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Appealing a refusal to assess
After you make a request for an Education, Health and Care (EHC) needs assessment, the local authority has six weeks to decide whether or not to conduct an EHC needs assessment. The decision should be based on whether the legal test for an EHC needs assessment has been met.
In our experience, requests to conduct an EHC needs assessment are unsuccessful either because:
1. The child or young person genuinely does not require an EHC needs assessment; or
2. The local authority has not been provided with enough evidence; or
3. The local authority is applying an unlawful blanket policy.
If the local authority refuses to conduct an EHC needs assessment then the parents of a child, or the young person themselves, have a right to appeal to the Special Educational Needs and Disability Tribunal (SENDIST).
An appeal to the SENDIST can normally take up to 20 weeks to be completed. During this time you will need to send evidence to the SENDIST about the special educational needs and disabilities the child or young person has and the support they require. The SENDIST will want to explore that evidence and will need to make a decision about whether the legal test for an EHC needs assessment has been met.
As the SENDIST will apply the law when making its decision, it is important to know and understand the relevant legal tests.
How we can help
If the local authority refuses to conduct an EHC needs assessment it is important to consider the reason why. The local authority should explain this, but will often use standard letters which are not very helpful.
Before starting an appeal with the SENDIST, mediation must be considered. Mediation can be helpful in cases where the local authority refuses to conduct an EHC needs assessment, especially if more evidence is being obtained. We can advise whether mediation is likely to be successful. If you decide to proceed with mediation, we can help to make sure that you are properly prepared.
If you do not reach an agreement with the local authority during mediation, or if you decide not to try mediation, then we can help you to prepare an appeal to the SENDIST. This would include compiling your evidence, seeking further evidence as necessary, and making written representations. We can also represent you at the final hearing should you need us to.
It is important to be able to present the case in such a way that the evidence that you have points to the legal test being met. We will provide clear and detailed advice from the outset about the prospects of success and any further evidence that may be required.
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