Compensation ruled out for 'wrong school' claims

On 29 October 2014 the Court of Appeal gave a decision in what started life as a Judicial Review application. The case is R(ER) v Local Government Ombudsman and Hillingdon LB. The very clearly written judgement can be found here.

Who is this important for?

Everyone who is unhappy about the school named in their child’s Statement of Special Educational Needs or Education, Health and Social Care Plan (EHCP) needs to be aware of this case.

Background

The basic facts are that a child ‘A’ had a Statement of Special Educational Needs due to complex SEN.

He started school ‘1’ in February but the placement broke down in October. For the following year A was out of school whilst the local authority – Hillingdon – tried to find another school placement. After that year, Hillingdon placed A in school ‘2’, whereas his mother wanted school ‘3’. A’s mother appealed and the tribunal agreed that school ‘2’ – the local authority’s placement – was utterly inappropriate for A. Therefore, A was placed at school ‘3’.

A’s mother then made a complaint to the Local Government Ombudsman about two issues;

1. The period of one year that A was out of school; and
2. The failure of the local authority to make a suitable education available for A whilst he attended school ‘2’ until the tribunal made its decision.

Why was the court involved?

The reason that this ended up before the court was because the LGO refused to look into the second of the two complaints above. A’s mother was compensated for the first but the LGO said that it could not consider a complaint about the school because the tribunal could deal with that issue.

A’s mother’s point was, understandably, that A had missed out suitable education. The tribunal’s decision was very clear that “no reasonable local authority” could have considered school ‘2’ to be appropriate. As such, A’s mother sought compensation for him. The tribunal cannot make such an Order so she turned to the LGO for this.

When the LGO refused to consider her second complaint A’s mother tried to challenge this decision by an application for Judicial Review, which was refused. A’s mother then appeal to the Court of Appeal, which is this judgement.

The question is whether the LGO can investigate, and potentially award compensation, a complaint that the local authority placed in an inappropriate school when a right to appeal to the tribunal also exists.

What did the Court say?

The court has paid very careful consideration to the duties of the local authority to provide a suitable full-time education. It was also mindful of the tribunal’s very clear findings that school ‘2’ was utterly inappropriate for A.

However, the court found that the law effectively prevented A’s mother from making a complaint to the LGO about this issue. This is because where a Tribunal/Court is able to consider the matter through another lawful process, the LGO cannot investigate. Because A’s mother had the right to appeal against the decision to place A in school ‘2’ she did not have a further right to complain to the LGO about this issue.

What does this mean?

The court seemed to be very sympathetic in this case. It accepted that as consequence of the local authority’s decision to place A in school ‘ 2’ he was denied a suitable education for a period of time. However, the operation of the current law means that only the tribunal can deal with that issue, which prevents the LGO from investigating.

Therefore, the local authority may place a child in an utterly inappropriate school and parents’ sole remedy is an appeal to the tribunal. There is no further right to complain to the Ombudsman.

What can be done?

The only way to recover any compensation, it would seem, would be in the following ways:

1. If the local authority have acted unreasonably during the Tribunal proceedings, seek a Costs Order against them for recovery of any legal / expert fees incurred to change the school; and/or
2. Bring an action in negligence against the local authority for the decision to place in an unsuitable school.

Costs Order can be very difficult to secure. Further, education negligence actions are notoriously difficult and an extremely low percentage of claims are ever successful. Also, if a negligence claim is unsuccessful, you could face paying the legal fees incurred by the local authority in defending the action. This can easily reach in excess of £200,000.

I should stress that before anyone seeks to bring actions in negligence and/or seek a Costs Order they must seek independent legal advice first because of the significant implications they can carry.

In reality it seems that there is very little parents can currently do to ‘put things right’ even if the tribunal conclude that the school the local authority placed your child in was utterly inappropriate.

The best approach will be for parents to be prepared to engage with the local authority to encourage the ‘right’ decision. This may well involve seeking independent advice very early on and, if necessary, to appeal to the Tribunal as quickly as possible. If the case is very clear parents could also seek an early Order from the Tribunal ruling against the local authority. This would all require time and quite possibly specialist legal advice.