MARR V THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF LAMBETH AND OTHERS [2006] EWHC 1175 (QB)
FACTS:-
The Claimant brought damage for negligence in educational provision. He was born in August 1982 and reached school leaving age in 1998. He claimed that the negligence occurred at each of the three schools which he attended from the age of 8 until his permanent exclusion in February 1996. After that time he alleged that the Defendant was negligent in failing to ensure that he stayed on the waiting list for a Pupil Referral Unit. His case was that he had special educational needs and these had not been recognised or dealt with in a reasonably competent way. As a result the Claimant was functionally illiterate and unable to pursue the type of further education or employment which his other abilities would have permitted.
The Claimant had been placed at Archbishop Sumner’s school in Lambeth from 1987 when he was 5.In 1990 at the age of 8, the Claimant was placed at Vauxhall Primary School. It was alleged that he should have been referred to the Lambeth LBC Educational Psychology Service. In 1993, the Claimant began his secondary education at Archbishop Tenison’s Grammar School and stayed there until he was removed by his mother towards the end of November 1994 following a temporary exclusion. He then started at Lilian Baylis School in December 1994 by which time he was receiving some help from an outside group for his reading and writing. He was temporarily excluded from the school in November 1995 and then permanently excluded in January 1996 aged 13 ½. He was seen by an educational psychologist in December 1995 who made recommendations on strategies for dealing with his literacy difficulties and to a limited extent, his behaviour. He was then put on a waiting list for a pupil referral unit, but his name was later removed from that waiting list. In June 1997 he attended the London Nautical School and left there in July 1998, the end of his full time education.
HELD:-
Ouseley J went over the facts of the case. He commented that the pleaded particulars were very vague, although they were refined at the hearing by Claimant’s counsel and a number of allegations were abandoned:;
Ouseley J considered the applicable statutes and statutory regulations. These were:-
The regime had changed with effect form the 1st January 1994, when the Education Act 1993 came into force. The relevant aspects were later re-enacted in the Education act 1996. The relevant Regulations remained the Education (Special Educational Needs) Regulations 1984 SI No. 1047.
Sections 161 and 165 of the 1993 Act imposed a duty on local authorities to secure special educational provision for and to identify those who had special educational needs. The 1984 Regulations set out the time limits for conducting an assessment. Guidance was also provided by the Government by way of circular and a Code of Practice issued under the 1993 Act.
There was also a duty owed under section 19 of the Education Act (replacing section 298 of the Education Act 1993 to establish Pupil Referral Units for children excluded from school.
It was agreed there was no action for mere breach of the various statutory duties, no action could lie for a failure to conduct a statutory assessment or to provide a statement of special educational needs; nor was there a duty of care owed by an LEA in respect of a decision or omission to carry out such an assessment. (X v Bedfordshire CC [1995] 2 AC 633 cited)
Ouseley LJ summarised the law in this area.
Individual teachers and in certain circumstances employees of the LEA owed a professional duty of care to the pupil. This was a species of claim for professional negligence. The correct test to be applied was the Bolam test. (Phelps v LB Hillingdon [2001] 2 AC 619 cited).
A Claimant had to show that no competent teacher, or other person who owed a duty of care to the pupil would have acted properly in that way. The law did not countenance actions for negligence based on a child’s claim that it did not receive an adequate education at school or that a particular teacher had failed to teach properly. Failure to follow the Codes was not of itself negligent or sufficient proof of negligence. Negligence could be demonstrated by manifest incompetence or specific identifiable mistakes. Negligence should not be found too readily. However the existence of a statutory scheme did not preclude a duty of care arising. An education officer might also owe a personal duty of care where in the performance of his statutory duties, he entered into a relationship with or assumed responsibilities towards a child, depending on the application of the tests, foreseeability of damage, proximity and reasonableness. That duty would be to avoid decisions that were plainly and obviously wrong. (Carty v Croydon LBC [2005] 1 WLR 2312 cited).
