Summary: We cannot investigate Mr X’s complaint about the Council’s conduct during a tribunal appeal. This is because we do not have the power to consider such complaints.

The complaint

1. Mr X’s child has an Education, Health and Care Plan (EHC Plan). Mr X appealed to the SEND Tribunal about the content of the Plan.
2. Mr X complains the Council shared information with the SEND Tribunal that contained false allegations about him. He says the Council failed to sufficiently check the information before including it in the evidence bundle. Mr X says the situation caused him and his family significant distress. He says the Council apologised and reissued the bundle without the information.
3. Mr X complains about the Council’s handling of his related complaint. During a call with a Council Officer about his complaint, he says the Officer did not give him the chance to fully explain his concerns and the Officer ended the call suddenly.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)
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 SEND Tribunal in this decision statement.
7. 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)  
8. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

9. I considered information provided by the complainant.
10. I considered the Ombudsman’s Assessment Code.

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My assessment

11. We cannot investigate Mr X’s complaint. When someone 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 SEND Tribunal. The Council’s evidence bundle for the appeal is directly part of the SEND Tribunal process. Issues with the bundle were for the SEND Tribunal to consider, not us.
12. The way the Council conducted itself during the appeal process is instead a matter for the SEND Tribunal. It makes case management directions, has powers to deal with non-compliance, and can make costs orders. So far as Mr X complains the Council Officer potentially acted unfairly or impartially, which impacted the fairness of Tribunal proceedings, this is a matter he could have raised with the SEND Tribunal to resolve.  
13. For these reasons, we cannot investigate Mr X’s complaint because we cannot trespass onto the role of the SEND Tribunal.
14. Mr X is also unhappy with how the Council handled his complaint. He complains about how the Council Officer communicated with him during a related call. 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. Any separable injustice is not significant enough to justify our involvement. So, we will not investigate the Council’s complaint handling.

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Final decision

15. We cannot investigate Mr X’s complaint about the Council’s conduct during a tribunal appeal. This is because we do not have the power to consider such complaints.

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Investigator's decision on behalf of the Ombudsman