Summary: We will not investigate this complaint about the Council’s conduct during an appeal to a tribunal. This is because the law prevents us from considering complaints about a council’s conduct during an appeal to a tribunal.

The complaint

1. Mrs X complains about the Council’s administrative failings during a Special Educational Needs and Disability Tribunal (SEND) appeal. She says the Council’s failings caused her significant and avoidable distress. Mrs X wants the Council to acknowledge its failings, apologise, review and strengthen its administrative process and implement cover arrangements for staff absences.

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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. 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)  
6. The courts have said we can decide not to investigate a complaint about any action by an organisation concerning a matter which the law says we cannot investigate. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))

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How I considered this complaint

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

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My assessment

9. We cannot investigate Mrs 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 a council’s conduct during the appeal process and information it provided to the tribunal. The way the Council conducted itself during the appeal process is a matter for the Tribunal. It makes case management directions, has powers to deal with non-compliance, and can make costs orders. 

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Final decision

10. We will not investigate Mrs X’s complaint because the law prevents us from considering complaints about a council’s conduct during an appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman