Marr v The Mayor and Burgesses of London Borough of Lambeth & Ors

This is a claim for damages for negligence in educational provision brought by a young man who is now 23 years old. He was born in August 1982 and reached school leaving age in the summer of 1998. He claims that the negligence occurred at each of the three schools which he attended from the age of 8 until his permanent exclusion in February 1996. Thereafter local education authority officers were negligent in their failure to ensure that he stayed on the waiting list for Lambeth BC’s Pupil Referral Unit. Eventually, in June 1997, he obtained a place there and remained until the summer of 1998. The gravamen of his case, although the precise way in which it was put varied with the particular defendant, was that he had special educational needs related to his literacy difficulties. These had not been recognised or dealt with in a reasonably competent way. As a result he was functionally illiterate, unable to pursue the type of further education or employment which his other abilities would have permitted.

The defendants denied negligence, causation of loss or its existence. Some of the claims were not justiciable and were in essence an attempt to mount a claim for damages for breach of statutory duty in another guise. They pointed to his disruptive behaviour from an early age, and other factors which they said did or could have caused his problems in education, other than his literacy difficulties and their allegedly faulty resolution.

The allegations and the defences to them mean that an examination of Andrew’s schooling from the start is required. Much of what happened is beyond his memory or recall, and his mother, who gave evidence, could not have known of many events which happened because she was not there. The recollection of the teachers was variable and not all those who taught him or dealt with him were called or even identified. This is a case in which much has to be gleaned from the schools’ records, which themselves are not complete.

It will be necessary, however, to set out the educational background and evidence in some detail for the many allegations over the years and the responses to them to be understood and resolved. At this stage an overview of the claim will suffice.

Andrew was an August child which meant that he was very young for his class throughout his school career. He was at Archbishop Sumner’s School in Lambeth from September 1987, when he was just 5, until the end of the academic year in 1990. The pleaded particulars alleged negligence from 1987 but made no specific allegations against that school. The first expert’s report alleged negligence, seemingly, from the very start of Andrew’s schooling. But it became reasonably clear that no allegation of negligence was being pursued in respect of Andrew’s education there.

Then in September 1990, aged just 8, he went to Vauxhall Primary School, an LEA school run by Lambeth LBC. There is but a single allegation pursued in respect of Andrew’s education there: it was negligent on the part of the three form teachers who taught him until he left in the summer of 1993, and the Headmaster, not to refer Andrew to the Lambeth LBC Educational Psychology Service.

Andrew started his secondary education in September 1993 at Archbishop Tenison’s Grammar School and stayed there until he was removed by his mother towards the end of November 1994, following temporary exclusion because of his behaviour on a school trip, and in order to avoid what appeared to be imminent and inevitable permanent exclusion. There are many allegations of negligence relating to his time there. These in summary are that the Special Educational Needs Co-ordinator (SENCO), and certain other teachers failed to assess Andrew’s special educational needs, and to identify and put in place strategies for helping him to overcome his literacy difficulties. They too should have referred him to the educational psychologist and when a referral was obtained in somewhat mysterious circumstances, the psychologist failed to keep records and the school failed to follow up what might have been advised by him. They failed to pass on Andrew’s records to his next school.

His mother said that she had been told that Lilian Baylis School had good facilities for those with special educational needs. Andrew started there in December 1994. He was now 12 years old. At about the same time, he started going to an outside group, the 409 Project, for help with his reading and writing. He was temporarily excluded from the school in November 1995 for 12 days, and, aged not quite 13 ½, he was permanently excluded in January 1996, a decision upheld by the Governors in February 1996. These exclusions were the result of his behaviour. The Appeals Committee upheld the exclusion in April 1996.

There were many allegations of negligence made against the staff at this school. They failed to identify his special educational needs, to put in place plans for remedying his difficulties, to procure an early referral to an educational psychologist, to take heed of a report on his difficulties and strategies for dealing with them from the 409 Project, and to obtain his records from Archbishop Tenison’s School.

Andrew was seen by a Lambeth LBC educational psychologist in December 1995 who reported on his needs in February 1996, making recommendations on strategies for dealing with his literacy difficulties, and to a limited extent, his behaviour.

There were no vacancies at the Lambeth LBC Pupil Referral Unit, which was intended to cope with those who were excluded from school or otherwise unable to attend mainstream school e.g. because they were pregnant. Lambeth LBC told Ms Marr in April 1996 that she had to choose a school for Andrew now that he had been permanently excluded. He was however on the waiting list for a place at the PRU.

But at the beginning of May 1996, he was removed from that list because a place was said to have become available at the London Nautical School. Although that place was only available for a day or so at best, Andrew was never put back on the PRU waiting list. Following press publicity given to his attempt to vote in the 1997 election, inspired by Labour’s “Education, Education, Education” slogan, he was told in May 1997 that a place might become available at the PRU and in June 1997, he started there. He left in July 1998, the end of his full-time education.

Between April 1996 and June 1997, Lambeth LBC had provided Ms Marr with information about vacancies in schools in Lambeth and in neighbouring authorities but for various reasons which it may be necessary to examine, none were taken up.

The allegations of negligence during this period are against Lambeth LBC officials, two of whom are named. It is claimed that the removal of Andrew’s name from the PRU waiting list and the failure to reinstate it were negligent, as was Lambeth LBC’s failure to ascertain whether Andrew had re-entered mainstream education and to act on the fact that he had not.

There are no subsequent allegations of negligence. Andrew has tried a variety of jobs and to further his education in various institutions but at each stage has come up against stumbling blocks. He says that the major and truly significant one has been his lack of literacy. A short prison sentence has helped him, in his words, to “wise up”.

Proceedings were issued in August 2003. Damages are sought for the failure to alleviate Andrew’s specific learning difficulties put at somewhat over £15,000, for his loss of earnings as a lump sum at £50,000, and for the costs of remedying the deficiencies which should have been remedied earlier.

The pleaded particulars of the allegations of negligence were very vague and the answer to the Part 18 Request largely recycled those vague particulars. These particulars were refined in a more helpful document which Mr Westgate for the claimant produced at my request on the second day of the hearing and in his questions and submissions. Allegations against an Educational Psychologist, it was accepted at a very late stage, could not be sustained. The factual allegation that Andrew had language or speech difficulties was maintained but the allegation that it was negligent of the schools and Lambeth LBC not to have referred him to a speech therapist was abandoned. The claim that Lambeth LBC was negligent in not educating Andrew in a mainstream school between February 1996 and July 1998 was abandoned, as was the allegation of negligence in the teaching at the Pupil Referral Unit.

It is not difficult with the benefit of hindsight to look back at Andrew’s education and conclude that something must have gone seriously wrong at a number of stages for a boy to be permanently excluded at 13½ years old, to be then without education for over a year and to emerge from the educational system functionally illiterate. But that does not answer the questions to which this claim gives rise. There is a legal framework within which it must be decided. To that I now turn. It was largely not in dispute.

I start with the statutory provisions governing special educational needs. While Andrew was at primary school, the relevant provisions were ss 7 and 8 of the Education Act 1944 as amended by the Education Act 1981. There was a statutory assessment process in the Education (Special Educational Needs) Regulations 1983, S1 No.29. This regime is summarised in X v Bedfordshire CC [1995] 2 AC 633 atpp 756-758 per Lord Browne-Wilkinson. I do not need to repeat it.

The regime changed with effect from 1^st January 1994 when the Education Act 1993 came into force, at the start of Andrew’s second term at Archbishop Tenison’s School. The relevant aspects were later re-enacted in the Education Act 1996. The relevant Regulations remained the Education (Special Educational Needs) Regulations 1984 SI No.1047.

Under either regime, throughout the relevant period a child with special education needs was defined as a child with a “learning difficulty which calls for special education provision to be made for him”. A child has a learning difficulty if, among other things, “he has a significantly greater difficulty in learning than the majority of children of his age”; Education Act 1993 s.156. “Special educational provision” is additional to, or otherwise different from, the educational provision made generally for children of that age in maintained schools; s156 of the 1993 Act which replicates the provisions of the 1981 Act.

S161 of the 1993 Act imposed a duty on governing bodies and LEAs to secure, using their best endeavours, that special educational provision is made available to meet the special educational needs of pupils, to secure that where the Head Teacher has been told of a pupil’s needs by the LEA, those needs are made known to those who are likely to teach the pupil, and to secure that teachers are aware of the importance of identifying and providing for those with special educational needs.

S165 imposed on LEAs the obligation to identify those for whom they were responsible who had special educational needs and to determine what special educational provision was called for. There are then extensive provisions for the assessment of special educational needs and the production of a statement of those needs. These provisions replicated much of the 1981 Act.

Under the Education (Special Educational Needs) Regulations 1984 SI 1994 No 1047 where an assessment was undertaken as a result of a parental request: a) the authority had 6 weeks to notify the parent whether or not they proposed to make an assessment (Regulation 11 (3); b) the authority had a further 10 weeks from that notification in which to complete the assessment (Regulation 11(5); c) the time limits could be extended where there were exceptional circumstances.

Guidance was provided by Government on the application of these statutory provisions, first in 1983, second in DFE Circular 22/89 and last in the Code of Practice issued under the 1993 Act, in force on 1^st September 1994.

Mr Westgate for the Claimant put some weight on passages in Circular 22/89. Every school should have a teacher designated to help colleagues on the provision for children with special educational needs; the classroom teacher was in the key position to recognise difficulties and to try out different approaches and, where interventions did not seem to work, further investigations would be required. Full records should be kept by teachers of their pupils’ progress. Paragraph 23 was of particular importance because it emphasised that children stood the best chance if their needs were identified, assessed and provided for in their early years at school. Arrangements made for children should allow for the progressive extension of professional involvement from class teachers to more specialist teachers, and then to specialist professional outside assistance; but parents should be closely involved too.

Mr Westgate referred extensively to the 1994 Code. It pointed out that it would be unrealistic to expect schools to have in place on 1st September 1994 procedures matching the Code’s guidance but they should have regard to it and plan for meeting special educational needs in the light of it. Schools should consider their current practices in its light. Its fundamental principles were that special educational needs of pupils should be addressed, that pupils with such needs also needed access to a broad and balanced education including the National Curriculum. Most of their needs would be met in the mainstream and without statutory assessment or statement. Partnership between parents, pupils, schools and LEAs was vital.

The 1994 Code identified a five stage process to which LEAs and school governing bodies had to have regard. They were not an automatic nor a necessary progression. The stages in summary were: 1: class or subject teachers identify or register a child’s SEN and after consulting the SENCO, take initial action; 2: the school’s SENCO takes lead responsibility for gathering information and for co-ordinating the child’s special educational provision, working with the child’s teachers; 3: teachers and the SENCO are supported by specialists from outside the school; 4: the LEA considers the need for a statutory assessment and, if appropriate makes a multi-disciplinary assessment; 5: the LEA considers the need for a statement of SEN and, if appropriate, makes a statement.

A register of all children with special educational needs should be kept. Their needs, the action taken and the outcomes should be recorded.

Of particular note, submitted Mr Westgate, was the advice in paragraph 3.61 that LEAs should consider whether there was evidence of severe emotional or behavioural difficulties such as disruptive behaviour, lack of concentration, or frustration or distress by the pupil at his difficulties. They should be alert to see if those difficulties were more evident in classes involving literacy than in others. Paragraph 3.65 noted that such behavioural difficulties might have other causes but be exacerbated by the school environment.

There was a duty owed by LEAs to children excluded from school under s19 of the Education Act 1996, which replaced s298 of the Education Act 1993. It was to make arrangements for the provision to them of suitable full or part time education, either at a school, or elsewhere. The schools established for such a purpose were “Pupil Referral Units”.

I turn to the tortious basis for the claim. Much of this was agreed. It was agreed that no action for mere breach of the various statutory duties which I have adumbrated lay against the LEA; no action could lie for a failure to conduct a statutory assessment or to provide a statement of special educational needs. Nor was a duty of care owed by an LEA in respect of a decision or omission to carry out such an assessment; X v Bedfordshire CC, above.

Individual teachers and in certain circumstances employees of the LEA owed a professional duty of care to the pupil. Mr Warnock for the Defendants correctly described the claim as a species of claim for professional negligence. The correct test to be applied for a breach of that duty was the Bolam test; Phelps v LB Hillingdon [2001] 2 AC 619. That is to say, a claimant had to show that no competent teacher, or other person who owed a duty of care to the pupil, would have acted properly in that way; i.e. the acts or omissions fell outside the range of behaviour accepted, on a logical basis, as proper or reasonable in the circumstances by responsible teachers or the other groups said to owe a duty of care.

The law did not countenance actions for negligence based on a child’s claim that it did not receive an adequate education at school or that a particular teacher had failed to teach properly; Lord Nicholls at p667 H-C. Failure to follow the Codes was not of itself negligent or sufficient proof of negligence. Negligence could be demonstrated by manifest incompetence or specific identifiable mistakes, and negligence should not be found too readily. Those are words of emphasis rather than definition.

However, the existence of a statutory scheme which sought to address a particular educational need did not of itself preclude a duty of care arising. A Head Teacher or teaching advisers could owe a duty of care: if the Head Teacher realised that a pupil was under-performing, he owed a duty to take such steps as a reasonable teacher would consider appropriate to try to deal with such under-performance. If he advised the parents, he should exercise the skills and care of a reasonable teacher in giving that advice. The same applied to an advisory teacher brought in to advise on the educational needs of a specific pupil; X v Bedfordshire CC, above, p777.

An education officer might also owe a personal duty of care where, in the performance of his statutory duties, he entered into a relationship with or assumed responsibilities towards a child, depending on the application of the tests, foreseeability of damage, proximity and reasonableness. That duty would be to avoid decisions which were plainly and obviously wrong; Carty v Croydon LBC [2005] EWCA Civ 9, [2005] I WLR 2312.

The Claimant had to prove that any identified negligence caused loss. The breach of duty must have made a real difference to the educational position of the Claimant. There is room here for debate over the loss of a chance and the effect of multiple breaches by different Defendants which is best left until the evidence has been dealt with. To that, I now turn.

Ms Marr, who stopped her voluntary community work when she had children and later became a Tenancy Services Officer, is now studying for a diploma in psychotherapy. In her oral evidence, she described the family circumstances. Andrew has a sister, a year younger than him, who did well at school, learnt quicker and was more advanced. She told me that with hindsight she could now see that Andrew was late in talking, possibly around nursery time. His sister caught him up, and overtook him in talking but at the time she could not tell if his sister was advanced or if Andrew was slow, but the difference between them was apparent at Archbishop Sumner’s School.

Andrew had three half brothers, now aged 14, 12 and 4. The two older boys were now doing well at Archbishop Tenison’s School, having had special support at primary school for literacy difficulties.

Andrew’s father, Mr Findley, a builder, left the home when Andrew was about 2-3 years old, according to Ms Marr; it was when he was about 5-6, according to Mr Findley’s oral testimony: there had been no great arguments, they had drifted apart. Ms Marr said in cross-examination that his leaving had been for the best because they argued. Andrew, she said, would have been aware of tensions; there was shouting but it was at night. They had argued also after he had left. He had maintained a close interest all the time in Andrew’s education, and had always lived nearby.

Ms Marr’s partner and the father of Andrew’s three half brothers was an alcoholic, and verbally abusive to her, she agreed. She and Andrew denied that he had been violent to her.

Although no allegations were formally pursued in this litigation against Archbishop Sumner’s School, the impact on Andrew’s future of what happened there and the significance attributed to its failings by his expert, mean that his life and education before arriving at Vauxhall Primary School have to be considered. This inevitably involves oral testimony of events some 15-20 years ago, which is far from complete.

Andrew could not remember anything specific about Archbishop Sumner’s School. Ms Marr was not aware, she said, of any problems before Andrew went to Vauxhall Primary School. In cross-examination of Ms Marr, by reference to the contemporaneous documents from Archbishop Sumner’s School, a fuller and to a degree different picture emerged. Although the first year’s reports contain nothing of any particular significance beyond a concern about behaviour, the reports at the end of his second year in July 1989 commented that “lateness has significantly hampered Andrew’s progress.” Ms Marr accepted that that would have been her responsibility; she remarked on the difficulty of struggling with two children, though both went to the same school. The 1989 reports also show that Andrew had poor concentration, was easily distracted, lacked self-motivation, and was hampered by poor reading and language skills. The end of year reports for July 1990, his last year there, are in the same vein: he was often very late, he was easily irritated and then showed little respect for materials, equipment or other children; he needed to control himself a bit more and pay less attention to the disruptive children in the class. He had made some good progress and his reading was improving steadily but could be better if he put his mind to it. A GWR score in a May 1990 reading test showed a reading age of 6, when he was 7 years 9 months.

I see no reason to doubt the accuracy of those observations by the teachers, though none gave evidence. They now indicate emerging problems, potentially of some depth.

Andrew moved to Vauxhall Primary School in September 1990. The Headmaster and the three class teachers, who took Andrew during his three years there, were alleged to have been negligent in not securing a referral to Lambeth’s Educational Psychology Service. The claim is that this would have led to a programme of support under the direction of the service and if necessary to a statutory assessment by July 1993.

Ms Marr first became aware of Andrew having problems at Vauxhall Primary School, in early 1992 when she received letters of complaint from the school about Andrew’s behaviour. She put this down to his learning difficulties because she was trying to help him with his reading at home and he could barely manage words like “and”. He was obviously different in his reading skills from his sister. She told the school of her views.

Ms Marr was aware that Andrew had been observed by a behaviour specialist but did not know that he had been referred to the Rectory Grove Behaviour Centre and had received other behavioural support, until she saw the papers in this action. She was not aware of the school speaking to her about unauthorised absences by Andrew. When she stopped taking him to school, she would watch him from the house until he arrived there. She remembered Andrew saying, when she tackled him on his absences, that he took time to get from class to class in a big school. Ms Marr did not think that he was truanting which would have concerned her. Her evidence concerning this time was fairly sketchy.

Andrew himself could not remember receiving any special support at Vauxhall Primary School, and remembered being happy at his primary schools; they were fun. He remembered some of the teachers. The maths teacher hated him and shouted at him. Andrew accepted that he himself had been rude and aggressive. He could not remember going to Rectory Grove because of his behaviour, but said that he would follow other children who were not paying attention when he could not understand the work. He practised reading at home and tried cartoons, football magazines, comics and sticker books. He lied to his mother about why he was late when she asked; he used to go to a friend’s house before school when he took himself to school at nine years old.

Mr Findley said that Andrew had seemed to change after he started at Vauxhall Primary School, becoming less happy and receiving complaints about his behaviour.

The school records again showed a fuller and to some extent a different picture. I do not find this surprising in view of the passage of time. But I give considerable weight to the contemporaneous documents, which would not have been produced with any ulterior or self-protective motive in mind. Ms Marr accepted that she got the reports, and had not put any comments in the box for parent’s comments.

The December 1990 report refers to a preference for maths over language, and records Andrew as saying that “his reading is “rubbish” because he never tries. He finds it boring because it is so hard.” It noted that he entered school “totally lacking any confidence in himself as a reader” and refused to read at all. He had begun to read with one teacher, was limited to two or three letter words but was beginning to make progress to the point where he was beginning to develop “some fluency” and would attempt to build up words. The report said that he would continue to need a great deal of additional support for his reading, great patience, sensitivity, encouragement and above all individual attention. He enjoyed writing and tried but also rushed his work. He could be lucid and clear as a speaker but if angry or upset would cease to communicate and would try to resolve things in a physical way. Andrew was said to be extremely demanding of adult time and attention, wanting it immediately he asked for it and reacting badly if it was not given. He was described as full of contradictions.

Andrew is recorded as saying that he was badly behaved because it was fun, though obviously his degree of insight or truthfulness to a teacher for a report on such a subject would have been limited. The teacher noted that he did not accept blame for his actions if he got into trouble and that his mother felt that he was easily led by others.

The end of year report for July 1991 said that he had made a lot of progress particularly in reading and in his behaviour. He needed to mature in his relationships with everyone to realise his potential. It said that he was a bright child, who sought constant reassurance. He needed to concentrate on his work rather than constantly seeking confrontations. He was receiving behavioural support at the Rectory Grove Centre, which would continue into September and October 1991. Its purpose was described as being to help him to foresee the consequences of his actions and to accept some responsibility for them.

The reports of July 1992 confirm that Andrew did receive support from the Rectory Grove Centre into the academic year. His school attendance was described as good but he was often late. There are various themes running through the subject reports: his need for one to one teaching, lack of confidence, poor concentration and easily distracted, lack of willingness to continue if help was not immediately to hand from the teacher, lack of care, argumentative and immature with teachers and pupils, often over trivia. The language assessment referred to his good vocabulary. He tried hard with his reading but found it difficult; he needed help with word recognition but was hindered by his lack of confidence eg to try new words. He was able to read in small groups. His writing, spelling and presentation were poor but with one to one support and constant reminders he could produce good work.

Andrew’s final reports of May 1993 at Vauxhall Primary School said that he was marked absent without authorisation for 26 out of the 304 half day sessions, although it is possible that he attended part of them arriving after the registration had been concluded. He was “very unpunctual”, arriving between 25 minutes and over an hour late. His class teacher said that he was a constant talker, gossiping and often shouting, and at the start often rude and a show off, though that had declined over the year. In discussions he was impatient and bossy though in private reasonably pleasant to talk to. He was often in trouble as he lacked self-control but owned up and was receptive to what he was told and responded to the punishment.

He was “fairly interested in reading and can read and listen silently to stories. He is quite fluent but prefers reading simpler books.” He looked for cues to attempt words but lacked concentration. He was quite confident with writing but often did not bother, preferring to talk until threats forced him to work, which would then be rushed and poor. He was capable of better. He rarely came for help. Other subjects show a picture of good potential but of him lacking patience or concentration, rushing work and being messy. His interest varied somewhat with the subject, history interesting him more than geography for example. It is noticeable that his reading or writing was not said to be holding back more those subjects which would require the greater literacy skills.

The class teacher summed up:

It would appear that it was while Andrew was at this school that his mother formed a relationship with another man who came to live with them and the first of the children from that relationship was born, in 1991 or very early 1992.

Mr Frolish, who was the Headmaster of Vauxhall Primary School while Andrew was there, and taught there for 26 years until 2002, gave evidence. He described the school. It saw itself as an open school to which parents could come with their concerns; it was part of the community. It catered for a very deprived catchment, illustrated by the proportion of those who took free school meals (60%-70%), a good ready measure of social deprivation. There were some 220-250 pupils, mostly at 25 to the class, each with its own teacher for the year for most subjects. The pupils came from diverse backgrounds, and many had English as a second language, but the social and educational range was not broad.

He was responsible for overall special needs provision with the class teachers. There was no specific SENCO because Andrew was there before such a post was established and so individual teachers were left to identify and provide for the individual needs of the children. The school had its own policy for the early identification and meeting of special needs by teachers: initially the class teachers would pick up signs of concern, concerns would be noted by teachers, strategies would be discussed by him and the teacher, with input from all the teachers because there was a lot of colleague support. They would look at outside support including the Educational Psychology Service (EPS). Teachers would plan for all the pupils’ needs and that would include special provision in class for those who needed it. They would also gear the lesson to meet the mixed ability of the class. They would have the previous school’s records. The policy was not written down but derived from practice.

The main outside resources then available were the EPS, counselling, the Rectory Grove Centre and psychiatric services. There were a fair number of small units. It was for the teacher to decide whether outside assistance was relevant and whether to seek to use it. There was no reluctance to use those resources. They had quite effective relations with those bodies.

Mr Frolish remembered Andrew. He considered that the school reports, detailed and careful as he thought them to be, showed that confidence seemed to be the key issue: Andrew had the ability so long as he made the effort. Behavioural problems were getting in Andrew’s way at times but Mr Frolish thought that working with Andrew would alleviate them. None of the teachers seemed to feel that he needed extra provision for education: “we all believed that it was possible to deal with Andrew within the school, helping him to try and manage himself”, according to his Witness Statement. They were confident that they could support him within the school’s resources. They had experience of successfully turning around pupils excluded from other schools. There was no Individual Educational Plan for Andrew.

An important issue was Andrew’s relationship with adults: taking responsibility and responding to expectations of appropriate behaviour. The purpose of sending him to Rectory Grove Centre was to assist with behaviour management but because this took place during school time, there was a limit to how much it could be used. There had to have been a referral to the Centre because it served the whole of Lambeth but he could not find it now. It was used for persistent low-level behaviour problems; playing up in class and around the school was getting in the way of Andrew’s education. He was spending time on things not conducive to learning.

Mr Frolish agreed with Mr Westgate that behaviour can reflect learning difficulties but did not see that as the real problem here. He said “Andrew could engage in activities he enjoyed, and at other times he did not because he was having fun. We did think that there would be frustrations because of his reading and writing, but we gave him time in the classroom to learn the basic skills. We did not leave him to his own devices. Although his reading and writing was at a low level for that school, his behaviour was the main cause of his problems in learning, rather than his reading and writing.”

