England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Mr Justice Gibbs

		Royal Courts of Justice Strand, London, WC2A 2LL
		27 January 2005

Lord Justice Dyson :

Introduction

1. The claimant is now 26 years of age. He brings this claim by his mother and litigation friend, Dorothy Brown-Carty, for damages against a local education authority. It is said that the defendants were in breach of their duty of care towards him in that over a substantial period of his schooling they failed to provide him with suitable education. The breaches alleged are based on the defendants' vicarious liability for the negligence of their servants or agents and/or their direct or corporate duty of care towards the claimant.

Synopsis of the facts

2. Sadly, it became clear when he was very young that the claimant suffered from a number of physical and developmental problems. He was referred to the defendants' school psychological service, who in October 1982 reported that he was behind in his language development, his speech was poor and his behaviour towards his peers often aggressive. In February 1983, he was placed at St Lukes' Day Nursery, where he continued to be assessed by the psychological service.
3. By the summer of 1983, he was thought to be doing well enough to be integrated into Thomas Beckett Primary School. Although he made some progress there, his educational and linguistic development was slow, and his behavioural problems persisted. By the end of 1985, the situation was becoming such that Mrs Dorothy Storey (an educational psychologist employed by the defendants) considered that there should be a statutory assessment pursuant to the Education Act 1981 ("the 1981 Act"). By October 1986, Mr Michael McCormack (an education officer employed by the defendants) believed, on the basis of assessments obtained, that the claimant was suffering from learning and language difficulties, and emotional and behavioural problems. By November, the reports were available for a draft statement of special educational needs to be prepared.
4. Meanwhile, the family had moved to Croydon. On 21 November 1986 the claimant started to attend a school local to their new home, Duppas Junior School. By early March 1987, however, he was excluded from that school. He moved almost immediately to St Nicholas' School. In July 1987, a statement of special educational needs was produced. He remained at that school until about November 1988. By September of that year, it had become apparent that his placement there was breaking down, and consideration would have to be given to his transfer to another school. This was because his behavioural and emotional problems were such that he was causing disruption to others and interfering with his own ability to learn.
5. Thus in November 1988, the claimant was placed at the Sir Cyril Burt School ("Cyril Burt"), which catered for children with emotional and behavioural difficulties. He stayed there until October 1993. Reports about his behaviour and educational progress at Cyril Burt were mixed. There were indications of positive progress, but as time went on, it became clear that he was having increasing difficulty in keeping up with the curriculum. Late in 1990, Mrs Brown-Carty suggested that he should be placed back in a mainstream school, but Cyril Burt did not agree that this was appropriate, in the light of his continuing learning and behavioural difficulties. In May 1991, Elizabeth McVicar, an educational psychologist employed by the defendants, recommended that the claimant should remain at Cyril Burt. The only alternative apparently available was a school known as Bensham Manor, which catered for children with learning difficulties. Ms McVicar was opposed to this course because of the claimant's aggressive behaviour.
6. The defendants continued, however, to explore the possibility of a placement at Bensham Manor. The claimant's mother, whilst initially reluctant to consider a move to that school, was dissatisfied with Cyril Burt, and was asking for a move to another school.
7. In November 1991, the claimant was 13. The educational psychologist responsible for him at that time was Mr Philip Edwards, the defendants' Chief Educational Psychologist. He told Mr McCormack that he would be recommending a transfer of the claimant to "a more appropriate setting".
8. In fact, the claimant remained at Cyril Burt for the rest of the academic year 1991-92. During the course of that year, a number of shortcomings in the school began to emerge, apparently caused or exacerbated by the retirement at Easter 1991 of the long serving and influential head teacher. Following his retirement and until early 1992, the school was run by an acting head teacher. The situation at the school continued to deteriorate. The claimant remained there during the academic year 1992-93. The school began to operate at split sites. Thus in early 1993, the claimant began to be taught at the site of Bensham Manor school although still under the supervision of Cyril Burt staff.
9. From early 1993 onwards, alternative placements were being sought for the claimant. One possible placement, Stowford College in Sutton, would not accept him because his problems were not primarily dyslexic. Eventually, an out of borough placement at Kinloss school in Worcestershire was found for the academic year 1993 –94. This was a boarding school primarily for children with dyslexia. The claimant went to Kinloss in October 1993. His work appears to have shown some improvement there. But the placement soon ran into difficulties. He was suspended in March 1994. In or about April 1994, he was admitted to the Archbishop Lanfranc School, a mainstream comprehensive school. The period at this school was unhappy. There was a violent incident which led to his exclusion. Thereafter he continued with home tuition, and thus his education ended.

The Issues

10. The case as originally pleaded was eventually abandoned by the claimant's junior counsel, Mr Bowen, at trial. After the completion of the evidence, counsel refined the claimant's case so as to reduce it to six allegations of negligence. These were:

(i) failure to provide in-school support at the Thomas Beckett and Duppas Schools;

(ii) failure to assess and issue a statement of special educational needs;

(iii) failure to re-assess and amend the statement after the breakdown of the St Nicholas placement;

(iv) failure in 1989 to amend the statement to provide for speech therapy;

(v) allowing the claimant to remain at Cyril Burt from June 1991 until he left in October 1993; and

(vi) failing to re-assess the claimant following the breakdown of the placements at Cyril Burt and Kinloss.

11. It will be necessary to examine the judgment of Gibbs J in some detail. It is sufficient at this stage, however, to say that he dismissed all allegations of negligence. This appeal is restricted to the third and fifth of the issues to which I have referred. Before I come to these issues, however, I need to refer to the statutory scheme.

The Statutory Scheme

12. The statute which governed the powers and duties of the defendants at all material times in relation to the claimant was the 1981 Act. This Act was subsequently repealed and replaced by the Education Act 1993, which, however, substantially reproduced much of the content of the earlier Act in relation to the powers and duties of education authorities, whilst introducing important changes, including a strengthened appeals procedure, a new appeals tribunal and improved parental rights.
13. Section 1 of the 1981 Act defined "special educational needs" and "special educational provision". Section 4 imposed a duty on the local education authority to identify the special needs of children for whom they were responsible. Section 5 imposed an obligation on the authority to make an assessment of the special needs of such children. Thus:

"5(1) Where, in the case of a child for whom a local education authority are responsible, the authority are of the opinion –

(a) that he has special educational needs which call for the authority to determine the special educational provision that should be made for him; or

(b) that he probably has such special educational needs;

they shall make an assessment of his educational needs under this section."

14. Section 5(2) to (7) set out a procedure for the making of such assessments, which included a right of appeal by a parent against a refusal to make an assessment.
15. Section 7 placed an obligation on the authority to make a statement of the child's special educational needs, and to arrange the special educational provision which the statement specified. Thus:

"7(1) Where an assessment has been made in respect of a child under section 5, the local education authority who are responsible for the child shall, if they are of the opinion that they should determine the special educational provision that should be made for him, make a statement of his special educational needs and maintain that statement in accordance with the following provisions of this Act.

(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 provisions specified in the statement is made for him unless his parent has made suitable arrangements."

16. Section 7(3) to (11) provided for representations by and meetings with parents in relation to proposed statements before they were formally made, and incorporated Schedule 1 Part II of the Act, which provided for the form of statements, their keeping and disclosure, their review periodically (and at least annually), and their amendment. Paragraph 3 read as follows:

"3. A statement shall be in the prescribed form and contain the prescribed information and shall, in particular –

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

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

17. Section 8 provided rights of appeal for a parent against the special educational provisions specified in the statement following the first or any subsequent assessment of the child's special educational need.
18. Paragraph 1(3) of Schedule 1 to the 1981 Act empowered the Secretary of State to make regulations about the making of assessments. The relevant regulations were the Education (Special Educational Needs) Regulations 1983 ("the Regulations"). The Regulations set out requirements as to the form and content of statements. Regulation 9 provided:

"Where an education authority maintain a statement in respect of a child whose educational needs have not been assessed since before he attained the age of 12 years and 6 months then, during the period of 12 months beginning with the day on which he attains the age of 13 years and 6 months, the authority shall re-assess those needs."

