How to Appeal a Refusal to Assess: SEND35A Step by Step
The council has refused to carry out an EHC needs assessment and you have decided to challenge it. Good news first: this is one of the most parent-friendly appeal processes in the country. There is no fee, there is normally no hearing and the form was written to be completed without a lawyer. In 2024/25, 99% of SEND appeals that reached a decision went in the family's favour. This guide takes you through the whole process in order: the mediation certificate, the deadline maths, form SEND35A itself, writing grounds that actually answer the council's reasons and what happens once your appeal is registered.
Step 1: contact a mediation adviser and get your certificate
You cannot lodge the appeal until you have contacted a mediation adviser and obtained a mediation certificate. This trips parents up because it sounds like a bigger hurdle than it is. The law only requires you to consider mediation. You are not required to attend a session, and the adviser must issue your certificate whether you attend or not. If you do decide to give mediation a try, attending is free, and some councils change their position once an independent mediator is involved.
The council's refusal letter should contain the mediation service's contact details, because regulation 5(3) of the SEND Regulations 2014 requires the council to tell you about mediation and disagreement resolution alongside your appeal rights. Ring or email the adviser as soon as you have decided to challenge the decision. The conversation is short, and the date on the certificate matters for your deadline, as the next step explains.
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EHCPhelp turns what you tell us about your child into the formal documents councils respond to. See a section written from your own answers, completely free.
See a free section →Step 2: do the deadline maths
The deadline for a refusal-to-assess appeal is one of two dates, and you get the later of them:
- 2 months from the date on the council's decision letter, or
- 1 month from the date on your mediation certificate.
Whichever is later applies. In practice this means that if you contact the mediation adviser towards the end of the 2 month window, the certificate can give you extra time, because the 1 month clock runs from the certificate rather than the letter. Do not rely on that as a plan, though. If an appeal arrives late, the tribunal requires written reasons for the delay or it returns the papers, and nobody wants their appeal bouncing back over a date. Work out both dates the day the refusal arrives, write them somewhere you will see them and aim to file with room to spare.
Step 3: fill in form SEND35A
The appeal goes to the First-tier Tribunal (SEND) on form SEND35A. Check the form number twice: SEND35 without the A is a different form, used for appeals about decisions on plans, such as what a plan contains. For a refusal to carry out an assessment, you want SEND35A.
The form asks you to identify the decision you are appealing, which is the council's refusal to secure an EHC needs assessment, and the date of the decision letter. It then asks for your grounds of appeal, which is where the real work happens and which step 4 covers. Finally, gather your enclosures:
- the council's refusal letter
- your mediation certificate
- your evidence: school records, attendance figures, referral and waiting list letters, SEN support plans and reviews, your own parental views and any professional or private reports you hold
Under regulation 7(b) of the SEND Regulations 2014, the council must consider information provided by or at the request of the parent, including private reports, so everything you gathered for the original request belongs here too, along with anything new since. Our guide to gathering EHCP evidence covers what tends to carry weight.
Step 4: write grounds that answer each council reason
Grounds of appeal are not an essay about how hard the last year has been, however true that is. The strongest grounds are structured like a checklist: take each reason the council gave for refusing, one at a time, and show that it either misapplies the law or ignores the evidence.
The law you are holding each reason against is section 36(8) of the Children and Families Act 2014. The council must secure an assessment if the child has or may have special educational needs and it may be necessary for special educational provision to be made through an EHC plan. Both limbs say may, which is a deliberately low threshold, lower than the test for issuing a plan. So for each council reason, ask: does this reason appear anywhere in section 36(8)? Very often it does not. A demand for a diagnosis, a requirement to complete more cycles of the graduated approach, a rule about school spending or a reliance on local criteria are not part of the statutory test. Our article on unlawful blanket policies goes through each of these in detail.
Then bring in the SEND Code of Practice 2015. Paragraph 9.14 tells councils to pay particular attention to academic attainment and rate of progress, the nature, extent and context of the child's needs, whether the school took relevant and purposeful action and whether it enabled progress, evidence that progress happened only because of support over and above usual provision and the child's physical, emotional and social development and health needs. If the council refused because your child is "coping academically", point to 9.14's full evidential range. If the refusal leans on local criteria, cite paragraph 9.16: a council may have criteria but must be prepared to depart from them where there is a compelling reason. Close each ground with your evidence: dates, frequencies and documents, not adjectives.
Step 5: what happens after you send it
Once the tribunal receives a valid appeal, it registers it and the council is notified and given the chance to respond. Two things are worth knowing about this stage. First, councils often concede at this point, agreeing to assess rather than defend the refusal, so a registered appeal may end well before any decision. Second, if the appeal does proceed, refusal-to-assess appeals are normally decided on the papers. A tribunal panel reads your form, your grounds and your evidence alongside the council's response and makes its decision. There is no fee at any stage and nobody cross-examines you. For an honest look at how these appeals tend to go, see our breakdown of SEND tribunal success rates.
However the process ends, remember what it is for. The tribunal exists precisely because councils get these decisions wrong, and the numbers show they get them wrong often. Preparing an appeal is work, but it is structured, paper-based work that thousands of parents do, and every document you prepared for the original request counts towards it.
Been refused? Check the letter free first
Paste the council's refusal letter into the free EHCPhelp Refusal Letter Analyser and see which of their reasons do not hold up against section 36(8). If you decide to challenge, the Refusal Appeal Pack (£149.99) turns those findings into full personalised grounds of appeal plus a SEND35A and mediation walkthrough.
Frequently asked questions
Do I have to attend mediation before I can appeal?
No. You must contact a mediation adviser and obtain a mediation certificate before appealing, but the law only requires you to consider mediation, not to attend it. The adviser issues your certificate either way. If you do choose to attend a mediation session, it is free.
Which form do I use to appeal a refusal to assess?
Form SEND35A, which is specifically for appeals against a refusal to secure an EHC needs assessment. Do not confuse it with SEND35, which is a different form used for appeals about decisions on plans, such as their contents. There is no fee for a SEND appeal.
What happens if my appeal is late?
The tribunal requires written reasons for the delay or it returns the papers. The deadline is 2 months from the date on the decision letter or 1 month from the date on your mediation certificate, whichever is later, so contact the mediation adviser early and file well inside the window.
Do I need a solicitor to appeal?
There is no requirement to have one and there is no fee. Refusal-to-assess appeals are normally decided on the papers, so the work is in writing clear grounds and organising your evidence rather than speaking at a hearing. In 2024/25, 99% of decided SEND appeals went in the family's favour.