Mr Frolish accepted that, on its own, the GWR score in May 1990 from Archbishop Sumner’s School, would be a cause for concern but that was a relative matter: there were quite significant numbers who were behind their chronological reading age. Part of the role of the school was to continue with teaching reading and writing. There would have been school helpers at the start of Junior School and quite a lot of resources were put into reading and writing: people, time and materials. There would be two helpers among four classes: hearing readers, working in groups and helping in general activities.

The December 1990 report showed that Andrew had a very low level of literacy and that confidence was a very big problem. That had been identified and was being followed up. So too was his confrontational behaviour, on which he received counselling from the teacher and the referral to Rectory Grove as a follow on. That referral would also help him to speak and express himself constructively; this too was addressing part of his problems. He was verbally quite boisterous. He did seem to be bright but not to be fulfilling his potential. Rushing was part of his nature and not only in reading and writing; he just wanted to get work over.

After the end of the referral to Rectory Grove, it would have been necessary to monitor progress and, if necessary, to seek advice from the Educational Psychology Service as to other strategies which the school could use. The reports of July 1992, after the end of the referral in Autumn 1991, showed progress as Mr Frolish read them. Andrew’s reading had improved and his behaviour was being managed in school. Two to three years was spent trying out strategies. It was his silly behaviour which was holding him back. There was no suggestion at the time that there should be a referral to the EPS, because the school was developing strategies based on Rectory Grove, for him to control his temper.

At the start of the 1992-3 academic year, Andrew did the London Reading Test E, in which he scored 14 out of 43. His expert put some weight on this. Mr Frolish told Mr Westgate that this score was below average, but good for the lower third in the school. It was not a good test of ability for someone who lacked confidence because part of it was “quite scary”: that part is not so much a reading test as a comprehension test; (at least one question is ambiguous and was correctly answered by Andrew on one reading but he got no marks). Mr Frolish said that one should look at the overall picture and that was of potential. Andrew did not stand out as failing or bad, and providing help with work and presentation was a sensitive response.

There was still no suggestion, said Mr Frolish, that the EPS should be involved. The EP came regularly to the school but Mr Frolish was unable to say whether or not Andrew’s name came up, though strategies might have been discussed. Andrew could have been referred but it is difficult to know what more there could have been: his were quite experienced teachers who had shown that they could make progress and carry out different strategies. A reference to the EP was not necessary if Andrew was making progress. Often, if he did speak to the EP, the advice would still mean that all the work was done in class and was not essentially different from what the teachers were doing anyway.

There was an old style remedial class for reading and writing. It was a tutorial one afternoon a week delivered externally, with one teacher per group. That was not considered for Andrew by Mr Frolish because Andrew was in the mainstream and was receiving all the support he needed. Attendance at it would mark Andrew out as different.

The entry information at Archbishop Tenison’s School in September 1993 showed a reading test producing a reading age of 6 ¾. Mr Frolish said, in response to the point that that showed no great progress since the May 1990 GWR, that different tests produced different results. The teachers’ reports were of progress: there were reading and writing difficulties but in Mr Frolish’s assessment, if Andrew’s behaviour could be dealt with, he could develop because he was bright. This was not a question of placing responsibility on Andrew but of working with him on his behaviour through Rectory Grove, and that then boosting his confidence in class work.

The revised allegations of negligence, made in respect of Andrew’s education at this school, in summary are that Revd Reid the SENCO, Mr Venn of its SEN Department, the Head Teacher and others who remain unidentified, failed to identify clearly or assess Andrew’s special educational needs and to implement a programme of education directed to those needs, ensuring that individual teachers were aware of those needs. The Head Teacher and other unnamed teachers negligently failed to continue or include Andrew in a Year 7 reading project, or its second phase or create or include Andrew in a basic skills project envisaged by Revd Reid in a report on special educational needs. Revd Reid negligently failed to refer Andrew to the EPS before May 1994 and to follow up the assessment carried out.

There were further specific and new allegations that the Head Teachers, and others had negligently required Andrew to read out in class, and to copy homework instructions from the board. They had also negligently failed to forward his file to Lilian Baylis School.

If these failings had not occurred, it was claimed that Andrew would have received a programme of education, along the lines described by the 409 Project, directed to his literacy and that if that had not yielded sufficient improvement, he would have been subject to statutory assessment. All this would have improved self-esteem, behaviour, avoided exclusion, and advanced his employment and further education prospects.

It was also alleged that the Lambeth LBC EP, Karl Brooks, was negligent during Andrew’s time at Archbishop Tenison’s in failing either to record the results of his assessment or to draw them to the attention of his successor EP for him to complete. Lambeth LBC was also negligent in losing any record which Karl Brooks had made.

Mr Westgate contended that if Mr Brooks had not been negligent, an assessment would have been completed and acted on in May 1994 and would at least have recommended what was later recommended by Ms Afuape in February 1996, and a statutory assessment as in July 1997 would have been made by the start of Year 8, September 1993. This would have made a real difference to Andrew’s literacy skills, self-esteem and behaviour, probably avoiding his exclusion.

Andrew started at Archbishop Tenison’s School in September 1993, after his mother successfully appealed against the refusal of a place. She did not want him to go to Lilian Baylis, his nearest school, because of its bad reputation. She had an interview with Reverend Reid in March 1993; he was the SENCO at Archbishop Tenison’s. She could not take a sample of Andrew’s reading or writing, she said, because he could neither read nor write. She told Revd Reid that Andrew’s reading and writing were very poor as his notes record. They also note that Andrew’s parents, for Mr Findley went as well, said that there were behavioural problems at school. He recorded them as blaming the school but Ms Marr denied that: she said that the school had not recognised Andrew’s learning problems. Revd Reid also recorded “obvious tensions” between Andrew’s parents. He promised to send them a suitable reading list, as he recorded, but never did so.

Mr Findley’s brief evidence about this school tallied with Ms Marr’s account of the interview. He said that he should have received all the letters and reports as well as Ms Marr but he never got them direct from the school; he only saw them because Ms Marr showed them to him. He had meetings with the teachers there but could remember nothing about them specifically.

Ms Marr had a further meeting with Revd Reid, at which Andrew was present, before Andrew went to the school, for the purpose of asking that Andrew be not asked to read out loud in class. Andrew could remember that meeting because of his anxieties about not being able to read or write and being asked to read out loud by the different subject teachers whom he would now have. This was the first school about which Andrew could remember anything of substance, and that was not much. Revd Reid had said that he would make sure that all teachers knew.

Ms Marr said that they were promised, probably by Revd Reid, one to one tuition but that did not happen; there were just occasions when Revd Reid took Andrew out of class and walked around with him. Andrew remembered that Revd Reid had taken him out of lessons and just walked around talking to him: he told him the names of trees, they talked about everyday life, went to a sweetshop, and discussed his behaviour but it was not teaching nor did they discuss his reading or writing. It happened once or twice a week and then just stopped. He could not remember how it had started.

Ms Marr remembered something about a reading scheme which helped Andrew in his first year but that seemed to have stopped. Andrew could not remember it at all. He remembered reading at School, with ticks put into a book but he would only read alone with a teacher because he felt embarrassed. No one discussed with her the Special Needs Report Forms completed by the school in December 1993. She said that Revd Reid had promised extra support for Andrew after the summer exams but none was forthcoming. Andrew could not remember any extra help. He used to ask for help from whoever was teaching him when they had time to come round.

Ms Marr said that the school had failed to keep its promise that teachers would write down for Andrew what homework he should be doing, because he could not copy it down in time or write down what he was told. He remembered his difficulties in trying to write down his homework, and his efforts to memorise it instead. They wrote his homework on the board but he agreed that he never asked for extra time to write it down. He had wanted to do homework and to get good GCSEs in maths and science, but algebra and the necessary reading did for his maths at secondary school. This seemed to me very much an observation made with the wisdom of hindsight.

Andrew’s lack of reading skills now affected other subjects, such as French as it became less oral repetition and more reading. Maths, at which he had been good at Vauxhall Primary School, slipped badly because so much of it now also involved reading. She drew this to the subject teacher’s attention and to Revd Reid’s. Andrew described having to do a lot of copying from the board or from books, writing down questions or answers, having to do research. He said that he could not do this and so he just gave up. He started missing lessons because he could not do the work. He misunderstood instructions in a geography lesson; in cross-examination he said that the teacher thought that he was “taking the piss” which made the teacher angry; he then misbehaved regularly and was permanently excluded from geography. He had made a good start at geography before that.

There was one occasion when Andrew was asked to stand up and read in class; it happened not long after Andrew arrived, as Ms Marr recollected. In fact it happened in May/June 1994, as the contemporaneous documents show, and so that incident could not have affected much of his behaviour, and none of his behaviour before then. Andrew was distraught nonetheless and the school apologised to him and sent a note around reminding teachers not to ask him to read out loud in class. He remembered it as being a regular teacher, seemingly in an English class: the teacher tried to help him but his class mates laughed and Andrew walked out and did not return to English classes for some time. When he did so, he talked in class and paid no attention, he said. The description is not of an incident, as I see it, in which a teacher set out to humiliate him; it is a description of mistake. He said to me that it was this incident that led to the other children realising that he could not read. I conclude that it was the only time he was asked to read aloud.

Andrew was referred to the educational social worker, Ms Gillen, by the school in his first term, and she arranged for him later to be assessed by the EP, Mr Brooks. This had been difficult because he was about to leave the post and had said that he should not be seeing anyone new. This assessment took place in May 1994, in the form of an interview and exercises, at which Ms Marr was present. Mr Brooks appeared quite shocked at Andrew’s difficulties, his reading age which he assessed at 4.3 years, told her that Andrew was dyslexic and that had caused his behavioural problems. She said that he set up a file, but no one has been able to find any file from Mr Brooks relating to Andrew. Ms Marr told Revd Reid in about June 1994 of the meeting with Mr Brooks, but said that he was unaware of it before she told him, and related to him her concern about follow up from that meeting.

Ms Marr did not take issue overall with the list of Andrew’s misbehaviours compiled by the school, but she did say that she had said then and still said that this was the result of the school’s failure to address his learning problems. The list itself records that that was her view. In cross-examination she said that she would not have told Andrew that his behaviour was the result of his learning difficulties: his behaviour was not acceptable. She was forthright about this. She disciplined him by taking things away and stopping activities which he enjoyed. It was not acceptable to behave like that because of special learning difficulties, but she felt she knew the cause of the difficulties and was getting no help.

Andrew said that he was obstructive and had behaved badly for which he was sorry. He behaved that way to avoid doing work so that his classmates would not find out that he could not read or write. He “blended in with the bad boys” and behaved like them so that they would accept him. He also got blamed for things he had not done. In cross-examination, he said that he only behaved badly because he could not do the work. There were boys whose behaviour was worse; 12-19 were excluded from his year and some were now in prison for very serious crimes. He did not know if others had difficulties, his class was slow with speech and behavioural problems, but the work was at a level with which he could cope. He told me that he had started trying at this school but had seen how others were behaving and it was easy to go with them; he did not think, looking back, that he told himself that he had to stop going with the “rude boys”.

On 1^st November 1994, after Andrew was suspended for ten days, the Headmaster told Ms Marr that Andrew should be removed from the school in his own interests as he was likely to be expelled, which would look bad on his record. She accepted this advice and did not appeal to the Governors. Ms Marr accepted that this exchange had occurred although she could not remember the incident which had led up to it.

Ms Gillen, the ESW, had recommended around that time that Andrew join the 409 Project Reading and Writing Group run by Ms Brennan, even though it was for adolescents who, unlike Andrew, had been in trouble with the law. Andrew said that he liked the Project better than school, the work was easier, he had more time to do it and had one to one help some of the time. It was not just reading and writing and they could use computers. Ms Brennan also recommended that Andrew go to Lilian Baylis School because it had an excellent special needs department, which would cater for Andrew.

The school’s evidence was rather fuller, not surprisingly. Revd Reid gave evidence. In addition to being appointed as the SENCO by the Headmaster in September 1992, by which time the whole system of special educational needs provision was in a state of transition, he was Chaplain and Head of Religious Studies. He had been at the school since 1990. He had had some 20 years previous experience as a teacher in secondary schools, including some with special responsibility for lower ability pupils. Over half the pupils at Archbishop Tenison’s School received free school lunches, and the ability intake was skewed towards the lower end of the range. The school’s teaching had been based on mixed ability groups, but roughly coincident with Andrew’s arrival, the Headmaster decided to move to streaming by ability. For that purpose, NFER tests were administered in the Autumn Term 1993, and the streams were created in Spring 1994. Andrew was placed in the lowest ability stream. This was the smallest group, and to keep it small, the numbers in the three other groups were raised to 25.

Before pupils arrived in September 1993, the feeder primary schools were visited, and the pupils were discussed with the class teacher, following which a report was prepared; the new pupils with their parents were interviewed by, it appears, one of a team of interviewing teachers. Revd Reid interviewed Andrew and his parents, but not as SENCO. Revd Reid thought he had provided reading suggestions as asked by Ms Marr but it is possible he had not done so. They had money for books suitable for those with low reading ages but aged over 11.

Interview reports were then prepared. These were the basis of a pupil file and were also used by Revd Reid as SENCO in preparing confidential reports for distribution in the summer holidays to staff in respect of all pupils identified as having learning difficulties, behavioural problems or other special needs. Revd Reid had identified in this initial process 19 out of 92 boys as having learning difficulties. Andrew was not one of them. 25 out of 92 were identified as having behavioural problems. Again Andrew was not among them.

Revd Reid agreed that Andrew should have been on that list at entry and that it was his mistake that Andrew was not. He was clearly regretful at that mistake. He told me that if Andrew had been on that list then everyone on the staff would have been aware that he might have learning difficulties but the result of the reading test told them that anyway within three weeks. Andrew did the NEFR reading test on arrival, as did his whole year, which indicated a reading age of 6 ¾, which was “poor”; there were only a very few others at that level and none lower. Andrew was more than two years below the benchmark for establishing needs which itself was set at a reading age of two years below chronological age.

He thought that this omission from the initial list was because tensions at home, which he noted between Andrew’s parents at the initial interviews, were seen as the problem at that early stage. He later said that he thought Andrew was not on the initial special list because the message from the Primary School was that progress was being made with his behaviour and learning and he did not want to label Andrew before he arrived, although he agreed that some people did need to be aware of him.

Another teacher had visited Vauxhall Primary School from which she made notes about Andrew’s silly behaviour contrasting with co-operation at times, owning up and responding to being told off. Revd Reid’s own collation of the entry information was in the same vein; it noted his poor punctuality as well, and his support from Rectory Grove. There was nothing from that, said Revd Reid, which warranted Andrew being treated as having learning difficulties or behavioural problems, even though he was shortly after banded in the lowest 20 percent of his new school.

Revd Reid accepted that an early identification of special educational needs was important, recording them and communicating with parents. He also said that, whilst appropriate intervention at the secondary school can assist, unless the foundation was there by Year 6, some boys were never going to improve; hence the earlier the intervention, the better. The Code did not come into force until September 1994; individual files began in September 1994 with Year 8 and the system was not efficiently in place till later still. The Register of Special Educational Needs was not brought in until September 1994 and the very large number of boys then on it had displeased the Governors. There was no standardised test at entry or national curriculum until September 1994 and so that had not applied to Andrew.

Revd Reid described orally the material available in respect of a pupil’s needs in September 1993, in addition to the interview forms and the reading test. The September 1993 test was very basic and just gave a reading age; it was criticised as aimed at white middle class children. The work of the Special Needs Department had been broadened with the arrival in September 1993 of Mr Venn. In the first three weeks of term, classes in the first three years were observed by members of the SEN Department, and teachers were asked to monitor their classes and to complete “Causes for Concern” forms under certain headings. 174 out of 397 showed serious cause for concern under at least one head. 150 were two or more years below their chronological age in reading. 166 were noted for under-achievement. Andrew was identified as giving cause for academic concern because of his reading.

Both Revd Reid and Mr Venn saw the “causes for concern” forms; a matrix was prepared which identified the broad area in which the concern fell and the detail, from which clusters of problems for a child and class could be picked out. There was a sheet for each class.

A general report on these forms concluded that significant numbers of pupils had academic and behavioural problems which made effective learning for themselves or their classmates “almost impossible”. The vast ability range in each class made it impossible for many teachers to prepare effectively for the needs of all. Reading and writing were a major cause of concern throughout the school, 39 per cent were remedial readers, many were totally unable to cope with the curriculum and disaffected pupils made learning difficult for the more able. Homework was an almost universal cause for concern. Radical strategies were necessary. The report recommended that mixed ability teaching cease for the first three years and a basic skills project, starting with the reading project be begun. For Year 7 social and academic problems were emerging which if not tackled now could lead to serious problems in the future. Revd Reid agreed with that diagnosis, and that there would be problems in the senior school if they were not tackled now and regarded literacy as the major problem.

Mixed ability teaching did give way to streaming; the earlier 1993 Autumn term decision was effectuated by January 1994. Revd Reid felt very sorry for Andrew in a mixed ability class; the needs of those at the extremes were not met in that way, and so he was very keen to change the system. He agreed that those difficulties might cause Andrew to misbehave. Andrew did well if he got on with the teacher and then, as now, the majority of special needs support was delivered by the classroom teacher in the class. Streaming meant that Andrew was kept in a small class so that his needs and those of others like him could be met.

In his statement Revd Reid said that the provision for special needs in the Borough seemed good by comparison with what he had experienced elsewhere: well resourced, outside support, various schemes in the school and individual appraisals and attention given to Andrew by him. In oral evidence however he thought the special needs provision at Archbishop Tenison’s School was nowhere near adequate and he had lots of arguments with the Headmaster about it. The main SEN provision was the splitting of the three form entry into four forms and the move in January 1994 to streamed rather than mixed ability classes. Revd Reid did not think that was enough nor did OFSTED in the report of its inspection in early November 1994.

As Ms Marr had said, a reading project was instituted to help those in Year 7, the first year, who had poor reading levels. Year 10 pupils, selected carefully and trained by the Lambeth LBC Educational Psychologist, Mr Brooks, tutored the Year 7 readers on a daily basis. This project lasted from early November 1993 to mid January 1994, was monitored regularly by the EP, and daily by the Special Educational Needs Department. Andrew’s reading age advanced as a result to 8 ¼, which was one of the largest rises. The tests were not always accurate though. He was still in a very low group but there were a few pupils now below him.

Andrew seemed to be a success story from the Year 7 Reading Project showing that he could respond in the right circumstances. Too much should not be read into that result. It was important, accepted Revd Reid, to monitor him to see if the progress was real and could be maintained. Mr Brooks, the EP, came into school regularly and discussed the reading project second phase, the Basic Skills Project, with Mr Venn. There was a follow up programme of writing and spelling in which Andrew participated, although there was no later reading age test. Andrew however was not marked for special attention or paired reading even though Mr Venn noted in his report on the project that a number of boys could still benefit from monitored reading on a daily long term basis. Revd Reid could not say why Andrew had not been marked for that follow up; that was for Mr Venn. The aim had been to create an overall literacy project through Years 7 and 8. But Mr Venn, who was responsible for the special project, left by September 1994 and there was no replacement by the time Andrew left, so the further literacy intervention which he might have had at the start of Year 8 did not take place.

Revd Reid had had a meeting with Andrew’s mother in November 1993 because she was concerned about Andrew’s learning and behaviour. There had already been an incident in October 1993 in which Andrew had been part of a group which had stolen a prized new baseball from another pupil to his great distress. She was concerned that Andrew might be being bullied. She requested a meeting in December 1993 for the purposes of which Revd Reid collated information from Andrew’s subject teachers. He wrote to her in advance saying that he had been talking to people about dyslexia and had sent off for information about it. The meeting was put off by Revd Reid because of other commitments, and the suggested alternative dates were not taken up. There were differing staff views as to what should be done for Andrew. Revd Reid’s diary records a letter in early January 1994 about Andrew and a computer, as well as problems at home but he could not remember more than that. The letter is not available.

The subject reports shortly before the end of Andrew’s first term were on special needs report forms. Art was satisfactory; the others indicated problems of one sort or another. The Headmaster, who took Andrew for Religious Studies, noted his poor writing and spelling, unfinished work and poor attendance; he added that Andrew’s needs were probably not being met at the school. He was unfit at games and overweight, bullying if he did not get his own way but polite to staff; Mr Philipps who was also the Pastoral Director noted that Andrew had “severe learning difficulties which would be better met at a specialist school.” Geography was favourably reported on, but there were indications of a need for individual tuition and a comment that Andrew’s needs were only being met at a basic level. The need for improved literacy was remarked on by the Music teacher. The History teacher said that Andrew tried hard but had bad handwriting and spelling; he needed an enormous amount of help in order to achieve at even a basic level, worked hard if given unlimited individual attention but could be disruptive. His work in Design was not unfavourable but the poor quality of his written work and presentation were noted. He had also been given two detentions for misbehaviour.

Revd Reid said that he was no expert on dyslexia and had little experience. They had joined the local Lambeth Dyslexia Association and they had the help of Mr Brooks. He had circulated the subject teachers with the special needs report form, seeking information on Andrew and his special needs. There was a wide range of responses as set out. Revd Reid did not find that dyslexics did not finish work because of embarrassment. Some teachers, for example in history, clearly put in a lot of work but it was not sufficient to meet his needs. The reports showed a fairly consistent pattern in respect of reading and writing. He passed the question of dyslexia on to Mr Brooks after Ms Marr raised the issue in December 1993, who had advised that the reading project be done and then the position examined. Revd Reid said that the school had carried on making use of its own facilities for special needs as the Project had achieved good results for Andrew.

The disciplinary problems however continued and worsened in the Spring term. At the end of January 1994, there was an incident which led to Andrew’s exclusion for 5 days; when leaving school after a detention, Andrew threw a fluorescent lamp dangerously close to a stationary car in a car park and when rebuked by a teacher was rude, flippant and to a degree deceitful to her. He was also involved in fighting at the same time. A further 2 day exclusion followed in mid- February shortly after his return, for serious disruption in a science class, mucking around stupidly with a Bunsen burner hose. Mr Philipps wrote to Ms Marr on 17th March 1994 warning her that within 3 days of having spoken to her, (the implication is that it was about Andrew’s behaviour), Andrew threw hard food around in the dining hall and could easily have been suspended. A few days later he was reported for persistently refusing to sit where he was told, again in science.

On 6th June 1994, Revd Reid wrote to Ms Marr, shortly after the incident which caused Andrew such distress when he was asked to read aloud in class. He said that Andrew had come in very upset because he had been asked to read aloud. Revd Reid was annoyed at what had happened. To console and calm Andrew, and another boy, he took them to a shop, bought them an ice-cream, and talked about the trees. Revd Reid was not responsible for Year 7 special needs but because Andrew was so upset, he took him out of class on a couple of occasions to talk things over with him, and to try to help his self-confidence.

The letter followed a meeting which he had had with Ms Marr in his pastoral capacity. He said that he had asked Andrew’s teachers not to ask him to read out loud in class and to ensure that his homework was written in Andrew’s homework diary, either by putting it on the board for him to copy or by someone else writing it in the diary. Revd Reid wrote that he hoped to have some further support for Andrew and one or two other boys in basic English skills after the examinations. This would be one or two periods a week. Of some importance also is Revd Reid’s comment to her that he had not known of Andrew’s visit to the EP, Mr Brooks, but he would discuss it with Ms Gillen, the educational welfare officer, when she was next in school.

He gave further evidence about this orally. On 9th June 1994 his diary notes that he assessed Andrew as a result of tests which the EP, Mr Brooks, gave him to administer on reading and non-verbal reasoning. He sent them back to the EP shortly before Mr Brooks left his post. He just did what Mr Brooks asked him to do so far as he could remember with the tests. There was a problem with the follow up because Mr Brooks left in June 1994. Revd Reid asked Miss Gillen what had happened but she did not come back. He did not know what had happened to her. The whole episode was a mystery. He doubted very much whether in September 1994 he followed it up because there was real confusion when Mr Venn walked out.

Mr Hansen, the Claimant’s solicitor, provided a witness statement dealing with his endeavours to contact and obtain information from Karl Brooks. He had contacted him at LB Enfield where he worked in March 2004 and appended notes of a conversation which he had had with him in April 2004. Mr Hansen said that Mr Brooks had said that he could not remember meeting with Andrew or his mother but it could have happened; he had left Lambeth a few weeks after May 1994 to go to LB Enfield. He had stayed at Lambeth for just over a year and it was his first job since qualifying. Lambeth did not accept children direct for assessment from a parent but required a school referral and anyone trying a direct referral would be referred back to the school. He might have seen a pupil privately as a favour to Ms Gillen but he would not have seen such a pupil in his office, as was alleged to have happened here. If he had seen Andrew for assessment and had administered tests, he would have opened a file and left a record of what he had done. The file would have been left behind when he left. The EP Department at Lambeth was over-stretched when he was there.

