Learning the hard way

What should you do if you think the education system is failing your child? Should you complain to the head teacher, should you look for another school or should you sue for damages? A growing number of families are trying the third of these options, thanks to a landmark ruling by the House of Lords this summer when the Law Lords ruled that if a child's prospects are damaged by negligence on the part of a professional, such as a head teacher or educational psychologist, then he or she should have the right to sue.

They were judging the cases of Mark Christmas, Richard Keating and a minor referred to only as "E", all of whom had tried to sue their local authorities for damages on educational grounds. Mr Keating says his development was impaired when Bromley council failed to find him a school place for periods totalling three years after he was excluded from school. Mr Christmas, who suffered from dyslexia and behavioural problems, says his head teacher in Hampshire failed to refer him for assessment of his needs and that delays in diagnosis affected his educational development and his career prospects. The parents of "E" say he suffered from learning difficulties which were not diagnosed and that he was placed in a school that could not meet his needs.

The lords decided the three could only sue if there was a clear breach by an individual who had a duty of care to them. Of course, the professionals in question will not have to pay up themselves if negligence is proved, but the local authority must do so as their employer.

The three are now pursuing their cases on these grounds, and although it may be another two years before they are settled, hundreds of others are preparing to follow them into the courts.

Robert Love, a solicitor specialising in education law, is pursuing about 30 cases where professional negligence in the education system is alleged. Many of them concern dyslexic children who have fallen behind with their education because their condition had been diagnosed too late.

But Mr Love warns that no one should expect to get rich quick in this way.

"It isn't a gold mine for anybody," he says. "Unless a recognised psychiatric disorder had resulted, for example clinical depression, the child would not be compensated for any emotional distress." Even where a child has grown up convinced that educational negligence affected his earnings later in life, he may find it difficult to win damages unless he can produce expert witnesses who will testify to what he might have achieved if he had received the proper care. It is very hard for someone earning pounds 10,000 per year to prove beyond doubt that they could have been earning pounds 30,000 if their dyslexia had been treated sooner.

It is not possible to sue if the professionals have done all the proper tests but these have proved inconclusive. But if, for example, an education psychologist dismisses a child's behavioural problems without even checking for specific learning difficulties, there may be a case to answer.

Although many parents who are planning to sue for damages are also taking their cases to the new special needs tribunal, they need not necessarily have done so. If they have received a formal statement of special needs and have accepted it, however, it may be harder for them later to argue that its provisions amounted to negligence.

The Independent Panel for Special Education Advice (Ipsea), which handles 1,000 special educational needs cases each year, says about one fifth of them now have an element of professional negligence which might lead to a damages case.

But John Wright, its administrator, says another aspect of the Lords' judgement could affect more than half the families it deals with. He believes it may be possible to take action not only against professionals who are negligent in their duties but against those who fail to inform parents of their rights.

For example, this often occurs when parents are encouraged to leave their child's school to seek a formal assessment of his or her special needs. But what many do not know is that local authorities do not have to respond to such a request from a school. If it comes from the parents, they have a legal duty to carry out the assessment. Ipsea is keen to bring a test case to court to clarify whether a professional can be sued for failing to give such information.

Mr Wright asks: "To what extent should people with responsibility for special educational needs be expected to know about parental rights and local authority duties? Could they be charged with negligence for not saying that though they don't think the child has a problem, the parents have a right to ask the local authority for an assessment?"

But while organisations such as Ipsea are keen to pursue these cases and to win redress for parents and children, others are keen to avoid an escalation of legal action over educational failures.

Paul Cann, director of the British Dyslexia Association, says no one's best interests will be served by growing antagonism between organisations like his own and local authorities.

"We are a bit in two minds because on the one hand it is opening an avenue for parents but on the other we don't want to be part of a developing confrontational atmosphere where everyone is suspicious and litigious.

"In these conflict situations everyone loses out, particularly the child," he says.

'He hung from an upstairs window, threatening to jump'

When Tom's reading lagged behind that of his classmates, his teachers told his mother not to worry. When he reached junior school and was still unable to read at all, however, she was told the only thing to do was to find a private tutor: there was no suggestion that her outer London education authority could help.

A tutor was engaged and immediately discovered Tom was dyslexic. His progress continued to be slow and when he moved to secondary school, he reached breaking point.

Anne says: "He couldn't cope. He hung from an upstairs window, threatening to jump. At that point I approached the authority and asked if we could have an immediate assessment."

An educational psychologist's report confirmed Tom needed help, and the family began to feel that the tide was turning.

"We were so relieved. We thought help was going to come. But within a couple of weeks, we had a letter from the chief psychologist overriding the report and saying they weren't going to assess his needs formally after all and that they could be met in school. We just couldn't believe it."

She then appealed to the Secretary of State, who directed the council to assess Tom. The assessment concluded that he did not need extra help. She appealed again, and finally the borough was ordered to send him to a specialist boarding school.

But by that time, Tom was 15.

Since leaving school at 16, two years ago, he has had a number of jobs. He now works in a shop but has to ask colleagues to write out receipts for him. Now Tom's solicitor has issued a writ on his behalf, alleging negligence by the local authority's officers.

Anne says she just wants to prove that they were negligent. "If he wins some money, that will be good," she says. "But the main thing is to prove how wrong they were."

'He was such a wretched, unhappy child. He didn't want to go to school'

When Ricky was two, he suffered from epileptic fits. Later, his parents realised that his speech was not developing normally and they were told this could have been the result of his earlier illness. But it was to be five years before a formal statement of Ricky's special needs was drawn up.

A local authority educational psychologist who saw Ricky before he started school said that he should attend a special school for children with learning difficulties. His parents did not agree, believing his intelligence was normal. Eventually, they were forced to comply. At school, he was bullied and his speech failed to improve.

His mother, Frances, says Ricky's behaviour became increasingly difficult. "He was such a wretched, unhappy child," she says. "He didn't want to go to school in the morning. I was so worried about him that it made me quite ill."

In January 1988, a second psychologist diagnosed learning difficulties. Again, Ricky's parents did not agree.

They took him for an NHS assessment which vindicated their view. In 1989, a formal statement of his needs was finally produced by the local authority, stating that he needed help for speech problems.

The family complained to the Ombudsman about their treatment, and he found the council guilty of maladministration on three counts: of failing to keep in touch, of failing to produce a statement and of failing to review his progress. The authority offered pounds 3,000 compensation. By that time Ricky's family had spent pounds 50,000 on fighting their case and on school fees. They hope to sue to recover the money.

Ricky now attends a boarding school for children with speech problems. His mother feels that, at 16, it is too late for him to regain the time he has lost.

"He has lost the most important years of his life. He still has no confidence. If he gets pounds 2m tomorrow, I will spend the rest of my life trying to get him right."

Names in these articles have been changed at the request of the families' solicitors.