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Marr v London Borough of Lambeth

5 June 2006
The issues

Dyslexia, educational negligence.

The facts

The Claimant was educated at Archbishop Sumner’s School in Lambeth from September 1987, when he was 5, until 1990. Thereafter, at the age of 8, he went to Vauxhall Primary School, a school ran by Lambeth LBC. In respect of the Claimant’s time at Archbishop Sumner’s School no allegation of negligence was pursued. In respect of Vauxhall Primary School there was one allegation of negligence on the basis that it was negligent, on the part of the three form teachers that taught him, not to refer the Claimant to the Educational Psychology Service. In 1993 the Claimant began his secondary education at Archbishop Tenison’s Grammar School and stayed there until the end of November 1994 following temporary exclusion because of his behaviour on a school trip. It was alleged whilst there that the special educational needs coordinator and other teachers failed to assess his special educational needs, to identify and put in place strategies for helping him to overcome his literacy difficulties, and for failing to refer him to the Educational Psychologist; and when referral was made allegations of negligence against a psychologist, failing to keep records and against the school for failing to follow up what might have been advised by him. The Claimant went from there to Lilian Baylis School from which he was excluded in November 1995 for 12 days and permanently excluded in January 1996 on the basis of his behaviour. It was alleged against the school that there had been a failure to identify his special educational needs or put in place plans for remedying his difficulties or to obtain an earlier referral to an Educational Psychologist or to obtain his records from Archbishop Tenison’s School. The Claimant was subsequently seen by an Educational Psychologist from Lambeth who made recommendations. There were no vacancies at the Lambeth LBC Pupil Referral Unit to deal with those excluded from school or otherwise unable to attend mainstream school. Instead the Claimant’s mother was told that she had to choose a school for the Claimant. He would however remain on the waiting list for the Pupil Referral Unit. In May 1996 he was removed from that list because a place was apparently available at the London Nautical School. Although that place was only available for a day or so the Claimant was never put back on the waiting list. In June 1997, having been put back on the waiting list, and following some press publicity, he started at the Pupil Referral Unit and left there in July 1998 at the end of his full time education.

The decision

The Claimant’s evidence was inevitably patchy. His recollection of events was limited. It was impressionistic and fragmentary.

Evidence of the teachers was sound, fair and careful and generally clear as to what they could and could not remember. The expert evidence was unsatisfactory in the way in which it emerged. The Claimant’s expert had no significant teaching experience in a secondary school and her experience as a SENCO was short. The Defendant’s expert Mr Acklaw had a broader experience because of his experience as a school inspector across a range of schools. The Claimant’s expert was an advocate for the Claimant. Her first report was useful as a series of suggestions for someone with limitless funds to undertake to help the Claimant but it was not counted as a report for a negligence action. Her reliability and usefulness was limited and where her evidence was in conflict with that of the Defendant’s the Defendant’s expert’s evidence was preferred.

On balance this was an action in reality for breach of statutory duty in disguise or an action based on a general claim of inadequate teaching or even an inadequate educational system. The allegations were not of negligence but criticisms of technique, attitudes and actions. At times the allegations were Counsels of perfection and hindsight. The allegations of negligence were not made out in respect of any of the periods of the Claimant’s education.

It was troubling that a child who had parents who cared about his education could leave the state educational system functionally illiterate. It had happened because the Claimant had started at Archbishop Sumner’s with a number of disadvantages, including slowness of speech. Those learning difficulties were not fully recognised or addressed there and a pattern of behaviour was laid down without negligence on the part of the school. It would require a high degree of perception, resource for all pupils for the Claimant’s problems to be addressed in a way which would have given him a good start for his later years at primary school.

At Vauxhall his problems were addressed in part but the patterns of inattention, misbehaviour and lateness had become the normal way in which the Claimant behaved. His problems became more intractable. Again it would have required a higher degree of perception, effort and resource for the Claimant, who was by no means the only one with such literacy problems, to have been brought back to the level which he could reach.

Still stronger steps would have been needed at Archbishop Tenison’s but again he was one amongst a number who had literacy levels which were bound to affect his ability to cope with and learn from the ordinary curriculum. These needs were addressed within the limits of the resources available to the school but he was not a priority for extra help from outside. His behaviour and his attitude towards learning and dealing with his literacy were increasingly significant and an aspect of his life and over which the Claimant was exercising choices which hampered his education. By the time he left Lilian Baylis this aspect of things had come to dominate his school life and he was reacting to school and his need for discipline and order in a way which prevented even a start being made on the sort of stages which could have assisted if he had been willing to learn.

The necessary interventions were increasingly resource intensive and he was increasingly unwilling to help himself.

Had the Defendant been negligent damages would have been rather more limited than those which the Claimant had argued. Not much would have been awarded beyond the cost of remedial adult literacy teaching, the cost of other courses which would have improved his general education, and a modest general award for the lost years after school.

Claim dismissed.

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