Summary: We cannot investigate Ms X’s complaint about the Council's conduct during an appeal to The First-tier Tribunal (Special Educational Needs and Disability – SEND). We have no jurisdiction to consider a complaint about the Council’s actions during an appeal.

The complaint

1. The complainant, whom I shall refer to as Ms X, complained about the Council’s conduct during an appeal to the Tribunal. Ms X says the Council withheld important information.

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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. The First-tier Tribunal (Special Educational Needs and Disability – SEND) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
4. The courts have established that 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) 2023] EWCA Civ 207)

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. We cannot investigate Ms X’s complaint.
8. Ms X has used her right of appeal to the Tribunal to challenge the Council’s decision not to assess her child for an Education, Health and Care Plan (EHC Plan).
9. When a parent has used their right of appeal, the matter appealed, and anything closely linked is outside our jurisdiction. This includes the Council’s conduct during the appeals process, including the evidence provided and the conduct of council officers. The law is clear on this point. The Tribunal has wide ranging powers to act if it considers a party has acted unreasonably in bringing, defending or conducting proceedings. Ms X’s complaint is not one we can consider.

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Final decision

10. We cannot investigate Ms X’s complaint because it is linked to her appeal and is therefore outside our jurisdiction with no discretion.

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Investigator's decision on behalf of the Ombudsman