Ouseley J now considered the evidence. The Claimant had a sister a year younger than him. As a child, he had been late to start talking. His three half brothers had special support at primary school for literacy difficulties. His father had left home when the Claimant was five. The father of the Claimant’s half brothers was an alcoholic.
At the Claimant’s first school, Archbishop Sumner the Claimant had difficulties with concentration. The records indicated emerging problems, although the Claimant’s mother denied that she was aware of any problems.
The Claimant’s next school was Vauxhall Primary School in September 1990. Again there were behavioural problems, and there was some intervention by the school of the Claimant’s mother was unaware until she obtained the records. There were also absences from school. However some progress was made with his literacy skills.
During this time, his mother formed a relationship with the father of his half brothers.
Evidence was given by the headmaster of the school. He said that the school had its own policy for the early identification and meeting of special needs by teachers. There were outside resources available to the school and it was for the teacher to decide whether to use those resources. In the Claimant’s case, all of the teachers believed that they could deal with Andrew within the school. He was sent to an outside resource, Rectory Grove Centre to deal with his behaviour problems.
The Claimant then entered Archbishop Tenison’s School in September 1993 when he was then. The entry information showed that he had a reading age of 6 ¾. He had further problems with his behaviour, including one incident where he was asked to read out in class. He was referred to an educational social worker and then to an educational psychologist, who assessed his reading age at 4.3 years and said that he was dyslexic. However the relevant file had never been traced, and the psychologist had left the London Borough of Lambeth in May 1994 to work in the London Borough of Enfield. There were difficulties in later tracing him, and when he was traced he said that he did not remember the Claimant.
The school had a process for identifying children coming to the school, who had had problems. The principal of the school admitted that the Claimant should have been identified when he first came to the school, as having a learning difficulty, and he accepted that an early identification of special educational needs was important. At the end of the Claimant’s first term, the Pastoral Director of the school noted that he had severe learning difficulties which would be better met at at a specialist school.
In November 1994, an OFSTED report commented that the school did not have a policy for identifying and meeting special educational needs.
There were also problems obtaining and mobilising resources. It took a long time before a child received a statement of special educational needs. There was a limit to the amount of time that an educational psychologist could spend with the pupils.
On the 1st November 1994, the Claimant was suspended from school for ten days. The principal of the school told his mother that he should be removed, or it was likely he would be expelled. The educational social worker recommended that the Claimant go to Lilian Baylis School because it had an excellent special needs department.
The Claimant began at Lilian Baylis School in early December 1994. There were further problems with his behaviour. In September 1994, an outside literacy support agency (“the 409 Project”) produced a report on the Claimant’s reading and writing difficulties and made a series of recommendations, and suggested that the Claimant had dyslexia. The Claimant’s mother alleged that the school took little notice of it.
At around this time the Claimant was experiencing verbal abuse from his mother’s alcoholic boyfriend.
The Claimant’s bad behaviour continued. In November 1995, the Head Teacher wrote to his mother saying that he was been temporarily excluded, but was near to a permanent exclusion. The Head Teacher took into account his literacy difficulties. However after more bad behaviour the Claimant was permanently excluded.
There was no evidence from Lilian Baylis School that the Claimant was on the Special Educational Needs register, and there appeared to be no recognition of his reading and writing problems. In the meantime, there were reports from the 409 Project, who in August 1995 were concerned that the Claimant was not turning up for sessions or trips. The Head Teacher could not tell the stage at which the teachers had become of the Claimant’s literacy problems. Two other teachers gave evidence as to the way in which the school dealt with children with learning difficulties.
The Claimant’s permanent exclusion was confirmed on the 26th February 1996. There was an appeal but this was dismissed.
There was a vacant place at the London Nautical School, but this became unavailable. A place was available at Battersea Technology College, and the Claimant had an interview. However there was a delay in getting the Claimant’s file but in the end Wandsworth refused to take him. The Claimant’s mother made a formal complaint to the London Borough of Lambeth about the fact that her son had been out of formal education so long. By the time the file eventually reached Battersea Technology College, the Claimant’s mother had given up on her son getting a place there.
