Local Government And Social Care Ombudsman To Investigate Family’s Complaint

The mother of a young adult with autism from Oldham instructed lawyers to investigate after the local government watchdog declined to investigate concerns regarding a council’s conduct during a Specialist Educational Needs and Disability Tribunal (SENDIST) appeal.

In September 2018, Zoe Thompson received a letter from Oldham Council outlining its decision to withdraw the Education, Care and Health Plan (EHCP) for her son Philip Milburn, then age 19, who has autism.

On behalf of Philip, Zoe lodged an appeal which was ultimately successful. The local authority was ordered to maintain Philip’s EHCP and put a bespoke package of educational provision in place for Philip.

Whilst delighted that their Tribunal appeal was successful, Zoe and Philip were left very concerned with how the local authority had dealt with the matters during the course of the appeal. Specific concerns included:

• The local authority made an allegation that Zoe was preventing Philip’s from ‘putting his views forward’ and was not properly undertaking her role as Philip’s litigation friend.

• The local authority alleged that Zoe had engaged in ‘litigious behaviour’. It should be noted that the SENDIST appeal was upheld; the local authority were ordered to maintain the EHCP and put in place a bespoke package of education for Philip.

• The local authority failed to obtain Philip’s wishes and feelings during the SENDIST appeal and when provided with evidence as to this, chose to ignore it; specifically in relation to Philip stating he did not wish to attend a college setting.

As a result, Zoe and Philip issued a formal complaint to the Local Government and Social Care Ombudsman (LGO) regarding the “unreasonable” conduct of the local authority during the Tribunal proceedings.

Philip instructed specialist public law and human rights lawyers at Irwin Mitchell to represent him after the LGO decided against looking into their claims regarding how the local authority had acted during the course of the Tribunal.  The LGO stated that it was beyond its remit or expertise and outside its jurisdiction as the matters were considered as part of the SENDIST Tribunal appeal.

However, following a challenge from the lawyers at Irwin Mitchell, in June this year the LGO performed a U-turn and confirmed that it was of the view that the conduct of the council “may be separable from the appeal” and the investigation into Zoe and Philip’s complaint was to be re-opened.

Zoe and Philip are delighted with the result and Zoe explained: “When Philip and I first heard that the council had decided to withdraw his EHCP, we were devastated.  Without this package of provision and support, Philip’s mental health would most definitely go downhill, so we felt we had no option but to appeal against it.

“In the lead up to the appeal, we were told that Philip would continue to have access to an appropriate level of education, but this wasn’t the case. 

“As if this wasn’t enough, I was then accused of stopping Philip from expressing his views and that our appeal was an ineffective use of public funds.  This was untrue and hurtful. Throughout all of this we feel the council has been unreasonable. Philip is my main priority and I only want what is best for him which is to maintain his EHCP. The way that the council conducted itself when communicating with me and Philip felt dismissive . It was extremely distressing and stressful, causing Philip to self-harm.

“Through all this, Philip feels that there have been so many promises made and broken, which is deeply upsetting.

“To be told that the LGO would not be following up our complaint was awful.  We are delighted that the decision has been reconsidered and an investigation is now under way.

“All we hope for now is that the council can learn lessons from this so no one else has to go through this in the future.”

Expert Opinion

“Philip and Zoe are understandably disappointed at the way Oldham Council has dealt with their case first and foremost, and then what they believe to be the unsatisfactory initial response they received to their official complaint.

Philip is a young adult with autism, and Zoe was upset to hear that her actions were in question as to whether or not they were made in the best interests of her son. She also feels he was not provided with the level of education required by law pending the outcome of the Tribunal.

They were therefore understandably upset to be told that the LGO would not consider how the council had acted during the course of the Tribunal appeal.

We are therefore pleased to have been able to help Zoe and Philip towards the result they were hoping for, with the LGO now re-opening the investigation into her complaint.

This is an important case as it confirms the LGO can and should look into any complaints parents and young people make about how local authorities have acted during the course of legal proceedings.”
James Betts - Associate Solicitor

Find out more about Irwin Mitchell's expertise in handling public law and human rights cases