IPSEA

Education negligence cases

David Ruebain, IPSEA's honorary legal adviser, summarises the momentous House of Lords judgement on negligence in education.

• Introduction
• What is negligence?
• The Phelps case
• The House of Lords decision 27 July 2000

Introduction

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The House of Lords has recently given judgement in four cases concerning allegations of negligence against local education authorities (LEAs): Phelps v London Borough of Hillingdon, Anderton v Clywd County Council, re: G and Jarvis v Hampshire County Council.

These cases are the most recent, and perhaps the most significant, of a series of decisions on education negligence cases that began in 1995.

Prior to 1995, it had not been thought possible to bring court cases against LEAs for the negligent failure to provide appropriate education. Then, in June 1995, the House of Lords gave judgement in three test cases (known as E v Dorset County Council and Others), concerning this question. Although the judgement did not determine that there was negligence in any of those particular cases, the Court established the principle that educational psychologists, teachers and other similar staff may be held liable in negligence to the children for whom they are responsible. The Court also held that a LEA or school may be "vicariously" liable for the negligent actions of their staff. This means that an individual could sue an LEA or school if one or more of its staff had been negligent.

What is negligence?

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In law, in order to establish negligence, three conditions must be met:

1. The person who is being held responsible for the negligence (such as the educational psychologist or teacher) must owe the victim a "duty of care".
2. That duty of care must have been breached. This means that the person responsible failed to provide a standard of education that would have been expected of him or her.
3. As a result of that breach, the victim has suffered identifiable loss.

The Phelps case

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In September 1997, the first substantive education negligence case was decided: Phelps v London Borough of Hillingdon. Ms Phelps has dyslexia and argued that, when she was at school, an educational psychologist employed by Hillingdon LEA should have diagnosed her dyslexia. Because this did not happen, Ms Phelps said that she failed to receive necessary educational provision for her dyslexia and did not learn to read and write as well as she could have done.

The High Court determined that the educational psychologist owed Ms Phelps a duty of care which was breached and that Ms Phelps suffered as a result. The Court also held that Hillingdon LEA, which employed the educational psychologist, was vicariously liable and ordered them to pay compensation to Ms Phelps.

However, Hillingdon LEA then appealed this decision to the Court of Appeal, who gave their judgement on 4 November 1998. That judgement reversed the decision of the High Court and held that, in fact, an individual educational psychologist does not owe a duty of care to a child. The Court considered that such a psychologist is part of a multi-disciplinary team whose function is to provide information to the LEA, rather than owing a direct duty of care to the child concerned. This meant that the first requirement for bringing a negligence case was not satisfied. Ms Phelps appealed to the House of Lords.

The House of Lords decision of 27 July 2000

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As well as the Phelps appeal, the House of Lords considered appeals in three other cases. The case of Anderton was concerned with a very narrow point as to whether such claims constitute a personal injury, as this would have an impact on the way in which the case could be brought. The case of "G" concerned an allegation by a young man with Duchenne muscular dystrophy that the London Borough of Bromley failed to provide a proper education and, in particular, computer technology and suitable training. The case of Jarvis concerned a young man with dyslexia who brought a claim against Hampshire County Council over their failure to make appropriate provision for his dyslexia.

In summary, the House of Lords reversed the decision of the Court of Appeal in Phelps and has made it more possible for individuals to bring claims for compensation. The judgement is long but it is possible to extract key principles:

1. The law does not, at the moment, allow actions for compensation for straightforward breaches of statutory duty. In other words, duties given to LEAs by legislation which are not carried out may not allow for compensation.
2. However, there is what is known as a common law duty of care (in other words, separate from duties given to LEAs by legislation) to undertake duties correctly. If they fail in this duty so that there is negligence resulting in loss, then compensation may be sought.
3. If, however, a LEA makes a decision on grounds of a policy, it may not be possible to bring a claim for compensation, even if that policy is found to have been wrong. Alternatively, if the negligent action was not directly as a result of a policy decision, a claim may be brought.
4. Local authorities and schools can be held vicariously liable for the negligent actions of staff members including educational psychologists, teachers, education officers etc.
5. In establishing negligence, it must be shown that the professional concerned went beyond the alternatives available to a competent person exercising that professional skill. A person will not be guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of that profession, skilled in that particular art. Negligence will not arise simply because somebody else disagrees with the steps taken, even if those steps are found to have been the wrong ones.
6. Claims in education negligence are likely to be considered as personal injury claims.

In the light of these decisions, anyone considering that they may have a claim for negligence should take specialist legal advice as soon as possible. There are strict time limits which will apply to prohibit claims being brought and it is therefore particularly important that expert advice is sought as soon as possible. In addition, it will be very important to ensure that as many school and other educational records are kept, to assist in proving claims of negligence.

David Ruebain