On the 8th May 1996, the Claimant’s mother wrote to Lambeth asking for a statutory assessment of her son. However nothing was initiated until the 13th December 1996.
After his exclusion the Claimant had continued to attend the 409 Project but his attendance was sporadic and his attendance poor.
In February 1997, the Claimant’s mother applied for a place at Stockwell Park School but two months later, it said that it had no places.
In March 1997, the Claimant complained to the Local Government Ombudsman. The complaint was settled by Lambeth agreeing in 1998 to pay £1500 in compensation for the delay.
In May 1997, the Claimant was arrested for trying to impersonate his father and vote in the General Election. Later that month, the Claimant was offered and placed at the Norwood Tuition Centre after half term. Again he got into trouble. He received a statement of special educational needs in July 1997.
The Claimant denied some of the reports that the Centre had made about him. The Centre had also told his mother about his problems in attendance, but she gave answers which Ouseley J found evasive. Evidence was given by the Centre regarding the support that had been afforded to the Claimant.
Over the years after the Claimant left the Centre, he was convicted of possession of cannabis and of theft. He had two brief periods of employment. In 2000 he was sent to prison for demanding money with menaces. He began various courses to improve his literacy, but could not keep them going. His aim was to study computer engineering and go into desktop publishing. At trial he described himself as more motivated, more mature and as having wised up as a result of going to prison.
Expert evidence
The Claimant’s expert thought that the education system had failed the Claimant. She concluded that he had specific literacy difficulties or dyslexia, as well as significant difficulties with numbers. However in oral evidence she agreed that emotional and behaviour problems could inhibit learning and could also be independent of such difficulties.
The Defendant’s expert agreed that the Claimant had difficulties, but dyslexia was not the discrete or single condition causing his learning difficulties. His behavioural problems were the significant factor holding up his development.
It was agreed by the experts that the first assessment by the educational psychologist in 1993 had taken place.
Conclusion
Ouseley J commented that there were few factual disputes in the case. The Claimant’s mother’s evidence had been patchy, and at times evasive. The Claimant’s own recollection of events was limited. He had a very strong tendency to minimise his conduct and to blame others for leading him astray.
The teachers were sound and fair in their evidence. As for the experts, Ouseley J formed the impression that the real issue here was the expertise of the teachers in the classroom rather than any educational psychologist. There were some criticisms of the Claimant’s expert, insofar as her experience was mainly outside the classroom, and she had significant teaching experience in a secondary school.
The Claimant’s expert had set the test for negligence impossibly high and lacked objectivity and balance. She seemed unable to come to grips with the problems which teachers faced in dealing with someone as disruptive as Andrew, or to come to grips with his own failings, or to recognise that he had some responsibility. The Defendant’s expert was a far more considered and balanced witness.
Ouseley J accepted the Defendant’s counsel’s argument that this was in reality an action for breach of statutory duty, not a negligence case. They were criticisms of techniques, attitudes and actions which might in places have force were this case before the Special Educational Needs and Disability Tribunal or even an action for breach of statutory duty, but rather fade in an action for negligence. At times they were just evidently counsels of perfection and hindsight.
The judge considered the allegations against Archbishop Tenison.
There were clearly factors at home that affected the Claimant. Archbishop Tenison had chosen to address his behaviour problems and the means that they had employed was reasonable.
The school knew that the Claimant had reading difficulties even if it did not know the precise nature of his problems. It had arranged some support at the reading project. There were some criticisms of what the school had done, but this did not amount to negligence. There might have been a more structured and individual plan, but it was impossible to ignore his behaviour.
The important question was whether the school was negligent in its overall approach to dealing with the Claimant, with his disruption, lack of attention, lateness and absence. It was not negligent to decide what should be done in a context where Andrew’s behaviour was reasonably not seen as caused by his literacy difficulties.
The teachers had tried to assist the Claimant in a special class, and had employed conventional ways of improving his behaviour. Ouseley J was not persuaded that the Claimant’s behaviour would have improved had further measures been taken.
