Refusal to Assess

If you have just received a refusal from the Local Authority to undertake an Education, Health & Care Needs Assessment (EHCNA) following a request by yourself, your young person or the school, this guide will explain the different options available and what you need to consider.

Official RTA decision

The LA should decide whether to undertake an EHCNA within 6 weeks of the initial request* and you should receive notice of their decision, in writing (even if this is after an initial phone call and even if it was the education setting that made the initial request).

If the LA have decided NOT to do an EHC needs Assessment (a ‘Refusal To Assess’ / RTA) they are required to give you information about why they are refusing to assess, along with your right to appeal, the time limits for doing so, information about mediation and disagreement resolution and information and advice about matters relating to the special educational needs of children and young people. (Send Regs 2014 5(3))

* There are specific exceptions to thisSummer holidays, exceptional personal circumstances affecting the child, the child’s parent or the young person during this time period, the child, the child’s parent or the young person are absent from the area of the authority for a continuous period of not less than 4 weeks during this time period.

If the LA have not included all of the reasons fully in their communication with you, we would advise contacting your planning coordinator and requesting all the information.

In considering whether to do anything about the decision, it is helpful to revisit the 2 legal tests within the Children & Families Act 2014 that have to be considered by the LA when a request for an EHCNA is made:

(a) the child or young person has or may have special educational needs, and

(b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

3 Options to consider

Regardless of the reasons given for the refusal to assess, (or who initially made the request) we advise that you liaise with the SENCO at your child’s/young person’s education setting (if applicable) as soon as possible, to discuss these and what will happen whilst you pursue the options available.

There may be some additional things that can be considered (provide more information/ evidence to SENAT) or additional provision made from within their own resources, even if temporarily whilst other options are being pursued.

If it is felt that the LA were wrong in their decision not to undertake an EHC needs assessment then there are a few options to consider.

1) Request a meeting with the LA & school

This can be done whilst also pursuing options 2 or 3 (but be careful not to miss any mediation / appeal deadlines if this is something you may be also considering).

You can ask your Planning Coordinator to organise someone from the LA to meet with you and the education setting (school/ early years / further education) to discuss the reasons for their refusal more fully. This may be particularly helpful if the setting agrees with the request (or made the request themselves) and/or you think that the paperwork submitted in the request does not fully reflect your child or young person’s needs. Sometimes a face-to-face meeting can be helpful to explain a child’s needs more comprehensively, especially where you have not been able to get assessments or reports from the relevant professionals.

As well as the chance to discuss the decision, there should also be opportunity to discuss what the next steps are. The LA may talk with the education setting about further assessments that could be done themselves, further support that could be offered, or further evidence that may be needed.

How to request:

Contact your planning coordinator (if by phone, follow up with an email) and request a meeting. Their contact details will be on the letter that you received informing you of their decision not to undertake an EHC needs Assessment

Things to consider:

  • The LA do not have a duty to meet with you.
  • There would be no timeframe for meeting or for any decisions or actions to be made
  • You can request a friend/family member/ professional to attend with you (just let the other parties know in advance of the meeting)
  • The LA representative may not be able to make the decision themselves to agree to do an EHCNA and may instead need to go back to the decision panel for a further decision to be made.

Afterwards:

Depending on what was agreed at the meeting, you may decide to wait a while to see if there are any improvements to your child’s learning and/or wellbeing. Alternatively, you may decide to go to mediation or appeal. Please note: You must call the Global Mediation Service (for mediation or appeal) within 2 months of the date on the letter you received initially from the Local Authority refusing to assess.

2) Mediation

Mediation can be done before or instead of number 3. This is a formal version of option 1 but you can still do both if you feel it may help avoid appeal (which is the lengthier process).

Mediation advice must be sought if you are intending to go to appeal to the SEND tribunal (option 3) but there is no obligation to agree to mediation. If you intend to go to mediation or appeal, then you must contact Global Mediation within 2 months of the date on the letter you receive from the Local Authority refusing to assess.

