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.

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