Resolving disagreements

If a request has been made to the Local Authority to carry out an EHC needs assessment and been refused, there are a number of steps that can be followed. 

The Legal Test

The first thing to consider is the legal test. This outlines the circumstances in which an EHC needs assessment is required to be carried out.

Section 36(8) of the Children and Families Act 2014, says:

“The local authority must secure an EHC needs assessment for the child or young person if, after having regard to any views expressed and evidence submitted…, the authority is of the opinion that-

(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.”

So, in order to challenge the conclusion the Local Authority have come to about the request, it’s important to understand which part of the test has not been met. This is relevant to whichever route you take to challenge the decision.

Informal resolution

Inofrmal resolution is basically talking through the decision with your EHC co-Ordinator (whose name is normally included as the signature on the letter you received). This option will help you to understand, if it’s not clear from the letter, why the request did not meet the legal test.

It will also give you the opportunity to clarify what information the LA used in making that decision. The SEN code of Practice says that where an EHCNA has been refused by the LA, they “should provide feedback collected during the process of considering  whether an EHCNA is necessary” - this would suggest that any reports from professionals or educational settings should be shared with you (even if you sent them in yourselves!) Did they receive and use everything that you/education setting expected them to?

You might also want to include other people in this conversation – this might include the educational setting or other professionals, especially if they are supportive of the request.

Mediation

A more formal route to discussing the refusal is through a mediation session. In Coventry, this is generally provided through KIDS mediation service and you will have to evidence that you have considered mediation if you subsequently want to appeal the decision to the SEND tribunal.

Mediation must be requested within 2 months of the date on the decision letter sent by the local authority, and they will talk through 2 possible options.

if you’ve had a discussion with the LA - and they have indicated they won’t be changing their decision - there may be little point then doing this again with a mediator. In this scenario, you can just ask for a mediation certificate, which they should send to you within 3 days. This can be used to lodge an appeal against the decision with the SEND tribunal.

If you’ve not had an informal discussion with your Co-ordinator, then mediation provides a formal structure and timescales for that to happen – the mediation must take place within 30 days of the mediator notifying the Local Authority. The local authority must take part in mediation if it is requested, but If for any reason this is not possible within 30 days, the mediator must provide a mediation certificate, again within 3 days. And if you reach an agreement to move forward with an assessment, this is legally binding.

SEND Tribunal

The final option, assuming you have not come to an agreement, is to appeal to the SEND tribunal. To appeal, you must have a mediation certificate and have completed a SEND35a form. These can be accessed from the gov.uk website and all appeals must be registered either:

• within 2 months of the letter you received from the LA, or
• within 30 days of the date on the mediation certificate (whichever is longer)

Tribunals for refusal to carry out an EHC needs assessment are generally considered on the paper evidence supplied, meaning you often don’t have to attend a tribunal. However, you will need to make sure that anything you want the tribunal to consider, is sent to them with the form. Their decision is always based upon the legal test outined above, so any evidence that shows how the test is met - school information, recommendations from professionals - is worth including. 

How long might this take?

The tribunal is currently receiving a large number of requests around SEND from across the country, and therefore, there are sometimes long waits for decisions (very often way over their target of 12 weeks). Therefore, if you are able to come to agreement through informal resolution or mediation, this may often be a quicker route.