Summary: We will not investigate this complaint about the Council’s conduct during an appeal to the Tribunal. The law prevents us from investigating complaints which have or could have been considered by the Tribunal.

The complaint

1. Mrs X complained about the Council’s conduct during the tribunal process. She says the officer responsible:
• Refused all provision requests put forward without consideration delaying matters,
• Did not discuss her requests with the Council,
• Bullied her and blamed things on her mental health, and
• Gave her false information about the Council discussing her son’s provision at a panel when this hadn’t happened.
2. She feels this led to the proceedings not being resolved sooner.

Back to top

The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
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…”.
6. 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.

Back to top

How I considered this complaint

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

Back to top

My assessment

9. Mrs X was unhappy with the provision being provided for her son and started tribunal proceedings to address these. The Council appointed an officer to deal with Mrs X’s case, and she complains about the officer’s actions.
10. We will not investigate Mrs X’s complaint about the officer’s behaviour during the tribunal process. Mrs X has used her right of appeal to the Tribunal to challenge the Council’s decision about her son’s provision. When a person has used their right of appeal, the matter appealed, and anything closely linked is outside of our jurisdiction. This includes the Council’s conduct during the appeals process and the conduct of Council officers.

Back to top

Final decision

11. We will not investigate Mrs X’s complaint because it is linked to her appeal and therefore, we cannot investigate her concerns.

Back to top

Investigator's decision on behalf of the Ombudsman