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|Judgments - Phelps (A.P.) v. Mayor Etc. of The London Borough of Hillingdon Anderton (A.P.) (By Her Mother and Next Friend) v. Clwyd County Council In Re G (A.P.) (A Minor) (By His Next Friend) Jarvis (A.P.) v. Hampshire County Council
HOUSE OF LORDS
Lord Slynn of Hadley Lord Jauncey of Tullichettle Lord Lloyd of Berwick Lord Nicholls of Birkenhead Lord Clyde Lord Hutton Lord Millett
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
MAYOR ETC. OF THE LONDON BOROUGH OF HILLINGDON
ANDERTON (A.P.) (BY HER MOTHER AND NEXT FRIEND)
CLWYD COUNTY COUNCIL
IN RE G (A.P.) (A MINOR) (BY HIS NEXT FRIEND)
HAMPSHIRE COUNTY COUNCIL
ON 27 July 2000
LORD SLYNN OF HADLEY
The appeals in these four cases were heard together. They all raise questions as to the liability of a local education authority for what is said to have been a failure, either by the local authority or by employees for whom the local authority was vicariously liable, in the provision of appropriate educational services for children at school.
Three cases are concerned with children who were dyslexic; the fourth was a child suffering from Duchenne Muscular Dystrophy. In one case (Phelps) there has been a trial. The plaintiff succeeded before the Judge, but failed in the Court of Appeal. In two others, there was an application to strike out the statement of claim under Order 18 r. 19 as being an abuse of the process of the Court, or as disclosing no cause of action - in one of those ("G") the Judge struck out the statement of claim but the Court of Appeal reinstated it: in the other (Jarvis) the Judge did not strike out the claim in negligence, the Court of Appeal struck it out. In the fourth case (Anderton) the question was whether pre-action discovery should be ordered on the basis that the intended claim was for "personal injuries to a person". The Master and the Judge held that it was and ordered discovery; the Court of Appeal held that it was not and refused the order.
In this area of the law, as Auld L.J. said in his valuable analysis in the Court of Appeal in G, "The law is on the move and much remains uncertain". These cases were accordingly heard together so that your Lordships could reconsider the principles to be followed and the House has had the benefit of very able arguments on behalf of all parties. Some of the questions in issue arise in all or in three of the cases; others are specific to particular cases. The facts of the four cases are set out clearly and in detail in the judgments below and I shall refer only to those which seem important for the determination of the appeals. I shall refer to each of the individuals by their first names and the local authorities by their place names.
In recent cases before the House concerning applications to strike out statements of claim, the importance of considering actual rather than assumed facts, where there may be scope for argument as to liability, has been stressed (See X minors v. Bedfordshire  2 A.C. 633, Barrett v. Enfield London Borough Council  3 W.L.R. 79, W. v. Essex County Council  W.L.R. 601). It is therefore preferable to begin with the case where there has been a trial though taking into account the relevant arguments in the other cases.
Pamela Helen Phelps
Pamela was born on 30 December 1973 and, as is now known, since birth has been dyslexic. Dyslexia is normally a congenital condition defined by the World Federation of Neurology (1968) as "a disorder manifested by difficulty in learning to read despite conventional instruction, adequate intelligence and socio-cultural opportunities. It is dependent upon fundamental cognitive disabilities which are frequently of constitutional origin". It is agreed that at all material times methods of psychological assessment have been in use which provided guidance as to whether a person might be dyslexic and that the techniques for mitigating the effects of dyslexia by a multi-sensory and structured approach were known. It is, however, accepted that the extent to which the effects of dyslexia can be ameliorated varies widely.
