Carty v London Borough of Croydon

An education officer who exercises special skills and assumes specific responsibility for a child with special educational needs may owe that child a common law duty of care. The officer has no blanket immunity merely because the work is performed within a statutory framework or the officer lacks formal professional status.

The court must consider whether the challenged decision is justiciable and, if so, whether imposing a duty is fair, just and reasonable. A failure to perform a statutory duty does not alone establish negligence where Parliament provided no damages remedy. Given the difficulty of special educational decisions, liability will ordinarily require a decision that was plainly and obviously wrong.

The claimant sought damages from a local education authority for alleged failures to provide suitable education for his special educational needs. Gibbs J dismissed six allegations of negligence.

The appeal concerned two alleged failures. The first followed the breakdown of a school placement and concerned the absence of a reassessment and amended statement naming a suitable school. The second concerned the decision to retain the claimant at another special school between 1991 and 1993 without the required reassessments and reviews.

The central questions were whether an education officer could owe the claimant a common law duty of care while performing statutory functions under the Education Act 1981, and whether the relevant officers had breached any such duty.

1. Appeal dismissed. The education officer owed the claimant a common law duty of care, but neither challenged decision breached that duty. The local education authority therefore incurred no vicarious liability.

2. Public authority negligence should be approached by examining the substance of the challenged act or omission. The court should first determine whether the matter is justiciable. If it is, the court should ask whether damage was foreseeable, whether there was sufficient proximity, and whether imposing a duty would be fair, just and reasonable. The mere presence of statutory discretion is not a complete test.

3. An education officer has no blanket immunity when performing statutory functions concerning children with special educational needs. A duty may arise where the officer exercises special skill, assumes specific educational responsibilities towards a child, and enters a sufficiently proximate relationship with that child. Formal professional qualifications or regulation by a professional body are unnecessary.

4. The duty arises from the relationship and assumed responsibility, rather than from the statutory duty itself. Where Parliament has not provided a damages remedy for breach of statutory duty, an officer's mere failure to perform the statutory procedure cannot be converted into negligence. The claimant therefore could not found liability solely on the failure to reassess his needs as required by regulation 9 of the Education (Special Educational Needs) Regulations 1983.

5. The difficulty and sensitivity of decisions about a child's special educational provision affect whether a duty should be imposed and whether it has been breached. A court will usually impose a duty to avoid decisions that are plainly and obviously wrong. Where the decision is one of professional judgment, the court should respect a practice accepted as proper by a responsible body possessing the relevant skill.

6. The original placement following the breakdown of the earlier school was based on careful assessment and relevant professional advice. It was not negligent. During the later period, the existing school remained reasonably suitable while officers reviewed the claimant's needs and sought an appropriate alternative. Moving him without identifying a suitable placement would have been irresponsible. The decisions were within an acceptable body of educational opinion and were not negligent.

Mummery LJ agreed, emphasising that the duty arose from the officer's special skills, assumed responsibilities and particular relationship with the child. Dame Elizabeth Butler-Sloss P also agreed. The appeal was dismissed unanimously.

1. Court of Appeal (Civil Division): The court dismissed the claimant's appeal and upheld the conclusion that the education authority was not liable in negligence.

2. Queen's Bench Division: Gibbs J dismissed all six allegations of negligence. The appeal was confined to the alleged failures following the breakdown of the St Nicholas placement and during the claimant's later placement at Sir Cyril Burt School.