LA Refusing EHCP Assessment: How to Challenge It and Win

Your child's local authority has refused to conduct an Education, Health and Care Needs Assessment. The letter probably says something about your child "making adequate progress," or that their "needs can be met within the school's existing resources." It may feel final and authoritative. It is neither.

In 2023/24, families registered 5,722 appeals against refusals to assess alone. The local authority win rate at the First-tier Tribunal (SEND) for all appeal types combined was approximately 1.1% to 1.3%. These numbers are not coincidental. Local authorities routinely apply unlawful criteria to refuse assessments, and those refusals are routinely overturned.

Here is how to challenge yours.

The Legal Test the LA Must Apply

Section 36(8) of the Children and Families Act 2014 sets out the only legal test that governs whether a local authority must agree to an EHC Needs Assessment. The threshold is deliberately low:

The LA must secure an assessment if it is of the opinion that:

1. The child "has or may have" special educational needs, AND
2. It "may be necessary" for special educational provision to be made via an EHCP

That's it. "May have" and "may be necessary." Not "definitely has" and "definitely requires." The threshold is not whether an EHCP will ultimately be issued; it is whether it might be needed.

Why Most Refusals Are Unlawful

Local authorities facing cumulative high-needs funding deficits approaching £3.9 billion have strong financial incentives to refuse assessments at the gatekeeping stage. To do so, many apply local criteria that have no basis in the Children and Families Act 2014:

• Demanding that the child is a specific number of years behind age-related expectations
• Requiring proof that the school has spent its full £6,000 delegated inclusion budget
• Refusing to assess until the school has "exhausted all interventions" on SEN Support for a specified period
• Insisting on a formal medical diagnosis as a prerequisite

None of these criteria exist in statute. If the two-part test under Section 36(8) is met — and for most children with identified needs and a history of inadequate progress, it will be — the refusal is legally flawed regardless of what the LA's local policy says.

What "Adequate Progress" Actually Means

Local authorities frequently justify refusals by arguing the child is "making some progress." The SEND Code of Practice (paragraph 9.14) clarifies what "adequate progress" means: not just any progress, but progress that closes the gap between the child and their peers, is sustained over time, and does not rely on a level of additional support that could not reasonably be maintained.

If your child is making progress only because of significant additional input from school staff or private therapists — and would regress without it — that is not adequate progress. Document this explicitly.

Building Your Challenge

When you receive the refusal letter, you have two routes:

Ask for an internal review first (optional). You can write to the LA setting out why you believe the refusal fails the Section 36(8) test and requesting that they reconsider. Include your evidence. Some LAs will reverse a refusal at this stage, which is faster than Tribunal and avoids the 50-plus week wait. However, do not let an internal review process run you past your Tribunal deadline.

Register a Tribunal appeal. You have two months from the date of the LA's refusal letter to lodge a SEND35 appeal form with the First-tier Tribunal — or one month from the date of your mediation certificate, whichever is later. You must first contact a Mediation Information and Advice Service (MIAS) to obtain a mediation certificate, even if you choose not to mediate.

Your appeal should be direct and structured:

1. State clearly that you are appealing the refusal to assess under Section 36 of the Children and Families Act 2014
2. Identify the legal test that applies and argue that the LA failed it
3. Attach your evidence demonstrating that the child has or may have SEN and that provision via an EHCP may be necessary

Evidence that strengthens a refusal-to-assess appeal includes: private diagnostic reports, paediatrician letters, school SENCO provision maps showing the extent of additional support already in place, attendance and exclusion records, progress data showing insufficient progress despite intervention, and the child's own account of difficulties.

What Happens If the Tribunal Agrees With You

If the Tribunal finds in your favour on a refusal-to-assess appeal, it orders the LA to conduct the assessment. This does not automatically mean an EHCP will be issued — the LA still conducts the assessment and reaches its own conclusions. However, once the assessment is underway, you have further rights of appeal if the LA then refuses to issue a plan, or if the final EHCP is inadequate.

Many LA refusals to assess collapse before the hearing. The act of registering a Tribunal appeal — which signals that you know the law and are prepared to pursue it — is often sufficient to prompt the LA to agree to assess. Do not wait for the hearing date to arrive before considering whether the LA has reconsidered its position.

The England SEND Tribunal Playbook includes a refusal-to-assess appeal letter template, the grounds of appeal for a SEND35 submission, and a guide to the evidence you need at each stage of the challenge process.

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