Conflicts of care and duty
In June the House of Lords heard five cases concerning the alleged careless performance of duties by public authorities. In three of these it was alleged that local education authorities had failed to carry out statutory responsibilities in relation to children with special educational needs.
The local authorities applied to the Lords to strike out the claim on the grounds that there was no cause of action. Their Lordships were asked to pronounce on whether authorities could be held liable even when these statutory duties had been properly carried out.
In the first case, involving Dorset County Council, parents who were dissatisfied with what was provided by a statement of special education needs decided to pay for their son to attend a fee-paying school. Four years later, after a series of appeals, the parents accepted a place at a maintained school. They claimed damages for breach of statutory duty and negligence, alleging: * that the authority had failed to make a proper statement or make proper provision for their son's special needs.
* that the authority's "psychology service" had advised them negligently, and * that the psychologists and other officers owed a personal duty of care in using their professional skill for which the authority was vicariously liable if breached.
Their Lordships decided that the powers conferred on LEAs by the Education Act 1981 were discretionary and that the legislation did not specifically require the LEA to take care in the exercise of that discretion.
However, the court also decided that if authorities set up services, such as a psychology service, they are under a duty of care to ensure that the service is offered with reasonable professional skill and care. The court took the view that education psychologists, who hold themselves out as having special skills, are bound to exercise them carefully.
The authority, therefore, could be vicariously liable for negligence in the operation of the psychology service and any negligent advice given.
In the second case involving Hampshire, it was alleged that a head of a primary school was negligent in failing to refer a child for formal assessment of his special needs, or to an experienced education psychologist. The plaintiff also alleged that the advisory service was similarly negligent in failing to ascertain a specific learning difficulty and failing to advise the parents properly. The parents complained that it had taken 10 years from their first expression of concern before a statement of special needs was drawn up and provision made.
The question was whether a head or adviser is under a duty to pupils to exercise skill and care in advising on educational needs. Their Lordships held that since education is the very purpose for which a child goes to school a head, being responsible for the school, must have a duty of care to exercise reasonable skills. A head cannot reasonably ignore the under-performance of a pupil which had been drawn to hisher attention; similarly in the case of an education adviser.
However, they are only bound to exercise the skill and care of a reasonable head and adviser, not the skills of education psychologists. It would be up to the trial judge, hearing the detailed facts to determine whether or not they had taken sufficient care. The parents were allowed to take their case to trial.
The third case involved a child from Bromley, London, who had attended an infant school for one year and then no school at all for two years, followed by special schools and finally an ordinary school for eight years.
He claimed that the authority had been negligent inter alia in failing to secure the availability of efficient primary andor secondary education, failing to make a statement of special needs, and placing him in special schools when he did not have any serious disability.
The Court of Appeal had earlier dismissed the boy's appeal from a decision of the High Court which had disallowed the claim that the authority had breached a statutory duty. On the other hand, the Appeal Court did allow his appeal in relation to claims founded on common law negligence.
The LEA appealed to the Lords, which decided that the 1981 Act did not give children with special educational needs a statutory claim for damages for a breach of a duty which leaves so much to be decided by the authority and where the legislation has provided for so much close liaison with parents. However, the Lords ruled that the plaintiff could take to court the allegation that local authority professionals might have acted negligently in the operation of the decisions.
Although these were special needs cases, it is arguable that allegations of negligence could be made about other aspects of education. The Lords' rulings make clear that for a public authority, such as an LEA or school, to be liable for negligence in the exercise of a discretion conferred by statute it would have to be shown that the decision taken was altogether outside the ambit of the discretion. But once a decision has been taken the negligent implementation by employees could be open to question. Because the test that could be applied is that of the ordinary competent person exercising that particular skill, it will be difficult for plaintiffs to prove negligence. It will be even more difficult for them to calculate the actual damages that might be caused by the negligence. The courts have still to pronounce on these. As in all negligence cases the employer will be held liable for employees' negligence, unless the employee had acted entirely outside hisher contract and conditions of service.