Local Government Ombudsman

Written evidence submitted by Robert Murrow and Debbie Sayers

Summary

· These submissions are made by a group of parents who have used the LGO to complain about failures in Local Authority provision for their children who all have statements of special educational needs.

· The authors and contributors wish to comment, primarily, on the LGO's arrangements for handling complaints and the impact of its work in this area.

· Common problems have been encountered including a failure to understand the law relating to the LGO's remit and its powers and a failure to work effectively within a human rights and public law framework to promote the rights of the child.

· Concerns are also raised relating to apparent bias, the lack of appeal against decisions, a general lack of transparency in decision-making, an over-reliance on local settlement and the failure of LGO determinations to bring about real systemic change at local authority level

· Suggestions are made for reform.

Introduction

1. This submission is the result of collaboration between an informal group of private individuals who have experience as parents/carers of the statutory special educational needs ("SEN") system. Experiences have been shared by parents living in a variety of different locations in England and Wales and in a range of different ways, for example, through personal association, internet forums and support groups or via local support groups and organisations.

2. The delivery of provision to children with SEN is fundamental to any concept of effective inclusivity in our mainstream schools. One in five pupils – 1.7 million school-age children in England – are identified as SEN. [1] Pupils with special educational needs are categorised, using the 2001 Special Educational Needs Code of Practice, according to the degree of support they require. Support is organised via a graduated pathway: School Action, School Action Plus and a statement. At January 2010, only 2.7% of school-aged children and young people had a statement of special educational needs. [2] These children represent the most vulnerable in our school system.

3. The term SEN encompasses a wide range of complex and significant difficulties. The established categories of SEN are: specific learning difficulty, moderate learning difficulty, severe learning difficulty, profound and multiple learning difficulty, behavioural, emotional and social difficulties, speech, language and communications needs, a hearing impairment, visual impairment, multi-sensory impairment, physical disability and autistic spectrum disorder. [3] Many of these SEN also constitute disabilities and the vast majority of children with SEN have a disability under the Equality Act. [4] This means that overlapping but distinct legal duties arise in relation to these children: statutory duties under the Education Act 1996 to support their educational needs and duties under the human rights framework which includes the Human Rights Act, the Equality Act and other international obligations. These duties should inform the way we treat children generally and, specifically, children with disabilities. It also means that the majority of children within the SEN framework are exceptionally vulnerable and reliant on specific provision to support their inclusion in education. If a child has a statement of SEN, failure to put this provision in place will breach the Education Act but it may also constitute an act of discrimination under the Equality Act.

4. In England and Wales, the responsibility for assessing SEN and arranging the provision to meet it falls to the local authority ("LA") for the area in which the child resides. The difficulties that parents face in securing provision for their children have been consistently highlighted in a variety of reports, including the Lamb Report and the Government’s recent Green Paper: Support and aspiration: A new approach to special educational needs and disability - A consultation. Securing effective SEN support for a child may be a lengthy, costly, time-consuming and emotionally draining business for parents and carers. The system is complex and lines of accountability between health and educational professionals can be easily blurred. The existence of an effective and impartial system of accountability to secure a child’s provision is of paramount importance.

The oversight role of the LGO in the SEN process

5. Unfortunately, our experience is that many parents of children with SEN encounter significant problems with either the assessment or delivery of provision (or both) to their children by LAs. These problems include poor communication, delay, a failure to provide reasons for decision-making and, commonly, a failure to arrange the provision as legally required by the child’s statement. It is here that the Local Government Ombudsman ("LGO") can play a very valuable role by overseeing administrative practice in this area and encouraging compliance with the law. Ombudsmen are intended to be ‘the independent upholder[s] of the highest standards of efficient and fair administration’. They are guardians of good practice who are able to investigate the effectiveness of systems of local administration rather than just adjudicate on the facts of the specific complaint. The LGO has the power to investigate maladministration in a variety of ways, for example, it can investigate a complaint that a council has failed to deal properly with a child’s special educational needs (SEN). This includes delay in assessing a child and issuing a statement of SEN, and failing to implement a statement or carry out an annual review of it.

