Crowley v Surrey County Council & Ors [2008] EWHC 1102 (QB)

[2008] EWHC 1102 (QB)

Case No HQ04X03534

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 20/05/2008

Before

THE HONOURABLE MR JUSTICE FOSKETT

Between

ANTHONY DAVID CROWLEY (SUING BY HIS MOTHER AND LITIGATION FRIEND PATRICIA CROWLEYClaimant

SURREY COUNTY COUNCIL1 st Defendant

KINGSTON and RICHMOND HEALTH AUTHORITY2 nd Defendant

KINGSTON and RICHMOND COMMUNITY NATIONAL HEALTH SERVICE TRUST3 rd Defendant

KINGSTON PRIMARY CARE TRUST4 th Defendant

SOUTHWEST LONDON STRATEGIC HEALTH AUTHORITY5 th Defendant

Mr Nicholas Bowen and Miss Shu Shin Luh (instructed by Teacher Stern Selby Solicitors) for Claimant

Mr Andrew Warnock (instructed by Weightmans Solicitors) for First Defendants

Mr Steven Ford (instructed by Browne Jacobson Solicitors) for Second, Third, Fourth and Fifth Defendants

Hearing Hearing dates: 3,4,5,6,7,12,13,14 December 2007 and 18 March 2008

Judgment

Introduction

[1]This claim may broadly be categorized as an “educational negligence” claim.

[2]Life has not treated the Claimant, Anthony David Crowley (“Anthony”), well. He now aged 24 having been born on 6 November 1983. In late 2002 his mental condition began deteriorating such that from early 2003 he has been under regular psychiatric supervision. He has been diagnosed as suffering from schizophrenia the prognosis for which is poor. He has been resident for some time in an assessment and treatment unit in Surrey (the unit is threatened with closure) for the most part as a voluntary patient, but on occasions as a compulsory patient. He is not capable of managing his own affairs and he brings these proceedings with his mother, Mrs Patricia Crowley, as his “litigation friend”.

[3]Anthony was 19 when his mental disorder first manifested itself. Whilst it is common ground in this case that his schizophrenia would probably have developed irrespective of his educational problems, it is clear that he had a difficult and unhappy educational history at least until he went to a special needs school called St. Dominic’s in Godalming, Surrey. He first went there when he was just over 12½ years of age. About two years later his father developed cancer of the oesophagus from which he died, at the age of 64, in January 2000.

[4]As will emerge, Mrs Crowley has been Anthony’s chief supporter and advocate during all his difficulties. Her resilience is much to be admired, but the last twenty years must have taken their toll upon her.

[5]In a nutshell, it is alleged on Anthony’s behalf that individuals for whom the relevant education and health authorities have a vicarious liability let him down negligently at various stages of his educational life by not recognizing and acting appropriately in respect of what are alleged to be his particular learning difficulties. It is further alleged that the education authority, on the one hand, and the health authorities, on the other, each owed a duty of care to him, independent of those owed by their employees, in respect of the responsibilities that they had for him. It is accepted on his behalf that he was a boy of low average intelligence but it is alleged that but for these various failures he would have been better able to cope with and recover from his psychiatric condition and would, contrary to his likely future, have at least been able to lead a semi-independent life capable of working in a sheltered environment. Damages are sought to compensate him for these alleged consequences.

[6]Even if breach of duty and causation are established, it is plain on the authorities that govern the correct approach (see DN v. Greenwich

[2004] EWCA Civ 1659

and Clarke v. Devon County Council

[2005] EWCA Civ 266

) that the level of damages that could be awarded would be modest, certainly by comparison to the costs involved in preparing for and taking part in a trial that lasted 7½ days simply to hear the evidence, several of those days involving sitting for longer than normal court hours. Since all parties are involved in spending public money on the litigation, the cost benefit analysis of such an exercise is inevitably a matter of some concern: see the remarks of Mummery LJ in Clarke v. Devon County Council para 11.

[7]In summary, the position of the education and health authorities is that their respective employees did not act negligently at any stage (apart from in one minor respect by one of the health authority employees), that there was no “corporate failure” to recognise and act upon Anthony’s difficulties and, in any event, that it has not been established that any breaches that may have been admitted or may be found made any material difference to his life and/or his future.

The legal framework in relation to breach of duty

[8]The legal framework within which liability in a case such as this falls to be determined has been the subject of authoritative consideration in a number of cases in recent years including Phelps v. London Borough of Hillingdon

[2001] 2 AC 619

, Carty v. Croydon LBC

[2005] 1 WLR 2312

and Clarke v. Devon County Council

[2005] EWCA Civ 26

[9]I do not propose to extend what will inevitably be a lengthy judgment with detailed reference to those authorities. Suffice it to say that in relation to that which is justifiable in the context of a claim of this nature, the framework is conveniently summarized by Dyson LJ in Carty at paragraph 26 as follows:

“In the field of special education, there is a spectrum at one end of which lie decisions which are heavily influenced by policy and which come close to being non-justiciable. In relation to such decisions, the court is unlikely to find negligence proved unless they are ones which no reasonable education authority could have made. At the other end of the spectrum are decisions involving pure professional judgment and expertise in relation to individual children such as, for example, whether a child is dyslexic or suffering from some other learning difficulty. In relation to these decisions, the court will only find negligence on the part of the person who made the decision (for which the authority may be vicariously liable) if he or she failed to act in accordance with a practice accepted at the time as proper by a responsible body of persons of the same profession or skill: see Bolam v Friern Hospital Management Committee[1957] 1 WLR 582 .”

