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Hardie v Devon County Council, Plymouth County Court, 14 January 2005

21 January 2005
The issues

Specific Learning Difficulties (Dyslexia)

The facts

The Claimant was educated in Devon from September 1987 to March 1996, when he was aged between 7 and 16. During this period, the Claimant attended Seaton Primary School (7-11), was educated at home for approximately a year, Axe Valley Secondary School (12-14) and Sidmouth College (15-16). Prior to 1987, the Claimant had been educated in Oxfordshire.

At the date of the joint report of the Educational Psychologists instructed by each party, prepared in respect of this litigation, it was agreed that the Claimant showed evidence of firstly primary educational and behavioural difficulties, unrelated to his dyslexia; secondly specific learning difficulties/dyslexia and thirdly secondary emotional and behavioural difficulties arising as a result of his learning difficulties. The process of apportioning the Claimant’s educational needs that were attributable to his emotional difficulties and those that were attributable to his learning difficulties was agreed to be “fraught with complications”.

The Claimant made various allegations of negligence against named individuals, ultimately alleging that the Defendant Authority was vicariously liable for the negligence of these named individuals in failing to provide the Claimant with appropriate teaching, given his difficulties, as follows:-

∑ The Educational Psychologist that assessed the Claimant at aged 8 whilst he was at Seaton Primary School failed to diagnose his Specific Learning Difficulties and therefore prescribe the appropriate remedial teaching;

∑ That the same Educational Psychologist failed thereafter to monitor the Claimant’s progress at Seaton Primary School;

∑ That at the end of the Claimant’s period of home tuition, the County’s Principal Educational Psychologist was negligent in advising that the Claimant attend a mainstream school as opposed to a small special school that could have addressed his learning difficulties as well as his emotional and behavioural difficulties;

∑ In the alternative, that the Senior Education Officers were negligent in adopting the advice of their Principal Educational Psychologist regarding placement in a mainstream school.

The Defendant Authority denied liability throughout. Primarily, it relied on the evidence of their Educational psychologist, which was in fact resiled from at Trial, that the Claimant’s behavioural problems had effectively masked his learning difficulties. Notwithstanding this however, the Claimant had received entirely appropriate remedial teaching to address his literacy difficulties at each of the schools he attended, arguably receiving a disproportionate amount of attention from both the school Special Needs Teachers and the Education Department generally during his time in education.

In addition, the Defendant relied on the fact that the Claimant’s parents, who had been difficult to work with in any event, had previously refused to entertain any suggestion of placement in an EBD school, some of which could have adequately addressed both of the Claimant’s problems. In fact, Claimant’s mother had made it clear that her preference was for the Claimant to attend the Axe Valley School following his period of home tuition, being the school that his older brother, who was also dyslexic, attended and knowing therefore that he would receive the relevant teaching to ameliorate his needs there.

The decision

1. The Judge preferred the evidence of the Defendant’s expert Educational Psychologist, notwithstanding her resiling from the masking argument, that on the basis of the contemporaneous evidence, notably the test results obtained by Seaton Primary School’s Advisory Teacher for Children with Learning Difficulties, the Claimant did not show any significant symptoms/signs of dyslexia when tested aged 8. The Judge therefore rejected the Claimant’s argument that because symptoms of dyslexia were present in the Claimant aged 11, the same symptoms would probably also have been there three years earlier. The argument that the Educational Psychologist that tested the Claimant whilst at Seaton Primary failed to diagnose dyslexia therefore fails on the basis that this would not have been an appropriate diagnosis at this time.

2. In respect of the Claimant’s criticism that this Educational Psychologist did not appear to be addressing the Claimant’s literacy problems, but instead focussing on the Claimant’s behavioural problems, the Judge again preferred the evidence of the Defendant. The Judge accepted that at that particular time, the role of the Statement of Special Educational Needs was to attempt to obtain funding for issues that the school could not cope with within its own resources. Here, the school were coping with the Claimant’s literacy problems, it was the behaviour for which they required outside help.

3. In any event, the Judge considered the Bolam principles in light of the fact that at the relevant time, there was a body of Educational Psychologists, including this particular Educational Psychologist, who did not subscribe to the concept of dyslexia/Specific Learning Difficulties. This therefore lent further weight to the Judge’s finding that there could be no criticism of the Educational Psychologist in not specifically diagnosing dyslexia.

4. Insofar as the failure to diagnose point failed, the allegations as to prescription and monitoring must also fail. In any event, the Judge found that in respect of the monitoring point, he would have accepted the evidence of the Educational Psychologist concerned, that he would have continued to informally monitor the Claimant informally, as was his usual practice, even though he no longer had contemporaneous documents confirming the same to refer to.

5. As against the County’s Principal Educational Psychologist, who had recommended placement for the Claimant within a mainstream school (Axe Valley) as opposed to a specialist school, the Judge found that this decision was within the range of reasonable responses of the Local Education Authority and, in particular of the Principal Educational Psychologist.

6. The Judge pointed to several significant factors, which influenced his decision in this regard. These included the fact that Axe Valley had an integrated Special Needs Unit, headed by a highly qualified Special Needs Teacher (who had appeared as a witness for the Defendant). Moreover, in reality the only small special school that would have been able to accommodate the Claimant would have been an EBD school with dyslexic facilities, which was not acceptable to the Claimant’s parents. The case against the Principal Educational Psychologist therefore also failed.

7. As against the Education Officers, the Judge submitted that it was clear from the speech of Lord Slynn in Phelps that Education Officers may owe an individual duty of care to the children whose education they are managing. However, the Judge found that even if the Education Officers were jointly or severally responsible for placing the Claimant at Axe Valley, they would be exonerated on the same basis as the County’s Principal Educational Psychologist.

8. Finally, the Judge found that even had the Claimant established an actionable breach of duty, he would not have established, on the balance of probabilities, that the outcome would have been any different had he been sent to a dyslexic school. The Judge followed the approach of the Court of Appeal in the recent case of DN v London Borough of Greenwich. It was wrong to approach the issue on the basis that any negligence proved would lead to a loss of opportunity on the part of the Claimant to learn how to improve his social skills, manage his behavioural difficulties and gain some educational opportunities. Instead the Court had to decide what would on the balance of probabilities have been the likely outcome but for the fact that the Claimant did not go to an appropriate school. Accordingly causation was not proved.

Claim dismissed.

Comments

In light of the recent Court of Appeal decision in DN v London Borough of Greenwich, the Judge gave an obiter Judgment on damages. On the basis of the guidance given in that case, the Claimant would otherwise have been awarded general damages of £10,000 together with damages for loss of earnings akin to those awarded on a “wrongful birth conventional basis” of £15,000.

For further information about the claim, please contact Mark Fowles (01392 288328) or Kate Winston (01392 288329) Emails: markfowles@veitchpenny.co.uk or katewinston@veitchpenny.co.uk

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