Mediation is confidential and aims to resolve your disagreements with the Local Authority in a quick, informal way using a neutral third party, a mediator, to help you reach a resolution. The school is not usually involved in the mediation meeting. The mediator does not judge or impose a solution but ensures that any settlement is agreed between you and the Local Authority. An experienced mediator will explain the process to you and help clarify the nature of the disagreement with both parties. You can bring a supporter with you to the mediation, but legal representation is not usually necessary.

It can be an opportunity to present further information or evidence that you feel has either been overlooked or missed completely. The reasoning and evidence you will need to produce will be similar to that in section 2 of the appeal form in considering the 2 legal tests as mentioned above.  For more information about this, please see our accompanying guide – ‘What to include in section 2 (of an RTA appeal form)’

All the arrangements for the meeting are made by Global Mediation themselves.

How to request:

Contact Global Mediation within 2 months of the letter stating the LA’s decision not to assess:

Telephone: 0800 064 4488 or 020 8441 1355 or Email: sen@globalmediation.co.uk.

Things to consider:

  • Whilst Global Mediation will usually try to arrange the meeting near to your home, in a neutral place, there may be some travelling involved.
  • Schools are not generally involved with mediation
  • The LA have a ‘must’ arrange duty*. If LA do not agree to arrange mediation or fail to arrange it within the 30 days, then you will be issued with a certificate which allows you to go to appeal instead. You will have the right to make a formal complaint to the LA if this happens for failure to arrange mediation.
  • LA rep should have the authority to agree to undertake an EHCNA (rather than go back to panel)

*(SEND Regs 36)

Afterwards:

When the mediation meeting is concluded, the mediation adviser will issue a certificate within 3 working days confirming that mediation has concluded.  If despite mediation, you feel that not all your issues have been resolved, you can proceed to an appeal, using the certificate to register with the SEND Tribunal.

3) Appeal at SEND Tribunal

Can be done after or instead of option 2, or after /alongside option 1.

If you disagree with the LA’s decision not to undertake an EHC Needs Assessment and feel that any discussion with the LA has been exhausted, you can appeal this ‘Refusal to Assess’ decision directly to the SEND Tribunal. The SEND Tribunal is an independent national tribunal which hears parents’ and young people’s appeals against LA decisions about the special educational needs of children and young people. (It also hears claims of disability discrimination against schools).

The appeal for a refusal to assess is considered on written evidence only and therefore there will be no face-to-face hearing. However, if you feel face to face is necessary, you can make a request to the judge using the appeal form.

How to appeal: Mediation Advice must have been sought from Global Mediation prior to being able to submit an appeal. You will need to have contacted Global Mediation within 2 months from the date on the letter you receive from the Local Authority refusing to assess. If you decide not to participate in mediation but wish to go straight to appeal, you will be issued with a Mediation Certificate within 3 days of your conversation with Global. This certificate will need to be submitted along with your appeal paperwork. 

Your appeal must be submitted within two months from the date on the letter from the LA or one month from the date of the mediation certificate, whichever is the later. 

You will need to complete a Form (send35a) and send this along with your mediation certificate and supporting evidence to the SEND tribunal. Please refer to our RTA Appeals guide for more information.

Considerations:

  • Any decision the tribunal makes in your favour must be adhered to by the LA and within strict timelines.
  • Can take approx. 12 weeks plus for the tribunal to make a decision
  • As the decision is made on the paper evidence only, you will not get to verbally discuss the situation or the decision.

Afterwards:

Generally, within ten working days of the SEND Tribunal considering your case, they will write to you setting out the decision along with the reasons why. This may include recommendations (but these will be clear and give appropriate timings for completion) If the SEND Tribunal decides in your favour, the LA has four weeks to begin the EHC needs assessment.

See the more detailed guidance to completing the appeal below.

If you feel there has been an error or have some other serious reason for thinking the decision by the SEND tribunal is wrong, you have 28 days to apply for a Tribunal review.

You can re-request an EHCNA at any point (however, we would advise giving any recommended actions, appropriate time to see if they make a positive difference).

