Applying for a statutory assessment


Below is a summary of the Statutory Assessment process  It is intended as a guide and is not a substitute for legal advice.

Chapter 7  of the Special Educational Needs Code or Practice confirms that "LEAs must identify and make a statutory assessment of those children for whom they are responsible who have special educational needs and who probably need a statement. (my underlining)"
Sections 321 and 323 Education Act 1996

If a child needs more help than can normally be offered out of school funds or needs specialist support (perhaps a speech and language therapy programme), they may need a statement of SEN. For this to happen, a request for a statutory assessment (SA) must be made by school or by parents to the local authority to ask them to investigate the child's SEN and decide whether to issue a statement.

This can be a complicated and tiring process for parents. 

A statement will produce binding legal obligations which will require the local authority to provide support for the child. These obligations can be enforced in the courts so it is not surprising that local authorities are reluctant to agree to statutory assessments and often try to put parents off applying. For example, they may say the child is not far enough behind, or they are making 'age appropriate progress', or they are meeting academic targets, or they haven't spent long enough failing, or there is a specialist course teachers could go on, or there is an outreach team which could help, or the child's needs are not 'complex and severe', or they have delegated all their funds to school, or they don't 'do' statements in their county any more................

It is important to be able to cut through the complicated web of local authority policies. Parent Partnership may help but be aware that they may present local policy to you as fact irrespective of whether it complies with the law. So get independent advice from a specialist lawyer (see my page on lawyers who will offer a free initial consultation) or by contacting one of the charities on my 'Where can I get help?' page.

Of course, not every child will need a statement but what do you do if you know your child is either failing on School Action or School Action Plus or is simply not going to be able to get the support they need/or access specialist services without a statement? In those circumstances, you may need to apply for a statutory assessment because one thing is certain: waiting will not help your child. Children with autism don't become less autistic if they wait for a bit and unmet SEN are not suddenly met during a lengthy delay. In fact, delay never helps the child. It does, however, reduce the financial burden on the local authority as every month delayed is a month less funding for the child. Bear this cold hard reality in mind when weighing up your choices and trust your instinct. You know your child best.

If you want to apply for a SA, get yourself a copy of the Special Educational Needs Code of Practiceyour guide through the Twilight Zone!This is your best guide to the obligations on local authorities and Chapter 7 sets out the statutory assessment process that local authorities must follow.

The next step is to decide whether you or your child's school/nursery should make the application (in somce cases, health agencies can refer). Speak to your child's school. Whether you or school make the application will depend on how well you feel the school understands your child's needs, whether you trust them to apply promptly, and whether they are open and prepared to allow you to see their application. They must allow you make representations in any event. But, if in doubt, make the application yourself.

Under para 7:7 SENCOP, a statutory assessment should be agreed unless there has been one within the last six months or  "upon examining any evidence before [the LA] or representations made to [the LA], that a statutory assessment is not necessary". The key word here is evidence. SEN COP says nothing about local authorities' preferred policies. They have to look at the evidence, including your evidence.

It is helpful to refer to the law or SEN COP where they are relevant but if the Code and the law say the same thing, quote the Act or the case law as LAs have a stronger duty to obey the law than they do the SEN COP.


Parents have a right to request a statutory assessment under sections 328 and 329 of the Education Act.

If you are going to make a request, then look at the SEN COP. Para 7:23 confirms that
Parents may decide to request an assessment if they believe that their child has needs which are either not being met through school-based intervention, or are so substantial that a mainstream school could not meet them effectively from within their own resources.
You can make a request even if you are home educating your child (para 7:25)

Your request does not have to be too detailed. There is no particular format but it must be in writing, addressed to the local authority’s Education Department or equivalent, and should demonstrate at least the basic reasons why the parent considers that statutory assessment is appropriate. IPSEA provide a model letter here.

