Phelps v London Borough of Hillingdon

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD SLYNN OF HADLEY,LORD JAUNCEY OF TULLICHETTLE,LORD LLOYD OF BERWICK,LORD NICHOLLS OF BIRKENHEAD,LORD CLYDE,LORD HUTTON,LORD MILLETT
Judgment Date27 Jul 2000
Neutral Citation[2000] UKHL 47

[2000] UKHL J0727-4

HOUSE OF LORDS

Lord Slynn of Hadley Lord Jauncey of Tullichettle Lord Lloyd of Berwick Lord Nicholls of Birkenhead Lord Clyde Lord Hutton Lord Millett

Phelps (A.P.)
(Appellant)
and
Mayor Etc. of the London Borough of Hillingdon
(Respondent)
Anderton (A.P.)
(By her Mother and Next Friend) (Appellant)
and
Clwyd County Council
(Respondents)

In Re G (A.P.)(A Minor) (By his Next Friend)

Jarvis (A.P.)
(Appellant)
and
Hampshire County Council
(Respondents)
LORD SLYNN OF HADLEY

My Lords,

1

The appeals in these four cases were heard together. They all raise questions as to the liability of a local education authority for what is said to have been a failure, either by the local authority or by employees for whom the local authority was vicariously liable, in the provision of appropriate educational services for children at school.

2

Three cases are concerned with children who were dyslexic; the fourth was a child suffering from Duchenne Muscular Dystrophy. In one case (Phelps) there has been a trial. The plaintiff succeeded before the Judge, but failed in the Court of Appeal. In two others, there was an application to strike out the statement of claim under Order 18 r. 19 as being an abuse of the process of the Court, or as disclosing no cause of action - in one of those ("G") the Judge struck out the statement of claim but the Court of Appeal reinstated it: in the other (Jarvis) the Judge did not strike out the claim in negligence, the Court of Appeal struck it out. In the fourth case (Anderton) the question was whether pre-action discovery should be ordered on the basis that the intended claim was for "personal injuries to a person". The Master and the Judge held that it was and ordered discovery; the Court of Appeal held that it was not and refused the order.

3

In this area of the law, as Auld L.J. said in his valuable analysis in the Court of Appeal in G, "The law is on the move and much remains uncertain". These cases were accordingly heard together so that your Lordships could reconsider the principles to be followed and the House has had the benefit of very able arguments on behalf of all parties. Some of the questions in issue arise in all or in three of the cases; others are specific to particular cases. The facts of the four cases are set out clearly and in detail in the judgments below and I shall refer only to those which seem important for the determination of the appeals. I shall refer to each of the individuals by their first names and the local authorities by their place names.

4

In recent cases before the House concerning applications to strike out statements of claim, the importance of considering actual rather than assumed facts, where there may be scope for argument as to liability, has been stressed (See X minors v. Bedfordshire [1995] 2 A.C. 633, Barrett v. Enfield London Borough Council [1999] 3 W.L.R. 79, W. v. Essex County Council [2000] W.L.R. 601). It is therefore preferable to begin with the case where there has been a trial though taking into account the relevant arguments in the other cases.

5

Pamela Helen Phelps

6

Pamela was born on 30 December 1973 and, as is now known, since birth has been dyslexic. Dyslexia is normally a congenital condition defined by the World Federation of Neurology (1968) as "a disorder manifested by difficulty in learning to read despite conventional instruction, adequate intelligence and socio-cultural opportunities. It is dependent upon fundamental cognitive disabilities which are frequently of constitutional origin". It is agreed that at all material times methods of psychological assessment have been in use which provided guidance as to whether a person might be dyslexic and that the techniques for mitigating the effects of dyslexia by a multi-sensory and structured approach were known. It is, however, accepted that the extent to which the effects of dyslexia can be ameliorated varies widely.

7

Pamela began school at Hayes Park Infants School in September 1978 and on 25 November 1980, because of a lack of progress at school, she was seen by an educational psychologist who found her to be of average general intelligence (IQ 93) but recommended child guidance. Pamela received psychotherapy from 21 May 1981 until November 1981 when it was discontinued by her parents. From September 1981 she was at Hayes Park Junior School. Her reading was at a very low standard, but Dr. Urquhart, the Director of the Child Guidance Clinic, and it seems Miss Kerbekian, a psychotherapist, thought in late 1981 that Pamela's problems stemmed from emotional sources particularly in relationships with her parents. In September 1982 Dr. Urquhart again saw the parents but they were critical of him and he of them. None of the staff involved suggested that Pamela might be dyslexic.

