The rulings of two recent legal cases indicate that an SEN pupil's attitude and application will now be key in assessing educational negligence claims, writes Mark Blois
Compensation claims alleging negligence by education professionals in schools and local authorities are less common these days. And where cases do come to trial, there are usually positive outcomes for the school or local authority, as two recent decisions show. This article will analyse the two cases and explain how local authorities and schools should now approach ‘failure to educate’ claims.
Kendall v Southwark LBC (June 2007)
Leanne Kendall alleged negligence on the part of a local authority educational psychologist in carrying out an assessment of her special educational needs, including failure to diagnose dyslexia. Leanne claimed that this failure, whilst she was at primary school, meant that she was denied appropriate educational support — which would have allowed her to become a fluent reader and overcome her literacy difficulties, as well as giving her enhanced job prospects.
Leanne was born in 1983. She found reading and writing difficult from an early age. When Leanne was eight, the school identified her as a child who needed the support of an educational psychologist.
The local authority had a team of educational psychologists who visited its schools. A psychologist would consult with the head teacher, the class teacher and, where appropriate, the parents and the pupil. In 1994, after initial observation of Leanne, and discussions with her head teacher, the educational psychologist suggested that the school apply for a statement of special educational needs.
The statement of SEN
The educational psychologist's assessment of Leanne was given to the SEN section of the local authority in the summer before she started secondary school. The SEN section then prepared a statement of SEN, which proposed funding that was equivalent to the cost of three hours a week extra teaching for Leanne.
A review of the statement in 1997 noted that Leanne’s behavioural problems continued. It was proposed that the statement should be amended — but the SEN panel rejected the proposed amendments, confirming the existing level of support as appropriate.
In October 1998 Leanne was assessed as having a reading and writing age of about seven.
Who was the claim against?
It is interesting to note that no allegations of negligence were brought against the school or any of the teachers in this case.
The claim focused instead on the work of the educational psychologist — but the court held that the educational psychologist had in fact 'genuinely and substantially' carried out an assessment of Leanne's cognitive functioning.
The court's findings
The educational psychologist did not have to make an express finding that Leanne had dyslexia, the court said.
The judge highlighted expert evidence about use of the term 'dyslexia'. A report by the British Psychological Society in 1991 showed that, while some 87 per cent of educational psychologists found the term 'specific learning difficulty' useful, only 30 per cent thought the same about the term 'dyslexia'.
|The report said: ‘Controversy surrounds the concept of specific learning difficulties and dyslexia. Over the years there has been considerable disagreement about the existence of dyslexia as a special condition or syndrome.
‘The British Psychological Society takes the view that under the Education Act 1981 the precise name used to describe a child's learning difficulties is not important.’
- Psychologist was ‘competent’
The court said that the psychologist's conclusions fell within the range of conclusions that a competent educational psychologist could have reached, having regard to contemporary advice and practice in that profession. Even if there had been the alleged breach of duty, it would have made no real difference to Leanne's actual educational progress in respect of her literacy difficulties. The court accepted the local authority’s expert evidence that Leanne's phonological difficulties would probably have remained, in spite of the focused teaching in school and since leaving school. The court accepted evidence that 'she seems blocked at a certain stage of development of the reading process and this gives rise to the persistent nature of her difficulties. Even as an adult where there has been considerable motivation to read, Leanne appears to have struggled and been in need of assistance.' There was little indication that '(Leanne) has in any material sense achieved less in school than she would have done with different treatment'.
In particular the court felt that Leanne lacked motivation. The judge did not think that additional educational resources and support would have made a real difference to her literacy difficulties — because progress depends as well upon the motivation and willingness of the pupil. The judge noted that the contemporary documentation of Leanne’s behavioural difficulties militated against the prospects of success in that respect. He stated, in summary: 'I am not persuaded that, even if there had been a breach of the duty of care ... it would have resulted in any loss or damage on the part of Leanne'.
Since neither breach of duty nor causation could be proved, the claim failed.
