CROWLEY V SURREY COUNTY COUNCIL [2008] EWHC 1102 (QB)
FACTS:-
This was a claim for educational negligence. The Claimant had been diagnosed with schizophrenia when he was 19, and he was not capable of managing his own affairs. It was common ground that his schizophrenia would have developed regardless of his educational problems.
There were five Defendants, the first of whom was Surrey County Council, the local education authority. The Second to Fifth Defendants were health authorities that had responsibility for the provision of speech therapy services within the area in which the Claimant resided. There were also a number of individuals against whom allegations of negligence had been made.
The Claimant was born in November 1983. At around the age of 2 ½ years, his parents thought that he was developing more slowly than he should have been. He was examined by a number of experts, and given speech therapy and then he attended Grantchester House, a small independent nursery in September 1987, but he made little progress. There was a hiatus in his treatment between 1987 and 1988. He then attended St Paul’s First School in September 1988 and received further speech therapy. Between 1991 and 1993, he attended another school, Donhead making limited progress.
In 1993 and 1994 the Claimant’s parents requested a Statement for their son. However this was declined. In 1994 the Claimant saw an independent Chartered Educational Psychologist, Arno Rabinowicz. By that stage, the Claimant’s family had moved into the area of the Royal Borough of Kingston upon Thames (“RBK”). In September 2004, RBK decided to carry out a full statutory assessment.
The final Statement of Special Educational Needs suggested that Anthony be placed at Chessington Community College, which he attended in 1995. The Claimant’s parents had argued against this placement, stating their preference for More House, a more specialist school. The position was reviewed in February 1995 and it was felt that this was not working. The Claimant was then moved to St Dominic’s School in Godalming in June 1996 where he made some limited progress. He left in 2000.
HELD:-
Foskett J said that it was plain on the authorities (DN v Greenwich [2004] EWCA Civ 1659 and Clarke v Devon County Council [2005] EWCA Civ 266 that the level of damages that could be awarded would be modest. Since all parties were involved in spending public money on the litigation, the cost benefit analysis of such an exercise was inevitably a matter of some concern.
The legal framework within which liability in a case of this nature fell to be determined had been considered in a number of cases including:-
In the case of Carty there were decisions that were heavily influenced by policy and which came close to being non-justiciable. In such cases the courts were unlikely to find negligence unless the decisions taken were those which no reasonable education authority would have made. At the other end of the spectrum are decisions involving pure professional judgement and expertise in relation to individual children, such as for example whether a child was dyslexic or suffering from some other learning difficulty. The court would only find negligence (for which the local authority might be vicariously liable) in such a case where the professional who made the decision failed to act in accordance with a practice accepted at the time as proper by a responsible body of persons of the same profession or skill. (See Bolam v Friern Hospital Management Committee [1957] 2 All ER 118).
There had been a hiatus in the early treatment of the Claimant, but Foskett J said that the Defendants could not be criticised for not providing a service, that they could not provide.
Thereafter Foster J considered the history of the Claimant’s education and the relationship between him, his parents and the local educational authority. He had been assessed on a number of occasions. In 1990 he underwent a Wechsler Intelligence Scale test for Children, administered by a Mr Adams, the Senior Educational Psychologist within Surrey County Council. His learning difficulties would not be considered to be severe and/or complex and his needs should be met from the resources that were available within the school. The Claimant’s educational psychologist criticised Mr Adams on the basis that he had not assessed the Claimant’s reading or listening comprehension. Mr Adam explained that it was not appropriate to make this assessment as the Claimant was only six year three months old and he was therefore likely to fail or do very badly. The Defendant’s educational psychologist, Mr Holme agreed that this was a valid reason. Mr Adams’ view at that time was that the Claimant was not a candidate for being “statemented.”
The Claimant was then reported as improving at school. In June 1991 he was seen by a Mrs Sheila Reed, head of paediatric speech and language therapy with the Second Defendant. In September 1991 he moved to an independent school, Donhead. Foskett J said that once he reached the independent sector, it was difficult to see what liability could accrue to Surrey County Council, and it was agreed that there was no duty on the local education authority to assess children in independent schools at that time. By this time, the Claimant was seven years of age.
Foskett J considered the Claimant’s case up to July 1991. The Claimant was not seen as having a specific language disorder by the speech and language therapists. Foskett J was not able to see how the Claimant was deprived of the kind of educational support to which someone who had a specific language disorder was reasonable entitled to at the time.
There was also the issue of an alleged conflict of interest on the part of Mr Adams, insofar as his department had administered the process of statementing children, and at the same time he assessed the child. The latter required the expertise of an educational psychologist, whereas the former held resource implications. Foskett J could not adjudge this as negligent at the time. It was true that Mr Adams had failed to advise the parents of the Claimant of their right to appeal, but even he had, this would not have made any difference.
