, Q7 - Why an EHCP may be necessary
- What they’re really asking
- Whether it may be necessary for special educational provision to be made in accordance with an EHC plan. Again, "may" sets a low bar.
- How to answer it well
- Explain what provision the school has tried, why the needs can’t be met from the school’s own resources, and why an EHCP may be needed to secure the right support. Reference the statutory test explicitly: "It may be necessary for special educational provision to be made for [child’s name] in accordance with an EHC plan, within the meaning of Section 36(8)(b) of the Children and Families Act 2014." List the evidence you’re enclosing.
- Common mistake
- Arguing only that the child "deserves" an EHCP. The question is whether an EHCP may be necessary - so focus on what provision is needed and whether the school can fund and deliver it without a plan.
Show the wording on the form
Q7, page 3
Explain why you think the child or young person may require an EHC plan
Unlawful refusal reasons the LA cannot rely on
- What they’re really asking
- Whether the LA applied the correct statutory test or added an unlawful extra hurdle.
- How to answer it well
- The LA can’t lawfully refuse solely because: the child doesn’t have a formal diagnosis; the school hasn’t spent a fixed amount (such as six thousand pounds); a fixed number of terms of SEN Support haven’t passed; the child is achieving age-related academic expectations; or no educational psychologist has been involved. If the refusal letter relies on any of these, say so in Q7 and reference Section 36(8).
- Common mistake
- Accepting the LA’s stated reasons as lawful. Many refusals apply an unlawful higher test. Point this out clearly.
The deadline and the mediation step
You must submit your SEND35A appeal so that the Tribunal receives it within 2 months of the date on the LA’s decision letter, or within 1 month of the date of your mediation certificate - whichever of these deadlines falls later. Before you can appeal, you must first contact a mediation adviser (the LA’s decision letter must give you their details). You can decline to attend mediation and simply request the certificate. The certificate is normally issued within 3 working days.
Section 3, Q9 - Date of the LA decision letter
- What they’re really asking
- The date the LA’s decision letter is dated. This is the date the 2-month clock starts.
- How to answer it well
- Enter the exact date shown on the LA’s refusal letter. This is the start of the 2-month appeal window. If you contacted a mediation adviser and received a certificate, that date may give you a later deadline (1 month from the certificate date). Use whichever deadline is later.
- Common mistake
- Counting 2 months from the date you received the letter rather than the date printed on it. The clock runs from the letter date.
Show the wording on the form
Q9, page 4
What is the date on the decision letter from the local authority?
The mediation certificate (required before appealing)
- What they’re really asking
- Whether you have a mediation certificate from an approved mediation provider.
- How to answer it well
- As soon as you receive the refusal letter, contact the mediation adviser named in it. You can simply say you don’t wish to attend mediation and ask them to issue a certificate. They must issue it within 3 working days. You don’t have to attend mediation - the certificate just confirms you contacted the adviser. Send a copy of the certificate with your appeal form.
- Common mistake
- Waiting too long to request the certificate. If you delay contacting the mediation adviser, you may run out of time to appeal even if the 2-month window hasn’t closed yet. Contact them within days of receiving the refusal.
Section 3, Q10 to Q11 - Late appeal or no mediation certificate
- What they’re really asking
- Whether the appeal is being made after the deadline, and why.
- How to answer it well
- If you’re filing late, you must explain in Q11 why the appeal is late, why it should succeed, why the LA won’t be prejudiced, and why you shouldn’t have to wait for a reassessment. The Tribunal can extend time in exceptional circumstances. Attach as much supporting detail as possible.
- Common mistake
- Submitting a late appeal without any explanation. The form will be returned unregistered if Q10 is ticked but Q11 is blank.
Show the wording on the form
Q10, page 4
Is your appeal being made late, or do you not have a mediation certificate?
Answer options: My appeal is being made late / I do not have a mediation certificate
Q11, page 4
Please explain why this has happened
Evidence that shows the threshold is met
You need evidence that shows your child has or may have SEN, and that an EHCP may be necessary. Remember the threshold is low: you’re not proving certainty. Evidence that describes day-to-day needs and what the school has tried - and why it hasn’t worked - is worth more than a letter that only confirms a diagnosis. The refusal-to-assess appeal is usually decided on the written papers without a hearing, so your evidence bundle is everything.
What evidence to attach
- What they’re really asking
- What professional reports, school records, and parent evidence show the child may have SEN and may need an EHCP.
