The council refused to even assess my child
The most common refusal there is. The Tribunal that would hear your appeal is independent of the council that refused you and applies the statutory test, not the council's own threshold — and on a refusal to assess that gap is the whole argument, because the bar the law sets is deliberately low.
Phrases to look for on your letter: “we have decided not to carry out an EHC needs assessment” · “does not require an EHC needs assessment”
Why this is an appealable position
The law says the council MUST assess where your child HAS or MAY HAVE special educational needs, and it MAY BE necessary for provision through a plan — 'may', twice. That is a deliberately low threshold: you don't have to prove your child needs a plan, only that they might. Councils routinely refuse using criteria much stricter than this (progress measures, cost thresholds, blanket policies) — all of which the Tribunal ignores, because it applies the legal test afresh.
Your position is strongest when
- Your child has a diagnosis or the school has had them on SEN support
- SEN support reviews show little or no progress against targets
- School has asked for outside help (educational psychologist, specialist teams)
- Attendance is falling or school refusal is emerging
Evidence to gather now
- The refusal letter (its date starts your 2-month clock)
- SEN support plans and review records
- Any diagnosis or professional reports
- Attendance record
- Your own dated notes of incidents and struggles
Your first move
Contact a mediation adviser (you need the certificate, not mediation itself), then appeal to the SEND Tribunal on form SEND35A — the refusal-to-assess form, not SEND35 — within 2 months of the decision letter, or 1 month from the mediation certificate if that is later. SEND35A has no box for your reasons: they go in as a separate attached document. You can file it free on paper or through GOV.UK's online service. Or use our builder to draft your grounds first.
Build my SEND appeal pack — £11.99Answer plain-English questions about the decision and your child, and get Tribunal-ready grounds in minutes — matched to the right HMCTS form, SEND35 or SEND35A.
Common questions
The council says he's making expected progress, so no assessment. Is that the law?
No. Academic progress is not the legal test — needs can be social, emotional or communication-based, and a child can hit targets while falling apart. The Tribunal applies s.36(8), not the council's progress criteria.
Is appealing worth the stress?
Only you can weigh that. What the published figures show is how few refusals are ever tested: most first-stage refusals are not appealed at all — across the councils with DfE figures, 5,062 of 43,282 reached the Tribunal. That is precisely what makes refusing cheap for councils. The Tribunal is independent of the council and decides on the evidence before it.
How does your council compare?
Refusal rates vary wildly between councils — England's average is 26.4%, but some councils refuse over 60% of assessment requests. Look up your council's refusal rate — it's context the Tribunal never sees but you should know, and free specialist advice is available from IPSEA (ipsea.org.uk).
Where these rules come from: Children and Families Act 2014, Part 3 · SEND Regulations 2014.
Sources named above: DfE, Education, health and care plans (Explore Education Statistics)