Carty v Croydon London Borough Council

JurisdictionEngland & Wales
JudgeLord Justice Dyson,Lord Justice Mummery
Judgment Date27 January 2005
Neutral Citation[2005] EWCA Civ 19
Docket NumberCase No: A2/2004/0446
CourtCourt of Appeal (Civil Division)
Date27 January 2005

[2005] EWCA Civ 19

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

Mr Justice Gibbs

Before

The President of the Family Division

Lord Justice Mummery and

Lord Justice Dyson

Case No: A2/2004/0446

Between
Carty (By His Litigation Friend Dorothy Brown-Carty
Appellant
and
London Borough of Croydon
Respondent

Mr Roger ter Haar QC and Nicholas Bowen (instructed by Messrs A. P. Law) for the Appellant

Mr John Ross QC and Andrew Warnock (instructed by Messrs Barlow Lyde & Gilbert) for the Respondent

Lord Justice Dyson

Introduction

1

The claimant is now 26 years of age. He brings this claim by his mother and litigation friend, Dorothy Brown-Carty, for damages against a local education authority. It is said that the defendants were in breach of their duty of care towards him in that over a substantial period of his schooling they failed to provide him with suitable education. The breaches alleged are based on the defendants' vicarious liability for the negligence of their servants or agents and/or their direct or corporate duty of care towards the claimant.

Synopsis of the facts

2

Sadly, it became clear when he was very young that the claimant suffered from a number of physical and developmental problems. He was referred to the defendants' school psychological service, who in October 1982 reported that he was behind in his language development, his speech was poor and his behaviour towards his peers often aggressive. In February 1983, he was placed at St Lukes' Day Nursery, where he continued to be assessed by the psychological service.

3

By the summer of 1983, he was thought to be doing well enough to be integrated into Thomas Beckett Primary School. Although he made some progress there, his educational and linguistic development was slow, and his behavioural problems persisted. By the end of 1985, the situation was becoming such that Mrs Dorothy Storey (an educational psychologist employed by the defendants) considered that there should be a statutory assessment pursuant to the Education Act 1981 ("the 1981 Act"). By October 1986, Mr Michael McCormack (an education officer employed by the defendants) believed, on the basis of assessments obtained, that the claimant was suffering from learning and language difficulties, and emotional and behavioural problems. By November, the reports were available for a draft statement of special educational needs to be prepared.

4

Meanwhile, the family had moved to Croydon. On 21 November 1986 the claimant started to attend a school local to their new home, Duppas Junior School. By early March 1987, however, he was excluded from that school. He moved almost immediately to St Nicholas' School. In July 1987, a statement of special educational needs was produced. He remained at that school until about November 1988. By September of that year, it had become apparent that his placement there was breaking down, and consideration would have to be given to his transfer to another school. This was because his behavioural and emotional problems were such that he was causing disruption to others and interfering with his own ability to learn.

5

Thus in November 1988, the claimant was placed at the Sir Cyril Burt School ("Cyril Burt"), which catered for children with emotional and behavioural difficulties. He stayed there until October 1993. Reports about his behaviour and educational progress at Cyril Burt were mixed. There were indications of positive progress, but as time went on, it became clear that he was having increasing difficulty in keeping up with the curriculum. Late in 1990, Mrs Brown-Carty suggested that he should be placed back in a mainstream school, but Cyril Burt did not agree that this was appropriate, in the light of his continuing learning and behavioural difficulties. In May 1991, Elizabeth McVicar, an educational psychologist employed by the defendants, recommended that the claimant should remain at Cyril Burt. The only alternative apparently available was a school known as Bensham Manor, which catered for children with learning difficulties. Ms McVicar was opposed to this course because of the claimant's aggressive behaviour.

6

The defendants continued, however, to explore the possibility of a placement at Bensham Manor. The claimant's mother, whilst initially reluctant to consider a move to that school, was dissatisfied with Cyril Burt, and was asking for a move to another school.