[10]The need for caution in finding negligence, as set out in Phelps, was re-emphasized in Carty: see paragraph 27. Notwithstanding such caution, if negligence is established on the evidence in such a case, it must plainly be found, as it was in Clarke. However, the need to distinguish clearly between a “back-door” action for breach of statutory duty where the law is that there is no such claim and a genuine claim in negligence has to be borne in mind throughout: Carty,per Mummery LJ at paragraph 83; Marr v. London Borough of Lambeth

[2006] EWHC 1175

[11]I will return to these parameters as and when the occasion presents itself later in this judgment.

The parties

[12]The relevant local education authority, Surrey County Council, is the First Defendant. It is that authority that was responsible for the provision of State-funded education in the area in which the Claimant resided for much of the material time. It would have been the authority that would have been responsible for “statementing” the Claimant pursuant to the Education Act 1981 had it been thought that he had ‘special educational needs’ within the meaning of section 1 of that Act.

[13]The Second – Fifth Defendants are health authorities that had responsibility for the provision of speech therapy services within the area in which the Claimant resided at the material times.

[14]The individuals against whom allegations of negligence have been made (though not necessarily maintained) are as follows: i) First Defendant a) Mr Miles Halliwell Mr Halliwell was a District Educational Psychologist employed by the First Defendant in the northeast area and was based in the Northeast Area Education Office in Weybridge. He was employed in that capacity from September 1986 until March 1989. His dealings with Anthony’s case were in the period from about May/June 1988 until his move to other responsibilities in March 1989. He ceased working for Surrey County Council in 1990. b) Mr Neville Adams Mr Adams was an Educational Psychologist who also worked for the First Defendant between 1972 and 1994. Between 1974 and 1994 he was Senior Educational Psychologist for the Northeast area. He was Mr Halliwell’s line manager at the time he (Mr Halliwell) was involved and took over Anthony’s case on Mr Halliwell’s move in March 1989. Prior to becoming an Educational Psychologist Mr Adams had been a teacher for eleven years, for part of that time being Head of a primary school. His involvement with Anthony’s case spanned the period from March 1989 until the early part of 1994. ii) The Second – Fifth Defendants a) Mrs Bridget Attridge Mrs Attridge was employed as a speech and language therapist by Kingston and Richmond Health Authority between 1976 and 1987 and from 1987 by Southwest Surrey Area Health Authority. Her last involvement with Anthony was in October 1987. b) Mrs Kay Bentley (formerly Beeson) Mrs Bentley (then Miss Beeson) started work in August 1988 as a newly qualified speech and language therapist at The Dittons Clinic for one day a week. She left the Clinic in May 1990. c) Mrs Susan Browne Mrs Browne was the Chief Speech Therapist with the Kingston and Esher Health District from April 1988 to 31 December 1989. d) Ms Jane Griffiths She was a speech and language therapist who worked at The Dittons Clinic in the 1993/1994 period and thereafter. e) An unnamed speech and language therapist In fact she was identified during the proceedings as a Brenda King. f) Mrs Sheila Read She was Head of Paediatric and Language Therapy with Kingston and Richmond Health Authority from 1990 and was in post during the relevant period thereafter.

[15]I will say more about such of the allegations against these individuals that are maintained as I relate the detailed factual background. In relation to the First Defendant, the allegations concern the period from November 1988 to April 1994 and in relation to the Second – Fifth Defendants from April 1987 to January 1995. As I will record, a good number of the allegations of negligence originally made have since been abandoned. Perhaps it would be appropriate to note even at the outset of this judgment that the allegations against Mr Halliwell, Mrs Attridge, Mrs Bentley and (in large measure those against) Mrs Browne were not pursued.

[16]Notwithstanding the length of time since the material events, the background is reasonably well documented and certainly one or two of the Defendants’ witnesses, most particularly Mr Adams, remember the case very well.

[17]I must now set out to trace the history through the material period. In formulating that history I have been greatly assisted by two excellent chronologies dealing with speech therapy and education prepared by Miss Shu Shin Luh, junior Counsel for the Claimant. This was supplemented by an amalgamated chronology of the documents prepared by Mr Warnock. I am grateful to them both for their industry.

The factual background

[18]As I have indicated, Anthony was born on 6 November 1983. He was the second of two children born to Mrs Crowley and her late husband, their first child, Dominique, having been born thirteen months previously on 21 September 1982.

