Public Law And Human Rights Lawyers Instructed By Mother And Autistic Son

The High Court has handed down judgment in the case of an autistic young man who instructed lawyers after a local government watchdog refused to look into his and his mother’s complaints over a council’s conduct during a Special Educational Needs and Disability Tribunal appeal.

Philip Milburn is autistic and has an Education, Health, and Care Plan (EHCP).  In September 2018, Philip’s mother, Zoe Thompson, received a letter from Oldham Council communicating their decision to withdraw the EHCP for Philip, who was aged 19 at the time. This meant the council would cease to secure special educational provision for Philip as specified in his EHCP.

Zoe lodged an appeal on behalf of Philip through the Specialist Educational Needs and Disability Tribunal (SENDIST), which was successful.  As a result, the local authority had to maintain Philip’s EHCP and implement a bespoke educational package for him.

However, Philip and Zoe had concerns over how the council had acted during the appeal, and made a complaint to the Local Government and Social Care Ombudsman (LGO). The LGO declined to investigate the complaint, stating that it did not have jurisdiction to do so because the matters were ‘inextricably linked’ to Philip’s SENDIST appeal.

Philip instructed expert public law and human rights lawyers at Irwin Mitchell to investigate and challenge the LGO’s refusal to investigate. Following correspondence between Irwin Mitchell and the LGO, the LGO agreed to reopen its investigation in relation to some parts of the complaint, but continued to state a full investigation was outside of its jurisdiction. In particular, the LGO refused to investigate Philip’s complaint that the council had made numerous claims it sought Philip’s views from him when in fact it had not, and that when the council obtained Philip’s views it ignored them. The LGO also refused to investigate Philip’s complaints about the council’s general conduct during the Tribunal proceedings, which included failing to comply with orders, failing to produce adequate documentation, suggesting that Zoe was preventing Philip from expressing his views, and seeking to delay proceedings for a capacity assessment that was unnecessary.

Philip decided to make an application under judicial review for the court to scrutinise the LGO’s decision not to undertake a full investigation.

A hearing was held in the High Court in May. In this week’s judgment, the court ruled that the LGO was wrong to decide that it could not investigate Philip’s complaint that the council had made numerous claims it sought his views when in fact it had not. The Court held the LGO did have jurisdiction to consider this complaint and had not given adequate reasons for refusing to do so.

However, the court concluded that the LGO did not have jurisdiction to consider the linked complaint that the council had failed to obtain his views and, when they did, to take these into account. The court also concluded that the LGO did not have jurisdiction to investigate the council’s conduct during Tribunal proceedings more generally. Nevertheless, the court observed that if the Council had conducted itself in the manner alleged, ‘the behaviour was reprehensible’. Further, the court stated that ‘the Council’s failure to seek and consider Mr Milburn’s views was egregious, having regard to the Councils’ statutory obligation to consider them, and particularly deplorable in light of Mr Milburn’s vulnerability.’

In reaching its conclusion, the court made important observations about the LGO’s jurisdiction to investigate complaints against local authorities where there has been a SENDIST appeal. The court held that the question is whether the substance of the complaint is something in respect of which the complainant has a right of appeal before the Tribunal. The question is not whether the complaint was ‘inextricably linked’ to the SENDIST appeal.

Expert Opinion

“When Philip made an appeal against Oldham Council’s decision, he expected the matter to be dealt with professionally and empathetically, so when he expressed his concerns he was disappointed when these weren’t followed up.

The decision to take this to the High Court was not taken lightly, but Philip felt he was left with no other option.

We therefore welcome the decision that the LGO were irrational not to investigate Philip’s complaint relating to the council making misrepresentations that they had sought his views. This is a positive step forward in ensuring that people with special education needs and their families have the right to have complaints of this nature investigated by the LGO.

However, we’re disappointed that the court did not find that the LGO had to investigate Philip’s other complaints on the basis that Philip had a right to appeal with the Tribunal as we felt we put forward strong legal arguments on behalf of Philip and will continue to support them in his case.

Positively, this means that the LGO will need to reconsider investigating Philip’s complaint that the council made misrepresentations about seeking his views.

However, this judgment unfortunately means that families may still be restricted in what the LGO will investigate when Tribunal proceedings have taken place. It means that if councils have poor conduct during Tribunal proceedings and fail to undertake crucial steps, such as obtaining someone’s views, people with special educational needs and their families will have no opportunity for this to be independently investigated and no access to a remedy if a failure has taken place. Philip intends to seek permission to apply to the Court of Appeal to reconsider this judgment and we will continue to support and represent him in his case.”
Liz Davis - Solicitor

Following the judgment, Zoe said: “The decision made to withdraw Philip’s EHCP was incredibly upsetting for us to hear and we felt that we had to do everything in our power to make sure this wouldn’t happen.  He relies heavily on the support and I dread to think how he would be without it, so we had to appeal.

“While we were grateful that Philip’s EHCP was maintained, the way we were treated throughout the appeal was terrible.  The council has acted unreasonably throughout the whole process, to the point where Philip has been extremely distressed.

“To then be told that our concerns weren’t going to be looked into was another blow.  We therefore want to thank the courts for hearing our case and we are pleased with the court’s conclusion that the LGO should reconsider investigating whether the council made misrepresentations about seeking Philip’s views, but are disappointed that we were not successful in all our legal arguments and we are taking legal advice on whether this aspect of the judgment can be challenged.

“My focus through all of this has been Philip’s wellbeing. To his credit, Philip’s focus has been justice - to right a wrong. We both hope that by speaking out it will prevent other families from going through similar experiences in the future.”

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