Breach of statutory duty

19. It is common ground that no claim for damages for breach of statutory duty can lie in this case even if it can be shown that there has been such a breach. It was held in Phelps v Hillingdon Borough Council [2001] 2 AC 619, 652F-H that the duties cast on local authorities in relation to special educational needs were intended to benefit a particular group, namely all children with such needs who are within the area of the authority, and that Parliament did not intend that there should be a remedy by way of damages for breach of statutory duty.

Liability of public authorities in negligence: the general approach

20. The question of liability of public authorities in negligence in the performance of their statutory functions has been the subject of much case-law at the highest level in recent years. We were referred to X v Bedfordshire County Council [1995] AC 633, Stovin v Wise [1996] AC 923, Barrett v Enfield Borough Council [2001] 2 AC 550, Phelps v Hillingdon [2001] 2 AC 619 and Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, [2004] 1 WLR 1057. In A v Essex County Council [2003] EWCA Civ 1848, [2004] 1 WLR 1881 at para 33, Hale LJ (drawing heavily on the analysis of Lord Browne-Wilkinson in X v Bedfordshire CC ) summarised the relevant principles:

" Whenever the question of a common law duty of care arises in the context of the statutory functions of a public authority, there are three potential areas of inquiry: first, whether the matter is justiciable at all or whether the statutory framework is such that Parliament must have intended to leave such decisions to the authorities, subject of course to the public law supervision of the courts; second, whether even if justiciable, it involves the exercise of a statutory discretion which only gives rise to liability in tort if it is so unreasonable that it falls outside the ambit of the discretion; third in any event whether it is fair just and reasonable in all the circumstances to impose such a duty of care. The considerations relevant to each of these issues overlap and it is not always possible to draw hard and fast lines between them."

21. Certain decisions are simply not justiciable at all. Thus where the decision involves the weighing of competing public interests or is dictated by considerations which the courts are not fitted to assess, they will be likely to hold that the issue is non-justiciable: see, for example, per Lord Hutton in Barrett at p 583D. These cases are comparatively rare. The present case clearly does not fall into this category, and I shall say no more about it. I should interpolate that it is also well established that, where no private law claim will lie for breach of statutory duty, a claim in negligence will rarely, if ever, lie where the carelessness relied on is merely the failure to perform the statutory duty: see, for example, Gorringe.
22. More difficult is the second category to which Hale LJ referred. There are several statements in the authorities to the effect that, where the act of which complaint is made involves the exercise of a statutory discretion, no claim will lie in negligence unless what was done was so unreasonable that it fell outside the ambit of the discretion: see, for example, per Lord Browne-Wilkinson in X v Bedfordshire CC, (p 736A-C), and Lord Slynn of Hadley in Barrett (p 570D-E). The language used is strikingly reminiscent of Wednesbury unreasonableness ([1948] 1 KB 223), although Lord Browne-Wilkinson said that the "public law doctrine of ultra vires has, as such, no role to play in the subject under discussion" (p 736H).
23. Thus, in the two child abuse cases that were considered in X v Bedfordshire CC, Lord Browne-Wilkinson at p 749C-D addressed the question whether, if the cases went to trial, they would fail on the grounds that all the decisions were within the ambit of the authority's discretion. He said that it would not be right to strike out the claims, since the plaintiffs might be able to demonstrate at trial that the decisions "were so unreasonable that no reasonable local authority could have reached them". The complaints in both cases in essence were that the local authority had failed to take steps to remove the children from the care of their mother, "ie negligently failed properly to exercise a discretion which Parliament has conferred on the local authority" (p 749B-C).
24. Lord Browne-Wilkinson adopted the same approach when he dealt with the three education cases in X v Bedfordshire CC. At p 761A he said:

"Although it is very improbable, it may be that the exercise of the statutory discretions involved in operating the special needs machinery of the Act of 1981 involved policy decisions. The decision as to what should be included in the statement and what provision should be made is, by statute, a decision conferred on the defendant authority. Therefore, even if such decisions were made carelessly, the claim will fail unless the plaintiff can show that the decisions were so careless that no reasonable education authority could have reached them."

25. But "discretion" is a somewhat protean word. It connotes the exercise of judgment in making choices. In a sense, most decisions involve the exercise of discretion. The decision of a public authority to build a school on one site rather than another involves an exercise of discretion, but, as has often been said, there can also be discretion even in the hammering of a nail: see per Lord Slynn in Barrett at p 571C-E. A claim based on the allegation that it was negligent to decide to build a school on site A rather than site B would almost certainly be struck out as non-justiciable. This is because it concerns the exercise of a particular kind of discretion, involving the choice of allocation of resources and policy questions of what is in the public interest on which the court is not equipped to adjudicate. The greater the element of policy involved, the wider the area of discretion accorded by the court. But there are many instances where a public body exercises discretion and the choices made are suited to judicial resolution. The importance of the decisions in Barrett and Phelps is, inter alia, that the question whether the careless performance of a statutory function can give rise to a negligence claim is not necessarily determined by whether the label "discretion" can be applied to the function. As Lord Slynn pointed out in Barrett:

"whether there is an element of discretion to do the act is thus not a complete test leading to the result that, if there is, a claim against an authority for what it actually does or fails to do must necessarily be ruled out."

26. It seems to me that, rather than focus on the elusive question of whether the decision at issue involved the exercise of discretion, it is preferable to consider the substance of the decision. In the field of special education, there is a spectrum at one end of which lie decisions which are heavily influenced by policy and which come close to being non-justiciable. In relation to such decisions, the court is unlikely to find negligence proved unless they are ones which no reasonable education authority could have made. At the other end of the spectrum are decisions involving pure professional judgment and expertise in relation to individual children such as, for example, whether a child is dyslexic or suffering from some other learning difficulty. In relation to these decisions, the court will only find negligence on the part of the person who made the decision (for which the authority may be vicariously liable) if he or she failed to act in accordance with a practice accepted at the time as proper by a responsible body of persons of the same profession or skill: see Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
27. But it should always be borne in mind, even in relation to decisions made at the operational level, that the tasks involved and the circumstances in which people have to work in this areas are difficult and sensitive. As Lord Slynn said in Phelps (p 655C):

"The professionalism, dedication and standards of those engaged in the provision of educational services are such that cases of liability for negligence will be exceptional. But though claims should not be encouraged and the courts should not find negligence too readily, the fact that some claims may be without foundation or exaggerated does not mean that valid claims should necessarily be excluded."

