If your local authority refuses to carry out an Education, Health & Care Needs Assessment (“EHCNA”) for your child or young person, you or your young person have the right to appeal this decision to the First Tier Tribunal SEND (“The Tribunal”). The following steps will guide you through the process.
Understand the Decision: Before appealing, it’s important to understand why the local authority reached its decision. Often this is not obvious from the refusal letter, and it is not unusual for the local authority to apply their own local policy rather than the law, so it is always a good idea to find out the precise reason(s) for the refusal. See the blog post on EHCNA's linked to above for further information on the legal test and the factors the local authority should have considered.
Consider Mediation: Before appealing, you must consider mediation and obtain a mediation certificate. This doesn’t mean you actually have to go to mediation, however. If, having thought about it, you decide that you don’t want to mediate, simply contact a mediation adviser within two months of the date that the local authority’s decision was sent to you, and you will be sent the mediation certificate. If you do decide to mediate but it does not resolve the issue, you should automatically be issued a mediation certificate.
Submit the Appeal: An appeal to the Tribunal must be submitted within two months of receiving the local authority’s final decision letter or one month of receiving the mediation certificate; whichever is later. The Tribunal operates entirely online (including hearings) and whilst you can send in paper documents for the appeal, the expectation is that everything will be done electronically.
Hearing on the Papers Appeals against Refusal to Assess decisions are almost always heard on the papers. This means that the Tribunal will decide the appeal by looking at and considering all of the written that evidence that you and the local authority have submitted to it and you won’t be required to attend a hearing in person.
Registration and Response Once your appeal has been sent to the Tribunal it will be registered, which usually takes about four weeks. You will then receive a registration letter with details of the timetable for the appeal and the window in which the appeal will be decided. The local authority has six weeks after the appeal has been registered to file their response to the appeal, and at this point many appeals end as the local authority simply concedes that an EHCNA should be carried out.
Evidence Where the local authority continues to oppose the appeal, both parties must follow the directions set down by the Tribunal, including about when further evidence must be submitted. It is important to obtain and send in any evidence as soon as you can and not wait for the final evidence deadline. Anything you send to the Tribunal you must also send to the local authority. The local authority can concede the appeal at any time. If they do this after they have submitted their response, a consent order must be sent to the Tribunal to end the appeal.
Appealing a Refusal to Assess can be a daunting process but it needn’t be complex or difficult. With the right advice and support, you can navigate it confidently and successfully; taking you a step closer to securing the right education for your child and the education that is your child’s right.
If your child has been refused an EHCNA and you are consdiering an appeal, SEND Advocacy can provide advice and support. If you need someone in your corner to help you secure the education your child or young person deserves, contact us today.
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