What the law actually says
Two sources control this:
- Children and Families Act 2014, section 36(8) — the council must assess where the child or young person "has or may have special educational needs" and "it may be necessary for special educational provision to be made". Nothing about a diagnosis.
- SEND Code of Practice 0–25, paragraph 6.36 — "A diagnosis of a disability does not necessarily mean a child has SEN, and a child can have SEN without a diagnosis."
The Code is statutory guidance the council must "have regard to". A council that decides on "no diagnosis" alone has not had regard to 6.36 — that is a ground of appeal on its own.
Why the 'no diagnosis' refusal happens anyway
NHS waits for autism and ADHD assessment now run multi-year in most areas. Councils know this and use it as a delay mechanism — "come back when you have a diagnosis" pushes the cost off their books. It is not a lawful basis for refusal, and SEND Tribunal panels are well aware of it. Parents who appeal these refusals win in ~96% of cases.
Educational evidence to use instead
- School reports flagging concerns about progress, regulation, or peer interaction.
- SEN Support paperwork — what has been tried, for how long, what has not worked.
- Attainment data showing the child is working below age-expected level.
- Attendance data, particularly if anxiety or sensory triggers cause absence.
- Behaviour or incident logs.
- Letters from any clinician, even without a diagnosis — "presents with features consistent with…" is enough to evidence concern.
- A parent statement describing a typical day, including sleep, regulation, and what consistently fails.
Wording for the request letter
The phrase that closes off the "no diagnosis" loophole is something like: "I am aware that under the SEND Code of Practice 0–25, paragraph 6.36, a diagnosis is not required for a child to have special educational needs, and I am submitting this request on the basis of educational evidence under section 36(8) of the Children and Families Act 2014." This forces the SEND team to engage on the substance, not the diagnostic status.
If Finally Seen writes the letter, this framing is built in.
If you get refused on these grounds anyway
Appeal. The refusal-to-assess SEND Tribunal route has a ~96% parent win rate, and "no diagnosis" is the weakest possible refusal ground. Full walkthrough in our EHCP appeal guide.
Frequently asked questions
›Do you need a diagnosis to get an EHCP?
No. The SEND Code of Practice 0–25 (paragraph 6.36) and the Children and Families Act 2014 (section 36) make clear the test is special educational needs that may call for special educational provision — not a medical label. Councils that refuse on 'no diagnosis' grounds are misapplying the law.
›What if my GP or paediatrician refuses to refer for assessment?
Diagnosis and EHCP are separate processes. Even with no clinical pathway open, you can request an EHC needs assessment directly from the local authority. The council must consider the request on educational evidence alone.
›What evidence do I need instead of a diagnosis?
School reports showing unmet need, attendance data, examples of work below age-expected level, SEN Support records that did not work, a parent statement describing the child's day, and any letters from clinicians (even without a diagnosis) describing concerns.
›Can the school refuse to support the request because there's no diagnosis?
The school is not the decision-maker — the council is. A school's reluctance does not stop you submitting a parental request directly under section 36.