This is not one particular case study but a combination of some queries to the SENDASS helpline in relation to mediation, when the Local Authority has declined a request to carry out an EHC needs assessment and the parents have entered into mediation. 

1. “Parents having entered into mediation agreements that have not resolved the issue. 
2. The law surrounding whether a local authority should carry out an assessment. 
3. Hints for parents facing a similar situation. “Naming a school or different Local Authority school “.

EHCPs are legal documents and that means there are laws and regulations that govern all parts of the EHCP journey from assessment to issuing a plan.

A refusal to assess is when a request for an Education Health and Care needs assessment has been made and the Local Authority (LA) after consideration have decided that assessment is not necessary.

The LA will send out a letter explaining its decision and advise the parent/carer of the right to mediation and challenge. 

In the LA letter there is reference to the EHC assessment not meeting either a single or combination of 4 criteria. 

Whilst the LA may require that their specified criteria be met the only criteria in law is set out in the Children and Families Act 2014 section 36(8) and that is 

The local authority must secure an EHC needs assessment for the child or young person. 

if, after having regard to any views expressed and evidence submitted…, the authority is of the opinion that- 

(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. 

On the SEND 35a tribunal application it makes the above clear:

“Legal Test -the Tribunal will apply the legal test for deciding whether to secure an EHC needs assessment is contained in the Children and Families Act 2014 s. 36(8). The Tribunal will decide two questions in the appeal:

Question one: Whether the child or young person has or may have SEN?



Question two: Whether the child or young person may require an EHC plan?

Mediation must be considered before making an appeal to the Tribunal service (See factsheet 42) and many people take the opportunity to attend a mediation meeting to try and resolve this. 



The mediation is led by an independent mediator and the LA will attend. 

SENDIASS have received a number of enquiries following mediation – sometimes months after mediation to request advice on next steps. In several cases the parents had agreed to give time so that more information could be sought with a view to further consideration being made as to assessment. 

The problem with the seeking further information is that it can lead to delays and even the parent missing their right to appeal.

Once the LA have made a decision not to assess parents have 2 months from the date of that decision or one month from the mediation certificate – whichever is the greater. If parents fail to lodge an appeal in that time, they lose their right to appeal. Waiting for reports or further information can take a long time. 

The legal test for whether the LA should assess sets a low legal bar. At the recent SEN conference in London a tribunal judge remarked on this stating that if the two questions in the Children and Families Act section 36(8) are met (and remember might the child have a SEN? May provision in accordance with an EHCP need to be made) then the tribunal are likely to order an assessment is carried out.

There is no need to wait for Educational Psychology advice in order to determine whether an EHC assessment should be carried out. In fact, if the LA do decide to assess, the SEN regulation 6 states (d) that the LA must seek psychological advice and information from an educational psychologist.

The SENDIASS team are trained on all aspects of this and can help you understand how those laws and regulations may affect your child’s particular circumstances. We also have a number of guides and podcasts on our website (About SENDIASS Manchester ) that you are welcome to use.

Factsheet 42 Appeals - Refusal to assess

Contact the SENDIASS help line (0161 209 8356) or email sendiass@manchester.gov.uk if you would like to discuss this or receive further advice.

The SENDIASS website for parent/carers, YP’s and professionals has lots of relevant information with links, podcasts and factsheets. https://www.iasmanchester.org 

There are several ways parent/carers can gain information and knowledge. SENDIASS Manchester Information is shared verbally through volunteer parent groups:

1. Manchester Parent Carer Forum – For Parents and Carers of Children and Young People with Special Educational Needs and Disabilities (SEND) Aged 0-25 in Manchester , 
2. Manchester Parent Champions (on Facebook)
3. Manchester's Local Offer  
4. The SPACE Group | Help & Support Manchester           

SENDIASS also attends local drop-ins in North, Central and South Manchester.



SENDIASS is contactable on the 24-hour answerphone call back service 0161 209 8356 , email sendiass@manchester.gov.uk and via our contact page through the website Contact us (iasmanchester.org)