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

Under section 26(6)(a) of the Local Government Act 1974, the Ombudsman cannot investigate an action or omission which may be brought before a tribunal for determination. The exclusion extends beyond the principal subject of an appeal. It encompasses substantial ancillary and procedural issues which the tribunal can manage and resolve.

Jurisdiction depends on the substance of the complaint, not its formulation or whether the tribunal can award every remedy sought. The phrase “inextricably linked” may describe the necessary connection but is not a statutory test. A complaint concerning a failure to obtain a young person’s views falls within the exclusion where that issue became integral to a special educational needs appeal.

The appellant, an autistic young person, successfully appealed to the First-tier Tribunal (Special Educational Needs and Disability) against a local authority’s decisions concerning his Education, Health and Care Plan and educational provision. He later complained to the Local Government and Social Care Ombudsman about the authority’s failure to obtain and consider his views and its conduct before the Tribunal.

The Ombudsman concluded that those matters fell outside its jurisdiction under section 26(6)(a) of the Local Government Act 1974. The Administrative Court substantially upheld that conclusion in [2022] EWHC 1777 (Admin). The appeal concerned whether the statutory exclusion covered an issue which arose during the appeal and complaints about procedural defaults and unreasonable conduct within the Tribunal proceedings.

1. Appeal dismissed. Section 26(6)(a) of the Local Government Act 1974 should receive its fullest reasonable meaning. Its references to a right of “appeal, reference or review” “to or before” a tribunal are wider than the originating decision which gives rise to an appeal. They cover issues of which the tribunal becomes seised during its proceedings, however those issues are raised.

2. The exclusion applies where an Ombudsman investigation would overlap with, and risk trespassing upon, matters which the tribunal may determine or manage. It includes substantial ancillary questions and complaints about procedural failures, non-compliance with rules or directions, or unreasonable conduct. Trivial matters may be disregarded. Jurisdiction turns on the substance of the complaint rather than the complainant’s formulation of it.

3. The description “inextricably linked”, adopted in R (ER) v Commissioner for Local Government Administration [2014] EWCA Civ 1407, is useful but is not a statutory touchstone. That authority establishes that a complainant cannot avoid section 26(6)(a) by reformulating, as a failure to provide a service, the consequences of a decision which was appealable to the Tribunal.

4. The statutory and procedural framework made the young person’s views integral to both the local authority’s decision-making and the Tribunal’s determination. The Tribunal had become seised of the authority’s failure to obtain those views, issued directions concerning it, and resolved the issue through its processes. The Ombudsman therefore lacked jurisdiction over that part of the complaint.

5. The Tribunal’s powers to regulate its procedure, enforce compliance, require documents, extend time and award costs formed a comprehensive framework for managing the alleged procedural defaults and unreasonable conduct. The relevant issues were in fact brought before the Tribunal and were subject to those powers. They consequently fell within section 26(6)(a).

6. The absence of compensation or another complete remedy before the Tribunal did not preserve the Ombudsman’s jurisdiction. Parliament contemplated that the statutory exclusion could leave loss without a remedy.

Elisabeth Laing LJ and Moylan LJ agreed with Stuart-Smith LJ.

1. Court of Appeal (Civil Division): The appeal was dismissed. The Administrative Court was right to uphold the Ombudsman’s disclaimer of jurisdiction under section 26(6)(a) of the Local Government Act 1974.

2. Administrative Court: In [2022] EWHC 1777 (Admin), HHJ Sephton KC upheld the exclusion of jurisdiction concerning the failure to obtain or consider the appellant’s views and the authority’s conduct before the Tribunal. He quashed the refusal to investigate a separate complaint about allegedly false claims that the authority had sought those views. That part of his order was not cross-appealed.