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Carty v Croydon London Borough Council, Court of Appeal, 27 January 2005

4 February 2005
The issues

Dyslexia – Special Educational Needs – Whether Education Officer In Performance Of His Statutory Functions Owed A Duty Of Care

The facts

The Claimant brought a claim by his mother and litigation friend for damages against the local education authority, alleging that the authority had failed to provide him with suitable education and alleging breaches based on the Defendant’s vicarious liability for the negligence of their servants or agents and their direct or corporate duty of care towards the Claimant.

The Claimant was born in November 1978. At the age of 3 and a few months the Claimant started at nursery school. His mother had by then noted a number of physical and developmental problems. He failed to put on weight and was small for his age, had frequent attacks of diarrhoea and vomiting etc. His ill health was accompanied by poor intellectual and social development. He could not speak at the age of 2 and suffered from hearing difficulties. At primary school the Claimant was aggressive and he was referred to the School Psychological Service. He was behind in language development; his speech was poor, and his behaviour to peers, aggressive. He was placed at St Lukes Day Nursery, a Unit used to investigate special educational needs of children with a variety of physical, mental and educational difficulties. He was assessed whilst at St Lukes and recommendation was made that he start at mainstream school in the autumn. The same year he was diagnosed as suffering from glue ear and throughout the 1980s, fluctuating hearing problems occurred. By 1991 however, there was no significant hearing deficit. In September 1983 he went to Thomas Beckett Primary School. He was there until 1986. His education and linguistic progress was slow and behavioural problems persisted. Reports showed a positive side to his personality and suggested he would make headway when he wanted to or under close supervision. At the end of 1985, the Defendant’s Educational Psychologist considered the Claimant needed statutory assessment. By summer 1986, the Head Teacher of Thomas Beckett thought it was no longer appropriate for the Claimant to be placed at that school. Mrs Dorey recommended withdrawal from class teaching and one to one support for significant periods. By November 1986, reports were available for a draft statement of special educational needs. None was produced. By November 1986, following the Claimants moving home, the Claimant went to Duppas Junior School. In early 1987 he was suspended and then excluded. He then went to St Nicholas, a small school catering for children with learning difficulties and behavioural problems. He went in the morning and had home tuition in the afternoon. In July 1987, a Statement of Educational Needs was produced. At St Nicholas his behaviour was disrupting and challenging. By September 1988, it was clear that St Nicholas could no longer cope. He was then sent to the Sir Cyril Burt School, which catered for children with emotional and behavioural difficulties. He stayed there until autumn 1993. That school had small class sizes, and specifically dealt with emotional and behavioural problems. It also however had a proportion of pupils with learning difficulties but was not primarily intended for such children and the Claimant therefore had increasing difficulty in keeping up with the curriculum. By 1990, suggestion was made that the Claimant should be placed back in a mainstream school. In May 1991, the Defendant’s Educational Psychologist recommended that the Claimant should remain at Cyril Burt. By 1992, deficiencies at the school came to light following inspections, which reported a serious deterioration in the standards of pupil’s behaviour. In 1993 he was sent to Kinloss School in Worcestershire, an out of Borough placement, which was a Boarding School primarily for children with dyslexia. His work improved but his placement ran into difficulties. He was the only black pupil and his mother considered that this led to him being bullied. The Claimant was suspended in March 1994. In April 1994, the Claimant (now 15) went to Archbishop Lanfranc School, a mainstream comprehensive school where he had 5 hours teaching and 15 hours classroom support. He was not happy – the mother felt he was unable to cope; he was taunted and unfairly picked on. The school reported some progress but some unwillingness to participate in lessons on the part of the Claimant and bad behaviour. He was excluded after a violent incident in September 1994. He never returned. He continued with home tuition. He found it very difficult to obtain employment – had had a job on a trial basis at a cinema – which did not work out because of lack of verbal skills and/or difficulties in relating to other staff. He had been in trouble for various petty criminal offences and had served a short period in custody. The Claimant alleged that there had been a failure to provide in-school support at Thomas Beckett and Duppas, a failure to assess and issue a Statement of Special Educational Needs, a failure to reassess after the breakdown at St Nicholas, a failure in 1989 to amend the Statement to provide for speech therapy, and from June 1991 a failure in that the Claimant was allowed to remain at Cyril Burt; and finally a failure to reassess the Claimant following the breakdown at Cyril Burt and Kinloss.

The decision

The Claimant’s appeal was based in particular against the High Court Judges’ findings that the authority was not negligent in failing to re-assess and amend the statement after the breakdown of the St Nicholas placement and that the authority was not negligent for allowing the Claimant to remain at Sir Cyril Burt School from June 1991 until he left in October 1993.

1. Whilst the mere fact that an education officer had failed to make a formal re-assessment of the Claimant’s needs in accordance with Regulation 9 of the educational (special educational needs) Regulations 1983 could not give rise to a private law claim for breach of statutory duty or negligence, nonetheless an education officer might owe a duty of care where he had entered into a relationship with, or assumed responsibilities towards, a child in the performance of his statutory functions. Whether a duty will in fact be owed depends on an application of the Caparo test. The correct question to ask is not whether such decisions 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 and the determination of the special provision that should be made are such that a Court will usually only hold that it is fair, just and reasonable, to impose a duty of care to avoid decisions that are plainly and obviously wrong.
2. For these reasons and education officer did not enjoy blanket immunity for his performance of statutory functions under the 1981 Act in relation to children with special educational needs.

The Judge’s conclusions on the facts were unassailable.

Appeal dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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