Kemp v Norfolk County Council (December 2007)
Thomas Kemp alleged that the failure to diagnose dyslexia and resultant lack of support at his secondary school for his learning difficulties and behavioural problems was so inadequate that it was negligent. He claimed that, had his secondary school diagnosed his dyslexia and provided appropriate support, he:
- would not have developed behavioural problems
- would have achieved functional literacy
- would have obtained respectable GCSE examination results
- would have gone on to further education, or a trade
Thomas was born in 1984. He was educated in schools for which the defendant, in its role as local authority, was responsible. It was apparent at primary school that Thomas had problems. In his second year, a member of the local authority learning support service saw him. An educational psychologist then assessed Thomas and a statement of special educational needs was made in 1993. The statement said that Thomas’ learning difficulties were greater than those of most children of his age. Thomas, then at the end of Year 3, received SEN support for the remainder of his time at primary school — but his behaviour deteriorated.
Thomas began secondary school in 1996. The school understood that he had special educational needs, and it took steps to tackle them.
Throughout his time at the school Thomas received or was offered support, special SEN tuition, and help with his behavioural difficulties. The latter included help from the local authority's behavioural support team, which was external to the school.
An educational psychologist twice assessed Thomas. In the first assessment, the educational psychologist did not identify a specific learning difficulty — simply general learning difficulties. In the second assessment, the psychologist did identify a specific learning difficulty but linked this to a possible diagnosis of attention deficit disorder.
Despite the provisions put in place by the school, Thomas did not make any significant improvement. His behaviour continued to be challenging. Towards the end of his education Thomas became unmanageable. In March 2000, at the request of his parents, Thomas was placed in the school's specific learning difficulties centre, a unit for those suffering from severe dyslexia. In April 2000 Thomas, who was then 15, was temporarily excluded and did not return either to the school or the centre. He stopped coming to school before his GCSE exams, obtained no qualifications and was, for practical purposes, illiterate at the time of the trial.
What did Thomas claim?
Thomas alleged that the educational psychologist should have diagnosed his dyslexia. He said that, had his dyslexia been diagnosed, the psychologist would have recommended, and the school put in place, learning strategies to tackle his difficulties.
In particular, he would have been admitted to the specific learning difficulties centre soon after he began secondary school.
Thomas also said that the school and the local authority had failed to tackle his needs, either by referral to other experts, or by providing the support appropriate to a child with dyslexic-type specific learning difficulties. In particular, they had failed to fulfil the statutory requirements for pupils with special educational needs. The decision
The court said that it was far from clear that Thomas had dyslexia — preferring the definition that he had ‘specific difficulties in auditory processing and phonological awareness’. The judge accepted some criticism of the conduct of the educational psychologist, but said that, whilst the psychologist could be faulted for not linking behaviour and learning difficulties, she was not negligent in failing to diagnose dyslexia. Her report was of value to the SENCO and it led to the line of support offered to Thomas.
The court rejected evidence that the local authority had failed to persevere in its efforts to provide support to Thomas, even where that support was not taken up. The court noted that the support provided did work when he applied himself.
The court accepted that the specific learning difficulties centre would not have offered Thomas any further help. Thomas did not fit the profile for admission — so there was no negligence in not putting him there.
The claim failed — neither the local authority nor its employees had been negligent.
Thomas's lack of motivation
In fact, Thomas's poor progress was attributed to his own lack of motivation — a parallel to the reasoning adopted in Kendall.
The local authority pleaded contributory negligence on the part of Thomas, on the basis that he:
- refused to do work set for him, both in and out of class
- disrupted classes so that he had to leave
- failed to attend classes
- truanted and acted in a way that led to his justifiable exclusion
‘Duty to learn’
Although the local authority owed Thomas a duty, he bore an equal responsibility to learn. The judge thought that Thomas was illiterate because of his own lack of application and self-discipline.
The judge in Kemp considered the possibility of awarding damages, had the claim succeeded — and concluded that any award would have been significantly reduced by contributory negligence on the part of Thomas himself.
Attitude and application
Both cases discussed in this article saw an explicit acknowledgement of the central importance of the application and attitude of the pupil with special educational needs to his or her educational success. No doubt many education professionals will welcome this common sense approach.
Mark Blois is a partner at Browne Jacobson solicitors. Heather Bragg assisted in the preparation of this article Find out more...
- Kendall v Southwark BC Queen's Bench Division: 1 June 2007,  EWHC 2089 (QB)
- The case of Kemp v Norfolk County Council is unreported
- The government SEN and disability website has a range of materials on providing the best possible education for children with special needs in your school