28. In my view, there is much to be said for the view that there should only be two areas of potential enquiry where the issue arises whether a public authority is liable for negligence in the performance of its statutory functions. The first is whether the decision is justiciable at all. And the second is to apply the classic three stage enunciated in Caparo Industries Plc v Dickman [1990] 2 AC 601, 617-618: foreseeability of damage, proximity, and that the situation is one in which it is fair, just and reasonable that the law should impose a duty of care.
29. This is the approach that was adopted by Lord Hutton in Barrett. That case concerned a claim in negligence by a plaintiff who had been taken into care by the defendant authority. The allegations included a failure to arrange for his adoption or provide him with appropriate placements. Lord Hutton accepted that the courts would not permit a claim in negligence to be brought where the decision on the existence of negligence would involve the court in considering matters of policy raising issues that were not justiciable. It was only where the decision involved the weighing of competing public interests which the courts were not fitted to assess that they would hold that the matter was non-justiciable on the ground that it was made in the exercise of a statutory discretion. The speech of Lord Browne-Wilkinson in X v Bedfordshire CC did not preclude a ruling that, although the decisions of the defendant were within the ambit of its statutory discretion, nevertheless they did not involve the balancing of the type of policy considerations which rendered them non-justiciable (p 585F-G). Lord Hutton then proceeded to apply the Caparo test and concluded that the action should be allowed to proceed to trial.
30. In Phelps there were grouped together four claims against local education authorities. The primary focus of the argument was on the alleged vicarious liability of the defendants for the negligence of the professionals who were employed by them. Lord Slynn said at p652H:

"It does not follow that the local authority can never be liable in common law negligence for damage resulting from acts done in the course of the performance of a statutory duty by the authority or by its servants or agents. This House decided in Barrett v Enfield London Borough Council [2001] 2 AC 550 that the fact that acts which are claimed to be negligent are carried out within the ambit of a statutory discretion is not in itself a reason why it should be held that no claim for negligence can be brought in respect of them. It is only where what is done has involved the weighing of competing public interests or has been dictated by considerations on which Parliament could not have intended that the courts would substitute their views for the views of ministers or officials that the courts will hold that the issue is non-justiciable on the ground that the decision was made in the exercise of a statutory discretion. In Pamela's case there is no such ground for holding that her claim is non-justiciable, and therefore the question to be determined is whether it is just and reasonable to recognise a duty of care: Caparo Industries plc v Dickman [1990] 2 AC 650, 617-618. If a duty of care would exist where advice was given other than pursuant to the exercise of statutory powers, such a duty of care is not excluded because the advice is given pursuant to the exercise of statutory powers. This is particularly important where other remedies laid down by the statute (eg an appeals review procedure) do not in themselves provide sufficient redress for loss which has already been caused."

31. The significance of this passage for present purposes is that, having decided that the acts of which complaint was made in the case of Pamela Phelps raised a justiciable issue, Lord Slynn did not go on to consider whether they involved the exercise of discretion such that a claim would lie only if it were shown that the acts were so unreasonable as to fall outside the ambit of the discretion altogether. Although the point was not articulated, it is implicit in Lord Slynn's reasoning that he did not consider that the case involved an exercise of that kind of discretion. The allegations made in the proceedings were that the local education authority had failed to identify the plaintiff's needs and to exercise reasonable care of her at the schools that she attended in the detection, assessment, diagnosis and treatment of her learning difficulties and/or dyslexia. It was also alleged that they had failed to provide or arrange for the provision of reasonable appropriate tuition and treatment. No doubt, all of these alleged failures involved the making of choices and the exercise of judgment. And yet, the question of whether there was a duty of care was determined by the application of the Caparo test.
32. The same approach was adopted by Lord Slynn in his analysis of the other three cases. The most striking of these for the purposes of the present appeal was that of Jarvis v Hampshire County Council. The essence of the claim in that case was that the child should have been placed in a special unit expert in teaching dyslexic children and that to put him in schools for children with moderate learning difficulties was wrong. The question was whether the defendant authority was directly or vicariously liable for the acts of the education psychologist or the advice and decisions of the education officers. Lord Slynn said (p 652D) that, for the reasons given in the Phelps case, it would not be right to strike out the claim on the basis of vicarious liability, and that since the direct claim was so closely linked with the vicarious liability claim, it would not be right to strike out that claim either. So too in Jarvis, the House of Lords did not treat the relevant question as being whether the decisions made were so unreasonable that they fell outside the ambit of the discretion altogether. And yet, the decisions which formed the basis of the claim involved the making of choices and the exercise of judgment. The Caparo test is sufficiently flexible to allow these factors to be taken into account in deciding whether there has been a breach of the duty of care. The guidance given by the House of Lords in Barrett and Phelps suggests that, in practice, there will be few cases which will not be analysed in this way.
33. Where justiciable claims are made in relation to the management by local authorities of children who have special educational needs or of children who have been taken into care, the inquiry is likely to focus on the question of potential vicarious liability for the conduct of the employees who make the decisions of which complaint is made. That was the approach adopted by the House of Lords in both Barrett and Phelps.
34. At p 653D of Phelps, Lord Slynn said:

"Where, as in Pamela's case, a person is employed by a local education authority to carry out professional services as part of the fulfilment of the authority's statutory duty, it has to be asked whether there is any overriding reason on principle why (a) that person should not owe a duty of care (the first question) and (b) why, if the duty of care is broken by that person, the authority as employer or principal should not be vicariously liable (the second question).

I accept that, as was said in X (minors) v Bedfordshire County Council [1995] 2 AC 633, there may be cases where to recognise such a vicarious liability on the part of the authority may so interfere with the performance of the local education authority's duties that it would be wrong to recognise any liability on the part of the authority. It must, however, be for the local authority to establish that: it is not to be presumed and I anticipate that the circumstances where it could be established would be exceptional.

As to the first question, it is long and well-established, now elementary, that persons exercising a particular skill or profession may owe a duty of care in the performance to people who it can be foreseen will be injured if due skill and care are not exercised, and if injury or damage can be shown to have been caused by the lack of care. Such duty does not depend on the existence of any contractual relationship between the person causing and the person suffering the damage. A doctor, an accountant and an engineer are plainly such a person. So in my view is an educational psychologist or psychiatrist and a teacher including a teacher in a specialised area, such as a teacher concerned with children having special educational needs. So may be an education officer performing the functions of a local education authority in regard to children with special educational needs. There is no more justification for a blanket immunity in their cases than there was in Capital & Counties plc v Hampshire County Council [1997] QB 1004."

35. Lord Clyde said (p 670G-H) that it was not "immediately easy to see why the law should not admit the possibility of a duty of care upon professional employees of an education authority". There were not sufficient grounds for excluding such claims even on public policy grounds alone. He said: [p 672C-673C]:

"I am not persuaded that the recognition of a liability upon employees of the education authority for damages for negligence in education would lead to a flood of claims, or even vexatious claims, which would overwhelm the school authorities, nor that it would add burdens and distractions to the already intensive life of teachers. Nor should it inspire some peculiarly defensive attitude in the performance of their professional responsibilities. On the contrary it may have the healthy effect of securing that high standards are sought and secured. If it is thought that there would only be a few claims and for that reason the duty should not be recognised, the answer must be that if there are only a few claims there is the less reason to refuse to allow them to be entertained. As regards the need for this remedy, even if there are alternative procedures by which some form of redress might be obtained, such as resort to judicial review, or to an ombudsman, or the adoption of such statutory procedures as are open to parents, which might achieve some correction of the situation for the future, it may only be through a claim for damages at common law that compensation for the damage done to the child may be secured for the past as well as the future.

Any fear of a flood of claims may be countered by the consideration that in order to get off the ground the claimant must be able to demonstrate that the standard of care fell short of that set by the Bolam test: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. That is deliberately and properly a high standard in recognition of the difficult nature of some decisions which those to whom the test applies require to make and of the room for genuine differences of view on the propriety of one course of action as against another. In the field of educational matters there may well exist distinct but respectable opinions upon matters of method and practice, and it may be difficult to substantiate a case of fault against the background of a variety of professional practices. In cases of a failure to diagnose a particular disability from which a child may be suffering there may well be considerable difficulties in the making of the diagnosis which may render proof of negligence hazardous.

