What duty of care does a school educational psychologist owe a pupil and, if the psychologist is negligent, what damages will the LEA be liable for?

The Court of Appeal considered this question in DN v London Borough of Greenwich [2005] 1 FCR 112. In 1985, the pupil, aged 5, was issued with a first statement of SEN. In 1990, the educational psychologist prepared a report on the boy to determine his future education. The LEA then decided, on the basis of this and other reports, that the boy should be educated at a school for children with emotional and behavioural difficulties.

In 1992, a diagnosis of Asperger’s Syndrome was made. In 1994, as a result of his behaviour, the boy was excluded from school. He did not attend school again until 1996, when he was admitted to a residential special school. In 2001, he was convicted of arson, and made subject to a restriction order under the Mental Health Act 1983.

The PUPIL’S claim The pupil claimed damages from the LEA on the basis that the school psychologist had been negligent in preparing the report in 1990. The boy said he would have received an education more suited to his needs had the psychologist not been negligent. The pupil’s claim relied on the evidence of a senior specialist educational psychologist for children with complex needs. He said that educational psychologists in the boy’s area were skilled in identifying autistic features in children, and that the educational psychologist had failed in his duty of care to the boy by:

  • simply referring to his complex needs, and
  • not doing more to assess precisely what those needs were

The FIRST HEARING The trial judge held that the psychologist had been negligent in: 1. failing to appreciate that the boy had not presented a profile of a child with emotional and behavioural difficulties, so that it had been inappropriate to place him in a school for such children 2. failing to carry out any psychometric tests, such as a general intelligence test using the Wechsler testing method

3. failing to recommend to the school and the parents that the boy’s educational needs could be met only by a school with experience and expertise in teaching children with communication disorders

The school educational psychologist should have identified the claimant’s complex social and communication needs, which were not appropriately catered for by the school for children with emotional and behavioural difficulties, to which he was sent.

The psychologist’s negligence had meant that the boy did not learn how to improve his social skills, to manage his behavioural difficulties, or to gain some education opportunities. Damages should be assessed on this basis.

The court of appeal The LEA appealed, but the Court of Appeal held that the judge had been entitled to hold, on the evidence, that the psychologist had been negligent.

So far as damages were concerned, however, the Court of Appeal held that the judge had gone too far in holding that the negligence had caused the boy to lose the opportunity to learn how to improve his social skills, to manage his behavioural difficulties, and to gain some education opportunities.

The judge should have approached the question of damages by considering, on the balance of probabilities, what would have been the likely outcome for the boy if he had gone to an appropriate school.

The boy’s brain was badly damaged. All the experts could say was that the outcome would have been better, or different, with a different education.

AMOUNT OF DAMAGES While the boy was clearly entitled to damages, the uncertainties were so great that only a small award for loss of earning capacity could be justified. The Court of Appeal referred to Rees v Darlington Memorial Hospital NHS Health Trust [2003] 3 FCR 289, a case with similar uncertainties, in which Lord Bingham said: ‘I can accept … a rule of legal policy which precludes the full cost of bringing up a child in the situation postulated (i.e. where there are uncertainties as to what would have happened if there had been no negligence), but I question the fairness of a rule which denies the victim of a legal wrong any recompense at all. ‘I would make a conventional award which would … afford some measure of recognition of the wrong done.’

Michael Segal is a judge in the family division of the High Court

While it is hoped the answers given here are helpful, they should not be relied on without seeking proper advice as to their application to your own circumstances.