Education Law – Educational negligence

Since the X (Minors) decision of the House of Lords in 1995 the courts, in a series of important decisions, have recognised that the duty of care resting with teachers and other educational professionals applies not only to the general care and well-being of pupils, such as the prevention of injury due to lack of proper supervision (see eg Beaumont v Surrey County Council (1968) 66 LGR 580, Nwabudike v The Mayor and Burgesses of the London Borough of Southwark [1997] ELR 35, Wilson v Governors of Sacred Heart Roman Catholic School [1998] ELR 637, CA, Carmarthenshire County Council v Lewis [1955] AC 549, J v North Lincolnshire County Council [2000] ELR 245), warning of dangers (Crouch v Essex County Council (1966) 64 LGR 240) or both (Woodbridge School v Chittock [2002] EWCA Civ 915, 26 June 2002, CA).

It now extends to the performance of professional duties such as identifying and responding effectively to pupils' needs and to school problems, such as bullying. These notes chart the relevant case law developments and outline the effects of the relevant decisions, starting with X (Minors). You are strongly advised to read all cases in these notes marked*. 1. X (Minors) *X and Others (Minors) v Bedfordshire County Council (etc) [1995] ELR 404; 2 AC 633; 3 WLR 153; 3 All ER 353; 2 FLR 276, HL The three education cases decided with X (Minors) were E v Dorset County Council; Christmas v Hampshire County Council; and Keating v Mayor and Burgesses of the London Borough of Bromley; The Court of Appeal decision in these three education cases is at [1994] ELR 416; [1994] 4 All ER 640

There is no right to claim breach of duty of care in respect of the exercise of the statutory discretions (because other remedies available and benefits are outweighed by the disadvantage of many hopeless of vexatious claims etc). Lord Browne-Wilkinson concluded: 'In my judgment, as in the child abuse cases, the courts should hesitate long before imposing a common law duty of care in the exercise of discretionary powers or duties conferred by Parliament for social welfare purposes. The aim of the 1981 Act was to provide, for the benefit of society as a whole, an administrative machinery to help one disadvantaged section of society. The statute provides its own detailed machinery for securing that the statutory purpose is performed.

If, despite the complex machinery for consultation and appeals contained in the Act, the scheme fails to provide the benefit intended, that is a matter more appropriately remedied by way of the Ombudsman looking into the administrative failure than by way of litigation. ' (at 448A) A common law duty of care on the part of the authority could only arise if an authority had 'decided an issues so carelessly that no reasonable authority could have reached that decision' (at 447G-H). Nevertheless, '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 1981 Act' (at 446H) because: (i) the court doubted whether a right to claim breach of the duty of care should exist when parents had a right of appeal (on behalf of the child); and

(ii) an authority would have to have been acting so carelessly that no other authority would have done what this authority did, very few claims could succeed, whilst at the same time there was a risk of many hopeless and possibly vexatious cases being brought, 'thereby exposing the authority to great expenditure of time and money in their defence' (at 447F-G). * An authority could be liable for the conduct of its psychology service, depending upon the circumstances and in particular whether the service was merely established by the authority as part of its machinery for complying with the 1981 Act. It is important to establish the factual background to the operation of educational psychology services:

'It may well be that when the facts are fully investigated at trial it may emerge that, for example, the alleged psychology service was merely part and parcel of the system established by the defendant authority for the discharge of its statutory duties under the 1981 Act. If so, it may be that 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 of its statutory duties. But at this stage it is impossible to say that the claim under this head must fail'(at 448F). * Educational psychologists and education officers could be liable at common law for giving negligent advice. '[P]sychologists hold themselves out as having special skills and they are, in my judgment, like any other professional bound to possess such skills and exercise them carefully' (at 448F).

* A head teacher and advisory teacher owe a common law duty of care to pupils to take reasonable steps in response to the under-performance of the pupil, for example by referring him/her for assessment by a specialist, and in the giving of advice to parents. Lord Browne Wilkinson: 'In my judgment a school which accepts a pupil assumes responsibility not only for his physical well-being but also for his educational needs. The head teacher, being responsible for the school, himself comes under a duty of care to exercise the reasonable skills of a headmaster in relation to such educational needs. If it comes to the attention of the headmaster that a pupil is under-performing, he does owe a duty of care to take such steps as a reasonable teacher would consider appropriate to deal with such under-performance.

To hold that, in such circumstances, the head teacher could properly ignore the matter and make no attempt to deal with it would fly in the face, not only of society's expectations of what a school will provide, but also in the fine traditions of the teaching profession itself. If such head teacher gives advice to the parents, then in my judgment he must exercise the skills and care of a reasonable teacher in giving such advice'. Similarly, in the case of an advisory teacher brought in to advise on the educational needs of a specific pupil, if he knows his advice will be communicated to the pupil's parents he must foresee that they will rely on such advice.

Therefore, in giving that advice he owes a duty to the child to exercise the skill and care of a reasonable advisory teacher. ' (p. 451) But 'The head teacher and the advisory teacher were only bound to exercise the skill and care of a reasonable head teacher and advisory teacher' (at 451E). They 'were not under any duty to exercise a higher degree of skill such as that of an educational psychologist' and would have a defence if they could show that they held and/or communicated 'a reasonable view of dyslexia shared at that date by a responsible body of educational thinking' and had acted in accordance with views which might have been entertained by 'reasonable members of the teaching profession' (451F-G).