The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s refusal to address complaints of discrimination. This is because the Council’s decision is not separable from a matter which we cannot consider by law.
The complaint
The complainant, who I will describe as Ms B, complains that the Council has refused to address her complaints of discrimination against her daughter under the Equality Act 2010.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
The courts have said we can decide not to investigate a complaint about any action by a council concerning a matter which is outside our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council has declined to carry out an Education Health and Care Needs Assessment (EHCNA) of Ms B’s daughter. Ms B has used her right to appeal to the SEND Tribunal against this decision. She complained to the Council that, in the process of making this decision, it failed to make a reasonable adjustment for her daughter and discriminated against her on the grounds of sex.
The Council has declined to consider Ms B’s complaints because she has used her right to appeal. Ms B disagrees with this decision, as the SEND Tribunal will not consider Equality Act duties. She believes the matters should be considered separately.
The Ombudsman will not investigate Ms B’s complaint. The fact that she has used her right to appeal to the SEND Tribunal places all matters relating to the decision subject to appeal outside our jurisdiction. This is the case even though the SEND Tribunal cannot provide Ms B the scrutiny she is seeking.
Whether the decision not to carry out an ECHCNA was characterised by discrimination under the Equality Act is a matter which can only be definitively determined by the courts. The matter is inextricably linked with the decision not to carry out the EHCNA and does not itself fall to the Ombudsman to consider. That being the case, we will not investigate the Council’s refusal to consider Ms B’s complaint about it.
Final decision
We will not investigate Ms B’s complaint because it is not separable from a matter which falls outside our jurisdiction.
Investigator's decision on behalf of the Ombudsman