R Nr Claimant v Local Government Ombudsman London Borough of Hillingdon (Interested Party)
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Stewart |
| Judgment Date | 23 April 2013 |
| Neutral Citation | [2013] EWHC 1335 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1976/2012 |
| Date | 23 April 2013 |
[2013] EWHC 1335 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
His Honour Judge Stewart QC
(Sitting as a Judge of the High Court)
CO/1976/2012
CO/6065/2011
and
Mr D Wolfe QC and Mr John Ford (instructed by John Ford Solicitors) appeared on behalf of the Claimant
Mr Brian Ash QC (instructed by Bevan Brittan Solicitors) appeared on behalf of the Defendant
Miss Holly Stout (instructed by Legal Department of the London Borough of Hillingdon) appeared on behalf of the Interested Party
( )
THE DEPUTY JUDGE:
Introduction
There are three issues for me to determine, the first two are substantive and the third is costs. The essence of the two substantive issues relates to the extent and exercise of powers by the Commissioner for Local Administration, known as the Local Government Ombudsman ("LGO").
The claimant is the mother of NR, date of birth 6 December 1993, for whose education the London Borough of Hillingdon ("Hillingdon") were responsible, in particular at the times material to this claim, those being November 06 to November 07 and November 07 to June 08. It will soon be apparent why I have split the period November 06 to June 08 in two.
Background
NR has significant special educational needs within the meaning of Part 4 of the Education Act 1996. NR has had a Statement of Special Educational Needs since June 1997. From February 06 to October 06 NR attended a residential school called Burton Hill School, but the placement broke down. In any event, the school was due to close down shortly afterwards.
From October 06 to June 08 NR did not attend any school or receive any structured education. The reasons for this are summarised in a decision, dated 7 May 2008, by the Special Educational Needs and Disability Tribunal:
"8 The fundamental difference between the parties was, and remains, whether NR's needs can be adequately met at M School, with the additional packages of support and resources identified within the LEA's case statement, and discussed during the course of the hearing. Alternatively, whether he should attend as a 51 week boarding pupil at P School, the placement identified by his mother as being the only one which in her view could meet his extremely complex and exceptional needs, albeit at a very significant cost indeed to the LEA."
I should add that M School is a day school; Hillingdon had, between November 06 and November 07, provided NR with no education at all. From November 07 to June 08 the placement they had offered was M School.
The Tribunal report's conclusions included these:
"A. NR is a young man with exceptional needs. He has a life limiting condition. He is physically extremely vulnerable. His sight and hearing are in the process of deterioration, his sight appearing at the moment to be doing so more rapidly. He might reasonably be described as being in a process of sensory shutdown. It is not possible to say how much life remains to NR but we note his mother's comments that he has already lived longer than she had once understood might be the case.
…
N. We are entirely satisfied that there is ample evidence to enable us to conclude that NR has an urgent need for a highly specialised highly flexible, and extended educational curriculum, going well beyond the normal school day. We do not accept that the basis upon which this appeal was submitted by Ms R prevents us from coming to that conclusion. No reasonable LEA, in the circumstances described to us during this appeal, should have concluded that appropriate and adequate educational provision could be made for NR, with whatever additional packages of support may be provided by the LEA, and whatever the real strengths of the day placement proposed, during the course of a normal school day.
…
R. As to Part 4, we shall order that NR attends P School. In the light of our conclusion as to the complexity and extent of the whole day curriculum that NR now requires a comparison of the relative placement costs does not arise. We recognise that P is a very expensive proposition for the LEA and that even though the cost covers nursing care — which we accept is not educational provision — it is for the LEA to pay it where P is named in Part 4. However, we have found that this is an exceptional situation and we have had no hesitation in concluding that P is an adequate and appropriate placement and that, for the reasons given, M is not.
…
ORDER
…
3. Part 4 shall be amended by the deletion of that currently within the statement and in substitution with the following:
'NR shall attend P School, New Street, Chipping Norton, Oxfordshire, an independent special school for children with profound multiple and sensory impairments. After a period of introduction and transition during which NR may be a weekly boarding pupil he will attend on a 51 week full boarding basis.'"
References to Part 4 are references to NR's statement of special educational needs.
The LGO's Decisions
The first decision was made by letter dated 29 March 2011. It was in these terms:
" Final Decision
1. I accept that a consultation process was in place from November 2006 to January 2007 and the Council took reasonable action to find a suitable placement for NR, a child with very specific and varied needs. However, the Council failed to arrange alternative education provision and the complainant's son was without any form of education for this period. This contravenes the Education Act 1996, Section 19.
2. The Council took reasonable action to continue the process of consultation with schools from February 2007 to August 2007. I do not find fault with the Council in this matter. However, the Council said that full-time provision was available for NR at school Two from February 2007 and I do not accept this was the case. It is my view that the Council did not offer NR educational provision in accordance with his Statement of Special Educational Needs at School Two, nor any other form of alternative education during this period. This contravenes the Education Act 1996, Section 19.
3. I accept that the Council offered education provision to NR from November. A package of education and supporting care was offered at School Two. However no form of educational input was given to NR from September 2007 to November 2007. This contravenes the Education Act 1996, Section 19.
I do not agree that it was the fault of the complainant that the placement did not continue. Although it is the complainant's responsibility to send her son to the school named on the statement, pending any appeal with SEND, I do not find evidence that the Council took reasonable action to address the significant concerns she raised after attending introductory sessions.
It is my decision, therefore that the Council contravened the Education Act 1996, Section 19 from November 2006 until November 2007 in failing to provide alternative education provision for NR whilst seeking a suitable full-time placement. This amounts to missed education for three school terms; two full terms and two half-terms. There has been considerable distress caused to both the complainant and her son in the pursuit of this complaint and in the loss of important services that NR would have received. Reports by professionals show that he became inward and lost crucial socialisation skills as a result of receiving no education for this period of time.
The justice caused should be remedied by financial compensation and a written apology.
Financial Compensation
I suggest the following amount of financial compensation:
• Loss of education for three terms and loss to NR of socialisation and support of speech and language therapy (£1000 of this to be used to enhance NR's current education provision through an activity, or similar) £4,000
• Time and Trouble in pursuing the complaint and distress £500."
[I should add that School Two is M School.]
In a letter of the same date, 29 March 2011, the LGO rejected the complainant's complaint that Hillingdon should pay compensation in the period November 07 to June 08, on the basis that they did offer education at M School and, although unsuitable, it was not for the LGO "to determine the suitability of education, regardless of the decision of the SEND tribunal". That letter further rejected the claimant's complaint as to the level of compensation awarded for the period November 06 to November 07 as follows:
"As you have pointed out, the Ombudsman often proposes £1000 per term as being a suitable remedy for missed or lost education. I have said that NR has lost 3 terms of education provision and therefore we would usually suggest £3,000 as a remedy. However, in recognition of the fact that NR has lost access to speech and language therapy and been deprived of socialisation, and therefore life enjoyment, I have already suggested a remedy of an additional £1000.
'Savings' by the Council
You have said that any financial compensation offered to Mrs R should reflect the savings you believe the Council has made in not offering NR education for a long period of time. The Council has said that it has spent approximately £300,000 on NR's placement. You have stated that you think the Council has saved approximately £100,000 in failing to offer any education provision between November 2006 to November 2007 and you believe that the Ombudsman should suggest a financial remedy that is based upon these 'savings'. Furthermore, you say that if such a remedy is...
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