There was the failure to refer the Claimant to an Educational Psychologist. Ouseley J said that this was a very scarce resource. There were other children with greater needs, and the Claimant was less of a priority. Archbishop Tenison was under no duty to bring the Educational Psychologist’s assessment to a conclusion. That was a matter for the Claimant’s mother. The school had not actually asked for this assessment to be undertaken, but had been on the periphery of the Claimant’s mother was doing. In any event, the school knew that the Claimant had literacy difficulties. Therefore the claims in respect of Archbishop Tenison’s were dismissed.
The judge then turned to Lilian Baylis School. Here again school took the view that the Claimant’s behaviour was the problem and that was not negligent. They had taken measures to try and deal with that behaviour. There might have been a breach of statutory duty in relation to the time at which the Claimant was put on the SEN register but no negligence.
It was not negligent for the school not to have referred the Claimant to an educational psychologist earlier. Again there were limited resources.
Claimant’s counsel had relied on Guidance and Codes in support of the Claimant’s case, but neither were prescriptive or automatic in inception of assessment or progression.
There was the allegation that the local authority had failed to arrange alternative education for the Claimant. Ouseley J accepted the submissions of Mr Warnock that this claim was not actionable. The statutory duty lay in section 19 of the Education Act 1996. That section did not give rise to a cause of action for damages for breach of statutory duty. There was no common law right to an education.
There was also an allegation in relation to the local authority’s decision to remove the Claimant from the waiting list for the Pupil Referral Unit. This was extraordinary but Ouseley J said that the correct remedy would have been judicial review.
Consequently the claim was rejected.
Ouseley J commented that if negligence had been found, damages would have rather more limited than those pleaded by the Claimant. His criminal record hampered him, as did his decision to undertake classes which were too difficult for him. He had not tackled his literacy problems. Ouseley J would not have made much more of an award than the cost of adult literacy classes, the cost of other courses which would have improved his general education and a modest general award for the lost years after school.
FACTS:-
The Claimant brought damage for negligence in educational provision. He was born in August 1982 and reached school leaving age in 1998. He claimed that the negligence occurred at each of the three schools which he attended from the age of 8 until his permanent exclusion in February 1996. After that time he alleged that the Defendant was negligent in failing to ensure that he stayed on the waiting list for a Pupil Referral Unit. His case was that he had special educational needs and these had not been recognised or dealt with in a reasonably competent way. As a result the Claimant was functionally illiterate and unable to pursue the type of further education or employment which his other abilities would have permitted.
The Claimant had been placed at Archbishop Sumner’s school in Lambeth from 1987 when he was 5.In 1990 at the age of 8, the Claimant was placed at Vauxhall Primary School. It was alleged that he should have been referred to the Lambeth LBC Educational Psychology Service. In 1993, the Claimant began his secondary education at Archbishop Tenison’s Grammar School and stayed there until he was removed by his mother towards the end of November 1994 following a temporary exclusion. He then started at Lilian Baylis School in December 1994 by which time he was receiving some help from an outside group for his reading and writing. He was temporarily excluded from the school in November 1995 and then permanently excluded in January 1996 aged 13 ½. He was seen by an educational psychologist in December 1995 who made recommendations on strategies for dealing with his literacy difficulties and to a limited extent, his behaviour. He was then put on a waiting list for a pupil referral unit, but his name was later removed from that waiting list. In June 1997 he attended the London Nautical School and left there in July 1998, the end of his full time education.
HELD:-
Ouseley J went over the facts of the case. He commented that the pleaded particulars were very vague, although they were refined at the hearing by Claimant’s counsel and a number of allegations were abandoned:;
- The allegation of negligence against the Educational Psychologist
- The allegation that the Defendant should have referred the Claimant to a speech therapist.
- The failure to educate the Claimant in a mainstream school between February 1996 and July 1998
- The allegation of negligent teaching at the Pupil Referral Unit
Ouseley J considered the applicable statutes and statutory regulations. These were:-
- Sections 7 and 8 of the Education Act 1944 as amended by the Education Act 1981
- The Education (Special Educational Needs) Regulations 1983 SI No. 29
The regime had changed with effect form the 1st January 1994, when the Education Act 1993 came into force. The relevant aspects were later re-enacted in the Education act 1996. The relevant Regulations remained the Education (Special Educational Needs) Regulations 1984 SI No. 1047.
