It has been a turbulent few weeks for Oldham Metropolitan Borough Council. Or, as some might say, even more unsettled than has become the norm.
After losing its Leader at the local elections for the second successive year, following a widely condemned, and reported, smear campaign against the ruling Labour Party, the publication, on 20th June, 2022, of a long-delayed report into child sexual exploitation and safeguarding in the town has led to widespread condemnation of Oldham Council (and Greater Manchester Police) over what can, charitably, be described as ‘grotesque failings’. The adverse press and broadcast coverage, ever since, has been relentless and very highly critical.
Earlier this week, in a much less heralded event, the High Court handed down a hard-hitting 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 the same 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, whom was 19 years old 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.
Following what appeared to be an inexplicable decision to both him self and his mother, 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 watchdog agreed to re-open 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 for judicial review to enable the court to scrutinise the LGO’s decision not to undertake a full investigation and whether that was a decision that was lawfully open for them to take.
A hearing was held in the High Court in May, 2022. In this week’s judgment, the court ruled that the LGO was wrong to decide that it could not investigate Philip’s complaint relating to the council having made numerous claims it had 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 Oldham 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.
Liz Davis, a Solicitor in Irwin Mitchell’s Public Law & Human Rights Department and a specialist in Court of Protection and community care cases, says:
“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 found to be 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 educational 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 he had a right to appeal with the Tribunal as we felt we put forward strong legal arguments on his behalf 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 re-consider this judgment and we will continue to support and represent him in his case.”
Following the Administrative Court judgment, Zoe Thompson said:
“The decision made [by Oldham Council] 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.”
Zoe Thompson (pictured front right), is Founder, Proprietor and Head of Development at Bright Futures School. Opened in 2010, it specialises in provision for children with autism and brings a new approach to autism education to support the social and emotional development of children. Philip is pictured back centre. The occasion was the receipt of a £7,080 Big Lottery Fund grant.
Neil Wilby, the author of this article, and adjacent, as an investigative journalist and court reporter, to a number of other regrettable OMBC operational and legal shortcomings, says:
“Taken in isolation, the Administrative Court’s judgment makes for shocking reading, not least over the council disobeying Court Orders. Taken together with the recent CSE Assurance Review report, in which the highest profile failings attached to a CSE survivor anonymised as ‘Sophie’ it demands urgent action against those senior paid officers responsible for the appalling mistreatment handed out to Philip Milburn and his mother. Sophie, and her lay advocate, Maggie Oliver, also both complain bitterly that Oldham Council lied to her, and about her, during the Assurance Review process. They also make the valid point that not a single officer in the council has ever been held to account, over a series of grotesque failings, including highly inappropriate letters from the council’s Legal Services Department, since Sophie was raped multiple times as a 12 year old in 2006″.
Oldham Council has been asked to respond to a series of specific questions concerning the court’s findings and the judge’s remarks.
The LGO press office has been approached for a statement following publication of the judgment and the adverse finding against them.
Page last updated Saturday 9th July, 2022 at 1315hrs
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