Mr Brooks declined to sign the record of the conversation which Mr Hansen sent him for signature by way of agreement as to the content. He said that he had no recollection of Andrew. The record did not say that he did. Mr Brooks later wrote to Mr Hansen in December 2004 and reiterated that he could not remember Andrew or meeting him but that if he had done so, he would have kept and left a record. But he also said in another letter that the record of the April conversation was incorrect because it dealt with matters of policy and personal matters upon which he would not have been able to comment.

Ms Marr said that she had obtained files from Lilian Baylis after Andrew’s exclusion but there had been nothing about the visit to Karl Brooks on it.

Andrew’s end of year reports were seen by Revd Reid as showing that he seemed to be improving, though they also continue to refer to difficulties in reading and writing and behavioural concerns. Irregular attendance hampered his Physical Education. In Science, Andrew noted that he did appallingly in the exam; his teacher said that Andrew had only a limited understanding of the course and could not do experiments safely unless under constant close supervision; he was slow to produce written work and did not express ideas clearly. His Maths teacher said that Andrew was extremely lazy, disorganised and forgetful of writing equipment and his work booklets; he had made little progress and his written work was rarely completed and what there was, was very badly done and messy.

Andrew rarely did his history homework and tried every tactic to avoid handing in his book for marking; he could do good work but the teacher could only help Andrew if Andrew allowed him to. Andrew liked Design but he missed many lessons. Geography, which Andrew also liked, earned a good report for work and effort; but homework was incomplete. Andrew said that later on geography became more difficult. His ability in Art was hampered by his going into a dream world in class and demanding too much teacher attention and being unsettled when he did not get it. He had made a good start in French. Andrew commented on English that he liked it, and he agreed with that in cross-examination; the teacher said that a more sustained effort was needed in completing written work and more reading for his vocabulary.

The overall comments in the form teacher’s Pastoral Profile were that Andrew needed to make much more effort and was under-achieving. The main concern was behaviour: “Andrew enjoys messing about. He does not like being told off. He can be disruptive by making silly noises and so others suffer too. He doesn’t respect some of the teachers which causes them (and me) great concern. I am also concerned about Andrew’s time-keeping.” The Headmaster endorsed those comments. Andrew agreed that he did not go to Assembly and was late for school.

Revd Reid described the way literacy needs had been met. Although one to one work with certain pupils was valuable it was important to try to make all staff see literacy as of real full time significance, so Revd Reid said he decided that he had to tackle staff and every department. They were asked daily to provide a subject specific vocabulary, identifying new words, their spelling and meaning. Reading should be a day to day part of every lesson and not just silent reading, and boys should never be asked to read out in class. Copying was a major problem in getting homework down, so computers were ordered and put in. Some parts of the school, the humanities particularly, did everything they were asked.

It was for Mr Venn to identify if Andrew had any particular difficulties. Revd Reid thought Andrew merited additional attention and that by the end of January 1994, the Headmaster was making a lot of his bad behaviour. Teachers would have known about Andrew’s reading age, although there was no SEN register. The specific learning difficulties would not have been identified, but it would have been obvious, especially in mixed ability classes and in most subjects that he had reading and writing difficulties. After the classes were streamed those in his group were by definition of lower ability. The purpose was not simply to deal with literacy but to approach teaching in a slower way. Pupils were being taught how to do complex things with minimum words. There were three different levels in Andrew’s Year 7 class and a major part of the teachers’ work was differentiation. They were encouraged to use computers to help them.

Other teachers could provide support and if free were told to do SEN support because it was important that all should feel that they should do it, but not all were qualified or interested.

Andrew would have been quite low down on the list of those with special needs but Revd Reid said that he would have put him on the list. There were signs of progress however in the June 1994 reports.

Revd Reid did not have the greatest contact with Andrew though he would become involved in meetings with parents. The greater contact would have been with the Headmaster, the Year Director Mr Philipps, and Ms Gillen the educational welfare officer. His diary records one meeting with Ms Gillen in May 1994 at the end of which Andrew was mentioned. This was shortly before a meeting which he had with Ms Marr.

Revd Reid could not say what work Mr Venn had done on basic skills. Parents had been told that there would be a move to basic skills in which Mr Venn was to take individuals and groups out of Year 7 to do specific literacy skills, but Revd Reid did not know what he had done and there was no record of it. There was after school help at schools clubs available for Year 7 in every subject and many boys attended. Boys were encouraged to go and most subjects were available every evening. This was really aimed at those with poor reading and writing and might explain some of Andrew’s better work.

Revd Reid agreed with the November 1994 OFSTED report’s comment that the school did not have a policy for identifying and meeting special education needs and the Governors had not agreed on how oversight of the school’s work in that area would be exercised. There was incomplete understanding about what special educational needs were and how they were to be identified. Provision for those with special educational needs but without statements was concentrated on the last two years at school. Learning support for them absorbed most of the teaching time available to the SEN department. The report continued that there was no targeted support for non-statemented pupils with special educational needs at Key Stage 3 which was Andrew’s stage:

“Pupils with a variety of needs, but not necessarily special educational needs are grouped into comparatively small bottom sets in Years 7, 8 and 9. Some additional support is offered to these sets so that on occasions they are double-staffed. This is an arrangement made primarily for pastoral and curriculum purposes so that teaching groups are more homogenous and manageable. However, these groups have come to be thought of as special educational needs groups and financial resources identified for special educational needs work are used to sustain them. In reality only a proportion of the pupils in these groups have been clearly identified as having special educational needs and the nature and level of these has not been properly assessed.

The teaching in the support option group is generally sound and sometimes good but the generalised support offered to the bottom sets at Key Stage 3 lacks targets and objectives, does not assess and record pupil progress and is of poor quality.”

The recommendations for action were that the Governors should continue to improve behaviour and attendance by pupils, should direct designated funding received by the school to meet identified special educational needs, improve standards of achievement in areas where significant under achievement had been identified and ensure that the vision of the future of the school was more clearly set out. The OFSTED criticisms were very fair thought Revd Reid, although the Head was not happy. Part of the problem had been caused by the departure of Mr Venn at the start of September 1994 when Andrew moved to Year 8. Supply teachers had then been brought in for Year 8. The OFSTED Report came after the Code of Practice had been introduced. Revd Reid said that he had become persona non grata after the OFSTED report because he was blamed for the identification of problems with SEN.

Although there was an educational psychology service, statementing only occurred if a pupil was very lucky. There was one boy in Year 7 with major learning and behavioural difficulties who had very nearly completed a statementing process on arrival. He left unable to read. Archbishop Tenison’s was lucky because with the reading project the EP came in and saw more of the school. If someone was referred to the EP he would expect advice from the EP on how best to help. Revd Reid would then have to find resources for the teaching input. It was possible virtually always to do something in school and if it then did not work, one might possibly move to statutory assessment, but it was normally years before one got to that stage. Revd Reid agreed that there was the problem of a widening gap between the work that could be done and reading ability. He said however to me that although one could try to counter that, for all the effort put in there would always be some boys below average who never achieved.

The school did not have resources beyond the class teachers. If Andrew had been statemented, there were only 4 lessons per week in which he would receive help; if he had 30 lessons a week, extra help in 4 of them was not much. It was necessary for all the teachers to be helping all the pupils, otherwise pupils are floundering. By September 1992 SEN teaching had become an issue. The staff recognised that and were supportive of Revd Reid in a difficult two years. There should have been more in-class support with someone there to help the boys, rather than to support the staff as a learning support assistant did.

Revd Reid accepted that it was important to identify and assess needs. The first stage is to recognise that there is a literacy problem and then it is necessary to get all staff and parents to help every individual. It was possible for the EP then to be involved and to see someone on a regular basis. Mr Brooks came in and discussed pupils. If there were to be a referral from the school there could be a wait of up to two years. Referral required all sorts of forms from the school and the parents. Even in his year group Andrew was not the most needy pupil and there were lots of boys higher up the school in greater need. In 1995 only 1% of the pupils got 5 GCSEs.

The way the EPs worked was that the school was allocated 12 pupil specific visits a year at that time, 12 lasting three hours in the morning and shorter in the afternoon. The first priority for those 12 sessions was the 5 statemented pupils whose particular needs absorbed a lot of time. The second priority was the 3 who were in the process of undergoing statutory assessment. Then individuals were prioritised and Revd Reid and Mr Brooks decided to tackle a range of needs through reading and basic skills. But that was not done in their session time with the EP. Once someone had been referred, they then became an ongoing priority who had to be seen in the classroom, his parents interviewed and he had to be tested and advice sought. At the next session the EP would want to consider that. The upshot of the demands on the EP’s time was that the school would be very lucky to send more than 4 or 5 new ones to see the EP in a school year.

The incident which led to Andrew’s departure from the school, and 10 day exclusion initially, came on 19th October 1994. It was not the first disciplinary problem which Andrew had had that term. There was a school trip to see the “Lion King” at a London theatre. At the Tube station on the way there, he grabbed all the tickets and £10 change off the teacher as she received them; she managed to get the money back but he ran off with the tickets. The party then started to buy their own tickets and there was delay while more were bought. He threatened other boys from the school on the way up the stairs and was involved in a confrontation with Tube staff when he tried to pass a used ticket to a pupil who did not have one. A similar confrontation occurred when he did the same thing on the return trip. At a burger restaurant, where the party went, he pushed to the front of the queue, intimidated the girl serving, demanded a special deal and continued to be aggressive and loud when the manager was called and the teacher tried to intervene. Except during the performance, he was badly behaved, rude and aggressive for most of the time. He was the only one behaving in this way and the reports say that he spoiled the outing for everyone else. Andrew did not take issue with this description in Court, but said that he could not remember the incident.

Ms Marr was sent a letter on 2nd November 1994 by the Headmaster confirming the 10 day exclusion, and requiring assurances to avoid making the exclusion permanent. The past behaviour record led to the suggestion of a meeting with some Governors, which took place on 25th November 1994. Andrew’s behaviour record was sent to Ms Marr on 18th November 1994 in readiness. 12 other incidents are listed, 7 in the Spring term; I have referred to some already. They were not disputed by Andrew, although he did not remember them all, and blamed the “bad boys” he was with. On one occasion, a beating up was delivered to protect a friend who was being beaten up. The list stated that the school had been concerned about Andrew’s behaviour since he started, that it was getting worse, he was becoming less controllable and showed no remorse when spoken to by his mother and the Headmaster. It noted that his mother believed that his behaviour was allied to his learning difficulties upon which, the note said, a lot of time and energy had been spent by the Special Needs Department.

Andrew did not return to this school after his exclusion and on 25th November 1994, the Headmaster sought confirmation that his name should be removed from the school rolls. The Governors wrote to support the temporary exclusion and on the same day an interview with Lilian Baylis School was arranged by Ms Marr.

Mr Philipps also gave evidence. He had joined Archbishop Tenison’s School in 1984 and still taught there. At various times he had been Head of Year. He taught PE. He had taught at Lilian Baylis School as well. He emphasised how proud the school was of the work it did with a typical inner city intake and the way it encouraged all of them to take the opportunities available to them in order to exploit their talents to the full. He could remember Andrew although in certain respects his memory had let him down. He described Andrew as “undoubtedly a difficult child”. His statement drew upon his report as PE teacher. He remembered Andrew responding to the firm way in which he dealt with him. He said that the school generally did spend a lot of time and effort with Andrew. He would have discussed Andrew with Ms Gillen who would have put in place what attention and treatment she thought was necessary and would have been the conduit between school and the home. He had weekly meetings with her but he kept no notes of them. Her principal concern was with attendance and punctuality, and he would have put Andrew on a list because of attendance and punctuality generally as well as behaviour.

Mr Philipps told Mr Westgate that he had little direct teaching involvement with Andrew and could not tell what work was done with him and did not know of his reading and writing. The severe learning difficulties which he had described in the report which he was asked to do related to his behaviour and the time which that took up. If he left Andrew and went to another group, Andrew would be misbehaving in some way, and would have been better off at a school for those with behavioural disorders. He could not have gone to the Headmaster about a change of school on that basis without a great deal more evidence, but he was entitled to express a personal opinion which is what he had done. He had taken one out of school incident to the Headmaster and recommended punishment but not a change of school.

I now turn to the evidence concerning Lilian Baylis School. The negligence allegations in summary were that the Head Teacher, the SENCO, and other teachers including his form tutor and his head of year, failed on entry to assess his needs, especially in literacy, to act on the information they were given as to his low reading age, to obtain his school file from Archbishop Tenison’s, to identify him as a child with SEN such as by putting him on the register, to provide an individual education plan, to carry out a programme of learning to meet his needs, to act on the September 1995 report from the 409 Project and to ensure that Andrew was seen by an EP before December 1995. Had those steps been taken at Lilian Baylis, Andrew would have benefited as he would have done had they been taken when he was at Archbishop Tenison’s. After it became clear that Andrew would be permanently excluded from Archbishop Tenison’s, Ms Marr took the advice of the Governors and removed Andrew from the school. She discussed this with Ms Gillen who suggested that he would be better off at Lilian Baylis because it had an excellent SEN department where Andrew’s special needs would receive attention. Ms Marr said that this persuaded her that this would now be the right school for Andrew even though she had originally not wished him to go there because of its poor reputation for discipline and behavioural problems. She attended an appointment there on 30^th November 1994 and spoke to Ms North the Head of Year and Learning Support Teacher. She also saw the SENCO. She showed them Andrew’s work and told them about his problems in reading and writing and his behaviour and gave them a list of the problems in his behaviour at that school. She said that she did not want the new school to be under any illusions.

In her witness statement she says that they assured her that Andrew would be given the appropriate special needs support and resources and that the school would start the formal assessment process. Andrew started there in early December 1994.

Her impression was that initially there appeared to be no behavioural problems, but Andrew was not getting the promised support, nor did his work improve. There was, however, already a report by December 1994 from the technology teacher of intolerable behaviour in lessons, an absence of work and intimidation of other pupils. The February 1995 reports describe both a lack of progress and a poor attitude to learning: Andrew could no longer afford to waste his time and had to develop a more mature attitude. He seemed to have ability at drama but had missed so many lessons it was impossible to tell; the theme from art was similar. PE yielded a very positive report whereas the geography teacher described him as an “extremely rude and verbally abusive boy who disrupts other students”. He wasted time chatting in social and careers education. His attendance, behaviour and willingness to work held him back in Spanish. He was under-achieving in science because he was too “playful” and never concentrated; he needed to grow up. The maths teacher thought that Andrew could achieve so much more with a little more effort, and a more serious approach; he was poor at accepting advice. RE was anodyne. He was well behaved in history but was bad at handing in his work so that his progress could be known. In March 1995 his annual report showed that he could not settle in to the demands of the curriculum, with poor attendance and punctuality. He was reported to be rude and verbally abusive to other students.

Ms Marr said in her witness statement that she thought Andrew’s absence from lessons did not mean that he was truanting from school. She acknowledged that after 2 months, the tutor’s report noted 12 “lates”, 30/76 absences (each ½ day was a session), and the Head Teacher commented, at the end of the February 1995 reports, that Andrew clearly needed to start off by attending school. Ms Marr added that she did not know if he was at home, because she had just taken up a job; nor could she remember what he had told her about his absences.

The teachers had told her, she said, when she asked them, that his work would improve if his behaviour improved, that he was bright and well able to do the work set. He brought no homework back from school and he told Ms Marr he was doing it there. She assumed he was receiving support there for it. When she discovered that was not true, she asked the school to put Andrew on report so that his homework could be monitored.

In April 1995, the school sought a meeting with Ms Marr to discuss Andrew’s behaviour so that its resolution could enable his learning to proceed. From June 1995 Mr Findley became the main parental contact as Ms Marr had started a new job. He had a meeting with the Head Teacher in June 1995 at which his concern that Andrew was not getting the support he needed was raised. Mr Findley said that he had not been sent the reports as he should have been. The Head Teacher, Dr Akpeneye, wrote saying that Andrew would be fully monitored by Ms North and Ms Ogunkoya, his former tutor, and that Mr Findley would be kept informed. He had a meeting shortly afterwards with Ms North, the Head of Year, following which Ms Ogunkoya was to write to him setting out the support which Andrew was to receive. The notes for the eventual exclusion meeting say that a system for support had been worked out.

However, in July 1995 there was a report that Andrew used obscenely abusive language to the science teacher, and of bullying; a long report from Ms Ogunkoya retailed those incidents and a further incident of classroom bullying and disruptive behaviour in science. She said that something needed to be done about Andrew’s behaviour and that it was unfair that pupils like him should prevent others from learning. This was followed shortly after by another report of bullying which was sent to Ms Marr. The mother had complained to Ms Marr as well as to the school.

In September 1995, Ms Brennan of the 409 Project produced a report on Andrew’s reading and writing difficulties and made a series of recommendations as to strategies to be adopted to help him with his work and to improve his reading. He had difficulties when he did not recognise words and difficulty in phonic decoding. His comprehension of stories was basic. He had problems listening, concentrating, pronouncing words and remembering what he wanted to say. Although the report is headed “Diagnosis of Specific Learning Difficulties (Dyslexia)”, the diagnosis says “Andrew clearly has difficulties with auditory processing, with additional problems regarding visual processing and probably motor processing”. Ms Marr saw the report as confirming that Andrew was dyslexic. She gave the report to the school but said that they appeared not to take much notice of it, saying that Ms Brennan was not professionally qualified as an educational psychologist.

Andrew had a further round of school reports in October 1995. His attendance that term had not started badly. Science, technology, music, PE, history, geography and drama recorded satisfactory progress, though in technology and music, behaviour and attitude were causes for concern. He was unsatisfactory in English, maths, languages, art, RE and SCE attracting comments about poor behaviour and lack of work. His new tutor and deputy head of year wrote to Mr Vanier, the head of SEN, saying that Andrew was very disruptive in class, with a bullying and threatening attitude to staff when questioned about his behaviour. Ms Marr was told that he failed to produce homework.

On 1^st November 1995 the school wrote to her about Andrew’s “appalling behaviour in school”. He was asked to leave a lesson because he could not behave and refused at first to go to the Senior Teacher’s office as told. When he eventually arrived he behaved in an “irresponsible and rude manner”. He constantly used abusive language, refused to work as requested, thought his behaviour acceptable, appeared to have no respect for anyone, was always “totally disruptive”. His sexual comments about females in particular were “particularly offensive and cannot be tolerated in a mixed school”. Ms Marr was asked to attend school to discuss this. Mr Findley went instead and reported back to her that nothing had been done about Andrew’s reading difficulties. He brought a form to sign requesting a special needs assessment which she did and returned it to the school. This form gave permission for the school to refer Andrew to an outside agency or to the educational psychologist for assessment or advice.

There was a further report which may be from around this time, in which Andrew’s behaviour was described as intolerable, his influence over certain pupils was causing great concern and those pupils’ behaviour had deteriorated because of him. Three were identified. The teacher could not get Andrew to do any work or to sit down or to refrain from intimidating those who were trying to work. A teacher was spending the time trying to contain a few pupils which was grossly unfair on those trying to work.

On 10^th November 1995 the Head Teacher wrote to Ms Marr saying that following a telephone conversation she was writing to confirm that Andrew was being excluded from school: “I had originally decided to recommend permanent exclusion for Andrew but my conversation with Mr Findley led me to decide I should give Andrew a further chance in view of his problems with literacy which the school has so far not addressed”. Understandably Ms Marr and Mr Westgate made much of that comment. The letter continued by saying that Andrew had brought a rocket firework in to school and let it off outside the classroom door. He admitted it after he knew he had been seen and others had admitted their part. The Head Teacher said that she was also concerned about other aspects of Andrew’s behaviour: he bullied other pupils and was rude and disobedient in lessons: “Some of this is a result of his learning difficulties but not all”. The Head Teacher said that she would try to speed up his referrals and see if anything could be done to secure an assessment place. Andrew was excluded for 12 days and arrangements were to be made for work to be set.

Ms Marr said that none was provided. She was asked to collect some, but said it was immediately apparent that it was wholly beyond him. The school said that nothing would be done about that until he was back at school. There was also a note on file dated 10^th November 1995 recording that the school had telephoned Archbishop Tenison’s for the records of Andrew there.

Mr Findley and Ms Marr prepared a statement for the Governors meeting on 23^rd November 1995 about the exclusion. It was prepared with the help of Ms Brennan who came to the meeting with them. The statement complained about the absence of support for Andrew over time, but also recognised that his behaviour was unacceptable and said that they would for their part be working on that. The exclusion was upheld at that meeting.

Ms Brennan’s notes highlight the Head Teacher’s expressed concern about Andrew’s disrespect for her and others and his bullying of younger pupils, but Andrew kept whispering to Ms Brennan that she was lying. Ms Brennan tried to say that some of the language was exaggerated and that Andrew did not understand that his behaviour was bullying, which the Head Teacher did not accept. The notes record that the Head Teacher had acknowledged that the school had not really addressed Andrew’s special needs; Andrew was confirmed to be on the list to see an EP which meant that he was at Stage 3 and the school was calling in specialist help.

On 27^th November 1995 the LEA had written to Ms Marr saying that Andrew had only attended the school for 58 out of a possible 88 sessions and that he was frequently late, often missing out on the first and sometimes as well the second lesson of the day. Her help was sought and Court action referred to as a possible next step.

On 1^st December 1995 the Deputy Head wrote to Ms Marr saying that Andrew had been particularly abusive and rude to his English teacher repeatedly pointing his outstretched arm and finger at her which he eventually ended up by pointing on to her breast.

On 5^th December 1995 a teacher recorded that she asked Andrew to move because he was chatting. He moaned at her about that. He became aware there was a fight outside the classroom and charged towards the door where the teacher was standing. He ended up hitting her in the breast. She pushed him away as it was extremely painful. He said he had done nothing. He was told to sit down but then became abusive, and was sent out.

On 18^th December 1995 the co-tutor of his class wrote to Mr Findley saying that she had experienced problems with pupils who had not accepted her authority. On a number of occasions Andrew had been very rude, refused to take instructions and had recently swore at her repeatedly in a most abusive way. She gave him a short detention for which he did not turn up. Mr Findley was told that he could come and see her if he wanted.

The next day the Deputy Head wrote saying that he had upset a pupil by “playfully” punching him several times. This was irritating nonsense seen as unacceptable bullying. He would be kept back at lunch.

Another Deputy Head spoke to Ms Marr on 17^th January 1996 saying that Andrew had truanted from a lesson and had left in the middle. The teacher suspected the exit had been pre-arranged, but at the end of the lesson he returned to the classroom and tried to force his way back in pushing the teacher away. He failed to do so and then sprayed “fart gas”, as the teacher said the pupils called it, in to the room. He then launched himself into a flying kick against the door with such force that the door pushed into the teacher’s back hurting her. This followed on from a conversation which the teacher had had with Andrew the day before about his behaviour. That discussion had arisen because Andrew had been accused by students of stabbing with scissors one of a number of books on black history made available to the class. The anger shown by Andrew in this incident was a great concern to the teacher, Ms Clark.

On 2^nd February 1996 the Head Teacher wrote to Ms Marr referring to the outrageous behaviour of Andrew in that respect. She said that this letter was delayed because the EP was still in the process of assessing Andrew and the school needed to try and avoid permanently excluding him. She said that she was very concerned about Andrew’s level of violence and “it is most noticeable that when Andrew is not here the rest of his class are far more settled”.

Andrew was always wandering around and that had an effect on the whole school. A fire had been started in the area where Andrew was last seen. As the last exclusion concerned him letting off a rather dangerous rocket and bearing in mind the difficulties in procuring obedience, the Head Teacher said that the she had no alternative but to recommend his permanent exclusion from Friday 19^th January 1996 - that was the day after the incident referred to by the Deputy Head, Miss Clark.

Following the Governors' meeting of 23rd November 1995 Andrew was assessed by an EP, Ms Afuape, who observed him in class in December 1995 and carried out a further assessment in February 1996. The School Visit Summary in December said that there were still reports of challenging behaviour and in addition teachers have noted that despite Andrew’s ability “his literacy needs are not being addressed”. After the February 1996 visit, her analysis said that Andrew’s cognitive functioning fell within the average ability range, with some aspects above average. There was a significant discrepancy between his cognitive ability and his literacy skills; his reading and spelling ages as tested were 7.2 and 6.1 years respectively. He had very few strategies for decoding words and relied on his existing sight vocabulary. “Andrew has extremely low self esteem especially in the areas of academic performance and general self image. He feels that teachers have a preconceived idea about how he will perform and behave and feels that this causes problems”. A series of strategies were set out. They concluded that all staff who taught Andrew needed to be aware that he had specific learning needs. It commented that a Contract of Learning and Behaviour might be useful. This was the first such programme which had been suggested for Andrew, apart from Ms Brennan’s 409 Project Report, as Dr Akpeneye accepted and it had taken nearly 3 months from his parents’ acceptance of the referral form. She was not sure if events always moved as swiftly, but, as she said, he was being excluded.

