Summary: We will not investigate this complaint about the Council allegedly breaching special educational needs regulations. The matter complained of is closely linked to decisions about the nature of Miss X’s child’s special educational needs. Miss X has or had a right it would be reasonable to use to appeal to the Special Educational Needs and Disability Tribunal about that. It is not a good use of resources to investigate the Council’s complaint handling where we are not investigating the substantive matter underlying it.

The complaint

Miss X said the Council had failed to follow the law on special educational needs assessments. She also complained the Council had failed to deal properly with her complaint about this.

Back to top

The Ombudsman’s role and powers

1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
2. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
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 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))
7. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

Back to top

How I considered this complaint

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

Back to top

My assessment

10. The complaint correspondence Miss X provided shows the substantive matter concerns a dispute between her and the Council about the assessment of her child’s special educational needs (SEN). We do not investigate every alleged breach of regulations, and in some cases, we are legally prevented from doing so.
11. In this case, Miss X has or had a right to appeal to the SEND Tribunal about the Council’s decision. This decision concerned the nature of her child’s SEN and the necessity or otherwise of fresh assessments. I note she told the Council she was hoping to avoid the need to appeal. But that was the correct route to resolve the dispute when the Council did not accede to her request.
12. As Miss X has or had a right it would have been reasonable to use to appeal to the SEND Tribunal, we will not investigate this matter. If she has used that right, we are legally prevented from investigating.
13. It is not a good use of resources to investigate how the Council dealt with Miss X’s complaint as we are not investigating the substantive matter complained of. If Miss X has used her right of appeal, we are legally prevented from doing so.

Back to top

Final decision

14. We will not investigate Miss X’s complaint because it is closely linked to matters in respect of which she has or had a right of appeal to the SEND Tribunal it would be reasonable to use.
15. It is not a good use of resources to investigate complaint handling where we are not investigating the substantive matter of the complaint.

Back to top

Investigator's decision on behalf of the Ombudsman