It is not unusual for Local Authorities to conduct an EHC Needs Assessment and then refuse to issue an EHCP. A significant majority of these refusals are because the LA has either not applied the legal test, but instead used internal policy to refuse to issue the EHCP, or has not conducted a thorough assessment in the first place This is not legal, and when challenged, it is possible to get the decision not to issue an EHCP overturned.
The legal test for whether the LA must issue an EHCP following a needs assessment can be found in section 37(1) of the CFA 2014, and says:
1) Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan –
(a) the local authority must secure that an EHC plan is prepared for the child or young person, and
(b) once an EHC plan has been prepared, it must maintain the plan. This means that your LA must decide whether the evidence gathered during the EHC needs assessment shows that it is “necessary” for your child or young person to have an EHC plan.
Overall, 98% of parents' appeals to SENDIST (Tribunal) find that SENDIST rule in their favour.
If your Local Authority (LA) refuses to issue an EHCP for your child following an EHC Needs Assessment, you should challenge this decision.
What are My Options:
If your LA refuses to issue an EHCP following a needs assessment for your child, you can:
1. Accept the decision and work with the school to meet your child’s needs through their existing resources.
2. Request mediation to discuss this decision with the LA and ask them to reconsider.
3. Appeal to SENDIST (Tribunal).
1. 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 professional advice from the EHC Needs Assessment and work with the school to ensure that it is provided by your child’s school. The LA have said that the school can meet all of your child’s identified needs, so they should be doing just that. If they can’t, they should provide you with written evidence of what they cannot provide and why. This can then be used to appeal the LA’s decision.
· 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.)
2. 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 issue an EHCP following a needs assessment, you need to prepare your case. This resource from IPSEA will help you to do this - Download.ashx (ipsea.org.uk)
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.
3. Appealing to SENDIST
You can go straight to appeal as soon as your LA refuse to issue an EHCP. 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.
Submit your appeal by completing a SEND35 form SEND35 - Application for appeal - Child or young person (publishing.service.gov.uk)
Send it with the following:
· The LA letter refusing to issue an EHCP.
· Your mediation certificate.
· Any evidence.
It will take a few weeks to hear back from Tribunal but when you do, they will send Case Directions, which include lots of information and all the key dates. Read this carefully and diarise the key dates. It is important that you do not miss these.
Empowering Families of Children with SEND Ltd also provide fully bespoke 1:1 support for appeals with Anna & Sarah as part of their professional service. For details click here: Bespoke 1:1 support from Anna & Sarah
You can find testimonials to our bespoke service on our website and Facebook business page - here
We are, and always will be, Stronger Together.
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