THE
‘EDUCATION’ CASES
These cases are described as ‘education’ for shorthand
purposes but cover the social work functions of local authorities as well. The
principles are similar. The cases follow broadly the same principles as those
in the emergency services cases. The same problems are raised by omissions and
statutory powers and cases must pass through the filter of an exception to the
omissions rule based on undertaking and reliance. The claimant must also
establish proximity and pass the three-part test on policy. The cases raise
issues of liability for breach of statutory duty which is a separate tort with
its own rules.
X
(minors) v Bedfordshire County Council [1995] 3 All ER 353
This was the lead case in a series of cases which
tackled the question of the liability in negligence of professionals who are
responsible for taking decisions in relation to children. The central issues
are whether there is an action when a child is wrongly removed from the family
following negligent advice and whether there is an action if the child is not
removed.
M
(a minor) v Newham London Borough Council; X (minors) v Bedfordshire County
Council [1995] 3 All ER 353
In the first case
a child gave the first name of an abuser in an interview with a psychiatrist
and a social worker. They wrongly assumed that this was the partner of the
child’s mother who had the same name. It was in fact the child’s cousin. The
child was then removed from the mother after the local authority applied for a
place of safety order. The child was then made a ward of court and placed in
the care of the local authority. The mother later saw a transcript of the
interview and realised the mistake. The child was then returned to the mother.
The child and the mother than made a claim for anxiety neurosis caused by
negligence and/or breach of statutory authority In the second case various
reports were made that the plaintiff children were at risk. Nothing was done
for a period of years until 1992 when an order was sought by the local
authority. The children then sued the local authority claiming that the local
authority had failed to have due regard
to their welfare as required by the Children Act 1989 and it should have acted
more quickly and effectively and this failure had caused them to suffer ill
treatment, illness and impaired their health and development.
E v
Dorset County Council; M v Hampshire County Council [1995] 3 All ER 353
In the first action E sued the local authority for
breach of statutory duty on the ground that they had failed to diagnose a
learning disability which required special provision. E was sent to a special
school at his parents’ expense. A claim for common law negligence was also made
as the local authority was alleged to have failed to diagnose or make proper
provision for his condition. In the second case, M sued as the headteacher had
failed to refer him for assessment of his learning difficulties which were
consistent with dyslexia.
House
of Lords decision
1 Private law
claims against public authorities for damages could be divided into four
categories: (a) actions for breach of statutory authority; (b) actions based
solely on the careless performance of a statutory duty in the absence of any
other common law right of action; (c) actions based on the common law duty
arising either from the imposition of the statutory duty or from the
performance of it; and (d) misfeasance in public office.
2 In actions under (a) the breach of the statutory duty
itself was not enough to give rise to any private law cause of action.
(Standard rules on whether breach of the statute gives rise to an action for
damages.)
3 The mere assertion of the careless exercise of a
statutory power or duty (b) was not sufficient in itself to give rise to a
private law cause of action. The plaintiff also has to show that the
circumstances were such as to raise a duty of care at common law. The decision
whether or not to exercise the discretion had to be distinguished from the
manner in which the statutory duty was implemented in practice. Nothing the
authority did within the ambit of the discretion could be actionable at common
law and the taking of decisions involving policy matters was non-justiciable.
If the claim was justiciable – i.e. if the decision was so unreasonable that it
fell outside the ambit of the discretion – then any action would turn on the
ordinary principles of negligence.
4 In the abuse
cases the claims based on (a) had been rightly struck out. The purpose of the
legislation was to establish an administrative system designed to promote the
social welfare of the community and this purpose was inconsistent with a
private right of action against those responsible for carrying out the
difficult functions under the legislation.
5 In the education cases the claims based on breach of
statutory duty had also been rightly struck out as the legislation did not
impose any obligation on the authority to accept a child for education in one
of its schools.
6 In respect of the claims for breach of duty of care in
both the abuse and education cases, assuming that the relevant authority’s duty
did not involve non-justiciable issues it would not be just and reasonable to
impose a duty of care. Courts should be extremely reluctant to impose a duty of
care in the exercise of discretionary powers conferred by Parliament for social
welfare purposes. In the abuse cases a common law duty of care would be
contrary to the whole statutory system set up for the protection of children at
risk. This involved many other agencies and persons connected with the child
and would impinge on the delicate nature of the decisions which had to be made
in child abuse cases.
7 In education cases administrative failures were best
dealt with by the statutory appeals procedure. In the education cases a local
authority was under a duty of care to those using the service to exercise care
in its conduct to those using the service. Educational psychologists and other
members of staff of an education authority owed a duty of care in the
assessment and determination of a child’s educational needs and the authority
was vicariously liable for any breach of such duties by their employees.
