Is the LGO correct to tell me that it cannot investigate my complaint because I used my right to appeal to the SEND Tribunal?
I made a complaint to the LGO in relation to the LA's refusal to provide recompense for the legal costs I was forced to incur as a direct result of the LA’s substantial and persistent failings.
The LGO has just responded to say that it cannot investigate my complaint because I used my right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) and this places the matter outside the LGO’s jurisdiction. The LGO referred to section 26(6)(a) of the Local Government Act 1974 to support this decision.
I understand that the LGO can’t consider a complaint where someone has already appealed to a Tribunal about the same matter but am confused as to how the Council’s refusal to provide recompense falls within the definition of the same matter.
The matter that came before the Tribunal in July 2022 was an appeal against the contents of my daughter’s EHCP – Sections B, F and I. The matter that I brought to the LGO was the LA’s decision not to provide recompense for the legal costs I was forced to incur because of their maladministration and service failure.
I had been advised that the general rule in the SEND Tribunal jurisdiction is that there should be no order for costs. We therefore made no request for costs. Further, the LA’s Assistant Director of SEND had told me in a meeting before the Tribunal that he would consider my request for recompense of legal costs if I put it to him in writing. I did this after the Tribunal. At the same time, I asked for recompense for loss of educational opportunity, loss of income and for emotional costs.
The LA agreed to provide recompense in relation to those costs, but not for the legal costs. It was this decision – made in October 2022 - that I made a complaint about to the LGO.
The LGO replied and told me that I had to go through the LA’s complaints procedure. I did what they asked and spent the next 5 months going through the LA’s lengthy two-stage process. When I eventually got the LA’s ‘final outcome’, I went back to the LGO. This has resulted in the decision that I’ve just received - that the LGO can’t investigate my complaint because it doesn’t have jurisdiction.
Firstly, I am frustrated because if this is the case then surely the LGO must have known this in October 2022? It could have saved me a lot of work, stress and anxiety if it had told me this rather than telling me that I had to go back to the LA and go through their formal complaints’ procedure; and secondly, how does my complaint fall within the same matter?
The LGO’s reasoning is that the legal costs are a consequence of the matter about which I appealed and therefore it cannot consider whether the costs I incurred resulted from fault on the Council’s part. It says that the Courts have held that matters relating to the subject of the appeal are caught by this and therefore there is no role for the Ombudsman here. Is this right or do I have any further rights to appeal this decision? Disappointingly, the LGO decision does not set out the cases where the Courts have held this – as I would be interested in reading them.
I believe that this case highlights a very real issue in relation to SEND law and access to justice.
Many thanks in advance for any answers to my question.
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