Phelps v Hillingdon London Borough Council (Anderton v Clwyd County Council, G (A Minor) v Bromley London Borough Council, Jarvis v Hampshire County Council)

A local education authority is not liable in damages merely for breach of the statutory educational scheme. Common-law negligence may nevertheless arise when an educational psychologist, teacher or other professional undertakes work concerning a particular pupil and the relationship is sufficiently proximate. The professional must exercise ordinary competent skill and care. The employing authority is prima facie vicariously liable.

The statutory context confers no blanket immunity. Liability depends on specific, identifiable negligence, causation and proof of loss. Generalised educational under-performance is insufficient. Recoverable damage may include psychological injury and economic loss caused by a negligent failure to diagnose and mitigate a congenital learning difficulty. Failure to mitigate its adverse consequences can constitute personal injury for pre-action disclosure.

Four appeals concerned alleged negligence in meeting pupils’ educational needs. In Phelps v Hillingdon London Borough Council, a dyslexic pupil recovered damages at trial because an educational psychologist negligently failed to diagnose her condition. The Court of Appeal, reported at [1999] 1 WLR 500, entered judgment for the authority.

Jarvis v Hampshire County Council and G (A Minor) v Bromley London Borough Council concerned applications to strike out negligence claims. Jarvis alleged inappropriate placement and support for dyslexia. G, who had Duchenne Muscular Dystrophy, alleged a failure to provide the computer equipment and training needed for communication and education.

In Anderton v Clwyd County Council, a proposed claimant sought pre-action disclosure for a claim arising from failure to diagnose and address dyslexia. The common questions concerned professional duties of care, local authorities’ vicarious and possible direct liability, recoverable damage, the proper use of strike-out procedure, and whether failure to mitigate a congenital condition could amount to personal injury.

1. Disposition. The House unanimously allowed the appeals in Phelps, Anderton and Jarvis, and dismissed Bromley’s appeal in G. The trial judge’s award in Phelps and the Master’s disclosure order in Anderton were restored. The negligence claims in Jarvis and G could proceed.

2. Statutory liability. Per Lord Slynn of Hadley, the duties imposed by the Education Act 1944 and the Education Act 1981 formed part of a general educational and social-welfare scheme. Their nature, statutory appeal procedures and availability of judicial review showed that Parliament did not intend a private action in damages for the breaches alleged.

3. Professional and vicarious liability. Per Lord Slynn and Lord Clyde, an educational psychologist, teacher or other educational professional may owe a pupil a common-law duty to exercise reasonable professional skill and care. The statutory setting does not extinguish a duty which would otherwise arise. Where a psychologist is specifically engaged to assess and advise about a particular child, and the importance and expected use of that advice are apparent, the necessary proximity may exist. Assumption of responsibility is assessed objectively; it does not require a deliberate personal undertaking. The employing authority is prima facie vicariously liable. Any alleged incompatibility with proper performance of statutory functions must be established by the authority and would be exceptional.

4. Standard and limits. Per Lord Slynn, Lord Nicholls of Birkenhead and Lord Clyde, the applicable standard is that of an ordinarily competent practitioner. The court must recognise legitimate differences of professional opinion and the difficulty of educational judgments. Liability should be exceptional and based on manifest incompetence or specific, identifiable mistakes. A pupil’s under-performance alone cannot support a generalised educational-malpractice claim.

5. Application in Phelps. The trial judge was entitled to find that the psychologist should have investigated dyslexia, reconsidered her assessment when special-needs teaching produced little progress, and that proper diagnosis and teaching would probably have mitigated the claimant’s educational and economic loss. Lord Millett agreed in the result, while emphasising that the duty arose from the need to take care when advising the authority about the child and did not depend on separate advice to the parents.

6. Direct liability and strike-out. Lord Slynn rejected an absolute rule excluding direct common-law liability whenever an education authority exercises statutory powers. Lord Nicholls and Lord Clyde regarded the precise scope of direct liability as better decided after factual inquiry. The direct claim in Jarvis was therefore arguable. The fact-sensitive claims in Jarvis and G could not properly be struck out at their preliminary stages.

7. Damage and personal injury. Psychological injury and economic loss may be recoverable where negligent failure to diagnose and address a congenital condition reduces educational attainment and employability. Per Lord Slynn, the inclusive definition in sections 33(2) and 35(5) of the Supreme Court Act 1981 permitted failure to mitigate the adverse consequences of a congenital defect to qualify as personal injury for pre-action disclosure.

1. House of Lords: In Phelps v Hillingdon London Borough Council [2001] 2 AC 619, the House restored the trial judgment. It restored pre-action disclosure in Anderton, reinstated the arguable negligence claim in Jarvis, and affirmed the refusal to strike out the claim in G.
2. Court of Appeal: In Phelps, the court allowed Hillingdon’s appeal and entered judgment for the authority: [1999] 1 WLR 500. In G it reinstated the statement of claim. In Jarvis it upheld the dismissal of misfeasance but struck out negligence. In Anderton it set aside the pre-action disclosure order.
3. High Court and Master: Garland J gave judgment for Phelps and awarded £44,056.50 plus interest; the trial decision was reported at (1997) 96 LGR 1. In G, Master Miller refused to strike out, but Gray J struck out the claim. In Jarvis, Popplewell J struck out misfeasance but declined to strike out negligence. In Anderton, Master Prebble ordered disclosure and Steel J upheld that order.