Appealing a refusal to issue an EHCP

At the end of an Education, Health and Care (EHC) needs assessment, the local authority may issue either a draft Education, Health and Care Plan (EHCP) or decide that one is not necessary.

An Education, Health and Care Plan (EHCP) is available from birth to the age of 25 years, as long as the young person remains in education or training. There are different qualification tests which apply depending on the age of the child or young person.

If the local authority decides that an EHCP is not necessary, it will write to the parents of the child, or the young person directly and should set out its reasons for the refusal.

If the local authority does refuse to issue an EHCP, there is a right of 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 EHCP 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

Before starting an appeal with the SENDIST, mediation must be considered. Mediation can be helpful, especially if more evidence is expected to be received in the near future.

You will need to obtain a mediation certificate before sending an appeal to the SENDIST. The SENDIST must receive your appeal form no more than one month after the date on the mediation certificate, or two months from the date of the local authority’s decision, whichever is later.

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, 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.