Pamela began school at Hayes Park Infants School in September 1978 and on 25 November 1980, because of a lack of progress at school, she was seen by an educational psychologist who found her to be of average general intelligence (IQ 93) but recommended child guidance. Pamela received psychotherapy from 21 May 1981 until November 1981 when it was discontinued by her parents. From September 1981 she was at Hayes Park Junior School. Her reading was at a very low standard, but Dr. Urquhart, the Director of the Child Guidance Clinic, and it seems Miss Kerbekian, a psychotherapist, thought in late 1981 that Pamela's problems stemmed from emotional sources particularly in relationships with her parents. In September 1982 Dr. Urquhart again saw the parents but they were critical of him and he of them. None of the staff involved suggested that Pamela might be dyslexic.
In September 1985 Pamela transferred to Mellow Lane School. Her actual age was then 11 years 9 months but her reading age was assessed at 6 years 9 months and only two of the 180 children entering the school at that time had a lower reading age. There was a special needs department where pupils with learning difficulties who were not moved to special schools could be given remedial teaching in addition to their ordinary class work.
On 14 October 1985, following an interview between Pamela's mother and the acting Head of Special Needs, the deputy head teacher referred Pamela to Hillingdon's School Psychological Service because of poor progress in reading and writing and on 24 October she was seen by an educational psychologist, Miss Melling. The latter reported that testing had revealed no specific weaknesses, but her reading age was 7 years 3 months. She concluded that Pamela was "seriously underfunctioning in reading and spelling. In order to make progress she needs help to develop confidence and feel that she can read". Dyslexia was not diagnosed and what is called an ACID profile (arithmetic, coding, information, digit span) which indicates dyslexia was not shown by the tests performed.
From late 1985 Pamela was given six hours a week special needs teaching in English and Maths, but this was not specifically designed for a dyslexic pupil. In her last three years at the school Pamela missed many teaching periods because of ill health and in her last year because of truancy. Both the illnesses and the truancy are alleged to be of psychological origin because of her educational failure. There was on occasion discussion about her going to a specialised school, but this was not pursued. Her parents were clearly very anxious about her lack of progress and it seems that some of the staff thought that she was not unintelligent but needed remedial teaching which could be given at Mellow Lane. None of the teachers or remedial specialists at any stage appear to have thought that she was dyslexic. Shortly before she left school in 1990 she was assessed, pursuant to arrangements made by and paid for by her parents, by a clinical and educational psychologist at the Dyslexia Institute who reported that she was dyslexic. Her reading age was there assessed at 7.9 years.
After leaving school she obtained a job in April 1990, but had difficulties with anything requiring literacy and was dismissed in July 1991, since when she has not been employed. In the intervening period she has had tuition on an irregular basis, but tests in 1996 put her reading age at 8.5 to 8.6 years, her reading comprehension at 9.8 years and her spelling age at 8.2 years.
The legal proceedings
Pamela issued a writ against Hillingdon on 22 December 1994 claiming damages for breach of statutory duty under the Education Acts 1944 and/or 1981 and the Education (Special Educational Needs) Regulations 1983 alternatively in negligence. It was said that Hillingdon had failed to identify her needs and to exercise reasonable care of her at all three schools in the detection, assessment, diagnosis and treatment of her learning difficulties and/or dyslexia. In the subsequent statement of claim it was alleged that Hillingdon, its servants or agents, in breach of their duty to use reasonable professional skill and care, failed to appreciate or assess Pamela's learning difficulties and her dyslexia and failed to refer her to an "educational psychologist reasonably sufficiently experienced in the diagnosis of specific learning difficulties"; they further failed to provide or arrange for the provision of reasonably appropriate tuition and treatment. Damages were claimed on the basis of past and future loss of earnings and the cost of tuition.
Garland J., after a careful review of the evidence and the submissions, held that Miss Melling owed a duty of care to Pamela on the basis that her findings, recommendations and advice would be acted upon by the plaintiff through her parents, nonetheless so because her advice was also relied on by Hillingdon and the school. Hillingdon was vicariously liable for breaches of that duty by Miss Melling. She was in breach, first, when she failed in October 1985 to diagnose that Pamela was dyslexic. The Judge accepted evidence that her serious lack of progress was highly unlikely to have been caused by emotional difficulties and that by using an appropriate test (the "Bangor" test) she would in all probability have found the cause. He held: "This was more than an error of judgment: it was a failure to exercise the degree of care and skill to be expected of an ordinarily competent member of her profession". She was in breach, second, when she did not revise her opinion when Pamela "made so little progress despite Special Needs teaching".
