When does an LEA education officer owe a duty of care to pupils? How far does this duty extend? Michael Segal looks at important new case law.
Modern life throws up situations and relationships that a previous generation of judges could not have imagined, but the law of negligence is capable of coping with them even so.
One example is the recent case of Carty v Croydon London Borough Council (January 2005), where the Court of Appeal had to consider whether an education officer owed a duty of care towards a child.
Here, we will look at how this important case defines the extent of the duty an LEA officer owes to the children for whose education s/he is responsible.
As a preliminary, we will need to consider some basic legal definitions.
TORT: A DUTY OUTSIDE THE CONTRACTUAL RELATIONSHIP
- The tort — or civil wrong — of negligence consists of harm (loss or damage) caused by a breach of a duty to take care.
- The duties that the parties to the contract owe to each other arise out of the agreement between them, whereas in anyone can owe a duty of care to anyone else — there need be no contractual relationship.
So, anyone can be guilty of negligence towards anyone else, as long as s/he owes that other person a duty of care. There is no need for a contractual relationship to exist — it is possible for an LEA education officer, for example, to be guilty of negligence towards a school pupil
— with whom s/he will have no contractual relationship.
Duty of care
Every person owes a duty to take care not to cause harm to any person whom s/he can reasonably foresee is likely to be affected by what s/he does — whether what s/he does is a positive act or a negative omission.
Foreseeability
What a reasonable person should foresee is a matter for the court, depending upon all the circumstances. Although there are hundreds of reported examples of particular acts of negligence, ‘the categories of negligence are never closed’, as a judge once said in a case arising out of novel circumstances.
In deciding whether someone has been negligent, the judge has to ask: did the defendant owe a duty of care to the claimant? If so, was the defendant in breach of that duty?
If so, did the breach cause harm to the claimant? This is the approach the Court of Appeal took in the case of Carty.
THE CASE OF CARTY.
What did the pupil claim? The boy claimed damages against the local authority, alleging a breach of its duty to give him a proper education. He relied on the LEA’s vicarious liability for the negligence of its education officers, on the basis that they had been negligent in carrying out their duties. Vicarious liability is the legal liability of an employer for the torts of his employees acting in the course of their employment.
The trial judge held that neither the school itself nor its education officers had been negligent.
On what basis did he appeal?
The claimant appealed in relation to
- the authority’s failure to re-assess, and amend his statement of SEN, after the breakdown of the placement at the Sir Cyril Burt School
- its education officers having allowed him to remain there from 1991 to 1993
The Court of Appeal held that where an education officer in the performance of his or her statutory functions under the Education Act 1981 (the relevant act in relation to the claimant; now the Education Act 1993) entered into a relationship with, or assumed responsibilities towards, a child, he might owe a duty of care to that child.
The interpretation of ‘might’
The non-lawyer will object that local authorities and education officers are entitled to something more helpful than a ruling that the education officer ‘might’ owe a duty of care to a child.
But examination of the judgments of the Court of Appeal shows that the decision is, in fact, a helpful one. As expected, the court began by asserting that whether or not the education officer owed a duty of care towards the child depended upon the established test for the existence of a duty of care (see above).
‘Plainly and obviously wrong’
The court then went on to explain that the nature of the education officer’s statutory function, and the difficulty of decisions, such as the assessment of the needs of a child with SEN, were such that, only if the education officer’s decision was plainly and obviously wrong would a court hold that it was fair, just and reasonable to impose a duty of care on him or her.
Statutory function
The court referred to the education officer’s statutory function. This arises under the statutory scheme created by the Education Act 1981, which governs the powers and duties of education authorities. In particular, it imposes a duty on LEAs to:
- identify the special needs of children for whom they are responsible
- make an assessment of the special needs of such children
- make a statement of the child’s special educational needs
- arrange the special educational provision that the statement specifies
A non-human institution, such as a local authority, can of necessity act only by human agents and, in the case of its duties under the Act, these duties are carried out by, among others, educational officers (although they must of course obtain advice from child psychiatrists, child psychologists, educational psychologists and other professionals).
But it is the education officer who has the responsibility for making the assessments that affect the lives of the children.
Would imposition of liability inhibit LEA functioning?
