London Borough of Barnet (21 012 863)

Category : Education > Special educational needs

Decision : Closed after initial enquiries

Decision date : 07 Jan 2022

The Ombudsman's final decision:

Summary: We will not investigate this complaint about the Council’s response to a request for a special educational needs assessment. This is because the decisions the Council has made carry the right of appeal to a tribunal, and the delay is not so significant as to warrant our intervention.

The complaint

  1. The complainant, who I will refer to as Ms B, complains that the Council was at fault in its response to her request for a special educational needs assessment for her son.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), 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. 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.

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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. Ms B says her son has special educational needs. She complains about the Council’s response to her request for a needs assessment. She says it has been characterised by a failure to meet the required timescales, and that the decisions have been made based on a failure to obtain and properly appraise the necessary information.
  2. The Ombudsman cannot investigate the decisions the Council has made, including the decision not to carry out a needs assessment. This is because these are matters which carry the right to appeal to the SEND Tribunal.
  3. Where the right to appeal to a tribunal exists, and it is reasonable to do so, the Ombudsman expects it to be used and we do not intervene. The Courts have held that, where appeal rights have been used, this places all matters relating to the issue, from the point at which appeal rights become available, outside our jurisdiction. We have no discretion on this point.
  4. The evidence shows that the Council did delay making a decision on Ms B’s request for a needs assessment. The delay amounted to one month. The Council has set out how various issues impacted its ability to make the decision on time, and I note that Ms B does not accept that these provide a reasonable excuse for the delay. A delay of one month does not, in itself, cause so significant an injustice as to warrant investigation by the Ombudsman. Ms B’s appeal right was engaged at the point the Council decided not to assess, and subsequent events until the SEND Tribunal directed the Council to assess fall outside our jurisdiction.
  5. I have not considered matters relating to the needs assessment the SEND Tribunal directed the Council to carry out, as this had not been completed when Ms B made her complaint to the Council. Any issues relating to it should be put to the Council in the first instance.

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Final decision

  1. We will not investigate Ms B’s complaint because the decisions the Council has made carry the right of appeal to a tribunal, and the delay is not so significant as to warrant the Ombudsman’s intervention.

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Investigator's decision on behalf of the Ombudsman

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