He held, however, that although a school may owe a duty of care to an under-performing pupil the teachers here relied on Miss Melling and kept Pamela's case under review through the Care Committee. To have expected the school to have required Miss Melling or someone else to take a fresh look at Pamela "would be to impose too high a duty when the school was being advised by Miss Melling as part of the Defendants' Educational Psychology Service, by Mrs. Roberts, the Special Needs Advisory Teacher, and itself providing special needs teaching by suitably qualified staff in accordance with the scheme and provisions of the 1981 Act" (Transcript, page 34). He awarded special damages for tuition fees incurred and likely to be incurred and for future loss of earnings together with general damages of £12,500, making a total award of £44,056.50 plus interest.
In the Court of Appeal, Hillingdon challenged the Judge's findings that the damage claimed was compensatable in tort, his decision as to the existence of a duty on the part of Miss Melling to Pamela, the breach, the causation and the quantum of damage. There was no cross-appeal from the finding that the teachers were not negligent and so your Lordships are not concerned directly with the question whether any claim could lie against the teaching staff, or against Hillingdon as being vicariously liable for the teachers.
The Court of Appeal allowed the appeal and entered judgment for Hillingdon. Stuart-Smith L.J., with whose analysis and reasoning Otton L.J. and Tucker L.J. agreed, considered first that although dyslexia was not an injury, there could still be a claim for economic loss provided that there had been an assumption of responsibility to prevent Pamela from sustaining the type of loss or damage claimed. The critical question was therefore "whether Miss Melling had assumed or undertaken personal responsibility towards the plaintiff (to take reasonable care) to assess her educational potential and provide strategies to improve her position". Stuart-Smith, L.J. accepted that in X Minors v. Bedfordshire County Council  2 A.C. 633 the House, whilst disallowing a claim against a local education authority directly, considered that an individual educational psychologist or teacher might be liable. Yet he thought it a matter of very great concern that the non-liability of a local education authority directly could be circumvented by suing the individual psychologist or teacher and claiming that the authority was vicariously liable.
In the present case, and contrary to what Lord Browne-Wilkinson in X Minors appeared to have thought, Stuart-Smith, L.J. stressed that the Hillingdon Educational Psychology Service was not a service available to the public generally but was set up and used by Hillingdon to obtain advice for the authority and its employees in the discharge of their statutory functions in education. The educational psychologist was part of a multi-disciplinary team with the teachers and remedial teachers; there was just as much room for conflict between the educational psychiatrists and the parents as between the educational psychologist or the teacher and the parent and in X Minors this indicated that there should be no liability. But crucially the Court of Appeal found that the evidence went nowhere near establishing an assumption of responsibility by Miss Melling to the plaintiff. "Miss Melling was doing no more than discharging her duty to the Defendants to enable them to perform their statutory functions" (page 519E). There were in addition strong policy reasons why it was not fair, just or reasonable to impose a duty on an educational psychologist unless the plaintiff established that that person had assumed personal responsibility to the plaintiff.
On the facts Stuart-Smith L.J. found that at the beginning there was no breach of duty by Miss Melling in failing to apply the Bangor test or in considering that the basic cause of the condition lay in emotional problems even if they could not have been responsible for the whole extent of the reading difficulty. The Lord Justice concluded: "not without hesitation, I have come to the conclusion that the Judge imposed too high a standard of duty on Miss Melling" (page 525A). Even on the basis that if dyslexia had been diagnosed a more structured approach to teaching would have been justified it was impossible to say that that would have made a measurable difference to Pamela's condition. Otton L.J. added "I regret that I am unable to accept that the Plaintiff succeeded in proving that there was any deficit which was attributable to the failure to diagnose or which would not have been present had appropriate education been given" (page 529H).
