When Is A Worn Carpet The Same As A Thug?

By Tom Walshaw and David Knapp

Everett and Harrison v Comojo (2011), Court of Appeal

Can a nightclub owe a duty of care to its guests to protect them from other potentially violent revellers? By an interesting analogy, Lady Justice Smith has said yes.

What does this case tell us about publicly-run social events? Tom Walshaw examines.

The facts

The Met Bar, Old Park Lane, London, is a nightclub only open to registered members and their guests. One evening, a member, Mr Balubaid was present, and witnessed two other guests, Messrs Everett and Harrison, become involved in a brief incident where a waitress, Ms Cotze, was tapped on the bottom. Balubaid subsequently told Ms Cotze that Everett and Harrison would apologise to her before the evening was out.

Some while later, Balubaid signed in a guest, Croasdaile. He had what was described as an enormous physique, was wearing combat trousers and a tight top, and was assertive, bold and aggressive whilst in the club. He did also however share a joke with another guest and consume alcohol calmly.

The waitress was in fact very concerned that Croasdaile would in some way try to extract the promised apology from Everett and Harrison. She was so concerned that she went to see the Bar Manager about it. Whilst doing that, she heard shouting and breaking glass from the bar area.

What had happened was that Everett and Harrison had at that point decided to leave, whereupon Croasdaile had demanded the apology. Everett and Harrison had sworn at Croasdaile, and then Croasdaile stabbed Everett three times in the abdomen, and Harrison in the neck. Fortunately, they survived and have made a satisfactory recovery.

Everett and Harrison brought an action alleging that the nightclub management company, Comojo, owed a duty of care to them, as guests, to protect them from the danger posed by third parties which they alleged it ought reasonably to have foreseen. Specifically, they should have been protected, by all guests being searched on arrival, and further, Ms Cotze should have gone straight to a doorman to have had Croasdaile evicted when she became aware of the risk of violence from the apology issue. The allegations were denied by Comojo, who won at first instance. The claimants appealed.

Appeal

Lady Justice Smith had to decide whether a duty of care was owed by the nightclub to its guests to protect them from the potential danger posed by other, violent, guests. Since this was a novel legal situation, where no English court had previously considered whether a duty of care existed, she applied the three stage legal test, as set out in Caparo Industries 1990 [AC], to find out whether it should exist.

1. Was the relationship between the hotel and the guests sufficiently proximate for a duty to exist?

She held that it was. The average nightclub guest relaxes in an environment provided by the management and expects it to be safe. That guest will be expected to spend money in the establishment, so an economic relationship exists between the guest and the management.

2. Was injury reasonably foreseeable?

Alcohol is consumed in a nightclub, so there is an inevitable risk of loss of control, and violence. There will be less of a risk in a private members club, as the flow and nature of guest can be more controlled than in a public bar. Here, the risk was not so low that it cannot be ignored. Indeed, Comojo had carried out a risk assessment itself and found there to be a risk.

3 Is it fair, just and reasonable to impose a duty?

Lady Justice Smith found that since Comojo had control of the premises, alcohol was consumed and there was a risk of violence, and given the economic relationship, then it was fair, just and reasonable for a duty to be introduced. She considered it highly relevant that as the law stands under the Occupiers' Liability Act 1957, the management owed the common duty of care to guests, and could therefore be liable if a guest tripped over a worn carpet, and yet escape liability for injuries inflicted by a fellow guest who presented a foreseeable danger. She felt that would not be a fair situation, so would impose a duty in these circumstances.

Therefore, the Court of Appeal unanimously found that a duty of care existed in the circumstances. However, liability was not established in this case, because on the facts Comojo had not breached the duty. Ms Cotze had realised the possibility of confrontation between Croasdaile and the claimants, and going to see her supervisor rather than going to a doorman was a reasonable response. Getting the doormen straight in to evict Croasdaile could have provoked violence, rather than prevented it. What Ms Cotze did was therefore reasonable.

