A review of local authority obligations is under way, as the Law Lords consider five attempts to sue councils for negligence, three involving special educational needs. Hampshire, Dorset and Bromley are attempting to overturn a Court of Appeal ruling that children can sue them for negligence.
The Master of the Rolls, Lord Justice Bingham, had said that LEAs do in fact owe the same common law duty of care as hospitals or medical authorities - which means they can be sued.
Newham and Bedfordshire are facing an attempt by children to sue them for, allegedly, wrongly placing them in care. The children also wish to sue for a breach of statutory duty (failing to behave as the law demands).
At this stage, the facts of the cases have not been heard and the arguments are at the level of principle. Should the children win, they must still prove their cases in court. But a judgment in their favour from the Law Lords will open the way to hundreds of plaintiffs to bring actions for negligence.
Hampshire is accused of failing to diagnose and then deal with a case of dyslexia - which it denies. The parents in the Dorset case are suing to recover thousands of pounds spent on private education for their dyslexic son: an education that the High Court ruled the council should have been providing all along. Bromley is accused of failing to provide any education to a former pupil with learning difficulties.
Even if it is possible to prove at judicial review that councils are behaving improperly, this brings no financial compensation. All five plaintiffs have attempted to seek damages for breach of statutory duty, but so far all have failed. As things stand, compensation for common law negligence - a lack of care - is more likely. A judgment is expected around Christmas.
This week also saw a significant climbdown by Hampshire LEA which, according to education lawyer Jack Rabinowicz, establishes occupational therapy as an educational rather than a purely medical need. Ten-year-old Helen Story had taken Hampshire to judicial review over its failure to provide therapy for her dyspraxia (clumsiness). Hampshire settled out of court.