In considering this case and the other cases, it is necessary, as has been seen, to distinguish between claims that the authority was directly liable for its own negligence or breach of duty and cases where the local authority is said to be vicariously liable for the negligence or breach of duty of its servants or agents. In Pamela's case the claim is pleaded in both ways, but, as I read it, was dealt with below by the Judge and by the Court of Appeal primarily on the basis of a claim for vicarious liability. Pamela contends, however, that a direct liability can arise and asks the House so to rule. As to this, it is clear that Garland J. took the view that "this case is concerned with relatively narrow issues: the failure to identify the plaintiff's SpLD [special learning difficulty] and by the use of appropriate teaching to ameliorate her difficulties" (page 28A). Miss Melling owed a duty of care "on the basis that her findings, recommendations and advice would be acted on by the plaintiff, through her parents . It goes without saying that the defendants and the school also relied on her advice but, in my view, it does not accord with reality or common sense to regard her as owing a duty only to the defendants" (page 30D-E). The Court of Appeal also dealt with the claim on the basis that the first question was whether Miss Melling had owed a duty and had been negligent and if so whether the local authority could be vicariously liable.
On the present appeal, both sides analysed in considerable detail what had been said in X minors, both as to the principles involved and as to their application to the facts of the particular case. There Lord Browne-Wilkinson, with whom other members of the House agreed, distinguished between three types of case. The first was where a breach only of statutory duty was alleged; then the question whether a claim for damages arose depended on the statutory provisions. A cause of action in damages will arise if it can be shown as a matter of construction of the statute that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of the class a private right of action for breach of the duty. The second class was where it was alleged that a breach of care had been committed in performing a statutory duty when there was no common-law duty of care. In such a case no claim lay, though the statutory power or duty would not be a defence to a common-law claim if the statutory duty was performed negligently. The third case was where a common-law duty of care arose from the performance of the statutory duty or arose from the relationship between the parties in the performance of the statutory duty. He held that the common-law duty of care may co-exist with a statutory duty where the duty of care "is alleged to arise from the manner in which the statutory duty has been implemented in practice" (page 735F) but that it will not arise when an authority is acting within the limits of a discretion conferred on it and when policy matters, with which the courts are not concerned, may be an important factor. Further "in my judgment a common-law duty of care cannot be imposed on a statutory duty if the observance of such common-law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties" (page 739D). Where vicarious liability is alleged the question is whether "the duty of care alleged to be owed by the servant of the local authority [is] consistent with the proper performance of his duties to the local authority;" if so, "is it appropriate to impose on the servant the duty of care alleged?" (Page 740F-G).
He applied these principles in the following ways in cases where an application had been made to strike out the plaintiff's claim.
(a) Dorset. Here there was a claim for breach of statutory duties under the 1981 Education Act and a claim in respect of negligent advice given by the psychology service provided by the authority. As to the former (the statutory claim) it was held that a claim would only lie if the acts complained of lay outside the statutory discretion but that "an education authority owes no common-law duty of care in the exercise of the powers and discretions relating to children with special educational needs specifically conferred on them by the Act of 1981" (page 762G-H). On the other hand, if an authority offered a "service (psychological advice) to the public" even if pursuant to a statutory power, then it would assume a duty to exercise reasonable care in the conduct of the service to those using it. If, however, the service is "merely part and parcel of the system established by the defendant authority for the discharge of its statutory duties under the Act of 1981" then "the existence and scope of the direct duty owed by the defendant authority will have to be excluded or limited so as not to impede the due performance by the authority of its statutory duties" (p 673D).
As to the latter (the common law claim in negligence), a psychologist held himself out as having special skills and he like any other professional was bound both to possess such skills and to exercise them carefully. As to the facts in that case, Lord Browne-Wilkinson said "I can see no ground on which, at this stage, the existence of a professional duty of care can be ruled out" (p 763H).
