Assessed but Refused an EHCP: What Now

Updated 4 July 2026 · Legal citations verified against legislation.gov.uk

You fought for the assessment. The council agreed, professionals saw your child, reports were written, and then the letter arrived: we have decided not to issue an EHC plan. After months of waiting it feels like the door was opened just to be closed in your face. Take a breath, because this refusal is one of the most appealable decisions in the whole system, and this time you are not arguing from scratch. The council has just built a file of professional evidence about your child, and you are entitled to use it.

The 16 week decision point

The refusal you received sits at a fixed point in the legal timeline. Under regulation 10 of the SEND Regulations 2014, if the council decides after an assessment that a plan is not necessary, it must tell you within 16 weeks of your original request. Had the decision gone the other way, the final plan would have been due within 20 weeks (regulation 13(2)).

Check the dates on your paperwork. A refusal that arrives well past 16 weeks does not become valid or invalid because of lateness alone, but chronic delay is worth recording, and every date matters once an appeal timetable starts running.

Why councils refuse after a successful assessment

It seems contradictory: the council accepted your child might need a plan, assessed, then said no. The explanation is that the law contains two different tests. The assessment test in section 36(8) is deliberately low: the child may have special educational needs and a plan may be necessary. The plan test in section 37 is higher: where the assessment shows that a plan is necessary, the council must issue and maintain one.

So a refusal to issue is the council saying the assessment showed your child's needs can be met from the school's ordinary resources without a plan. Sometimes that conclusion is honest. Often it sits awkwardly next to the professional advice, which describes significant needs and detailed provision, while the decision letter waves at "support available at SEN support level". When the reports and the conclusion do not match, that gap is exactly what a tribunal examines.

Your appeal right: section 51(2)(b)

Section 51(2)(b) of the Children and Families Act 2014 gives you the right to appeal a refusal to issue a plan following an assessment to the First-tier Tribunal (SEND). The tribunal does not review the council's reasoning politely from a distance; it decides for itself, on the evidence, whether a plan is necessary. There is no fee. In 2024/25, 99% of SEND appeals that tribunals decided went in the family's favour, a figure that covers decided appeals rather than every appeal registered, but which still tells you how rarely these decisions survive independent scrutiny. Our complete SEND Tribunal guide covers the wider process.

How this appeal differs from a refusal to assess

If you have been through a refusal to assess before, this appeal will feel different in one crucial way: the evidence now exists. In a refusal to assess appeal, parents argue mostly from school records and their own observations. In a refusal to issue appeal, the council itself has just gathered professional advice about your child, because regulation 6(1) required it to seek advice from:

• you, the parent,
• the school or setting,
• an educational psychologist,
• health professionals,
• social care,
• anyone else you reasonably requested, and from Year 9 onwards advice about preparation for adulthood.

Those reports were written to answer precisely the questions the tribunal will ask: what are this child's needs and what provision do they require. Make sure you hold every single one. If any report is missing from what the council sent you, ask for it in writing. Under regulation 7(b) the council also had to consider information you provided, including private reports, so those belong in the bundle too.

Building the appeal from the advice reports

The heart of a refusal to issue appeal is usually a comparison exercise:

1. List what the professionals found. Go through each regulation 6 advice report and note every identified need and every piece of recommended provision, with page references.
2. List what the refusal letter claims. Typically that the school can meet needs from its ordinary resources.
3. Show the gap. Where the educational psychologist describes structured, specialist or frequent support, ask the obvious question: can this genuinely be delivered without a plan that guarantees it? Remember that only provision in section F of a plan is legally enforceable against the council under section 42. Support without a plan depends on the school's goodwill and budget each year.
4. Add what the school actually delivers. If the school's own advice says it is struggling to meet needs, or the promised support has repeatedly not materialised, say so with dates.

The process: certificate, form, deadline

A refusal to issue appeal needs a mediation certificate first. You only have to consider mediation by speaking to a mediation adviser; attending is optional and free, as our mediation guide explains. The form is SEND35, the form for appeals about a plan; SEND35A is only for refusal to assess. Enclose the decision letter, the certificate, your grounds and your evidence. The deadline is 2 months from the decision letter or 1 month from the certificate, whichever is later. Unlike refusal to assess appeals, which are normally decided on the papers, an appeal about whether a plan should exist may involve a hearing, usually by video or in person.

Frequently asked questions