E (A Minor) v Dorset CC, C v Hampshire CC

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date1995
Date1995

SIR THOMAS BINGHAM, MR, EVANS AND ROSE, L JJ

Education – children with special educational needs – alleged failure by local education authority to diagnose and assess and provide for special needs – liability of education authority – whether liable for breach of statutory duty – whether liable for common law negligence.

In each of the three actions the defendants were a local authority. The three plaintiffs claimed damages for common law negligence and, in two of the cases, for breach of statutory duty under the Education Acts.

E v Dorset County Council

The plaintiff was a child born in 1978. He had special learning difficulties. In 1985 his parents consulted the local authority's psychology service as they thought he was suffering from dyslexia. The parents were advised that the boy did not suffer from a specific learning difficulty. However, in 1987 the local authority made a statement of special educational needs in respect of the boy under the Education Act 1981. The statement identified the local primary school which the boy was attending as the appropriate school for him. An educational psychologist employed and engaged by the local authority gave advice to both the parents and the school. In 1987 the boy's parents, having realized that the psychologist's advice was negligent and wrong, placed him at a private school where his needs were addressed and his condition fully diagnosed and treated. In 1991 a further statement was produced naming a maintained school as appropriate for the boy. Since 1992 he had attended that school and no continuing complaint was made.

In 1992 the boy began proceedings against the local authority. He claimed damages for breach of statutory duty and negligence. He alleged that he had special educational needs and that during the period 1985 to 1992 the local authority had failed to diagnose, or make provision for, those needs.

On the application of the local authority the Judge struck out the plaintiff's claim on the ground that it showed no reasonable cause of action.

Christmas v Hampshire County Council

The plaintiff was born in 1973. From 1978 to 1984 he attended a local primary school. He had learning difficulties and severe behavioural problems. His symptoms were consistent with dyslexia. His parents expressed their concern to the headmaster and other members of the teaching staff on numerous occasions. The headmaster advised that the boy had no special learning difficulty. In 1984 the boy was referred to the local authority's teachers' advisory centre which also found that the boy suffered from no serious handicaps. In 1985 the parents sent the boy to a private school specializing in remedial problems. In 1988 the boy was again assessed by the local authority and was found to be suffering from dyslexia. From 1989 until he left school in 1990 the local authority paid the fees of the private school.

In 1992 the plaintiff issued proceedings against the local authority claiming the cost of the private education between 1985 and 1989 and general damages representing the short-term and the long-term consequences of the delay in diagnosing his dyslexia. In particular, he alleged that the local authority had owed him a duty to use reasonable skill and care in their assessment of his educational needs and problems. He alleged breach of duty against the headmaster for failing to refer him to the county council for a formal assessment of his educational needs and to an educational psychologist for diagnosis. He alleged that because of the delay in the diagnosis of his dyslexia there was a failure to ameliorate his condition, that his literary deficit could not now be cured, and that consequently his learning capacity had been reduced.

On the application of the local authority the plaintiff's claim was struck out as disclosing no reasonable cause of action.

Keating v Bromley London Borough Council

The plaintiff was born in 1971. He had a considerably disrupted history of schooling. He alleged that from September 1976 to June 1977 he attended a local primary school; from June 1977 to May 1979 he was not registered at and did not attend any school; from May 1979 to July 1982 he attended a special school and from September 1982 to 1985 he attended another special school; from September 1985 to November 1986 be was not registered at and did not attend any school; from November 1986 to June 1987 he attended an ordinary primary school.

In 1993 the plaintiff commenced proceedings claiming damages against the local authority for breach of their statutory duty and breach of their common law duty. He alleged that between 1977 and 1986 the local authority either failed to provide a place for him at any school during the periods he was not registered and otherwise did not place him at any appropriate school but only at special schools. He alleged that the local authority failed to make proper inquiries into and assessments of his educational capacity. He alleged that as a result of these breaches he was deprived of any reasonable education and suffered impairment of his personal and intellectual development.

On the application of the local authority the plaintiff's claim was struck out as disclosing no reasonable cause of action.

Each of the plaintiffs appealed.

Held – allowing the appeals in part: (1) It was evident that the Education Act 1981 and the Education (Special Educational Needs) Regulations 1983 prescribed a detailed code for identifying, assessing and providing for children with special educational needs. Any complaint by children or their parents of breach of those duties was plainly to be pursued through the appellate structure provided by those statutory provisions and by way of judicial review and not by a private law action for damages or an injunction. Therefore the appeals against the striking out of claims in respect of a breach of statutory duty would be dismissed.