Ms Afuape, the EP, was not called because the allegations of negligence against her were abandoned shortly before the trial began. Her statement affirmed that “dyslexia” was not a term used in the mid 90s; needs were “specific to reading and spelling“.

On 19^th January 1996 Andrew was excluded from school and the Head Teacher wrote on 2^nd February 1996 stating that she would recommend that exclusion be made permanent.

For the Governors’ meeting on 26^th February 1996, there was a list of reports of incidents which showed a marked increase in bad behaviour in the Autumn term of 1995 and on in to early 1996.

Ms Marr was legally represented at that Governors meeting. She said that she felt her son was being used as a scapegoat. The school was the problem. There had been negligence in the way he had been dealt with.

In a letter of 27^th February 1996 the Governing Body said in confirming the permanent exclusion that a situation where a teacher had been verbally and physically abused could not be tolerated. The health and safety of staff had to be protected and Andrew had been given a number of opportunities to improve his behaviour, which he had been unable to take. The Governors felt the school had done all it could to try to respond supportively to Andrew’s behaviour and to support him in learning. Ms Marr said that the Head Teacher had agreed with Ms Brennan after the Governors’ meeting that she would ask the SENCO to continue his assessment, but said that she was not aware that anything thereafter happened. The exclusion was confirmed following an appeal on 1^st April 1996. Ms Marr and Andrew were represented at the appeal by a local Law Centre and in their submissions criticised the way in which the school had treated Andrew and his learning difficulties; they denied that he was responsible for all the incidents of bad behaviour attributed to him.

Over Andrew’s time at Lilian Baylis, his behaviour out of school had also led to him getting into trouble. A 409 Project review in October 1995 said that he had been involved in shoplifting, though not arrested, when visiting the Project. His mother was unsure as to whether she had been told of that. But it also said that Andrew found the Project’s support useful. She continued to see him as being led astray by others. A report of December 2005 showed that Ms Brennan discussed Andrew’s deteriorating behaviour at the Project with him: they had noticed an undesirable change in him there in terms of temper and aggression. The bullying, which she said he had difficulty in recognising short of a threat to use violence, may have been discussed because it happened at school and needed to be resolved. They discussed his refusal to cooperate with simple requests from teachers. She noted that Andrew had been reluctant to do the tests requested by the EP because his class would think that he was “mad” and only “mad” people went to see her. Ms Marr accepted that Andrew had been aggressive.

The report was also noticeable because it referred to what Andrew said about his home circumstances: he said that his mother’s boyfriend got violent when he drank and also treated Andrew differently from the way in which he treated Andrew’s sister. This was noted as a sensitive issue. Ms Marr accepted that this man was an alcoholic but said that he was only verbally abusive rather than physically violent, and that that made Andrew tense, but she rejected the notion of different treatment by him for the sister. There had been some social services interventions; but she could not remember the details and thought it had something to do with his behaviour at school. Notes prepared by Ms Marr in December 1996, in the context of a statutory assessment, referred to the difficulties which Andrew had with his sister who threw his problems in his face during arguments to such an extent that she was considering mediation. She felt that Andrew was liked by no one in their block and their accommodation was overcrowded.

Andrew denied that his mother’s boyfriend had been violent to her nor was he unpleasant though he did get drunk. Andrew said with some vehemence that no one touched his mother. I thought the denials over-emphatic to be wholly convincing, reflective of other feelings such as guilt that he had not been able to do more.

Andrew’s impressions of Lilian Baylis were that the school was freer than Archbishop Tenison’s, that the teachers pushed them less, they could dress and do what they liked: smoking on the roof, leaving the school premises, going to the park with the girls. In cross-examination he said that he could not understand why he had been sent there, along with 5 others from Archbishop Tenison’s, and felt intimidated at a new school. It was the teachers who decided not to teach, and he preferred not to be in school than to do nothing. He could not remember having any teaching assistants at Lilian Baylis; nor could he remember the EP nor refusing initially to see her. He admitted that he had behaved badly; but he said that he had been embarrassed at Archbishop Tenison’s and was not going to let that happen again. His tone became quite aggressive when he said that. By December 1994, he had already become one of the “rude boys“. He was frustrated and was led astray. He did not remember the incidents over the firework or “fart gas” or demanding money; he did not pick on people; he never hit a teacher and those reported incidents were all rubbish. Rather it was the teachers who picked on him because he was a big fat kid.

He found his time at the 409 Project useful initially and found Ms Brennan sympathetic but even there, by 1995, he was denying that he had any homework from the school to do with them. As time went by, he said that he had less 1:1 tuition there, could not follow the work in his group because of his reading and writing difficulties, and became disruptive and rude at the Project as a means of trying to deal with those problems. He began bunking off with other Project pupils who did not have his problems but were in trouble with the police, which appeared to be the more general problem with those attending the Project. They went shoplifting.

Mr Findley’s evidence added nothing to the sequence of events at Lilian Baylis or to understanding them but he did confirm that he had asked the school to monitor Andrew’s behaviour in the light of reports of his disruptive behaviour.

Dr Akpeneye was the Head Teacher of Lilian Baylis from 1992 to 1997. Her subsequent PhD was on educational and exclusion policy with particular reference to Caribbean pupils. She was an experienced London secondary school teacher, but had no specific SEN qualifications. She had chosen to move to the school because it taught children with social and educational needs and she was particularly keen to work with black pupils to try to raise their levels of attainment. It was a school at risk when she joined and was placed in Special Measures in March 1994 after the first OFSTED inspection. It had management and policy issues; behaviour was a problem. 75%, which she described as an enormous number, were on free school meals and that increased to 80 %; this was to be compared to a national average below 30% and was high even for the locality.

Provision for pupils with SEN was described by the OFSTED report. The school had 16 statemented pupils, for whom the LEA provided 2.1 teachers from its Learning Support Service: they provided in-class and individual support; the in-class support often overlapped with other provisions. 26 pupils in Years 8 and 9 had been identified as needing support for behavioural difficulties and 0.3 teachers from Rectory Grove had been allocated for in-class support. At least another 132 pupils had been identified as in need of additional learning support. The system for the clear identification of needs in Year 7 needed improvement and with distribution among teachers. Further training and better co-ordination of all support teaching, which worked well in the humanities was required. The achievement of those with SEN varied with the quality of the teaching. The school “has a satisfactory policy”, on SEN, it concluded.

Being in Special Measures, however, meant that the school had adequate funding. Although there was no extra for SEN specifically, if extra did become available to the school generally, it was always used for SEN. She regarded it as an achievement that she had succeeded in having the school removed from Special Measures in 1997.

Her role was oversight of all matters but she had no day to day role in the SEN Department. The Special Needs Department, headed by Mr Burton as SENCO, provided good support for those who needed assistance. The school had had no SENCO for the Autumn term 1995. A temporary but experienced teacher, Ms Drake, had been taken on as a replacement and the teachers were expected to continue doing their best for the pupils.She was aware of the Code of Practice. The school’s SEN policy noted the importance of early identification of problems through pre-entry interviews, a reading screening process, examining the child’s profile for signs of concern, teachers’ and parents’ concerns, low test scores and signs of poor behaviour. Poor attendance could also be an indicator. Record keeping was important and she thought that they were properly kept because the school was in Special Measures. They were retained for a certain time.

The OFSTED report hadidentified strategies which were followed in Year 7 which had not then been available to Year 8 but by the time Andrew arrived, the school had had nearly a year to respond to the report and Action Plans, courses and training were in place. No comparison could be drawn between what the OFSTED inspection concluded and the position when he joined. In-class support would have developed through training and development in differentiation in lessons, which was necessary because there was a wide range of ability with so many deprived.

Dr Akpeneye could remember Andrew. His behaviour made him a difficult pupil for teachers. They tried hard not to exclude pupils. She summarised the position in her witness statement as follows: “The attention that Andrew got was in reality much greater than other pupils got, because of his behaviour. Ultimately however his behaviour was such that we could not manage it, and he was permanently excluded.” She was robust about his early non-attendance which she found startling and added that if he did not come, he could not learn. She described him as being in the middle of everything. No one child led; they were each responsible for what they each did.

Although there was no process for SEN assessment on arrival in Year 8, all entrants with files would have been considered. The interview record form of November 1994, in its reading age and the reference to the behaviour problem which it created, was an indication of SEN. This would go to Mr Burton. Andrew had been put on the SEN Register, she was adamant. This could have been at Stage 1 or 2. She did not know the date, but she would expect the parents to know and they would have been told in a letter. There was however no reference to Andrew being on the Register or having specific learning difficulties when the school wrote to Ms Marr about his behaviour in April 1995. However it was important not to label a child. The Lambeth LBC file note of May 1997 refers to Andrew being on the Register at the time of his exclusion from Lilian Baylis. Lambeth LBC would not expect a referral until the school had done substantial work itself. The first factor which would have been noticed about Andrew was his truancy and emotional or behavioural difficulties.

The school would normally request files from the previous school when the pupil was accepted for a place but the records arrived at various times. She would not have called for the file herself. But the school records suggested that Lilian Baylis did not have the Archbishop Tenison’s records even in November 1995.

The reports of February 1995, although promising in history, showed that the teachers were focussing on attendance and poor behaviour. There was no evidence from these reports that he was on the SEN register and there appeared to be no recognition of his reading and writing problems. The focus was on behaviour because that is what impacted upon teachers. His behaviour meant that teachers could not find out what he was able to do and what he was unable to do. These problems emerged 3-4 weeks after his arrival and the first reaction of teachers is to go for behaviour because teaching is impossible if the pupil will not listen, is verbally abusive and that is the only impact upon the class which he makes. Behaviour had to be dealt with before learning could take place. Dr Akpeneye was insistent on that point.

Although there was no specific evidence that anyone looked at his literacy, in order for Andrew to go through the stages envisaged by the SEN Code of Practice, he would have had to be co-operative enough to attend, and attend in lessons and do what he was asked to do. If he had done so, the teachers would have focussed on his learning needs. But Andrew was a very difficult child: verbally and physically rude, walking in and out of lessons. It was very difficult to begin to look at learning when he would not co-operate.

Dr Akpeneye accepted that a relationship could exist between behaviour and learning difficulties. There was no indication that the learning side had been addressed but that was because Andrew prevented teachers from having the chance to deal with his learning disabilities: he was constantly attacking them, although that was not a reason not to address his needs. The whole time was spent trying to tackle his emotional and behavioural needs. He needed to co-operate for his reading and writing needs to be tackled. Teachers knew how to differentiate between pupils in lessons so that the needs of them all could be met.

Being registered was not always the answer because pupils on the SEN Register would often wander around the school and were not in lessons. There was regular contact between teachers, Head of Year, Form Tutor and parents even if a pupil was not on the Register.

In June 1995 after or by the time of Mr Findley’s visit, Andrew had a travelling register which he was supposed to take from lesson to lesson but Dr Akpeneye did not know what the follow up at the end of the year had been nor if Andrew was then on the SEN Register. She did not know when he had been put on the Register.

Dr Akpeneye could not remember seeing the Report produced by Ms Brennan of the 409 Project on Andrew in September 1995 while Andrew was at the school. She knew very little about dyslexia and said that it was very much disputed and covered many things. She did not know who if anyone would have said that the report would not be accepted. She could not comment on the tests or on the results. There was only an acting SENCO, Ms Drake, in September 1995 and if that person said that they were not acting on it there must have been a reason. The SENCO should have decided what to do had she received the 409 Report and the Head of Year should have handed it to her if she had received it herself. The school undoubtedly had it because it was among the documents disclosed by the school. This was prepared at the 409 Project at a time when the school could not engage with Andrew. The Project’s focus on literacy was not necessarily because it had recognised a learning difficulty but rather because children responded differently with a different level of formality and a different curriculum. He made progress there for a while but he was unhappy at school and just did not like co-operating. But his behaviour there deteriorated as well. By August 1995, the 409 Project was also concerned what he was not turning up for sessions or trips.

Dr Akpeneye said of her letter of 10th November 1995 that she tried hard not to exclude pupils, that she was struck by Mr Findley’s care and the fact that Andrew was making promises. I accept that at some point, Andrew was put on the SEN Register and on the fragmentary evidence, I surmise that that occurred at around this time. Her conversation with Mr Findley led her to decide not to exclude Andrew in view of his problems with literacy. The referrals and assessment referred to in that letter were to Stage 3 referrals, but he had been reluctant to be assessed. She had no idea if that was the first time when his literacy was examined but each teacher would check on a pupil’s literacy in the normal course of teaching, but Andrew gave them no chance. Order was necessary for teaching and as learning was not Andrew’s top priority it could not be the teachers’. Andrew made many promises about behaviour in many reports but he did not keep them, which the school needed him to do in order for them to tackle his literacy problems. Bad behaviour would not lead to a referral to the EP unless the school felt that it had done all that it could. She thought that Andrew would have been discussed in a routine EP visit.

The statementing process was then held up by the behaviour which led to Andrew’s exclusion; but she had unusually allowed him back into school after his permanent exclusion to allow his consultation with the EP to be concluded. Dr Akpeneye’s note of 20th May 1997, in response to a complaint to the Local Government Ombudsman, said that the exclusion in December 1996 had been withdrawn in acknowledgment that, for reasons which included the absence of a SENCO and Andrew’s attendance, the school had not set in motion the statutory assessment process and might yet be able to do so. But it affirmed that he was on the SEN Register, adding that work had been set for Andrew’s ability but he was not very interested in it. Even at Stage 5, the LEA provided only half a day support teaching for the pupil. Dr Akpeneye was firm in cross-examination that her note had been based on research in the school records. Stage 1 would have involved the SENCO advising on specific steps but it was a low level intervention not necessarily carried out by the SENCO. Stage 2 was the Individual Education Plan and the EP could become involved. Stage 3 involved the school more deeply and the next two stages involved outside intervention and a statement eventually. A pupil might go straight to Stage 3 but not to Stage 4. To me, she said that specialist help might be brought in at Stage 3.

There was a Community Liaison Officer who could be brought in for badly behaved Caribbean boys, but it was very much up to the pupils to refer themselves and a great deal of the work was done in the evenings and at weekends. Notices went up and its events took place in the school social space and there were sleep-overs. The subjects were intended to be enjoyable and to get the pupils motivated. She did not know if Andrew had ever been encouraged to go to them. There was also a Home School Liaison Officer. Much of what they did was confidential.

There was a tutor who would pass concerns to Head of Year and the Form Teacher would pass concerns to the tutor as well. A Deputy Head also had responsibility for two year groups. Memos went to everyone: teacher, Head of Year Head of Department, Tutor Deputy Head. The teachers were approachable. She would monitor attendance and see the process but she did not get directly involved until exclusion.

Dr Akpeneye could not tell the stage at which teachers had become aware of Andrew’s literacy problems. The subject reports did not contain specific references to it and the focus was on his behaviour. What she meant at the meetings about his exclusion by the school’s not addressing Andrew’s literacy problems was that the school had failed to tackle them in a systematic way and that was because of Andrew’s lack of co-operation. There would have been provision had he co-operated.

I asked Dr Akpeneye what would have happened if Andrew had been referred to the EP a year earlier. She said that there would have been a contract of learning and teaching and some strategies would have been implemented in the normal classes, there would have been some 1:1 teaching and there could have been some, albeit less, without a statement. But Andrew would need to accept the contract. Differentiated tasks and praising were available in the class, as was audio and computer equipment. There could be a focus on specialised vocabulary for subjects. There was sometimes support for 1:1 on reading and writing without a statement. Andrew had however made contracts in his reports and had broken them. Being told what the EP said a year earlier would have made no difference: he was always disruptive, in and out of class; teachers could do little more than curb his behaviour. They may have tried lesson plans but they could get no further because he was disruptive.

Dr Akpeneye agreed that someone with learning difficulties might have low self-esteem but the school tried hard to avoid that. There was no bottom class or special needs group so that no one would feel excluded from the norm. There was nothing to show that Andrew was out of the ordinary and he could have gone to class. Differentiated teaching plans within the class would be prepared by the subject teacher and overseen by more senior teachers but not on a day to day basis. But whatever his learning difficulties, the teachers had to address his behavioural problems, co-operation and participation. In a class of 25, it is impossible to do that with an abusive pupil, who is also rude to other pupils, walks out of class, is inattentive and will not work. The strategies produced by the EP could not be put into place; they did not concentrate on behaviour and without co-operation they were impossible. Andrew and the EP would already have known about a contract of learning and behaviour. The teachers would have been trying this if they had had co-operation from Andrew. He made promises of improved behaviour at the bottom of his report forms.

Dr Akpeneye denied that the school had let Andrew down. They had not failed to address his needs: children were not passive recipients of information; they had to learn and to be willing to learn. Putting someone’s name on the SEN Register was not the answer. For Andrew the question was always how to get him to participate. Exclusion was an admission of failure, but they had made many contracts of learning and behaviour and had done all that the EP wanted. The Code itself may have been new but it involved writing down what had been practice for years. She had only thought that a statutory assessment might help Andrew at the end. Several things needed doing: the staff advised his permanent exclusion, but Mr Findley felt that Andrew needed the statutory assessment process, and she had come down on his side. As a result of what he had said she gave Andrew another chance. She did not think that a statutory assessment based on behaviour rather than learning had been suggested.

Mr Michael Burton gave evidence; he had been a qualified teacher since 1961 with various degrees and qualifications in education and psychology. Most of his 40 years as a teacher had been spent in Lambeth secondary schools in a variety of posts including Form Tutor, Head of Department and acting Deputy Head. His main experience had been in special educational needs. In 1969 he joined the school which upon amalgamation in 1983 had become Lilian Baylis, and he stayed there until 1995. He was its SENCO.

When Dr Akpeneye joined the school in 1992, the teachers thought that it was a tough but not a failing school. It had the problems of a typical Inner London school at a time when the inner cities were in turmoil. He thought that the school was characterised by its care for youngsters and problem children, and that the staff were doing a very good job.

When pupils joined the school in the normal way, contact was made with the feeder primary schools, and the pupils also spent some time before they came familiarising themselves with the school. Pupils were screened for literacy when they arrived, but only for Year 7, as this was the main form of special needs. They were withdrawn from lessons twice a week for small group teaching in reading. There was no automatic reading screening. The emphasis at the time in Lambeth for children with special needs was on teaching them in structured lessons in mixed ability classes. Special Schools were being closed. Teachers were also allocated as support teachers in classes with specific children to target. The school had specified special needs teachers to go into classes but general teachers with a lighter timetable would also be allocated to help in class in that way. Outside teachers also came in for those pupils who had Statements. The number of teachers was appropriate for the school.

After the Code of Practice came in, it was followed meticulously; the staged process was very familiar as there had been induction and staff training. The Individual Educational Plan was a formal document in the school by 1995 but the process had been cranking up before that. The code was recent and had led to a process of development. Detailed records were kept of all children who came through the SEN Department at the school. He had been told that they could not now be found; he was last aware of them in July 1995 when he retired, and had no idea of how long they were kept. He had a book for each class with the pupils listed by stage. The SEN Register was also kept in the locked cabinet. There was a file for every child on Stage 2 or beyond. There was also a normal school file for every child, but an Individual Education Plan would not necessarily be on that file. Until the file was received by the Head of Year, how a teacher reacted would be a matter decided from day to day.

He spelt out the stages. 1: a file was opened, teachers were made aware and the children were monitored and there were regular teacher meetings. This stage lasted a few months and was where the weight of numbers was at Lilian Baylis. Most passed off without going to Stage 2. 2: this was still in normal lessons but the child would be withdrawn for literacy help and an Individual Education Plan, which could be no more than detailing the need for the subject teacher to explain vocabulary or homework needs; monitoring continued. At Lilian Baylis, this was the stage at which parents would be informed. The more notable behavioural problems were pastoral problems which went to the Head of Department and then to the Head of Year and the Form tutor. 3: outside agencies were brought in which could include Rectory Grove Behavioural Unit, or speech therapists. Parents would probably be asked to come in. 4: the EP became involved for an assessment of special educational needs. The Panel at the LEA would decide if a pupil then needed statementing which would be Stage 5. These stages and facilities presupposed a willing and compliant pupil.

There was a problem if the pupil was an irregular attender and teachers had to spend much of their time trying to get him to concentrate on work. They could try and deal with behaviour by changing the person next to whom a pupil sat and preventing them hiding at the back. However, he had no recollection of Andrew.

Work was differentiated for each pupil with the focus on the individual. Time would be taken by the teacher to explain the vocabulary of the subject. He was asked about the February 1996 recommendations of the EP and the extent to which they were already being implemented or would have made a difference. He said that there was a limit on the time and energy which any pupil could have expended on him. There were a number of support teachers in class which gave time to focus on reading and writing. For those who were not statemented, the allocation of support teaching was done by reference to need. Teachers did it in their own subject areas, after a class teacher had made a request. They would work with a designated pupil, sitting next to them to help their understanding, concentration and learning strategies. Behaviour was not a reason for a pupil not receiving such support unless he were very rejecting or abusive.

Mr Burton would not necessarily expect teachers to comment in their half term reports on the extent to which IEP targets were being met. There was an openness and acceptance among pupils of SEN, nurtured from the top and to which pupils reacted well. There was no shame to having needs assessed. Pupils accepted the process. The school was always alert to the problems which children presented and to addressing those problems.

He accepted, as the Code suggested, (para. 3.60), that it could be the case that there was sometimes a link between behaviour and learning difficulties but that was not always the case: the majority of those with learning difficulties wanted to make the most of where they were. As he analysed it in response to Mr Westgate: “Some have real emotional difficulties with no learning difficulties. Some make the choice to avoid confronting learning difficulties by misbehaviour; that was true and not a matter of passing judgment. How a person behaves is almost always a matter of choice: he can feel upset but how he handles it is a matter of choice always.” Some misbehaved in one class but not in others: this may have been due to the subject or to clashes with a teacher or his style; there could also be a class dynamic especially just before or after a particular event. If there were disciplinary problems, Mr Burton told me, the teachers, tutor and Heads of Department and Year would emphasise the need for respect, rules and learning. The strong pastoral care system worked but there was a need for order alongside it. There was discussion with the pupil, leading to agreement, perhaps a contract and placing on report. If there were special learning and behavioural difficulties together, a two pronged approach was necessary. But if a pupil did not conform to the requirements of order, it was not possible to address his special learning difficulties.

Mr Burton did not regard “dyslexia” as having a scientific definition; it could not be demonstrated by tests and covered a range of problems. Many teachers thought it a meaningless term, and it was not an accepted term at the time at Lilian Baylis. The name did not matter; it had various components.

Mr Clifford Stubbs was the Deputy Head when Andrew was at the school and by that time had held the post for some 13 years. He also gave evidence. He taught there for a total of 28 years, leaving in 1997. The staff turnover was low compared with a typical inner city comprehensive. It was one of three within Lambeth which admitted what he described as “the more challenging pupils”. Although he was not directly involved with SEN, his view was that its provision at the school was satisfactory and that there was sufficient external support. Mr Burton was well regarded within the school; Mr Burton said that being in Special Measures had meant that staffing in the SEN department increased, with more time given to in-class support. There was not a particularly high proportion of statemented pupils.

Disciplinary problems were dealt with by the Head of Year, but if that failed, he would step in and try to include the parents to work out a strategy to assist. The Head Teacher would only become involved when that proved ineffective. Where there was a serious problem he would monitor how the child was handled and liaise between the teachers and the parent. Expulsion was only for the most extreme cases as Lambeth LBC discouraged it.

The correspondence on file and the letters from normally mild teachers showed how firmly they were having to deal with Andrew by the end of the summer term 1995. Sexually suggestive remarks to female members of staff were taken exceptionally seriously and the 12 day exclusion was entirely appropriate. He remembered Andrew and liked him. He was agreeable on a one to one basis; the problems arose when he was in a group or was challenged by another pupil or a teacher.

I turn now to what happened after Andrew’s exclusion from Lilian Baylis. Exclusion was confirmed by the Governors on 26 February 1996 and the appeal against it was dismissed following a hearing on 1 April 1996. The allegations of negligence cover the period May 1996 to June 1997, and are made against Lambeth LBC’s Education Frontline Services Officers, including Ms Bamber and Ms Horsford. In summary, the allegations are that they wrongly removed Andrew from the PRU or Norwood Tuition Centre waiting list in May 1996, and did not reinstate him or educate him there until June 1997, whilst at the same time, not ascertaining whether he had a place at a mainstream school. Had he been kept on the list or reinstated on it, he would have had a place at the PRU by the end of July 1996 and all the benefits of an additional year’s education.