(b) Hampshire. Here the claim was in respect of the authority's vicarious liability for the negligence of the headmaster who had failed to refer the child for an assessment or to have an experienced educational psychologist consider her case. It was also said that the advisory service had been negligent, since it had failed to ascertain the learning difficulty or to diagnose dyslexia or to refer the plaintiff to an educational psychologist. No reliance was placed on breach of statutory duty.
This was a pure common law claim in negligence. Lord Browne-Wilkinson said that, as long as there was no inconsistency between the performance of the two duties, "I can see no legal or common sense principle which requires one to deny a common law duty of care which would otherwise exist just because there is a statutory scheme which addresses the same problem" (p 765F-G). The headmaster has a duty of care to exercise the reasonable skills of a headmaster in relation to the child's educational needs:
So equally, "if [an advisory teacher] knows that his advice will be communicated to the pupil's parents he must foresee that they will rely on such advice" so he must exercise reasonable skill and care.
(c) Bromley. The claim for damages for failure to provide a proper schooling under section 8 of the 1944 Act was dismissed; there was no right in such a context for damages for breach of statutory duty. Nor was there any right to damages for breach of duty in relation to the provision of teaching for special educational needs. Nor did a claim lie for negligence in exercising statutory discretions in assessing or providing for such special needs. The claim for vicarious liability for a servant of the authority was not struck out, however, despite its vagueness.
The Legislative provisions
In the present case, Pamela claims that Hillingdon, as the local educational authority had responsibilities pursuant to the Education Act 1944. Accordingly, its servants or agents "owed a duty to the plaintiff who was reliant upon them to use reasonable professional skill and care in their assessment and treatment of her educational needs and problems". The defendants, its servants or agents employed at Mellow Lane and their school psychology service acted in breach of the aforesaid duty of care between 1985 and 1990.
Breaches of specific sections of the Education Acts are not alleged but the claim in negligence has to be seen in the context of Hillingdon's duties and powers under the legislation. Does the legislation itself create an enforceable claim in damages or does a common law duty of care exist in addition to any statutory duties which the Local Authority may have? That in itself, as has been seen from X Minors, is largely a question of whether a common law duty of care would be inconsistent with the due performance of the other duty.
Under section 8 of the 1944 Act the Authority is to secure the provision of schools sufficient in number, character and equipment to afford for all pupils opportunities for education
The Authority must have regard "to the need for securing that provision is made for pupils who suffer from any disability of mind or body by providing, either in special schools or otherwise, special educational treatment, that is to say education by special methods appropriate for persons suffering from that disability."
In section 34 the Authority is under a duty "to ascertain what children in their area require special educational treatment" and if they "decide that the child requires special educational treatment, they shall give to the parent notice of their decision and shall provide such treatment for the child".
By section 36 the parent is under a duty:
The Education Act 1981 requires a local authority to identify and assess a child who it considers has or probably has special educational needs. If they consider that a child has such needs, they must make a statement of his special educational needs and the provisions to be made for him. The parents must be given an opportunity to make representations before an assessment is made and as to the terms of the proposed statement of the child's special educational needs. The parents are also to be given opportunities to meet the persons who give advice to the local authority on the assessment; they have the power to appeal against the special educational needs provision both to an Appeal Committee and to The Secretary of State. Under the Education (Special Educational Needs) Regulations 1983 (S.I. 1983 No. 29) a local Education Authority is under a duty in making an assessment to seek educational, medical and psychological advice. The psychological advice is to be sought from an educational psychologist employed by the education authority or from a person appointed ad-hoc by the authority as an educational psychologist (Regulation 7).
Where a statement is made the child is to be educated in an ordinary school so long as the views of the child's parents are taken into account and so long as "educating the child in an ordinary school is compatible with:-
(a) his receiving the special educational provision that he requires;
(b) the provision of efficient education for the children with whom he will be educated; and
(c) the efficient use of resources" (Section 2(3) of the 1981 Act).