Not only may there be difficulties in establishing negligence in relation to the making of professional judgments in particular circumstances or the exercise of a professional choice in particular cases, but there may well be practical difficulties in the adequacy of records or of recollection about the details regarding the educational progress and achievements of a particular child which may be highly relevant to the claim which is brought. But that there may be such difficulty is no reason for excluding deserving cases. There may also be severe difficulty in establishing a causal connection between the alleged negligence and the alleged loss and in the assessment of any damages. But these possible difficulties should not be allowed to stand in the way of the presentation of a proper claim, nor should justice be altogether denied on the ground that a claim is of a complex nature. That any claims which are made may require a large number of witnesses, a consideration which weighed with the Court of Appeal, and involve considerable time and cost, are again practical considerations which should not be allowed to justify a total exclusion of an otherwise legitimate claim. While I recognise that the general view in the jurisprudence of the United States of America is adverse to the admission of a liability upon teachers for negligence upon general grounds of policy, I am not persuaded that a corresponding view should be taken in this country."

Direct liability

36. Most of the discussion in the cases has been directed to the question of whether a public authority is vicariously liable for the negligence of its professionals. But the issue of direct liability was referred to in X v Bedfordshire CC and Phelps. In Phelps, Lord Slynn (p 658A-E) did not rule out the possibility of a direct claim. But the difficulty that he identified was that direct claims are likely to be based on decisions which are heavily policy-laden, and they are likely to be non-justiciable on that ground. Nevertheless, Lord Slynn gave as an example of a case that might attract direct liability an authority appointing educational psychologists or other professionals to carry out duties in the field of special education who at the outset transparently are neither qualified nor competent to carry out their duties. Lord Nicholls regarded the issue of direct liability as "an exceedingly difficult question" (p 668F). I propose to say no more about it, since in the present case the argument advanced on behalf of the claimant has been primarily directed to seeking to show that the defendants are vicariously liable for the alleged negligence of their employees. On the facts of this case, there is no prospect of establishing direct liability if vicarious liability is not proved.
37. With that general introduction, I now turn to consider the particular position of education officers.

Education officers

38. This is the first case in which this court has been required to decide whether an education officer can owe a common law duty of care to children with special educational needs. Mr John Ross QC submits that the making and reviewing of a statement of special educational needs is an exclusively statutory process breach of which is not actionable in private law, and that there are good policy reasons for not recognising the existence of a common law duty of care. He relies strongly on Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057. In that case, the claimant brought proceedings against the highway authority for negligence and/or breach of statutory duty in failing to provide a "slow" sign on the road surface at a point below the crest of a hill, which, it was contended, would have saved her from the road accident in which she was involved. The claim was dismissed. The House of Lords held that the statutory duty to "maintain the highway" did not give rise to a parallel duty of care at common law to take appropriate measures including the painting of warning signs on roads. Lord Hoffmann said at para 32:

"Speaking for myself, I find it difficult to imagine a case in which a common law duty can be founded simply upon the failure (however irrational) to provide some benefit which a public authority has power (or a public law duty) to provide. For example, the majority reasoning in Stovin v Wise was applied in Capital & Counties plc v Hampshire County Council [1997] QB 1004 to fire authorities, which have a general public law duty to make provision for efficient fire-fighting services: see section 1 of the Fire Services Act 1947. The Court of Appeal held, in my view correctly, that this did not create a common law duty. Stuart-Smith LJ (giving the judgment of the Court of Appeal) said, at p 1030:

"In our judgment the fire brigade are not under a common law duty to answer the call for help, and are not under a duty to take care to do so. If, therefore, they fail to turn up, or fail to turn up in time, because they have carelessly misunderstood the message, got lost on the way or run into a tree, they are not liable."

39. It is this paragraph on which Mr Ross places particular reliance. Lord Scott of Forscote went even further at para 71 when he said:

"In my opinion, if a statutory duty does not give rise to a private right to sue for breach, the duty cannot create a duty of care that would not have been owed at common law if the statute was not there. If the policy of the statute is not consistent with the creation of a statutory liability to pay compensation for damage caused by a breach of the statutory duty, the same policy would, in my opinion, exclude the use of the statutory duty in order to create a common law duty of care that would be broken by a failure to perform the statutory duty. I would respectfully accept Lord Browne-Wilkinson's comment in X (minors) v Bedfordshire County Council, at p 739, that "the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done". But that comment cannot be applied to a case where the defendant has done nothing at all to create the duty of care and all that is relied on to create it is the existence of the statutory duty. In short, I do not accept that a common law duty of care can grow parasitically out of a statutory duty not intended to be owed to individuals."

40. But it is important also to draw attention to what Lord Hoffmann said at paras 38-40. He made it clear that the appeal was "concerned only with an attempt to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty" (emphasis added). He continued:

"We are not concerned with cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care."

41. Lord Scott made the same distinction at para 73:

"There are, of course, many situations in which a public authority with public duties has a relationship with a member of the public that justifies imposing on the public authority a private law duty of care towards that person. And the steps required to be taken to discharge that private law duty of care may be steps comprehended within the public duties. Barrett v Enfield Borough Council [2001] 2 AC 550 and Phelps v Hillingdon London Borough Council [2001] 2 AC 619 are examples. But the council in the present case had no relationship with Mrs Gorringe that it did not have with every other motorist driving on the stretch of road in question."

42. In my judgment, the decision in Gorringe provides no support for the broad proposition advanced by Mr Ross. The question whether there can be a common law duty of care where there is no private law right to claim damages for breach of statutory duty does not admit of a blanket answer. There may be aspects of the role of an education officer which involve consultation or advice in respect of policy matters. It may be that, in respect of decisions taken in the performance of this part of an education officer's role, his or her activities would be non-justiciable. So too, a claim for damages for the careless failure to perform a statutory duty would not lie, because Parliament did not intend to confer on individuals the right to bring claims for damages for breach of statutory duty. That is why the mere fact that Mr McCormack failed to make a formal re-assessment of the claimant's needs in accordance with the specific requirements of regulation 9 of the Regulations cannot give rise to a private law claim (for breach of statutory duty or negligence).
43. But where an education officer, in the performance of his or her statutory functions, enters into relationships with or assumes responsibilities towards a child, then he or she may owe a duty of care to that child. Whether such a duty is in fact owed will depend on an application of the Caparo test. For the reasons mentioned earlier in this judgment, I do not consider that the correct question to ask in relation to decisions of the kind that are the subject of complaint in the present proceedings is whether they were so unreasonable as to fall outside the ambit of the discretion altogether. The present case is a paradigm case. In essence, the claimant alleges that the education officer was negligent in (a) failing to carry out a re-assessment and amend his statement of special educational needs to substitute a different school for the one named in the statement (the named school no longer being suitable to his needs), and (b) allowing him to remain at a school which was not suitable to his needs. But the nature of the statutory function and the difficulty of decisions such as the assessment of the needs of a child with special educational needs and the determination of the special provision that should be made are such that a court will usually only hold that it is fair, just and reasonable to impose a duty of care to avoid decisions that are plainly and obviously wrong.
44. Mr Ross advances a number of reasons why we should hold that education officers do not owe a duty of care to the children whose educational interests they are employed to serve. First he submits that an education officer is not a "professional" person, and that for this reason the principles enunciated in Barrett and Phelps have no application. There can only be vicarious liability for the acts and omissions of a professional person, whose conduct can be judged by the application of the Bolam test. He submits that an education officer performs an administrative function, which is different in kind from, for example, that of a professional person such as (in the field of education) an educational psychologist or teacher in the field of education, and a social worker (in the field of the social welfare of children). Unlike these professional persons, education officers have no professional qualifications and are not regulated by a professional body. Education officers are more akin to civil servants.
45. I would hold that education officers who perform the statutory functions of local education authorities are professional persons for whose negligence authorities may be vicariously liable just as they may be liable for the acts and omissions of education psychologists and teachers. The phrase "professional person" is not a term of art. In M v Newham London Borough Council [1995] 2 AC 633, 666B, Sir Thomas Bingham MR said:

"Those who engage professionally in social work bring to their take skill and expertise, the product partly of training and partly of experience, which ordinary uninstructed members of the public are bound to lack. I have no doubt that they should be regarded as members of a skilled profession. Their task is one of immense difficulty, and frequently they are exposed to unjust criticism; but both those things may, to a greater or lesser extent, be said of other professionals also."