In cross-examination, for it was not referred to in her statement, Ms Marr was asked about a letter of 7th March 1996 from Lambeth LBC to her saying that she should now make her choice of school for Andrew, pointing out that she should contact the chosen school to discuss admission with the Head and that there was a right of appeal against refusal if the year group were full. The letter enclosed a list of secondary schools within Lambeth, with contact details according to Ms Horsford, and also in the surrounding Boroughs, and said that it was very important that she respond to the letter. She agreed that she received the list but could not remember whether she responded. There is no reply on the Lambeth file.

In March 1996, Ms Ironside, the Head of Lambeth’s Tuition Centre at Norwood Park School annex wrote to say that tuition had been authorised there when a place became available. This was the Pupil Referral Unit.

In cross-examination, Ms Marr denied that she had decided in March 1996 that Andrew would not be educated in a mainstream school. However, a letter to her from Andrew’s Educational Social Worker, Mr Ebenezer Jones-Lartey, dated 18th March 1996 in which special educational needs assessment was discussed, records her as having made it very clear to him that Andrew would not attend a mainstream school. There was no denial of this in any letter in reply. She said that she might have said that a mainstream school would not provide adequate support. The letter of 7th March 1996 was repeated on 9th April and again it said that it was important for Ms Marr to reply; she could not recall if she did but there is again no reply on the Lambeth file. I conclude that she did not reply to either letter.

On 26th April 1996, the ESW wrote to Ms Marr to say that she should hear in about 3 weeks, but she did not hear. She made her own efforts to find a school for Andrew.

The ESW wrote to Pimlico School in Westminster providing a warm reference for Andrew, describing him as very pleasant to work with but Ms Marr said that it did not have a place and only said that they would place Andrew on a waiting list. Her request to that school was very frank about the reasons for Andrew’s exclusion; they were contesting the allegations of violence because Andrew had never been involved in hurting anyone. He suffered from specific learning difficulties, and needed help with them. She would not be applying to any Lambeth schools because they had failed Andrew. She rang again in September 1996 and was told that Andrew was twelfth on the list, and they had only had two places, which had gone to Westminster residents.

On 29th April 1996, Lambeth LBC wrote to her saying that the London Nautical School had a vacant place, and pointing out that while the LEA had to ensure that places were available, parents had to ensure that the child received an education. On 1st May, the school secretary told Ms Marr, when she rang it, that it had no place and the information that it had one was false. Ms Marr recorded that in a note on the bottom of the letter. Lambeth LBC then wrote that same day to her saying that that school was full but that the head of a school in Southwark would contact her; but he never did. Ms Marr could not remember if she ever applied to that school.

On 2nd May 1996, Ms Ironside wrote to Ms Marr saying that because there was a vacancy notified at the London Nautical School, Andrew was no longer entitled to tuition at the Norwood Tuition Centre and that Andrew’s name had been removed from its waiting list. Ms Marr pointed out to Ms Ironside what had happened and asked that Andrew be put back on the list. She was still making that request in October 1996.

The letter of 29th April 1996 also said that there was a place at the Battersea Technology College in Wandsworth LBC. Ms Marr applied there and Andrew had an interview there on 5 July 1996, but the College wanted Andrew’s file from Lilian Baylis. She heard nothing from the College until she rang in September and was told that it was still waiting for the file. Eventually she rang Wandsworth LBC which told her that Andrew was Lambeth LBC’s responsibility. Correspondence with the college and Wandsworth LBC achieved nothing but in October 1996, the College wrote to her saying that its “rigorous attempts to obtain specific information” relating to Andrew at Lilian Baylis had been unsuccessful, that its primary concern was for the welfare of those at the College already and the information which it did have raised “serious questions around Andrew’s attendance at the college”; accordingly no place would be offered to him. She protested to Wandsworth LBC which supported the College’s refusal and, she said, added over the telephone that the LBC was fed up with taking “Lambeth’s dregs“. She also complained to Lambeth LBC about the failure of Lilian Baylis to send the information about Andrew to the College. She did not appeal against the refusal of a place, but said that she had tried hard to get Andrew in there. She did not appeal against any refusal of a place after his exclusion because she felt that Andrew was very much labelled by his behaviour.

On 24th October 1996, Ms Bamber wrote to the ESW about Andrew in response to his letter of 21st October 1996, in which he had pointed out that there had been no vacancy at the London Nautical school, and asking for an appropriate school to be named so attendance could be enforced. She said that there had been a vacancy but that it had been filled by the time Ms Marr had been in contact with the school. She referred to her letter of 1st May 1996 in which BTC and another school in Southwark had been notified to Ms Marr as having vacancies. The letter continued that 5 other schools in Wandsworth and Southwark had vacancies in Andrew’s year group. Ms Marr tried another non-Lambeth school in October 1996 but was told that Andrew’s circumstances and background meant that he had no chance of being accepted. The ESW in Lambeth sent her on 1st November 1996 the list of schools in Southwark and Wandsworth referred to by Ms Bamber. Ms Marr’s evidence was that when she got in contact, only one had a vacancy and that one never replied to her request for an application form. She could not recall if Archbishop Ramsey’s had a place, although her letter of 16th April 1997 said that it had many spaces at that later date. She did not apply because she went there and saw several concerning behaviours which troubled her in view of Andrew’s behavioural problems and she needed a school where his behaviour would not deteriorate. But she did apply in May 1997, and could not say why she had not applied earlier. She chose to keep him in the Tuition Centre.

Ms Marr wrote to Lambeth LBC on 24th October 1996 making a formal complaint about the way in which her son had been out of formal education for so long. She demanded to know what their responsibilities were towards Andrew, and she said that Lilian Baylis was ignoring all correspondence. At the end of October 1996, Ms Bamber of Lambeth LBC, wrote to Ms Marr saying that Dr Akpeneye had sent a complete copy of Andrew’s school record to her at the end of the summer term 1996 which she could show to BTC if she wished to purse a place there and also that it could provide for the College a copy of the information in the exclusion file - if that would help. The College told her of the appeal process. In November 1996, Ms Marr wrote back to Ms Bamber denying that she had ever been sent a copy of Andrew’s school record; she had only been able to see it under supervision and had been allowed to take copies of what she wanted in March 1996 at the time of the appeal against exclusion. The absence of these records from Lilian Baylis was holding up his assessment and she said had cost him a place at BTC. When eventually Andrew’s file was sent to the College in November 1996, Ms Marr had come to regard the College as just another lost cause.

On 8th May 1996, Ms Marr had written to Lambeth LBC asking for a statutory assessment of Andrew. It had responded that it did not have enough information to show that the statutory criteria for the initiation of the process were met. There was correspondence in which Lambeth LBC sought information about Andrew for these purposes. Dr Akpeneye was asked again in July 1996 to provide the information sought by Lambeth LBC. The school did not respond and did not respond either to chasing letters in July and indeed it appears from the files of Lambeth LBC in December 1996 had not responded with the necessary information by then either. Dr Akpeneye said that she always dealt efficiently with her correspondence, and had seen it because she had marked it and passed it on for the then SENCO, Mr Vanier, to deal with. Requests of this sort were constant. As Head Teacher, she did not get involved in the statementing process.

Nothing had happened until the end of October 1996 when, after more chasing with the help of the local Law Centre, Lambeth said that it was “proposing to conduct a statutory assessment.” A letter of 13th December 1996 from Lambeth LBC to Ms Marr said that it had now received her agreement to proceed with the statutory assessment and was “now initiating” an assessment. She commented on the draft statement in April 1997, that Andrew needed 15 hours of support teaching per week rather than the 6 hours which it recommended once he was in school.

After exclusion, Andrew had continued to attend the 409 Project, but his recollection of it was shown to be poor in cross-examination. He thought that he missed sessions in February 1996 because Ms Brennan had stopped working there but he agreed that her reports showed that she was still there. He said that he was teased there and “had the piss taken”. He would not do the work if he could not do it. He did not like other people to know his business because he was embarrassed. The 409 Project reports for January 1997 showed falling attendance from September 1995, sporadic attendance from September 1996 and mixed comments on concentration, distraction and motivation. By September 1996, he was behaving badly, notably when in groups. He turned up less and less and the befriending ended. He was recorded as complaining that he had to look after his younger siblings a lot.

In January 1997 he was offered one to one tuition there for 2 sessions a week each of 2 hours. There would also be counselling. He only attended 1 out of the 8 sessions. Ms Marr knew when the sessions were and that it was important for Andrew to attend for his reading.

In February 1997, she applied for a place at Stockwell Park School but two months later it said that it had no places.

In March 1997, she complained to the Local Government Ombudsman about the failure to follow up the visit to Mr Brooks in 1994, the failure of the appeal committee to take into account the school’s failure to provide support for Andrew’s special needs, its failure to deal promptly with her request for a statutory assessment, and the failure of the LEA to provide for Andrew the educational support to which he was entitled. The complaint was settled by Lambeth LBC agreeing in 1998 to pay £1500 in compensation, for the delay thought Ms Marr, and there was therefore no formal decision on the complaint. She bought Andrew some books with the money, and paid for a teacher to come and give him literacy lessons. She had initially said that she could not remember what she had done with it and there was no mention of this in her statement. I found that omission very surprising, if it had happened. From what I heard from Ms Marr, I would have expected her to have wanted a progress report. I would have expected Ms Willis, the Claimant’s expert to have referred to it.

In May 1997, Andrew was arrested for trying to impersonate his father and vote in the General Election. He had been impressed by the Labour Party’s promises on education. Local newspapers picked up on his action and needs. He had been out of school for nearly 18 months. Within a few days, Lambeth LBC was in touch with the result of the statementing process. The official also provided the names of 4 schools in Southwark. None had spaces when contacted and made promises of future contact which were never acted on by the schools. Andrew said that he had become very worried and depressed about what was happening to him and desperately wanted to get back to school to learn to read and write.

On 23rd May 1997, however, Lambeth LBC wrote to Ms Marr offering Andrew an interim place at the Norwood Tuition Centre after half term. He had been removed from the waiting list in May 1996 and had not been reinstated, despite regular calls from Ms Marr. She said that she was very surprised to receive this letter as she had no idea that Andrew was back on the waiting list. She put this success down to the publicity which Andrew’s case had received. She referred to a letter of early June offering him a place from 9th June 1997, which is when he started there.

Andrew started well there and his mother did not think that there was any point in moving him to a mainstream school. He attended for 3 hours a day for 4 days a week, spending 2 days at the tuition centre and 2 days at Norwood College doing courses in video and photography. He enjoyed science and there was more time to write and to complete work than there had been at school. He could not remember whether there was any special reading or other tuition for him but if there was, it did not last long. He also gained some work experience.

But after a good start he got in with a group who were not interested in doing any work. Andrew said that “all the bad boys in Lambeth” were at the Tuition Centre and many had been in trouble with the police and had been to prison. The teachers had mostly just given up and the main purpose was to keep the pupils off the streets. Everybody could see that he could not read or write; he was teased and embarrassed. So Andrew said that he did as he had done at school and sat with the most disruptive pupils so that he would not have to show that he could not do the work. As Andrew put it the "peer pressure” was too much, and he “mixed with the wrong crowd“. He could not read or write when he left but he got a GCSE in Art. He started smoking cannabis there and getting into trouble with the police.

Ms Marr received the Statement of Special Educational Needs on 16th July 1997. The Statement was formalised at the cash equivalent to 6 hours additional support teaching from a Learning Support Teacher and envisaged that it would be provided in a mainstream school. The main objectives related to reading, mathematics and behaviour at home, socially and at school. The Statement of his needs referred to a history of low literacy skills and behavioural concerns. The problems at school have already been covered adequately but it also noted that he did not fit in readily with the family routine and squabbled with his siblings, he was immature, did not conform readily to boundaries, had a younger friendship group, could show temper and moodiness and was very sensitive about his difficulties.

This summary reflected his mother’s comments that his family relationships were not very good, that she was considering mediation for his relationship with his sister, and he had tantrums when he felt that his mother was picking on him. He also had weak communication levels and problems with pronunciation; he was “lazy” in his speech. He needed to go back to basics and learn again.

Ms Brennan’s input noted that he saw himself as “a fat fool”, and he had given up on the 409 Project in November 1996, having become over the last several months less attentive and more distracted. He had had a “befriender” between February and October 1996 but his behaviour had including bullying of other boys on a trip, and other immature behaviour. He had not turned up for the last few trips.

A common theme of the observations was Andrew’s low self-esteem. The EP came up with some general recommendations. He concluded that Andrew had “some emotional needs and behavioural difficulties which in part, stem from his needs not being recognised and addressed in a safe, structured and challenging environment.”

Ms Marr said that she did not know whether Andrew received the 6 hours support or not and there seemed little point in doing anything because after 16, Lambeth LBC would wash its hands of him anyway. He became involved in petty crime and drugs there, although she fought very hard to keep him away from that lifestyle.

Andrew could not remember an incident which had led to the Tuition Centre writing on 5th November 1997 to his mother. He had taken a knife to the Centre and had used it to cut a hole in a chair and had taken it again after he had been told not to; he had made a great disturbance in the lesson and had refused to hand it over. He was also seen damaging the canopy of a local shop shortly afterwards. The teacher wrote that Andrew had done well to date academically but his behaviour was damaging his prospects. Andrew agreed that he argued with the teachers and swore at them but he denied the Centre’s report in December that without provocation he had destroyed another pupil’s work.

His father remembered a discussion about problems that Andrew was having there: attendance, behaviour and needing to practise his reading and writing. The Tuition Centre’s report on Andrew in December 1997 said that they had discussed Andrew’s lack of attendance and lateness, which Andrew had attributed to having to collect his siblings and look after them. Ms Marr said that she was working, but her answers on this were distinctly evasive and I received the firm impression that what Andrew had then said might well have been correct. Andrew, in his evidence, could not remember saying that and did not think that the lesson times were in the morning anyway. The report told her of the days when Andrew had to attend his construction course and hoped that she would encourage him to attend, especially as he only had a few months of school left.

The SEN Statement was reviewed in November 1997. Ms Marr did not go to the progress meeting. He was to stay at the Tuition Centre with small group teaching and access to one to one support and that meant that the LEA would cease to maintain the Statement. His first half term attendance had been good. He now enjoyed science which he had not before but he found English boring.

Ms Marr saw Andrew as still very resentful about his education and said that he was not the person he should be. His life could have been so very different if he had received the education he should have. She and his brother were still having to do the writing side of his further studies. She had encouraged him to take literacy courses after leaving school and said that his courses had included literacy.

Ms Bamber made a statement but was not required to give oral evidence. She was the Exclusion Manager at the relevant time and her Manager was Ms Horsford. It was Ms Bamber who had sent the 3 letters to Ms Marr following Andrew’s exclusion: 7th March and 9th and 29th April 1996. The Tuition Centre was the Pupil Referral Unit and was the place where tuition was provided until a school place was found. She was sure that there had been a vacancy at the London Nautical School when she told Ms Marr, because she herself would have checked it; but it was a very popular school and the place would have gone unless a parent moved very quickly. She had made considerable efforts for Andrew then and in May and again over the summer holidays and found more places for him than would have been normal for an excluded pupil. Most would have found a place quickly.

Ms Ironside likewise was not called to give evidence but her statement dealt with events as the Head, until July 1997, of the Norwood Tuition Centre. She thought that the Unit did well for its target pupils and was well staffed with experienced teachers. Its intake included pupils with severe emotional and behavioural problems, excluded pupils, pregnant pupils and young mothers. There were some 80 pupils and 20 teachers. Its aim was to return pupils to mainstream schools as soon as possible.

When he arrived, Andrew received an interview and was given a carefully tailored education to meet his needs with support in every class and the classes themselves were small. Each was staffed by at least 2 teachers with vast experience of teaching pupils with special educational needs. Andrew made a good start according to his July 1997 reports and teachers were delighted with his enthusiasm. Pupils were constantly reviewed. To the summer of 1997, Andrew had worked hard, and attended punctually and regularly. In September 1997, it appeared from the records that Andrew had accepted a permanent placement at the Centre with an increased number of hours.

Ms Horsford was the Principal Pupil and Student Services Officer for Lambeth LBC’s Education Frontline Services in 1996/7. They worked closely with ESW. The task of ESW was to undertake home visits and to arrange school visits to see why a pupil was not attending. She said that by May 1997, Lambeth LBC was concerned by the fact that Ms Marr had not kept in touch and a Court warning was contemplated. She thought that Ms Bamber was a very conscientious Officer who would contact weekly all 10 Secondary schools in Lambeth, (5 were self-governing), to see what vacancies they had, and maintained contact with the neighbouring Boroughs. She confirmed that places when notified went very quickly in some schools. Parental effort and co-operation were essential. She thought that considerable efforts had been made to find a place for Andrew after his exclusion. Because places at the Centre were always intended to be interim, once a place had been offered elsewhere, it was inappropriate for the pupil to continue to be offered a place at the Centre. The ESW had asked for Andrew to be reinstated on its list early in June 1996. But there was no policy that one offer meant that a pupil would be removed from the Centre’s waiting list.

Placing an excluded child was not easy if there were behavioural difficulties. There were concerns at the time about the number of exclusions of young black males. She did not have figures for exclusions but estimated that there were 20 exclusions over the whole range of pupils. Not all of the 80 places at the Centre were full time. There were also many other forms of provision. The LEA was keen on a school placement because once a pupil had entered the Centre mainstream placement was more difficult.

She asserted that a place at the London Nautical School would have been available. If more than one child was chasing a place they would all have been informed. There were relatively few chasing them. Lambeth would ring the school and say that someone had been told of the vacancy, but Lambeth did not manage its admissions. Lambeth only controlled the waiting lists for its own schools and not for those which were grant maintained or in other Boroughs. If the place had not been available, there would have been a discussion and a place at the Centre would have been offered again. Others needed the information about places as well but the option of places at such schools would have been exhausted first before other options were considered. She agreed that the election publicity appeared to have caused efforts to be made but she could not say, nor could she say why Andrew could not have been put into the Centre earlier. Transport would have been available for school placements more than 3 miles away.

Over the years after Andrew left the Tuition Centre, he was convicted on a few occasions of possessing cannabis and of theft. He had 2 brief periods of employment, as a shop assistant and on a building site. In 1999, he obtained City and Guilds certificates in car mechanics, as result of a referral by his probation officer for the one year course. But in 2000 he was sent to prison for 2 months for demanding money with menaces.

When he was released he attended a course in life skills and obtained certificates at entry level in communication skills and numeracy. He received some support along with 4 other dyslexic students. He tried unsuccessfully to obtain further employment, while in receipt of Job Seeker‘s Allowance. He also started attending a business course, “Breaking Barriers“, but dropped out early because he could not read. He completed a short Prince’s Trust course, but was refused a place at a College to study computing because he could not read or write.

Eventually in September 2002, he started a course in Music Technology at South Thames College. He completed 2 years of the course which was practical work and required attendance 2 days a week which would lead to a Higher National certificate. He was awarded various certificates on completion of certain modules. The work in the third year was more taxing because of the greater complexity of the teaching vocabulary and the amount of research and written work, and he dropped out. He told the College of his difficulties and according to his statement but not his oral evidence, it had told him that he needed speech therapy. He had had no help there with his dyslexia, because although he told the College’s Special Needs Department about it, there was only one computer for dyslexics and a waiting list to use it. They had offered classroom support but he did not get it because the support teacher would not understand the complexities of music technology, and Andrew did not understand the words. He had bought a Dictaphone and tape for lectures.

In September 2005, he had started another course in Buckinghamshire, but had dropped out because of the fees; he was trying to get a course closer to where he lived. He had had a security job in September 2005 but lost it because when they told him where to go and he tried to write it down, he could not recognise where he was meant to be. He had had jobs in shops and his money was paid into a friend’s account. He lost one shop job stacking shelves because he could not read the labels for re-stocking and was embarrassed to ask. He lost his job on a building site because he could not get up for the early start. He had never been able to get a job as a car mechanic because he could not do Level 3 of the course because his tendons had been cut in a street fight; he was pushed through a window by a shopkeeper who thought that the group Andrew was with were trying to rob him. He agreed that his convictions would hinder his obtaining work in shops.

Andrew described his current difficulties: complicated instructions because they involved difficult words; using and understanding formal language whereas street language was easy; television news programmes were difficult to follow but not soaps. He could read the “Sun” sports section and have a vague idea of what they were talking about.

His aim was to study computer engineering as he had wanted to be a computer engineer for as long as he could remember and wanted to go into desk top publishing. He still looked for part time work but work placements in recording studios were rare. He described himself as more motivated now than when he was at school, as more mature and as having “wised up” as a result of going to prison.

I now turn to the expert evidence. This was in a less than helpful form because much of the material upon which the Claimant relied emerged for the first time by way of responses within the experts’ joint statement of areas of agreement and disagreement; and a further expert’s report for the Claimant was withdrawn, though not irrelevant to the overall picture. The relationship between the Claimant’s reports and his Particulars of Claim was indistinct.

The Claimant’s expert was Ms Willis, a Chartered Educational Psychologist with various qualifications in that field and in SEN. She had taught in primary and secondary schools and had been a SENCO in primary schools. She had specialised in teaching pupils with specific learning difficulties in primary schools and in providing 1:1 support for statemented pupils. In her evidence, she described her actual teaching experience with Croydon, Bromley and Surrey LEAs and her EP experience with Brighton and Sutton: she had spent 4 years or so in primary schools with a mix of full and part time, supply and regular, with some gaps. Her last full time primary teaching job had been in 1971. She had taught in secondary schools as a supply teacher and part time teaching business studies; she had worked in a pupil referral unit with those who had behavioural and emotional difficulties. Her experience in secondary school teaching did not exceed 2 years and was not recent. She taught pupils at home who had difficulties accessing the classroom, and reading and writing to private clients on a 1:1 basis. Her experience of deprived areas drew on primary school supply teaching and research in a part of Croydon, but she had not worked in an inner city school. She agreed that achievements tended to be lower in deprived areas.

Her first report was dated August 2003, with an addendum of January 2004. It contained a detailed assessment of Andrew’s literacy and communication skills which she had tested. She concluded that he had severe specific literacy difficulties or dyslexia, significant difficulties with numbers and could not read the written content of numerical problems and had language difficulties. She recommended that Andrew be referred to a Speech and Language Therapist and a counsellor, that Andrew and the family attend family therapy sessions with him, that Andrew should have 3 hours a week supported teaching, and access to a similar peer group, 1:1 teaching in computer engineering, and a computer, printer and scanner bought following specialist advice. It is far from clear what allegations of negligence were being made in the August 2003 Report. Ms Willis later stated that family counselling was necessary purely for the impact which Andrew’s learning difficulties had had on the family. He needed classroom support for university because he was reluctant and embarrassed to access support. There were adult literacy courses in some Boroughs but Andrew did not want to know about them because he would be embarrassed with his level of disability. The January 2004 addendum followed a report from Ms O’Keefe, a Speech Therapist and quoted from it. These reports lacked the usual expert’s declaration but she said that they had been prepared on that basis.

The August 2003 report said that Andrew was functioning at an age of 7-8 in expressive and verbal language, and that his difficulties in that respect had been noted pre-school and had continued throughout his schooling. Children who could not develop language and communication had negligible chances of learning and achieving literacy or numeracy targets or of developing life skills. Andrew’s difficulties at primary school should have alerted someone there to suggest a referral for speech and language therapy while he was at primary school. If that had happened and if he had had a statutory assessment and if he had had provision in place “before the end of his primary education, then his progress would have been very different.” Ms O’Keefe concluded, in her report, that by the time that Andrew was statemented the psychological and emotional effects of his unmet needs had already had a disastrous effect on his behaviour. Even then his needs were not fully described, and the support was inadequate. Andrew should have been taught by experienced teachers, additionally qualified in teaching those with severe dyslexia and associated language processing difficulties.

This led Ms Willis to express the view in her addendum that a large number of steps would have been taken if Andrew “had been exposed from the beginning of his educational career to professionals exercising a reasonable level of professional care and skill and care.” The clear implication is that there was professional negligence from the start of Andrew’s education and much should have been done by the age of 6-7. That can be summarised as early recognition of the problems, early contact with outside agencies including the EP, more differentiated and supportive teaching, a statutory assessment if necessary. Specialist schooling was not unreasonable to expect, seemingly by the age of 9-10. He had not received any of this support throughout his primary years. The later EP reports did not make adequate provision even at that late stage. Ms Willis expressed the view “that the lack of suitable education was due to a failure on the part of his teachers, the Educational Psychology Service and therefore the LEA to use reasonable professional skill and care to diagnose and provide reasonably appropriate tuition and treatment.” She thought that if those steps had been taken none of the troubles and difficulties which he later experienced would have occurred. The addendum does not make any clear separate allegations in respect of his secondary schooling or post exclusion education. If the reference to the EP is a reference to the report by Ms Afuape in 1996, the allegation of negligence against her was withdrawn. She could not say that the EP had been negligent, because the EP had found Andrew to be articulate.

