Summary: We will not investigate Mr X’s complaint about the actions of a Council officer. Doing so would be unlikely to lead to the outcomes he is seeking. We cannot investigate alleged misconduct. We cannot make any finding about whether the Council breached the Equality Act or the Human Rights Act with unlawful acts relating to disability. Only a court or a tribunal could do that, and it would thus be reasonable to take those matters to court or a tribunal. The most we could potentially find would only relate to the Council’s consideration of its duties at the time relating to matters we could investigate, and any recommendation we might make would be unlikely to match the range of actions Mr X is seeking from the Council in remedy. Where we are not investigating the substantive matters of a complaint, it is not a good use of resources to investigate how the Council dealt with the complaint about it.

The complaint

1. Mr X said the Council wrongly refused to consider his complaint about the actions of an officer. He said it wrongly treated it as a personnel matter. He said the officer unlawfully denied his child’s disability while supporting a school’s actions, and wrongly stated he was a vexatious complainant, despite a Tribunal ruling the school had discriminated against the child.
2. He said this led to significant harm to his child at the school, and the child leaving with a consequent loss of education. Mr X said his family experienced significant stress.
3. Mr X wanted the Council to publish the findings of its investigation into the officer’s actions and apologise. He wanted the council to carry out a retrospective equality assessment, confirm adherence to its duties going forward, and revise its complaints procedure. He also wanted staff training and compensation for educational loss.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended).
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.

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How I considered this complaint

8. I considered information provided by the complainantl.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. This is a complex case. Its context includes a finding by the SEND Tribunal of disability discrimination against a school, a pending appeal against an Education Health and Care (EHC) Plan issued by the Council, and a previous decision by us in complaint 25 000 983. I am satisfied that the matters complained of here are separate from all three, though quite closely connected.
11. It is clear from the evidence provided by Mr X, both now and in complaint 25 000 983, that the Council’s role in matters relating to Mr X’s child was ancillary to that of the school. The only exception to that relates to the Council’s more substantial role in the assessment of the child’s SEN, which are now subject to an appeal to the SEND Tribunal. We have already decided not to investigate that more substantial role. In the sense that the Council or its officer was supporting the school, the decisions the school made were its own, not the Council’s. The Council’s role does not extend to intervention in the daily running of the school. It follows that the child’s experiences in school and withdrawal from school would have been consequences of the school’s actions, not those of the Council.
12. Where the Council decides a matter may be one of potential misconduct, we cannot investigate the Council’s decision to treat it as a personnel matter. We can only consider the alleged actions. Were we to investigate them in this case and decide they happened, we could not make a finding of lawfulness or discrimination in terms of the Equality Act 2010 or the Human Rights Act 1998. Only a court or the SEND Tribunal could do that. The most we could do would be to investigate whether the Council corporately considered its equality duty. And the most we could recommend if finding fault would be that the Council then considered its equality duty. That would apply only to the alleged opinions of the officer that Mr X’s child was not disabled, and that Mr X was a vexatious complainant. The potential injustice from those opinions would have related only to the Council’s consequent actions in terms of the SEN provision his child needed and its treatment of his representations about that. And we have already decided in complaint 25 000 983 that those matters relate to the content of the child EHC Plan awaiting a SEND Tribunal decision.
13. While disability discrimination is a serious matter, we could only consider a limited range of actions by the Council as potential fault causing injustice. And any remedy we could recommend would be likely to fall far short of what Mr X is seeking.
14. Where we are not investigating the substantive matters of a complaint, it is not a good use of resources to investigate how the Council dealt with a complaint about them.

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Final decision

15. We will not investigate Mr X’s complaint because investigation would be unlikely to lead to the outcomes he is seeking.

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Investigator's decision on behalf of the Ombudsman