Our son has been at an independent prep school for four years and receiving extra help because of his dyslexia. When we raised concerns over his lack of progress, we were assured that he was doing well. Recently, we took him to an educational psychologist for an assessment and the results were worrying. We then discovered that he had been tested at the school and, far from improving, his age-related results have been getting worse, but we were not informed. We are considering a legal action against the school. What are our prospects of success? I hesitate to give legal advice but two solicitors from the law firm Bates Wells & Braithwaite gave some pointers at a recent conference organised by the Independent Schools Council. There is no case history on claims of “failure to educate” in independent schools, possibly because of confidentiality clauses in any settlements there might have been, but claims in the state sector have established that schools are under the statutory and common law “duty of care to educate”. This education has to be “suitable to ability, aptitude and special educational needs”. Independent schools are also under a contractual duty “to exercise reasonable care and skill” in respect of the child’s education and welfare.
The solicitors advised schools to include a disclaimer in their contracts with parents making clear that the prospectus did not form part of the contract and said they should state precisely what the school did and did not undertake, for example: “We are not expert at the formal diagnosis of special needs.” Professionals, such as educational psychologists, owe a duty to exercise their skills with reasonable care. Teachers are under a duty to take reasonable steps to respond to a pupil’s educational needs.
Many of the failures to educate pupils in the state sector failed because courts held that the duty of care had not been breached. It was not enough to prove that there had been poor teaching generally but probably required “a manifest incompetence or negligence comprising specific, identifiable mistakes”. The solicitors said that the standard of care would probably be the ordinary skill of a competent professional. There were also many reasons why a child might under-perform, such as home environment.
You should check whether the contract with the school expressly refers to the tests it agrees to carry out and what it commits to do about notifying parents of the results. My daughter was asked to leave a prestigious girls’ independent school after poor AS results, which I am sure were caused by disruption in her home life. The school said her actions were preventing her from making use of the resources and facilities it could offer. Only in the past few weeks has the school admitted that it is, in fact, its policy that students who do badly in the AS exams must leave. Can I sue the school? Bates Wells & Braithwaite said the duty to educate did not extend to areas where the head teacher’s reasonable discretion would apply, such as disciplinary sanctions and where the school reserves certain rights – for example, on entry requirements to the sixth form. Schools should clearly state these areas of discretion and also have fair procedures that may require prior communication and consultation with parents before the removal of their children.
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