Leanne Kendall v Southwark Borough Council
| Jurisdiction | England & Wales |
| Judge | Robin Purchas QC,Sitting as a deputy High Court Judge |
| Judgment Date | 01 June 2007 |
| Neutral Citation | [2007] EWHC 2089 (QB) |
| Docket Number | HQ04X01218 |
| Court | Queen's Bench Division |
| Date | 01 June 2007 |
[2007] EWHC 2089 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Robin Purchas QC
Sitting as a Deputy High Court Judge
HQ04X01218
Introduction
Leanne Kendall, the Claimant in this action (“Leanne”), is dyslexic. She claims damages from the Defendant as local education authority (“the LEA”) as vicariously liable for the professional negligence of Hanna Hancock, an educational psychologist in its employ (“HH”) 1, in carrying out an assessment of Leanne for the purposes of special educational needs (“SEN”) in 1994, leading to the preparation of a statement of SEN (“the Statement”) which was made on 6th January 1995.
In summary it is said that HH was negligent in carrying out the assessment in:
(i) failing to carry out diagnostic or other testing of cognitive functioning;
(ii) failing to quantify Leanne's literacy difficulties;
(iii) failing to recognise and/or to state that Leanne had a specific learning difficulty or dyslexia; and
(iv) failing to recommend objectives that would be adequate to address her needs and particularly daily specialist dyslexic teaching.
As a result it is claimed that Leanne was denied appropriate educational support, which would have enabled Leanne now to be a reasonably fluent reader with the ability to overcome any residual literacy difficulties. She therefore claims damages generally for loss of amenity including her emotional fragility and humiliation and specifically for loss of earnings as a teacher and the cost of remedial education.
In this judgment I will give a brief overview of the case before setting out the legal framework and principles. I will then consider the evidence and relevant facts together with the expert evidence that has been called before coming to conclusions on the relevant issues.
Summary
Leanne was born on 26th April 1983. She went to Peter Hills Primary School (“Peter Hills”). From an early stage she had difficulties in reading and writing.
At the relevant time the LEA maintained an educational psychology service (“EPS”) with a team of educational psychologists (“EPs”), who would visit schools within the borough, one of whom was HH. The practice of the EPS was to apply a consultative approach in considering the needs of a child, which involved consultation with the headmaster of the school, the teacher and, where appropriate, the parents and the child involved.
The EPS first had contact with Peter Hills in respect of Leanne in 1991. On the EP's recommendation Leanne was referred to the Special Teaching Service of the LEA (“STS”), who reported in March 1992 effectively confirming the support that the school was giving Leanne.
HH first went to Peter Hills in July 1993 and concerns over Leanne were drawn to her attention. Following initial observation of Leanne and discussions with the headmaster, the form teacher and Leanne's mother, Mrs Reece (“ TR”) in October 1993, HH proposed that the school should apply for a statement of SEN. The application was made in November 1993 and the required assessments and advice were sought by the LEA early in 1994, including an EP assessment from HH together with advice from the head teacher and TR as Leanne's parent. Leanne left Peter Hills in the summer of 1994 and started in the autumn at Bacon's City Technology College (“Bacon's”) for her secondary education.
HH's assessment of Leanne was provided to the SEN section of the LEA on 9th August 1994. A proposed Statement of SEN was then prepared by the SEN section. As was the practice, HH drafted section II of the Statement, which set out Leanne's SEN. Section III set out the special educational provision including the additional funding to be provided to the school for the child's SEN, which in Leanne's case was additional funding equivalent to the cost of 3 hours per week additional teaching. HH was not involved with drafting Part III of the Statement.
The proposed Statement was the subject of consultation with the school, TR and HH. Following consultation, it was put before the SEN panel and approved on 6th January 1995. The Statement was subject of an implementation meeting with Bacons within 6 weeks and thereafter to annual statutory review involving the school, the LEA, Leanne's parents and Leanne.
The annual review of the Statement in February 1996 noted behavioural problems with Leanne and during that year she was referred to the Bloomfield Centre at Lewisham & Guy's Hospital for psychological assistance relating to problems both at home and at school. Together with her mother, she attended various sessions at the Centre between November 1996 and April 1997.
