Receiving a formal decision letter stating that your local authority (LA) has decided not to issue an Education, Health and Care plan is an incredibly difficult moment. You have already gone through the weeks of waiting and compiling information for the ehc needs assessment, only to be told that a plan isn’t necessary.
At SEND Family Guidance UK, we want you to know that this is one of the most common points of dispute in the SEND framework. It is not the end of your journey. The independent SEND Tribunal reverses a very high percentage of these decisions because local authorities often apply local administrative policies rather than the strict national law.
Understanding the Legal Test
When an assessment is completed, the local authority la must review all the professional advice to determine if a formal plan is required. Under Section 37(1) of the Children and Families Act 2014, the legal test for whether an LA must write a plan is straightforward:
Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan, the local authority must secure that an ehc plan is prepared.
The entire case turns on that one single word: necessary.
LAs often argue that a plan is not necessary because the school is already managing your child’s needs through standard “SEN Support.” However, the true test is whether your child will continue to receive the highly specific, quantified, and qualified special educational provision they need without the legal protection of a plan. If the school cannot guarantee that support consistently from its standard internal resources, then a plan is legally necessary.
Why Councils Decide Not to Issue an Education Health and Care Plan
When the local authority la reviews the documentation gathered during the ehc needs assessment, they may issue a refusal for several common reasons:
- Adequate Academic Progress: If the assessment shows your child is maintaining average grades, the council will frequently claim they do not need a plan. However, the families act 2014 states that health and care ehc needs must be looked at holistically. High anxiety, sensory overload, school refusal, and social vulnerability are all valid educational barriers, even if a child is intellectually bright.
- School Resource Allocation: Mainstream schools are expected to provide extra support from their own general SEN budget. If the council determines that your child’s required provisions can be fully met within the school’s standard core resources, they will state that the school can handle it without an EHCP.
- Lack of Quantified Professional Advice: Sometimes, the reports written by professionals during the assessment are too vague. If an educational psychologist writes that a child “would benefit from small group work” rather than stating “the child requires 1:1 intervention for 3 hours a week,” the LA will use that ambiguity to argue that standard school interventions are sufficient.
Your Options: Appealing a Refusal
If you choose to challenge the decision, you have a clear legal pathway. You have two months from the date on your decision letter to take action.
Step 1: Secure Your Mediation Milestone
Before you can lodge an official appeal, you must consider mediation. You need to contact the independent mediation service listed in your letter. You can choose to go ahead with a mediation meeting to see if the council will change their mind in light of new discussions, or you can simply ask for your mediation certificate. Once this certificate is issued, you have at least one month from its date to appeal, even if the original two-month deadline has passed.
Step 2: Register the Appeal
To challenge a refusal to issue, you must submit form SEND35 to the tribunal. Your arguments should show that the current support is failing or unstable.
Building Your Evidence Bundle
When appealing a refusal, the burden of proof rests on you to show why an ehc plan is prepared and maintained. You must use the information gathered during the ehc needs assessment to highlight why the current setup is insufficient:
- Highlight Unimplemented Recommendations: Look closely at the professional reports. If a speech therapist recommended a specific software or therapy program, check whether the school has actually been delivering it. If they haven’t because of staffing limits, you have clear proof that an EHCP is required to enforce it.
- Demonstrate a Lack of Progress: Provide school tracking data, IEPs, and school reports. If your child is stagnant or falling further behind despite the school using their best endeavors, the current standard of SEN support is clearly not working.
- Gather Resource Evidence: If the school can provide documentation or a statement showing that the level of staffing, equipment, or therapy time required exceeds what they can practically deploy from their standard resources, the tribunal will find it very difficult to argue that a plan isn’t necessary.
Conclusion: Stay Focused on the Law
A refusal to issue is an administrative decision made by a council, but the tribunal is an independent legal body. They do not look at local authority workload or policy constraints; they only care about what the individual child or young person requires to access their education safely and equitably.
At SEND Family Guidance UK, we know how exhausting this process can be. By focusing your arguments strictly on the legal definitions of necessity and using the professional reports to your advantage, you can build a robust case to ensure an order is made to issue an ehc plan.
