Navigating the process of Education Health & Care Needs Assessment (EHCNA) requests for children can be challenging, especially when faced with a refusal from the local authorities. Understanding your options and the steps to take after a refusal is crucial in ensuring your child receives the support they need. In this guide, we will explore the options available to parents after a refusal, including accepting the decision, pursuing mediation, and appealing to SENDIST (Tribunal). We will also provide insights into the preparation required for mediation and appeal and available resources to support families through this process.
Local Authorities refuse, on average, 50% of all Education Health & Care Needs Assessment (EHCNA) requests they receive. A significant majority of these refusals are because the LA has not applied the legal test, but instead they have used internal policy to refuse the assessment. This is not legal, and when challenged, is almost always overturned.
Overall, 98% of parents' appeals to SENDIST (Tribunal) find that SENDIST rule in their favour.
If your Local Authority (LA) refuse an EHCNA for you child, you should challenge this decision.
What are My Options:
If your LA refuse an EHCNA for your child, you can:
Accept the decision and work with the school to meet your child’s needs through their existing resources.
Request mediation to discuss this decision with the LA and ask them to reconsider.
Appeal to SENDIST (Tribunal).
Accepting the Decision
Review this information about the support and provision that a school should be providing for children with SEND who do not have an EHCP.
Familiarise yourself with the key duties that a school has to provide for children with SEND particularly :
Their ‘Best Endeavours Duty’ The ‘best endeavours’ duty (ipsea.org.uk)
Disability Discrimination and The Equality Act 2010 Types of disability discrimination | (IPSEA) Independent Provider of Special Education Advice
Meet with your child’s SENDCo and discuss the decision.
Talk to them about what additional resources they can provide for your child.
Review any guidance that the LA suggested the school should be providing in their letter refusing the assessment.
Discuss how they are meeting their legal duties under SEN Support, Best Endeavours and the Equality Act 2010.
If you are not happy that the school are willing or able to make appropriate provision for your child from within their own resources, then consider requesting mediation or going to appeal. (See below.)
Using Mediation
You have a right to request mediation within 2 months of the date on the letter from the LA refusing the EHCNA. To request, ring the number on the LA letter and ask them to arrange mediation.
Mediation is an informal way of trying to settle the dispute between you and the LA. There is no financial cost, and an independent mediator will support you and the LA to discuss your child’s case and review the decision they made.
Before attending mediation for refusal to carry out an EHCNA, you need to prepare your case. Our Webinar will support you to do this by explaining the law, how to evidence that your child meets the legal test and providing resources to help you write a written report.
You will be issued with a mediation certificate at the end of mediation. If the LA refuse to change their decision, you have one month from the date of the mediation certificate to submit an appeal to SENDIST.
Appealing to SENDIST
You can go straight to appeal as soon as your LA refuse to make the EHCNA. You do not have to go to mediation first, but you do have to consider using mediation. If you consider it and decide that you do not want to mediate, but lodge an appeal immediately, you will still need a mediation certificate. To obtain one, ring the mediation company, explain that you do not want to use mediation and ask them to issue a certificate straight away.
As soon as you get the certificate, you can lodge your appeal. You have two months from the date on the letter from the LA refusing the assessment, or one month from the date of the mediation certificate – whichever is longer.
Our Webinar will help you to evidence your appeal by explaining the law, how to evidence that your child meets the legal test, and provide resources to help you write a written report.
Submit your appeal by completing a SEND35a form SEND35A - Application for appeal - Refusal to secure an EHC Needs Assessment (publishing.service.gov.uk)
Send it with the following:
The LA letter refusing the EHCNA.
Your mediation certificate.
Any evidence.
Your report.
We will be holding a Live Webinar Event to support you to manage an EHCNA appeal in September 2024. Tickets to the live event will be available from August 2024 onwards through our website Events | Empowering Families (empoweringsendfamilies.co.uk)
And after the event, the recording will be available in our Thinkific Library All Events (thinkific.com)
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