A refusal to issue EHCP appeal is about one question: after an EHC needs assessment, is it necessary for special educational provision to be made for the child or young person through an EHCP? The local authority may say the school or college can meet needs through SEN Support, but the appeal should focus on the provision actually required and whether it is likely to be delivered without a statutory plan.
The numbers suggest this is a growing practical issue. In 2024, 6,400 EHC needs assessments ended with a decision not to issue a plan, and 1,400 of those decisions went to tribunal. The overall SEND Tribunal data shows that, where SEN appeals are decided, 99% are in favour of appellants, but that headline figure should not be treated as a refusal-to-issue-specific success rate.
A refusal to issue decision happens after an EHC needs assessment has already taken place. This is different from a refusal to assess.
In a refusal to assess case, the argument is about whether the local authority should carry out the assessment at all. In a refusal to issue case, the assessment has already happened. The local authority has gathered advice and then decided that an EHCP is not necessary.
This distinction matters because the legal test is different. By this stage, the key dispute is usually not whether the child or young person has special educational needs. The authority has usually accepted enough concern to carry out the assessment. The real question is whether the special educational provision required needs the structure, enforceability and coordination of an EHCP.
Families often receive confusing letters at this stage. Some letters are short, generic or procedural. Some say that needs can be met from the resources normally available to the school. Some refer to an internal panel or threshold. Some point to a non-statutory plan or resource plan. The important thing is to identify the actual decision: has the authority refused to issue an EHCP after assessment? If so, that is usually an appealable decision. (gov.uk)
The available data suggests refusal to issue is becoming more visible because the whole EHCP system is growing, more assessments are happening, and a slightly lower proportion of assessments are resulting in plans.
DfE statistics show that 105,300 EHC needs assessments were carried out in 2024, a 15.7% increase from 2023. The decision was to issue an EHCP in 93.6% of assessments, slightly lower than 94.4% in 2023. In practical terms, 6,400 assessments ended with a decision not to issue a plan. (gov.uk)
Refusal to issue disputes are also translating into mediation and tribunal. In 2024, there were 2,100 mediations about refusal to issue, representing 33.2% of assessments where the decision was not to issue a plan. There were also 1,400 tribunals about refusal to issue, representing 22.6% of those refusal decisions. (gov.uk)
That is a significant appeal rate. It means that more than one in five refusal-to-issue decisions led to a tribunal appeal in 2024. Even where an appeal is not brought, some families may still disagree but lack the time, knowledge, energy or resources to challenge the decision.
Recent coverage has focused on the rising number of SEND appeals, the cost of disputes and whether local authorities are using refusal decisions as a way of controlling access to statutory support. The strongest evidence is not that every individual refusal is deliberately strategic, but that the wider system is now highly adversarial and financially pressured. (nao.org.uk)
The Guardian reported in December 2024 that more than £100 million had been spent in England on failed efforts to block SEND support, after councils won only a very small proportion of tribunal cases in the period analysed. The Public Accounts Committee has also said the Department for Education should learn from tribunal decisions and examine whether the process favours families with the means and knowledge to navigate it. (parliament.uk)
There is also political concern about the future of EHCPs. The 2026 SEND reform consultation proposes more support in mainstream settings, Individual Support Plans and Specialist Provision Packages. Government says the current system remains in place until new legislation, but families understandably worry that local decision-making is already being influenced by the direction of reform. (gov.uk)
There is rarely one single reason. Several pressures may be operating at once.
First, local authorities may accept that a child has SEND but argue that provision can be delivered through ordinary SEN Support. This is the most common practical argument: the assessment identifies needs, but the authority says the school or college can meet them without a statutory plan.
Second, the assessment advice may be weak or unspecific. If professional reports describe needs but do not clearly specify provision, the local authority may conclude there is no need for an EHCP. Families may then need to go back to the evidence and ask whether every identified need has matching provision.
Third, some cases appear to be affected by local systems, panels, templates or thresholds. A refusal letter may rely on local criteria rather than the statutory test. Policy can guide local decision-making, but it cannot replace the legal test. (gov.uk)
Fourth, there is wider financial pressure. The Public Accounts Committee has reported that high-needs pressures are significant, that many families are appealing SEN decisions, and that almost all decided appeals favour families. Safety Valve agreements have now closed, but the high-needs deficit context remains, and local authorities are moving into new reform and stability-grant arrangements.
