The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s conduct during an appeal to a tribunal. This is because the matter is outside our jurisdiction with no discretion.
The complaint
The complainant, whom I shall refer to as Mrs X, complained the Council provided misleading information during an appeal to the First-tier Tribunal (Special Educational Needs and Disability). Mrs X is unhappy with how the Council has dealt with her complaints.
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.
We cannot investigate the council’s conduct during an appeal. This includes anything a complainant could have raised with the tribunal at any stage of the appeal, or which the tribunal has considered on its own initiative, or which could have been a part of the tribunal’s deliberations in resolving the appeal. (R v Local Commissioner ex parte Bradford [1979]) and R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207) The courts have said we can decide not to investigate a complaint about any action by an organisation concerning a matter which the law says we cannot investigate. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
We will not investigate Mrs X’s complaint. When a parent has appealed to a tribunal, the law prevents us from considering the matter appealed or related issues. The courts have decided this includes the Council’s conduct during the appeal process and information it provided to the Tribunal. The way the Council conducted itself during the appeal process is instead a matter for the Tribunal. It makes case management directions, has powers to deal with non-compliance, and can make costs orders. Mrs X’s complaint is not one we can consider.
Mrs X is also unhappy with how the Council has dealt with her complaints. We will not generally look at complaint handling as a standalone issue. It is not a good use of public resources to investigate complaints about complaint procedures, especially if we cannot deal with the substantive issue. This applies here.
Final decision
We will not investigate Mrs X’s complaint. This is because the law prevents us from considering complaints about a council’s conduct during an appeal to the SEND Tribunal. The complaint is outside our jurisdiction with no discretion.
Investigator's decision on behalf of the Ombudsman