The Appeal Form

If you have decided to appeal the Local Authority’s decision not to undertake an EHC Needs Assessment, you need to tell the SEND Tribunal why you disagree and refer to any written evidence you have to support your case. This is done by submitting a completed Appeal form.

The form for this appeal is called SEND35a. The hearing itself is considered ‘on papers’ (i.e. appeal form and paper evidence) rather than face to face and it is important that you show the reasons for disagreeing as clearly and concisely as possible and we will look at this later. Please note: You can ask the judge to consider a face-to-face appeal (Section 4), if there are specific reasons for this, but the decision about this will be made at the judge’s discretion.

Sections

The appeal form itself contains 10 sections as follows:

Section 1:            Who is the appeal about?

Section 2:            Reasons for appeal*

Section 3:            Making the appeal

Section 4:            Deciding your appeal

Section 5:            Who is making the appeal?

Section 6:            Who else is involved in the appeal? (Including advocate / representative) **

Section 7:            The hearing – your needs and requirements

Section 8:            Checklist

Section 9:            Signature(s)

Section 10:          Sending your appeal

Section 11:          Evidence to be considered in the appeal

* Detailed information is given in our related guide -What to include in Section 2 of the RTA appeal form.

**Information about representatives and advocates is given towards the end of this guide.

How to include information on the form

The form itself is in pdf. format and you can either type into the boxes or if preferred, print the form off and hand write the information

For section 2, there is likely to be more information than fits in the boxes which unfortunately do not expand. You may find it easier therefore, to complete all the information for section 2 onto a word document / piece of paper first. 

If you are completing it all on a computer, you can then cut and paste the first few lines from each section into the form leaving what’s left as your continuation sheet. Alternatively, you can just write in the sections ‘see continuation sheet for more information’.

If you are handwriting your form, then the same applies. Write the first few lines in the boxes and continue on a continuation sheet etc.

Make sure that your continuation sheet has your child’s name, DOB and ‘reasons for my appeal (section 2) continuation sheet’ written in the title or header.

Once completed, you can then email the saved file or scanned papers. Alternatively, you can send it through the post. Please note: If you are sending by post only send copies (not originals) of the documents and send it recorded delivery. Tribunal request that documents are one sided. Both the postal and email address are on the form (but Tribunal prefer this is to be emailed where possible).

Timings

To initially lodge your appeal, you will need to have a mediation certificate (from Global Mediation services). You will therefore need to contact Global within two months from the date of the LA’s decision. You then have 2 months from the date of the LA’s decision or one month from the date of the mediation certificate, whichever is the later. This means, if you time it right, you can have up to just under 3 months from the date of the LA’s decision to submit your appeal with the tribunal.

Some people will want to get the appeal submitted as early as possible and then send more evidence at a later stage. Others will want to take time to prepare it all in one go. There is no right or wrong way and depends very much on your individual circumstances. However, if you do leave it, or submit evidence later it is imperative that you keep track of the submission dates so as not to miss your deadlines (and of course this delays the potential EHC needs assessment being agreed, if the judge rules in your favour).

Once the SEND Tribunal has received the appeal, they should notify you within approx. 10-14 working days to say that it has been received and that everything is in order (or they will tell you what is missing / incorrect). Their response will also include any advice on how to make changes, submit extra evidence etc as well as all the important dates including:

  • When the LA is required to respond to your appeal,
  • The deadline for sending further information and
  • The date that the SEND Tribunal will be considering your case and making a decision.

At the same time, the SEND Tribunal also writes to the LA, sending them a copy of your appeal and the documents. The LA should respond to the tribunal within 30 days, stating whether they oppose your appeal (disagree) and why, or that they agree with the evidence and will therefore start an EHC needs assessment. They must also send you a copy of its response at the same time, so do notify the SEND Tribunal if you do not get this response within the 30 days or by the date stated on the acceptance letter.

You do not have to send all the evidence with your appeal form and mediation certificate, but you will need to make sure that any evidence you didn’t send in with your appeal form gets to the SEND Tribunal by the deadline given in your acceptance letter- and you must always send a copy to the LA at the same time.

