Class action

The case of Marr v Lambeth has shown the difficulty in defining where a negligence claim becomes a claim for breach of statutory duty. By Andrew Cooper

In the case of Marr v London Borough of Lambeth, the High Court has examined the principles of negligence claims by children. However, there is a narrow dividing line between claims for negligence that can be pursued and claims for damages for breach of statutory duty that have previously been ruled out by the House of Lords.

In Marr the High Court has confirmed that, in claims for educational negligence following Phelps v London Borough of Hillingdon (2001), there is a narrow dividing line between claims for damages in negligence that can be pursued and claims for damages for breach of statutory duty.

The decision by Mr Justice Ousley shows how difficult it can be for claimants to overcome the Bolam test, which originally protected a doctor against a claim of negligence if colleagues would have acted in the same manner. It also established liability for professional negligence.

The claimant Andrew Marr attended two primary schools. Thereafter he attended two secondary schools, both of which he was expelled from for poor behaviour.

At each school it was recognised that the claimant was well behind his age in reading and writing. However, all his teachers agreed that it was his behavioural problems that were holding back his education.

Throughout his time at school, it was believed that, if the claimant could tackle these behavioural problems, he could make progress with his reading and writing. However, the claimant alleged that his schools had been negligent in failing to attribute his problems to his educational difficulties.

Ousley J considered that the decision to tackle his behaviour as a priority was wholly reasonable. He stated: “There is no possible negligence in reaching that conclusion. The fact that there may have been a component in the causal factors of that behaviour which related to his reading does not alter the significance of his behaviour, nor the need to address it in order to enable his work to advance.”

At primary school the claimant was referred to a special unit to help with his behaviour. The claimant’s first secondary school admitted that it made a mistake by not including his name on its list of children with particular needs before the claimant started at the school.

Within three weeks of joining the school, however, a reading test confirmed the problem and told the school what it needed to know; but it was alleged that a programme of teaching was not made available to the claimant and his needs were not known or understood. The judge considered the accusation that the school had used inadequate teaching methods to be no more than an allegation. This is again something that the House of Lords in Phelps considered could not give rise to a cause of action.

It was further alleged that there was a failure to assess the claimant’s learning difficulties, identify them in an ‘Individual Education Plan’ and carry out a programme of education based on such a plan to meet his specific learning difficulties, which was contrary to the 1994 Code of Practice on Special Educational Needs. Ousley J was of the opinion that this was really a claim for breach of statutory duty, which could not be pursued.

The claimant’s first secondary school was criticised by Ofsted for its approach to special needs teaching, but the judge did not consider that what the school did, or omitted to do, was negligent. He stated: “The school had to work with the available resources, differentiated teaching in streamed classes, continuing the curriculum and support for literacy. Its decision on how to apply those considerations to [the claimant] was not negligent. He might have been served better with some advancement to his education with a more structured and individual plan, but it is impossible to ignore [the claimant’s] behaviour in any assessment of negligence by the school.”

It was also alleged that the schools had been negligent in failing to arrange a more formal assessment of the claimant’s special educational needs and to place him on the special needs register either earlier or at all.

This is an allegation made frequently in cases of this nature, but again the judge believed this to be an allegation of breach of statutory duty. “There might have been a breach of statutory duty in relation to the point at which [the claimant] was put on the register and the statementing process began. After all, [the claimant] was still young and falling further behind. But there was no negligence.”

The final judgment
After being excluded from his last school, the claimant received no further education. His name was removed from the list of pupils on the waiting list for the Pupil Referral Unit in the mistaken belief that he had a placement elsewhere. The judge regarded this decision as extraordinary.

However, rejecting a claim for negligence, the judge pointed out that the statutory duty on the local education authority under Section 19 to arrange suitable education for such pupils did not give rise to an action for breach of statutory duty, and that the remedy was by way of judicial review. The duty of care on education officers confirmed by the Court of Appeal in Carty v London Borough of Croydon required a degree of proximity that did not exist here. The education officers did not give advice specifically to the claimant or to his mother, nor did they hold themselves out as having any particular skill or obligation to the claimant.

It seems clear that Ousley J took the view that Phelps should be limited in its application.

It is possible that some judges might have taken a more generous approach to the justifiability of some of the claimant’s allegations. Nevertheless, this judgment shows the difficulty faced by claimants seeking damages for negligence in an area that is so closely controlled by statute and where judicial review might be the appropriate remedy.

It continues the trend since Phelps, whereby courts have been reluctant to impose liability on schools and education authorities. n
Andrew Cooper is a partner at Weightmans