46. These observations were approved by Lord Slynn in Barrett (p 569G). In my judgment, they apply with equal force to education officers. In his witness statement, Mr McCormack gave evidence as to his own experience and expertise. He has a teaching qualification, and has been a teacher in both mainstream and special education for many years. Regulation 4 of the Regulations provides that for the purpose of making an assessment, an authority shall seek (a) educational advice, (b) medical advice, (c) psychological advice and (d) "any other advice which the authority consider desirable in the case in question for the purpose of arriving at a satisfactory assessment." Regulation 8 provides that, when making an assessment, an authority shall take into consideration "(a) any representations made by the child's parent; (b) any evidence submitted by, or at the request of, that parent; (c) the advice obtained in the case in pursuance of Regulation 4, and (d) any information relating to the health or welfare of the child furnished by or on behalf of (i) any district health authority, or (ii) any social services authority." The obligation to seek advice imposed by regulation 4 and to take the matters specified by regulation 8 into consideration are usually performed on behalf of local education authorities by their education officers. As Mr Roger ter Haar QC points out, it is not uncommon for parents to make representations which are in conflict with those made by teachers or educational psychologists or indeed any of the other consultees. The education officer may be required to resolve such disagreements. He or she may have to decide pursuant to regulation 4(d) what other advice is "desirable" for the purpose of arriving at a satisfactory assessment. The tasks undertaken by an education officer can only be performed effectively by someone who has the appropriate skill and expertise. In my judgment, this conclusion is not undermined by the fact that there is no formal education officer qualification and no professional body responsible for the regulation and discipline of education officers.
47. I accept the submission of Mr ter Haar that it would be anomalous if all of the participants in the process of reporting and assessment (teachers, doctors, psychologists) can in principle owe a duty of care to the children for whom they have assumed a responsibility, but that the education officer, who is required to obtain the advice and make the assessments which in turn lead to the making of educational provision which actually affects the lives of the children, should have blanket immunity from liability.
48. In my judgment, the analogy with administrators and civil servants is unconvincing. It seems to me that there is a far closer analogy with the social worker. There is no rational basis for holding that social workers can owe a duty of care to children for whom they assume a responsibility, but that, simply on the grounds that they are not professional persons, education officers cannot owe such a duty to the children for whom they assume a responsibility. They both work for the benefit of vulnerable members of society and, within a statutory framework, perform tasks of considerable difficulty in circumstances where they are frequently criticised for what they do.
49. There is nothing in previous authority to suggest that the existence of a duty of care depends on the person having "professional" qualifications, or that education officers stand on a different footing from those who are employed by public bodies to perform statutory functions and who are undeniably professional persons. In Barrett, Lord Slynn said that the educational psychologist "and other staff exercising skill owed a duty to use reasonable skill and care in assessing and determining the child's educational needs and the authority would be vicariously liable if they were in breach" (p 567E): it is difficult see why an education officer would not satisfy the description of "other staff".
50. I have already cited the passage in Lord Slynn's speech in Phelps at p 653F-H: see para 34 above. There was debate before us as to whether Lord Slynn is saying merely that it is arguable that an education officer may owe a duty of care, or whether he is saying that an education officer can in fact owe a duty of care in appropriate circumstances. I am in no doubt that the latter interpretation is correct. First, early in the passage Lord Slynn says that it is elementary that "persons exercising a particular skill or profession may owe a duty of care" (emphasis added). The use of the word "may" in relation to education officers reflects the earlier sentence. There is no difference in principle between an educational psychologist or teacher and an education officer. Secondly, in the final sentence of the passage, he says: "There is no more justification for a blanket immunity in their cases than there was in Capital & Counties plc v Hampshire County Council [1997] QB 1004" (emphasis added). The word "their" plainly refers back to all the cases mentioned, including education officers. It is quite clear, therefore, that Lord Slynn considered that, for present purposes, there is no material difference between education officers and other professional persons, such as educational psychologists and teachers. Indeed, it is arguable that what Lord Slynn says about education officers is part of the ratio of his decision, since one of the four appeals considered by the House of Lords did involve allegations of negligence by education officers. I have already referred to the passage in Lord Slynn's speech where he deals with the case of Jarvis v Hampshire CC: see para 32 above. But since the Jarvis case also involved allegations of negligence on the part of the educational psychologist, I prefer to proceed on the basis that the question of the potential liability of education officers has not previously been determined.
51. I now turn to the other reasons relied on by Mr Ross in support of his submission that education officers should enjoy a blanket immunity from liability. First, he submits that, if education officers owe a duty of care, they are exposed to dealing with allegations made by children once they attain their majority which may relate to events which occurred many years earlier and in respect of which the paperwork will often no longer exist. But this is a feature of any activity which affects children, whether it is by a private person or a public authority. If this were a good reason for holding that an education authority should enjoy a blanket immunity, then it would have been a complete answer to the claim in Barrett, and indeed the claims in X v Bedfordshire CC and Phelps. It is worthy of note that in X v Bedfordshire CC at p 749H-751G, Lord Browne-Wilkinson gave a number of reasons why he considered that it was not fair, just and reasonable to impose a duty of care on a local authority in relation to the performance of its statutory duties to protect children (in child abuse cases). Similar considerations led him to the same conclusion in relation to education cases (p 761C-762H). But these considerations did not include the first of the reasons advanced by Mr Ross.
52. Secondly, Mr Ross relies on the fact that Parliament has provided adequate remedies in the form of statutory appeals and reviews as well as judicial review, all of which must be invoked close in point of time to the events to which they relate. It is true that the existence of alternative remedies is mentioned by Lord Browne-Wilkinson in X v Bedfordshire CC as one of the factors which militates against the existence of a duty of care. But it is only one of several factors. In the Court of Appeal, Sir Thomas Bingham MR said of the argument that there should be no duty of care, because the child's claim was in reality a public law claim which the mother could pursue by judicial review, that it was bad in law (p 667D):

"The child is seeking to enforce a private law claim for damages. She is not seeking to impugn the validity the legal validity of any public law act of the local authority. If she can show that the local authority owed her a duty of care, I see no reason why she should not pursue her claim as she has."

53. And again at p 668G, he said:

"There must be a probability that the most vulnerable will be the least able to invoke the protection of the law. I do not think the theoretical availability of a public law remedy deprives the children of their right to pursue a private law claim…."

A similar view was expressed by Lord Hutton in Barrett (p 589F-G) and Lord Clyde in Phelps (p 672D-E).

54. For the reasons that I have sought to give, I would hold that an education officer does not enjoy blanket immunity for his or her performance of statutory functions under the 1981 Act in relation to children with special educational needs.

The first ground of appeal

55. Mr ter Haar submits that the judge should have held that the defendant was vicariously liable for the negligence of Mr McCormack and/or directly liable for the failure to re-assess the claimant's educational needs following the breakdown of his school placement at St Nicholas School, and negligent in failing to amend the statement of special educational needs to name an appropriate school.
56. At para 105 of his judgment, the judge said:

"The placement at St Nicholas is no longer now, as I understand it, in itself alleged to have been negligent. In my view, it could not seriously have been argued, in the light of all the evidence, that the placement was appropriate. Serious issue is, however, taken with the failure to re-assess and amend the statement after the St Nicholas placement broke down…….."