What we can learn

  • The lessons are clear. What applies to a privately run nightclub has implications for publicly run social events. Arguably, wherever a local authority allows the public to congregate, and particularly if a charge is made for that, then a risk assessment should be made of the risks that the attendees pose to each other. An obvious example is a local authority run sports or social complex with a bar attached where there could be a real risk of injury.
  • What of, say, a Council Parking Permit Customer Centre? The risk to staff from annoyed clients is obvious, and often considered, but what of the risk of fractious visitors fighting in the queue? The existence of a duty is less obviously clear, but it would be a foolhardy local authority that did not have access to at least some security staff to protect visitors.



Things Fall Apart

By Nick Bathurst

Micklewright v Surrey County Council (2010), County Court

A recent case confirms that causation is still a critical issue in tree-related claims against local authorities and that breach of duty alone will not suffice in establishing liability.

Background

This decision arises from circumstances appropriately described by the judge as "tragic". It concerns a claim brought by the executrix of the estate of Christopher Imison, who died after a tree branch fell on him. The incident occurred on a summer's day in 2007 when the claimant, the deceased and their son decided to travel to a local park for a bicycle ride. As the deceased parked the car and unloaded the bicycles from the rear, a branch, later found to weigh over 900kg, fell from a nearby oak tree and struck him. The deceased was taken to hospital by air ambulance but he died a week later. A claim was brought against the defendant which, as Highway Authority, had responsibility for the oak tree in question.

The claimant's case

Damages were agreed in the sum of £500,000, leaving only the issues of liability outstanding. The claimant's main allegations were that the defendant was in breach of its common law duty and its statutory duty under the Occupiers' Liability Act 1957. The claimant contended that the defendant did not have a proper system of inspection in place at the time of the incident and that a suitable check carried out by a person with a working knowledge of trees as defined by the HSE would have identified the defect that caused the branch to fall and led to its removal.

The defendant's case

The local authority accepted that, for the purposes of this claim, it had responsibility for the oak tree, and argued that it had a proper system of inspection.

The evidence

A joint statement by the experts for both parties placed the age of the oak tree at between 200 and 300 years old. It was described as being of normal vigour and of high amenity value and was one of over two million trees along Surrey's road network. The local authority had appointed a Mr Banks in 2004 to improve its inspection system for all of these trees. Mr Banks did so by introducing a cyclical system whereby two inspectors would travel slowly along the designated roads by car, with one driving and one observing. Any defects would be noted and the location marked using GPS equipment. However, there was a backlog.

The claimant's expert was critical of this method of inspection and stated that if the inspectors had travelled on foot and driven between locations they could have inspected a greater number of trees, and more effectively.

The judgment

The judge held that, by the time of the trial, the scheme of inspection could not be criticised and was no doubt effective. However, the problem lay in the fact that the scheme had not been in place long enough for the oak tree to have ever been subject to an appropriate inspection. Therefore, at the time of the accident, the defendant did not have an adequate system of inspection in place, as the required inspection regime had not been fully implemented. However, the judge then considered the crucial question, "would an adequate system have avoided the accident?" The judge held that it would not. Even if there had been a proper system of inspection in place, which the judge held should be a quick visual inspection by someone with a working knowledge of trees as defined by the HSE, the defect in the branch would not have been revealed as the real damage was internal and there was no evidence that there would have been significant external signs of this such as leaf discolouration or cracking. In other words, the risk was not reasonably foreseeable.

What we can learn

  • This is a welcome decision for local authorities. Despite the judge's (understandable) sympathy for the claimant, he still found that she had failed to discharge the burden of proof.
  • The local authority's duty is to take such care as in all the circumstances of the case is reasonable.
  • What is reasonable varies with the circumstances, therefore the local authority must make some assessment of the potential risk presented by any tree on its land, and inspect that tree at an interval appropriate to that, by a person with appropriate basic training.
  • The person carrying out the basic inspection should be alert to signs of decay/damage. That should then be followed up by a detailed inspection by an arboriculuralist if required, but here, there were no such signs.

Permission to appeal has been granted.


"Inspecting" How To Run A Successful Defence

By Tony Cawley

In these two cases, we examine how effectively to defend occupiers' liability claims based on an adequate system of inspection of the accident site designed to detect developing hazards.

