Court dismisses mother’s appeal regarding son with SEN on the basis that the Local Government Ombudsman had no jurisdiction to investigate the consequences of a local authority’s decision


Re: R (ER) v Commissioner for Local Administration & Anor [2014] EWCA Civ 1407

The appellant is a mother of a boy, N, with special educational needs and physical disabilities. He has a Special Educational Needs statement. After his placement at a special residential school broke down, the local authority undertook a consultation process and eventually named Moorcroft School as the school N would attend, as it was looking for provision for N for 38 weeks per year rather than the 51 weeks offered by the appellant’s preferred choice, Penhurst. The appellant was dissatisfied with this choice and appealed to SENDIST. The tribunal ordered that N’s Special Educational Needs statement should name Penhurst as the school N should attend, on the basis that N had an urgent need for a highly specialised, highly flexible, and extended educational curriculum and Penhurst was an adequate and appropriate placement, whereas Moorcroft was not.

The appellant then complained to the Local Government Ombudsman regarding the failure of the local authority to provide N with any education between (1) Nov 2006 and Nov 2007 and (2) Nov 2007 to Jun 2008. The LGO upheld the complaint regarding the first period and recommended financial compensation. However, it rejected the complaint regarding the second period on the basis that the local authority had offered education for that period at Moorcroft and although SENDIST had found it unsuitable, it was not for the LGO to determine the suitability of education.

The appellant sought judicial review of this decision but her application was dismissed. She appealed. The Court of Appeal looked at the statutory framework, including the Local Government Act 1974, s 26(6) which states that a LGO shall not investigate matters in respect of any action regarding which the person affected has or had a right of appeal, reference or review to or before a tribunal. The Court of Appeal noted that the key question for them was whether the LGO had jurisdiction to investigate the allegation of the local authority’s failure to provide education during the second period, or whether this jurisdiction was excluded by s 26(6).

The Court of Appeal held that the LGO’s jurisdiction to investigate was excluded by s 26(6) and dismissed the appeal. The local authority’s decision, whether viewed as naming an unsuitable school or the failure to name a suitable school, was clearly an “action” in respect of which the appellant had a right of appeal to a tribunal, namely SENDIST.

David Wolfe QC was involved in this case.