Writs on the wall

7th November 1997 at 00:00
Self-employed professionals must consider insuring against legal claims, reports Neil Merrick

A growing enthusiasm among former students and their parents to sue educators for negligence or incompetence has led to many freelance consultants taking out professional indemnity insurance.

Although less likely to face claims for damages, private tutors and even supply teachers are also weighing up the need to protect themselves as Britain turns into an increasingly litigious nation.

It is two years since the House of Lords upheld the right of pupils and former pupils to sue for a deficient education. The most celebrated case came this September when Hillingdon council in London was ordered to pay Pounds 45, 651 to Pamela Phelps, now 23, because her dyslexia was not recognised by her school or an educational psychologist.

Lawyers frequently claim they are preparing further cases involving former students dissatisfied with exam results or other aspects of teaching and yet, so far, no individual has faced paying hefty damages.

Employees of a school or local authority, including heads and staff in one-teacher schools, should be covered by the term "vicarious liability". This means that employers are responsible for any mistakes that their employees make. But the growing band of freelance consultants and other self-employed education professionals do not have the same protection.

Bill Tagg, secretary of the Society of Education Consultants, said he was not aware that any members had been successfully sued but it was prudent to take out insurance. "The world is becoming a more vulnerable place to work in and there is a fashion for litigation," he said.

Earlier this term, insurance brokers Tolson Messenger launched a new professional indemnity policy targeted at smaller businesses, including self-employed consultants in education and other fields. The policy, which offers up to Pounds 100,000 worth of cover for a maximum annual premium of Pounds 155, includes protection against claims of slander, breach of copyright, breach of confidentiality and loss of documents.

Tom White, who is co-ordinating the package, said a consultant who recommended that a school buy a management information system which later went wrong could be sued for the cost of the software as well as the system itself. "Any client who suffers a loss could sue for the wrong advice given," he said.

Education lawyer Stephen Hocking said the prospect of legal action was also being faced by teachers who provide private tuition during evenings or weekends. "If they failed to pick up that a child had special needs, for example, they would be in a worse position than a teacher in a school because the tutor is being paid for a specific purpose and didn't realise what was going on," he said.

Graham Clayton, senior solicitor at the National Union of Teachers, said the union recommended that any teacher who was working as a part-time tutor or education consultant should take out professional indemnity insurance.

The situation surrounding supply teachers and lecturers is more complex. Some agencies claim to be an employer of the staff they place in schools while others insist supply teachers are self-employed.

Martin Pilkington, head of legal services at the Association of Teachers and Lecturers, said supply teachers working in the same school for any significant period of time should be covered by vicarious liability while someone who was working there for only one day was "unlikely to be on the receiving end of a writ".

The National Association of Schoolmasters Union of Women Teachers is canvassing its self-employed members to see whether they are interested in arranging professional indemnity cover through the union. Jerry Bartlett, NASUWT assistant general secretary designate, said it was inevitable that somebody would eventually try to hold a teacher liable for mistakes made during a child's education: "Most lawyers would advise their client there is no reason for suing an individual teacher because they don't have the resources - but they could do it out of maliciousness."

Stephen Hocking, however, dismissed suggestions that nobody would ever bother to sue a teacher because they did not have any money. "The damages awarded in the Hillingdon case were roughly equivalent to the amount a teacher might have in assets," he warned. "They could find the family home is on the line. "

SAFETY IS THE BEST POLICY

Philippa Cordingley, an independent education researcher and consultant, first took out professional indemnity insurance more than five years ago. It is part of an insurance package which includes employer's liability insurance for the staff she employs.

Although she has never been sued and is unaware of any other consultant who has been taken to court, Ms Cordingley believes the cost of buying such cover is part of working as a self-employed professional.

"I have never particularly worried about being sued but some contracts do require you to be insured," she said.

Ms Cordingley, former assistant chief education officer in Birmingham and a former FE lecturer, has worked as a consultant for several LEAs since becoming self-employed in 1989. She also manages a research programme for the Teacher Training Agency.

"The minute you establish formal contracts with a public body then professional indemnity becomes an issue. You are giving them advice which will have an impact on their public performance," she said.

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