Why Should I Appeal a Refusal to Assess
You asked the local authority to do an assessment of your child’s needs to see if they might need an EHCP. And they replied... “No”.
Well, take a deep breath. You are not alone; it’s happened to lots of other parents and their children too. It might just be a way of your local authority avoiding spending money and nothing to do with what your child needs. So, you need to consider getting the decision changed (appealing) and getting your child’s needs assessed.
How Often Do They Say "No"?
Right now, across England, councils are saying "no" to these initial checks for extra help about 29 out of every 100 times. And it's happening more often than it used to. That’s almost one in three…
Why, really, do they say “No”?
Because it saves them money and they probably hope you will go away.
They cannot really believe that they know your child (having done no assessments and not met your child) better than you do. Get the professionals making those assessments provide evidence - not your local authority making decisions on thin air.
And What are the Typical Reasons for Saying “No” (HINT: These are not lawful)
Because they require you to have a diagnosis: This is 100% not legal. The only legal test is “May have SEN” and an EHCP “may” be necessary.
Because your child is doing okay academically: Needs don’t cover just how clever or how far behind your child might be. There are kids in grammar schools and that have gone on to university with EHCPs. But an EHCP is about so much more than just academics. It is about your young person’s mental health, their ability to communicate with their friends and other people, whether they get overwhelmed by noise and chaos, whether they can remember to take their tablets on time, catch a bus, manage their money… Everything is a learn… And these learns may require Special Educational Provision being made for them. The only legal test is “May have SEN” and an EHCP “may” be necessary.
Insisting that the school do everything they can first: Yes, the LA will ask the current school what support has been put in place and how that is working. But throwing it back to the school to “do more” and refuse an assessment is not legal. The only legal test is “May have SEN” and an EHCP “may” be necessary.
Claiming Needs Can be Met via a Health plan or a Social Care Plan alone: For example, an LA might incorrectly argue, "Because the child's physical disability is managed by a health care plan, an EHC assessment isn't needed," failing to consider the impact of the disability on the child's learning and educational needs. Because disabilities can affect someone’s ability to learn.. whatever the learning is. The only legal test is “May have SEN” and an EHCP “may” be necessary.
Setting much stricter rules than the law: The LA may insist that the school provide 3, 4, 5 terms of failing SEN plan, or the child must be three years behind academically... or any other policy they’ve made up. The only legal test is “May have SEN” and an EHCP “may” be necessary.
The current school gave the LA the wrong advice: The LA must consult with the current school as part of the process. Maybe the school don’t have the skills to identify your child’s needs, or they are worried about how much the provision in an EHCP will cost them. The only legal test is “May have SEN” and an EHCP “may” be necessary.
Not enough evidence from school: Lots of times LAs say that there is not enough evidence from the school. This is not a legal reason and does not have anything to do with your child. It simply means that the school have failed to provide any evidence of support or success. The only legal test is “May have SEN” and an EHCP “may” be necessary.
So, What Do You Do Now?
Appeal – Appeal – Appeal
Well, you could presume that your LA is right, (having never met your child, or got a professional to assess them) in deciding that your child doesn’t have Special Educational Needs and won’t benefit from an EHCP (which we doubt based on tribunal figures) and your child will not receive the support they might need, may possibly deteriorate, and cause longer term mental health issues, or you can appeal. One in four parents didn’t believe their LA in 2023 and in 90-95% of occasions, the LA backed down before it even got to court, or the court agreed with the parents.
It sounds scary but you can appeal on your own (free), you can find a charity to help you (possibly free), or you can hire a solicitor (probably not free).
You just need to tell the tribunal why you think your child might have Special Educational Needs and why you think they might benefit from an EHCP (you are not expected to say exactly what “diagnosis” you think they have or detail the support they need – that’s the job of the professionals doing the assessment),
Soon we will have a searchable database of these helpful organisations. But for now, ask your friends or search online for recommendations.
HAVE WE STILL NOT CONVINCED YOU?
Why should you appeal? Remember – you are ONLY asking for an assessment at this point
It's Your Child’s Rights: The law says the council has to do this assessment if they think your child might have special needs and might need extra help at school. If you think your child needs help, you have a right to ask for this check.
Finding Out What Your Child Needs: If the council says "no" to an assessment, you might not get a proper look at all the things your child finds difficult. This assessment involves talking to different experts to get a full picture. Without it, you might not understand everything that's going on.
Getting the Right Support: An EHCP is a plan that says what extra help your child needs by law. You can't get this plan if you haven't had an assessment. So, appealing a "no" is the first step to getting that important support in place.
Your LA Might Be Wrong: When parents appeal the council's "no," they win most of the time. This shows that the council's first decision to say "no" could have been a mistake. Appealing gives the tribunal (a panel of experts) a chance to look at the situation and decide if the council should have agreed to the assessment.
Helping Your Child Learn Better: If your child has special needs that aren't being helped, they'll probably struggle at school and feel unhappy. An assessment can figure out what's making learning hard and what help they need to do well.
Making Sure the Local Authority Does Their Job Properly: When parents appeal and win, it shows the council that they need to follow the rules properly when it comes to children with special needs.
HURRY UP AND FIGHT FOR YOUR CHILD’S NEEDS TO BE ASSESSED tick tock..
You only have 2 months from the date of the letter refusing the assessment. You must consider mediation (details must be on the letter the LA sent you). This doesn’t mean you have to go to mediation – just think about it. You receive a certificate from them and lodge your appeal once you have got the certificate here (https://assets.publishing.service.gov.uk/media/642aed26ddf8ad0013ac0c97/SEND35A_0423_save.pdf)
You can of course try the mediation. If it doesn’t work out you can still appeal. Getting the certificate gives you one extra month (from the certificate date) to get your appeal in so make sure you keep an eye on the clock.
SO DON’T LET YOUR CHILD BE YET ANOTHER STATISTIC AND ASK FOR THE DECISION TO BE CHANGED
START THE APPEAL TODAY