Roe v Hampshire County Council, Portsmouth County Court (2010)

On Saturday 29 March 2008, Mrs Roe attended an out of hours function, an amateur dramatic production being held in the main hall at the Brookfield Community School, Southampton, when she sustained a serious injury to her left little finger.

During the evening performance, the claimant had gone outside, via a set of fire doors which formed an access route, to get some fresh air.

It was accepted by all parties that the weather on that day was extremely windy and as she was re-entering the hall, the wind caught the fire door, causing it to swing to with force, catching her finger, severely injuring it. The terminal phalanx of the left finger was subsequently amputated.

The claimant's case

The claimant claimed breach of duty under the Occupiers' Liability Act 1957, against the local authority, as owner/occupier of the school. The claimant's primary claim was that the local authority, or its employees at the school (for which it was vicariously liable), failed to maintain the door hydraulic closer mechanism properly. It did not prevent the door from closing rapidly as it was meant to, she alleged.

The claimant called a number of witnesses in support of her claim including one who was a builder by trade. All of the witnesses gave evidence in their statements that the door was dangerous.

The defendant's case

The defendant relied on the witness evidence of two staff who were employed by the Community School as site managers.

Each gave evidence that there was in place a fully-effective system of twice daily inspections, and a reactive and proactive maintenance programme. As part of the twice daily inspections, performed at the start and end of the school day, the site managers would open and close each door to check them.

The judgment

The judge held that the defendant had discharged its duty concluding that whilst it was evident that the door did close more quickly than other similar doors, this did not make it inherently dangerous.

The judge relied on the evidence of the builder, called on behalf of the claimant, and found that he of all people would have noticed if the door closer was defective and would have likely reported it/secured it. The witness did nothing.

The claimant's witnesses accepted in cross-examination that they did not consider the door was dangerous before the incident and that it was only with hindsight that they did consider it to be dangerous.

The door closer mechanism had been fitted in 2001/2002 and had a working term of six/seven years. Therefore, at the date of the accident it was likely to be approaching the end of its term, not necessarily having reached it.

The claim was dismissed.

Comment

  • Local authorities own/occupy a large number of premises that may expose members of the public to the risk of injury. If such premises are subject to a regular system of inspection/ maintenance then this ought to discharge the common law duty of care.
  • This is an important reminder for occupiers' liability claims that whilst equipment may not be working perfectly, as long as it is not dangerous, liability ought not to attach.

Khan v LB Hammersmith & Fulham, Mayor's & City of London Court (2010)

The claimant claimed damages for injuries sustained as a result of an incident whilst he was playing football with some friends, in April 2008, in a communal caged football court. The ball was kicked out of the court and whilst he was retrieving it the claimant alleged that the gate to the caged court struck him on the head causing a laceration injury.

The claimant's case

The claimant's claim alleged breach of statutory duty under the Occupiers' Liability Act 1957 and common law negligence.

The claimant alleged that at the time of the incident there was a problem with the opening of the gate in that the metal bolt, on the bottom exterior of the gate, would lower down and drag along the paved area outside the court and catch on a raised paving stone and recoil the gate.

Whilst attempting to exit the court to retrieve the ball the claimant allegedly attempted to open the gate but it snagged immediately. The claimant used a little more force to open the gate thus causing it to swing open away from him and to his right. It then hit the raised paving stone and the gate recoiled with such force so as to strike the claimant on his left forehead.

The alleged part of the gate which struck the claimant was the sliding horizontal bolt situated approximately half way up the gate some 52.5 inches from ground level.

The defendant's case

The defendant relied on the fact that, at all material times, the caged football court was subject to a reasonable system of inspection and maintenance.

The defendant had contracted out the provision of inspection and maintenance services from 1 July 2007 to RoSPA Playground Management Ltd. As part of that contract, the football court was to be inspected on a quarterly basis and a full annual inspection was to take place.

The inspector attended the court on 12 February 2008 to carry out the full annual inspection and a quarterly inspection was carried out 11 days after the alleged accident on 7 May 2008. On neither occasion were there any problems reported regarding the gate.