- How to answer it well
- Gather: the LA’s refusal letter (essential); all reports submitted with the original request; any new professional reports (independent Educational Psychologist, speech and language therapist, occupational therapist, CAMHS, paediatrician); school records showing SEN Support history, progress data, incident logs, and communications from the SENCO; a short parent statement describing the day-to-day impact of your child’s needs; and a chronology of what has been tried and why it hasn’t been sufficient. List each document in Section 11 of the form with the date, author, number of pages, and its relevance to the appeal.
- Common mistake
- Sending only the diagnosis letter. A report that describes functional difficulties and what support has been tried is much stronger than a letter that simply names a condition.
Addressing the LA’s stated reasons
- What they’re really asking
- Whether you’ve directly answered each reason the LA gave for refusing.
- How to answer it well
- Go through the refusal letter line by line. For each stated reason, quote it in your grounds and then explain why it’s wrong - citing evidence and, where relevant, the statutory test. If the LA said "the school can meet needs from its own resources," provide evidence it can’t. If the LA said "the child does not have a diagnosis," remind the Tribunal that Section 36(8) requires only that the child "may have" SEN - no diagnosis is required.
- Common mistake
- Writing a general statement about your child’s needs without engaging with the LA’s specific reasons. The Tribunal wants to know why the decision was wrong, not just why your child needs support.
Stuck on a question? The assistant can help you word it for your child.
Ask the assistantFilling in the form: section by section
The SEND35A has 11 sections. Sections 1 and 5 cover who the appeal is about and who is making it. Section 2 is the most important: it’s where you set out your grounds. Section 3 covers the LA decision and the deadline. Section 4 lets you consent to the appeal being decided on papers (which is normal for refusal-to-assess cases and often leads to a quicker decision). Sections 6 and 7 cover anyone else involved and hearing needs. Sections 8 to 11 are the checklist, signature, submission details, and evidence list.
Section 1 - Who is the appeal about?
- What they’re really asking
- Details of the child or young person and whether they’re under 16 or aged 16 to 24.
- How to answer it well
- Complete the child’s full name, date of birth, and gender. Tick whether this is a child (under 16) or a young person (16 and over, under 25). This determines who has the right to appeal: parents appeal on behalf of a child under 16; a young person aged 16 or over may appeal in their own right or through an advocate.
- Common mistake
- Leaving Q4 blank. The Tribunal needs to know whether to treat this as a parent appeal or a young person appeal.
Section 4 - Paper hearing or oral hearing?
- What they’re really asking
- Whether you consent to the appeal being decided on the written papers without an oral hearing.
- How to answer it well
- Refusal-to-assess appeals are normally decided on papers, and consenting (ticking the box in Q12) can lead to a quicker decision. Both you and the LA must consent. If you want an oral hearing instead, don’t tick the box and say so in the notes. Most families consent for refusal-to-assess cases: the evidence is usually clear and an oral hearing adds time.
- Common mistake
- Thinking a paper hearing is less likely to succeed. The Tribunal decides on the same legal test whether or not there’s an oral hearing.
Section 8 to 11 - Checklist, signatures, submission, and evidence list
- What they’re really asking
- Whether the form is signed, the key documents are enclosed, and every item of evidence is listed.
- How to answer it well
- Before submitting, check: the form is signed and dated; the LA’s refusal letter (which must be signed and dated and state the right of appeal) is enclosed; your mediation certificate is enclosed; your grounds of appeal are written in Sections 2 and 3; and Section 11 lists every document you’re sending (date, author, pages, relevance). Send by email to send@justice.gov.uk with "New Appeal" in the subject line, or post to HM Courts and Tribunals Service, SEND Tribunal, 1st Floor, Darlington Magistrates Court, Parkgate, Darlington, DL1 1RU.
- Common mistake
- Forgetting to list evidence in Section 11. The Tribunal won’t know what you’ve sent unless it’s itemised.
What the Tribunal can order
If your appeal succeeds, the Tribunal orders the local authority to carry out an EHC needs assessment. The LA must begin the assessment within 2 weeks of the Tribunal’s order. If the LA concedes before the hearing (agrees to assess without the Tribunal deciding), the LA must begin the assessment within 4 weeks of notifying the Tribunal. The assessment doesn’t guarantee an EHCP: after completing it, the LA decides whether to issue a plan. If they refuse to issue one, you have fresh appeal rights.
What happens if the LA concedes during the appeal?
- What they’re really asking
- Whether the LA agrees to carry out the assessment before the Tribunal makes a formal decision.
- How to answer it well
- If the LA concedes, the appeal becomes "unopposed." Under Regulation 45 of the SEND Regulations 2014, the LA must begin the assessment within 4 weeks of notifying the Tribunal. Ask for a Consent Order if the LA has already submitted a response: this is legally binding and should include a specific start date for the assessment.