Foskett J then considered the post 1991 situation. At Donhead School, the Claimant was struggling to keep up. He was assessed again by Mr Adams, who found that he was functioning in the below average range of ability. The Claimant’s educational psychologist had criticised the way in which this test was done, whereas the Defendants’ educational psychologist said that the test did conform to that which a body of responsible educational psychologists would, in similar circumstances have performed at that time. Foskett J referred to the test of Bolitho v City and Hackney Health Authority [1998] AC 232 and said that he preferred the evidence of the Defendants’ expert. Moreover he found that Mr Adams’ report was not so slanted as to deny the Claimant a Statement of Special Educational Needs.
The Claimant’s case was that if he had been placed at St Dominic’s earlier, his problems could have been successfully tackled. Foskett J said that the history suggested that even if this happened, the outcome would not have been any different.
There was then the issue of whether the Claimant had a specific language disorder. When assessed nine months before trial, it was difficult to engage with him because of his schizophrenia. Foskett J said that there might have been some element of a specific language disorder, but he was unable to hold, on that balance of probabilities, that the Claimant did at any stage have a readily and obviously diagnosable specific language disorder. Moreover Foskett J did not think that anyone conducting an assessment that accorded with the reasonable practice at the time negligently “missed” discovering a specific language disorder.
Although Foskett J had found no breach of duty, he considered the issue of causation. The psychiatrists instructed by both sides were very impressive. The Claimant’s psychiatrist said that the Claimant might have been better able to respond to his schizophrenia had he received suitable education and therapeutic input. However the research on which she relied showed that about 58% of children who received intensive support in a language unit nonetheless still ended up requiring intensive specialist tuition. Foskett J said that at the end of the day, all that could be said was that some more intensive assistance at the earliest stage possible might have given Anthony a better chance of accessing the curriculum. This did not however get over the well established hurdles of establishing causation from a legal point of view. Foskett J referred to two cases Gregg v Scott [2005] UKHL 2 and DN v Greenwich [2004] EWCA Civ 1659).
The claim would fail. Had the Claimant not been the diagnostic conundrum that he was, it was possible that his needs could have been addressed and his level of functioning improved. However the fact that it was not, could not be attributed to any individual or systemic negligence. Even if he had received intervention, it could not be establish to the necessary standard that it would have made the kind of different that would sound in damages.
FACTS:-
This was a claim for educational negligence. The Claimant had been diagnosed with schizophrenia when he was 19, and he was not capable of managing his own affairs. It was common ground that his schizophrenia would have developed regardless of his educational problems.
There were five Defendants, the first of whom was Surrey County Council, the local education authority. The Second to Fifth Defendants were health authorities that had responsibility for the provision of speech therapy services within the area in which the Claimant resided. There were also a number of individuals against whom allegations of negligence had been made.
The Claimant was born in November 1983. At around the age of 2 ½ years, his parents thought that he was developing more slowly than he should have been. He was examined by a number of experts, and given speech therapy and then he attended Grantchester House, a small independent nursery in September 1987, but he made little progress. There was a hiatus in his treatment between 1987 and 1988. He then attended St Paul’s First School in September 1988 and received further speech therapy. Between 1991 and 1993, he attended another school, Donhead making limited progress.
In 1993 and 1994 the Claimant’s parents requested a Statement for their son. However this was declined. In 1994 the Claimant saw an independent Chartered Educational Psychologist, Arno Rabinowicz. By that stage, the Claimant’s family had moved into the area of the Royal Borough of Kingston upon Thames (“RBK”). In September 2004, RBK decided to carry out a full statutory assessment.
The final Statement of Special Educational Needs suggested that Anthony be placed at Chessington Community College, which he attended in 1995. The Claimant’s parents had argued against this placement, stating their preference for More House, a more specialist school. The position was reviewed in February 1995 and it was felt that this was not working. The Claimant was then moved to St Dominic’s School in Godalming in June 1996 where he made some limited progress. He left in 2000.
HELD:-
Foskett J said that it was plain on the authorities (DN v Greenwich [2004] EWCA Civ 1659 and Clarke v Devon County Council [2005] EWCA Civ 266 that the level of damages that could be awarded would be modest. Since all parties were involved in spending public money on the litigation, the cost benefit analysis of such an exercise was inevitably a matter of some concern.
The legal framework within which liability in a case of this nature fell to be determined had been considered in a number of cases including:-
- Phelps v London Borough of Hillingdon [2001] 2 AC 619
- Carty v Croydon LBC [2005] EWCA Civ 19
- Clarke v Devon County Council [2005] EWCA Civ 26
In the case of Carty there were decisions that were heavily influenced by policy and which came close to being non-justiciable. In such cases the courts were unlikely to find negligence unless the decisions taken were those which no reasonable education authority would have made. At the other end of the spectrum are decisions involving pure professional judgement and expertise in relation to individual children, such as for example whether a child was dyslexic or suffering from some other learning difficulty. The court would only find negligence (for which the local authority might be vicariously liable) in such a case where the professional who made the decision failed to act in accordance with a practice accepted at the time as proper by a responsible body of persons of the same profession or skill. (See Bolam v Friern Hospital Management Committee [1957] 2 All ER 118).
