ER, R (on the application of) v London Borough of Hillingdon [2014] EWCA Civ 1407

Case No C1/2013/1581[2014] EWCA Civ 1407
IN THE COURT OF APPEAL (Civil Division)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Judge Stewart QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 29 th October 2014
Before
LORD JUSTICE MOORE-BICKVice-President of the Court of Appeal, Civil DivisionLORD JUSTICE AIKENSLORD JUSTICE BEAN
Between
R (on the application of ER)Claimant/THE COMMISSIONER FOR LOCAL ADMINISTRATION (THE LOCAL GOVERNMENT OMBUDSMAN)Defendant/RespondentLONDON BOROUGH OF HILLINGDONInterested Party(Transcript of the Handed Down Judgment ofInterested PartyWordWave International LimitedInterested PartyA Merrill Communications CompanyInterested Party165 Fleet Street, London EC4A 2DYInterested PartyTel No: 020 7404 1400, Fax No: 020 7831 8838Interested PartyOfficial Shorthand Writers to the Court)Interested Party
David Wolfe QC instructed by John Ford Solicitors for Appellant ClaimantBrian Ash QC instructed by Bevan Brittan for Respondent Defendant for The Interested Party did not appear and was not represented.Hearing Hearing date : 16 October 2014
Judgment

The background

[1]The Appellant ER is the mother of N, a boy who was at all material times of compulsory school age, with special educational needs and physical disabilities. He has had a Special Educational Needs ("SEN") statement under Part IV of the Education Act 1996 since June 1997.[2]In February 2006 N attended a residential special school called Burton Hill School but the placement broke down in October 2006. Hillingdon consulted with three day schools in November 2006, including Moorcroft School, as possible placements. Discussions then took place in relation to the suitability of Moorcroft School between November 2006 and September 2007. Hillingdon also considered the offer of a place for N at the Royal School for the Deaf and Communication Disorders; a school in Manchester; and the offer of a placement from a boarding school, Penhurst School, made to Hillingdon by letter dated 15 June 2007. Penhurst was the Appellant's preference.[3]A Joint Funding Panel considered the offer of a placement at Penhurst. Hillingdon informed the Appellant by letter dated July 19th 2007 that it had not agreed to fund a placement at Penhurst as this was a boarding school which N could attend for 51 weeks per year. Hillingdon was looking for provision for N for 38 weeks per year only.[4]A new SEN statement naming Moorcroft School was then drawn up by Hillingdon in September 2007. As a result, education was offered at Moorcroft School from November 2007. The Appellant attended Moorcroft with N in November 2007, but only for two days.[5]The Appellant was dissatisfied with the choice of Moorcroft and appealed the naming of that school in the statement to the Special Educational Needs and Disability Tribunal (to which I shall refer as "SENDIST", although it has since become part of the First-Tier Tribunal). The Tribunal heard the appeal and ordered on 7 May 2008 that N's SEN statement should name Penhurst as the school he should attend. N attended Penhurst School from June 2008.[6]In their decision SENDIST observed:- "The fundamental difference between the parties was, and remains, whether N's needs can be adequately met at Moorcroft 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 Penhurst 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."[7]The Tribunal's conclusions included these:- "We are entirely satisfied that there is ample evidence to enable us to conclude that N 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 ER 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 N, 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. . . …As to Part 4 [of N's statement of special education needs], we shall order that N attends Penhurst School. In the light of our conclusion as to the complexity and extent of the whole day curriculum that N now requires a comparison of the relative placement costs does not arise. We recognise that Penhurst 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 Penhurst is named in Part 4. However, we have found that this is an exceptional situation and we have had no hesitation in concluding that Penhurst is an adequate and appropriate placement and that, for the reasons given, Moorcroft is not………………. ORDER ……..Part 4 shall be amended by the deletion of that currently within the statement and in substitution with the following: 'N shall attend Penhurst 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 N may be a weekly boarding pupil, he will attend on a 51 week full boarding basis.'"

