Damages were awarded against a council which failed to identify a pupil's dyslexia. Is this a healthy development for schools?
Yes says Jack Rabinowicz
IN many ways, both the last government and the current one have only themselves to blame. Both have made education a fundamental right, have sought to raise education standards and to ensure that perceived bad teachers, schools and education authorities are punished so that standards are enhanced.
The problem, of course, is that once expectations are raised, our consumerist culture looks for someone to blame if there is a failure.
The recent decision of the House of Lords in the case of Pamela Phelps, who was awarded pound;45,650 damages against Hillingdon council because her former school failed to identify her dyslexia, in many ways fundamentally alters the landscape.
The House of Lords held unanimously in four separate cases that teachers, educational psychologists and educationists generally should not be immune from the consequences of their actions. Like any other professional, they can be held responsible if things go wrong.
In 1995, the House of Lords said: "A school which accepts a pupil assumes responsibility not only for his physical well-being but also for his educational needs. The headteacher, 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 owes a duty to take such steps as a reasonable teacher would consider appropriate to try to deal with such under performance."
I would suggest that it is difficult to argue with the logic behind such sentiment. The House of Lords in the Phelps case went further than this. One judge, Lord Nicholls, could not see the logic in drawing a distinction between a duty owed by teachers to children with learning difficulties and those without.
He said: "I can see no escape from the conclusion that teachers do, indeed owe . The principal objection raised to this conclusion is the spectrum of rash "gold digging" acions brought on behalf of under-achieving children by discontented parents, perhaps years after events complained of ... So, it is said, that limited resources of education authorities...will be diverted away from teaching and in defending unmeritorious legal claims."
The example he gives is of teaching the wrong syllabus for an external exam. He also discusses the position of the child who attends a perceived failing school. Lord Nicholls points out that this will not necessarily automatically entitle the pupil to compensation because it will be necessary, in an appropriate case, to show cause and effect, that the only reason for the child's under-performance was that he or she attended a school seen as failing and was not given sufficient encouragement and support to reach their potential.
Obviously, this is going to be an interesting area. Local authorities and schools publish prospectuses which talk about educating children to their potential and providing the best possible education. If these expressions are to have any value or validity, then schools and education authorities will have to face the consequences of the use of such language.
While no one would wish to add significantly to the burdens facing teachers, they should want to be treated as professionals, to accept responsibility for their acts. Just as the recent advertising campaign stressed the consequences of good teachers on their pupils' performance in later years, so equally bad teaching and negligent educational advice will have longer-term effect.
The positive side is that once teachers and others in the sphere are treated as professionals and they behave as such, standards should improve just as they have improved in law, accountancy and medicine, where staff are accountable for their actions.
Inevitably, there will be cases where students may push their luck in seeking to blame others for their misfortune but this is no different from the fate of some lawyers or doctors. The emphasis must be on improving standards which should advantage everyone.
Jack Rabinowicz is a solicitor who specialises in children's rights