Sections 161 and 165 of the 1993 Act imposed a duty on local authorities to secure special educational provision for and to identify those who had special educational needs. The 1984 Regulations set out the time limits for conducting an assessment. Guidance was also provided by the Government by way of circular and a Code of Practice issued under the 1993 Act.
There was also a duty owed under section 19 of the Education Act (replacing section 298 of the Education Act 1993 to establish Pupil Referral Units for children excluded from school.
It was agreed there was no action for mere breach of the various statutory duties, no action could lie for a failure to conduct a statutory assessment or to provide a statement of special educational needs; nor was there a duty of care owed by an LEA in respect of a decision or omission to carry out such an assessment. (X v Bedfordshire CC [1995] 2 AC 633 cited)
Ouseley LJ summarised the law in this area.
Individual teachers and in certain circumstances employees of the LEA owed a professional duty of care to the pupil. This was a species of claim for professional negligence. The correct test to be applied was the Bolam test. (Phelps v LB Hillingdon [2001] 2 AC 619 cited).
A Claimant had to show that no competent teacher, or other person who owed a duty of care to the pupil would have acted properly in that way. The law did not countenance actions for negligence based on a child’s claim that it did not receive an adequate education at school or that a particular teacher had failed to teach properly. Failure to follow the Codes was not of itself negligent or sufficient proof of negligence. Negligence could be demonstrated by manifest incompetence or specific identifiable mistakes. Negligence should not be found too readily. However the existence of a statutory scheme did not preclude a duty of care arising. An education officer might also owe a personal duty of care where in the performance of his statutory duties, he entered into a relationship with or assumed responsibilities towards a child, depending on the application of the tests, foreseeability of damage, proximity and reasonableness. That duty would be to avoid decisions that were plainly and obviously wrong. (Carty v Croydon LBC [2005] 1 WLR 2312 cited).
Ouseley J now considered the evidence. The Claimant had a sister a year younger than him. As a child, he had been late to start talking. His three half brothers had special support at primary school for literacy difficulties. His father had left home when the Claimant was five. The father of the Claimant’s half brothers was an alcoholic.
At the Claimant’s first school, Archbishop Sumner the Claimant had difficulties with concentration. The records indicated emerging problems, although the Claimant’s mother denied that she was aware of any problems.
The Claimant’s next school was Vauxhall Primary School in September 1990. Again there were behavioural problems, and there was some intervention by the school of the Claimant’s mother was unaware until she obtained the records. There were also absences from school. However some progress was made with his literacy skills.
During this time, his mother formed a relationship with the father of his half brothers.
Evidence was given by the headmaster of the school. He said that the school had its own policy for the early identification and meeting of special needs by teachers. There were outside resources available to the school and it was for the teacher to decide whether to use those resources. In the Claimant’s case, all of the teachers believed that they could deal with Andrew within the school. He was sent to an outside resource, Rectory Grove Centre to deal with his behaviour problems.
The Claimant then entered Archbishop Tenison’s School in September 1993 when he was then. The entry information showed that he had a reading age of 6 ¾. He had further problems with his behaviour, including one incident where he was asked to read out in class. He was referred to an educational social worker and then to an educational psychologist, who assessed his reading age at 4.3 years and said that he was dyslexic. However the relevant file had never been traced, and the psychologist had left the London Borough of Lambeth in May 1994 to work in the London Borough of Enfield. There were difficulties in later tracing him, and when he was traced he said that he did not remember the Claimant.
The school had a process for identifying children coming to the school, who had had problems. The principal of the school admitted that the Claimant should have been identified when he first came to the school, as having a learning difficulty, and he accepted that an early identification of special educational needs was important. At the end of the Claimant’s first term, the Pastoral Director of the school noted that he had severe learning difficulties which would be better met at at a specialist school.
