Client’s Story: Tribunal Orders Local Authority to Assess Young Child’s Special Educational Needs After Unlawful Refusal

Understanding the Legal Framework: What the Local Authority Got Wrong

Under section 36(8) of the Children and Families Act 2014, a Local Authority must carry out an Education, Health and Care Needs Assessment if:

“The authority is of the opinion that the child or young person may have special educational needs, and it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.”

This is a deliberately low threshold. The council isn’t expected to decide up front whether a child will definitely need an EHCP, only whether it’s possible that they might. In other words, if there is any reasonable possibility that the child may require the kind of specialist provision that can only be secured through an EHCP, an assessment should be carried out.

In Alex’s case, the Local Authority:

• Accepted that he had special educational needs.
• Knew that those needs included significant communication and developmental difficulties.
• Yet still refused to assess him, based on the fact that Early Years Inclusion Funding was in place.

This was not the correct legal test. Funding at the setting level does not replace the statutory duty to assess whether a child may require the more structured and enforceable support available only through an EHCP.

The Impact of the Refusal on the Child and Family

Without an EHC Needs Assessment, Alex’s difficulties were not being fully explored or understood. His mother was particularly concerned that he might require Speech and Language Therapy at a level that his current setting was unable to provide. This support typically must be specified in Section F of an EHCP, which sets out the special educational provision a child needs.

By refusing to carry out an assessment, the Local Authority was denying Alex the opportunity to be properly assessed and potentially supported through an EHCP, which could include input from health professionals, therapeutic provision, and tailored strategies for learning and communication.

Taking Legal Action: Bringing an Appeal to the SEND Tribunal

After reviewing the Local Authority’s decision, our team advised Ms L to appeal to the First-tier Tribunal (Special Educational Needs and Disability), commonly known as the SEND Tribunal.

We supported Ms L in:

• Preparing detailed written submissions.
• Setting out the legal framework and why the Local Authority had failed to apply it correctly.
• Providing evidence of Alex’s speech and language difficulties and the support he may require.

The appeal was heard on the papers (without an oral hearing) on the 27th of March 2025.

The Tribunal's Decision: Appeal Allowed

The Tribunal Judge allowed the appeal, concluding that the Local Authority had acted unlawfully by refusing to carry out an assessment.

Key findings of the Tribunal included:

• Alex’s special educational needs were not fully understood, and there was insufficient information about the nature and extent of those needs without an assessment.
• The child was likely to require significant Speech and Language Therapy input that would not be available through general Early Years funding alone.
• The only way to understand whether Alex needed support through an EHCP was to carry out a full assessment.

The Judge also expressed a concern about the Local Authority’s misapplication of the law and urged them to review their approach to similar cases. This decision may help other families in the local area who’ve been in the same or similar situation.

As a result of the ruling, the Tribunal ordered the Local Authority to secure an Education, Health and Care Needs Assessment for Alex.

What This Means for Alex

This decision means that Alex’s needs will now be properly assessed by the Local Authority. The assessment process will involve collecting advice from a range of professionals, such as an Educational Psychologist, Speech and Language Therapist, and others, to understand the child’s strengths and needs in detail.

If, following the assessment, it is agreed that Alex requires special educational provision beyond what is normally available in his setting, the Local Authority will then be required to issue an Education, Health and Care Plan. This would allow for a legally enforceable plan of support, tailored to his needs, including any therapeutic input.

Wider Impact: Lessons for Other Families and Local Authorities

This case highlights an issue that many families encounter, which are unlawful refusals of EHC Needs Assessments based on the presence of existing support or assumptions about thresholds. This approach is inconsistent with the law and can delay access to vital support for children with special educational needs.

The Tribunal’s judgment in this case sends a clear message, which is that Local Authorities must apply the correct legal test, as set out in section 36(8), and must not raise the threshold above what the Parliament intended. Families are entitled to challenge decisions where this does not happen, and they often succeed.

How Simpson Millar Can Help If You’ve Been Refused an EHC Needs Assessment

If your child’s been refused an Education, Health and Care Needs Assessment, it’s natural to feel frustrated or overwhelmed, especially when you know they need more support. But that doesn’t mean the decision is final, and you have every right to challenge it.

Our Education Law Solicitors have helped many families in similar situations. We’ll take the time to understand what’s happening, explain your rights clearly, and guide you through every step of the appeal. Getting the right support early on can make all the difference to a child’s development, both in education and in life.

We believe every child deserves the best possible start. If your Local Authority has said no to an assessment, we’re here to help you challenge that and fight for the support your child may be entitled to.

Call us today on 0808 239 4536 or request a callback, and let’s start working together to build a better future for your child.