6. The LGO is intended to be a thorough, impartial investigator, pursuing direct primary evidence where possible to investigate local authority practice on behalf of the complainant. It may also provide direction on lawful and effective administrative practice to prevent future injustices. In connection with its general remit, the LGO is promoted as being an inexpensive and informal means for a private individual to seek redress where there has been maladministration by a LA. It is promoted as a useful alternative to more costly and formal litigation. In the case of SEN provision, however, for certain things, the LGO represents the only  feasible means for a private individual to seek redress for certain wrongs. Further, a key difference between the courts and Ombudsmen is that the Ombudsman’s approach to fact-finding and dispute resolution is intended to be more proactive, inquisitorial and detailed than the courts’, basing their investigation on direct primary evidence. [5] The LGO, therefore, has a duty to be looking for a culture of compliance with the law and best administrative practice.

7. For the parents/carers of vulnerable children, the LGO offers a crucial safeguard, not only because it has the capacity to offer protection by way of determining maladministration, but precisely because it has the ability to conduct an impartial and broader investigation into local authority practices to "prevent injustice being caused in the future in consequence of similar maladministration". In this way, the Ombudsmen play a critical role in making sure that providers of public services comply with the law and continue to strive for higher standards. However, we are concerned that the LGO is not currently fulfilling this mandate in relation to complaints about local authorities and SEN provision. We believe that a pattern of practice has emerged which reflects potentially systemic deficiencies in the conduct of the LGO’s investigatory and adjudicative functions in this area. The authors make no claim as to the statistical significance of these submissions but our understanding, from the feedback we have received, is that the types of issues we seek to highlight represent the common experience of those parents/carers who lodge complaints with the LGO. Consequently, we believe that it is possible to draw out some common themes from our shared experiences.

Common problems with the practice of the LGO in the oversight of SEN framework

(i) Failure to understand its remit and/or a failure to understand the law

8. "Maladministration" is not defined in legislation but it has been interpreted broadly and is understood to encompass a broad range of administrative failure, including "bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude [and] arbitrariness" [6] . The LGO website sets out specific examples of administrative actions or omissions which may constitute maladministration including the failure to follow procedures or the law, to provide information, to reply and to liaise and consult adequately. These duties are particularly important to the parents/carers of vulnerable children within the SEN system. They are further reiterated in the LGO’s published principles of good administration. [7] It is clear, therefore, that whilst maladministration can apply to matters beyond the strictly unlawful, the LGO should seek to uphold and promote compliance with the law as a matter of basic, good administrative practice. [8] Consequently, although acts of maladministration will not necessarily be unlawful, unlawful actions by public bodies are highly likely to involve maladministration. [9]

9. It is not always clear, however, that LGO investigators are trained sufficiently well to understand and apply these broader principles of good administration practice. Indeed, it sometimes appears that investigators are unaware of the LGO’s own guidance in this area. For example, despite the very clear statutory structure for the protection of the provision supporting children with SEN, we believe that in many cases, the LGO consistently refuses to find maladministration despite clear evidence of non-compliance with the law to the detriment of a child with disabilities. This frequently arises where a LA has failed to put in place the provision required by a child’s statement of SEN. Section 324(5)(a)(i) of the Education Act 1996 makes this duty very clear. The scope and content of this duty has been further defined by caselaw. [10] The courts have consistently rejected LA arguments that LAs should not be blamed where delay or absence of provision is the fault of the health service. The LA’s duty is owed personally to the child and is non-delegable. LAs have plenty of time to arrange provision before the issue of a statement as the statutory assessment period is long and detailed. Put simply, there is "no best endeavours defence in the legislation". [11]

