Council acted 'unreasonably throughout', insists mother following special needs tribunal

Oldham Council have been criticised in the case of an autistic man from Oldham after a local government watchdog refused to look into his complaints over the 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 informing her of 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 plan 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.

Philip instructed lawyers at Irwin Mitchell to investigate and challenge the LGO’s refusal to investigate.

Following correspondence between the solicitors 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 did obtain Philip’s views, it ignored them.

The LGO also refused to investigate 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 said 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 said that if the Council had conducted itself in the manner alleged, ‘the behaviour was reprehensible’.

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.’

Liz Davis, the lawyer representing Philip, said: “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.

“However, this judgment unfortunately means that families may still be restricted in what the LGO will investigate when Tribunal proceedings have taken place."

Following the judgment, Philip’s mother, Zoe Thompson 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.”

---

Do you have a story for us? Want to tell us about something going on in and around Oldham? Let us know by emailing news@oldham-chronicle.co.uk , calling our Oldham-based newsroom on 0161 633 2121 , tweeting us @oldhamchronicle or messaging us through our Facebook page. All contact will be treated in confidence.