It is helpful to have a look through chapter 7 of SEN COP and look at the areas the LA must consider when deciding whether or not to undertake a statutory assessment. Consider also the areas the LA will look at when compiling a statement in chapter 8 SEN COP. You might want to consider some of the following points:
  • Consider how confident you are  that all your child's needs are known and understood. If you think they are not fully understood/know, you may wish to flag this point up, suggesting that, in accordance with para 7:46 SEN COP "a statutory assessment would help to fully identify the child’s special educational needs".
  • Para 7:39 confirms that educational attainment is the starting point but that "academic attainment is not in itself sufficient for LEAs to conclude that a statutory assessment is or is not necessary".Thus, the fact that a child is academically able does not prevent the local authority undertaking a statutory assessment or issuing a statement if the child has other barriers to learning and inclusion or accessing the curriculum like his/her peers.
  • Thus, under para 7:43, LAs should also seek evidence of any other identifiable factors that could impact on learning outcomes including social communication problems, motor skills problems, emotional or behavioral problems. Para 7:52 recognises that children have needs and requirements which may fall into at least one of four areas and that many children will have inter-related needs. It requires local authorities to consider the impact of these needs on the child’s ability to function, learn and succeed. The four areas of need and the circumstances in which an SA may be necessary are outlined in SEN COP: communication and interaction (paras 7:55-7:57); cognition and learning (paras 7:58-7:59); behaviour, emotional and social development (paras 7:60 - 7:61)  sensory and/or physical (paras 7:62-7:63). You should flag up any problems your child has in these areas. 
  • If children have multiple needs or overlapping needs, they are described as having complex needs and para 7:53 SEN COP says "where needs are complex in this sense it is important to carry out a detailed assessment of individual pupils and their situations" although this does not necessarily mean a SA is required in every case. 
  • Under para 7:54, local authorities should also consider the particular requirements of the individual child,and whether these requirements can be met from the resources already available to mainstream maintained schools. If your child's needs are not likely to be able to be met by school based resources or they are complicated so they are unlikely to be able to be met by generic provision from outreach services, then flag this up.You could consider the school's resources, availability of adult input, the need for additional inputs from outside agencies and time spent to monitor and evaluate the progress made as a result of the provision.
  • Consider whether your child has been meeting all IEP targets: academic, social, physical, behavioral etc. Para 7:50 confirms that: "Where the balance of evidence presented to, and assessed by, the LEA suggests that the child’s learning difficulties have not responded to relevant and purposeful measures taken by the school or setting and external specialists and may call for special educational provision which cannot reasonably be provided within the resources normally available to mainstream maintained schools and settings in the area, the LEA should consider very carefully the case for a statutory assessment of the child’s special educational needs".
  • Para 8:13 provides useful examples of the kind of situations in which a statement may be required. Are any of them relevant to your child?
  • Send any reports you have
You can send your letter to the Director of Education/Children's Services. You should be able to find his/her details from your local council's website and you can find details of your local council here. Send it recorded delivery and keep a copy of your letter. Make a note of the six week deadline for the LA’s reply.

Under para 7:26, the LA must decide within six weeks of your request whether to carry out an SA.

The LA will contact school and ask what they have been doing to support your child. They will put other agencies on notice that they might be asked for advice in the future.


'SEN Panel says NO'
 Cartoon by
Many local authorities will say that your request will go to their SEN PANEL for a decision. It is important that you know that these 'Panels' have no special legal status. Para 7:37 SENCOP talks of 'moderating groups to support [LAs] in making consistent decisions' but it also says that 'the role of these groups must be clear, public and open to scrutiny'. This seems very far removed from the reality of practice in some local authorities.

In practice, SEN Panels may actually obscure the decision-making process as you will not know who made the decision or how the decision was made. As a lawyer, I was shocked to discover that, frequently, these Panels do not even record their decisions, or if they do, they fail to record them in a way which is compliant with the requirements of public law. They may simply say the child is 'making age-appropriate progress' which is meaningless and insufficient in cases concerning children with complex needs. You should note also that SEN Panels are usually comprised entirely of local authority employees (educational psychologists, head teachers, education officers) and they may simply deal with cases by applying unlawful blanket policies to deny children an assessment of their needs. The absence of recorded decision-making makes it very difficult to establish what they do and how they do it.

