In this three-part series, we’ll cover each stage of the EHCP process. This second blog covers what to do if the Local Authority refuses to issue an EHCP. The other blogs cover:
- What can parents do if their child’s Special Educational Needs are not being met?
- What do you do when your child has been issued an EHCP, but you aren’t happy with it?
When a child or young person undergoes an Education, Health and Care (EHC) needs assessment, many families understandably assume that an Education, Health and Care Plan (EHCP) will follow. However, the legal framework in England is clear: an EHC needs assessment does not automatically result in an EHCP.
What is the Legal Test?
A Local Authority (LA) must issue an EHCP only if, “in the light of an EHC needs assessment, it is necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.” This threshold is found in section 37(1) of the Children and Families Act 2014, and it is the central test the LA must apply.
In simple terms, the LA must decide:
- Does the child or young person have special educational needs (SEN)?
- Is special educational provision (SEP) required that cannot reasonably be delivered without the legal framework of an EHCP?
Only if both conditions are met must an EHCP be issued.
So, when can a LA refuse to issue an EHCP?
A LA may lawfully refuse to issue an EHCP where:
- The needs can be met without an EHCP
If the assessment shows that a child’s SEN can be met from ordinarily available resources, additional school support, or existing provision, an EHCP may not be legally required.
Case law reinforces this principle. For example, in MC v Somerset County Council [2015], the Upper Tribunal confirmed that it can be lawful for an LA not to assess or issue a plan where the child already has access to the provision needed.
- Evidence does not demonstrate the need for statutory provision
If the professional advice gathered under Regulation 6 does not show that the child requires the level of specificity, enforceability, or multi‑agency support an EHCP provides, the LA may conclude the statutory threshold is not met.
- Needs are not of a complexity or severity requiring statutory oversight
The LA may conclude that while the child has SEN, their needs are not such that only an EHCP can secure the necessary provision.
What does the LA have to do when refusing to issue?
If the LA decides not to issue an EHCP after assessment, it must send a decision letter “as soon as practicable” and no later than 16 weeks from the request for assessment.
The letter must include:
- Reasons for refusal
- The right of appeal to the SEND Tribunal
- Mediation information
- Details of available support services (as set out in the SEND Regulations 2014 and reflected in internal guidance)
How can we help in this situation?
Families have a statutory right to appeal a refusal to issue. This is known as a Refusal to Issue appeal and allows the Tribunal to consider the evidence afresh.
A refusal to issue an EHCP can feel deeply frustrating. For many families, appealing the decision is the next step, particularly where they believe the assessment evidence does not support the LA’s conclusion. If you need assistance in understanding whether you have a case for an appeal, or making an appeal against a refusal to issue, then Fisher Jones Greenwood can assist you.
How FJG can help
Our dedicated family law team is here to offer compassionate advice and practical legal solutions. Whether you need help securing protective orders, navigating family home disputes, or ensuring the safety of your children, we are committed to supporting you through this challenging time.
Sam Howlett is a Solicitor in our Family team advising clients in Special Educational Needs law, and a broad range of family matters, including divorce, finances and children cases, as well as having experience in child protection issues and Social Services.
If you have any queries on the above subject, please do not hesitate to get in touch with Sam on 0845 543 5700 or complete our online enquiry form.