Legal Update on Education Negligence

Education: Negligence - Whether Duty of Care Owed to Child with Special Needs

In the recent court of appeal decision in Carty v Croydon London Borough Council {2005], it was held that the decision to keep the claimant, a special needs child, at CB school between 1991 and 1993 had not been negligent.

In 1987, whilst the claimant was attending SN school he was the subject of a statement of special educational needs. The claimant's behavioural and emotional problems were causing disruption to others and interfering with his ability to learn. In or around September 1988, his placement at SN was breaking down and in November 1988, he was placed at CB school which provided for children with emotional and behavioural difficulties.

In or around May 1991, an educational psychologist recommended that the claimant should remain at CB school. Within six months, the Croydon Authority's (the "Authority") chief educational psychologist informed the Authority's education officer that he intended to recommend a transfer to a different school. It turned out that the claimed remained at CB school until October 1993 and was never transferred.

The claimant commenced proceedings against the Authority for damages, in relation to:
 

• The Authority's failure to reassess and amend the statement of special educational needs after the breakdown of the placement at SN school;
• Its education officers having allowed the claimant to remain at CB school from June 1991 until October 1993;
• Its breach of duty of care towards the claimant by failing to provide him with a suitable education due to the Authority's vicarious liability for the negligence of its servants or agents, and/or its direct or corporate duty of care towards the claimant.

The court held that the Authority had not been negligent. The claimant appealed against the decision on the grounds of:
 

•  The Authority failing to reassess and amend the statement of special educational needs after the breakdown of the placement at SN school; and
• The Authority's education officers having allowed the claimant to remain at CB school from June 1991 until October 1993.

The appeal was dismissed. The court of appeal held that:

• A duty of care might be owed towards a child where an education officer, in the performance of his statutory functions, entered into relationships with, or assumed responsibilities towards that child.
• Whether or not such a duty was in fact owed depended upon an application of the established test for the existence of a duty of care.
• The correct question to ask in relation to decisions of the kind which was the subject of complaint in the instant proceedings was not whether they were so unreasonable as to fall outside the ambit of the discretion altogether. The nature of the statutory function and the difficulty of decisions, such as the assessment of the needs of a child with special educational needs, were such that a court would usually only hold that it was fair, just and reasonable to impose a duty of care to avoid decisions that were plainly and obviously wrong.
• Education officers who performed the statutory functions of local education authorities were professional persons for whose negligence, authorities might be vicariously liable, just as they might be liable for the acts and omissions of education psychologists and teachers.
• The tasks undertaken by an education officer might only be performed effectively by someone who had the appropriate skill and expertise, regardless of the fact that there was no formal education officer qualification and no professional body responsible for the regulation and discipline of education officers.
• Therefore, an education officer did not enjoy blanket immunity for his performance of statutory functions in relation to children with special educational needs.
• On the evidence, the decision to transfer the claimant to CB school had been taken after a careful assessment of his needs with the benefit of, and in accordance with, expert advice obtained from the relevant professionals.
• The conclusion of the judge that the decision was not negligent was unassailable.
• In respect of the second ground of appeal, the decision under scrutiny involved a judgment as to the special educational provision which was to be made for a child and the school at which it was to be provided. Having regard to the complexity and delicacy of such decisions, the court should not find negligence too readily.

Accordingly, the judge had been right to find that the decision to keep the claimant at CB school between 1991 and 1993 had not been negligent.

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© RT COOPERS, 2005. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

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