Thursday 7 July 2022

The judgment on our judicial review of Local Government Ombudsman (LGO) has been handed down: it’s a partial win. We are appealing on the parts that we didn’t win. Here is a summary of what’s happened. 

Philip and I appealed to the SEN Tribunal when our local authority (LA), Oldham, attempted to cease his EHC plan and deny him the bespoke package of educational provision that he was requesting. Oldham LA wanted Philip to go to a mainstream college and ignored him when he kept telling them that he didn’t want to and wouldn’t attend college. 

Before the case got to the Tribunal, the LA agreed not to cease the EHC plan and the appeal to Tribunal became focused solely on the question of bespoke educational provision vs college. 

It took about 9 months to get to the Tribunal hearing. During this time, I was in constant correspondence with the LA over the case. 

The LA’s behaviour, embodied by one person in particular – Shirley Woods-Gallagher (at that time, Assistant Director for Education) - was abysmal: goalposts kept changing. Promises were made and broken. The LA failed to comply with Tribunal orders, failed to produce adequate documentation, and sought to delay proceedings for a capacity assessment that was unnecessary. Allegations were made by Ms Woods-Gallagher which included suggesting that I was preventing Philip from expressing his views. I was accused by the LA solicitor of ‘engaging in litigious behaviour’. 

We were simply trying to get Philip’s needs met properly, using entitlements that are enshrined in law. I felt bullied and gaslighted. Philip felt marginalised, ignored and demeaned. His mental health was suffering - at times he was self-harming. He developed a tic. The LA knew this (because I told them) and they (represented by Ms Woods-Gallagher) continued in this manner.

We decided to complain to the LGO about Oldham LA’s conduct in the run up to and during the Tribunal appeal. 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 that a full investigation was outside of its jurisdiction. 

The Ombudsman refused to investigate the following two parts of Philip’s complaint: 

1. Philip’s views: 

i) The Council made numerous claims they had sought Philip’s views from him but did not obtain his views. 

ii) When the Council received evidence of Philip’s views, they ignored them. 

It is important to note here that this issue relating to views is broken down into 2 parts i) and ii) which are separable in legal terms, as that becomes important when considering the final judgment. 

2. Unreasonable behaviour: 

The Council behaved unreasonably in the lead up to the hearing, including failing to comply with orders and deadlines, failing to provide adequate documents, making defamatory and unevidenced statements about my intentions, and seeking to postpone the hearing to obtain a mental capacity assessment. 

The LGO repeated that he could not investigate these complaints because they were ‘inextricably linked’ to Philip’s Tribunal appeal, adding that even if he could investigate the complaints, he had a discretion allowing him to decide whether to investigate and decided not to investigate. 

Using Judicial Review, Philip then challenged the decision of the LGO not to investigate these parts of his complaint about the Council. The hearing took place in the High Court in early May. 

The Judicial Review had to determine what section 26(6) of the Local Government Act 1974 means. This was important not just for Philip’s case but for all cases where there is a SEND Tribunal where a parent of a child, or young person might want to complain to the LGO about a Council’s conduct. This is because the LGO refuses to investigate lots of complaints about local authorities on the basis that the complaint is “inextricably linked” to a Tribunal appeal. 

The Court also had to decide whether in Philip’s specific case the LGO made a rational decision in refusing to investigate, and whether he gave good enough reasons for his decision. 

The Court’s decision 

The court ruled that when deciding whether the LGO is able to investigate a complaint, the question is ‘whether the substance of the complaint is something in respect of which the complainant has a right of appeal, reference or review before a tribunal.’ If it is, then the LGO cannot investigate. 

Philip’s views 

In relation to Philip’s views part i), the Judge ruled that the LGO could investigate the complaint that the Council made numerous claims they had sought Philip’s views when in fact they had not as this had not been the subject of the appeal to the Tribunal. 

This means that the LGO needs to go back and reconsider whether to investigate this part of Philip’s complaint. The LGO cannot refuse to investigate this part of the complaint by arguing section 26(6) prevents him from investigating. However, as he has the ability to exercise his discretion, he may decide not to investigate. If he decides not to investigate, our legal team will have to consider his reasons and advise as to whether we can challenge them. 

In relation to Philip’s views part ii), the Judge ruled that the Ombudsman could not investigate the complaint that the Council failed to obtain Philip’s views and then ignored his views. This was because the Judge held that the Council had ceased to maintain Philip’s plan because they had not considered Philip’s views. Therefore, the substance of Philip’s appeal in the Tribunal was that the Council had failed to consider his views. 

Our legal team’s view is that the appeal to the Tribunal was about a) the decision to cease Philip’s plan, and then b) the provision specified in Philip’s plan. That is different to a complaint about not obtaining or taking into account Philip’s views. 

Therefore, in our team’s view, the complaint to the LGO was not in substance the same as the appeal to the Tribunal. 

In relation to complaint no. 2 (unreasonable behaviour), the Judge decided that the LGO could not investigate the complaint about the Council’s actions in the lead up to the Tribunal, such as missing deadlines etc. This was because the Tribunal has case management powers and the missing of deadlines etc were all things that could have been referred to the Tribunal for consideration. 

It seems clear to me that whilst the Tribunal has case management powers in relation to missed deadlines etc, it does not have the power to investigate bullying behaviour (gaslighting and making defamatory and unevidenced statements about my intentions etc) or seeking to postpone the hearing to obtain a mental capacity me that seems irrational.

Our legal team is of the view that the LGO should not be prevented from investigating just because an issue (for example, that the Council missed a deadline) can be raised in Tribunal proceedings in passing. 

Impact of the judgment 

For us personally, this means that the LGO will have to reconsider whether to investigate Philip’s complaint that the Council stated numerous times that they had obtained his views when in fact they had not. 

Our legal team thinks the Judge in the High Court made a legal error in deciding that the LGO could not investigate the other parts of Philip’s complaint (including the LA’s unreasonable behaviour) and we are appealing these points (sigh). 

More generally, the silver lining in the cloud is that in future, the LGO should not apply the “inextricably linked” test to decide whether or not to investigate complaints in the future. 

The Court has given a clear warning that applying this test can lead to mistakes being made. 

The Judge’s comments 

The Judge observed that if the Council had conducted itself in the manner alleged, ‘the behaviour was reprehensible’. 

Further, the court stated: ‘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.’ 

At the hearing on 6 July 2022, the Judge took the time to say: “I do take a moment to repeat to Philip that I am not at all pleased at the way the complaints you’ve made to the Council were not treated with the seriousness they deserved. It is unfortunate the court has been unable to give you a better remedy than the limited one I am able to give you.” 

I just want to pay tribute here to Philip. This long-winded and torturous process has at several junctures and for prolonged periods taken a huge toll on his mental wellbeing…..but he is still fighting on with an appeal because he wants to see justice done. I am extremely proud of his resilience and determination, and I take my hat off to him. I hope you do too.