Summary: We cannot investigate Mrs X’s complaint about what special educational provision should be agreed for her child by the Council. This is because she has used her right of appeal to a Tribunal. We will not investigate her complaint about alleged discrimination by gender in provision as we cannot make such a finding, and it would be reasonable to go to court if the Tribunal does not address it.

The complaint

1. Mrs X says the Council discriminated by gender in failing to offer similar special educational needs (SEN) provision for one of her children as her other children of the opposite gender. She said the Council made the educational provision inaccessible and altered her complaint to remove the part about alleged gender discrimination.

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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 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…”.
6. 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)
7. The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))

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How I considered this complaint

8. I considered information provided by the complainant and the Council.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. Mrs X has used her right of appeal to the Tribunal about the SEN provision needed by her child. Whether the Council’s decisions about provision for the child is a matter for the Tribunal to decide. We cannot intervene, even if the Tribunal is not imminent. We are prevented by a legal ruling from considering what alternative educational provision may be made between the issuing of a final EHC Plan and a Tribunal appeal.
11. We have no power to decide whether there has been discrimination based on gender. If the Tribunal does not consider this matter, it would be reasonable for Mrs X to use her right to go court to seek redress for alleged gender discrimination.
12. Where we cannot investigate a matter, we lack the legal power to investigate how the Council dealt with a complaint about it. It is also not a good use of resources to consider complaint handling alone where we are not dealing with the substantive matter of a complaint.

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Final decision

13. We will not investigate Mrs X’s complaint because:

• We cannot investigate what the provision specified for Mrs X’s child should be as she has used her right to appeal to the Tribunal;
• If the issue of alleged gender discrimination is not covered by the Tribunal, it would be reasonable for Mrs X to use her right to go to court; and
• Where we are not legally barred from considering the Council’s complaint handling, it would not be a good use of resources to do so.

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Investigator's decision on behalf of the Ombudsman