Don't get court out

Schools must exercise reasonable care to avoid negligence claims, Anat Arkin reports. Dozens of claims for damages are now in the pipeline following last year's House of Lords ruling that schools and local education authorities can be sued for negligence.

In a series of linked appeals, the Law Lords held that while parents and pupils had no blanket right to sue local authorities for failing to carry out their statutory duties, individuals could claim damages where a local authority or employee owed pupils a direct duty of care. In one of the cases, former pupil Mark Christmas won the right to sue Hampshire County Council for the alleged failure of a headteacher and members of the county's advisory service to recognise and treat his dyslexia.

Dissatisfied parents and pupils were recently given further encouragement to take their grievances to court when a 17-year-old boy, injured in a rugby match, won hefty damages from the Rugby Association because one of its referees had failed to supervise the match properly.

"All these pieces of litigation mean there is likely to be an upsurge in claims against schools and local authorities", said Jack Rabinowicz, chairman of the Education Law Association.

His own legal practice currently has more than 50 cases of potential negligence on its books. These include cases where parents are claiming that LEAs or schools have failed to make adequate provision for children with learning difficulties or to prevent bullying.

If parents in such cases are able to show that a teacher or headteacher of a locally managed school has been negligent, the local authority would be liable as his or her employer to pay any damages awarded by the courts. In voluntary-aided and grant-maintained schools, the governing body employs the head and other members of staff and it would be vicariously liable for their negligence.

The Education Law Association is setting up a new section to provide a co-ordinating network to enable exchanges of views and experiences between lawyers likely to be involved from either side in litigation between the education service and its "consumers". One of the issues the group will be exploring is what schools can do to avoid ending up in court.

"You can't remove all conflict but what you can try to do is remove some of the causes of conflict," said Mr Rabinowicz, who believes that good record-keeping could take the heat out of many disputes.

Keith Lawson-West, a Leicester solicitor acting for a group of 24 parents who are planning to sue their local authority for negligence in allegedly failing to identify their children's dyslexia early enough, believes that better-targeted resources would help.

Arguing that primary school ancillary and teaching staff need more training if they are to help children overcome dyslexia, he said: "The earlier it's tackled, the easier it is to deal with and the better it is for everybody. I've spoken to teachers who support that view very strongly."

More "spirited implementation" of statements for children with special needs would also make litigation less likely, according to Mr Lawson-West.

Another solicitor specialising in education law pointed out that the House of Lords' decision does not mean schools now need to go to elaborate lengths to avoid claims for damages.

"Negligence is a failure to take reasonable care, to do what a reasonably careful teacher would be expected to do and not more than that," she said. "It's when people just haven't bothered, haven't investigated complaints and don't even try that they are likely to be sued."

judges will rule on alleged failures to provide special needs

Three education cases were involved in the landmark House of Lords decision that some regard as opening the floodgates for claims for negligence against teachers' employers. All three involved alleged failures to provide for children's special educational needs.

But the Lords only decided that as a matter of law these cases should be heard, not that the claims for damages involved were necessarily valid. "Only once such cases come to trial will we be able to ascertain the strength of these types of claim, " says Tanya Callman, barrister and editor of the new journal Education, Public Law and the Individual.

Dorset was accused of failing: * to provide a proper statement of special needs for a dyslexic child; * to refer the child to an educational psychologist; * to enquire properly into the child's condition and to make adequate provision for it; * to identify a school appropriate to his needs.

Among the damages sought in this case are the cost of private school fees paid by the parents. The Lords decided the authority had a duty of care to those using its educational psychology service.

Hampshire could be "vicariously liable" for a primary head who failed to refer for assessment a child with dyslexia and behaviour problems and for a teachers' advisory centre for failing to diagnose his difficulties.

Bromley was said to have failed to provide a child with schooling for two substantial periods and to have provided inappropriate education in a special rather than a mainstream school. Damages were sought for the restrictions to his vocational prospects arising from his failure to achieve his potential.

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