Ms Willis explained that the steps listed in her first report related to what should have happened at primary school but then said that it was not an assessment of negligence against anyone. She could not identify all the teachers but, in general terms, they had all been negligent. She agreed that that report did not relate to Andrew’s secondary school years although she would now say that they were negligent too. This was because, although she had already seen the secondary school reports, she felt that the damage had been done at the earlier stage and Andrew “had been set up to fail” at the secondary stage. She did not mean that there was anything deliberate about that; it was simply her rather misleading or imprecise way of saying that failure at secondary school was inevitable or likely given the omissions on the part of the teachers at primary school.

Mr Acklaw, also an independent Chartered Educational Psychologist with various diplomas, produced a report for the Defendants in May 2005. He had been President of the Association of Educational Psychologists. He had been the principal EP in one of the largest LEAs in England for 18 years. He had also been a principal Inspector of Schools.

In his opinion, Andrew had average non-verbal abilities but poor language fluency and verbal comprehension skills which would have hindered his access to the school curriculum. He was functionally illiterate with below average numeracy skills. Dyslexia was not the discrete or single condition causing his learning difficulties which were associated probably with poor language skills. His failure to make significant progress was not caused primarily by a failure to identify his learning difficulties or to diagnose dyslexia. Language skills were the province of the teacher and speech therapy that of the doctor. Andrew had genuine learning difficulties throughout his school years but his immature behaviour and response to teaching rather than any inadequacy of assessment or provision were probably the significant factors affecting his long term failure to overcome them or to make better progress. His low self-esteem, though common to many pupils with learning difficulties, was likely to be caused by factors other than school experiences. The steps taken by the teachers were comparable with those which would have been taken by teachers in schools with similar intakes and fell within the range of competent responses. Provision for Andrew’s learning difficulties and behaviour at primary and secondary school was relevant and conformed to the pattern generally observable in inner city schools with disproportionately large numbers of pupils with learning difficulties and other problems. Statutory assessment was not required earlier than it had been undertaken. The level of support from the LEA officers after Andrew’s exclusion was better than might have been found elsewhere.

The body of his report contains a detailed assessment of the responses as recorded in the school notes and the teachers’ statements. The functional deficiencies in Andrew’s language appear to have increased since leaving school through immersion in street culture. Poor language fluency and comprehension would have had an increasingly significant impact on his ability to access the curriculum as he grew older. But the growth of a tendency to difficult behaviour, already established at primary school, would have made it harder for teachers later to help him overcome his learning difficulties. Mr Acklaw saw Andrew as typical of a category of pupil of which he had professional experience, who did not see school and the values attached to education as relevant to them.

The experts’ joint statement on areas of agreement and disagreement dated September 2005 was not as helpful as it should have been because Ms Willis used it to advance fresh allegations and more detailed allegations in support of allegations which were already raised. Ms Willis told me that this was the first report to advance allegations of negligence against the secondary schools.

They agreed that Andrew had poor language fluency, verbal comprehension skills and possible language processing difficulties. Mr Acklaw thought that there was no basis for saying that the EP should have picked up any speech therapy needs and thought that it was possible that Andrew’s speech had deteriorated since leaving school. Mr Acklaw was of the view that reading difficulty could be increased by language problems and immature speech, but that would not lead to different teaching methods for reading, and neither would be met by therapy. Therapy would only be required for a condition far more severe than here.Ms Willis thought that he had speech and language difficulties from a very early age which should have been noted by the teachers and brought to the attention of the EP for onward referral to the speech therapist. But she accepted that the omission of that form of referral could not be regarded as negligent. She later agreed that the link between language and literacy had not been well recognised in the early 90s and was only now being dealt with.

Mr Acklaw thought that Andrew’s IQ was low average but Ms Willis thought that it was average and higher than his reading and writing abilities as assessed at school. She provided considerable detail in support of that view. Orally, she said that Andrew was close to the borderline between low average and below average.

It was agreed that an assessment by Mr Brooks had taken place, a conclusion on fact with which I also agreed. Mr Acklaw did not feel that on the evidence he could comment further. Ms Willis thought that the absence of his notes from the files of the EP Service or the LEA meant that they had been negligent and that this had prevented a proper follow up. There should have been a record, even though this was a referral outside the scope of a school referral and was based on parental initiative. The new EP should have carried out a school visit and interviewed Ms Marr. This would have led to the instigation of the statutory assessment process, and although the content would not have been very different from that which was to be produced in 1997, it would have been produced 3 years earlier, which would have been of some assistance.

They agreed that Ms Brennan’s report on Andrew in September 1995 was a thorough description of his functional strengths and weaknesses and the list of recommendations was suitable and are commonly used, whether or not dyslexia had been diagnosed. Andrew was functionally illiterate and had had genuine learning difficulties throughout his school years. They also broadly agreed that that assessment was not evidence that Andrew had a previously undiscovered learning difficulty requiring different methods from those which would be employed in an effective school.

They agreed that the statutory assessment by Ms Afuape used the right assessment tools but Ms Willis thought that it had been submitted some time after it should have been ready. Mr Acklaw thought that it was neither late nor that the time taken had had any effect on Andrew’s education. Ms Willis also thought that Ms Afuape had failed to recognise Andrew’s language difficulties but agreed that that omission was not negligent. She thought the recommendations vague but again not outside the range of permissible degrees of detail. Ms Willis took the view that a statutory assessment ought to have been carried out, the sooner the better, from Year 5 of primary school onwards, whereas Mr Acklaw thought that such an assessment would not have been seen as essential to the understanding or resolution of Andrew’s difficulties. He did not agree, in oral evidence, that early intervention was always for the best; children could mature. Appropriately differentiated treatment was required. Mr Acklaw said that there should be a file for every child; some records should go to parents. It would be helpful if it were available to be passed on to other schools.

The debate about whether dyslexia had been diagnosed or was present stemmed from the allegation in the Particulars of Claim that there had been a negligent failure to diagnose dyslexia. Mr Acklaw thought that there was no technical basis in the Brennan report for a diagnosis of dyslexia. Ms Willis was of the view that dyslexia did not have a particular diagnosis and was rather a term which denoted those with entrenched literacy deficiencies; it was the same as Specific Learning Difficulties. In her evidence she added that what mattered was getting the overall profile but that said nothing about the underlying cause. Mr Acklaw thought that dyslexia was a continuum from inability to read to good readers; it was difficult to define. Both experts seemed to be agreed that the same methods of teaching those whose reading skills were low were to be used, whether or not there was a diagnosis of something which would command assent as dyslexia. I did not think that cross-examination on this topic advanced the sum of knowledge or the case.

They agreed that Andrew had low self-esteem but attributed it to different causes, Mr Acklaw primarily to factors other than the school experience, Ms Willis to unmet educational needs relating to his significant difficulties. Ms Willis took issue with Mr Acklaw’s view that Andrew’s immature behaviour and response to teaching were probably significant factors in his long term failure to overcome his difficulties, rather than inadequacy of assessment or provision. She thought that Andrew had been failed by his teachers at both primary and secondary school, and by the EPs for their failure to record an assessment, and to ensure that their findings were acted upon. This had led to inadequate opportunities to address Andrew’s literacy needs. And it was this that led to the behavioural difficulties; the teachers had a responsibility to provide an environment in which Andrew could learn. His behaviour increased the need for a proper investigation. A low reading age could be caused by many factors and some would lead to the same remedial measures but once they had been understood, it could be seen whether a referral to the EP was necessary. Ms Willis accepted in cross-examination that teachers worked within the resources available to the school, and that the EP’s time had to be prioritised and a pupil would not be contemplated for referral unless he was significantly different from the others.

In her oral evidence, Ms Willis agreed that emotional and behavioural problems could inhibit learning and could also be independent of such difficulties. There was an element of the chicken and the egg about it, and it all depended on the child as to whether one could say which had come first. She rejected the notion that bad behaviour was a matter of choice. So much depended on the stage at which the problems were identified, for Andrew’s behaviour had become quite extreme towards the end of his schooling. He had been through the whole of it without his needs being met, and his behaviour had moulded itself into a pattern. He had been placed with criminals and those were the only people to whom he could relate. Nonetheless, she said that in the end everyone was responsible for their own actions. He had had a choice as to the road he went down and he did not have to steal. He could be influenced by family factors and even by overcrowding at home, or verbal abuse from an alcoholic. The younger he was, the greater the influence of those factors upon him, if they had been present. But she did not think that his stepfather had been a real problem.

If behaviour was linked to reading and writing difficulties, she would expect to see that more strongly reflected in lessons which were the more oriented that way but entrenched behaviour would not vary much from lesson to lesson, for one’s credibility had to be maintained with the group and in the teenage years behaviour was not going to change. Argumentative behaviour reflected the same pattern. She did accept that in Year 7 at Archbishop Tenison’s, he had appeared to be well behaved and enjoying English, and she hypothesised as to whether he had had support and a sympathetic teacher. He had also enjoyed geography. The visit to the Lion King was an example of the pattern of behaviour which Andrew had set for himself and it was not going to change, in or out of school. Some teachers simply looked at behaviour and not at the causes of misbehaviour, but it was natural for teachers to try to control behaviour. His exclusion for it was reasonable.

Ms Willis did accept that attendance and lateness could have affected Andrew’s progress, both socially and educationally, but it was a matter of degree. It had certainly become an issue at Archbishop Tenison’s, but it was less significant at primary school though it would still affect his social progress there. She agreed that it was significant that every teacher from primary school on had commented on lateness, although she had not mentioned it in her first report. She had been asked to remove her comments on lateness before it was served. She said that she was dependent on the comments of others as to what should be in it. She insisted that those comments be brought in later. But she could not recall what comment she had made about its effect upon his learning.

Ms Willis then attributed his lateness to worries about literacy and that could mean that he would straggle in or hide somewhere and the child at a young age would associate everything at school with his anxiety about literacy.

There was no necessary link in Mr Acklaw’s view, between Andrew’s agreed low self esteem and disaffected behaviour; it was not possible to generalise: a child might lack values or acceptance of authority and discipline. Learning difficulties could not be the sole cause of low self-esteem but were part of the package. Peer group pressure could affect how they behaved. Non-school factors were very important in low self-esteem and there was no simple direct link. Learning difficulties could reinforce it though, as could feelings of insecurity towards a father, and being very young in the year. Children generally want to please adults and if they start feeling that they cannot please those whose approval they seek, their anxieties are reinforced by a new situation. The range of difficulties manifested itself at school simply because that was where he was. The fact that Andrew thought his reading to be rubbish did not mean that there was a causal link to self-esteem; that did not come from being a poor reader but from other peoples’ reaction to what he did and how he thought they perceived him. This could be friends or parents reacting to reading failures, comparing him to others such as a sibling, and could lead to an unwillingness to read or to risk failure. Taunting by a sister would contribute to it. The medical report showing bed-wetting was a significant factor as was over-crowding in the accommodation, family disruption, experiences with his step father, his early school age. A young man with a history of bed-wetting knows of an embarrassing problem and that would be a significant factor in low self-esteem. These all had a cumulative impact on self-esteem, and would have done so, even if he could read. He had other development problems: by January 1997, aged 14 ½, Andrew was nearly 6 foot tall (1.97m) and weighed more than 15 stone, (97.4kg). The fact that Andrew’s low self-esteem was focused on reading did not mean that there was a direct causal link. But dealing with low self-esteem would enable someone to take risks in reading.

Mr Acklaw agreed that a sense of failing would affect attendance. Behavioural difficulties could be symptomatic of learning difficulties, though there was no direct and simple causal link. Teachers are not to be assumed to be responsible for lack of achievement; even with excellent teachers, these problems arise. There were links between his literacy difficulties and his behaviour; the latter becomes a means of avoiding his confronting the former. Such pupils gain little satisfaction from school, preferring the rewards of their peer group than of their teachers and that pattern prevents them accepting opportunities and teachers helping them. It is an explanation for some children. Andrew was not willing to accept opportunities and his behaviour prevented him taking advantage of what was offered, even at primary school and his behaviour does show examples consistent with avoiding behaviour. Schools can take steps to accommodate such pupils, but a school cannot make someone respond and there is a limit to what it can do.

There was however a history of poor concentration and lateness which can develop an attitude that school is not important; lateness can often reflect that education is not of the highest importance in the family and that can lead to learning difficulties. Literacy difficulties had a part but not the only part in the behaviour problems. They can contribute to a sense of low self- esteem and to a desire to obtain rewards outside the school system. Inside school, misbehaviour may be avoidance of work or to get at the teacher, but outside school, such as with the Lion King incident it is more a desire to show power to impress friends. Andrew wanted to look good, not just because of learning difficulties or because others misbehaved. If his literacy had improved that could have fed through to improved behaviour. His good start at the 409 Project and at the Tuition Centre suggested a common thread: he responded well to personal attention.

Ms Willis produced 3 Appendices to this Agreed Statement, the third of which was a detailed critique of the various schools through the notes, statements and reports of the teachers.

Ms Willis produced further material in response to my concerns about what allegations were being pursued, and in particular about the way in which the abandonment of allegations of negligence against Archbishop Sumner’s school, and in the failure to seek speech therapy, whilst maintaining the factual assertions that problems existed unremedied at that school and of language or communication, would affect what loss might have been caused by the remaining allegations of negligence if proved.

Another letter from Ms Willis dealt with the consequences of various steps being taken in his secondary schools, because I was concerned to understand the impact of a conclusion that earlier omissions might not be negligent, but nonetheless would have had an impact upon what the next school received, and had to do in its turn not to be negligent, and what were the prospects of success for remedial action at that later stage.

Ms Willis expressed the view that the teachers at Archbishop Sumner’s had been negligent in failing to seek a referral to an EP. There was, she thought, evidence that, at this early stage, Andrew’s behaviour was becoming attributable to his falling behind in his reading. Ms Willis remained of that view in cross-examination because of the state of Andrew’s reading when he went to Vauxhall PS, by which time he was clearly underperforming. People had reading difficulties if they were not dealt with in time. Even at the age of 6, children are able to begin to feel that they are stupid and to lose their self-esteem. The longer that went on, the more the rot set in.

There was also some evidence that Andrew and his siblings suffered from hyperactivity which the school ought to have considered. It could be seen in his PE reports. This medical condition, though not diagnosed in this case, was often also linked to dyslexia, and can be coped with by certain teaching strategies. His behaviour in primary school class was not such as to cause a problem for the class. This was not an allegation of negligence taken up or pursued by the Claimant, though the fact of early difficulties is relevant to what could or should be done later.

Ms Willis also concluded that Andrew should have been the subject of statutory assessment by “at least” Year 5 of his primary education so as to be equipped for secondary education, and that Vauxhall Primary School’s failure to make suitable provision for Andrew’s specific literacy and language difficulties and to refer him to an EP fell outside the range of what would have been considered reasonable by teachers. Problems in Year 5 would lead to terror of Year 6, and would affect lateness and attendance. He would not be able to access the next year’s curriculum. He should not have been allowed to leave without the ability to access the secondary school curriculum and without any attempt being made to discover the cause of his difficulties.

She contended that Vauxhall PS should have referred Andrew to the EP by the end of Year 5, aged 9-10, if they were not negligent, and the result would have led to most of the various steps which she had detailed in her earlier report. In her evidence Ms Willis agreed that reading could be influenced by language, although exposure to reading did enlarge vocabulary. Grammar teaching could advance comprehension of language. She accepted and it is obvious that vocabulary precedes reading at the earlier stages on any view and that poor language will hinder reading and the recognition and understanding of words. Andrew did have an underlying difficulty with language and she still maintained that he should have been referred to a Speech Therapist to provide a component but not a key part of the information about Andrew. She also said that speech therapy would have been the “icing on the cake.” A positive outcome would still have been likely. She also said there was a better chance of a faster result but that did not mean that the same outcome was impossible or even unlikely. So it now appeared that there would have been no real difference in outcome in her view. Although she had said that it had been negligent for speech therapy not to have been provided for Andrew in her first report and had then said orally that speech therapy “was simply the icing on the cake”, what she meant in those apparent contradictions was that you should find out all the information that you could about a child.

Her oral evidence was that all Year 3 teachers and the Head Teacher had been negligent, judging by the reports, in not going to the EP. Later she said that she would not necessarily have expected a referral but input and support from the EP. If the school were experienced in dealing with a deprived intake, as they were, referral to the EP would not be necessary if the strategies in the school were effective. She would have expected everyone to do everything to discover the underlying causes of Andrew’s problems, but only his behaviour was targeted. His language difficulties could have been seen as not listening, but that would have been unjust to the child; frustration leads to behavioural difficulties. She agreed, however, that concentrating on behaviour was a very common response of teachers. Help could be given in achieving greater differentiation in lessons. Although he was still under-achieving at Vauxhall PS, there was evidence from the reports that he received a great deal of help there in the class context and made some progress. That support was not reflected in her report, she agreed, nor had she dealt with the type of support he needed for reading difficulties, although at the time of her report she had the Vauxhall PS witness statements and knew what the intake was like. She expected a structured learning programme for him. The fact that there may have been others who were the same or worse simply meant that there was a greater need for more differentiation in classes or withdrawal on a small group basis. Someone should have been responsible for prioritising pupils for stronger strategies. Ms Willis had to acknowledge that she had overlooked the report from Vauxhall PS which said that in 1991/2, Andrew had often had 1:1 support and small group teaching in language, but she insisted that some of the writing strategies, e.g. neatness, were pointless.

The referral to Rectory Grove was inappropriate and would not have addressed the underlying causes of Andrew’s behaviour, which related to his literacy and possible hyperactivity. Primary School teachers should be aware of the whole child and look at the reasons for their behaviour. They should look at children in terms not of behaviour but of needing literacy support. His lateness did not cause a lack of progress, it was the other way round.

Mr Acklaw responded orally that at Vauxhall PS, if the teachers felt that he was making inadequate progress and their resources and expertise were inadequate, then they might feel the need to seek a referral to the EP. It would be an option. His reading record and the referral to Rectory Grove at Vauxhall PS showed cause for concern. Some of the reports showed signs of avoidance behaviour. He had made limited progress.

The EP is a limited resource. There is evidence of other pupils with equal or greater problems. Where there is a high percentage of such youngsters, teachers feel experienced and expert enough to deal with the child and to improve him. The fact that there may be no improvement does not mean that the teacher lacks expertise. Andrew might have stood out more elsewhere and teachers might have been less confident and might have referred Andrew. The absence of referral did not show a fault if the reason was that the teacher thought that they could cope and make Andrew more receptive. Teachers would seek help and prioritise it amongst the pupils. It was the least confident teachers who referred the most.

Andrew stood out for his behaviour, and that assessment by the Head Teacher could not be criticised. It is understood by teachers that behaviour has to be altered to make a pupil receptive to teaching. They were aware that he was performing below his ability and age. He would not have expected a referral to the EP immediately after his time at Rectory Grove ended in October 1991, unless there had been advice from it that Andrew was suffering a major maladjustment.

The EP would come in, discuss the problem, observe and give possible advice about how a child was to be managed in the classroom. There might be a formal assessment of cognitive skills and a review on a future visit. Later, there might be a statutory assessment. There could be a plan. If Andrew had had a high level of support, say 6 hours a week, as a statemented pupil when he was at primary school, that would have been of some benefit. But it could not be assumed that that would happen at primary school. The question would be first what could be done from within the school’s own resources, and Mr Acklaw could not see that Andrew would have had 6 hours support and it was not possible to say what the outcome of a statement would have been, because of the in-class support available.

Both agreed that Andrew’s reading age should have led to him being identified on entry to Archbishop Tenison’s as having learning difficulties regardless of the numbers who might have had more severe difficulties. But Mr Acklaw considered that the difficulties were properly recognised and catered for by the school whereas Ms Willis thought that Andrew had entered secondary school “set up to fail” because his needs had not been addressed earlier. He should have attended specialist provision for those with such difficulties. Archbishop Tenison’s should have had in place procedures similar to those which the Code brought in, and its staff were inadequately qualified to meet or identify Andrew’s complex needs. Action should have been taken on the basis of the teachers’ reports and he should have been allowed to continue with the Year 7 Reading Project.

If, at Archbishop Tenison’s, he had been on the list of those recognised as having special learning difficulties, he would immediately have received in-class support, staff would have been aware of his needs so that provision could have been made in their lessons for him, the school would have understood and helped him more and he would have got off to a better start. She agreed in cross-examination however that she had not been aware of the extent of the reading difficulties of boys at the school as shown in its report on SEN of Autumn 1993. She also agreed that priority for the EPs’ time would go to those who were statemented, and she accepted that Andrew would not have been at the top or at the bottom of the list for the EP’s attention; but she supposed that he would have been higher if he had had relevant support at Vauxhall PS. Putting Andrew into a streamed and small class had been reasonable, but it was not good that he had been put into the lowest class, because this was likely to lead to peer group pressure on behaviour, preventing access to the curriculum. It was her experience that this happened to those with literacy difficulties who were not lacking in ability. His progress with the Reading Project might have reduced his priority to see the EP but those short term results were not always reliable.

The reading project should have been continued for Andrew throughout the year and into Year 8, as it was clear that he was still a long way behind in his reading. Had the assessment by Mr Brooks been followed up, Andrew would have been statutorily assessed earlier and would have received 6 hours a week support in class by mid 1994. This, plus the continuation of the reading project and an IEP and behaviour programme, would have addressed the range of his problems, and allowed him to access the curriculum to his full abilities. The SENCO and Head Teacher were negligent at Archbishop Tenison’s, but not the classroom teachers in the first year as a general body.

At Archbishop Tenison’s, Revd Reid should have put Andrew on his special needs list, agreed Mr Acklaw. But he was of the view that Andrew had been properly recognised through the reading test and it was the provision for him after that which mattered. He had been supported through the Year 7 Reading Project. The increase in his reading age showed that Andrew’s problems were not of the most severe, and it would have drawn attention to his capacity to improve. The records of his persistent poor behaviour highlighted his need.

By September 1994, when Andrew had been there for nearly a year, a plan of action for him was contemplated; Mr Acklaw thought that it was a matter of judgment when that was introduced and that it was reasonable to tackle one or two key contributory issues earlier, even though the special needs audit of October 1993 had identified him as having special educational needs. The introduction of streamed classes was seen as one way of meeting the needs of those like Andrew: Mr Acklaw thought that that was one way of introducing dyslexia friendly teaching. The issue for the school was whether needs were best met in class with good and effective presentation enabling the pupils to access the curriculum, or withdrawing them from class to follow a specific programme for specific skills. The former route, chosen by the school, was a reasonable one.

The fact that Revd Reid’s plan was not always successful did not show otherwise. He did have expertise to pass on to less aware teachers, homework is always a problem with SEN pupils and especially so the larger the class. In a larger class, someone like Andrew could easily be overlooked. If he had been on a Register of those with SEN, Mr Acklaw would have expected a plan at Stage 2 or 3, with methods, resources and time. But if learning difficulties were catered for in a particular class, as here, the teachers’ records would be means of recording progress in lessons. Andrew did not need an IEP to be properly educated; the question was whether the lessons were adequately differentiated.

Mr Acklaw did not take issue with the OFSTED Report and agreed that what the school had done was not the best way to proceed but it was a legitimate professional judgment to proceed in that way. The school had a big population of literacy disadvantaged pupils, and many with learning difficulties. The Head Teacher had a problem of how to improve standards and deal with learning difficulties and the solution he adopted is one which Mr Acklaw had seen in other schools. The decision was not one which others would not have recognised as a professionally permissible approach. There continues to be a debate about streaming versus mixed ability teaching.

The needs of an individual had to be recognised but the context for that recognition was the population from which it was reasonable to identify and make provision for someone. The population here contained a high and above average number with learning difficulties to be supported within the resources. The Head Teacher’s response would be recognised as a reasonable response to the high numbers with learning difficulties and the need to improve education at the upper end as well. Not all schools were up to the Code mark by September 1994.

He had no reason to suppose that the Brooks literacy assessment was very different from Ms Brennan’s or Ms Afuape’s, later. Ms Brennan’s assessment would have provided the basis for setting targets for Andrew in work and behaviour and strategies were what he needed. He would have expected it to be sent to the teachers and for them to have noted it, if it had been written for the school. The SENCO would have been expected to look at it and to see if it offered any particular advice which could be used.