In cross-examination the inspector accepted that, on the basis of the photographic evidence before the court, there appeared to be a difference in level of the paving stones but added that the bolt would either slide over it (as evidenced by the grooving in the stones due to dragging over time) or that it would stop the gate. The inspector did not accept that the gate would recoil to strike the claimant.

The Court also heard that the claimant was 70 inches tall and yet the bolt which struck him was only 52.5 inches from ground level.

The claimant could not explain how the gate opened away to the claimant's right yet the injury was on the left hand side of his head.

The judgment

The judge held that on the balance of the evidence she was not satisfied that the claimant had made out his claim.

The judge held that she had concerns as to the veracity of the claimant's evidence and did not find him to be a cogent witness.

In particular, the claimant failed to prove that the gate would have recoiled with such force as alleged, he had failed to explain how the significant difference in height resulted in the horizontal bolt striking his forehead and he failed to explain how he was struck on the left hand side of his head.

The trial judge held that the claimant had not made out his claim and dismissed his claim for damages and ordered the claimant to pay the defendant's costs.

Comment

  • It is the duty of an occupier to ensure that so far as is reasonably practicable its visitors are free from the risk of injury. Contracting out to a company for the provision of a system of regular inspections, can really impress the Court as here, but only if it is well run.
  • Wherever there are obvious evidential discrepancies such that an early assessment of a claimant's credibility can be undertaken, defendants should not deterred from adopting a robust, yet realistic defence to the claim.



Lovely Rita?

By Tony Cawley

Aladejana v LB Wandsworth, Wandsworth County Court (2010)

The claimant claimed that on or about 18 February 2007 his car, a Lexus MX400 had been stolen and was subsequently found abandoned on 19 February 2007.

However on 19 February 2007 a Council traffic enforcement officer issued a Penalty Charge Notice (PCN) due to the car being parked without a parking permit.

Despite numerous reminders being sent to the claimant, the PCN remained unpaid. The vehicle was eventually impounded by bailiffs, taken to auction on 18 January 2008 and sold for £213.47.

The claimant initially claimed substantial damages of nearly £40,000 for the loss of his vehicle and consequential losses to his business. At trial, this sum had been reduced to £18,000 due to lack of documentary evidence.

The claimant's case

The claimant alleged that the local authority had negligently issued a PCN, when in fact the vehicle had been stolen and abandoned in the parking controlled area. He also alleged that it should not have impounded or sold the vehicle.

The claimant said that as the issue of the theft of and responsibility for the vehicle was not resolved until March 2008, the sale of the vehicle was unreasonable before that date.

The defendant's case

The defendant maintained that at all times the traffic enforcement officer had a reasonable belief that the vehicle had been parked without a valid permit/ticket and so issued a PCN. At the time the claimant's vehicle had not been reported as stolen and/or abandoned, it was merely parked in a parking controlled area without the correct permit.

Following the issue of the PCN, the defendant made enquiries of the DVLA to obtain the registered keeper's details and an address was returned. Unfortunately, this address was the claimant's previous address and he had moved on without notifying the DVLA.

The anomaly with the address caused a communication breakdown as the defendant submitted a Notice to Owner, effectively a request for payment, and continued writing to the claimant's previous address but he was not responding. However, the post was not being returned as undelivered or unknown at that address.

As the PCN had not been paid the charge was registered with the Northampton County Court Traffic Enforcement Centre in June 2007 and an Order for Recovery was made on 22 June 2007. The Order required the claimant to pay the penalty charge, and associated charges, within 21 days or to apply for a statutory declaration against the unpaid PCN. The claimant did neither.

A warrant of execution was entered on 1 August 2007 and the vehicle was eventually located and impounded by the bailiffs on 31 October 2007.

On 6 November 2007 the defendant received notification that an out of time appeal had been filed by the claimant on the grounds that he had never received the original request for payment. A stay was put on the bailiffs taking any further action until determination of the claimant's application. This took place in December 2007 when the application was refused.

Due to the unsuccessful application, the defendant then issued a further request for payment to the claimant and notified him that he had 14 days in which to pay or to notify of any intention to apply for an appeal. No payment or application notice was received and on 7 January 2008 the vehicle was sent to auction and sold on 18 January 2008.