57. At para 106, the judge appeared to accept the submissions made by Mr Bowen on behalf of the claimant. He said:

"The criticisms of the failure during this period to implement the statutory procedures are justifiable. They should have been implemented as a matter of course, and it is no or no sufficient answer for the defendants to plead that they put the practical interests of the children first, and paperwork second. Had an interested party at that time (most obviously in this case the claimant's mother) demanded the production of a new or amended statement, and had the defendants failed to respond, she might well have had a good case to compel compliance with the procedure by means of judicial review."

58. At para 107 he went on to say:

"However, on the basis of the law as I find it to be, such failures do not in themselves give rise to a private law remedy in damages. It is necessary to examine the way the defendants (and especially Mr McCormack) dealt with the claimant's education during the material period to ascertain whether negligence has been established."

59. The examination that followed (paras 108-112) was directed to the period after the placement at Cyril Burt in November 1998. The judge does not seem to have dealt directly with the submission relating to the period following the breakdown of the placement at St Nicholas School.
60. Mr ter Haar submits that, once the placement at St Nicholas had broken down, there was a material change of circumstances which required a re-assessment of the claimant's needs and a reconsideration of the provision that was required to meet those needs. He accepts that the statutory regime in force at the time did not require a revised statement of special educational needs, although, he argues, it would have been good practice to make such a statement. He submits that there was a breach of duty on the part of the defendant authority in failing to carry out the necessary re-assessments and in placing the claimant in Cyril Burt: this school was unsuitable, not least because a school for children with emotional and behavioural difficulties was not suitable for the claimant.
61. Although the judge did not deal directly with this issue, it is implicit in his judgment that he rejected the argument that was advanced on behalf of the claimant. Crucially, he was clearly of the opinion that it was not negligent to place the claimant at Cyril Burt in November 1998. At paras 16-18 of his judgment, he described the claimant's progress during his early years at Cyril Burt. He made good progress in some areas. "On the face of it, Cyril Burt had advantages for the claimant" (para 17). Class sizes were smaller than those at St Nicholas, and the school specifically addressed emotional and behavioural problems from which there was no doubt the claimant suffered. Dr Lansdown, the educational and clinical child psychologist called as an expert on behalf of the defendant, was of the view "that the evidence disclosed that before each placement sufficient investigation and assessment of the claimant's difficulties had been conducted" (judgment para 87). The judge accepted the evidence of Dr Lansdown. Dr Tylden, the consultant psychiatrist called as an expert on behalf of the claimant, said that the decision to place the claimant at Cyril Burt was "extraordinary", but it would seem that this was with the benefit of hindsight. More significantly, she "agreed with the proposition that the defendants took an enormous amount of trouble with the claimant; that this was a very difficult case to deal with; that they put a lot of thought and time into the case; that unfortunately everything went horribly wrong" (judgment para 93). The judge also said of Mr McCormack (para 96):

"I found him to have been motivated by concern to take the right decisions for the claimant in the light of the information and resources available to him. This finding was consistent with the available documents (and incidentally with Dr Tylden's view that the defendants took an enormous amount of trouble with the claimant)…….It is clear that he recognised the importance of obtaining expert advice and assessment; of following expert advice if it pointed all one way; and in case of doubt or conflicting advice, of making a responsible decision on the defendants' behalf."

62. One of the important contemporary documents is a letter dated 26 September 1988 written by Mr McCormack to the head teacher at Cyril Burt stating that it had been proposed that the claimant would be "more appropriately placed" at Cyril Burt, and asking whether he could be interviewed with a view to a transfer from St Nicholas School. The letter was copied to the head teacher at St Nicholas School, Mrs Hughes, an educational psychologist and Dr Wield, a community physician.
63. It is clear, therefore, that the decision made by Mr McCormack to transfer the claimant to Cyril Burt was taken after a careful assessment of his needs, with the benefit of, and in accordance with, expert advice obtained from relevant professionals (the teachers, the educational psychologist and medical officer). In my judgment, the implied conclusion of the judge that the decision was not negligent is unassailable. I reject the first ground of appeal.

The second ground of appeal

64. Mr ter Haar submits that the judge was in error in not finding that the defendants were vicariously liable for the negligence of Mr McCormack and Mr Edwards and/or directly liable in negligence in allowing the claimant to remain at Cyril Burt until July 1993 without annual reviews or re-assessments.
65. The judge made the following findings:

"108. An examination of the situation during the placement at Cyril Burt gives cause for anxiety. Even if the press reports about the school may have been over-dramatised, the general state of the school was plainly unsatisfactory. Mr Edwards was signalling in his memorandum of 19^th November 1991 that he would be recommending "an early transfer to a more appropriate setting". As time went on, the claimant seemed to be finding it increasingly difficult to derive benefit from the curriculum at Cyril Burt. The transfer to Kinloss did not take place until autumn of 1993, i.e. after the end of the following academic year. These facts taken on their own suggested to me, before I heard and read the evidence in detail, a prima facie case of negligence.

109. However, a detailed and realistic appraisal reveals the complex and difficult situation faced by the defendants. In dealing with it, Mr McCormack continued to take the advice of the educational psychology service. In her report of 16^th May 1991, Elizabeth McVicar, one of the defendants' educational psychologists, confirmed that the claimant should not be returned to mainstream education – a conclusion which was reasonably open to her (and in the light of other evidence, almost certainly right.) Thus any alternative placement would have to be at a specialist school within the defendants' borough, or (subject to availability, funding and the agreement of the appropriate committee) outside the borough.

110. Within the borough the options were limited. A return to St Nicholas was clearly out of the question. A possible alternative was a school known as Bensham Manor. Following Elizabeth McVicar's review of the situation in 1991, Mr McCormack sought a place at Bensham Manor, but by November it was clear there would be no vacancy there in the near future. Meanwhile, the claimant's reports during 1991 were showing signs that he was making some progress at Cyril Burt, which was recognised at least to some extent by his mother. I therefore accept the evidence of Mr Edwards that, whilst it was right to seek a more appropriate setting for the claimant, Cyril Burt was not an inappropriate setting. I find that the defendants are not shown to have been negligent in failing to remove him to another placement at that stage. One significant feature of the claimant's education had been the breakdown of placements after a relatively short period. There is nothing to indicate that the placement at Cyril Burt was in danger of breaking down, despite the serious questions raised about whether the claimant would continue to derive educational benefit from it. In my judgement it would have been irresponsible simply to move the claimant without identifying a suitable alternative.

111. There is nothing to show that adherence by the defendants to the statutory requirements would have made any material difference. Mr Edwards was regularly involved with the claimant's case. For example, he attended the annual review in March 1992. There was consultation with Mrs Brown-Carty. In the course of the next academic year, Mr Edwards was plainly taking the claimant's particular needs very seriously. By early 1993 steps were being taken to find a specialist out-of-borough placement. In March 1993 Mr Edwards produced a psychological report to coincide with the claimant's annual review. Mr Edwards noted the discrepancy between the claimant's verbal and non-verbal skills. He expressed the view that the claimant was not dyslexic, but that a multi-sensory remedial approach to his severe literacy difficulty could be of benefit. It would appear that such an approach would have elements in common with education for dyslexic children, and it is apparent that the decision to place the claimant at Kinloss in Worcestershire was informed by Mr Edwards's view. Another possible placement, at Stowford College, Sutton, could not proceed, because the school did not consider that the claimant had a "dyslexic profile".