It was argued on behalf of the local authority that to recognise liability by a local authority in the circumstances of a case such as this might interfere with the proper performance by the local authority of its duties, or unnecessarily inhibit it in performing its duties, and that it would be wrong to recognise any such liability.
Safeguards The Court of Appeal recognised the problem, but took the view that any fear of a flood of claims would be countered by the consideration that, in deciding not only whether the local authority owed a duty of care, but also whether it was in breach of that duty, the court would recognise:
- the difficult nature of the decisions that the education officer was required to make
- the room for genuine differences of view as to the propriety of one course of action as against another
Difference of professional opinion
In education, there might well exist distinct but respectable opinions upon matters of method and practice, and it might be difficult to substantiate a case of fault against the background of a variety of professional practices.
In cases of failure to diagnose a particular disability from which a child might be suffering, there might well be considerable difficulties in the making of the diagnosis, which might render proof of negligence hazardous.
Does the case of Phelps still apply?
The Court of Appeal judges referred to Phelps v London Borough of Hillingdon, a leading case on educational negligence.
They quoted from Lord Steyn, one of the judges in Phelps. It is worth quoting at length from the passage they selected as it provides valuable insight into the application of the duty of care to education officers:
LEA vicariously liable for officers The Court of Appeal concluded that education officers who performed the statutory functions of a local education authority were professional persons for whose negligence local authorities might be vicariously liable, just as they might be liable for the acts and omissions of educational psychologists and teachers. The functions of an education officer might be performed effectively only by those who had the appropriate skill and expertise
— regardless of the fact that there was no formal education officer qualification, and no professional body responsible for the regulation and discipline of education officers.
The nature of these functions, and the difficulty of making decisions, such as a decision as to the needs of a child with special educational needs, were such that only if the education officer’s decision was plainly and obviously wrong would a court hold that it was fair, just and reasonable to impose a duty of care on him.
Nevertheless, education officers who performed these statutory functions were professional persons for whose negligence local education authorities might be vicariously liable.
NO BLANKET IMMUNITY
Accordingly, an education officer did not enjoy blanket immunity for his or her performance of statutory functions in relation to children with special educational needs.
On the evidence, the decision to transfer the claimant to the Sir Cyril Burt school had been taken after a careful assessment of his needs, with the benefit of and in accordance with expert advice obtained from the relevant professionals.
The judge had correctly concluded that the decision was not negligent.
So far as the allegation that allowing the claimant to remain at the Sir Cyril Burt School from 1991 to 1993 was concerned, the decision to continue that placement involved a judgment as to the special education provision that was to be made for the child, and the school at which it was to be provided.
Having regard to the complexity and delicacy of such decisions, the court should not find negligence too readily, and the judge had been right. The appeal was dismissed.
CARTY — A MILESTONE CASE
As with most negligence cases the facts, however interesting, are not the most important part of the case.
The significance of Carty lies in the decision that where an education officer in the performance of his or her statutory functions under the Education Act 1981 (now the Education Act 1993) enters into a relationship with or assumes responsibilities towards a child, s/he will owe a duty of care to that child if s/he makes a decision that is ‘plainly and obviously wrong’.
The Court of Appeal found it helpful to consider whether the education officer owed a duty of care to the child, rather than whether s/he was in breach of that duty.
On the facts of the case, it could have concluded that there was a duty, but no breach. The result is the same; in the absence of a finding that the education officer’s decision is plainly and obviously wrong, there will be no liability.
Case law will provide clarification
No doubt, future cases will produce examples of decisions that are, and are not, plainly and obviously wrong, showing on which side of the line each decision falls, so that legal advisers will be able to advise in advance as to the chances of success of a claim based on the alleged negligence of an education officer.
Michael Segal is a district judge in the Family Division of the High Court
THE ALLEGATIONS The pupil made six allegations of negligence against the LEA: 1. failure to provide in-school support at the Thomas Beckett and Dupas Schools 2. failure to assess, and issue a statement of SEN 3. failure to re-assess, and amend the statement, after the breakdown of the St Nicholas’ School placement 4. failure in 1989 to amend the statement to provide for speech therapy 5. allowing the claimant to remain at the Sir Cyril Burt School from 1991 to 1993
6. failing to re-assess the claimant following the breakdown of the placements at the Sir Cyril Burt and Kinloss schools
CARTY v CROYDON LONDON BOROUGH COUNCIL: THE FACTS
In this case a pupil claimed that his LEA had failed to give him a proper education. From an early age the pupil suffered from a number of physical and developmental problems.
