Legally there is one ground: after an EHC needs assessment a local authority may refuse to issue an EHC plan only where it decides a plan is not ‘necessary’ to secure the special educational provision the child needs. There is no statutory list of permitted reasons to refuse, and no other lawful basis.
Where the single ground comes from
Section 37 of the Children and Families Act 2014 frames the duty positively, not as a power to refuse. Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made through a plan, the authority must secure that a plan is prepared (s.37(1)). The assessment itself is carried out under section 36. Read together, the only point at which a refusal becomes lawful is when the necessity test is not met. Framing a decision as ‘SEN Support is enough’ or ‘needs are not severe enough’ is shorthand for the same test, and it only holds up if it genuinely answers the necessity question.
What ‘necessary’ actually means
The SEND Code of Practice 2015 (paras 9.54–9.55) sets the working test: the authority considers whether the special educational provision required can reasonably be made from the resources normally available to mainstream early years providers, schools and post-16 institutions, or whether a plan is needed. The Upper Tribunal has put two limbs around that question, and the second is where most refusals fall:
- Limb one: could the child's needs be met from the provision ordinarily available to mainstream settings? In Buckinghamshire CC v HW [2013] UKUT 0470 (AAC) the tribunal held that ‘necessary’ sits between ‘indispensable’ and ‘useful’ and keeps its ordinary meaning.
- Limb two: will those needs actually be met without a plan? It is not enough that mainstream resources could in theory meet them. CB v Birmingham City Council [2018] UKUT 13 (AAC) draws a rough-and-ready resource line, but a refusal that leaves a need evidenced in the assessment unmet does not satisfy this limb.
Note what the test does not turn on: the child's diagnosis. Necessity is about whether provision can and will be secured, not about whether a label exists. A refusal grounded only in budget, in the absence of a diagnosis, or in the category of need is the kind most often overturned on appeal.
The duties that attach to a refusal
A lawful refusal is not just the right decision; it is the right process. Where the authority decides not to issue, it must notify the parent or young person, give its reasons, and inform them of the right to appeal and the requirement to consider mediation. That notice has to be sent within 16 weeks of the request to assess (SEND Code para 9.41; regulation 10 of the SEND Regulations 2014). The appeal lies to the First-tier Tribunal (SEND), and is normally lodged within two months of the decision letter once mediation has been considered. Keep the statutory timescale in view: a decision that is right on substance but late or unreasoned is still challengeable.
What is changing
Reform is on the horizon but not yet in force. The ‘Every Child Achieving and Thriving’ Schools White Paper (February 2026) and the planned Education for All Bill propose Individual Support Plans for all children with SEND and reformed EHCPs focused on the most complex needs, with statutory ISPs from September 2029 and wider EHCP reform completing by 2035. Until then, section 37 and the necessity test remain the law you decide and defend against.
Where the law comes from
Related
This page is general information, not clinical or legal advice.