ANYQUES­TIONS?

The Daily Telegraph - Saturday - - Family & Education - Liz Light­foot

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.

Write to Liz Light­foot, The Daily Tele­graph, 111 Buck­ing­ham Palace Road, Lon­don SW1W 0DT (email liz.light­foot@tele­graph.co.uk).

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