The judgment

The judge held that after the claimant's appeal had been refused in December 2007, the claimant was then given yet another 14 days to pay the parking fine, or appeal further.

The claimant, for whatever reason, did not make any such application for a further appeal until March 2008. This failure to act within the 14 day period was sufficient for the defendant to continue with its due process without acting negligently.

The car was subsequently properly sold at auction.

Comment

Attention to detail is vital. But where it is apparent that the relevant authority has made the proper enquiries of a vehicle owner and there has been meticulous compliance with its own procedures, a council can robustly defend the actions of its parking staff.


Glorious Mud: Just What Do Local Authorities Have A Duty To Remove From The Highway?

By Leanne King and Katrina McAteer

We examine two cases where the latest attempt to make Highway Authorities liable for failure to remove soil/grit and mud from the Highway foundered at court.

Valentine v (1) Transport for London (2) LB Hounslow, Court of Appeal (2010)

Background

The claimant was riding a motorcycle along a road in Hounslow. The highway was maintained by TfL (the Highway Authority) and the cleansing authority, responsible for keeping the road surface clean, was the London Borough of Hounslow (LBH). The claimant's case was that his motorcycle had skidded on an unsafe accumulation of detritus, grit and/or gravel on the carriageway. The claimant claimed breach of the duty of a Highway Authority to maintain the highway under section 41 Highways Act 1980 and negligence. The claimant died the day after the incident from an acute subdural haematoma.

First instance

At first instance both defendants were successful in striking out the claimant's claim. The Court agreed that the duty of the Highway Authority to maintain under section 41 Highways Act does not extend to the removal of transient surface-lying material and in addition there was no breach of duty by LBH, as failure to sweep the area was a nonfeasance. The family of the deceased appealed.

On appeal

It was found that Goodes v East Sussex County Council (2000) was not limited to snow and ice on the road, Goodes did indeed mean that the removal of surface-lying material was not part of the maintenance required by a Highway Authority by section 41. As such the appeal against the decision in favour of TfL was refused.

The appeal against LBH succeeded as it was found to be arguable that the cleaning of the carriageway, save for the small area that had contained the surface-lying grit, had in fact created a trap and as such constituted in a positive negligent act on behalf of LBH.

Comment

  • The duty to maintain the highway under section 41 only extends to the maintenance of the structure and fabric of the carriageway and there is no duty to keep the surface clear from the build-up of any transient materials. The only exception to this is snow and ice, pursuant to section 41(1A) Highways Act 1980.
  • The Court of Appeal made it clear that Goodes is still good law so far as other substances on the highway are concerned and concluded that it was a matter for Parliament as to whether the duty should be extended to cover the removal of mud and grit, just as it had done for ice. Many have argued otherwise until now.

The case will proceed to decide whether LBH's actions did in fact create a trap for motorcyclists.

Kim Ali v Bradford City Metropolitan District Council (2010), Court of Appeal

The question on appeal was whether a Highway Authority may be liable, by way of an action for breach of statutory duty under section 130 Highways Act 1980 and/or nuisance, for an accident suffered by a member of the public on a public footpath as a result of slipping on an accumulation of mud and debris.

Factual background

The claimant was walking with a friend down Dick Lane when they came to a footpath. The claimant proceeded to descend the steps. When she reached the third or fourth step, she decided that they were too dangerous. As she turned to tell her friend not to follow, she slipped and fell. It was her case that the condition of the footpath had been long neglected by the Highway Authority. It was accepted that the footpath came within the definition of a highway maintainable at public expense. Photographs taken for the litigation showed that, at the material time, the steps were covered with a considerable amount of mud, overgrown vegetation and all sorts of rubbish.

Legal background

The claimant's heads of claim were, unusually, limited to a breach of duty under the rarely quoted section 130 of the Highways Act, and nuisance.

It is useful to look at what the legislation says. Section 130 is headed "Protection of public rights" and states:

"it is the duty of a council who are a Highway Authority to prevent, as far as possible, the stopping up or obstruction of:

(a) the highways for which they are the Highway Authority, and (b) any highway for which they are not the Highway Authority, if, in their opinion, the stopping up or obstruction of that highway would be prejudicial to the interests of their area."

