Summary: We cannot investigate this complaint about the Council’s conduct during an appeal to the SEND Tribunal. The law prevents us from investigating complaints about the actions of a council during a tribunal appeal.

The complaint

1. Mr X complains about the actions of the Council during an appeal to the SEND Tribunal about the contents of his son’s Education Health and Care (EHC) plan.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
4. 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.
5. 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…”.

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How I considered this complaint

6. I considered information provided by the complainant.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. I cannot investigate Mr 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. Mr X’s complaint is not one we can consider.
9. Mr X is unhappy the Council has not responded to his complaint. 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.

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Final decision

10. We will not investigate Mr X’s complaint because the law prevents us from investigating the actions of a council during an appeal to a tribunal.

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Investigator's decision on behalf of the Ombudsman