Court of Appeal upholds decision by Ombudsman to disclaim jurisdiction over two complaints

The Court of Appeal has ruled that the Local Government and Social Care Ombudsman was right to say that it did not have jurisdiction over two complaints because Philip Milburn, who brought the case, had the right of appeal to a tribunal.

In Milburn, R (On the Application Of) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207 Lord Justice Stuart-Smith held that HHJ Sephton KC had been right to conclude in the High Court that the Ombudsman did not have jurisdiction to consider complaints that the council had failed to obtain Mr Milburn’s views about future provision for him or later take these into account.

He had also found that the Ombudsman did not have jurisdiction to look at certain other points raised by Mr Milburn.

Stuart Smith LJ explained: “The main issue in this appeal may be described as a demarcation dispute between the respective jurisdictions of the respondent Ombudsman and the First-tier Tribunal (Special Educational Needs and Disability) [SENDIST].

“The outcome depends upon the meaning and scope of section 26(6)(a) of the Local Government Act 1974 and, specifically, on the meaning to be attributed to the words ‘a right of appeal, reference or review to or before a tribunal’ in the context of that section.”

Mr Milburn appealed against the High Court finding that the Ombudsman had been right to disclaim jurisdiction because of section 26(6)(a) of the LGA 1974.

Stuart Smith LJ said he concluded HHJ Sephton was “right, essentially for the reasons he gave”.

Mr Milburn is autistic and while of school age had an Education Health and Care Plan. During his final year of school, his mother, Ms Thompson, started discussions with Oldham Metropolitan Borough Council regarding his future educational provision.

Oldham refused to provide the package he proposed and told Ms Thompson it would cease to maintain Mr Milburn's plan.

Ms Thompson brought an appeal to the SENDIST on four grounds, which later ordered the bespoke package of education that they had sought.

Afterwards, Mr Milburn and his mother made two complaints to the Ombudsman, including that the council attended the tribunal without knowing Mr Milburn’s views and wishes and that its staff had behaved unethically and unprofessionally.

They also complained Oldham made inappropriate recommendations because of a failure to appreciate Mr Milburn’s needs. They later issued 10 further complaints.

Stuart Smith LJ said the appeal before him concerned only two of these. The first was that Oldham failed to obtain Mr Milburn’s views, and the second of unreasonable behaviour by the council before the Tribunal hearing when it allegedly failed to submit an amended working document in time, tried to postpone the hearing to arrange a mental capacity assessment and did not request to speak to Mr Milburn after the appeal began.

Ms Thompson then took the matter to the Ombudsman, which concluded: “I consider parts of the complaint are outside the Ombudsman's jurisdiction, or if they are not, then we will not investigate as the Ombudsman does not wish to trespass on the conduct of the Tribunal, and the council's apology for its failure to seek Mr [Milburn]'s views about plans for his education sooner is a suitable remedy for the alleged injustice this caused.

“The council has also put in place improvements in its procedures and agreed to apologise to Ms [Thompson] for comments made. I am satisfied with the council's actions to remedy the injustice caused and so I have completed my investigation."

Mr Milburn’s first ground in the Court of Appeal was that HHJ Sephton erred in his conclusion that the substance of the tribunal appeal was the council's failure to consider his views and, therefore, that the Ombudsman did not have jurisdiction to investigate part of the complaint.

His second ground was that HHJ Sephton had been wrong to conclude that Oldham's conduct ahead of the tribunal hearing were actions “which the person has or had a right of appeal, reference or review to or before a tribunal” such that the Ombudsman did not have jurisdiction to investigate.

Stuart Smith LJ said: “It is necessary to read both the decision of the Ombudsman and the reasoning of the judge fairly, in context and with a view to understanding what they meant rather than sedulously picking and criticising individual words or phrases.”

Argument in the High Court had involved the phrase ‘inextricably linked’ since the Ombudsman said case law has established that where someone may appeal or has appealed to the SEND Tribunal, the Ombudsman cannot investigate any matter which is 'inextricably linked' to the matters under appeal.

Stuart Smith LJ said: “Faced with the submission that the Ombudsman had erred in relying on or applying the phrase 'inextricably linked’ as if it were a statutory provision, the judge was right to emphasise the need to concentrate upon the substance of the complaints in issue.”

Having seen the tribunal proceedings, Stuart Smith LJ said the relevant Ombudsman's decision “when read fairly and in context, is unimpeachable”.

He explained: “The judge was therefore right to reject the challenge in respect of the first part of [the] complaint. His conclusion is now challenged on the asserted basis that the failure to obtain Mr Milburn's views was not ‘the substance’ of the claimant's appeal to the Tribunal.

“Once again, I consider that too much weight is being placed on the choice of a particular word. It is of course correct that there was other evidence before the Tribunal; but…the failure to obtain Mr Milburn's views and the subsequent obtaining and consideration of those views constituted a substantial part of the issues that had to be and were resolved by the Tribunal.”

He said this illustrated “the closeness of the connection between the issues that were raised in the Tribunal…and the issues that it is now said should be considered by the Ombudsman”.

Dismissing the first ground, Stuart Smith lJ said: “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”, as was the second ground about unreasonable behaviour by Oldham.

Lady Justice Elisabeth Laing and Lord Justice Moylan agreed with his judgment.

An Ombudsman spokesperson said: “We recognise the incredible challenges faced by many families of children with Special Educational Needs in obtaining the provision their children are entitled to, and take their complaints very seriously.

“The law restricts our role when tribunals such as the SEND Tribunal are also involved in a complaint, and the Court of Appeal has now upheld the High Court’s decision that our interpretation of our jurisdiction is correct. Unfortunately, there are some things the law does not allow us to investigate and, as both courts have acknowledged, how a council acts during an ongoing tribunal appeal is one of these.”

Mark Smulian