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The first attempts at imposing liability on council education teams for their pupils' educational welfare were made...
The first attempts at imposing liability on council education teams for their pupils' educational welfare were made almost 10 years ago. One Law Lord predicted there would be a rush of 'gold-digging actions bought on behalf of under-achieving children'.

Since then the legal debate has swung back and forth, finally being concluded in the House of Lords' decision on Phelps v Hillingdon LBC, involving an educational psychologist, in July 2000.

The Lords' final determination, which gave pupils the right to financial compensation where those responsible for their education failed to provide acceptable standards of care, was greeted with a degree of resignation by councils who anticipated an unmanageable flood of cases tying them up in expensive and protracted litigation. But this has been the only successful claim made - why?

In the first instance claimants face funding difficulties. Public funding for personal injury actions has been withdrawn. While claims involving the services of educational psychologists may be interpreted as clinical negligence - which still attracts public funding - claims against head teachers, teachers or council officials cannot.

With no-win, no-fee proving unattractive on account of prohibitive insurance premiums and high, front-loaded costs this has been enough to stifle many solicitors' appetite for this type of claims. But more recently there has been a rise in the number of such claims proving successful in attracting public funding.

Where claims have been progressed establishing a breach of duty has been a significant hurdle to overcome requiring complex expert evidence, after which the claimant must still show cause and effect. Then they must prove material loss and it is still not at all clear what compensation can be claimed.

The value of those losses is often in the realm of conjecture, but on any calculation these claims are not of exceptionally high value. Ms Phelps herself was awarded£42,000, but claims are often brought for significantly less.

While there has not been the anticipated flood of claims, they are being brought in enough numbers to be a drain on legal costs and teachers' time. Inevitably these costs will sometimes

be disproportionate to the value of the claims made.

However, there is still good reason to resist the temptation to routinely settle these claims. In July 2000 many lawyers proclaimed the debate on educational negligence was over. But the Lords left many important areas uncertain. In that sense the debate has yet to begin and, while the uncertain threats of judicial scrutiny and a compensation culture still hang over councils, there is much to recommend the firm defence of claims

for educational negligence.

Mark Blois

Solicitor, education team, Browne Jacobson

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