In a long awaited judgment, the House of Lords announced in July that Local Education Authorities did owe a legal duty, through their employees, to ensure that school children were provided with appropriate educational services and their individual needs met. It held that, while education authorities could still not be sued for damages arising out of a breach of statutory duty, they could be liable for a claim for damages if educational psychologists or teachers, employed by them, were negligent in the performance of their duties. The Lords also decided that the failure to diagnose dyslexia could amount to a personal injury.

The cases of Phelps v London Borough of Hillingdon, Anderton v Clwyd county council, and Re G and Jarvis v Hampshire County Council went up to the Lords together for consideration of the extent of the duty owed by the LEA to children with special needs. As a result of the decision, Miss Phelps was awarded substantial damages.

While three of the four cases concerned students with dyslexia and the case of “G” related to a child with Duchenne Muscular Dystrophy, the Lords made it clear that the duties owed by LEAs and teachers were duties owed to all students, not just those with special needs (SEN). If a teacher, due to lack of reasonable competence, causes the student to underperform, there is a clear breach.


Opening doors to claims?

The Lords hoped that their judgment would not open the door to claims for poor quality teaching and general underachievement. Not only did they suggest such claims would fail on liability (the teacher must fail the Bolam test i.e. fall below the level of skill of ordinary competent teachers) but they pointed out that there are many reasons for underperformance at school.

It will therefore be difficult for the student to demonstrate causation. The Lords put their faith in the case management powers introduced by the Civil Procedure Rules to weed out unmeritorious claims.

However, there can be little doubt that, as a result of this decision, there will be a substantial increase in the numbers of claims being brought against authorities and schools (both in the private and public sectors).

In an increasingly litigious society, it would seem that the Lords are perhaps unrealistic in their belief that unmeritorious claims will fail at an early stage. The courts are increasingly unwilling to strike out claims and, in the light of this judgment, are likely to be even less willing to adopt a tough stance on any claim alleging such a breach of duty.

Authorities, private schools and their insurers are going to face increased costs in defending even more education-based claims against authorities and schools.

While the hurdles of liability, causation and loss may still remain high, this will be little consolation to those who incur the costs in arguing these points to trial. Nor is it much consolation to teachers who will now have to keep a detailed record of their teachings and dealings with individual students in order to protect themselves and their employers from potential claims in the future.

The question for authorities and schools must be what steps they can take to guard against unmeritorious claims. Insurers should be considering how risk management programmes for schools can be improved. It would seem that teachers and other professionals involved in the provision of education will have to follow the approach taken by solicitors, by carefully preparing detailed attendance notes and records andkeeping careful notes,

Reports will no longer be able to protect the parents' image of their child but will have to be forthright in order to lower expectations or highlight capabilities at an early stage.

While, to a large extent, this may already be the approach taken when dealing with children with SEN, it is the not the norm for other students. Yet it is from the latter that the most spurious claims are likely to arise.

Every layer of the academic hierarchy will need to be assessed and recorded. Teachers must assess students, head teachers will need to assess their staff, governors their head teachers.

The Lords may believe that they have not encouraged education malpractice claims, but they appear to have done just that. Society is focusing on the problems in the education system – underfunding, poorly paid teachers, low quality staff. The reality is that a raft of litigation, or even prelitigious claims, can only increase the drain on resources and alienate even more of the most able teachers from the classroom.

No child should be failed by the education system, and there is no doubtthat there are valid claims. But litigation is unlikely to do more than use up key resources of money and manpower and shift the emphasis away from providing a child with the best possible education.


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