Dyslexia damages claim hits High Court

30th May 1997 at 01:00
Claims that a county council should pay damages to a former pupil for giving him a substandard schooling have been heard in court for the first time, making legal history.

After four years of dense argument, Mark Christmas has presented evidence to the High Court that Hampshire education authority failed to identify and deal with his dyslexia.

Mr Christmas, now 23, is claiming damages from the council, including an element for reduced life chances and loss of earnings - which his lawyers say could total tens of thousands of pounds.

The judgment, keenly awaited by legal and education professionals alike, is expected in July.

There have been other, failed or incomplete, attempts to sue LEAs but these have concerned bullying. This is the first time that the High Court has heard a claim that the teaching itself has been so inadequate as to constitute negligence.

Since the late 1980s there has been a steady flow of well-publicised legal cases, mostly involving special educational needs. Able to claim legal aid in their own right, children have sought judicial reviews of LEA decisions, often hoping for better and more expensive help.

But judicial reviews can only be fought on limited, statutory, grounds and there is no compensation available.

The Christmas case is different because it relies on the idea that LEAs have a common-law "duty of care" towards pupils, and that this includes a duty to provide acceptable education - in much the same way as hospitals have a "duty of care" towards their patients.

Education lawyers say that if the "floodgates" of litigation really are to open for the education service, success for Mark Christmas could prove a decisive step.

Potential cases are mounting up. Two 17-year-olds with poor exam results hit the headlines late last year, saying that they intended to sue their LEAs. Their schools had been heavily criticised by the Office for Standards in Education. At the time the Labour party said it would change the law to prevent this type of case.

Last week Jenny Briggs, the daughter of Coronation Street actor Johnny Briggs, was among a group of pupils threatening to sue a private school after disappointing A-level results.

Mark Christmas, who works as a residential childcare officer, has already broken new ground by winning the theoretical right to sue for damages in the first place. The House of Lords agreed with him that schools do indeed have a common-law duty of care, despite concerns from lower courts that this could "open the floodgates".

But quite how useful the ruling will be for Mark Christmas and other litigants remains uncertain.

According to his lawyer, Steven Grosz from Bindman and Partners, Mr Christmas will have to establish: * that Hampshire failed to identify and cater for his dyslexia (probably the most straightforward matter); * that in doing so it behaved in a negligent, as opposed to a merely incorrect, way. If Hampshire can show that it acted in accordance with any responsible body of opinion, it cannot be held liable; * that Mr Christmas has been clearly damaged by the consequences of Hampshire's negligence.

According to Mr Grosz, the fact that this is a special needs case could also limit the scope of the eventual judgment, if Mr Christmas is successful.

Despite these reservations, LEAs are holding their collective breath. They have repeatedly said that this sort of action is potentially disastrous, not just for education but for the public services as a whole.

Even some of the lawyers involved have doubts about the wisdom of proceeding through the complex and protracted civil courts. Jack Rabinowicz, the best known of the special needs lawyers and a leading figure in the Education Law Association, believes the most sensible way forward lies with a no-fault compensation system for pupils failed by the statutory services. This would save time, money and heartache, he argues.

A number of prominent medical practitioners will probably agree; but of such a system there is, as yet, no sign.

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