At least 10 working days before your appeal is considered, the LA should send you and the SEND Tribunal the trial ‘bundle’. This is a page-numbered, set of the documents containing yours and the LA’s evidence as well as the required appeal form, certificate etc etc.

Sections that need specific attention

The majority of the form itself is fairly straight forward to complete but there are a couple of sections that can be trickier particularly section 6 and section 2 (please see the separate drop down boxes for more details on Section 2)

Section 6 – Representatives / Advocacy

This section is about who else is involved in the appeal. If the appeal is made jointly with another person, both of you must sign the form (i.e. both parents). SEND Tribunal will only provide information about the appeal to one person named on the appeal form. This may be the person who has completed the form (either child’s parent or a young person if over the age of 16), an advocate or a representative.  If you say on the form that your representative or advocate is going to receive all the papers, you will not receive any correspondence in connection with the appeal before the hearing.

The choice is yours but if you are using an advocate or representative make sure they are aware and have given permission for themselves to act in this way. If none of the boxes are ticked, the information will be sent to the first named person.

Advocate – The Advocacy section applies solely to a young person and is to be completed if they have someone who will advocate for them during the process. This would be particularly important if the young person was not able to complete the appeal themselves or make decisions, often due to a lack of mental capacity. An advocate is usually someone impartial who can make the young person’s views and wishes heard (and may be a parent, guardian, family member, friend, or paid advocate).

Representative – If you are a parent and you are appealing on behalf of your child and feel that you need someone to represent you during the process then complete this section with their details. A representative will generally be someone who takes care of the process and any communication for you. A legally qualified representative may sign the form on your behalf if you have given them permission to do so.

You must let SEND Tribunal know in writing if you decide to stop using your representative or if the details of your representative change.

Section 6 – SENDIAS support at tribunal

Whilst it is not automatic that SENDIAS will be able to support you with an appeal, there may be times that we will. It is important to note that even though an advisor from SENDIAS may be supporting you with an appeal, we do not act as representatives or advocates and therefore section 6 should not be completed with our details.

If there is to be a face-to-face hearing (although RTA appeals are usually heard on papers alone) and an adviser from SENDIAS has confirmed that they will attend the hearing with you, their details can be included on the attendance form that you will receive once the appeal has been accepted and you receive your pack. The adviser will act as a non-legal representative (outlined in 11(5) in the EHC Tribunal Procedure Laws) and will accompany you to ensure your voice is heard. If an adviser is asked any questions directly by the judge, they will only answer from your perspective and not their own.

What to include in Section 2 of your form.

Lets remind ourselves again on the 2 legal tests that the LA should consider and therefore what you will be appealing about:

(a) the child or young person has or may have special educational needs, and

(b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

Legal test a): Whether the child or young person has or may have SEN

Legal test a) has 2 possible elements to consider. Your child may sit in one or both of these.

Describe any Special educational needs that the child or young person has

This section is where you explain any difficulties your child has in learning or accessing learning. These don’t have to be diagnosed but will usually have been identified, either by school or a professional.

Please refer to our guides on requesting an EHC Needs assessment for more detailed information.

SEN may include (but is not limited to):

  • ASC / ASC traits
  • ADHD
  • Social Communication difficulties 
  • Sensory processing issues
  • Speech and Language difficulties
  • Severe Anxiety
  • Literacy difficulties

If you wrote the initial request, then you may want to copy and paste straight from that into this section. If the school wrote the request, then you can ask the school to give you the information they sent.

It is helpful if you can list these under the 4 general categories (but it is not important so don’t worry if this makes things more complicated):

  1. Cognition & Learning
  2. Communication & Interaction
  3. Social, Emotional & Mental Health
  4. Sensory and/or Physical Difficulties

Use bullet points where possible to list your child’s learning needs, with brief explanation of what this looks like for your child or young person. For example:

  • Your child may have speech and language difficulties – but are they non-verbal, stutter, use pecs, sign language etc.
  • Your child or young person may struggle with anxiety, but does this mean they are not able to attend school, or if they do, do they use a time out card, have a quiet area, use other strategies or interventions.
Describe any SEN which you consider the child or young person may have which have not yet been fully identified

This section allows space to tell the tribunal about your concerns that there may be unidentified learning needs. This will usually be concerns that you as a parent carer have.