8

In September 1985 Pamela transferred to Mellow Lane School. Her actual age was then 11 years 9 months but her reading age was assessed at 6 years 9 months and only two of the 180 children entering the school at that time had a lower reading age. There was a special needs department where pupils with learning difficulties who were not moved to special schools could be given remedial teaching in addition to their ordinary class work.

9

On 14 October 1985, following an interview between Pamela's mother and the acting Head of Special Needs, the deputy head teacher referred Pamela to Hillingdon's School Psychological Service because of poor progress in reading and writing and on 24 October she was seen by an educational psychologist, Miss Melling. The latter reported that testing had revealed no specific weaknesses, but her reading age was 7 years 3 months. She concluded that Pamela was "seriously underfunctioning in reading and spelling. In order to make progress she needs help to develop confidence and feel that she can read". Dyslexia was not diagnosed and what is called an ACID profile (arithmetic, coding, information, digit span) which indicates dyslexia was not shown by the tests performed.

10

From late 1985 Pamela was given six hours a week special needs teaching in English and Maths, but this was not specifically designed for a dyslexic pupil. In her last three years at the school Pamela missed many teaching periods because of ill health and in her last year because of truancy. Both the illnesses and the truancy are alleged to be of psychological origin because of her educational failure. There was on occasion discussion about her going to a specialised school, but this was not pursued. Her parents were clearly very anxious about her lack of progress and it seems that some of the staff thought that she was not unintelligent but needed remedial teaching which could be given at Mellow Lane. None of the teachers or remedial specialists at any stage appear to have thought that she was dyslexic. Shortly before she left school in 1990 she was assessed, pursuant to arrangements made by and paid for by her parents, by a clinical and educational psychologist at the Dyslexia Institute who reported that she was dyslexic. Her reading age was there assessed at 7.9 years.

11

After leaving school she obtained a job in April 1990, but had difficulties with anything requiring literacy and was dismissed in July 1991, since when she has not been employed. In the intervening period she has had tuition on an irregular basis, but tests in 1996 put her reading age at 8.5 to 8.6 years, her reading comprehension at 9.8 years and her spelling age at 8.2 years.

12

The legal proceedings

13

Pamela issued a writ against Hillingdon on 22 December 1994 claiming damages for breach of statutory duty under the Education Acts 1944 and/or 1981 and the Education (Special Educational Needs) Regulations 1983 alternatively in negligence. It was said that Hillingdon had failed to identify her needs and to exercise reasonable care of her at all three schools in the detection, assessment, diagnosis and treatment of her learning difficulties and/or dyslexia. In the subsequent statement of claim it was alleged that Hillingdon, its servants or agents, in breach of their duty to use reasonable professional skill and care, failed to appreciate or assess Pamela's learning difficulties and her dyslexia and failed to refer her to an "educational psychologist reasonably sufficiently experienced in the diagnosis of specific learning difficulties" they further failed to provide or arrange for the provision of reasonably appropriate tuition and treatment. Damages were claimed on the basis of past and future loss of earnings and the cost of tuition.

14

Garland J., after a careful review of the evidence and the submissions, held that Miss Melling owed a duty of care to Pamela on the basis that her findings, recommendations and advice would be acted upon by the plaintiff through her parents, nonetheless so because her advice was also relied on by Hillingdon and the school. Hillingdon was vicariously liable for breaches of that duty by Miss Melling. She was in breach, first, when she failed in October 1985 to diagnose that Pamela was dyslexic. The Judge accepted evidence that her serious lack of progress was highly unlikely to have been caused by emotional difficulties and that by using an appropriate test (the "Bangor" test) she would in all probability have found the cause. He held: "This was more than an error of judgment: it was a failure to exercise the degree of care and skill to be expected of an ordinarily competent member of her profession". She was in breach, second, when she did not revise her opinion when Pamela "made so little progress despite Special Needs teaching".

15

He held, however, that although a school may owe a duty of care to an under-performing pupil the teachers here relied on Miss Melling and kept Pamela's case under review through the Care Committee. To have...

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