In November 1994, an OFSTED report commented that the school did not have a policy for identifying and meeting special educational needs.
There were also problems obtaining and mobilising resources. It took a long time before a child received a statement of special educational needs. There was a limit to the amount of time that an educational psychologist could spend with the pupils.
On the 1st November 1994, the Claimant was suspended from school for ten days. The principal of the school told his mother that he should be removed, or it was likely he would be expelled. The educational social worker recommended that the Claimant go to Lilian Baylis School because it had an excellent special needs department.
The Claimant began at Lilian Baylis School in early December 1994. There were further problems with his behaviour. In September 1994, an outside literacy support agency (“the 409 Project”) produced a report on the Claimant’s reading and writing difficulties and made a series of recommendations, and suggested that the Claimant had dyslexia. The Claimant’s mother alleged that the school took little notice of it.
At around this time the Claimant was experiencing verbal abuse from his mother’s alcoholic boyfriend.
The Claimant’s bad behaviour continued. In November 1995, the Head Teacher wrote to his mother saying that he was been temporarily excluded, but was near to a permanent exclusion. The Head Teacher took into account his literacy difficulties. However after more bad behaviour the Claimant was permanently excluded.
There was no evidence from Lilian Baylis School that the Claimant was on the Special Educational Needs register, and there appeared to be no recognition of his reading and writing problems. In the meantime, there were reports from the 409 Project, who in August 1995 were concerned that the Claimant was not turning up for sessions or trips. The Head Teacher could not tell the stage at which the teachers had become of the Claimant’s literacy problems. Two other teachers gave evidence as to the way in which the school dealt with children with learning difficulties.
The Claimant’s permanent exclusion was confirmed on the 26th February 1996. There was an appeal but this was dismissed.
There was a vacant place at the London Nautical School, but this became unavailable. A place was available at Battersea Technology College, and the Claimant had an interview. However there was a delay in getting the Claimant’s file but in the end Wandsworth refused to take him. The Claimant’s mother made a formal complaint to the London Borough of Lambeth about the fact that her son had been out of formal education so long. By the time the file eventually reached Battersea Technology College, the Claimant’s mother had given up on her son getting a place there.
On the 8th May 1996, the Claimant’s mother wrote to Lambeth asking for a statutory assessment of her son. However nothing was initiated until the 13th December 1996.
After his exclusion the Claimant had continued to attend the 409 Project but his attendance was sporadic and his attendance poor.
In February 1997, the Claimant’s mother applied for a place at Stockwell Park School but two months later, it said that it had no places.
In March 1997, the Claimant complained to the Local Government Ombudsman. The complaint was settled by Lambeth agreeing in 1998 to pay £1500 in compensation for the delay.
In May 1997, the Claimant was arrested for trying to impersonate his father and vote in the General Election. Later that month, the Claimant was offered and placed at the Norwood Tuition Centre after half term. Again he got into trouble. He received a statement of special educational needs in July 1997.
The Claimant denied some of the reports that the Centre had made about him. The Centre had also told his mother about his problems in attendance, but she gave answers which Ouseley J found evasive. Evidence was given by the Centre regarding the support that had been afforded to the Claimant.
Over the years after the Claimant left the Centre, he was convicted of possession of cannabis and of theft. He had two brief periods of employment. In 2000 he was sent to prison for demanding money with menaces. He began various courses to improve his literacy, but could not keep them going. His aim was to study computer engineering and go into desktop publishing. At trial he described himself as more motivated, more mature and as having wised up as a result of going to prison.
Expert evidence
The Claimant’s expert thought that the education system had failed the Claimant. She concluded that he had specific literacy difficulties or dyslexia, as well as significant difficulties with numbers. However in oral evidence she agreed that emotional and behaviour problems could inhibit learning and could also be independent of such difficulties.
The Defendant’s expert agreed that the Claimant had difficulties, but dyslexia was not the discrete or single condition causing his learning difficulties. His behavioural problems were the significant factor holding up his development.
It was agreed by the experts that the first assessment by the educational psychologist in 1993 had taken place.