ORDER

[8]The Appellant complained to the Local Government Ombudsman ("LGO") firstly of the failure of Hillingdon, as the local authority responsible for N's education, to provide him with any education between November 2006 and November 2007 ("the first period"), and secondly of their failure to do so in the period from November 2007 to June 2008 ("the second period"). The LGO upheld the complaint in respect of the first period, holding that Hillingdon had failed to arrange alternative education provision for N while seeking a suitable full time place for him. She recommended the payment of financial compensation in respect of the first period. (The amount recommended was the subject of an application for judicial review which was dismissed by the judge; that decision has not been the subject of an appeal to this court.)[9]The LGO rejected the complaint relating to the second period. She did so on the basis that Hillingdon had offered education for that period at Moorcroft School; and, although SENDIST found this to be unsuitable, it was not for her to "determine the suitability of education, regardless of the decision of the …Tribunal". ER sought judicial review also of this decision of the LGO. On 23rd April 2013 Judge Stewart QC (as he then was: now Stewart J) dismissed the application: R (on the application of NR) v Local Government Ombudsman (London Borough of Hillingdon, interested party) [2013] EWHC 1335 (Admin). ER, with the permission of Tomlinson LJ, appeals to this court.

The statutory framework

[10]Section 19(1) of the Education Act 1996 requires a local authority to:
"make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them."
By section 19(6) "suitable education" in relation to a child or young person, is defined as "efficient education suitable to his age, ability and aptitude and to any special educational needs he may have."[11]Part IV of the Act covers children with special educational needs. Section 324(1) obliges a local education authority to make and maintain a SEN statement for a child where it is necessary for the local education authority to determine the special educational provision required to meet the child's educational needs.[12]Section 324 continues:
"(3) In particular, the statement shall – (a) give details of the authority's assessment of the child's special educational needs, and (b) specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection (4). (4) The statement shall – (a) specify the type of school or other institution which the local education authority consider would be appropriate for the child, (b) if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement…………… (5) Where a local education authority maintain a statement under this section, then – (a) unless the child's parent has made suitable arrangements, the authority – (i) shall arrange that the special educational provision specified in the statement is made for the child . . . ."
[13]Section 326 provides a parent with a statutory right of appeal against the contents of a SEN statement, as follows:
"(1) The parent of a child for whom a local education authority maintain a statement under section 324 may appeal to the tribunal – . . .(b) if an amendment is made to the statement . . . . (1A) An appeal under this section may be against any of the following – (a) the description in the statement of the local education authority's assessment of the child's special educational needs, (b) the special educational provision specified in the statement (including the name of a school so specified), (c) if no school is specified in the statement, that fact."
[14]The LGO's jurisdiction derives from the Local Government Act 1974, as amended. (The statutory title of Local Commissioner has never caught on: the members and staff of the Commission are invariably described, collectively and individually, as the Local Government Ombudsman.) The 1974 Act, so far as material, provides:
"[24A Power to investigate] (1) Under this Part of this Act, a Local Commissioner may investigate a matter – (a) which relates to action taken by or on behalf of an authority to which this Part of this Act applies, (b) which is subject to investigation under this Part of this Act by virtue of section 26, and (c) in relation to which subsection (2) . . . is satisfied. (2) This subsection is satisfied if, in relation to the matter, a complaint which satisfies sections 26A and 26B has been made to a Local Commissioner…………. (4) Any question whether subsection (2)…..is satisfied in relation to a matter shall be determined by a Local Commissioner……….. (6) In determining whether to initiate, continue or discontinue an investigation, a Local Commissioner shall, subject to the provisions of this section and sections 26 to 26D, act in accordance with his own discretion. 26 Matters subject to investigation (1) For the purposes of section 24A(1)(b), in relation to an authority to which this Part of this Act applies, the following matters are subject to investigation by a Local Commissioner under this Part of this Act – (a) alleged or apparent maladministration in connection with the exercise of the authority's administrative functions; (b) an alleged or apparent failure in a service which it was the authority's function to provide; (c) an alleged or apparent failure to provide such a service………… (1A) Subsection (1) is subject to the following provisions of this section……. (6) A Local Commissioner shall not conduct an investigation under this Part of this Act in respect of any of the following matters, that is to say, (a) any action in respect of which the person affected has or had a right of appeal, reference or review to or before a tribunal constituted by or under any enactment; (b) . . . (c) any action in respect of which the person affected has or had a remedy by way of proceedings in any court of law: Provided that a Local Commissioner may conduct an investigation notwithstanding the existence of such a right or remedy if satisfied that in the particular circumstances it is not reasonable to expect the person affected to resort or have resorted to it." [Emphasis added.]
[15]Section 34(1), the interpretation section, provides that "action" includes a failure to act. Thus the critical subsection, s 26(6)(a), must be read as excluding investigations in respect of any action or failure to act in respect of which the person affected has or had a right of appeal to a Tribunal.[16]Section 31(1) provides:- "This section applies where a Local Commissioner reports that there has been –(a) maladministration in connection with the exercise of the authority's administrative functions;(b) a failure in a service which it was the function of an authority to provide; or(c) a failure to provide such a service. (2B) Where the report relates to maladministration, those recommendations are recommendations with respect to action which, in the Local Commissioner's opinion, the authority concerned should take – (a) to remedy any injustice sustained by the person affected in consequence of the maladministration, and (b) to prevent injustice being caused in the future in consequence of similar maladministration in connection with the exercise of the authority's administrative functions. (2BA) Where the report relates to a failure in, or to provide, a service which it was the function of the authority to provide, those recommendations are recommendations with respect to action which, in the Local Commissioner's opinion, the authority concerned should take – (a) to remedy any injustice sustained by the person affected in consequence of the failure, and (b) to prevent injustice being caused in the future in consequence of a similar failure in, or to provide, a service which it is the function of the authority to provide."[17]If it were not for s 26(6), the LGO would clearly have had jurisdiction to investigate the allegation of a failure to provide a service (namely education) which it was Hillingdon's function to provide to N during the second period. The question before us is whether that jurisdiction is excluded by s 26(6). The judge accepted the submission of Brian Ash QC for the LGO that the failure to provide N with suitable education between November 2007 and June 2008 was an action or failure to act in respect of which his mother had a right of appeal to SENDIST, and that the jurisdiction of the LGO was therefore excluded. David Wolfe QC, for N's mother, challenges that conclusion.