10. However, despite the clarity of the jurisprudence in this area, the very clear obligations at public law to perform this statutory duty, and the possibility that failure to provide also breaches the Equality Act in some cases, the failure to arrange SEN provision will not necessarily result in a determination of maladministration. The LGO will seek instead to provide the LA’s reasons for the failure, effectively establishing a ‘best endeavours’ defence where none exists at law. There is no evidence that the LGO considers whether the LA it is investigating has a functioning system in place to meet the clear and immediate duties imposed by statute and caselaw. No public guidance has been issued on this topic by the LGO to inform the decision-making and actions of LAs and parents. This is worrying and it undermines accountability because it is not at all clear how assessments of maladministration are made in such cases. Put simply, when does non-compliance with the law become maladministration? This also means that very rarely are broader questions relating to the effective functioning of LA SEN systems investigated. Our evidence is that this may result in parents being compelled to make repeat complaints about multiple failures of provision.

11. Similarly, in relation to issues of injustice, the LGO often seeks evidence of any ‘progress’ made by the child in spite of an absence of its statutorily entitled provision. The broader question of injustice in the sense of the denial of a child’s right, distress to the child, and the loss of opportunity to make more significant progress is disregarded. Injustice is not statutorily defined but has been construed flexibly to include pure economic loss, distress, lost opportunity and even "the time and trouble" spent in pursuing a complaint. Injustice is, therefore, broader than the recognised heads of loss in tort and it requires no legal causation. It is sufficient that the "injustice" arises from the fault of the local authority and there is no definition in law that injustice has to be of any specific level or quantity. However, even in cases where the LGO finds maladministration, it has frequently resorted to relying on the decisions of third parties such as SENDIST (Special Educational Needs Tribunal) to determine questions of injustice, even though such Tribunals have a wholly distinct and far narrower remit in relation to SEN. We are concerned that this approach to injustice is erroneous. Injustice following maladministration in failing to arrange statementing provision is not a matter for SENDIST but for the LGO and it is a much wider issue than the presence or otherwise of educational progress. The impact of maladministration must be assessed, primarily, through the eyes of the child who has been failed.

(ii) Failure to take account of the human rights framework

12. This failure to find injustice where a child with SEN and/or disabilities is deprived of its legal entitlements is particularly significant in light of the human rights framework within which the LGO must operate. The LGO is a ‘public authority’ under Human Rights Act (HRA) and so is subject to the same legal duties as providers of public services. The Act requires all public authorities to uphold these rights. The HRA creates a broad legal and ethical framework to ensure fairness and respect for users of public services and to promote a ‘human rights culture’. Public bodies are required to promote rights which in turn will help to build confidence in public services. The LGO is subject to this obligation and has confirmed that "[The Human Rights Act has] brought clarity to what we already do."

13. In respect of the LGO, the human rights framework should form part of the criteria for good administrative practice in all relevant investigations. It should also influence any guidelines which advise on good administrative practice as they aim to provide a practical application of human rights principles based on the concept of fairness. [12] Indeed, the courts have lent judicial weight to the view that Ombudsmen have a potentially distinctive human rights role to play. [13]

14. This human rights work extends beyond the HRA and the ECHR it implements. It is submitted that other rights and duties fall within this framework and that perhaps the most obvious of this is right to be free of discrimination for a protected characteristic under the Equality Act. The protection against disability discrimination is contained within the Equality Act 2010 and must also form part of the LGO’s frame of reference when considering maladministration, prioritising the Ombudsmen‘s protective purpose in safeguarding the individual from the effects of poor administrative action. Consequently, although it is not the LGO’s job to make findings of law, it has an obligation to ensure that public bodies within its remit recognise and respond to the rights and individual needs of disabled people. This is an approach that is informed by, but distinct from, the legal enforcement of those disability rights contained in the Equality Act 2010 .This explicit duty to take into account the rights of the individual in the oversight process is made clear in the Ministry of Justice‘s 2009 guidance "Human Rights Framework as a Tool for Regulators and Inspectorate" which confirms that:

