Jarvis v Hampshire County Council

JurisdictionEngland & Wales
JudgeLORD JUSTICE MORRITT,LORD JUSTICE THORPE,LORD JUSTICE CHADWICK
Judgment Date11 November 1999
Judgment citation (vLex)[1999] EWCA Civ J1111-10
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: QBENI 1999/0423/A2 & 0379/A2
Date11 November 1999

[1999] EWCA Civ J1111-10

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MR. JUSTICE POPPLEWELL

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Morritt

Lord Justice Thorpe

and

Lord Justice Chadwick

Case No: QBENI 1999/0423/A2 & 0379/A2

Jarvis
Claimant
and
Hampshire County Council
Defendant

MR N BOWEN (instructed by Messrs Talbot Walker for Mr Jarvis)

MR T KERR and MISS K STEYN (instructed by Mr P.C.B.Robertson for Hampshire County Council)

Thursday, 11th November 1999

LORD JUSTICE MORRITT

Introduction

1

The claimant, Marcus Jarvis ("Marcus") was born on 21st February 1979. He is dyslexic. In 1989 he, with his parents, moved to Hampshire for which the defendant Hampshire County Council ("the Council") is the local education authority ("LEA"). Mrs Hilary Hickmore is an educational psychologist employed by the Hampshire County Council. In undated memoranda to managers of the LEA written in respectively May 1994 and January 1995 Mrs Hickmore expressed the opinion that Marcus had had "a rotten deal from the education system in the past few years" and "a catastrophe of an education".

2

In these proceedings Marcus seeks compensation in respect of the failure of the LEA to provide him with the education which, he contends, it ought to have done. The compensation for which he claims is computed by reference to the costs of remedial tuition (�26,000) and the loss of prospective future earnings measured by the difference (�13,750+ p.a.) between what he could have earned if he had been properly educated and what he may now expect to earn for the rest of his working life. Marcus claims to be entitled to recover from the Council compensation so assessed as damages for negligence or misfeasance in a public office.

3

On the application of the Council to strike out the statement of claim Popplewell J struck out the second alleged cause of action but not the first. The Council appeals against the judge's refusal to strike out the negligence claim; Marcus appeals against the decision to strike out the misfeasance in a public office claim. There are three issues to be determined on this appeal. Are the claims for damages for (1) negligence, and (2) misfeasance in a public office arguable, and if not (3) should they be struck out? Before dealing with these issues it is necessary to describe the system constituted by the Education Act 1981 and the facts of the case in more detail.

4

The Education Act 1981 was enacted to make provision with respect to children with special educational needs; its provisions have been re-enacted with amendments in Part IV Education Act 1996. By s.1(1) such a child is one with a learning difficulty, as defined in ss.(2), which calls for special educational provision to be made for him. It is not in dispute that by virtue of being dyslexic Marcus was such a child. S.4 imposes a duty on the LEA to identify those children for whom they are responsible who have special educational needs calling for special educational provision to be made for them.

5

Where the LEA identify such a child then, by s.5, they are required "to make an assessment of his educational needs" in accordance with the following provisions of the Act. Such provisions include Schedule 1 Pt I. Para.1 obliges the LEA in making such an assessment to obtain such medical, psychological and educational advice as the Secretary of State may by regulations prescribe. Such regulations may also contain provision as to the manner of making the assessment and other matters which the Secretary of State considers to be appropriate. The relevant regulations were The Education (Special Educational Needs) Regulations 1983, 1983 SI No. 29. By regulations 4(1)(b) and 7 the LEA is required to obtain psychological advice from a person regularly employed, or, in a specific case, engaged by the LEA as an educational psychologist. In addition LEA is, when making an assessment, required to take into consideration any representations made by the parents or any evidence submitted by them or at their request. (Reg.8)

6

S.7. makes provision for a statement to be made if, following an assessment, LEA considers that it should determine the special educational provision to be made for the child. By subsection (1) LEA is required, subject to certain conditions, "to make a statement of his special educational needs and maintain that statement" in accordance with the following provisions of the Act. By subsections (3) to (6) LEA is required to serve on the parents of the child a draft of the proposed statement, to afford them an opportunity to make representations as to its contents and, if asked, to arrange for the parents to meet with an officer of LEA and with those who have given advice to LEA concerning their child. If the parents remain dissatisfied with the contents of the proposed statement then, in accordance with s.8, they may appeal to an appeal committee constituted as therein provided.

