Keating v London Borough of Bromley

A local education authority is not liable in negligence merely because a child’s education was interrupted or a later placement proved difficult. Liability depends on proved breach, causation and damage, assessed against the information and professional standards reasonably available at the time.

Where the alleged duty is founded on public policy, changes in social conditions may alter the law in substance, although courts ordinarily declare rather than make law. A prior House of Lords decision in the same proceedings remained binding on the claimant unless an established exception to issue estoppel applied. On the facts, the authority’s proposed special-school placements were appropriate, parental decisions materially caused the periods without schooling, and no actionable negligence or compensable loss was established.

The claimant sought damages from a local education authority for alleged negligence in the provision of his schooling between 1977 and 1986. By trial, the allegations had been reduced principally to two periods without school attendance: September 1978 to May 1979 and September 1985 to November 1986.

The proceedings had previously reached the House of Lords, which struck out claims based on breach of statutory duty and a direct duty of care, leaving claims based on the authority’s vicarious liability for employees’ negligence. The claimant contended that the authority had failed to secure suitable placements, delayed educational assessment, and failed to place him promptly in mainstream education. The central questions were whether any relevant duty and breach were established, whether the authority’s acts or omissions caused the alleged educational and employment losses, and whether the claimant’s parents’ decisions materially contributed to those outcomes.

1. Direct duty of care. The claimant was bound by the House of Lords’ earlier decision in the same proceedings that the authority owed no direct duty of care in the exercise of its statutory education functions. Phelps v Hillingdon London Borough Council [2001] 2 AC 619 had not held that the earlier decision was wrong; it recognised that exceptions might exist. No exception to issue estoppel was established. The court would independently have reached the same conclusion because the relevant fairness, justice and reasonableness assessment was affected by changes in public policy. A rule involving public policy may change with social conditions, as explained through Arthur J S Hall & Co v Simons [2002] 1 AC 615 and its treatment of Rondel v Worsley [1969] 1 AC 191.
2. First period without schooling. The recommendation of residential education in 1978 was made by professionals who had knowledge of the claimant and lacked a more suitable identified alternative. It was subject to psychiatric advice and parental agreement, and was not negligent. The authority thereafter pursued a place at Westbrooke as the best available day placement. The claimant’s parents failed to secure his attendance when a place was offered from 4 April 1979, and he eventually began attending on 14 May 1979. The absence was therefore not caused by negligence by the authority or its officers.
3. Second period without schooling. Grovelands and its successor, Glebe, were appropriate placements until the later assessment. The delay in producing the educational psychologist’s report, considered against workload and resources at the time, did not itself establish want of care. The claimant’s mother withdrew him from Glebe without giving the school an opportunity to address the issue. The authority became aware of the non-attendance and pursued mainstream alternatives. Letters offering an interview at Kemnal Manor were received but ignored, delaying placement by about nine months, including the summer holiday. No significant or lasting absence was attributable to default by the authority.
4. Proof and causation. In resolving events many years old, the court gave substantial weight to reliable contemporaneous documents, while exercising caution before drawing inferences from missing records or criticising historical professional judgments. The claimant failed to prove negligence, causation or loss of educational achievement. He also failed to establish that any alleged absence caused his lack of employment or earning capacity.
5. Order. The claim was dismissed.

The judgment describes earlier procedural decisions in the same proceedings, including the House of Lords decision reported with X v Bedfordshire County Council [1995] AC 633, but this was a first-instance trial decision and no appeal from this judgment is stated.