"where the public services you are regulating or inspecting are provided to disabled people you should take account of the provisions of the UN Convention on the Rights of Disabled Persons, as well as the Human Rights Act". [14]

15. In reality, although the LGO itself confirms that it regularly uses these human rights standards to assess complaints and that such a framework "adds moral weight and authority to [its] decision", [15] we have come across no evidence from the parents/carers of vulnerable children with disabilities that this framework forms part of the LGO’s reasoning in judgments. The rights of the child, and in particular the rights of the child with disabilities, are constantly compromised in assessment against the excuses made by LAs for breaching these rights.

(iii) Failure to understand its public law obligations

16. The LGO also functions within a broader statutory and public law framework. Like local authorities, its actions are governed by general public law principles. This is because all public bodies must act in accordance with the law even if they are afforded a degree of latitude when deciding how best to exercise their discretion. [16] Consequently, the actions of the LGO, like those of local authorities, may be the subject of judicial review to request that the courts strike down decisions which are unlawful, that is that they are illegal, irrational or made without procedural impropriety. This is a way of holding public bodies to account for their acts and omissions. [17]

17. However, our experience is that LGO investigators frequently have very little understanding of the overriding duty of the LGO as a public body to act in accordance with the basic principles of public law, namely to act lawfully, reasonably and with procedural propriety. We have encountered numerous examples of incorrect statements relating to the purported role of the LGO, the nature of maladministration or injustice and erroneous applications of the law.

(iv) Failures in the investigative process

(a) Perceived bias

18. There is a general sense among the contributors that the conduct of an LGO investigation is considerably biased towards LAs. In all cases of complaints to the LGO considered herein, the investigator appeared to prioritise the evidence given by LA witnesses, often relying on secondary opinion evidence rather than seeking primary evidence in the event of a dispute. Very little effort, if any, was made to investigate the complaint from the complainant’s point of view and to seek independent evidence where it existed. Indeed, many authors experienced an active refusal by the LGO investigator to speak with a complainant's witnesses. It was felt by all contributors that consistently, in conducting their investigation, the LGO investigator put much more effort into assisting the council to make defensive submissions to the LGO, and conversely, made it difficult for the complainant to elucidate their complaint. It was also perceived that while the LGO investigator may be happy to arrange a face to face meeting with the LA complained about, it offered no such face to face meeting with the complainant or their witnesses.

19. It was felt by all of the contributors that their LGO investigator(s) had consistently chosen to believe the evidence of the officer of the LA complained of in preference to the evidence of the complainant or one of the complainant's witnesses. This was the case even where documentary and witness evidence was available to the LGO showing that a claim made by the LA was demonstrably false.

(b) Failure to include the complainant in the process

20. Frequently, there is little contact between a complaint being made and initially discussed with an investigator and the provisional view being issued. This means that, where an investigator fails to understand the complaint or where other issues arise as a result of inquiries to the LA, clarification was rarely sought. Even where clarification was provided, the investigator sometimes failed to understand nuance or to discuss the issues with the complainant before making a final decision. It was also noted that LAs may undergo many months of discussion with the LGO before a agreeing the terms of a provisional view (or local settlement) with the LA but that a complainant, when confronted with the agreed fait accompli, is generally given only a couple of weeks to respond.

21. Investigators also failed to seek advice on legal issues. It is not uncommon for complainants to have to raise legal issues and request further investigation, resulting, sometimes in recourse to paid legal representation and more than one provisional view being issued. This can mean lengthy delays. Complaints may take over a year to resolve despite the fact that they concern children’s provision. Some commentators also noticed reticence on the part of the LGO investigator to ensure transparency as to the procedure of the investigation and the rights of a complainant in relation to the process.

