REFUSAL TO ASSESS (RTA)
If the Local Authority have made a decision not to carry out an EHC Needs Assessment and you do not agree with this, you have the right to appeal to The First -tier Tribunal (Special Educational Needs and Disability).
To be able to lodge an appeal you MUST have a mediation certificate, and you MUST lodge the appeal within TWO months of receiving the decision letter from the Local Authority or ONE month from the date of the mediation certificate, whichever is later.
The decision letter MUST provide your right to appeal and who you can contact for information and advice.
To lodge the appeal, you need to have the following:
- The letter of the decision of refusal to assess for an EHC Needs Assessment.
- Mediation certificate.
- The EHC Needs Assessment request and any other evidence you feel relevant.
If the decision concerns a child, it is the parent who has the right of appeal.
If the decision concerns a young person, then it is the young person who has the right of appeal. Where a young person cannot make a particular decision for themselves, because they ‘lack capacity’ under the Mental Capacity Act 2005, their parent or another representative can appeal on their behalf.
When the local authority determines whether to agree an EHC Needs Assessment, it is based on two tests from the Children’s and Families Act 2014 (section 36)
may have special educational needs
and
may require special educational provision to such that requires an EHCP.
To show the legal test has been met, you can argue that:
- A full EHCNA is the only way to find out what the difficulties are and what help is needed.
- The education setting may not be able to supply all the educational help needed unless it receives extra help from the LA, or
- The education setting has provided all the help that could be expected but not enough progress has been made even with all the extra help.
You will need to set out your reasons for appeal in section 2 of the SEND 35a appeal form.
This asks two questions, which reflect the two parts of the legal test in section 36(8) CAFA 2014.
Q 1: Does your child or young person have SEN?
Describe any special educational needs that your child or young person has,
and
Describe any special educational needs which your child or young person may have, which have not yet been fully identified.
Q 2: Might your child or young person need an EHCP?
Explain why you think your child or young person may need an EHCP.
You will need to show you / your child has or may have SEN and may need provision through an EHCP in order to get the right educational help.
A full EHC Needs Assessment is the only way to gain a full understanding of SEN and what support is needed.
Advice is needed from different professionals to gain a full understanding. This means you will need to show that there is not currently enough understanding of SEN and / or provision required and therefore on a full investigation can help everyone understand the full extent of difficulties and decide what help / support is needed.
This on its own may not be enough to persuade the Tribunal, you may also need to show that the only way your child's needs can be met is through an EHCP.
The education setting may not be able to supply all the educational help needed unless it receives extra help from the LA,
or
The education setting has provided all the help that could be expected but not enough progress has been made even with all the extra help.
You will need to show that your child or young person’s needs may not be met without an EHCP.
It is important to remember, you do not have to prove that an EHCP is definitely necessary, only that it may be necessary.
When would an EHCP be “necessary”?
Mainstream early years providers, schools and colleges (other than fully independent settings) have duties and resources to meet the needs of most children and young people with SEN. This is known as SEN Support.
An EHCP would be necessary if your child or young person can’t get the special educational provision needed through SEN Support.
FILLING OUT THE SEND 35 FORM
The SEND Appeal forms are online PDF’s and unless you have specific software on your laptop, you are unable to save and then return to the form.
We recommend using a separate word document, you can either copy and paste into the boxes on the form, or if there is not enough room (the boxes do not expand) you can type in the boxes, “please see separate sheet” in the boxes and set your reasons out properly in a separate document. send these as attachments with the appeal form.
There is now an online form for all appeals you need all your paperwork ready to upload to be able to go through the form.
YOUR REASONS FOR APPEAL ARE WHERE YOU SET OUT WHY YOU THINK THE LAs DECISION IS WRONG
- Make a note of your appeal deadline as soon as you receive it
- Keep it short and to the point, answers clear, organised, concise, and to the point
- Do not overwhelm the SEND Tribunal with irrelevant evidence and history. If there is a long history of difficulties between you and the LA, let the evidence (for example, letters between you and the LA) speak for itself.
- Back up your points with evidence. Include evidence from professional reports, statements about needs and provision, and the school you want.
- Refer to the legal issues and your own evidence documents for each of your points
- Do not worry if you do not have all your evidence ready to send it with the appeal form. You can continue to submit evidence after your appeal has been registered with the SEND Tribunal
If you can do so, it is best to send in all your written evidence with your appeal form.
That way, you have the main points of your case set out with supporting evidence right from the start, this then allows the LA to respond properly.
There will be a ‘final evidence deadline,’ so if you think you need to send in evidence later in the process, you can tell the SEND Tribunal what you expect to get and when by. Do make sure to submit everything by the deadline you are given.
- Separate your points into paragraphs
- Number your paragraphs or organise them under headings
- Ensure you fill in the form correctly
- Make copies of your bundle and keep the originals for yourself.
WHEN YOU LODGE THE APPEAL, YOU WILL NEED...
- A signed and dated letter from the LA giving you the right of appeal
- Mediation certificate – not required for Section I only appeals
- Completed SEND 35 form, with your reasons for making the appeal
- Final EHCP and all the documents listed in Section K
- Evidence - To support your appeal (you can add to this later up until the Tribunal’s evidence deadline so don’t let this delay submitting your appeal.
- A list of all the documents - All of the documents enclosed with the application (it will be helpful to the Tribunal if you can put your evidence in chronological order and then write out a list explaining what each document is.
On the papers’ hearings
This means the SEND Tribunal will decide the appeal by looking at and considering all the written evidence you and the LA have submitted.
For Refusal to Assess (RTA) there will often be no physical hearing and are often heard this way.
However, both parties need to agree to the appeal being heard ‘on the papers. If one party does not agree to it, an oral hearing must be held.
If you are having difficulty getting information which is relevant to your case from the LA, you can write to the SEND Tribunal explaining what it is and ask the SEND Tribunal for a ‘direction’ to make the LA release it.
You should use the Request for Changes form to do this.
Unless the LA has a good reason for not providing the information the SEND Tribunal will order the LA to release it.
Section 2 of the SEND 35A form, is short and straightforward.
FREQUENT REASONS FOR REFUSAL TO ASSESS
EHCP CHECKLIST
Make a note of your appeal deadline.
Signed LA decision letter
Signed mediation certificate
Complete SEND35A appeal form with your reasons
The EHCP and all documents listed in Section K
Evidence to support the appeal
Add a chronological list of all the documents enclosed
Make scans/photocopies of your appeal, keep the originals for your records
Register your appeal: submit a COPY of your appeal to the SEND Tribunal
Submit any further evidence that is relevant up until the evidence deadline
Where to submit your appeal -
Do not send original documents to the Tribunal.
Use photocopies or scanned documents and keep the originals.
Do not send photos of reports as they can easily cause your report to exceed the Tribunal’s 14MB attachment data limit and may not be received
Email send@justice.gov.uk write in the subject line of your email: ‘New Appeal’.
Telephone number to ask questions or to confirm receipt: 0300 303 5857