If his attentiveness and responsiveness could be addressed, there were good chances that he would make reasonable progress. Even by the end of his school career he would not necessarily have achieved literacy appropriate to his age because he had developmental and behavioural issues which would inhibit his gradual progress towards the minimum level necessary at 16 to access the curriculum and function adequately in reading and writing. If Andrew felt successful, his behaviour could improve, but it would not necessarily have dealt with exclusion because there were other factors in the background. Mr Acklaw talked of functional literacy as being the aim by 16 because Andrew‘s reading age and chronological age would continue to diverge not converge. At 17, others would be much ahead.

Mr Acklaw thought that special needs were well catered for at Lilian Baylis and Andrew’s poor attendance prevented him taking full advantage of the provision and indicated an early established attitude of disaffection. Ms Willis thought that that was the result of a lack of support for Andrew from the school: for the first 5 weeks Andrew had been almost full-time in attendance. Provision for him was not well-organised and fell below a reasonable standard in that the school had failed to identify him as having special needs, had not obtained his records from Archbishop Tenison’s and admitted that it had not addressed his literacy problems.

Ms Willis was of the view that at Lilian Baylis, he should have been in support from the outset, including individual support in class and out of class. Ms Brennan’s report would have assisted the production of an appropriate learning programme for Andrew, such as differentiated learning at the level with which he could cope, strategies to show what he could do, and teacher awareness. The SENCO would have notified teachers of this with the benefit of the file. Even at this stage there would have been a positive impact on Andrew, from early support as well as an earlier statement. He needed an hour a day literacy lesson offered on a withdrawal basis, with learning assistants in class for English and other major literacy subjects, dedicated to him. She had not come across this at secondary school and did not know if it had ever been done at either of his secondary schools. It had been offered at Primary school to help with literacy. The Year 7 support should have been available for him in Year 8.

In her oral evidence, she agreed with Dr Akpeneye that it was necessary to deal with misbehaviour before someone could access the lesson but if there had been support measures in place when Andrew started at Lilian Baylis, giving him confidence in the teachers, she wondered whether the problems would have arisen. Starting a year after everyone else is always difficult. If the problems had been recognised at the outset and if measures to deal with them had been in place, there would have been a very good chance that Andrew would have achieved to the level of his intelligence. He would have maintained his motivation and his need to misbehave would have been avoided. He would have felt in control rather than being a passive recipient. Even in June 1995, a contract of learning and behaviour would have been valuable. Jobs he obtained would have not been lost.

Once difficulties had become entrenched, they were less easy to overcome. The sort of reading teaching which he needed was of a type which would have been provided in an infants’ school. It could not be done in a secondary school with subject teaching. She did not know whether structured interventions would have enabled Andrew to overcome them, but it was reasonable to assume, looking at his half siblings, two of whom had had some literacy interventions that the same results could be achieved.

She recognised that there was a high proportion of pupils there with low literacy levels. She had only become aware of the level of support there when she heard the evidence and not when she wrote her report. If Andrew had behaved badly at the start, teachers could look at it as a behavioural problem but she would have expected Andrew to look at it as a fresh start. If programmes had been in place at the outset, progress could have been made. She would have expected the previous school records to have been obtained and a plan to be in place, although it was important not to let one‘s view be coloured by the past. If there had been behavioural problems in every class, progress would not have been possible but she did not think that that was the case. Attendance would have been good at the start and, if there had been no support in place, it might then have dropped off. There would however have been a knock on effect at this stage from his primary school problems, a sense of continued let down, and loss of self-esteem.

Ms Willis agreed that teachers were entitled to expect a degree of co-operation. She accepted that after the referral to the EP in November 1995, Andrew had continued to misbehave and wondered whether he had become totally confused as to the purpose of the referral. She denied that she was offering excuses for his bad behaviour. But with support in place and an earlier referral, his behaviour would not have needed to be what it was. Andrew needed to form a relationship with the SENCO but the SENCO could not even remember Andrew. There was no liaison of the sort which the SENCO said would occur if Andrew had been at Stage 3. There was no liaison with the 409 Project, but he needed far more than that Project could offer. He had an excellent opportunity there in January 1997 but he could not recognise it and so only attended 1 out of the 8 sessions. He was by now in with the wrong crowd. At primary school, all that is needed is that the child recognises the need to work but that becomes more difficult at secondary school if the habit is not there. By the time he was at the Tuition Centre his behaviour had become entrenched, even if the motivation had still been there. Exclusion would impact on behaviour and attendance: it was the school which was causing the misbehaviour. The SENCO and Head Teacher were negligent but she could not say if the classroom teachers were because she did not have the information.

Mr Acklaw took the view that by the time Andrew was at Lilian Baylis, the purpose of the individual attention which he received would have been to deal with his behaviour. His learning difficulties by contrast did not mean that he would have stood out from the group with learning difficulties, real though his difficulties were. In another environment, he would have stood out. But it always depended on Andrew’s response to what was on offer. IEPs were not related to behaviour at that time; there were personal pastoral plans for behaviour. The Head Teacher’s approach of seeking a fresh start, where Andrew had been excluded for behavioural reasons, was not unusual even though he might not agree with it, because he thought it better to act with full knowledge from the start, for example where a pupil might be very violent. It did not usually work as an approach though it was not uncommon. With the records, the school would have been able to plan. But Mr Acklaw could not say that the Head Teacher had acted any differently from many others. She had confidence in her staff and was not fazed by the possibility of behavioural and language difficulties. I did not regard the absence of records as a conscious decision by the school to ignore them nor that their presence would have prevented a fresh start approach; their absence was just an error, I felt.

The SENCO’s expectation was of dealing with Andrew in the mainstream via differentiation. There was a whole cohort of similar difficulties and Andrew was not unusual in his class. The school approach was of whole school involvement in SEN, but that did not provide precise additional targeted teaching. Archbishop Tenison’s used a streamed approach. With a very high proportion with literacy difficulties, Mr Acklaw would not expect to see high numbers at Stage 1; that would have suggested that the whole school approach was not working.

His missing sessions at the 409 Project showed that even with 1:1 support he was misbehaving and could not keep his response up. He turned up to 1/8 such sessions and that is often the only support that is offered. Standard teaching support to avoid withdrawal from school or lessons would involve 1:1 or small group teaching for ½ hour a day. The materials used would depend on the teacher or the SENCO’s advice. Where reading and writing were required, some in-class lesson support every day would be useful, but 1: 1 would not be possible for all of those. It is unlikely from Revd Reid’s evidence that at Archbishop Tenison’s, that sort of support would have been available without a statement, because of the number of teachers involved and the inflexibility of that support. Lilian Baylis had SEN support assistants, but he could not say that it could provide that support for every pupil like Andrew. With a statement about 6 hours support would be added to the school. In theory, tangible recognition that the school was understanding and providing support could affect a pupil’s perception of the school, and eventually his behaviour. But if a pupil cannot follow the curriculum, he will fall further and further behind, and will perceive himself as less able.

Ms Willis accepted that Andrew’s promising start at the Tuition Centre dropped off. Andrew had missed most of Year 10, a GCSE year and had a lot of catching up to do. In the light of everything else, what happened there was not Andrew’s fault. Mr Acklaw agreed that the missed year while Andrew could not get into the Tuition Centre would have affected his attainment.

There are few straight factual disputes which require to be resolved and I have largely expressed my conclusions on them as I set out the evidence above.

The Claimant’s evidence as to what happened to Andrew throughout his education is inevitably patchy. His mother was not present at the schools, the PRU or the 409 Project except at meetings. Her understanding of what was happening derived to some extent from Andrew who did not always tell her the truth about his work, latenesses or absences. Her memory is understandably quite weak in relation to some events near or upwards of a decade ago. I felt at times that she was evasive or reluctant to face up to reality about the range of home difficulties which Andrew faced, according to the contemporaneous records. She was however, forthright in her statements as to the unacceptability of Andrew’s recorded behaviour, though disagreeing at times about its extent and emphatically about its causes. Her determination to make others aware of and respond to Andrew’s difficulties came across strongly. Mr Findley was unable to assist greatly on any issue.

Andrew’s recollection of events was very limited; it may be that some of the incidents were simply not very memorable for him. His evidence about his teaching, behaviour, and responses was impressionistic and fragmentary. The single occasion when a teacher asked him to read aloud in class was portrayed as occurring much earlier than it did and as affording an explanation for his failings before the incident had occurred; it seemed to have been treated by advocate and witness as a pattern which it was not. Andrew had some degree of insight into what he was thinking when at school but had a very strong tendency to minimise his conduct, and to blame others for leading him astray, as had his mother. He could not understand the true extent of the problems which he created for those teaching him and being taught with him, and neither did his mother. The avoidance of responsibility and lack of understanding of his adverse impact on others was a marked trait readily observable also from his school reports. He may have drifted towards boys who were anti-social and who reinforced his undesirable behaviour and attitude towards teaching, but the evidence from the teachers and the contemporaneous documents makes it clear that he was disruptive on his own, created disruption persistently from an early age wherever he was, and was not a mere follower of a group of disruptive pupils. He had in my judgment insight and understanding of limited value to the case.

I give very great weight to the reports made contemporaneously with the events recorded in the light of the passage of time. I accept that the reports of incidents are accurate, that the academic reports are a fair and reasonable judgment of Andrew’s progress and failings and represent a proper basis for teachers and others to have acted on. They can be relied on by me in reaching a judgment in this case. This applies also to the 409 Project reports; that comment is not however a judgment about whether teachers or others ought to have acted on the advice which the latter contained.

I found the teachers to be sound, fair and careful as witnesses, generally clear as to what they could and could not remember and I accept the accuracy of what they said. I accept the evidence which they gave about Andrew’s school life, and the way in which the various schools functioned and taught their pupils. They were all careful, caring, hard working teachers with a real sense of duty and responsibility towards their pupils. Indeed, they were rather impressive as individuals, working in a very demanding educational environment. They had not thrown their hands in the air and refused to contemplate Andrew as a pupil who needed assistance and teaching. They had all striven to advance him, and I accept that the ethos of the schools meant that the other teachers as a body would have been of comparable outlook and commitment, though inevitably varying in quality individually. The teachers had strong and very similar views about what could and should be expected of pupils, of the need for order in the classroom for teaching to take place, of the damage which one disruptive pupil could do to the prospects for a whole class, and were unwilling to allow pupils to make excuses for their behaviour and attitude. This was particularly evident in Dr Akpeneye’s views about what was to be expected of pupils at her school.

Ms Horsford was a careful witness, fair and with a good understanding of her role and how that part of the education service functioned. I accept her evidence generally and that of Ms Bamber and Ms Ironside.

As to the experts, as the case went on, I became increasingly of the view that the substance of the allegations being pursued meant that the expertise at issue was that of the teacher in the classroom, the head teachers and the SENCOs; the issues were very largely not about what an EP would or should have done but about what difficulties teachers should have noticed and reacted to by a referral to an EP or by taking other specific steps. The expertise at issue was not that of the professional educational psychologist; no allegations were pursued against Ms Afuape and that pursued against Mr Brooks was more fact than expertise dependant. Their evidence was of some value in assessing what impact on Andrew’s education referral to an EP or other subsequent steps might have had, had one been consulted, and the nature, timing and degree of foreseeable practical benefit from such steps is of value in assessing whether there was negligence in not taking them. But that is a rather tangential way of approaching the crucial issues which should have been approached directly. EPs would not obviously be the judge of the failure of others to consult them, unless their evidence had been that the general run of teacher would have brought the EP in at a particular stage, based on their experience of the condition of those whom they saw as EPs. That however was not the basis of their evidence.

As I have said, the expert evidence was unsatisfactory in the way it emerged, which was a problem caused by Ms Willis and it reflects unreliability in her evidence. Mr Warnock made many and trenchant criticisms of her evidence which were all well founded. Ms Willis had no significant teaching experience in a secondary school and none in schools as demanding as those to which Andrew went. Her experience as a SENCO was short. She had experience of teaching those who had learning difficulties but outside the conventional classroom. I thought that Mr Acklaw had a broader experience because of his experience as a School Inspector across a range of schools. Each would have had some valuable contribution to make to the education of those with learning difficulties in literacy; both are competent EPs, notwithstanding the criticisms which I now make of Ms Willis’ evidence.

I was troubled by the way in which her evidence emerged. She made and persisted in allegations against Archbishop Sumner’s teaching which her client did not pursue for very good reasons: there was no possible evidential basis for such a case. She made assertions about Andrew’s need for speech therapy which suggested a real and significant problem, and she alleged negligence in the failure to refer, because of the great, even decisive, benefits which that would have brought; this was later abandoned. The causation difficulties which that created led her to backtrack unconvincingly on her earlier judgement, saying that such a referral would have been “the icing on the cake”. She made allegations against Ms Afuape which she had to abandon. This unhappy pattern reflected two major problems: she set the test for negligence impossibly high, and she lacked objectivity and balance. Her approach in making those allegations and which was reflected throughout her judgments was to consider what steps might have helped Andrew and then to accuse of negligence anyone who had not taken those steps. She was an advocate for Andrew; her first report might have been useful as a series of suggestions for someone with limitless funds to undertake to help Andrew but it was not couched as a report for a negligence action. She seemed unable to come to grips with the problems which teachers faced in dealing with someone as disruptive as Andrew, or to come to grips with his own failings and his poor behavioural choices: everything was somebody else’s responsibility or fault. She had real difficulty in recognising, as she eventually had to, that Andrew bore at least some responsibility for his behavioural and attitude choices. She made excuses for Andrew’s behaviour based on his learning difficulties but had no difficulty attributing disruptive behaviour in others to other causes equally applicable to Andrew, such as lateness and absence. She had no sense of the limitations of time and resource. She acknowledged their relevance in cross-examination but her conclusions were not affected by that factor when that was properly very relevant as to how teachers would judge what should be done.

She did not make allegations against the secondary schools until the Joint Statement. That was not carelessness on her part, in my judgment, and she had the relevant papers. It reflected her view that it was the two Primary schools which had failed Andrew, had “set him up to fail” at secondary school, and that patterns, which the two schools should have prevented or remedied, had become entrenched by secondary school. Their later negligence, if any, would have caused no loss. In the end, however, the allegations against the primary schools dwindled to the single one in respect of the absence of a referral to the EP by Vauxhall PS. She then made allegations against the secondary schools in a report only after they had been pleaded in the case. I remain unsatisfied about the circumstances in which they came to be made. She was susceptible to suggestion as to the content of her report from the lawyers because she omitted reference to lateness at their suggestion. I do not doubt that she was sincere in her evidence about the secondary schools, but I do not respect the judgments she proffered about what others should have done. They are the product of the demands of the case and a wish to assist Andrew, not of sound and objective analysis. This change in analysis meant that she inevitably had to backtrack on her judgments about the impact of the failings at primary school on setting patterns. This does not mean that everything she said was wrong but I am satisfied that her expertise for this case was limited and her reliability and usefulness even more so. I reject her evidence where it conflicts with Mr Acklaw’s. He was a far more considered and balanced witness on whom I concluded that reliance could be placed. Mr Westgate did not make criticisms of him, though submitting that his evidence was not to be preferred. Mr Westgate took the more promising line of trying to minimise the differences between the two.

Having heard and considered all the evidence and submissions I accept Mr Warnock’s argument that this is in reality an action for breach of statutory duty in disguise or an action based on a general claim of inadequate teaching or even an inadequate educational system. That is what in reality underlies the particularised allegations. Mr Westgate’s closing submissions reinforce that view. They are not readily characterised as submissions in a negligence case. They are criticisms of techniques, attitudes and actions which may in places have force were this a case before SENDIST or even an action for breach of statutory duty, but rather fade in an action for negligence, notwithstanding the diligence with which all his points were pursued. At times, they were evidently just counsels of perfection and hindsight. However, as I am also satisfied that the allegations of negligence cannot be made out or to the limited extent that they might be, no loss was caused, I shall deal with the allegations on their merits.

It is clear from the evidence of Ms Marr and the reports from Archbishop Sumner’s that Andrew had problems with his development, which included late developing speech which would itself have made him late in reading. As time went on there were clearly factors at work in his home circumstances which affected him. I accept that there were tensions between Ms Marr and Mr Findley when they were together and later. I accept that Andrew had real problems with his sister, suffered from bedwetting, became conscious of his size and weight, and that relations with his mother’s alcoholic new partner were very troubled. The family was overcrowded and under stress.

The picture at Archbishop Sumner’s is of lateness and disruptive behaviour, and a pattern being set for school life. This meant that Vauxhall PS had to deal with someone who was already beginning to struggle academically and with literacy in particular. I accept that at this school the Headmaster concluded, as did the other teachers, that Andrew’s real problem was behavioural, and that if that could be tackled, Andrew could make reasonable progress in reading. His behaviour was not just affecting him but the others in class as well. That conclusion was based on reports from teachers which make the point very clearly. There is no possible negligence in reaching that conclusion. The fact that there may have been a component in the causal factors of that behaviour which related to his reading does not alter the significance of his behaviour nor the need to address it in order to enable his work to advance. The judgment by Mr Frolish that behaviour rather than literacy was the main cause of the problems can be debated endlessly and fruitlessly, but it is unarguably a reasonable one. Indeed, I do not see anything to displace it apart from Ms Willis’ unpersuasive and in my view unrealistic theorising about Andrew’s behaviour being caused largely or wholly by literacy difficulties. The judgment that behaviour had to be tackled as the priority was wholly reasonable.

The means chosen to tackle that problem, referral to Rectory Grove, was a reasonable option. The decision to deal with reading in class was perfectly sensible. I accept that general advice on the not unusual problem of literacy difficulties would have been available, and that the teachers were experienced in dealing with those problems anyway. The view that Andrew had potential and had made progress was justifiable. I accept that Andrew did not stand out as failing or bad and that the academic decision by the school with its experienced staff were reasonable. I also accept the wisdom of the scepticism expressed by Mr Frolish as to what the EP could in practical terms have suggested, following a referral, which was not already being done. There was no specific technique which was overlooked. The negligence or otherwise of the absence of a referral will be reflected in the strength of the additional support which Andrew would have had and the difference which that would have made. There is no more than a speculative possibility that he would have progressed up the steps towards statementing, and it would only have happened at the earliest by the time he left. I can see no sound basis for saying that Andrew should have been referred to the EP. I reject the allegation against Vauxhall PS, as essentially without foundation.

I turn to the claims in respect of Archbishop Tenison’s School. I accept the accuracy of the picture of Andrew’s education, difficulties and behaviour painted in the school reports and in the evidence of Revd Reid and Mr Philipps, which I have set out at length. There was little factual dispute arising between that evidence and the much sketchier evidence from Andrew and his parents. I shall deal with the claim as it evolved in the revised allegations presented on the second day of the trial. Revd Reid accepted that he had not put Andrew’s name on the list he prepared over the summer holidays of children with particular needs; this was a mistake which he regretted. I do not think that this confession, made with the benefit of hindsight, to a simple error of judgment can give rise to an allegation of professional negligence. Revd Reid explained that he saw progress in the reports and could see tension between the parents which he thought affected the reports of poor behaviour. That was not an unreasonable initial assessment. More importantly, I accept the evidence of Revd Reid, supported by the assessment of Mr Acklaw, that it made no difference to the education which Andrew received or to the school’s approach to his needs because the school knew what it needed to know in that respect from the Year 7 reading test, three weeks later. There were also about that time the “Causes for Concern” reports which highlighted Andrew’s position, and put him on the list of those many pupils with literacy difficulties.

The allegation that teachers required Andrew to read out loud in class was a new particular of negligence in the revised allegations and in those terms is not made out on the facts. The evidence from all witnesses shows that it happened once, in June 1994. It was plain that the previous instruction not to ask Andrew to read out loud and the reminder in June 1994 had been observed on all occasions save that one. If it had happened more than once, the strength of Andrew’s reaction would have brought it to light. It was a mere oversight and again I would be reluctant to treat that as negligence on the part of the teacher. It should not have happened, but Revd Reid responded sympathetically to Andrew and reiterated his instruction to the staff. I find it very difficult to see what loss could flow in any event from that incident, if it were an act of negligence. Andrew had already spent nearly a year at the school and all his difficulties and misbehaviours were evident. They did not start with this and were not worsened by it to any noticeable degree. He says he missed some English lessons and then did not bother in them. But this was a common enough pattern by then. If Andrew reacted badly over a period of time and allowed that to affect his attitude to the school, or to English that is really his responsibility and he ought to have got over it quickly in the light of Revd Reid’s reaction. I do not regard a prolonged and significant reaction, as described by Andrew, as a reasonably foreseeable consequence of that single oversight. The instruction was not given so as to avoid that degree of consequence but to avoid any occasion of distress or humiliation.

A further new allegation was that Andrew was required to copy home work instructions from the blackboard. As a matter of fact, that appears to have been one of the two methods which Revd Reid instructed teachers to adopt in Andrew’s case, the other being for someone else to write it in the homework diary. Andrew and his mother knew that this was being done and never suggested that he should not have to copy it down. Andrew said that he did not have enough time to copy it properly, but agreed he never asked for more. There is no basis for saying that this practice was negligent. Andrew could copy writing given time, and it would have had an obvious advantage in helping him to practise writing. Computers were provided for some to assist in this respect but not it appears to Andrew; as was clear, he was not the neediest at that school.

A third new claim was that this school failed to forward Andrew’s file to Lilian Baylis School. Mr Warnock objected to all three new grounds being pursued; I uphold that objection in relation to this ground. It was far too late to make that allegation; answering it would have meant examining administrative files and asking staff about the file handling process which could not be done at that stage. It may have been a systemic failure or a one off, the file may have been sent and lost at Lilian Baylis triggering that school’s very late request. If there is a point, it bites only in relation to Lilian Baylis and whether or not that school had the information which a reasonable school would know it ought to have about a new pupil, known to have difficulties, arriving mid term in Year 8.

The allegation that the subject teachers were not aware of Andrew’s specific learning difficulties is simply incorrect. They may not have had the level of detail or diagnosis which would satisfy a demanding EP, versed in the intricacies of dyslexia, but they had obvious awareness of the capabilities of those whom they were teaching in the smaller lowest group. It would have been obvious, as Revd Reid said, that Andrew’s difficulties were in reading and writing, as would have been the case generally with that group. Andrew did not have an unusual learning problem, which the untutored could readily overlook. Revd Reid said, and I accept, that teachers would have known of Andrew’s reading age.

The Reading Project had obviously been of assistance to Andrew and took place at a time before the implementation of the decision to move to streamed teaching with Andrew in the smaller lowest group. It appears to have been intended that it should be followed up in some way, and if so my understanding of Revd Reid’s evidence was that he would have expected Andrew to have been included in some form or other. This was the basic skills project. There might also have been further paired reading. The evidence on what this was to have been or whether something was done was vague, because it was something which Mr Venn was dealing with rather than Revd Reid. I do not accept that there was negligence here. I do not regard the school as owing a duty of care which requires that a specific teaching programme which it contemplates be instituted. There is no evidence that there was a programme suitable for Andrew for which he was overlooked, whether because his needs were not known or understood, or simply because his name was overlooked, or for some other reason suggestive of negligence. In any event, this is at best no more than an allegation of inadequate teaching methods which may have some evidential support from Revd Reid and his agreement with the later OFSTED Report, but it does not found a negligence claim.

The first more substantial allegation of negligence is that the school failed to assess Andrew’s learning difficulties, to identify them, perhaps in an Individual Education Plan, and to carry out a programme of education based on that so as to meet his specific learning difficulties. This does appear to be identical to a claim for damages for breach of statutory duty, which simply does not lie. However, there is no negligence in my judgment.

The criticisms made by OFSTED and Revd Reid command respect, but do not approach a basis for asserting negligence. Andrew’s reading was assessed and known. His particular learning difficulties and behavioural problems were identified clearly enough in the “Causes for Concern” reports. They, together with his behavioural problems were set out in his first end of term reports, by which time the school and Ms Marr had already been in contact over Andrew’s behaviour. Mr Philipps’ comments about his needs related to his behaviour. The school was perfectly well aware of his problems. Its procedures may or may not have fallen short of best practice, even for a school with the intake of Archbishop Tenison’s; but I do not consider that a failure to carry out a more formal assessment could realistically be described as negligent.

There was no specific plan for Andrew although his behaviour put him into a different category from most, and his literacy was among the lowest when he arrived. I accept that criticisms can be levelled at what the school did, in the light of what the OFSTED Report said about its treatment of special needs and because of what Revd Reid said. Mr Acklaw did not agree with everything that it did. But I do not consider that what the school did or omitted to do could be described as negligent. Andrew had the benefit of the Reading Project. Specific instructions about his reading aloud in class were given as was advice about copying his home work instructions. Teachers were told to treat literacy as part of the requirement in every subject and to explain the subject specific vocabulary because of the scale of the literacy difficulties at the school. The school made the reasonable decision to move from mixed ability to streamed teaching as a major step to address the needs of the weaker and brighter pupils. Andrew was put in a class where there were a number as weak as he was and the teaching itself within that class was differentiated. The class went at a slower pace. There was evidence that Andrew’s reports for the end of the 1993/4 academic year showed some improvement. There was an after school club, which Andrew may have attended evidenced by those occasions when his home work seemed to attract approval. I do not find that Andrew was taken out of class for literacy work; such a strategy was contemplated but may not ever have been implemented. Its omission was not negligent.