22. These concerns about the investigatory process are particularly alarming given that a private individual is often at a disadvantage in comparison to an LA which has extensive experience in fielding such LGO complaints and investigations. Additionally, parents/carers of children with SEN are often very busy dealing with the daily challenges of having a child with complex needs. Having to pursue a complaint to the LGO is an additional burden which for many is too much. The LGO should be actively assisting complainants to explain their complaint as fully as possible and helping them to resolve the complaint impartially and fairly. It should be giving children a voice.

(c) Delay

23. For SEN complainants, time is of the essence. The most vulnerable children in our society are missing valuable and often much needed time and support in education. For a government so very concerned about parents taking their child out of school for a week for a holiday, and proposing draconian and severe punishments to those parents who cause their child to miss a week, SEN children are often out of any education (or provided with a significantly inadequate education) for weeks, months, and sometimes years, in spite of parents best efforts to secure an education.

24. Complaints to the LGO may take a year to resolve in which time, parents and carers report that placements may have broken down and relationships deteriorate with schools and LAs because of lengthy investigations. Delay in such circumstances is unacceptable.

(d) Local settlements and insufficient deterrence

25. The result of a failure to find maladministration is that some LAs act with impunity as they face very little penalty for their failures. There is no evidence that the LGO considers the functioning of such systems as part of its investigation in to failure to arrange provision. This is not an onerous task. The law is very clear. LAs should be asked to explain what their system is for putting provision in place and that policy and practice should be carefully considered to ensure that the child’s rights are prioritised.

26. Even when maladministration is found, cases are often concluded via the local settlement mechanism. This is not a statutory one and it deprives the complainant of any voice. Complainants may be deeply frustrated by the LGO’s reliance on local settlements.

(e) The Council may just ignore the decision

27. All contributors have yet to receive the suggested remedy. It is not uncommon for multiple complaints to be taken in these types of cases.

Suggestions for reform

We would recommend that consideration be given to reform in the following areas:

1. The LGO should have binding powers to enforce its judgment.

2. LAs should be legally compelled to share maladministration determinations with their elected members, even in the case of local settlements. Democratic accountability must be established. This should be done openly.

3. Elected members should be compelled to act on maladministration determinations and report on action taken annually.

4. Local settlements should be discontinued. The LGO should comply with its statutory mandate to find maladministration or not and should declare maladministration openly on its website where it is found.

5. The LGO should seek to promote the active participation of complainants in the process, particularly in those cases concerning children. It should be creative about bringing parties together to resolve differences. It should welcome feedback from the public and it should map responses which reflect consistent areas of dissatisfaction. It should address these areas openly and it should consult widely.

6. The LGO has the power to move beyond individual complaints and facilitate systemic change by recommending reviews of procedure, policy and practice. In this way, individual complaints can result improvements to administrative practice for all. This also promotes good governance. The LGO should use this power in a consistent and transparent way, pulling together evidence from its cases in a thematic and non-adversarial way. It should publish evidence on its website.

7. The LGO should publish every maladministration determination on its website, including cases involving local settlements.

8. LGO caseworkers should be trained on the basic public law framework, including the human rights obligations. They should understand the basic principles of good governance, transparency and accountability.

9. LGO caseworkers should be better trained in the LGO’s statutory remit. They should seek to apply the term maladministration causing injustice in a way which encourages consistent good administrative practice.

10. With the aim of meeting its good governance functions, the LGO also promotes institutional development by producing good practice guides for local government. [18] The LGO has published principles of good administration with the stated aim of helping public bodies avoid maladministration. [19] The LGO should publish more guidance on key issues such as SEN and human rights The LGO plays a critical role in making sure that providers of public services comply with the law and strive for higher standards. [20] These documents have a key influencing role in promoting improvements in services by providing clear guidance and examples of expected good practice to local authorities. [21] The LGO’s guidance should have the status of statutory guidance and LGO caseworkers should seek to apply that guidance.

11. Complainants should be provided with a right of appeal to a specific internal unit with personnel who have a more detailed understanding of the legal issues.

Debbie Sayers

Rob Murrow

23.3.12