London Borough of Sutton (20 005 331)

Category : Education > Special educational needs

Decision : Closed after initial enquiries

Decision date : 06 Dec 2020

The Ombudsman's final decision:

Summary: The Ombudsman cannot investigate Ms B’s complaint that the Council was at fault in declining to carry out an Education Health and Care Needs Assessment. This is because Ms B has used the right to appeal to the Special Educational Needs and Disability Tribunal.

The complaint

  1. The complainant, who I will refer to as Ms B, complains that the Council was at fault in declining to carry out an Education Health and Care Needs Assessment, thereby denying her son access to appropriate educational provision.

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The Ombudsman’s role and powers

  1. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
  2. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  3. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))

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How I considered this complaint

  1. I have considered what Ms B has said in support of her complaint and in response to my draft decision. I have also considered the complaint correspondence provided by the Council.

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What I found

  1. Ms B’s son has special educational needs. Ms B says that, despite the weight of evidence that her son needs an Education, Health and Care Plan, the Council declined to carry out a needs assessment.
  2. Ms B argues that the Council’s decision amounts to fault. The correspondence she has provided shows that she successfully appealed to SEND. Ms B argues that her son was disadvantaged from the point at which the Council first decided not to assess him.
  3. The Ombudsman cannot investigate Ms B’s complaint. Where the right to appeal to a tribunal exists, the Ombudsman normally expects it to be used. When appeal rights are used, this places the matter outside the Ombudsman’s jurisdiction.
  4. Ms B appealed to SEND. This means the Ombudsman cannot investigate matters relating to the decision not to carry out a needs assessment. The courts have held that this restriction applies from the point at which appeal rights were available. Therefore, matters between the decision not to assess and the SEND decision fall outside the Ombudsman’s jurisdiction. There is no discretion available to me on this matter.

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Final decision

  1. The Ombudsman cannot investigate this complaint. This is because Ms B has used her right to appeal to SEND.

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Investigator's decision on behalf of the Ombudsman

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