If you feel don’t have anything to write in this part just leave blank or write ‘N/A’

  • You may be waiting for a specialist assessment ie CAMHS or CDC etc. You can write here why your child was referred.
  • You may suspect such SEN as dyslexia, but school will not do the internal assessments.
  • Maybe your child presents differently in their learning setting and so all the professional evidence does not fully show what happens at home.

Where you can and appropriate, quote your child’s words about how they feel when trying to learn etc.

If these needs were fully identified and understood and therefore supported appropriately, the behaviours/ difficulties would possibly decrease.

If you haven’t included this in section 1, then list and explain any specialist services involved in advising you or the school. Also include whether any of these professionals will be further assessing your child soon and/ or creating assessment reports to advise on needs and provision. 

Examples:

  • *** struggles at school with the environment and social communication and internalises everything/masks in school – then has meltdowns at home.
  • *** is not disruptive at school but does not cope well with the classroom situation and learning styles. Not able to cope with eating lunch with interacting with peers/working in large groups etc.
  • ***lacks confidence/gets anxious around schoolwork – doesn’t understand/can’t start or finish the work. Certain lessons are a particular difficulty.
  • *** is socially isolated in school/cannot understand or return usual social cues. Rarely interacts with/takes part in whole class activities etc.
  • *** is very introverted/keeps emotions in at school/masks difficulties OR very verbal and disruptive in school. Finds it hard to interact with other children due to social and communication skills at a lower level as other children, takes things literally and personally which causes distress. Requires sensory breaks throughout the day.
  • *** struggles to cope with sensory/behaviour outside the house. Has ….  anxieties/phobias.
  • *** struggles to attend school as his/her/their anxiety is too much. They end up attacking / locking their room/ crying / vomiting etc.
  • We are concerned that *** struggles to eat / drink / got to the toilet etc. due to their dietary or medical needs
  • When *** comes out of school / home, he/she/they lash out in anger, cry, show rash behaviour which is uncontrollable, retreats into themselves etc.
Dos and Donts

Do explain –

  • How your child focuses, interacts, follows instructions etc
  • Worries about learning
  • Sensitivities
  • Struggles to manage behaviours and emotions
  • If they have been excluded or are on a part time timetable.

Don’t –

  • Include years and years of history, be concise and include only relevant history. However, it is helpful for the tribunal to know how long SEN has been suspected / confirmed and how long support has been in place for, so do include a concise timeline, if still relevant
  • Use the appeal as an opportunity to blame teachers, schools and services for lack of support or diagnosis. Keep to what has been identified (and/ or diagnosed) and what you suspect may still need to be identified and why.
Legal test b): Whether the child or young person may require an EHC plan

Explain why you think the child or young person may require an EHCP

The important word in this part is ‘may’.

If, despite the school doing all they can (their ‘best endeavours’ duty) a child young person’s needs are not fully identified, the support being given is not helping them meet the outcomes or make progress then the need for an EHC plan cannot be ruled out. If this is the case, then the LA should agree to do an EHC needs assessment.

This part of the appeal therefore will be to explain why you, or the school believe that an EHC plan may be required.

Dos and Donts

Don’t –

  • Use the appeal as an opportunity to blame teachers and schools for lack of support and therefore wanting the EHC plan to ‘make up’ for failure to support appropriately. Any failure of a school to fulfil their ‘best endeavours’ duty should be addressed through the school’s complaint process.