7

The statements required by s.7(1) must be prepared in accordance with regulations to be made by the Secretary of State. s.7(11), Sch.1 Pt II. Schedule 1 Pt II para.3 requires the statement to be in the prescribed form, containing the prescribed information

"and shall in particular�

(a) give details of the authority's assessment of the special educational needs of the child, and

(b) specify the special educational provision to be made for the purposes of meeting those needs."

The relevant regulations were The Education (Special Educational Needs) Regulations 1983, 1983 SI No. 29. I have already referred to the provisions requiring LEA to obtain advice when making an assessment. Regulation 10 requires the statement to specify the special educational provision, in terms of facilities and equipment etc which the LEA considers appropriate to meet the needs and the type of school which LEA considers would be appropriate. The prescribed form contains a number of parts and appendices. Parts II, III and IV should contain details of "Special Educational Needs", "Special Educational Provision" and "Appropriate School or other arrangements" respectively. Appendix E is to contain the psychological advice obtained pursuant to Regulation 4(1)(c).

8

The consequences of the process of identification, assessment and making of a statement are prescribed by ss.2(2) and (3) and 7(2) in the following terms:

"2(2) Where a local education authority arrange special educational provision for a child for whom they maintain a statement under section 7 of this Act it shall be the duty of the authority, if the conditions mentioned in subsection (3) below are satisfied, to secure that he is educated in an ordinary school.

(3) the conditions are that account has been taken, in accordance with section 7, of the views of the child's parent and that educating the child in an ordinary school is compatible with�

(a) his receiving the special provision that he requires;

(b) the provision of efficient education for the children with whom he will be educated; and

(c) the efficient use of resources."

"7(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 special educational provision specified in the statement is made for him unless his parent has made suitable arrangements."

9

As I have already indicated, Marcus was born on 21st February 1979. In 1989 he and his parents moved to Andover on their return from Alderney. In September 1989 Marcus was admitted to the Vigo Primary School. Shortly thereafter the headteacher of that school, considering Marcus to be an emergency case, sought the advice of the Educational Psychological Service of the Council's education department. The matter was referred to Mrs Hickmore, an educational psychologist in the employment of the Council. Mrs Hickmore advised LEA to carry out a multi-disciplinary assessment under the Act in order to ascertain whether LEA should make a statement of Marcus's Special Educational Needs. As part of that assessment, in May 1990, Mrs Hickmore advised LEA with regard to the appropriate school that

"Marcus would benefit from attendance at [a] mainstream school with additional qualified teaching assistance and special needs assistance."

10

In September 1990 Marcus moved to Winton School to start his secondary education. Winton School is a comprehensive school maintained by the Council. Following the assessment recommended by Mrs Hickmore a draft statement was served by LEA on Marcus's parents setting out Mrs Hickmore's advice as to Marcus's special educational needs, special education provision and appropriate school or other arrangements. They agreed with it and the statement was finalised accordingly on 10th October 1990.

11

In May 1991 Marcus's mother had expressed the wish that Marcus should attend Mark Way School. This had the advantage, as far as she was concerned, of being in Andover; but it was not a mainstream school, it was for children with moderate learning difficulties. At the same time the headteacher of Winton School wrote to Mrs Hickmore suggesting an early review of Marcus's "placement in mainstream education". On 14th May 1991 Mrs Hickmore responded

"Due to the difficulties in "correct" placement of children with Marcus's pattern of strengths and weaknesses we do need to explore ways of supporting him in mainstream school very thoroughly."

12

In connection with the review of Marcus's statement the headteacher of Winton School wrote on 5th July 1991 stating that Marcus's special educational needs had changed significantly and that

"His requirements are very specialised and are not being met at present with the level of support he has here. We are currently working in conjunction with the Educational Psychologist, with a view to recommending a transfer to a special unit for...

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  • Unravelling Osman
    • United Kingdom
    • The Modern Law Review No. 64-2, March 2001
    • 1 Marzo 2001
    ...which the traditional immunity enjoyed by statessurvived attack, were their Lordships inclined to refer liberally to the Strasbourg131 [2000] ELR 36.132 n 13 above, 485.133 ibid 484.134 ibid.135 n 12 above.136 As summarised by Lord Slynn at n 12 above, 203.137 See especially Lord Hutton at ......

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