Two students sweating away resitting their GCSE exams this summer have an unexpected burden of responsibility. As well as having to achieve better grades than last year, they also face the unusual prospect of making legal history.

Depending on the outcome of their retakes, the two students, cloaked in anonymity, have lawyers ready to sue their former schools for compensation, on the grounds that their previous poor exam performance was in part the fault of the teaching at the schools they attended.

The schools in question have been found to be failing by inspectors, raising the prospect of one section of the education system being used in evidence against another in the courts.

As a result of an education identified as being below standard by external inspectors, the lawyers might claim, these students underperformed in their exams and have been put to the expense of an extra year’s education and the loss of earnings, not to mention any claims for other lost opportunities.

While this test case in the making ticks away in the silence of the exam hall, more and more lawyers’ letters are being sent to heads, governors and local authorities, as pupils and parents look to the courts to settle grievances.

This month alone there have been two significant legal proceedings with long-term implications for schools. In Liverpool, pupils and parents have won the first round of a test-case battle to use health and safety legislation to require a local authority to carry out repairs to school buildings. And in Lambeth, six children have won the right to a High Court hearing, in which they will seek a ruling obliging the education authority to provide them with an education suitable to their needs.

Last month, in another landmark case, a dyslexic man had a damages claim against the quality of education provided by a local authority heard in the High Court, with the judgment expected in July.

And there are plenty more cases in the pipeline. Jack Rabinowicz, chairman of the Education Law Association, says that there are up to 200 education cases being prepared, any one of which could set a precedent for others to follow.

“I am profoundly disturbed by this increase in litigation,” says John Sutton, general secretary of the Secondary Heads Association. “It’s expensive in time and money and takes away from the prime purpose of teaching pupils.” And he says that if ever a pupil won a case over exam results, “it would be appalling”.

Sharing this concern is David Hart, general secretary of the National Association of Head Teachers. “If we replicate the American litigation scene it will not be in the interests of education. It will cost money and put great pressure on teachers and pupils. Each case turns on its own merits, but if a pupil won a case against a school over exams it would be potentially catastrophic.”

Special needs provision has been the subject of legal disputes for many years, but now the lawyers are digging deeper into the educational mainstream. Bullying, exclusion procedures, admissions policies and exam results are all prompting the intervention of lawyers, entering territory that would once have been considered the private preserve of schools and education authorities.

“There is a general feeling in the legal profession that the floodgates could open,” says Neville Harris, professor of law at John Moores University in Liverpool and senior editor of Education Law reports.

The ruling that could prompt a damburst of claims, he believes, would be if the principle of a school’s “duty of care” to take appropriate steps to help under-performing pupils, already established in special needs cases, were to be applied to mainstream pupils - a principle that cases such as the two GCSE resitters might try to establish. This extension of “duty of care” would mean a far wider interpretation of a school’s legal responsibility towards the achievements of its pupils.

This would open the possibility of a flood of exam-failure related cases, a prospect that prompted the Labour party, before the election, to propose a ban on attempts to sue schools over exam results. However, Neville Harris says such legislation might clash with international law. And in the short term at least, the Department for Education and Employment says that there are no plans for any such proscriptive legislation.

Local authorities, which find themselves in the firing line over compensation claims, are not relishing the prospect of a legal frenzy over education. “It’s a trend that worries us,” says David Whitbread, head of education at the Local Government Association. “The education world is now much more consumer-orientated, with an awareness of customer rights. But there’s a real tension between the fixed budget available for authorities to spend and the open-ended demands of individual pupils.”

Caught between the rising expectations of parents and limited budgets, David Whitbread says that local authorities could benefit from a greater clarification of where legal requirements begin and end. “A clearer legal framework for basic minimum standards, either for the quality of schooling or school buildings, would help. When obligation isn’t explicit there are legal disputes, with public money being spent in court rather than on teachers’ salaries.”

Independent schools are also sensitive to the threat of legal action. “There is without question an increase in consumer expectation,” says Dick Davison, deputy director of the Independent Schools Information Service. And unlike state schools, the process of paying directly for an education, means that both schools and parents are party to a civil contract.

