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High Court finds that Ombudsman did not give enough reasons for refusal to investigate complaint

A Local Government and Social Care Ombudsman's (LGSCO) position that it could not investigate an autistic man's complaint that Oldham Council had made numerous claims it sought his views, when in fact it had not, was wrong, the High Court has ruled.

In the Administrative Court, within the Queen's Bench Division, HHJ Sephton QC also held in Milburn, R (On the Application Of) v The Local Government and Social Care Ombudsman [2022] EWHC 1777 (Admin) that the Ombudsman did have jurisdiction to consider the complaint and had not given adequate reasons for refusing to do so.

The dispute arose when Oldham Council informed the man, Philip Milburn, that it was set to withdraw his Education, Health, and Care Plan.

Mr Milburn, aged 19 at the time and who has a diagnosis of Autism Spectrum Disorder, appealed the council's decision through the Special Educational Needs and Disability Tribunal (SENDIST).

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The SENDIST appeal was successful, but the claimant had concerns over how the council had acted during the appeal and decided to complain to the Ombudsman.

Despite the complaints, the Ombudsman declined to investigate, stating that it did not have jurisdiction to do so because the matters were "inextricably linked" to the man's SENDIST appeal.

In particular, it refused to investigate the man's complaint that the council had made numerous claims that it had sought his views when it had not, and that when the council obtained his views, it ignored them.

The Ombudsman 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, and seeking to delay proceedings.

The man then decided to pursue a judicial review of the Ombudsman's decision not to undertake a full investigation.

At the High Court, HHJ Sephton QC ruled that the Ombudsman's decision not to investigate Mr Milburn's complaint that the council had made numerous claims it sought his views when in fact it had not, was wrong.

The judge held the Ombudsman did have jurisdiction to consider this complaint and had not given adequate reasons for refusing to do so.

He said: "It seems to me that the fact that a council is making claims that it has complied with a statutory obligation when in fact it has not is at least arguably maladministration of a kind that the Ombudsman can investigate."

However, the judge also concluded that the Ombudsman 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.

He said: "[In] my view there can be no doubt that the failure to obtain and act on Mr Milburn's view was something in respect of which he had a right of appeal to a tribunal," the judge noted. "It therefore fell outwith the jurisdiction of the Ombudsman."

The judge also found that the Ombudsman did not have jurisdiction to investigate the council's conduct during tribunal proceedings more generally.

Liz Davis, a lawyer at Irwin Mitchell representing Mr Milburn, said the decision was 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."

She added: "[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."  

The judge invited the parties to agree a form of order on the basis of his judgment.

A spokesperson from the Ombudsman said: “We investigated the vast majority of this complaint but there was one part of it we believed would have overstepped our legal powers to investigate. We recognise the massive difficulties faced by lots of families of children with Special Educational Needs and take their complaints very seriously. We investigate a large number of their complaints every year, and are currently upholding nearly 90% of those we investigate.

“The High Court has now provided clarity on a complicated area of law and we will reflect on the judgment and how it impacts on our casework in this area. Unfortunately, there are some areas the law does not allow us to investigate and, as the judge in this case has acknowledged, how a council acts during an ongoing tribunal appeal is one of these.”

Adam Carey

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