There was an obvious conflict between Andrew’s need to keep up with the work and the amount of time which he could spend simply dealing with reading and writing, if resources were available. The more he fell behind, the more difficult it was for him to catch up, and the cycle would continue -and the worse his behaviour would become, as his confidence and self-esteem were lowered. Ms Willis went too far in her original conclusions that the problems had become intractable by the time Andrew left primary school, but it is evident that they would be far more difficult to reduce, let alone to solve at the secondary school stage.

This school had to try to keep him in touch with the mainstream curriculum. The suggestion that he should have been out of class for many sessions undertaking intensive literacy work, back to infants’ level, may have something in it as a remedial course, but Ms Willis accepted that she had not come across that sort of intensive work and had no idea of the resources available for it. In fact, there is no evidence that anything approaching that was even possible. The school had to work with the available resources, differentiated teaching in a streamed class, continuing the curriculum and support for literacy. Its decision on how to apply those considerations to Andrew was not negligent.

He might have been better served with some advancement to his education with a more structured and individual plan, but it is impossible to ignore Andrew’s behaviour in any assessment of negligence by the school. I reject the evidence of Ms Willis that his behaviour should be regarded as a function of his illiteracy and inability to follow lessons. His illiteracy was a factor but not the only one, and if it played a greater part later on, so too did his choice to react to his problems in the way he did. I accept the views of Mr Acklaw and more especially the views of those who taught him that he decided to behave the way he did, and to turn up late or to truant, and needed to make different decisions about his reaction to school work. But it is not necessary to analyse that perhaps theoretical debate further at this stage.

The more important and relevant question is whether the school was negligent in its overall approach to dealing with Andrew, with his disruption, lack of attention, lateness and absence, looking at the impact which that had on his progress and judging that if he remedied those defects he could make much better progress. It was not negligent to decide what should be done in a context where Andrew’s behaviour was reasonably not seen as caused by his literacy difficulties.

The teachers did adopt a two track approach. They tried to assist Andrew in a class where others also needed teaching and suffered from similar problems, some to a similar degree. They tried in the usual school ways, through pastoral work, detentions, letters home, discussions with parents and exclusion, to deal with behaviour. He was asked on the reports to behave and said that he would. It may not have the weight of the contract of learning and behaviour but that occasion still offers a pupil the chance to think and to address his behaviour and attitudes.

I was also entirely unpersuaded that Andrew had shown what the improvements in his education would have been had these steps been taken. He might have been temporarily encouraged, but special needs education would still have been delivered in the classroom. He might eventually have received help in 4 out of 30 classes a week, had he been statemented. Even that was not going to make much difference and none at all unless his behaviour changed. The evidence as to his behaviour until perhaps his last year of education shows that to be wishful thinking.

The second substantial allegation of negligence in respect of Archbishop Tenison’s is that the school ought to have referred him to an EP, and when there was a referral, there was no follow up. This allegation took no account of the relative lack of priority which Andrew’s circumstances presented for the use of a scarce resource. I accept the way in which the EP system worked as described by Revd Reid and that the demands were such that the school would be lucky to send 4 or 5 new pupils a year to the EP. There were many boys with greater needs higher up the school and it could have been two years before someone referred was actually seen. It simply was not negligent to make no use of that scarce resource for Andrew, who was not seen as being in as much need as others and there is simply no evidence from anyone which can contest that point. Ms Willis acknowledged its significance but failed to grapple with it. The reasonable view taken by the school of the significance of Andrew’s behaviour also shows that the absence of a referral cannot possibly be negligent. The school also had the advantage of the EP present in the school for the Reading Project, and his general advice. Even, if a referral had led to a statement and further resources in 4 out of 30 classes a week, the difference which that would have made to Andrew is likely to have been very limited indeed. That strongly supports my conclusion that the omission of that step was not negligent either.

I accept that there was an informal referral to Mr Brooks via the ESW at Ms Marr’s request perhaps insistence, that it took place outside the normal framework of referrals and was done, I believe, as a favour to Ms Gillen. There are now no notes to be found. It is not necessary to resolve the problem of whether or not Mr Brooks kept notes which have disappeared over time in circumstances unknown, or whether he kept no notes at all because it was an informal referral. I only surmise that it was the former. It is impossible to conclude that the notes were lost through carelessness – it was many years ago. The crucial issue is whether or not there was a negligent failure by him, Lambeth LBC or the school to follow up the referral or assessment process.

I do not think that the school was under a duty to try to bring an informal assessment by the EP to a conclusion or to obtain the results; that was for Ms Marr to do so. The school had only been involved peripherally and informally in administering tests. It had not been consulted by Ms Marr over this step or involved by her, and it had not asked for the assessment to be undertaken. The notes may have been less than complete in the circumstances. I do not see that there is any basis for holding that Mr Brooks or his successor was negligent in not completing or following up an assessment sought informally and given as a favour. It was for Ms Marr to press the point with them.

The assessment may have told Ms Marr something, but I do not accept that the school was unaware of the nature and degree of Andrew’s literacy and behavioural difficulties.

What the allegation of negligence, however formulated, here ignores is the relative priority which Andrew had or lacked. There is nothing to suggest that an assessment of one pupil, ahead of others then judged by the school to have higher priority but as yet unassessed, would have altered its view of their relative priority.

It is clear that whatever advantage may have been gained by jumping the queue for assessment could not have been translated in to extra resource for Andrew, without it being the subject of an assessment for its priority by the school and that, according to Revd Reid’s evidence, was not going to favour Andrew. So if there were negligence, it caused no loss at all.

This was not a case either in which there was evidence that a range of different classroom teaching techniques would have been used as a result of an assessment, even if there had been a specific identification of language as a difficulty; still less as I have said was it a case where the nature of the difficulty or its severity was not understood.

The claims in respect of Archbishop Tenison’s are dismissed, and I turn to those made in respect of Lilian Baylis.

The first group of allegations deal with the knowledge which the school had of Andrew when he arrived and the failure to obtain the file from Archbishop Tenison’s until close to the time when Andrew was excluded. This was a new allegation in the revised document and I do not give permission for it to be made for the same reasons that applied in respect of the obverse allegations in respect of Archbishop Tension’s.

But it does not advance the case either. It seems probable that the school did not obtain the file until that time because of the contemporaneous notes in November 1995 which make no complaint about a failure to heed earlier requests or standard practice. I did not regard the argument that the absence of the file avoided someone being viewed through the eyes of his previous school where he had a bad record, as being the reason for not seeking the file, but rather as an adventitious consequence of a mistake being made. I would be minded to find that a failure to obtain the previous school’s file at an early stage could be negligent in certain circumstances, and the arrival of a pupil towards the end of a term and outside the normal reception facilities or routine could be one such instance.

However, I do not see that its absence caused the school to behave differently from the way in which it did. It was aware of Andrew’s reading age from the interview with Ms North and from what Ms Marr told Mr Burton, the SENCO. She was clear to the school about his behaviour at Archbishop Tenison’s. Andrew’s challenging behaviour anyway soon made itself felt and the school had to deal with it. Its reasonable attitude, as Ms Willis eventually accepted, was that teaching could not take place unless Andrew turned up, turned up and stayed for the whole lesson, and behaved in class.

The next group of allegations rather fits with that assessment. It was that the school failed to act on the material which it did have about Andrew’s reading age being 6 or 7. It is said that the school should have assessed his needs, identified his specific learning difficulties whether by including him on the SEN Register or in some other way, should have developed an Individual Learning Plan or by other means should have identified and carried out a programme of learning directed to his needs.

In my judgment, as with Archbishop Tenison’s, the context within which the teachers operated is very important. Children with SEN and literacy difficulties as severe as Andrew’s were not unusual. Teachers were used to those problems and as Mr Acklaw said, they would have had legitimate confidence in their experience of dealing with them. It might have been very different if such difficulties had been a rarity for the school. The SENCO was experienced. The school was in special measures which gave it more funding than otherwise and that went on special needs. The school had responded to the OFSTED Report within the year following it, before Andrew arrived. The general approach to teaching would have taken account of experience with SEN, without a formal process or identification being necessary.

Andrew’s relative needs in literacy and the general provision for dealing with SEN in literacy in class, including the teacher’s experience would have influenced the school’s view as to whether a formal assessment would have been useful. It had considerable facilities and experience as Dr Akpeneye and Mr Burton said. But a very significant and perhaps the crucial reason why Andrew did not receive a more formal assessment, perhaps being placed on the Register earlier than he was, was that his behaviour was seen as the real obstacle to his progress and learning. Had a refined assessment of his needs been made, and a detailed programme of work developed, they could have had no confidence that the associated effort could be worth it. As Dr Akpeneye said, Andrew was already getting more attention and teacher time than others, but that was because of his behaviour. That message came across very clearly from the evidence of Dr Akpeneye and Mr Burton.

I do not regard the school’s view that Andrew’s attitude and behaviour was the real obstacle to learning and improving his literacy, as negligent on the material before me. It is clear that he was often a seriously disruptive pupil in class very nearly from the start, and would not improve his behaviour despite the endeavours of the school. The teachers’ views of its significance were not exaggerated, or ill-founded. It was a reasonable view, and they were in the best position to judge. Andrew’s understanding of the impact of what he actually did was very limited indeed.

I also regard it as reasonable and not negligent for the school to take the view that behaviour of that routine disruptiveness had to be overcome before any serious progress could be made with learning. If Andrew’s behaviour had improved significantly, I believe that his needs would have led to earlier formal identification. The learning difficulties had a part to play, along with factors peculiar to Andrew and which lay outside the school’s control and his own choices about behaviour and attitude. As I said in relation to Archbishop Tenison’s, I prefer the view of Dr Acklaw that Andrew’s illiteracy was but one and not the main factor in misbehavioural difficulties.

Here too, the important question is whether the school was negligent in treating Andrew’s behaviour and attitude to school, disruptiveness, inattention and attendance, as the real obstacle to his progress, and in proceeding on the basis that it was his actions and choices which lay at the root of the slow learning and his lack of progress with reading and writing. If he behaved, they could teach him more readily and he could exploit his capabilities. The way in which they were teaching him was not the problem and did not need any further differentiation or resource. That view cannot possibly be one which it was negligent to hold or act on. It was striking to me that the general attitude of all the teachers who gave evidence on this topic was the same towards someone who had learning and literacy difficulties. This was a view born of experience of pupils in schools with challenging intakes, presenting problems across the spectrum of learning and behavioural difficulties. The views were not expressed in a way or by people which could suggest a knee jerk reaction or a disciplinarian stance adopted for the sake of the other pupils, but were expressed by experienced teachers who were committed to making the most of the educational opportunities of their pupils from challenging intakes in a very challenging environment. Their experience was individually and collectively greater than Mr Acklaw’s whose view was nonetheless in tune with theirs. Ms Willis might have held different views if she had had more experience in a secondary school. The question is whether the teachers’ reaction to what they reasonably judged to be his significant misbehaviour and attitude was negligent. It was not. That is what lies at the root of the allegations of negligence and they are not made out.

This school again had both a pastoral and disciplinary approach to overcoming behavioural problems. Although Andrew had to change, he was both encouraged to change and disciplined for failure, just as his mother said she did at home.

I do not accept that the pattern of Andrew’s behaviour, which suggests that there were initial improvements when he started somewhere new, shows that the school was negligent in not being better prepared to capitalise on the opportunity. He was disruptive at Lilian Baylis from very near the start. He did not know why he had left Archbishop Tenison’s, he said. He felt intimidated at Lilian Baylis and quickly became one of the “rude boys”. He blamed the teachers for not teaching him, and quickly lost interest. Of course, as time went on in his education, the cycle of not being able to read was reinforced by his inevitably increasing inability to keep up with the subject work which reinforced his boredom, and misbehaviour. Addressing those problems may have been possible, but by now it would have required a very determined, resource-intensive approach, allied to a real and major change on Andrew’s part towards being taught in class with others. Ms Willis’ view of what was required would have been unprecedented, and unobtainable in practice.

I certainly obtained the impression that Dr Akpeneye thought that Andrew was on the SEN Register earlier than I conclude that he was. But if he was not on it earlier, that was not oversight but the result of a view that his behaviour had to change before progress could be made. He was put on around the time at which his exclusion was being discussed and she recognised that the school had not addressed his literacy. I did not regard Dr Akpeneye as admitting to the parents that the school had failed Andrew; it was more an acknowledgment of fact. There was no point in assessing someone, identifying methods of teaching (which were what were being attempted with him anyway) or further but inevitably modest support in class unless his attitude and behaviour changed. Being on the SEN Register was not necessarily an answer, as Mr Burton said, in terms of obvious relevance to Andrew and special assistance still required order in class.

Ms Willis contended that the cycle could have been broken had Andrew been given support which would have allowed him to appreciate that the school was seeking to help. That is but a speculative possibility. I find it very hard to see that he would have changed his approach to school with e.g. an Individual Educational Plan, or more support, if he had not done so thus far with the help he had at his schools.

There might have been a breach of statutory duty in relation to the point at which Andrew was put on the Register and the statementing process begun. After all Andrew was still young, and falling further behind. But there was no negligence and this argument is not readily distinguishable from a claim for damages for breach of statutory duty. Nor has Andrew shown that the consequence would probably have been differences in his behaviour, or the school’s approach to teaching or success with it.

It was also alleged that it was negligent not to have acted on Ms Brennan’s thorough report, as all agreed it to be, when the school received it in about September 1995 from Ms Marr. Her evidence was that they were dismissive of Ms Brennan’s expertise. There is no evidence that any change of teaching technique or attitude occurred in consequence of its receipt. But I do not consider that to have been proved to be negligent. The school had in place teachers and techniques capable of advancing Andrew’s learning. The full extent to which the substance of Ms Brennan’s recommended strategies were already being followed is unclear, but the literacy strategies in use, on Mr Burton’s evidence, probably included some of those measures. Importantly, during this Autumn Term, Andrew’s behaviour deteriorated further. The 409 Report contained no recommendations for resolving that and presumed a fully co-operative pupil. The school was not negligent in the firm view that behaviour needed addressing first. It may have been the lack of strategy for putting the recommendations into effect with so badly behaved a pupil which underlay the dismissive reaction.

I do not regard it as negligent for the school not to have referred Andrew earlier to the EP for his behaviour and learning difficulties. The EP limitations were no less here than they were at Archbishop Tenison’s. The school itself was better resourced for SEN. The provision of extra resources would have still required in class teaching and greatly improved behaviour in order to be effective. I accept that there was a role for a contract of learning and behaviour as suggested by Ms Afuape and it might have assisted Andrew to change. But it is unrealistic to suppose that the school was not trying to achieve that sort of change; there were possible routes but the failure to take that particular step earlier was not negligent. I cannot see that the results of the referral would have led to an outcome which was in turn likely to lead to any real prospect of a significant change. It might have helped to some degree with behaviour and no firmer conclusion beneficial to Andrew can be reached.

Mr Westgate relied on Guidance and the Code in support of allegations of negligence at various stages, but that reliance reinforced to me the extent to which this was a disputed action for breach of statutory duty or for damages for inadequate education or teaching. There was much in them to undermine his case as well. Neither Code nor Guidance are prescriptive or automatic in inception of assessment or progression. A pupil could commence at Stage 3, as Andrew did. The schools were expected to judge what was necessary. There were designated SENCOs at his secondary schools; both Guidance and Code emphasise the importance of the classroom teacher in delivering special needs teaching. Pupils with SEN needed access to the mainstream curriculum and most such needs would be met there without assessment or statementing. Those considerations were reflected in the approach of the schools. At September 1994, there was recognition that the implementation of the Guidance would not be complete.

Finally on liability, I turn to the claims in respect of the lack of education after Andrew’s exclusion from Lilian Baylis. There is a specific allegation that the removal of Andrew from the PRU waiting list without checking that he had secured a place at the London Nautical School or re-instating him when he had not done so, was negligent on the part of officers of the Education Front Line Service. There is a more general allegation that those officers failed from the time of Andrew’s exclusion to ensure that he was either educated at the PRU or to ascertain and act on their knowledge that Andrew had not secured a place in a mainstream school.

As to whether or not there was a vacancy at the London Nautical School or whether that was a mistake by Lambeth LBC, I regard the contemporaneous note by Ms Marr, who was generally a straightforward and honest witness, of her conversation with the LNS as the best direct evidence and conclude that there was no vacancy. But it is also clear that Lambeth LBC acted in the honest belief that there had been one, and it would be impossible on the material before me to hold that that belief was the result of a want of care. The real issue is whether or not there was negligence in its failure to reinstate Andrew on the list once it was known that he had failed to obtain the supposed place at what the LEA accepts was a popular school with more than one applicant for a single space, and knowing that he was continuing to be out of school.

I accept the submissions made by Mr Warnock that this claim is not actionable. The statutory duty in s 19 of the Education Act 1996, which then lay upon the LEA, does not give rise to a cause of action for damages for breach of statutory duty, as Mr Westgate agreed. That was rightly agreed in the light of the analysis of the statutory duties in Phelps, above. There is no common law right to an education. It is not disputed either that the mere fact that an education officer does not comply with a statutory duty laid upon her employer does not give rise to a separate cause of action for damages; Carty, above. After all LEAs have to act through individuals anyway.

Mr Westgate had to contend that the facts showed that there was a relationship of proximity between the officers of the Front Line Service who were informing Ms Marr of vacancies and who were the gatekeepers to the waiting list for the PRU, and that that relationship gave rise to a duty of care which was breached. That is an impossible contention. The officers, who had no professional qualification or skills, were not advising Ms Marr or Andrew on any steps in particular which they should take, or schools to which they should apply. The officers provided no substantive educational advice for Andrew. There was nothing personal in the advice which they gave. They undertook no especial responsibility towards Andrew, nor did they hold themselves out as having any particular skill or obligation to Andrew for his education. They were fulfilling the task of providing information about vacancies and reminding Ms Marr that she had to take steps to secure a place for Andrew, which was the task which they had as administrators of the Service. Notwithstanding that Ms Horsford appeared to think that the LEA had a responsibility to find a place for Andrew, that obligation lay on Ms Marr. The officers did what they did as they would for others, although the evidence suggests that they tried harder or, perhaps more accurately, were called upon or had to contact Ms Marr more frequently than would have been usual for an excluded pupil. This was a very far cry from the proximity of the relationship found on the facts of Carty. I reject the existence of a relationship of care both in respect of the general allegation as I have termed it, and the specific allegation about the removal of Andrew’s name from the waiting list. Mr Warnock also points to the potential need to prosecute Ms Marr for failing to ensure the education of Andrew, which would point firmly against the existence of a duty of care being reasonable.

That said, I do find the decision to remove Andrew’s name from the PRU waiting list on the grounds that a place had become available at the LNS extraordinary. Even if there had been a place, which is not what I believe to have been the position, the LEA knew that there would be others going for it and even without his disadvantages, others might have been quicker off the mark or received more enthusiastically. To use what was really just happenstance as the basis for removing Andrew from the waiting list and not re-instating him seems very odd. But the remedy for any error would have been an action for judicial review for breach of statutory duty if the LEA was failing in one.

I also accept the arguments of Mr Warnock that there was no negligence by the LEA in assisting Ms Marr to find such provision from that which was available. Lambeth LBC did not control admissions procedure at some of the secondary schools within its area. It could not initiate any appeal, nor could it force Ms Marr to apply to any school, short of prosecution. It informed her of spaces within and outside the Borough. She did not appeal any refusal. She did appear to take the view, from the contemporaneous documents, that a mainstream school was not for Andrew nor was any school in Lambeth and that may have led to a lack of enthusiasm in applications, though the task she faced with Andrew was daunting.

In relation to the removal of Andrew’s name from the waiting list, the important point made on behalf of the LEA is that education at the PRU was not what was required from exclusion in April 1996. Andrew should have been in full time mainstream education, and whether or not on the waiting list or even at the PRU, Ms Marr would still have been under a duty to pursue full time mainstream education for Andrew. Andrew’s remaining at the PRU once a place had been found for him there, in circumstances which suggest that he was given priority because his case became an embarrassment for the LEA, does not suggest that he would or should have remained there if he had obtained a place there earlier. On the contrary, he only stayed there because by September 1995, there was only a year left and the prospect of re-integration in the mainstream was obviously reduced by his past year’s absence.

No allegation of negligence was made in respect of the difficulties which Ms Marr appears to have experienced in obtaining Andrew’s file from Lilian Baylis or getting that school to forward it to those to which she applied.

Accordingly, I reject the claim for damages in respect of this period of Andrew’s education.

It is of course troubling that a child, who had parents who cared about his education and who was not mentally disturbed, can leave the state educational system, functionally illiterate. It arose in my judgment in this way. Andrew started Archbishop Sumner’s with a number of disadvantages, including slowness of speech. The learning difficulties were not fully recognised or addressed there and a pattern of behaviour was laid down without negligence on the part of the school. It would have required a high degree of perception and resource for all pupils, for his problems to be addressed in a way which would have given him a sound start for his later years at Primary School. Andrew would not have seemed to be so very different from many and he appeared to make progress albeit slowly.

At the next stage at Vauxhall PS, his problems were partly addressed, but the patterns of inattention, misbehaviour and lateness became the normal way for Andrew to behave. The problems of a low level of literacy and the impact of that for accessing the general academic curriculum became more intractable. It would have required a higher degree of perception, effort and resource for Andrew, who was by no means the only one with such literacy problems, to have been brought back to the level which he could reach.

It is not necessary to go as far as Ms Willis’ original report and treat those patterns as by then entrenched and largely irremediable, in order to see that yet stronger steps would have been required at Archbishop Tenison’s. But he was one among a number who had literacy levels which were bound to affect his ability to cope with and learn from the ordinary curriculum. They were addressed within the limits of the resources available to the school for him, for he was not a priority for extra help from outside. But his behaviour and attitude towards learning and dealing with his literacy were increasingly significant and an aspect of his life over which Andrew was exercising choices which hampered his education. By the time he left Lilian Baylis, this aspect had come to dominate his school life and he was reacting to school, and its need for discipline and order so that learning could take place, in a way which prevented even a start being made on the sort of stages which could have assisted, had he been willing to learn.

The interventions needed to assist were increasingly resource intensive and he was increasingly unwilling to assist himself. There was no negligence in his not receiving the sort of personalised assistance which might have helped to some degree. Indeed, the very difficulty in providing the sort of regime which would have offered some support to Andrew, militates against its absence being negligent on the part of the schools. The foreseeability of gain from taking the normal remedial steps for someone such as Andrew was increasingly limited and in turn limits the scope for saying that omitting those steps was negligent.

I was wholly unpersuaded that Andrew had shown that any steps which he urged should have been taken to avoid negligence, would probably have led to a significant improvement in his educational attainment. The referral to an EP could not have had effect before he left Vauxhall PS, by which time the patterns of behaviour and attitudes had become established to a significant degree. He was already at a low academic and literacy level, and the level of additional support, which even being statemented would have produced, would not have altered to any significant degree how he accessed the general curriculum. His behaviour and attitude might have changed but it is speculative whether it would have done so or done so to any marked degree. I rather doubt that any such additional support, if initiated at Lilian Baylis, would have altered the course of his education there to any marked extent. He needed to mature and to be willing to learn. I recognise that there is something in the point that actions which could have been presented to him as being for his support could have had some effect on his outlook, but I cannot conclude that he would probably have benefited. I regard it as rather speculative in the light of the experiences at the 409 Project, and the fact that each school made significant endeavours to help him, as he was capable of realising.

It is not necessary to enter the complex debate about whether the loss of a chance is a relevant basis for the claims as I have found that there was no negligence.

Had I found negligence, damages would have been rather more limited than those for which the Claimant argued. It is obvious that he was hampered in finding employment by his criminal record as well as his literacy. He undertook courses which were going to be beyond him. He did not tackle his literacy by going to adult literacy classes even though he could have done. He may have felt embarrassment at attending them, but he would have been with others in the same condition rather than one of those trying to conceal his ignorance. Had he done so, his literacy problems could have been reduced as he matured so as to enable him to obtain some work. I would not have awarded very much beyond the cost of remedial adult literacy teaching, the cost of other courses which would have improved his general education and a modest general award for the lost years after school.

However, for the reasons which I have given I do not find that the Defendants were negligent and I dismiss this claim.