Finally, the current SEND reform agenda is changing the background conversation. Government proposals emphasise earlier support in mainstream settings, Individual Support Plans and Specialist Provision Packages. Those proposals are not yet the law, but families understandably worry that local decision-making is already being shaped by a desire to reduce reliance on EHCPs.
The legal test is found in section 37(1) of the Children and Families Act 2014. In plain English, if, in light of the EHC needs assessment, it is necessary for special educational provision to be made through an EHCP, the local authority must prepare and maintain one. (legislation.gov.uk)
The word “necessary” is the central issue. It does not mean the plan must be absolutely indispensable. It also does not mean merely useful. The tribunal looks at the child or young person’s individual needs, the provision required, and whether that provision is likely to be made without an EHCP.
This means families should avoid getting pulled into a vague debate about whether the child is “severe enough” or whether the school has spent a particular amount. The question is more practical:
What special educational provision is required, and can it realistically and reliably be made without a statutory plan?
A refusal to issue appeal may succeed where the assessment shows that the provision required is beyond what the setting can reasonably arrange from its ordinary resources, or where the setting theoretically could provide the support but in reality has not done so and the child is not making expected progress.
The uploaded refusal-to-issue module makes the same point: the dispute should centre on whether, after assessment, it is necessary for the special educational provision required to be set out in an EHCP, and whether the local authority has applied the correct legal test rather than local policy.
A refusal to issue EHCP appeal should be evidence-led.
The starting point is the assessment advice. Families should review the educational psychology advice, school or college advice, health advice, social care advice, parent or young person views, and any specialist reports. Highlight the needs identified and then highlight the provision recommended. If there is a need without corresponding provision, that gap matters.
Useful evidence may include:
The best evidence often explains what has already been tried, why it has not been enough, and what provision is now required. It is also useful to explain whether the school or college agrees that an EHCP is needed. A supportive school is helpful, but lack of school support does not mean the appeal is hopeless. Some children present differently at school and home, and some settings misunderstand the threshold.
A refusal to issue appeal does not decide the final wording of the EHCP. This is a common misunderstanding.
If the tribunal allows the appeal, the local authority will usually be required to issue a draft EHCP. The family or young person will then have the opportunity to comment on the draft, ask for amendments and request a school or college. The local authority then issues a final plan. Delay at any stage of this process can also be raised with the Local Government and Social Care Ombudsman (lgo.org.uk).
If the final plan is still vague, incomplete or names the wrong placement, a further appeal may be needed about the contents of the plan. This can feel frustrating, but it is important to understand the sequence. The refusal-to-issue appeal is about whether an EHCP is necessary at all. The next stage is about what the EHCP should say.
This is why families should think ahead. Even while appealing refusal to issue, it helps to identify the needs and provision that should later appear in Sections B and F. That preparation can make the draft-plan stage more effective if the appeal succeeds. Keeping that evidence organised also makes any future annual review more straightforward.
Navigate SEND helps families and professionals make sense of refusal to issue decisions and prepare the strongest next step.
We can help by:
The aim is not to make the process more legalistic. It is to make the issue clearer: what provision is needed, why ordinary SEN Support is not enough, and why a statutory EHCP is necessary for that provision to be made reliably. For families juggling more than one SEND issue at once, this can extend into ongoing strategic advisory support.
No. Refusal to assess means the local authority has refused to carry out an EHC needs assessment. Refusal to issue means the assessment has happened, but the local authority has decided not to issue an EHCP. (legislation.gov.uk)
The usual deadline is two months from the local authority decision letter or one month from the mediation certificate, whichever is later. Families should check dates carefully and request a mediation certificate promptly where needed.
A refusal to issue appeal is usually made using Form SEND35. (gov.uk) This is different from SEND35A, which is used for refusal to assess appeals.
DfE statistics for 2024 record 1,400 tribunals related to decisions not to issue an EHCP, representing 22.6% of assessments where the decision was not to issue a plan.
Yes. Navigate SEND can help review the assessment evidence, identify why an EHCP may be necessary, organise supporting documents and prepare for mediation, appeal or the draft-plan stage.
If your local authority has refused to issue an EHCP after assessment, Navigate SEND can help you understand the decision, organise the evidence and prepare a clear route through mediation, appeal or the next EHCP stage.
Internal link suggestion: Link this CTA to the most relevant Navigate SEND service page, such as “Challenging SEND Decisions: Mediation and Appeals”, “EHCP Needs Assessment Requests & Reassessments”, “EHCP Amendments” or “Ongoing SEND Strategic Advisory”.