Summary: We cannot investigate Miss X’s complaint about the Council’s conduct during the SEND Tribunal’s process. This is because the law says we cannot investigate matters which the SEND Tribunal can address using its own powers.

The complaint

1. Miss X complains about the conduct of an officer during an appeal to the Special Educational Needs and Disability Tribunal. Miss X wants the officer involved removed from any future dealings with her family and for the Council to investigate the officer’s conduct.

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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 Miss X and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. I cannot investigate Miss X’s complaint. This is because Miss X has appealed to the SEND Tribunal. This places the matter outside our jurisdiction. This includes the conduct of officers during the appeal process and the evidence or information the Council provided to the Tribunal.

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Final decision

9. We cannot investigate Miss X’s complaint because the law says we cannot investigate matters which the SEND Tribunal can address using its own powers.

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Investigator's decision on behalf of the Ombudsman