What have local authorities to fear from transparency in their decision-making? Does it hide the fact that decisions are made on costs grounds which is unlawful. The Education Act does not allow local authorities to compare the provision they give to other children and decide that this will do for your child because it is acceptable for others. Your child's individual needs, including consideration of the setting in which your child is placed, must be decisive. Your child is entitled to an appropriate not an just an adequate education.

It seems to me that local authorities are far more willing to be open about planning matters than they are about children's futures but that, without this transparency, we have absolutely no way of knowing whether SEN Panels have actually considered all the evidence in accordance with Education Act and SEN COP or whether they have simply applied a blanket policy. Leading authors have suggested that the use of Panels constitutes a purely internal mechanism to delay decision-making and to save money by delaying putting provision in place (See Clements and Thompson, ‘Community Care & the Law’, (5th edn), Legal Action Group 2011).  So don't let 'SEN Panel says no' put you off!

Be warned: strangely many local authorities find these perfectly reasonable questions very threatening. But I think that if reliance is placed on anonymous 'senior managers' or faceless 'panels', it is entirely reasonable to ask how and by whom these decisions about your child are being made.


If your local authority refuses to undertake a SA, parents have the right of appeal to the SEN Tribunal. 

Para 7:69 confirms that a refusal will be a disappointment to parents and it directs local authorities to give "full reasons for their decision". So, ask for them. You are not being a nuisance, this is your child and you are entitled to reasoned decision-making. Para 7:70 also directs the LA to offer a meeting with the parents and/or school to discuss the refusal.

Under para 7:12 SEN COP, in the letter with the refusal decision, local authorities must tell you that you have the right to appeal to the SEN Tribunal. The letter should also set out the time limits for lodging an appeal (TWO MONTHS from the date of the decision letter), the availability of parent partnership and disagreement resolution services, and the fact that the parent’s right of appeal cannot be affected by any disagreement resolution procedure. 


Under para 7:74, if it decides to undertake a SA, the local authority must seek the following advice:
  • A: parental
  • B: educational
  • C: medical
  • D: psychological 
  • E: social services 
  • F: any other advice they consider appropriate

Where reasonable, it should also consult anyone the parents have identified as being able to help. LAs should take immediate action and should ask all concerned to respond within six weeksUnder para 7:85, the LA should also seek the views of the child wherever possible. There is nothing to stop the parents being involved in this process and you may want to confirm with the LA that you wish to be involved if they seek your child's views or add your child's views with your own parental advice. The older or more mature your child, the more weight that should be given to their views (Article 12 Convention on the Rights of the Child: see also case law such as West Sussex County Council v ND&LD [2010]UKUT 349)

When providing your own parental advice, you could address some of the points raised above, concerning on why your child's needs cannot be met out of school resources. Don't be afraid to reference the SEN COP or case law or any evidence you have by way of reports etc that assists your case. You may also wish to consider obtaining independent reports but they can be very expensive (and local authorities know this). Also, be aware that if your case goes to Tribunal, fresh reports will be required if your independent reports are more than six months old by the time of the hearing. So you could think about whether you have sufficient evidence on which to base a request for a statutory assessment without them at this stage: e.g. is school supportive, are other agencies already involved?

When LAs are considering making an assessment under section 323 Education Act, you can be prosecuted for failing to produce your child for examination. However, under Schedule 26 of the Education Act 1996 and para 7:75 SENCOP, you have the absolute right to be informed of and be present at "any interview, test, medical or other assessment which is being conducted and [you] should be told of the time, place and purpose of appointments". You may find it helpful to write to your LA and inform them that you do not wish your child to be assessed/observed without you being present and that you would like prior notice (e.g. 7 days) of any appointments. IPSEA produce some useful advice on this here.

