Council Blanket Policies on EHC Assessments Are Unlawful

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

"There is no diagnosis yet." "The school needs to spend its SEN budget first." "We need to see more cycles of the graduated approach." If your request for an EHC needs assessment was refused or discouraged with lines like these, this article is for you. Each of these sounds official, and each is presented as if it were the law. None of them is. There is exactly one legal test for whether a council must assess, and it is worth knowing it cold, because most refusals fall apart the moment they are held against it.

The only test the law allows

Section 36(8) has two limbs. The council must secure an EHC needs assessment if the child has or may have special educational needs and it may be necessary for special educational provision to be made in accordance with an EHC plan. Both limbs turn on the word may. Parliament set the threshold deliberately low, and lower than the test for issuing a plan, because the assessment exists to find out what a child needs. Everything below is a common council reason for refusal, and every one of them adds a requirement that Parliament chose not to include.

"Your child needs a diagnosis first"

Section 36(8) asks whether the child has or may have special educational needs. May have does the work: suspected autism, ADHD or dyslexia, referral letters and waiting list places are all evidence that a child may have needs. No statute and no regulation requires a diagnosis before an assessment, and paragraph 9.14 of the Code directs attention to attainment, progress, the nature of the needs and the child's development, not to labels. If this is your situation, our guide to requesting an assessment without a diagnosis covers it in depth. You can write back: "Section 36(8) requires only that my child may have special educational needs; the law does not require a diagnosis and I ask you to reconsider on that basis."

"The school must spend its SEN budget first"

There is no spending threshold anywhere in the Children and Families Act 2014 or the SEND Regulations 2014, not a set amount and not a rule that school funding must be exhausted first. What paragraph 9.14 actually asks is whether the school took relevant and purposeful action and whether that action enabled progress, which is an evidence question, not an accounting one. You can write back: "No provision of the Act or Regulations conditions an assessment on school spending; please identify the statutory basis for this requirement or reconsider the decision."

"An educational psychologist must be involved before we assess"

This one turns the process inside out. Educational psychologist advice is part of the assessment itself: regulation 6(1) of the SEND Regulations 2014 requires the council to seek advice from an educational psychologist, along with the parent, the school, health, social care and any person the parent reasonably requests, during the assessment. Requiring EP involvement as a precondition demands the output of the process before the process is allowed to start. You can write back: "Educational psychologist advice is obtained during an assessment under regulation 6(1); it is not a lawful precondition for deciding whether to assess."

"You must complete more cycles of the graduated approach"

The graduated approach of assess, plan, do and review is good practice at SEN support level, but no law sets a required number of cycles before an assessment request can succeed. Paragraph 9.14 asks whether the school took relevant and purposeful action and what came of it, and notably it also asks for evidence that where progress was made, it happened only because of support over and above what is usually provided. In other words, extra support that is barely holding things together is a reason to assess, not a reason to wait. You can write back: "Paragraph 9.14 treats the school's action as evidence to weigh, not a gate; no provision requires completed cycles before an assessment."

"There is a waiting list for assessment requests"

Regulation 5(1) of the SEND Regulations 2014 requires the council to notify you of its decision within 6 weeks of receiving the request. A queue that delays even considering requests is incompatible with that deadline. Demand is real, but the law does not bend to it: the timescale is fixed in the regulation. You can write back: "Please confirm the date my request was received and confirm that your decision will be notified within 6 weeks as regulation 5(1) requires."

"Your child is coping academically"

Grades are one strand of evidence, not the whole test. Paragraph 9.14 requires particular attention to the child's physical, emotional and social development and health needs alongside academic attainment and rate of progress. A child who holds it together in lessons and falls apart at the school gate, or whose attendance is collapsing while their book work looks fine, is squarely within what the Code says must be considered. You can write back: "Paragraph 9.14 requires consideration of emotional and social development and health needs, not academic attainment alone; the decision does not engage with that evidence."

"Your request does not meet our local criteria"

Paragraph 9.16 of the Code accepts that a council may have local criteria, but in the same breath says it must be prepared to depart from them where there is a compelling reason. Criteria applied as a blanket rule, with no willingness to look at the individual child, replace the statutory test with a local one, and only Parliament writes the test. Paragraph 9.12 adds that particular attention must be given to the views of the child and the parent, which a tick-box criteria sheet cannot do. You can write back: "Paragraph 9.16 requires you to be prepared to depart from local criteria; please show how my child's individual circumstances were considered against section 36(8) rather than against the criteria alone."

What to do with a refusal built on these reasons

First, write back. Quote section 36(8), identify each reason that forms no part of the test and ask the council to reconsider. Keep it short, factual and in writing. Second, protect your appeal at the same time, because a reconsideration request does not pause the deadline. Contact a mediation adviser for a certificate (you only have to consider mediation, not attend) and note your date: 2 months from the decision letter or 1 month from the certificate, whichever is later, on form SEND35A. There is no fee, the appeal is normally decided on paper and in 2024/25, 99% of decided SEND appeals went in the family's favour. Our guides on what to do after a refusal and the SEND35A appeal take it from here.

One last thing, because it needs saying plainly. If your request was refused on grounds like these, you did not fail to make a good enough case. The decision failed to apply the law. That is fixable, and the fixing process is free.

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