8 The plaintiffs in abuse cases had no private law claim
for damages. In the education cases the authorities were under no liability at
common law for the exercise of their statutory discretions but could be liable
both directly and vicariously for negligent advice given by their employees.
None of the cases was an implementation case. The nub of the carelessness
allegations in each case related to decision making. Lord Browne-Wilkinson
refused to recognise a duty of care in the child care cases on the grounds that
it would not be fair, just and reasonable to do so. (Statutory framework.) A
similar analysis was applied to the education cases relating to careless
assessment and placement of children. However, the failure to refer for advice
from educational psychiatrists (Dorset) and the allegation relating to inadequate
advice provided by the headmaster (Hampshire) were allowed to proceed on the
grounds that the conduct in question was sufficiently distinct from the
underlying statutory scheme (this was later admitted to be wrong in Phelps,
below) and the advice in question would be provided by the educational
psychiatrist and headmaster direct to the plaintiffs. As such, it could be
assumed that the local authority had assumed responsibility to the plaintiffs.
This decision set the tone for actions against a local authority. Child abuse
cases would be routinely struck out on the basis of X as there would be no case
to answer. However, the implementation of the Human Rights Act changed the
approach in these cases, culminating in the decision in D v East Berkshire
Community Health NHS Trust (see above) that a duty of a care was owed to
children in the abuse cases and that the policy reasons given in X for denying
a duty were no longer applicable. A considerable amount of litigation was,
however, generated in the education cases in the context of liability for
special needs assessments. The European Court of Human Rights decision in Osman
(see above) cast doubt on the legality of striking out the child abuse cases
and the House of Lords had to consider X in the light of Osman in the following
case.
Barrett v Enfield London Borough Council
[1999] 3 All ER 193
The plaintiff was aged ten months when a care order was
made in favour of the defendant local authority and he remained in care until
he was 17. The plaintiff claimed damages for personal injuries, alleging that
the defendant was in breach of its duty to act as a parent and to show the
standard of care that was required of a responsible parent. A number of factual
allegations were made to support the claim. The defendant applied to strike out
the claim on the grounds that it disclosed no cause of action. This was refused
by the district judge but upheld by the judge and the plaintiff appealed to the
Court of Appeal who upheld the judge and the plaintiff appealed to the House of
Lords. The House of Lords allowed the appeal against striking out. Cases should
only be struck out where it was certain that the claim would not succeed and
was inappropriate for cases where the law was uncertain and developing, such as
in this area. Such developments should be on the basis of actual facts found at
trial and not on hypothetical (possibly wrong) facts assumed to be true for the
purpose of the strike out. Lord Browne-Wilkinson gave an example of this
concern when he observed that a flood of litigation had been prompted by his
dicta in X v Bedfordshire, to the effect that the court’s general reluctance to
impose a duty of care on a local authority might be less marked in potential
actions against educational psychologists. In Barrett, his Lordship noted that
the critical assumption of fact upon which his dicta in X rested actually
turned out to be incorrect. This case, however, was different X, as there the
question was whether the decision to take a child into care was actionable in
negligence, whereas here the child had been taken into care. Lord Slynn was of
the opinion that X did not conclude the case and that it was arguable that a
duty of care was owed and was broken. On this basis causation came into play
and Lord Slynn differed from the Court of Appeal who thought causation could
not be established as the plaintiff would not be able to show that operational
acts, even if negligently performed, either separately or cumulatively, caused
the condition of which the plaintiff complained. Lord Slynn, however, stated
that causation was largely a question of fact. Further indications of the
courts’ reluctance to impose liability on public authorities based on a blanket
policy immunity came in:
W v
Essex County Council [1998] 3 All ER 111 (CA); [2000] 2 All ER 237 (HL)
A 15-year-old boy, a known sexual abuser, was placed
with a foster family without their being informed of his full history. The
children of the family were sexually abused. The Court of Appeal struck out the
parents’ claim as it would not be just and reasonable on policy grounds to impose
a duty as it would cut across the statutory arrangements for the fostering of
children in care. However, the House of Lords refused to strike out the
parents’ claim for psychiatric damage allegedly suffered as a result of feeling
responsible for their children’s sexual abuse. It was at least arguable that
the parents had a claim. It is also now clear that a local authority is
vicariously liable for the negligence of educational psychiatrists who
negligently fail to diagnose learning difficulties such as dyslexia. The
following case is dealt with at some length but is crucial in understanding the
changes that have taken place in this area.