It is important to note that those giving advice should, under para 7:79, give advice "that appear [s] relevant to a child’s current and future educational needs". Thus, the services providing advice should look at your child's future needs as well as their current difficulties. This is important for many children. For example, the social communication needs of child with autism are likely to increase in the future as the social world becomes more complex as the child matures. This para also prohibits the LA from having blanket policies which prevent those giving advice from commenting on the amount of provision a child requires. It is disappointingly rare for those advising the LA to make any comment on the quantity of provision. I have known health service professionals who were told by the LA that it is not their job to do so.


When is a statement not a statement? When it is a Notice in Lieu! A Notice in Lieu (NIL) will look official but it is not legally enforceable. It can be a useful document in providing guidance to schools about what they should do to help your child but a school only has to use their 'best endeavours' to meet the child's SEN and provide the provision, there is no legal obligation to do so. See further IPSEA advice here

The LA may issue a NIL if it concludes that the child’s SEN can be met from within the school’s own resources, with or without the intervention of a professional service from outside the school. You can ask for a meeting to discuss this decision in accordance with para 8:17. More information about NILs can be found in paras 8:15-8:22.

If you are unhappy with the NIL, take advice. Your choices are to appeal to SENDIST (see my post on this) or to wait and make a further request for a  statutory assessment after 6 months. Note that SENDIST appeals will be listed for hearing about 6-8 months  after the appeal has been lodged.


Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.  - Winston Churchill

If the local authority decides to issue a statement, it will issue it in proposed form, completing all Parts except Part 4. The LA must tell you that you may make representations on the proposed statement within 15 days of the date its issue. You may also request that a meeting takes place with the LA. If it does, you are entitled to a further 15 days after the meeting to make representations.

A Statement of Special Educational Need is a legal document which sets out your child's SEN in Part 2 and the provision which must be provided to meet those needs in Part 3. The local authority is under a strict legal duty to deliver the provision in the statement from the "date on which the statement is made" para 8:109

This absolute legal duty has been imposed to protect the child because, as you can see from the process outlined above, a child can be failing for a long time before a SA is even undertaken. S/he then has to wait even longer without effective support while a statutory assessment is undertaken. By the time a proposed statement is issued, a local authority should be fully conversant with the child's needs and the support required to meet them and it should be making arrangements to get that in place as soon as the statement is issued.

So, it is really, really important to get the wording right to ensure your child actually receives the provision in their statement. You are not being picky, your not being difficult, you are following the law and protecting your child's rights. This is discussed further in 'What should be in the statement?'

  • Request for statutory assessment
  • Within 6 weeks of your request, the LA should confirm whether they are going to undertake an SA
  • If it refuses, you have two months from the date of the decision letter to apply to Tribunal. 
  • If it agrees, it must ask for advice from parents, school, services etc within 6 weeks
  • It must make a decision on whether to issue a statement within 10 weeks of its decision to assess
  • If it decides to issue a statement, it must issue a proposed statement with the advices it has received within 2 weeks of its decision to assess. Alternatively, if it decides not to issue a statement, a notice in lieu should be issued within 2 weeks of the decision to assess.
  • It must issue a final statement within 8 weeks of the issue of the proposed statement
  • The cumulative effect of these time limits is that the period from the receipt of a request for a statutory assessment to the issue of the final copy of the statement should normally be no more than 26 weeks. A flow chart can be found at para 8:134 SEN COP. A pdf copy is available here 
  • Exceptions to the time limits are set out at paras 7:91-7:93


  • IPSEA, the SEN charity, has some great information about SEN 'myths' and common problems encountered while applying for a statutory assessment 
  • IPSEA has produced specific advice on refusal to assess.
  • SOS-SEN, another SEN charity, provides this useful summary on applying for a statutory assessment
  • AFASIC, a speech and language charity, has guides you can purchase for a small fee.
  • ACE have more information on their website
  • Mencap provide useful advice
  • Solicitors Douglas Silas have a very handy video here
  • Council for Disabled children have produced this chapter


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