112. It seems to me, having considered the broad picture of the period spent by the claimant at Cyril Burt, as well as the available detail, that the defendants are not shown to have been negligent. On the contrary, they are shown to have approached the claimant's case throughout in a manner which would be regarded as acceptable by a significant body of educational opinion. Despite Dr. Tylden's views on the subject, I accept the evidence of Dr Lansdown and Mr Edwards that Cyril Burt was an appropriate placement. As already mentioned, I am not satisfied that the defendants were negligent in failing to remove the claimant from that placement earlier than they did…"

66. In summary, Mr ter Haar submits that the judge should have found that by mid-1991 Mr McCormack should have re-assessed the needs of the claimant and made a new statement, naming a different school (if necessary out of the borough), and that his failure to do so was negligent.
67. As early as 30 April 1990, Mrs Brown-Carty was writing to the head teacher at Cyril Burt saying that she considered that the peer group at the school was detrimental to the claimant's behaviour, and requesting that he be transferred to a mainstream secondary school. On 22 May, Mr McCormack replied to Mrs Brown-Carty saying that, in view of the limited progress that the claimant was making at Cyril Burt, it seemed extremely unlikely that he would be able to meet the requirements of a mainstream school at the present time. He added that, if his behavioural difficulties improved, it was likely that he would still require placement in a specialist school for pupils with moderate learning difficulties ("MLD").
68. Early the following year, Mrs Brown-Carty approached Mr McCormack again. She was concerned that the claimant was being victimised at Cyril Burt, and that his basic educational skills were still at a very low level. She asked that consideration be given to transferring him to a school for pupils with MLD. Mr McCormack consulted Mr Hughes, the head teacher, as well as Mrs McVicar, the senior educational psychologist. On 16 May 1991, Mrs McVicar reported:

"Agreed that he would not learn in a mainstream setting. The only other possible provision would be Bensham Manor. Mrs Brown did not want this as she has heard bad things. I did not advise it, because of Leon's aggression. Leon to stay at Sir Cyril Burt."

69. On 21 June, Mrs McVicar sent a memorandum to Mr McCormack saying that Mrs Brown-Carty was requesting a part-time trial for the claimant at Bensham Manor. She wrote:

"Both Mr Hughes and myself feel that this would be suitable move for Leon as he will increasingly experience difficulties with the curriculum as he proceeds through the school at Cyril Burt."

At that time there were no vacancies at Bensham School. Mrs McVicar asked Mr McCormack to apply formally for the claimant to be admitted to that school on a part-time trial basis in September.

70. By November, Bensham School still had no vacancies. On 19 November, Mr Edwards, the defendants' chief educational psychologist, wrote to Mr McCormack saying: "Having seen Leon, I think I shall be recommending an early transfer to a more appropriate setting. I have arranged to see Leon again on 27 November and will provide you with a report following that visit." It is not clear whether such a report was ever made. But Mr Edwards did produce a report dated 15 March 1993 in which he referred to a 1991 review meeting (which it is reasonable to infer took place after the memorandum of 19 November) at which it was decided with the consent of Mrs Brown-Carty that Leon should stay at Cyril Burt if no place materialised at Bensham Manor School. During the period 1991-93, the school reports on the claimant were described by the judge (para 21) as "mixed, but not by any means wholly negative". For example, the report at the end of June 1992 spoke of significant progress.
71. The central point made by Mr ter Haar is that nothing was done between mid/late 1991 and October 1993 to secure the transfer of the claimant from Cyril Burt to a more appropriate setting. He should have been placed in a school for pupils with MLD. Mr ter Haar submits that McCormack failed to secure such a placement because he confined his search to schools within the borough. Mr McCormack explained the position at para 49 of his witness statement in these terms:

"It was not clear which other options there were. It would be very unusual to go back to St Nicholas- a setting which had already "failed". The only schools for MLD pupils in the Borough were St Nicholas and Bensham manor. In theory we could have looked for an MLD provision outside the Borough. But this would be difficult since we were only looking part-time; in addition it would be very likely that any provision outside the Borough would have responded that they could not meet Leon's behavioural needs. Cyril Burt School was the school that Leon stayed at longest. He appeared to be making progress and the school was certainly not saying that it could not meet his needs. But the mother was saying Leon could not stay there."

72. In the course of his evidence, however, he accepted that, if there was no likelihood of a place at Bensham School in the near future, he should have looked at the possibility of a placement in an MLD school in another borough. Mr ter Haar attaches some importance to this admission. On the other hand, when asked about Mr Edwards' memorandum of 19 November 1991, Mr McCormack also said (day 3 p 55) that he did not consider that they were saying that the school could not meet a need: "I think they are saying we could find a more appropriate placement." When asked why he did not carry out a re-assessment, he said (p 56): "I think I can only respond, we did have a good view of Leon's needs, we knew what Leon's needs were. I don't think that the re-assessment would have brought forward any needs of which we were unaware."
73. Mr Edwards gave evidence at the trial. He was an important witness, since it was his memorandum of 19 November 1991 on which Mr ter Haar relies as showing that by that date Cyril Burt was an inappropriate setting, and that the failure to arrange for a placement in an MLD school was negligent. Mr Edwards was cross-examined about the memorandum. He said that he was not saying that "the school was unable to provide an appropriate individualised curriculum for him." Then the following exchange took place (day 5 p 12):

"Q. So why, at 677, did you say that you would be recommending an early transfer to a more appropriate setting? I am sorry; I just do not follow this.

A. Because –

Q. If it remains appropriate because of the regime in the school, why are we into this strange phase of moving him out?

A. Because that is taking on a wider brief, the social setting of the school, as he was very pre-pubertal in his presence, the school had an adolescent population as well. The school was under review. It didn't have curricular facilities, science lab, computer lab, etc, which is referred to probably in the Cyril Burt report. So in any event, we were moving towards moving – hoping to move Leon to a school at the key stage 4 stage, that is 14-16. But he could theoretically have stayed there till 16, and he would still be able to be provided with an appropriate, say within the English set curriculcum, with basic English and basic maths. Possibly not the ideal, but defensible.

Q. That is under-stating it rather, is it not, Mr Edwards? You know, I venture to suggest, in your heart of hearts, that the evidence Dr Tylden gave was absolutely correct, which was you simply do not send a child like this to a behaviour school like Cyril Burt. He was the wrong sort of boy with the wrong sort of disabilities.

