The Ombudsman's final decision
Summary: We cannot investigate this complaint about the conduct of the Council during an appeal to a tribunal. The complaint is out of our jurisdiction with no discretion to investigate.
The complaint
Mr X complains about the conduct of officers during an appeal to the Special Educational Needs and Disability Tribunal. Mr X wants the officers involved removed from any future dealings with his family and for the Council to apologise.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended) 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.
In R (on application of Milburn) v Local Govt and Social Care Ombudsman & Anr [2023] EWCA Civ 207 the Court said s26(6)(a) of the Local Government Act prevents us from investigating a matter which forms the “main subject or substance” of an appeal to the Tribunal and also “those ancillary matters that may fall to be decided by the Tribunal…such as procedural failings or conduct which is said to be in breach of the [Tribunal] Rules, practice directions or directions or that is said to be unreasonable…”.
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
I cannot investigate Mr X’s complaint. This is because Mr X has appealed to the SEND Tribunal. This places the matter outside our jurisdiction. This includes the conduct of officers during the appeal process and any information provided by the Council.
Final decision
We cannot investigate Mr X’s complaint because he has used his right of appeal to the SEND Tribunal.
Investigator's decision on behalf of the Ombudsman