There had been a hiatus in the early treatment of the Claimant, but Foskett J said that the Defendants could not be criticised for not providing a service, that they could not provide.
Thereafter Foster J considered the history of the Claimant’s education and the relationship between him, his parents and the local educational authority. He had been assessed on a number of occasions. In 1990 he underwent a Wechsler Intelligence Scale test for Children, administered by a Mr Adams, the Senior Educational Psychologist within Surrey County Council. His learning difficulties would not be considered to be severe and/or complex and his needs should be met from the resources that were available within the school. The Claimant’s educational psychologist criticised Mr Adams on the basis that he had not assessed the Claimant’s reading or listening comprehension. Mr Adam explained that it was not appropriate to make this assessment as the Claimant was only six year three months old and he was therefore likely to fail or do very badly. The Defendant’s educational psychologist, Mr Holme agreed that this was a valid reason. Mr Adams’ view at that time was that the Claimant was not a candidate for being “statemented.”
The Claimant was then reported as improving at school. In June 1991 he was seen by a Mrs Sheila Reed, head of paediatric speech and language therapy with the Second Defendant. In September 1991 he moved to an independent school, Donhead. Foskett J said that once he reached the independent sector, it was difficult to see what liability could accrue to Surrey County Council, and it was agreed that there was no duty on the local education authority to assess children in independent schools at that time. By this time, the Claimant was seven years of age.
Foskett J considered the Claimant’s case up to July 1991. The Claimant was not seen as having a specific language disorder by the speech and language therapists. Foskett J was not able to see how the Claimant was deprived of the kind of educational support to which someone who had a specific language disorder was reasonable entitled to at the time.
There was also the issue of an alleged conflict of interest on the part of Mr Adams, insofar as his department had administered the process of statementing children, and at the same time he assessed the child. The latter required the expertise of an educational psychologist, whereas the former held resource implications. Foskett J could not adjudge this as negligent at the time. It was true that Mr Adams had failed to advise the parents of the Claimant of their right to appeal, but even he had, this would not have made any difference.
Foskett J then considered the post 1991 situation. At Donhead School, the Claimant was struggling to keep up. He was assessed again by Mr Adams, who found that he was functioning in the below average range of ability. The Claimant’s educational psychologist had criticised the way in which this test was done, whereas the Defendants’ educational psychologist said that the test did conform to that which a body of responsible educational psychologists would, in similar circumstances have performed at that time. Foskett J referred to the test of Bolitho v City and Hackney Health Authority [1998] AC 232 and said that he preferred the evidence of the Defendants’ expert. Moreover he found that Mr Adams’ report was not so slanted as to deny the Claimant a Statement of Special Educational Needs.
The Claimant’s case was that if he had been placed at St Dominic’s earlier, his problems could have been successfully tackled. Foskett J said that the history suggested that even if this happened, the outcome would not have been any different.
There was then the issue of whether the Claimant had a specific language disorder. When assessed nine months before trial, it was difficult to engage with him because of his schizophrenia. Foskett J said that there might have been some element of a specific language disorder, but he was unable to hold, on that balance of probabilities, that the Claimant did at any stage have a readily and obviously diagnosable specific language disorder. Moreover Foskett J did not think that anyone conducting an assessment that accorded with the reasonable practice at the time negligently “missed” discovering a specific language disorder.
Although Foskett J had found no breach of duty, he considered the issue of causation. The psychiatrists instructed by both sides were very impressive. The Claimant’s psychiatrist said that the Claimant might have been better able to respond to his schizophrenia had he received suitable education and therapeutic input. However the research on which she relied showed that about 58% of children who received intensive support in a language unit nonetheless still ended up requiring intensive specialist tuition. Foskett J said that at the end of the day, all that could be said was that some more intensive assistance at the earliest stage possible might have given Anthony a better chance of accessing the curriculum. This did not however get over the well established hurdles of establishing causation from a legal point of view. Foskett J referred to two cases Gregg v Scott [2005] UKHL 2 and DN v Greenwich [2004] EWCA Civ 1659).
The claim would fail. Had the Claimant not been the diagnostic conundrum that he was, it was possible that his needs could have been addressed and his level of functioning improved. However the fact that it was not, could not be attributed to any individual or systemic negligence. Even if he had received intervention, it could not be establish to the necessary standard that it would have made the kind of different that would sound in damages.