Conclusion
Ouseley J commented that there were few factual disputes in the case. The Claimant’s mother’s evidence had been patchy, and at times evasive. The Claimant’s own recollection of events was limited. He had a very strong tendency to minimise his conduct and to blame others for leading him astray.
The teachers were sound and fair in their evidence. As for the experts, Ouseley J formed the impression that the real issue here was the expertise of the teachers in the classroom rather than any educational psychologist. There were some criticisms of the Claimant’s expert, insofar as her experience was mainly outside the classroom, and she had significant teaching experience in a secondary school.
The Claimant’s expert had set the test for negligence impossibly high and lacked objectivity and balance. She seemed unable to come to grips with the problems which teachers faced in dealing with someone as disruptive as Andrew, or to come to grips with his own failings, or to recognise that he had some responsibility. The Defendant’s expert was a far more considered and balanced witness.
Ouseley J accepted the Defendant’s counsel’s argument that this was in reality an action for breach of statutory duty, not a negligence case. They were criticisms of techniques, attitudes and actions which might in places have force were this case before the Special Educational Needs and Disability Tribunal or even an action for breach of statutory duty, but rather fade in an action for negligence. At times they were just evidently counsels of perfection and hindsight.
The judge considered the allegations against Archbishop Tenison.
There were clearly factors at home that affected the Claimant. Archbishop Tenison had chosen to address his behaviour problems and the means that they had employed was reasonable.
The school knew that the Claimant had reading difficulties even if it did not know the precise nature of his problems. It had arranged some support at the reading project. There were some criticisms of what the school had done, but this did not amount to negligence. There might have been a more structured and individual plan, but it was impossible to ignore his behaviour.
The important question was whether the school was negligent in its overall approach to dealing with the Claimant, with his disruption, lack of attention, lateness and absence. It was not negligent to decide what should be done in a context where Andrew’s behaviour was reasonably not seen as caused by his literacy difficulties.
The teachers had tried to assist the Claimant in a special class, and had employed conventional ways of improving his behaviour. Ouseley J was not persuaded that the Claimant’s behaviour would have improved had further measures been taken.
There was the failure to refer the Claimant to an Educational Psychologist. Ouseley J said that this was a very scarce resource. There were other children with greater needs, and the Claimant was less of a priority. Archbishop Tenison was under no duty to bring the Educational Psychologist’s assessment to a conclusion. That was a matter for the Claimant’s mother. The school had not actually asked for this assessment to be undertaken, but had been on the periphery of the Claimant’s mother was doing. In any event, the school knew that the Claimant had literacy difficulties. Therefore the claims in respect of Archbishop Tenison’s were dismissed.
The judge then turned to Lilian Baylis School. Here again school took the view that the Claimant’s behaviour was the problem and that was not negligent. They had taken measures to try and deal with that behaviour. There might have been a breach of statutory duty in relation to the time at which the Claimant was put on the SEN register but no negligence.
It was not negligent for the school not to have referred the Claimant to an educational psychologist earlier. Again there were limited resources.
Claimant’s counsel had relied on Guidance and Codes in support of the Claimant’s case, but neither were prescriptive or automatic in inception of assessment or progression.
There was the allegation that the local authority had failed to arrange alternative education for the Claimant. Ouseley J accepted the submissions of Mr Warnock that this claim was not actionable. The statutory duty lay in section 19 of the Education Act 1996. That section did not give rise to a cause of action for damages for breach of statutory duty. There was no common law right to an education.
There was also an allegation in relation to the local authority’s decision to remove the Claimant from the waiting list for the Pupil Referral Unit. This was extraordinary but Ouseley J said that the correct remedy would have been judicial review.
Consequently the claim was rejected.
Ouseley J commented that if negligence had been found, damages would have rather more limited than those pleaded by the Claimant. His criminal record hampered him, as did his decision to undertake classes which were too difficult for him. He had not tackled his literacy problems. Ouseley J would not have made much more of an award than the cost of adult literacy classes, the cost of other courses which would have improved his general education and a modest general award for the lost years after school.