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London Borough of Newham (21 003 613)

Category : Education > Special educational needs

Decision : Closed after initial enquiries

Decision date : 30 Jul 2021

The Ombudsman's final decision:

Summary: We cannot investigate this complaint about Mrs C’s son’s special educational needs. This is because Mrs C has appealed to a tribunal and the matters about which she has complained are not separable from those the tribunal can decide.

The complaint

  1. The complainant, who I will refer to as Mrs C, complains that the Council has:
  • failed to provide a clear response to her request for information, and
  • failed to reasonably separate one of its officer's areas of responsibility.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
  3. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
  4. The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))

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How I considered this complaint

  1. I considered information provided by the complainant.
  2. I considered the Ombudsman’s Assessment Code.

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My assessment

  1. Mrs C's son has special educational needs and an Education Health and Care Plan (EHCP). Mrs C says her son received Applied Behaviour Analysis (ABA) provision while attending school. She says this was ceased after the intervention of a Council officer.
  2. Mrs C has appealed to SEND against the content of her son’s EHCP. She says she has asked the Council to provide her with its criteria for ABA provision. In response to her complaint, the Council says it has done so twice. Mrs C argues that the response is not sufficiently clear.
  3. Mrs C says the Council officer who intervened at her son's school is both a legal officer and a specialist teacher. She regards it as unreasonable to combine these roles.
  4. We cannot investigate Mrs C's complaint. The matters she has raised are not separable from the question of her son's eligibility for ABA provision. This is not a matter the Ombudsman can take a view on, as it can be decided by the SEND Tribunal. Mrs C has appealed to the SEND Tribunal. As appeal rights have been used, the Ombudsman has no jurisdiction.
  5. The Courts have held that we cannot investigate a Council's actions if they concern a matter which is outside our jurisdiction. This prevents us from considering Mrs C's concerns about the provision of ABA eligibility criteria. The Council is entitled to decide its officers' areas of responsibility and there are no grounds for us to pursue this aspect of the complaint.

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Final decision

  1. We will not investigate Mrs C’s complaint because she has appealed to the SEND Tribunal and the matters about which she complains are not separable from those the Tribunal can decide

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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