Phelps
v Hillingdon Borough Council [2000] 4 All ER 504
The plaintiff in the first case, who was born in 1973,
was in 1985 referred by her school to the defendant local education authority’s
school psychological service. An educational psychologist employed by the
authority reported that testing had revealed no specific weaknesses. Shortly
before the plaintiff left school she was privately diagnosed as dyslexic. She
brought an action against the authority claiming that they were vicariously
liable for the psychologist’s negligent assessment. The judge held that the
psychologist had owed a duty of care to the plaintiff, that the adverse
consequences of the plaintiff’s dyslexia could have been mitigated by early
diagnosis and appropriate treatment or educational provision and that,
accordingly, the psychologist’s negligence had caused the damage in respect of
which the plaintiff’s claim was made. He awarded her damages. The applicant in
the second case, born in 1979, was privately diagnosed in 1988 as being
severely dyslexic. She contended that her severe speech and language problems
had not been investigated adequately or at all by the defendant local education
authority and that as a result of failure to make suitable educational
provision for her she had developed, and suffered from, psychological problems.
The plaintiff in the third case suffered from muscular dystrophy. He was
provided with a statement of special educational needs pursuant to the
Education Act 1981 emphasising the need for him to have access to a computer
and to be trained in its use. He contended that negligently and in breach of
duty the defendant local education authority had failed to provide a proper
education for him, in particular computer technology and suitable training to
enable him to communicate and cope educationally and socially, and that as a
result he had suffered damage in the form of lack of educational progress,
social deprivation and psychiatric injury consisting of clinical depression.
The plaintiff in the fourth case was born in 1979. He had severe learning
difficulties and his special educational needs were assessed under the 1981
Act. An educational psychologist’s report did not refer to dyslexia. His mother
felt that he should be placed in a unit specialising in dyslexia, but he was
placed elsewhere. He issued a writ alleging, inter alia, negligence and breach
of duty both by the psychologists for whom the local education authority was
vicariously liable and by the authority itself for failing to provide competent
advice through its educational psychology service. The House of Lords
considered these cases in the context of whether they should have been struck
out or not as there was no cause of action disclosed.
Lord
Slynn:
It does not
follow that the local authority can never be liable in common law negligence
for damage resulting from acts done in the course of the performance of a statutory
duty by the authority or by its servants or agents. This House decided in
Barrett v Enfield London Borough Council [1993] 3 WLR 79 that the fact that
acts which are claimed to be negligent are carried out within the ambit of a
statutory discretion is not in itself a reason why it should be held that no
claim for negligence can be brought in respect of them. It is only where what
is done has involved the weighing of competing public interests or has been
dictated by considerations on which Parliament could not have intended that the
courts would substitute their views for the views of ministers or officials
that the courts will hold that the issue is non-justiciable on the ground that
the decision was made in the exercise of a statutory discretion. In Pamela’s
case there is no such ground for holding that her claim is non-justiciable and
therefore the question to be determined is whether the damage relied on is
foreseeable and proximate and whether it is just and reasonable to recognise a
duty of care: Caparo Industries plc v Dickman [1990] 2 AC 605, 617–618. If a
duty of care would exist where advice was given other than pursuant to the
exercise of statutory powers, such duty of care is not excluded because the
advice is given pursuant to the exercise of statutory powers. This is
particularly important where other remedies laid down by the statute (e.g. an
appeals review procedure) do not in themselves provide sufficient redress for
loss which has already been caused. Where, as in Pamela’s case, a person is
employed by a local education authority to carry out professional services as
part of the fulfilment of the authority’s statutory duty, it has to be asked
whether there is any overriding reason in principle why (a) that person should
not owe a duty of care (the first question) and (b) why, if the duty of care is
broken by that person, the authority as employer or principal should not be
vicariously liable (the second question). I accept that, as was said in X
(Minors) v Bedfordshire County Council [1995] 2 AC 633, there may be cases
where to recognise such a vicarious liability on the part of the authority may
so interfere with the performance of the local education authority’s duties
that it would be wrong to recognise any liability on the part of the authority.