There was a further review of the Statement in January 1997, which also noted continuing problems. In the review of the Statement in December 1997 it was proposed that there should be amendments to the Statement, which were considered by the SEN panel on 1st May 1998 and rejected. The existing level of support was confirmed as appropriate. In an assessment by Bacons' EP, Irene Alam (“ IA”), in October 1998 Leanne was assessed as having a reading and writing age of about 7 years.
The next summer Leanne left Bacon's and has since attended Southwark College and Newham College before undertaking a 3 year honours degree in Fine Arts at the University of East London.
Both EPs who gave evidence at trial as experts are agreed that Leanne suffers from dyslexia. Mr John Woodhouse (“JW”), the Claimant's expert, assesses her with a reading and spelling age in the order of 7 years, an assessment with which Mr Trevor Holmes (“TH”), the LEA's expert, agrees.
Although allegations were initially made in the report by JW against both Peter Hills and Bacon's, the latter being included in the proceedings as originally commenced, no allegation of negligence has been maintained in respect of either school or any of the teachers or other employees involved.
The Legal Framework
I will start with the statutory provisions governing SEN. The relevant statutory provisions for present purposes changed on 1st January 1994, when the Education Act 1993 (“the 1993 Act”) came into force. Previously educational provision was governed by the Education Act 1944 and in particular sections 7 and 8 as amended by the Education Act 1981, following the Warnock Report. The statutory assessment process for SEN was covered by the Education (Special Educational Needs) Regulations 1983 (“the 1983 Regulations”). The relevant statutory provisions are summarised in X v. Bedfordshire CC 1995 2 AC 633 at pages 766–758 in the speech of Lord Browne-Wilkinson and do not need to be repeated in full as part of this judgment.
By section 156(1) of the 1993 Act a child is defined as having “special educational needs” if he has a learning difficulty that calls for special educational provision to be made for him. By section 156(2) (a) a child has a learning difficulty if, inter alia, “he has a significantly greater difficulty in learning than the majority of children of his age”. By section 161 of the 1993 Act the duty is imposed on local education authorities to secure, using their best endeavours, that special educational provision for those with learning difficulties is made available to meet the SEN of pupils and to secure that both the head teacher and teachers are aware of the importance of identifying and providing for those with SEN. Section 165 in turn imposed on local education authorities the obligation to identify those who had SEN and to determine what special educational provision was called for. Those provisions have since been re-enacted in the Education Act 1996.
The 1983 Regulations were continued under the 1993 Act but were replaced from 1st September 1994 by the Education (Special Educational Needs) Regulations 1994 (“the 1994 Regulations”). Steps taken under the 1983 Regulations continued to apply for the 1994 Regulations.
Under the Regulations there was an assessment process, requiring advice from the child's parent and the school, medical and psychological advice as well as other advice as appropriate. In the light of that advice, a statement was to be made in the form of a proposal substantially in the form in Part B to the Schedule to the Regulations. If the proposed statement was approved for the purposes of section 168 of the 1993 Act, it was provided to the school and required the provision of additional educational resources to the child for the stated SEN in accordance with the statement. There is provision for appeal against the statement by the parents. The Regulations also provided for review of the statement, to include the child's parent, the head teacher and other persons from whom advice had been sought.
The Department of Education and Science (“DES”), as it then was, gave advice as to the assessment and statement of SEN in Circular 22/89. In particular paragraph 18 gave advice as to the assessment of SEN, to which I refer later in this judgment in reviewing the evidence as to the assessment carried out by HH. It also gave advice in paragraph 60 as to the contents of the statement as to SEN and in annex 1 set out a suggested checklist for advice on SEN.
Under section 165 of the 1993 Act, the Secretary of State was required to issue a code of practice on the identification and assessment of SEN. The code (“CP”) was issued with effect from 1st September 1994 and accordingly was in force at the time of the making of the statement in the present case. Paragraph 5 of the CP advised that it was guidance to assist schools make effective decisions and local education authorities as to the circumstances in which assessments and statements might be made, adding that “(The CP) does not and could not tell (LEAs) what to do in each individual case”.
At paragraphs 3.60 and 3.61 the...
To continue reading
Request your trial