Do –

  • Keep it factual and concise as much as possible.
  • Refer to as much relevant evidence as you can (I.e. ‘the last 4 ILPs show that **** is not able to meet his outcomes despite having a designated 1:1 and having frequent reviews and support being changed over time. The costed provision map shows that £6,000 of support is already being given (and has been for the past 2 years) and it is therefore likely that extra support will be needed through the provision of an EHC plan)
Further Examples

Further examples of what to include in this section may be:

  • The setting needs to give more support than what they should be expected to provide from their own resources? Include Costed Provision map to show that the school are already providing £6,000 worth of support or reasons why this is not possible.
  • A totally different type of specialist support or environment is needed than that of a mainstream school. For example, staying in the same classroom, being taught in a small environment, having regular access to therapies, reduced sensory input etc. (EHC plans are required for special schools to be accessed). Use learning plans, communications, reports etc showing that the environment itself will not be able to fully support your child or young person.
  • They are on a part time timetable because school say your child / young person cannot cope. Include meeting notes, emails, support plans
  • They have been given regular fixed term exclusions or are now permanently excluded because they struggle with the rules or are constantly in fight, flight or freeze mode? Include communication / letters / reports that indicate this is due to their SEN and despite SEN Support being given, it is not changing things.
  • Support has been delayed to such a point that your child is now at crisis point and therefore no amount of ‘SEN Support’ is going to help them to the extent they need? Include learning plans, communications, reports showing recommendations
  • Your child is at a crucial transition stage and therefore more or different support will be needed at the next stage. (The LA do have a duty to be anticipatory in their considerations). Show that the provision offered by the new setting, will be insufficient to meet their needs, without extra financial support through the LA (by way of an EHC plan). Ask new setting to put explanation in writing.
  • An EHC needs assessment is required to fully identify the extent of the special educational needs and what type of SEN provision child requires to meet those needs appropriately, so they can access schooling and make progress educationally. Without this, no-one really knows how to support your child or young person appropriately, despite doing all they can. List all the services and professionals that school have approached to try and identify need, and what the outcome was from these. School should be able to able to provide you with this.
Submitting the Appeal

Once you have completed the form, you need to send (either by email or through the post) the form along with the mediation certificate, the Refusal to Assess notification letter from the LA and any evidence you have to support your case. Please only send copies of reports etc and keep the originals.

After you have submitted the appeal

Once you have submitted the form, certificate and evidence you will then have to wait a couple of weeks or so before you hear anything. Once Tribunal have looked at your submission, they will contact you (generally by email) and let you know if they are able to accept it.

Occasionally you may find that a crucial document is missing or something hasnt been completed on the form. This should be easily remedied and the appeal can then proceed.

If and once the appeal is accepted you will receive a Tribunal pack which gives you information about the appeal date, along with your unique reference number.

Attendees and witnesses

You will also receive a form from the tribunal asking you to notify them of anyone attending with you, as well as any witnesses you may be requesting. You can ask professionals to be your witness, (they may be able to provide a letter, report or witness statement rather than attend), which helps you to evidence your key points. You may, for example, ask that they clarify or expand the information they have provided as part of the assessment. If you ask them to attend the hearing and they decline your request, you can request a summons for them to attend – but before you do this be sure they intend to support your case!

Late Submissions

You will also receive a form from the tribunal asking you to notify them of anyone attending with you, as well as any witnesses you may be requesting. You can ask professionals to be your witness, (they may be able to provide a letter, report or witness statement rather than attend), which helps you to evidence your key points. You may, for example, ask that they clarify or expand the information they have provided as part of the assessment. If you ask them to attend the hearing and they decline your request, you can request a summons for them to attend – but before you do this be sure they intend to support your case!

Trial Bundle

At least 10 working days before your appeal is ‘heard’, the LA will send you the ‘trial bundle’. This will also be sent to the Tribunal. This is a page-numbered, set of the documents containing yours and the LA’s evidence as well as the required appeal form, certificate etc. This bundle is the same for all parties (Tribunal, LA and yourself). Take time to look through the bundle and acquaint yourself with where the different sections and documents are.

Further Resources

  • Send37 is guidance from the SEND Tribunal about how to complete the form as well as other useful information about the appeal. –
  • YouTube video help from another SENDIAS team which look at each section of the form namely: Section 2 & Section 11
  • IPSEA – refusal to assess pack   which has a detailed pack you can download that goes through step by step and has model template letters that you may need.
  • SENDIAS leaflet – Lodging an appeal with Tribunal