The parties' submissions

[18]Although SENDIST is a Tribunal taking individual decisions of great importance, it has some special features and some limitations on its powers on which Mr Wolfe laid emphasis.[19]Firstly, it is concerned with merits rather than process. In London Borough of Bromley v Special Education Needs Tribunal and others [1999] ELR 260 at 294 Sedley LJ said that:- "[Whereas] a court has to limit itself to the interpretation of terms of legal art and the setting of outer limits to the meaning of ordinary words in their statutory context, the Tribunal is empowered to take a much closer look at the content of the LEA's statement. Indeed for many purposes it stands in the LEA's shoes, re-evaluating the available information in order if necessary to recast the statement. But in carrying out this function it also has a supervisory role – to interpret and apply the relevant law."[20]Secondly, SENDIST looks to the future, not to the past, and has no power to award compensation for past errors. All the Tribunal could do when the appeal reached them was to say that for the future the school named in NR's statement should be Penhurst rather than Moorcroft. It is clear that they considered that Penhurst should have been the named school by November 2007 at the latest, but there was nothing they could do about that.[21]Thirdly, SENDIST was only concerned with the contents of N's statement under s 324 of the Education Act 1996, not with what Mr Wolfe submits was the failure of Hillingdon to fulfil its more general duty under s 19 of the same Act to make arrangements for the provision of suitable education for N during the second period. Neither SENDIST nor any other Tribunal can deal with that omission. (I should mention at this point that Mr Ash has quite rightly not relied on the possibility of a remedy by way of judicial review of that failure of the local authority. If ER had sought to go down that route she would have been met with the obvious objection that judicial review must be a last resort and that she should have sought the assistance of the LGO first.

(c) )