The claimant submitted that, on the assumed facts, she had a valid cause of action against the Highway Authority for breach of its duty under section 130 in failing to prevent, as far as possible, the obstruction of the footpath by mud, vegetation and rubbish, which made it dangerous for pedestrians.

The Highway Authority contended that section 130 was not intended to give rise to a civil action for damages. The lower court agreed, striking out the claimant's claim, along with the claim in nuisance for good measure.

Appeal

The Court dismissed the claim in statute, holding that there is nothing in the language of section 130 to suggest that Parliament intended it to give rise to a right to pursue civil action. The section is about legal rights of access; it is not about the safety of the condition of the highway. It places no express obligation on the Highway Authority to remove obstructions, and there is no justification for the implication of such an obligation.

The nuisance claim was also dismissed. The claimant contended that if the defendant had actual knowledge of the hazardous mud, or the means of acquiring such knowledge, then they could be said to have continued or adopted the nuisance. The defendant submitted that its only duty in relation to the highway was as set out within the very well known section 41 Highways Act 1980 – the duty to maintain the fabric of the highway.

The Court held that section 41 was a carefully regulated statutory scheme and it would usurp the proper role of Parliament to bring in liability through the nuisance back door. It was stressed by the Court that this case was not concerned with a nuisance that was created by the Highway Authority. There has never been a suggestion that a Highway Authority would not be liable at common law for a nuisance that it created.

Comment

  • At a time when the resources of local authorities are ever more scarce, this case is an extremely important shutting down of potential claims through the novel use of section 130 of the Highways Act 1980. To impose liability for the slippery mud that way would have been a financial disaster for local authorities.
  • The Court of Appeal has made clear that this section is concerned with the protection of the legal rights of the public to use the pathways and is not concerned about the safety of the condition of the highway.
  • The duty under section 130 is a public law duty, with its own statutory method of enforcement.
  • Likewise, the attempt to impose liability through the law of nuisance was again rejected.



One Long Party!

By Rebecca Wilson

Liability of landlords for anti-social behaviour: Octavia Hill Housing Trust v Brumby (2010), High Court

The recent decision of Mackay J in Octavia Hill Housing Trust v Brumby (2010), High Court may provide some cause for concern for landlords and particularly those concerned with the letting and management of social housing.

Facts

The claimant, Ms Brumby, was an assured tenant of the defendant Housing Association, Octavia and lived on the lower ground floor of a block of flats. On the top floor of the same block lived a Ms Walker. According to Ms Brumby, over a period of nearly four years, visitors to Ms Walker's flat indulged in anti-social behaviour. Ms Brumby alleged that she made her concerns about these activities known to the defendant but it failed to take any reasonable steps to abate them.

Ms Brumby brought a claim in nuisance against the defendant, alleging that it was liable for failure to prevent the nuisance occurring. The claim was initially pleaded to encompass nuisance emanating from Ms Walker's flat itself but was later amended only to include nuisance emanating from the common parts of the flats, over which the defendant retained control. This included the stairwells, entrance area to the flats (which was directly above Ms Brumby's flat) and an outside paved area directly outside her reception room.

The defendant applied to strike out the claim on the basis that there had to be something more than the mere existence of anti-social behaviour on its land and a mere failure to abate the nuisance was not enough. It argued that it is only in exceptional circumstances that a landlord can be held liable for the nuisance of its tenants and in the cases where that had occurred, some positive step had been taken by the landlord to continue the nuisance.

HHJ Gibson at first instance refused to strike out the claim holding that the determination of the claim was entirely factual. The defendant appealed to the High Court.

Appeal

Mackay J upheld the finding at first instance and refused the appeal. He agreed that it would be possible for the defendant to be liable for the continuation of the nuisance. This was in accordance with the principle established by the House of Lords in Sedleigh Denfield v O'Callaghan (1940), whereby a person in possession of land may adopt the nuisance of a third party if, with actual or constructive knowledge of the nuisance, he fails to take reasonable steps to abate it. Whether the tort could be established was a matter for the trial judge to determine on the facts.