Where a contract exists, so too does the possibility of breach of contract and disputes over what independent schools appear to promise and what children receive are “not infrequent”, says Jack Rabinowicz. As an example, last month a group of parents of pupils at a private school in Worcestershire threatened to sue over disappointing A-level results.

Pessimists who wonder how the threat of legal action might impinge on education can look to the United States for a bleak view of the future. This month, an Ohio county courtroom was required to settle a dispute over whether a pupil should receive a grade A or C on a report card. If schools were concerned in Britain last November when a Pounds 30,000 out-of-court settlement was reached over a bullying claim, then they might quake at the prospect of being brought before the Wisconsin court that last year awarded $1 million in damages against a school where a pupil had been bullied.

While it’s unlikely that Britain will see the importation of such knee-jerk litigation, it does seem that the increase in legal actions reflects changed public attitudes. The concept of education as a marketplace, encouraged alongside the principle of parental choice, is only a short step from teaching being seen as a product, and like any other product that appears not to work, there will be people wanting compensation and lawyers to help them.

As well as greater consumer awareness, reforms in education have created their own backwash of complaints. In creating a national curriculum and a system of inspections, there is a yardstick against which parents can quantify their disappointment. And if inspectors say that a school or a teacher is failing, the question arises as to who they are deemed to have failed and, if it is the children, what will be offered to them in recompense?

As well as what has been described as a pushy-parent factor driving up the number of legal complaints against schools, there is also the question of social justice. For many decades, public education, like public health and housing was often a case of people taking what they were given, with the poorest and least articulate given the worst of what was on offer.

Expectations have been raised by politicians of all sides, and schools and local authorities which once were accustomed to a minimum of parental scrutiny now have to listen to parental demands. When this isn’t enough, the courts provide an avenue for complaint.

Helen Leigh, chair of the Community and Voluntary Education group that has supported the six Lambeth children’s legal campaign for a “suitable education” is an example of this readiness to use legal action against the educational establishment.

Looking forward to a High Court hearing for the children in the autumn, she says: “These were the children with no voice. Lambeth never expected these people to complain. Now they have to listen.”

Key cases of 1997

June

Six children in Lambeth are given leave to bring a High Court action requiring the local authority to give them a “suitable education”. The case, which is likely to be heard in November, is expected to address the requirement in the Education Act 1996 for local authorities to provide “a suitable education for each individual child”.

Children and parents in Liverpool are given leave to attempt to force the local authority to provide Pounds 2 million worth of repairs to a school, bringing a case under the Environmental Protection Act. The hearing is likely to be in October.

May

The High Court hears a damages case against Hampshire education authority in which a former pupil claims that he received a substandard education. The authority, it was alleged, had failed to identify and appropriately respond to his dyslexia. The ruling is expected in July.

A mother of a seven-year-old boy, expelled from school in Northampton, is given permission to challenge the expulsion in the High Court.

The daughter of Coronation Street actor Johnny Briggs is reported as threatening to take legal action against her private school after her poor A-level results.

April

A parent of a girl with chronic fatigue syndrome won a test case in the High Court against East Sussex council, when the court ruled that cuts in the education budget were not an adequate reason for reducing the girl’s home tuition. The obligation remained for the authority to provide the pupil with “a suitable education”.

A 10-year-old boy, whose arm was broken by another pupil, won permission to bring a High Court challenge over how a primary school in Hampshire dealt with bullying. The boy’s father wants a judicial review of how the headteacher and governors responded to the incident.

March

A Lincolnshire schoolgirl mother wins a landmark case, when a court accepted her right to stay away from school to care for her baby.

A man who broke his neck diving into a school swimming school in Cornwall began a claim for damages in the High Court.

February

A High Court dispute between Buckinghamshire County Council and Milton Keynes Borough Council, over plans to build a grammar school, is reported to have a legal price tag of “Pounds 100,000 and rising”.

An attempt by an 11-year-old girl in Essex to challenge the authority’s cutting of a free school bus service is rejected in the High Court.