Facts:
The main issue concerned a dispute regarding the respective jurisdictions of the Respondent Ombudsman and the First-tier Tribunal (Special Educational Needs and Disability [“SENDIST”]). The crux of the appeal lay within the meaning and scope of s26(6)(a) of the Local Government Act 1974 [“the LGA 1974”] and, more specifically, the meaning to be attributed to the phrase “a right of appeal, reference or review to or before a tribunal” in the context of that section, which excludes the Ombudsman from involvement when such a thing exists for an aspiring complainant.
The Appellant, Mr Milburn, had appealed against the decision of the Deputy Judge of the High Court, HHJ Sephton KC, and the order made in the court below on 8 July 2022. The judge held that the Ombudsman had been right to disclaim jurisdiction in relation to some of the complaints made to it by Mr Milburn on the above grounds.
There were two grounds of appeal:
Ground 1: The Deputy Judge erred in his conclusion that the substance of the Claimant’s appeal to the Tribunal was the Council’s failure to consider his views and, therefore, that the Defendant did not have jurisdiction to investigate part of the complaint.
Ground 2: It was wrong for the Deputy Judge to conclude that the Council’s conduct in the lead-up to the Tribunal hearing constituted actions about ‘which the person has or had a right of appeal, reference or review to or before a tribunal’, such that the Defendant did not have jurisdiction to investigate part of the complaint.
Discussion
In Stuart-Smith LJ’s view, the most natural meaning to be accorded to s26(6)(a) was that it excluded the jurisdiction of the Ombudsman where ‘there may be an overlap and consequent risk of trespass between the issues that may be raised for determination in the Tribunal proceedings on the one hand, and that may be raised by the prospective investigation, on the other’. It followed that the overlap being managed through exclusion could go beyond the main substance or subject of the appeal and include those ancillary issues that may have fallen to be determined by the Tribunal. Therefore, matters that arose in the course of such Tribunal proceedings, including procedural failings or conduct said to be in breach of the Rules, fell within the ambit of s26(6)(a).
Ground 1:
The Ombudsman had concluded that the substance of the appeal was based on the Local Authority’s “blatant disregard for [Mr Milburn’s view]”, which resulted in inappropriate provision being included in his EHC Plan. The Ombudsman declined jurisdiction in relation to this matter and the ability to make findings on fault or recommendations for remedies for any injustices. Indeed, the LGSCO viewed the question of whether the Council had properly obtained Mr Milburn’s view as being ‘inextricably linked’ to the matter under appeal and concluded that even where a Tribunal does not provide a full remedy, it does not mean that the Ombudsman can weigh in where an alternative legal route has been used. Stuart-Smith LJ also agreed that the failure to obtain or consider Mr Milburn’s views was ‘integral to’ the Tribunal’s decision-making process and determination. Thus, the appeal was dismissed on Ground 1: on a proper understanding of section 26(6)(a), the jurisdiction of the Ombudsman to deal with this aspect of Mr Milburn’s complaints was within the ambit of the section and was therefore excluded.
Ground 2:
Applying his understanding of s26(6)(a), Stuart-Smith LJ concluded that the Judge was entitled and correct to conclude that the issues that formed the substance of Complaint B – relating to the unreasonable behaviour of the Council in the lead-up to the Tribunal hearing – were also matters in respect of which Mr Milburn had the right to refer to the Tribunal within the meaning of s26(6)(a).
The precise manner in which an issue has been raised, was not significant for this approach; the thrust of the issue to be determined was whether, as a matter of fact and procedure, the issues could be brought before the Tribunal. In fact, the issues that formed the subject of Ground 2 were brought before the Tribunal and were subject to its case management powers, including powers to award costs if the Tribunal were persuaded that the local authority’s conduct was unreasonable. The absence of a financial remedy was, therefore, nothing to the point. Thus, on a proper understanding of section 26(6)(a), Stuart-
Smith LJ held that the jurisdiction of the Ombudsman to deal with this aspect of Mr Milburn’s complaints was within the ambit of the section and was therefore excluded. He dismissed the appeal on Ground 2.
Comment:
There has been a swathe of case law concerning s26(6)(a) of the LGA 1974 and the ambit of the Ombudsman’s jurisdiction. The most thorough understanding prior to this case was provided by the Court of Appeal’s conclusion in ER, shortly stated at [30]-[31], that the Ombudsman’s jurisdiction (or lack of it) ‘depend[ed] upon substance rather than tendentious formulations.’ What ER did not elucidate, however, was what meaning should be ascribed to the words “a right of appeal, reference or review to or before a tribunal”. Stuart-Smith LJ placed considerable weight on Lord Denning MR’s observation in R v Local Commissioner for Administration for the North and East of England ex parte Bradford Metropolitan City Council [1979] QB 287 that ‘the commissioners should not conduct an investigation which might trespass in any way on the jurisdiction of the courts of law or of any tribunals’. It followed that the words of s26(6)(a) were given their fullest reasonable meaning. Thus, he may have narrowed the jurisdiction of the Ombudsman somewhat, specifically in relation to appeals where there ‘may be an overlap and consequent risk of trespass between the issues that may be raised for determination in Tribunal proceedings, on the one hand, and that may be raised by the prospective investigation, on the other.’
The reality, therefore, for appellants seeking to challenge outcomes or remedies awarded that are open to the FTT, is that they may face more of a struggle in trying to complain to the LGSCO about such matters.
Fortunately, there are two features to consider to mitigate this narrowing: one is that there is NO recourse to any Tribunal in adults’ social care law, so the routes for challenge in SEN matters and the sphere of concern to CASCAIDr, adults’ social services, are markedly different; the second is that the Ombudsman’s jurisdiction MAY be taken on, regardless of the prohibition, in cases where a remedy exists to a tribunal or to a court (ie the Administrative Court) by the Ombudsman’s making a decision to do so, albeit in its discretion, and subject to public law principles, on the following ground:
“notwithstanding the existence of such a right or remedy if satisfied that in the particular circumstances it is not reasonable to expect the person affected to resort or have resorted to it.”