How do I appeal a Refusal to Assess decision?

You will firstly need to contact the mediation company, as detailed in the LA’s decision letter to ‘consider’ mediation.  Once you have talked to a mediator, you may decide to mediate or go directly to a tribunal.

Mediation- refusal to assess:

If you decide to go to mediation with the LA, the mediator will arrange a meeting, and the LA must meet with you within 30 days, or it’s deemed you have participated in mediation.  The mediator must issue you a mediation certificate, regardless of whether you continue to mediate or not.

Mediation is an opportunity for you to have an informal conversation with a Local Authority representative. You will be able to share with them why you feel that your child needs an EHC Needs Assessment.

The law states that:

An EHC Needs Assessment can be applied for by the young person, their parent/carer, or a school representative. The LA must secure a Needs Assessment if:

(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.

(c) (age 16+) They require additional time, in comparison to the majority of others of the same age who do not have SEN, to complete their education or training.

If you choose not to attend mediation and to instead go straight to the Tribunal, you will need to contact a mediator, and ask for a mediation certificate to be issued.

Once you have your mediation certificate, please download and complete this appeal form: SEND35A – Application for appeal – Refusal to secure an EHC Needs Assessment (publishing.service.gov.uk)

You must send this form (email is best) to the SEND Tribunal within 2 months of receiving the decision letter from the LA stating that they will not undertake an EHC Needs Assessment, or within 30 days of the date of the mediation certificate, whichever is later.  The boxes on the tribunal form do not expand, and therefore, it is best to complete a separate evidence sheet.

In the boxes on the appeal form, fill in:

• Your child’s name and date of birth, or yours if you are a young person;
• Your name and address;
• Details of anyone else who has parental responsibility
• The name of your LA and the date of the decision you’re appealing against or the date of the final EHC plan;
• Any special requirements to make the process accessible to you: say here if, for instance, you need documents translated, wheelchair access, a reader or a signer, or cannot manage negotiations over the phone.

Reasons for appeal

In your reasons for appeal, you should refer to this evidence to support your arguments (for example, if you are saying that your child has not made progress despite the support they currently receive, refer to school reports and/or annual review records which show this). Don’t worry if you don’t have everything ready to send straight away; you can submit more evidence after you’ve registered your appeal.

It is often easier to put these on a separate sheet and write ‘See separate sheet headed Reasons for Appeal’ in the box on the form.

This is where you set out why you think the LA’s decision is wrong. Try to put in everything you need to say, your full case, at this point.

As much as possible, you should try to get together any supporting evidence to submit with your appeal form.

You must send in enough information for the LA to be able to respond.

DO

• Keep it short and to the point.
• Separate your points into paragraphs.
• Number your paragraphs or organise them under headings.
• Refer to any evidence that backs up your points. (You can send more evidence later and you should say if you know there is evidence you don’t yet have but intend to send later.)
• Refer to the legal issues.

DON’T

•   Get bogged down on history. If there is a long history of difficulties between you and the LA let the evidence (e.g. letters between you and the LA) speak for itself.

What should I send with the form?

With the completed and signed form send the SEND Tribunal the following:

•   A copy of the letter the LA sent you that told you of its decision
•   Your mediation certificate
•   The evidence supporting your arguments
•   A list of all the documents enclosed with the application (it will be helpful to the SEND Tribunal if you put your evidence in chronological order, and then write out a list explaining what each document is).

Don’t send original documents; send photocopies or scans. Keep a copy of everything you send, including the form.

You will also find useful information on:

https://www.gov.uk/appeal-sen-statement-decision/appeal-to-the-tribunal

https://www.gov.uk/appeal-ehc-plan-decision

SEND Tribunal YouTube videos :-

https://www.gov.uk/courts-tribunals/first-tier-tribunal-special-educational-needs-and-disability

https://www.youtube.com/playlist?list=PLORVvk_w75PxU3wF72j3jLYqGqISyMhZ4