Definition
A refusal to issue is a local authority's decision, after carrying out an EHC needs assessment, not to issue an EHCP. The decision is made under section 37 of the Children and Families Act 2014, must be communicated in writing with reasons by week 16 of the 20-week process, and carries a statutory right of appeal to the First-tier Tribunal (SEND).
In context for parents
Key checkpoints
- The LA's decision, after an EHC needs assessment, not to issue an EHCP, under Children and Families Act 2014, s.37.
- Statutory test: a plan must be issued if it is necessary for the provision to be made through a plan.
- Decision communicated in writing with reasons by week 16 of the 20-week process.
- Right of appeal to the SEND Tribunal with two-month time limit.
- Parent success rates are extremely high at tribunal because the LA's own assessment evidence is already in the file.
The statutory test for issuing a plan is at section 37(1): the LA must issue an EHCP if it is necessary for the special educational provision to be made through a plan. "Necessary" is the key word, and tribunals interpret it generously where SEN Support alone cannot deliver the provision the assessment evidence shows the child needs.
Common LA reasoning in refusal-to-issue letters:
- The needs are being met through SEN Support.
- The child is making progress.
- The school can deliver the provision from its delegated budget.
- The cost of the provision falls below the Element 2 funding threshold.
- The picture is "borderline".
- None of these is the statutory test; the test is whether a plan is necessary.
Refusal to issue is harder for the LA to defend than refusal to assess, because the LA has already spent six advice strands of professional time gathering evidence. The EP, SaLT, OT, paediatric, school, and parent advice typically already names the provision that should sit in Section F. If that provision is beyond what mainstream school can ordinarily provide (by hours, by type, or by required expertise), a plan is necessary.
The appeal time limit is two months from the date of the decision (or one month after a mediation certificate is issued). Parent success rates at tribunal are extremely high, partly because by the time refusal to issue has occurred, the evidence is already in the file.
Related terms
The terms parents most often see alongside Refusal to Issue.
EHC Needs Assessment(EHCNA)
The local authority's statutory process for gathering advice from professionals to decide whether a child needs an EHCP. The LA has 20 weeks from request to issuing a final plan.
Education, Health and Care Plan(EHCP)
A legally binding document, issued by a local authority in England, that describes a child or young person's special educational needs and the provision the LA must arrange to meet them.
SEND Tribunal
An independent tribunal that hears appeals against local authority decisions on EHC needs assessments, EHCP contents, school placement, and disability discrimination by schools.
Where parents ask about this
Parents usually find this page after a 16-week assessment has come back with the words "we will not be issuing an EHCP for your child". Searches include "appeal refusal to issue EHCP", "what evidence for refusal to issue appeal", and "refusal to issue tribunal success rate". A Beaakon SEND solicitor or advocate can review the advice gathered during assessment, identify the provision that warrants a plan, secure the mediation certificate, and draft a tribunal appeal that uses the LA's own assessment evidence against the refusal.
References
The primary legislation, statutory guidance, research, and clinical tools this page draws on.