(2) It was not possible to hold as a matter of law that no duty of care could be owed by any of the individuals for whom it was sought to hold the education authorities liable to these plaintiffs. On the pleadings as they stood, the claims for common law negligence could not be held to be unarguable or incontestably bad so as to justify their being struck out at this stage as disclosing no reasonable cause of action.

Decisions of Otton, J, and of Mr Peter Weitzman, QC sitting as a deputy High Court Judge, reversed in part.

Statutory provisions referred to:

Education Act 1902.

Education Act 1944, ss 7, 8, 33, 34, 36 and 37.

Education Act 1981, ss 2, 3, 4, 5, 7, 8, 9, and 21 and Sch 1, Part I, and Part II, para 3.

Education (Special Needs) Regulations 1983, regs 4, 5, 6, 8, 9 and 10.

Elementary Education Act 1870.

Handicapped Pupils and Special Schools Regulations 1959.

RSC Ord 14A, Ord 18 r 19, and Ord 53.

Cases referred to in judgments:

Anns v Merton London Borough Council [1978] AC 728; [1977] 2 WLR 1024; [1977] 2 All ER 492.

Bradbury v Enfield London Borough Council [1967] 1 WLR 1311; [1967] 3 All ER 434.

Ching v Surrey County Council [1910] 1 KB 736.

Cummings v Birkenhead Corporation [1972] Ch 12; [1971] 2 WLR 1458; [1971] 2 All ER 881.

Cutler v Wandsworth Ltd [1949] AC 398; [1949] 1 All ER 544.

Dorset Yacht Co Ltd v Home Office [1970] AC 1004; [1970] 2 WLR 1140; [1970] 2 All ER 294.

Gateshead Union v Durham County Council [1918] 1 Ch 146.

Jones v Department of Employment [1989] QB 1; [1988] 2 WLR 493; [1988] 1 All ER 725.

Lonrho plc v Fayed [1992] 1 AC 448; [1991] 3 WLR 188; [1991] 3 All ER 303.

Lyme Regis v Henley (1834) 8 Bligh NS 690.

M (A Minor v Newham London Borough Council[1994] 2 FCR 1313; [1994] 2 WLR 554.

Meade v Haringey London Borough Council [1979] 1 WLR 637; [1979] 2 All ER 1016.

O'Reilly v Mackman [1983] 2 AC 237; [1982] 3 WLR 1096; [1982] 3 All ER 1124.

Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997; [1968] 2 WLR 924; [1968] 1 All ER 694.

R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58; [1991] 3 WLR 340; [1991] 3 All ER 733.

R v Inner London Education Authority, ex parte Ali (1990) 2 Admin LR 822.

R v Mid-Glamorgan County Council ex parte Grieg (1988) The Independent, 1 June.

R v Secretary of State for Education and Science, ex parte Davis [1989] 2 FLR 190.

R v Secretary of State for Employment; ex parte Equal Opportunities Commission [1994] 2 WLR 409; [1994] 1 All ER 910.

R v Surrey County Council Education Committee, ex parte H (1984) 83 LGR 219.

Van Oppen v Clerk to The Bedford Charity Trustees [1990] 1 WLR 235; [1989] 3 All ER 389.

Watt v Kesteven County Council [1955] 1 QB 408; [1955] 2 WLR 499; [1955] 1 All ER 473.

Wilford v West Riding of Yorkshire County Council [1908] 1 KB 685.

Williams v Eady (1893) 10 TLR 41.

Wood v Ealing London Borough Council [1967] Ch 364; [1966] 3 WLR 1209; [1966] 3 All ER 514.

John Friel for the plaintiff in the first action.

Beverley Lang for the plaintiff in the second action.

Roger Ter Haar, QC and John Greenbourne for the plaintiff in the third action.

Cherie Booth for the county council in the first and second actions.

Tim Kerr for the local authority in the third action.

SIR THOMAS BINGHAM, MR.

In each of the three actions which give rise to these appeals the defendant is an education authority. The ages of the plaintiffs today range from 16 to 22. Each of them complains of acts done or not done by the education authority during his minority. Damages are claimed for breach of statutory duty and common law negligence or (in one case) common law negligence alone.

In each case the plaintiff's statement of claim has been struck out as disclosing no reasonable cause of action and his action has been dismissed. There has been no investigation of the facts, some of which are very much in issue. In accordance with standard practice, the argument has proceeded here and below on the assumption that the facts pleaded by the plaintiff are true and capable of proof. I...

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