7

In November 1991, the claimant was 13. The educational psychologist responsible for him at that time was Mr Philip Edwards, the defendants' Chief Educational Psychologist. He told Mr McCormack that he would be recommending a transfer of the claimant to "a more appropriate setting".

8

In fact, the claimant remained at Cyril Burt for the rest of the academic year 1991–92. During the course of that year, a number of shortcomings in the school began to emerge, apparently caused or exacerbated by the retirement at Easter 1991 of the long serving and influential head teacher. Following his retirement and until early 1992, the school was run by an acting head teacher. The situation at the school continued to deteriorate. The claimant remained there during the academic year 1992–93. The school began to operate at split sites. Thus in early 1993, the claimant began to be taught at the site of Bensham Manor school although still under the supervision of Cyril Burt staff.

9

From early 1993 onwards, alternative placements were being sought for the claimant. One possible placement, Stowford College in Sutton, would not accept him because his problems were not primarily dyslexic. Eventually, an out of borough placement at Kinloss school in Worcestershire was found for the academic year 1993 –94. This was a boarding school primarily for children with dyslexia. The claimant went to Kinloss in October 1993. His work appears to have shown some improvement there. But the placement soon ran into difficulties. He was suspended in March 1994. In or about April 1994, he was admitted to the Archbishop Lanfranc School, a mainstream comprehensive school. The period at this school was unhappy. There was a violent incident which led to his exclusion. Thereafter he continued with home tuition, and thus his education ended.

The Issues

10

The case as originally pleaded was eventually abandoned by the claimant's junior counsel, Mr Bowen, at trial. After the completion of the evidence, counsel refined the claimant's case so as to reduce it to six allegations of negligence. These were:

(i) failure to provide in-school support at the Thomas Beckett and Duppas Schools;

(ii) failure to assess and issue a statement of special educational needs;

(iii) failure to re-assess and amend the statement after the breakdown of the St Nicholas placement;

(iv) failure in 1989 to amend the statement to provide for speech therapy;

(v) allowing the claimant to remain at Cyril Burt from June 1991 until he left in October 1993; and

(vi) failing to re-assess the claimant following the breakdown of the placements at Cyril Burt and Kinloss.

11

It will be necessary to examine the judgment of Gibbs J in some detail. It is sufficient at this stage, however, to say that he dismissed all allegations of negligence. This appeal is restricted to the third and fifth of the issues to which I have referred. Before I come to these issues, however, I need to refer to the statutory scheme.

The Statutory Scheme

12

The statute which governed the powers and duties of the defendants at all material times in relation to the claimant was the 1981 Act. This Act was subsequently repealed and replaced by the Education Act 1993, which, however, substantially reproduced much of the content of the earlier Act in relation to the powers and duties of education authorities, whilst introducing important changes, including a strengthened appeals procedure, a new appeals tribunal and improved parental rights.

13

Section 1 of the 1981 Act defined "special educational needs" and "special educational provision". Section 4 imposed a duty on the local education authority to identify the special needs of children for whom they were responsible. Section 5 imposed an obligation on the authority to make an assessment of the special needs of such children. Thus:

"5(1) Where, in the case of a child for whom a local education authority are responsible, the authority are of the opinion –

(a) that he has special educational needs which call for the authority to determine the special educational provision that should be made for him; or

(b) that he probably has such special educational needs;

they shall make an assessment of his educational needs under this section."

14

Section 5(2) to (7) set out a procedure for the making of such assessments, which included a right of appeal by a parent against a refusal to make an assessment.

15

Section 7 placed an obligation on the authority to make a statement of the child's special educational needs, and to arrange the special educational provision which the statement specified. Thus:

"7(1) Where an assessment has been made in respect of a child under section 5, the local education authority who are responsible for the child shall, if they are of the opinion that they should determine the special educational provision that should be made for him, make a statement of his special educational needs and maintain that statement in accordance with the following provisions of this Act.

(2) In any case where a local education authority maintain a statement under this section in respect of a child, it shall be the duty of the authority to arrange that the...

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