ER, R (on the application of) v London Borough of Hillingdon

Section 26(6)(a) of the Local Government Act 1974 excludes the Local Government Ombudsman’s jurisdiction over action, including a failure to act, in respect of which the affected person has or had a statutory right of appeal to a tribunal.

A complainant cannot avoid that exclusion by presenting the consequences of an appealable decision as a separate failure to provide a service. The exclusion applies where the service failure is inextricably linked to the appealable decision. It may therefore leave the complainant without compensation, because the tribunal offers only prospective relief. The absence of a complete or financial remedy does not restore the Ombudsman’s jurisdiction.

A local authority named a day school in the special educational needs statement of a child with complex disabilities. His mother appealed to the Special Educational Needs and Disability Tribunal, which substituted a residential school and found the day placement inadequate. The Local Government Ombudsman declined to investigate the authority’s consequent failure to provide suitable education during the period before the tribunal’s decision.

Judge Stewart QC dismissed the mother’s judicial review claim in R (NR) v Local Government Ombudsman [2013] EWHC 1335 (Admin). The mother appealed. The central issue was whether section 26(6)(a) of the Local Government Act 1974 excluded the Ombudsman’s jurisdiction because she had possessed a statutory right of appeal to the tribunal, although that appeal could provide only prospective relief and no compensation.

1. Appeal dismissed. The failure to provide suitable education during the relevant period was inextricably linked to the authority’s appealable decision to name an unsuitable school in the child’s special educational needs statement. Bean LJ gave the judgment, with which Aikens and Moore-Bick LJJ agreed.

2. Section 34(1) of the Local Government Act 1974 provides that “action” includes a failure to act. The authority’s conduct could therefore be characterised either as the positive act of naming an unsuitable school or as the failure to name a suitable school. On either characterisation, it was action in respect of which the mother had a right of appeal to the Special Educational Needs and Disability Tribunal. It fell squarely within section 26(6)(a).

3. The tribunal determined the merits of the educational provision specified in the statement and could substitute the school considered appropriate. Its jurisdiction was prospective and it could not compensate for past failures. Those limitations did not divide the authority’s conduct into an appealable decision under section 324 of the Education Act 1996 and a separately investigable breach of the suitable-education duty under section 19.

4. The Ombudsman could not investigate the consequences of a decision where section 26(6)(a) excluded investigation of the decision itself. The amendments extending the Ombudsman’s jurisdiction from maladministration to service failure did not expressly alter that exclusion. The statutory scheme could accordingly leave a person without compensation, even though another forum had supplied some prospective remedy. The observations in R v Commission for Local Administration, ex p Field [1999] EWHC Admin 754 concerning the possibility of loss without an Ombudsman remedy were apposite.

1. Court of Appeal (Civil Division): The appeal was dismissed in [2014] EWCA Civ 1407. The court upheld the conclusion that section 26(6)(a) of the Local Government Act 1974 excluded the Ombudsman’s jurisdiction.
2. Administrative Court: Judge Stewart QC dismissed the application for judicial review in R (NR) v Local Government Ombudsman [2013] EWHC 1335 (Admin).