It must, however, be for the local authority to establish that: it is not to be
presumed and I anticipate that the circumstances where it could be established
would be exceptional. As to the first question, 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 to people who it can be
foreseen will be injured if due skill and care are not exercised, and if injury
or damage can be shown to have been caused by the lack of care. Such duty does
not depend on the existence of any contractual relationship between the person
causing and the person suffering the damage. 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 local
education authority in regard to children with special educational needs. There
is no more justification for a blanket immunity in their cases than there was
in Capital & Counties plc v Hampshire County Council [1997] QB 1004. I
fully agree with what was said by Lord Browne-Wilkinson in the X (Minors) case
[1995] 2 AC 633, 766 that a head teacher owes ‘a duty of care to exercise the
reasonable skills of a headmaster in relation to such [sc a child’s]
educational needs’ and a special advisory teacher brought in to advise on the educational
needs of a specific pupil, particularly if he knows that his advice will be
communicated to the pupil’s parents, ‘owes a duty to the child to exercise the
skill and care of a reasonable advisory teacher’. A similar duty on specific
facts may arise for others engaged in the educational process, e.g. an
educational psychologist being part of the local authority’s team to provide
the necessary services. The fact that the educational psychologist owes a duty
to the authority to exercise skill and care in the performance of his contract
of employment does not mean that no duty of care can be or is owed to the
child. Nor does the fact that the educational psychologist is called in in
pursuance of the performance of the local authority’s statutory duties mean
that no duty of care is owed by him, if in exercising his profession he would
otherwise have a duty of care. That, however, is only the beginning of the
inquiry. It must still be shown that the educational psychologist is acting in
relation to a particular child in a situation where the law recognises a duty
of care. A casual remark, an isolated act may occur in a situation where there
is no sufficient nexus between the two persons for a duty of care to exist. But
where an educational psychologist is specifically called in to advise in
relation to the assessment and future provision for a specific child, and it is
clear that the parents acting for the child and the teachers will follow that
advice, prima facie a duty of care arises. It is sometimes said that there has
to be an assumption of responsibility by the person concerned. That phrase can
be misleading in that it can suggest that the professional person must
knowingly and deliberately accept responsibility. It is, however, clear that
the test is an objective one: Henderson v Merrett Syndicates Ltd [1995] 2 AC
145, 181. The phrase means simply that the law recognises that there is a duty
of care. It is not so much that responsibility is assumed as that it is
recognised or imposed by the law. The question is thus whether in the
particular circumstances the necessary nexus has been shown. The result of a
failure by an educational psychologist to take care may be that the child
suffers emotional or psychological harm, perhaps even physical harm. There can
be no doubt that if foreseeability and causation are established, psychological
injury may constitute damage for the purpose of the common law. But so in my
view can a failure to diagnose a congenital condition and to take appropriate
action as a result of which failure a child’s level of achievement is reduced,
which leads to loss of employment and wages. Questions as to causation and as
to the quantum of damage, particularly if actions are brought long after the
event, may be very difficult, but there is no reason in principle to rule out
such claims. As to the second question, if a breach of the duty of care to the
child by such an employee is established, prima facie a local or education
authority is vicariously liable for the negligence of its employee. If the
educational psychologist does have a duty of care on the facts is it to be held
that it is not just and reasonable that the local education authority should be
vicariously liable if there is a breach of that duty? Are there reasons of
public policy why the courts should not recognise such a liability? I am very
conscious of the need to be cautious in recognising such a duty of care where
so much is discretionary in these as in other areas of social policy. As has
been said, it is obviously important that those engaged in the provision of
educational services under the statutes should not be hampered by the
imposition of such a vicarious liability. I do not, however, see that to
recognise the existence of the duties necessarily leads or is likely to lead to
that result. The recognition of the duty of care does not of itself impose
unreasonably high standards. The courts have long recognised that there is no
negligence if a doctor ‘exercises the ordinary skill of an ordinary competent
man exercising that particular art’. The change of approach by the courts is
quite noticeable. At one stage they were deterred from finding negligence
liability in this area because of the complex issues of social policy which are
involved and their awareness that questions of private law damages could upset
the complex network set up by legislation. What is clear is that the courts are
no longer deterred from finding a duty of care in operational matters where a
public authority has taken steps. Omissions remain a problem as these are more
likely to occur in the policy area where it is dangerous for courts to tread.
Lord Slynn’s very humanitarian judgment indicates a shift away from the complex
network of tests set up in Stovin v Wise [1996] 3 All ER 801 and a move toward
more orthodox negligence principles of foreseeability, proximity and policy.
Where a public authority has decided to exercise a statutory discretion then it
should take reasonable care in doing so. If there is a specific nexus between
the authority or its employees such as that in Phelps, this may serve to
establish proximity based on either assumption of responsibility or specific
reliance. It is, however, still open for the courts to find no duty as it would
not be just and reasonable to do so after weighing up the policy considerations
involved. A claimant still faces formidable obstacles in these cases. As Lord
Slynn points out, the claimant still has to establish breach of duty and
causation.
0 comments:
Post a Comment