- Common mistake
- Accepting a verbal agreement to assess without getting it in writing. If the LA later delays, you need a documented commitment.
If the LA refuses to issue an EHCP after assessing
- What they’re really asking
- Whether a further appeal is available if the LA completes the assessment but then refuses to issue a plan.
- How to answer it well
- A refusal to issue an EHCP after assessment is a separate appealable decision. You use Form SEND35 (not SEND35A) to appeal that decision. The same 2-month deadline and mediation step apply. The legal test is also different: you’d be arguing that an EHCP is necessary, not merely that an assessment may be necessary.
- Common mistake
- Thinking a successful SEND35A appeal guarantees an EHCP. It only secures the assessment. The plan decision comes afterwards.
After you submit
The Tribunal aims to register refusal-to-assess appeals within 10 working days of receipt. The LA then has 30 working days to respond. For refusal-to-assess cases decided on papers, the Tribunal typically makes a decision within 10 to 12 weeks of registration. Keep copies of everything you send. The Tribunal will send case management correspondence to the address or email you gave in Section 5.
Gathering further evidence while you wait
- What they’re really asking
- Whether you can add evidence after submitting the form.
- How to answer it well
- You can submit further evidence before the Tribunal closes the papers. If you obtain a new report after filing, send it to the Tribunal and the LA as soon as possible with a short covering letter explaining what it adds. Note the 2025 evidence page limits: the core bundle is limited to 100 pages and the working document to 25 pages for oral hearings (paper hearings don’t follow the same limits, but concise evidence is still better).
- Common mistake
- Holding back evidence because you think it’ll arrive later. Submit what you have and add more if it arrives. A late strong report is better than no report.
If you miss the appeal deadline
- What they’re really asking
- Whether the Tribunal will still hear a late appeal.
- How to answer it well
- The Tribunal may extend time if there are special circumstances that prevented you from appealing in time and it’s fair and just to do so. Submit the form as soon as possible, tick Q10, and explain in Q11 why the appeal is late and why it should succeed. If the extension is refused, you still have the option of submitting a fresh EHC needs assessment request with any new evidence: the 6-month bar in Section 36(6)(b) of the CFA 2014 doesn’t apply after a refusal (it applies only after a completed assessment).
- Common mistake
- Assuming a missed deadline means you’ve lost all options. A fresh request is available at any time after a refusal, even if the appeal window has passed.
Common questions
No. The legal test under Section 36(8) of the Children and Families Act 2014 is that the child "may have" special educational needs - not that a diagnosis has been confirmed. You can appeal while waiting for a diagnosis, or with no diagnosis at all, as long as you can show the child may have SEN and an EHCP may be necessary.
You must contact a mediation adviser before you can appeal, but you don’t have to attend mediation. You can decline mediation and simply request the certificate. The adviser must issue it within 3 working days. The certificate is a procedural requirement, not a barrier: most parents obtain it in under a week.
No. The SEND Tribunal is completely free. There are no application fees or hearing fees. The tribunal may also pay some travel expenses if you attend an oral hearing.
No. A fixed school spending threshold isn’t part of the statutory test. The only legal test is Section 36(8) of the Children and Families Act 2014: whether the child may have SEN and whether an EHCP may be necessary. The LA can’t lawfully add a spending requirement. Point this out clearly in your grounds of appeal and cite Section 36(8).
If the LA agrees to assess before the Tribunal decides, the appeal becomes "unopposed." Under Regulation 45 of the SEND Regulations 2014, the LA must begin the assessment within 4 weeks of notifying the Tribunal. Ask for this in writing and, if the LA has already responded to the appeal, consider asking for a Consent Order so the commitment is legally binding.
Yes. A refusal to issue an EHCP after completing the assessment is a separate decision with its own appeal right. You’d use Form SEND35 (not SEND35A) and the same 2-month deadline and mediation step apply. Approximately 50 per cent of initial EHCNA requests are refused, so this scenario does arise, but a completed assessment substantially strengthens any further appeal.
Related forms
Sources
- GOV.UK - Form SEND35A: appeal a refusal to secure an EHC needs assessment
- GOV.UK - How to appeal a special educational needs (SEN) decision (SEND37)
- Children and Families Act 2014, Section 36 - EHC needs assessment
- Children and Families Act 2014, Section 51 - Appeals to First-tier Tribunal
- Special Educational Needs and Disability Regulations 2014 - mediation and appeals
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