Philip Milburn (R on the application of) v The Local Government and Social Care Ombudsman

Section 26(6)(a) of the Local Government Act 1974 excludes an Ombudsman investigation only where the substance of the complaint concerns action or omission in respect of which the complainant had a tribunal right of appeal, reference or review. The phrase “inextricably linked” is not a substitute for that statutory analysis. The complaint must first be properly characterised.

A complaint that a public authority failed to obtain and consider views forming the substance of an education appeal falls within the exclusion. Complaints about inaccurate claims that the authority complied with its statutory duties may be separate maladministration complaints within jurisdiction. A decision not to investigate such a complaint must address it and give rational, intelligible reasons.

The claimant sought judicial review of the Ombudsman’s decision that he lacked jurisdiction to investigate complaints about Oldham Metropolitan Borough Council’s conduct in relation to the claimant’s education, health and care plan and subsequent appeal to the First-tier Tribunal.

Issue A concerned the Council’s failure to obtain and consider the claimant’s views and its alleged claims that it had done so. Issue B concerned alleged failures to comply with Tribunal directions, produce documents and avoid delaying the hearing. The central questions were the proper construction of section 26(6)(a) of the Local Government Act 1974, the Ombudsman’s jurisdiction, and the rationality and adequacy of reasons for declining to investigate.

1. Issue A: failure to obtain and consider views. The substance of this complaint was the Council’s failure to consider the claimant’s views when deciding to cease maintaining his education, health and care plan. That was a matter in respect of which he had a right of appeal under section 51(2)(f) of the Children and Families Act 2014. Section 26(6)(a) therefore excluded the Ombudsman’s jurisdiction. The claimant’s vulnerability and the seriousness of the Council’s conduct did not alter that conclusion.
2. The Court of Appeal decision in R (ER) v Commissioner for Local Government Administration was consistent with that approach. However, “inextricably linked” should not be treated as a free-standing touchstone. The proper question is whether the substance of the complaint concerns action or omission subject to a tribunal right of appeal, reference or review.
3. Issue A: alleged inaccurate claims. The allegation that the Council claimed to have obtained the claimant’s views when it had not was distinct. It was at least arguably maladministration within the Ombudsman’s jurisdiction. The challenged decision failed to address that complaint and relied on reasons directed to matters the Tribunal had considered, although the Tribunal had not considered the alleged inaccurate claims. The Ombudsman therefore asked the wrong question or misinterpreted the complaint. The decision was irrational and was quashed to that extent.
4. Issue B: Tribunal conduct. The complaints about non-compliance with Tribunal directions, inadequate documents and an attempted postponement concerned the Tribunal’s procedure. The claimant had a right to refer those matters to the Tribunal, which was master of its own procedure and had powers under rules 5 and 7(2) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care) Rules 2008. Section 26(6)(a) accordingly excluded the Ombudsman’s jurisdiction.
5. The Ombudsman’s discretion whether to investigate was wide, but remained reviewable for irrationality and subject to the statutory duty to give reasons under section 30 of the Local Government Act 1974. No declaration on the general meaning of section 26(6) was made. The parties were invited to agree an order reflecting the conclusions.

First-instance judicial review of the Ombudsman’s decision dated 22 July 2021. The Court quashed the decision only insofar as it concerned the allegation that the Council made inaccurate claims about obtaining the claimant’s views.