A. I wouldn't agree with her, I am afraid; I wouldn't agree…"

74. Dr Lansdown also gave evidence about the suitability of Cyril Burt. In his report he said that "while one would not pretend that all was well at the school during the whole time he was there, the local authority continued to review him and moved him to another school when this became advisable." He was cross-examined about Mr Edwards' memorandum of 19 November 1991. He was asked (day 4 p 95) whether it was his view "that after that exchange of paper that Cyril Burt remained an appropriate place". The document merely said that Mr Edwards thought that he would be recommending an early transfer to a "more appropriate setting". The document did not say why Mr Edwards would be making this recommendation, still less that Cyril Burt was an inappropriate setting. Later in the cross-examination, in answer to the question: "On the basis that he had been in an inappropriate school anyway for the previous three years so it did not much matter?", Dr Lansdown replied: "I am not sure that he had been in an inappropriate school". He went on to say that he would have placed the claimant in a school for pupils with emotional and behavioural problems.
75. I am in no doubt that the judge was right to reach the conclusions that he did. Mr McCormack should have carried out a formal re-assessment of the claimant during the 12 months' period from May 1991 as required by regulation 9 of the Regulations. But the mere failure to discharge this statutory duty cannot found a claim in negligence (see para 21 above), and Mr ter Haar does not so submit. The real question raised by the second ground of appeal is whether there was a breach of duty on the part of Mr McCormack and Mr Edwards in failing to arrange for the claimant to be moved from Cyril Burt before October 1993.
76. The critical finding made by the judge was that, whilst it was right to seek a more appropriate setting for the claimant, Cyril Burt was not an inappropriate setting. Mr ter Haar challenges this finding, but in my view the judge was entitled to reach this conclusion on the basis of the evidence of Mr McCormack, Mr Edwards and Dr Lansdown. Mr ter Haar also submits that it is an insufficient answer to the allegation of negligence that Cyril Burt was not an inappropriate setting. The relevant question was whether the claimant was deriving the educational benefit from Cyril Burt that he was entitled to expect. I accept that the phrase "not an inappropriate setting" is somewhat vague. But in the context of the claimant's problems, it was clearly intended to convey the value judgment that the school was reasonably suitable for his needs.
77. Mr ter Haar also submits that the judge was wrong to take into account lack of resources in deciding whether there had been a breach of duty. He refers to various passages in the judgment which indicate that the judge did have regard to the issue of resources. Thus at para 66, he said that it would be wrong to characterise as negligent an officer who made a decision "which, whilst not ideal, was reasonable in the light of available resources". At para 109, he referred to an alternative placement to Cyril Burt having to be at a specialist school within the borough "or (subject to….funding….) outside the borough". But it is clear that, on a fair reading of paras 108-112 as a whole, the judge did not base his conclusion that the failure to remove the claimant from Cyril Burt was not negligent on the fact that there were no resources available to fund a placement outside the borough. That is not surprising in view of the evidence of Mr McCormack who said (day 3 p 46): "I think I can honestly say in terms of Leon and his various placements, that money was never an issue. There was never something we didn't do because money was an issue."
78. At para 27 above, I said that, in determining whether there has been a breach of duty in these difficult cases, the court should pay close attention to the complexity and delicacy of the decisions that education officers and education psychologists have to make, and should not find negligence too readily. This is particularly important where (as in the present case) the decision under scrutiny involves a judgment as to (a) the special educational provision that should be made for a child, and (b) the school at which it should be provided. Taking these considerations into account and having regard to the evidence, the judge was right to find that the decision to keep the claimant at Cyril Burt between 1991 and 1993 was not negligent.
79. I would reject the second ground of appeal and dismiss the appeal.

Lord Justice Mummery :

80. I agree with Dyson LJ that this appeal should be dismissed. Mr McCormack owed a common law duty of care to Leon Carty, but the trial judge (Gibbs J) was right in holding that no breach of that duty occurred when Mr McCormack failed to re-assess Leon's educational needs and to amend the statement of needs to name an appropriate school after the breakdown of the St Nicholas School placement, or when, without making annual reviews and assessments, he allowed Leon to remain at Sir Cyril Burt School from June 1991 until July 1993.
81. I wish to add a few comments in my own words on Dyson LJ's discussion (in paragraphs 38 to 54 of his judgment) of the circumstances in which a common law duty of care is owed by an education officer to a child with special educational needs.
82. I agree that (paragraph 54) an education officer does not enjoy blanket immunity for the performance of statutory functions under the Education Act 1981 in relation to children with special educational needs; that (paragraphs 34 and 50) this result is in accordance with precedent (Phelps); and that (paragraph 26), in principle, the correct approach to determining whether a common law duty of care is owed by a person, such as an education officer, who is employed to perform the statutory functions of a public authority, is to consider the substance of the act or omission in question and then determine (a) whether it is justiciable at all, and, if so, (b) whether it is fair, just and reasonable to impose a duty of care on the person in that situation.
83. One of my concerns in this developing area of the law (we were referred to some interesting papers on relevant topics in Tort Liability of Public Authorities in Comparative Perspective Edited by Duncan Fairgrieve, Mads Andenas and John Bell (2002) is that it is all too easy, as apparently happened in some aspects of the presentation of this case at trial, to slip into the fallacy that an education officer owes a duty of care to a child because (a) under the 1981 Act the local education authority has duties and discretions in relation to children with special educational needs and (b) the education officer is employed by the authority to perform functions relevant to the performance of the statutory duties and discretions. This approach would produce a kind of circular vicarious liability in reverse: an education officer, through whom a local education authority performs its statutory functions, might, by use of the tort of negligence, be made personally liable for the failings of the authority. As employer, the authority would then be vicariously liable for the tort of negligence committed by the education officer in the course of his employment. As Gibbs J pointed out the result would be to introduce by the back door an action for breach of statutory duty in a case where, as here, it was agreed that no cause of action for breach of statutory duty was created by the relevant legislation.
84. The authorities draw an important distinction. On the one hand, there are the established grounds of liability in private law for advice negligently given, or not given, by an individual possessing professional skills. The duty of care may arise out of a special relationship, which may exist in a statutory as well as in a non-statutory setting. The duty is owed to the other person in the relationship, who claims to have suffered non-physical damage and loss as a result of the negligent exercise of those skills. On the other hand, the courts have firmly rejected the notion that, in a case where, as here, it is accepted that there is no cause of action for breach of statutory duty, it is sufficient for the purposes of establishing common law liability in negligence to show that an employee of a public authority, such as an education officer, has not performed, or has not properly exercised, relevant statutory obligations and discretions of the public authority.
85. Despite several references in Phelps to "professional employees" and "professional persons", I agree with Dyson LJ that the common law duty of care to children with special educational needs is not confined to those persons, such as doctors, who have been trained and have qualified as members of a recognised profession and are subject to professional disciplinary procedures. (Some may question whether education officers are "professional persons" (paragraph 45). It depends on the correct use of the term "professional" in current conditions). Classification as a "professional" is irrelevant in the present context. In some situations it may be easier in practice to establish the existence of a duty of care and a breach of such a duty on the part of a person, who is professionally trained, qualified and disciplined, than on the part of a person who is not. The crucial point, however, is that the relevant duty of care in this case does not depend on the professional status of Mr McCormack any more than it depends on the statutory obligations and discretions of the London Borough of Croydon, or on policy decisions made by it, or on the kind of statutory machinery set up by it to implement the statutory functions.
86. The common law duty of care in relation to specific advice given or not given by Mr McCormack to the London Borough of Croydon about Leon Carty and in relation to his specific decisions, acts and omissions concerning Leon arose not from the terms of the 1981 Act, but from the fact that Mr McCormack (a) acted as a person with special skills and relevant experience in operating in the statutory framework established to cater for special educational needs; (b) actually undertook specific educational responsibilities towards Leon Carty; and (c) did so in the course of the particular relationship entered into by him with Leon Carty, (d) who was a child with special educational needs.
87. If such a duty is breached, then, subject to issues of causation, remoteness and proof of damage, the local education authority is vicariously liable for the breach. If, as here, there is no breach of the common law duty, then the local education authority is not vicariously liable.

Dame Elizabeth Butler-Sloss P:

88. I agree that this appeal should be dismissed
ORDER:

1. Appeal dismissed

2. The Claimant do pay the Defendant's costs of the appeal, the costs to be subject of a detailed assessment, the Defendant's costs not to be enforced without detailed assessment of the Claimant's means to pay pursuant to Section 11 of the Access to Justice Act 1999.

3. The Claimant's personal liability in respect of the Defendant's costs and that of the Legal Services Commission in respect of the costs of the appeal to be determined by a costs judge in accordance with regulation 10 Community Legal Service (Costs) Regulations 2000 as amended by Regulation 5 of the Community Legal Services (Costs Protection) Regulations 2000.

4. The Claimant's cost be subject of detailed assessment in accordance with regulation 107 of the Legal Aid (General) Regulations 1989 as amended by the Civil Legal Aid (General) Regulations 2000.

5. The Respondent and Appellant [refused] leave to appeal to the House of Lords.

(Order does not form part of approved judgment)