In 1982, the LEA’s school psychologist reported that the pupil was behind in his language development: his speech was poor, and his behaviour towards his peers often aggressive.
Mainstream school
By 1983 he was thought to have improved, and was placed in a mainstream school — Thomas Beckett Primary School. Then, when his parents moved, he went to another mainstream school, Duppas Junior School.
In 1986, he was excluded from Duppas Junior School, and placed in another mainstream school, St Nicholas’ School. In 1987, a statement of special educational needs was produced.
School for emotional and behavioural difficulties
In 1988, his behavioural and emotional problems were such that he was causing disruption to others, and interfering with his own ability to learn, and he was placed at the Sir Cyril Burt School, which catered for children with emotional and behavioural difficulties.
Although there were some indications of positive progress, it became clear that the pupil was having increasing difficulty in keeping up with the curriculum.
In 1990, his mother suggested that he be placed back in a mainstream school, but the Sir Cyril Burt School did not consider that this was appropriate in the light of his continuing learning and behavioural difficulties.
In 1991, an educational psychologist recommended that he remain at the Sir Cyril Burt School. The only alternative was Bensham Manor School, a school that catered for children with learning difficulties, but the educational psychologist was opposed to a placement at that school, because of the boy’s aggressive behaviour.
The local authority nevertheless continued to explore the possibility of placing him at Bensham Manor School. His mother was dissatisfied with the Sir Cyril Burt School, and asked for a move to another school.
In fact, the boy remained at Sir Cyril Burt School until 1993, when he was 15. While he was there, a number of shortcomings in the school began to emerge, and the situation at the school deteriorated.
This was caused or exacerbated by the retirement of the long-serving and influential head teacher, after which the school was run by an acting head teacher.
Situation deteriorates
The situation continued to deteriorate, the school began to operate at split sites, and the pupil was eventually taught at the site of Bensham Manor School under the supervision of the Sir Cyril Burt School staff.
From 1993 onwards alternative placements were sought for him, including a school that would not, however, accept him because his problems were not primarily dyslexic.
Eventually, he was found an out-of-borough placement at Kinloss School, a boarding school for dyslexic children.
Return to the mainstream
This placement ran into difficulties, and in 1994, he was suspended from this school and placed in a mainstream comprehensive school.
Home tuition
At this school, there was a violent incident that led to his exclusion, after which he received home tuition until his education ended.
Lord Steyn said, in Phelps:
‘Where a person is employed by a LEA to carry out professional services as part of the fulfilment of its statutory duty, it has to be asked whether there is any overriding reason on principle why that person should not owe a duty of care and why, if the duty of care is broken by that person, the authority as employer should not be vicariously liable.
‘It is long and well-established, now elementary, that persons exercising a particular skill or profession may owe a duty of care, in the performance of that skill or profession, to people who it can be foreseen will be injured if due skill and care are not exercised.
‘A doctor, an accountant, and an engineer are plainly such a person. So, in my view, is an educational psychologist or psychiatrist, and a teacher, including a teacher in a specialised area, such as a teacher concerned with children having special educational needs.
‘So may be an education officer performing the functions of a LEA concerning children with special educational needs.
The professionalism, dedication and standards of those engaged in the provision of educational services are such that cases of liability for negligence will be exceptional.
‘But though claims should not be encouraged, and the courts should not find negligence too readily, the fact that some claims may be without foundation, or exaggerated, does not mean that valid claims should necessarily be excluded.’
FIND OUT MORE Carty v Croydon London Borough Council: [2005] 1 FCR 554 Phelps v London Borough of Hillingdon: [2000] 3 FCR 102 ‘Educational negligence and the Phelps case’ — Tim Kaye, Education Law Update, November 2000
‘How to counter a claim for educational negligence’ — Richard Gold, Education Law Update, December 2001