John Bethell successful in Court of Appeal challenge to Ombudsman’s jurisdiction


The Court of Appeal (Stuart-Smith, Moylan and Laing LJJ) has handed down its judgment in R(Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207, a case concerning the limits to the Local Government and Social Care Ombudsman’s jurisdiction to investigate complaints, under s.26 of the Local Government Act 1974, where the complainant has (or could have) made an appeal to the First-tier Tribunal (Special Educational Needs and Disability).

The Claimant, Mr Milburn, was a young man with special educational needs. A dispute arose as to the educational provision that should be made by his local council and the SENDIST Tribunal ordered the provision proposed by his mother. Subsequently, Mr Milburn complained to the Ombudsman about related matters, including the council’s failure to seek his views and various aspects of the council’s conduct during the appeal. The Ombudsman found that these parts of the complaint were excluded by s.26(6)(a) of the 1974 Act because they were matters in respect of which Mr Milburn had a “right of appeal, reference or review to or before a Tribunal”. On Mr Milburn’s application for judicial review, His Honour Judge Sephton KC, sitting as a Deputy High Court Judge, agreed with the Ombudsman on these points: [2022] EWHC 1777 (Admin).

The Court of Appeal upheld the decision below, essentially for the reasons given by HHJ Sephton K. Delivering the leading judgment, Stuart-Smith LJ observed at [61] that “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.” He drew attention, at [64], to the close similarity between the wording of Mr Milburn’s complaint to the Ombudsman and the written submissions made before the Tribunal on his behalf and concluded that the Ombudsman’s decision “when read fairly and in context, is unimpeachable”, at [66].

Considering the legislative framework that applies to the Tribunal and the Ombudsman, including the Children and Families Act 2014 as well as the 1974 Act, Stuart-Smith LJ held that:

  • The well-known observation of Lord Denning MR in R v Local Commissioner for Administration for the North and East of England ex parte Bradford Metropolitan City Council [1979] QB 287 at 310 guided the correct interpretation of s.26)(6) – “Parliament was at pains to ensure that the commissioners should not conduct an investigation which might trespass in any way on the jurisdiction of the courts of law or of any tribunals“: [60]
  • There was no error by the Ombudsman in referring to an “inextricable linkage” between the appeal and complaint (adopting that language from the Court’s earlier judgment in R (ER) v Commissioner for Local Government Administration [2014] EWCA Civ 1407, [2015] ELR 36. “Inextricably linked” should not become a “pseudo-statutory touchstone” but nor had it: [61] [67].
  • The process of consulting a child or young person (and obtaining their views) is integral to a local authority’s duties, and to any Tribunal appeal under s.51(2) of the 2014 Act. The complaint to the Ombudsman about a failure to obtain those views fell within s.26(6)(a) of the 1974 Act: [45], [47], [[65].
  • The s.26(6)(a) exclusion is not limited to matters that can be the subject of an originating process but is wide enough to cover an issue of which the Tribunal may become seised during proceedings, however it may arise: [54]. The complaint about the Council’s conduct during the Tribunal proceedings was therefore also excluded by s.26(6)(a): [71]

John Bethell acted for the Local Government and Social Care Ombudsman, instructed by Bevan Brittan LLP.