[22]Mr Wolfe pointed to the change in the statutory scheme governing the LGO's activities made by the Local Government and Public Involvement in Health Act 2007. Until the relevant amendments came into force on 1st April 2008 the LGO could only consider complaints relating to maladministration. Such complaints had to be directed at process rather than merits: as Lord Donaldson MR said in R v Commissioner for Local Administration ex p Eastleigh BC [1988] QB 855, "administration and maladministration have nothing to do with the nature, quality or reasonableness of the decision itself." Mr Wolfe accepts that if a person complains of maladministration in decision making and the same decision has already been the subject of adjudication before a tribunal or an inspector acting on behalf of the Secretary of State (such as in the planning cases), the complainant cannot have a second bite at the cherry using the services of the LGO. But the amendments made by the 2007 Act expanded the jurisdiction of the LGO to include service failures: in his words, to include the state of affairs rather than the particular decision which caused it. Thus, he argues, the LGO can investigate (and recommend compensation for) the failure to provide education to N from November 2007, even though the decision which led to it – naming Moorcroft rather than Penhurst School in the SEN statement – has been the subject of a successful appeal to SENDIST.[23]The 2007 Act clearly did expand the scope of the LGO's power to investigate. But given that from the inception of the Act the "actions" which the LGO has been empowered to investigate under Part III of the Act have been defined by s 34(1) as including failures to act, I question whether the change was as revolutionary as Mr Wolfe argued. Investigating a failure to act is not entirely different from investigating a failure to provide a service.[24]It is common ground that SENDIST looks to the future rather than the past and that it cannot award compensation; and therefore, if the LGO's jurisdiction is excluded by s 26(6)(a), that leaves the Appellant without a financial remedy in respect of the second period. But that was inherent in the design of SENDIST when it was established by Parliament; and the 2007 Act did not expressly alter it.[25]Mr Ash drew our attention to dicta of Woolf LJ in R v Commissioner for Local Administration ex p Croydon London Borough Council [1989] 1 All ER 1033. Woolf LJ said that s 26(6) covers a situation where:- "… if the complaint was justified, the person concerned might be entitled to obtain some form of remedy in respect of the subject matter of the complaint if he had commenced proceedings within the appropriate time limits. The commissioner is not concerned to consider whether in fact the proceedings would succeed." Mr Ash relies on the use by Woolf LJ of the phrase "some form of remedy", rather than (for example) "a complete remedy".[26]Mr Ash also cited a number of authorities and judicial observations which establish a clear dividing line between the jurisdictions of courts and tribunals on the one hand and the LGO on the other. First among these are the well-known observations of Lord Denning MR in R v Local Commissioner for Administration ex parte Bradford MBC [1989] 1 QB 287 at 310: "Parliament was at pains to ensure that the commissioners should not conduct an investigation which might trespass in any way on the jurisdiction of the courts of law or of any tribunals".[27]In R v Commissioner for Local Administration ex parte PH (21st December 1998, unreported), Turner J said:- "… it is plain that the intention underlying the Act of 1974 was to provide redress for those people who were denied the possibility of resort to redress of any kind in respect of maladministration by a local authority in exercise of its administrative powers. It can hardly have been the intention of Parliament to have provided two remedies, one substantive by way of judicial review and one compensatory by way of the local commissioner. The essential feature of the legislation is the creation of a legal right to complain about a grievance, but in respect of which there had been no available form of redress whether through the common law or by means of judicial review. Where a party has ventilated a grievance by means of judicial review it was not contemplated that they should enjoy an alternative, let alone an additional, right by way of complaint to the local government commissioner". On a renewed application for leave to appeal Simon Brown LJ approved these observations.[28]Mr Ash also relied on the decision of Keene J in R v Commission for Local Administration ex p Field [1999] EWHC Admin 754. Two planning applications had been refused by the local authority but ultimately granted on appeal. A complaint was made to the LGO alleging maladministration by the local authority in relation to the delay in securing permission. Keene J said:- "I take the point that the statutory appeal to the Secretary of State against a refusal of planning permission provides no compensation for the delay which inevitably occurs. However, the fact is that wherever there is a right of appeal to a Minister of the Crown (the situation dealt with in Section 26(6) (b)), there will inevitably be some delay if the right is exercised, as it often will be, and where there is such delay, loss may very well result, as it has in the present case. Yet Parliament has chosen expressly to exclude jurisdiction on the part of the Local Government Ombudsman in such cases. It seems to me that in those circumstances Parliament must have contemplated that there would arise situations where loss had been suffered and where no remedy for that loss would be provided, and yet the Local Government Ombudsman would have no jurisdiction to intervene. I therefore do not find the argument based upon the lack of remedy through the statutory appeal to the Secretary of State persuasive on this particular issue."[29]Field only takes Mr Ash so far: it is obvious that the refusal of planning permission is a decision (in the words of s 26(6), "an action") in respect of which an appeal lies to the Secretary of State, and that the LGO cannot investigate it nor recommend compensation for those aggrieved by it. But the observations of Keene J as to Parliament having contemplated that situations would arise where loss had been suffered, no remedy would be provided, and yet the LGO would have no jurisdiction to intervene are apposite.

Conclusion

[30]Judge Stewart observed that what ER's complaint to the LGO really boiled down to was failure to provide a service (namely suitable education) under s 19; and that what the appeal to SENDIST boiled down to, albeit under s 324, was whether the type and nature of the school should be in N's statement. "The reality", said the judge, "was that there was an inextricable linkage between the two". I agree.[31]In my view one could characterise Hillingdon's decision in this case either as an action (the naming of an unsuitable school) or as a failure to act (the failure to name a suitable school); but either way it was fairly and squarely within s 26(6)(a), as being an "action" in respect of which ER had the right of appeal to SENDIST. It is true that a consequence of that wrong decision was that Hillingdon failed for a period to discharge their section 19 duty to N. But I reject the submission that the LGO has jurisdiction to investigate the consequences of a decision if investigation of the decision itself is excluded by s 26(6).[32]I would accordingly dismiss this appeal.[33]I agree.[34]I also agree.

Cited in 2 later judgments