Comment

  • This is a potentially worrying decision for housing associations and local authorities, both of which may be concerned about potential liability for unruly tenants.
  • However, it must be remembered that the case only concerned potential liability regarding the common parts of the building over which the defendant retained control.
  • The key reason that there was potential liability in this instance was because it concerned the use of land rather than the behaviour of the actual individuals and it should be possible to distinguish it in many case.
  • Further, this was of course an Interim Application and the claimant will still be required to prove her case on the facts.



A Uniform Approach To Education

By Tom Walshaw

Does the right to an education under the Human Rights Act 1998 open up a new route to compensation?

The recent case of A (Appellant) v Essex County Council (2010) examined the value of the "right to education" under the Human Rights Act 1998. To what extent must a local authority provide all children with an effective education, and can it take into account their special needs and the demands on resources?

Background facts

"A", now in his early twenties, is severely autistic, suffers from epilepsy and has severe learning difficulties. As a child, he attended a community special day school maintained by Essex CC known in the litigation as LS School. In May 2001, when he was aged 12, A's teachers expressed concern about his behaviour and the school's ability to deal with him. A would self harm, was doubly incontinent, would suffer regular epileptic fits, had no concept of danger and required constant supervision.

By January 2002, A's behaviour had deteriorated to the point where LS School could no longer cope with him, and his parents were asked not to take him into school for health and safety reasons. The intention of all the professionals concerned, including LS School, was for A to receive an urgent medical assessment at the National Centre for Young People with Epilepsy at St Piers.

Unfortunately, the assessment could not take place until September 2002. In the meantime, LS School sent work and activities for A to do with his parents at home and provided him with some weekly speech and language therapy sessions. It was acknowledged that A's educational needs were not being met during this time, but neither Essex CC nor LS School were able to provide a home tutor who was qualified or able to meet A's needs.

The September assessment recommended that A should be placed in a 24 hour residential school for children with challenging behaviour. Between October and December 2002, Essex CC wrote to 26 schools seeking a placement for A, but without success.

At a meeting in 2003, professionals acknowledged that his home environment was having a negative impact on A's behaviour because he remained under-stimulated and bored and needed to be supported appropriately. In January 2003, A started to receive respite sessions three mornings a week at the Limbourne Centre, where he was also offered tuition. However, the Limbourne Centre also had difficulties with A and felt they were minding him, rather than teaching him.

In February 2003, Kisimul School offered a place for A starting on 28 July 2003 at a cost of £223,589 per annum, which Essex CC agreed to pay. After taking his place at the school, A progressed well, his overall health and behaviour improved and he received an appropriate education.

A's case

A's case was that Essex CC had breached his right to education under the Human Rights Act and he was entitled to damages. He argued that there was an obligation on the local authority to provide him with an effective education, taking into account his special needs. A claimed he was denied that right to an effective education during the 18 months that he was out of school and should be compensated.

His claim was struck out at first instance, as having no realistic prospect of succeeding. That was upheld by the Court of Appeal and so A appealed to the Supreme Court.

Supreme Court decision

Their Lordships held that the Human Rights Act did not give A an absolute right to an education that catered for his special needs during those 18 months. The Act simply required that there be a system of education in place that did not discriminate against one section of the community.

The value of the right to education depends on the education system in place. A had been denied schooling because the resources needed for his medical assessment were not immediately available and it took time to find A a place at a suitable school. The right to education must have regard to the limitations on facilities.

There may have been a breach of the domestic education legislation which requires a system of provision for those with special educational needs and tuition at home, but that did not lead without more, to a breach of the Act: there had to be discrimination shown too.

Essex CC had done its utmost to have A properly assessed and, thereafter, find him a suitable placement. Although the interim measures put in place were arguably open to criticism, that was not the question, and their shortcomings did not deny A his right to education.

Conclusion

  • This claim would probably have failed under traditional negligence principles as Essex CC was doing all it could to provide education.
  • It is very important news that the claim here failed under the Human Rights Act. It is important that the right to a fair and non-discriminatory education under the Human Rights Act takes into account the resources and facilities available in the particular area of the contracting State. If not, it would provide a back door route to compensation and therefore exposure for local authorities on claims that would currently fail.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.