[19]At around the age of 2½ years his parents and other members of the family thought that he was developing more slowly than he should have been. In due course they took him to their GP, Dr Woodhouse, who referred him to the Paediatric Department at Kingston Hospital. The GP’s referral letter of 24 November 1986 described Anthony as “a very slow developer”. Dr Woodhouse said that he had “a feeling he is either deaf or mentally sub-normal”. He said that his speech “is appalling for his age and he is very retiring”.

[20]He was seen by Dr Peter Christie, a Consultant Paediatrician based at the Maple Child Development Centre at Tolworth Hospital, Surbiton, on 5 January 1987. He was then aged 3 years and 2 months. Dr Christie noted that “he [had] difficulty with language with poor articulation and nasal speech”. He said that his speech was about a year behind his chronological age and that “his expressive language is quite markedly delayed with poor articulation.” He noted that his eye/hand co-ordination was at about a 2 years 6 months level. He summarized his view by saying that Anthony had “delayed language development and articulation problems associated with mild global delay.” Dr Christie communicated those views to the GP in a letter dated 20 January 1987 which he copied to Mrs Ann Jozefowicz (to whom he wrote separately), a Paediatric Developmental Therapist, and a Sue Strudwick, a Speech Therapist employed by what was then the Kingston and Esher Health Authority.

[21]It appears from further letters written by Dr Christie during 1987, and indeed as substantially confirmed by Mrs Crowley, that Mrs Jozefowicz saw Anthony from time to time, perhaps once a month, and offered advice and support. There is no written record of her views until the memorandum of 20 May 1988 to which I will refer in paragraph 30 below. One suggestion made by Mrs Jozefowicz was that Anthony should attend a playgroup which indeed took place, Mrs Crowley accompanying him.

[22]The records indicate that Anthony was first seen by a speech therapist, Mrs Bridget Attridge, on or about 10 April 1987 when she conducted a Reynell Test or, more fully, the Reynell Development Language Scales Verbal Comprehension Test. It is, as I understand it, a screening test used by speech therapists to assess the comprehension of children thought to have delays in speech development. At the time the test was administered Anthony was aged 3 years and 5 months. His age equivalent score was noted to be 2 years and 10 months, i.e. some 7 months behind.

[23]Mrs Attridge noted her impression that Anthony was “generally immature all round”. He undertook speech therapy sessions with her in The Dittons Clinic, Thames Ditton, in April, May, June (four times) and once in July. This sequence of speech therapy sessions would appear to have been in anticipation of his attendance at Grantchester House, a small independent nursery school in Hinchley Wood, which he was due to attend in September.

[24]Dr Christie, who had seen Anthony again in June, thought at that stage that he had made some progress although his articulation was “a little immature”. Mrs Attridge reported to Dr Christie in early October that “although he is improving his general linguistic ability is below 3 years.” She said that she had just assessed his articulation and that “on individual sounds he is following a normal pattern of development but at a slower rate, so the picture fits in with the overall pattern of mild delayed physical and emotional immaturity.” In a letter written the same day to the Headmistress of Grantchester House (Mrs Fry) she said that “with regard to his language development this follows the general pattern of immaturity – comprehension is delayed by a few months, content and syntax are around the 3 year level and articulation is following a normal pattern but is retarded.” She said she “was reasonably satisfied with his progress” and that he would benefit from a break in therapy until the New Year when he “should be re-assessed”. She drew attention to the fact that she was moving to a new district and that “for a short while” the clinic would be running on reduced hours.

[25]It is, perhaps, appropriate to record at this point that the planned re-assessment in January 1988 did not in fact take place until September 1988. This general period seems to have been one when there was a dearth of qualified speech therapists. If someone left a post after September in any year, it was often not possible to replace that person until a newly qualified speech therapist became available after graduating at the end of the academic year. In other words, it was frequently not possible to replace someone until August/September of the following year. This happened in this case. After Mrs Attridge left, she was not replaced until Mrs Bentley (formerly Beeson) arrived in August 1988.

[26]As I have already noted, no criticism is now maintained in relation to Mrs Attridge’s assessments, conclusion or the speech and language therapy she gave.

[27]Reverting to the chronology, Dr Christie had contacted Mrs Fry shortly after Anthony started at Grantchester House asking for an assessment of how he was getting on in his first term, indicating that he intended to see him again in December. Mrs Fry delayed replying until 30 November, by which time the school had had a reasonable time to assess Anthony. The relevant paragraph of her letter was in these terms:

“Anthony comes into school each morning quite happily. His co-ordination has improved and his manual dexterity shows steady progress – he tries extremely hard to form his letters correctly and his colouring has improved. His reaction or inter-reaction with the rest of the class is very limited and he often appears vacant. The week of his birthday in November, we saw a different child. He was animated and full of confidence and we all hoped that this was a breakthrough. He was obviously made to feel very important at home as the ‘birthday boy’ and this paid dividends, but sadly he has since gone back to his old self. We know he is very different from his sister Dominique, who is in her second year with us. Her progress is excellent and I am delighted with her, I wish I could say the same for Anthony.”

[28]In fact Dr Christie saw Anthony on 1 December and wrote to Dr Woodhouse on 2 December saying that he was “making very satisfactory progress … although at times he is slightly introverted.” He said that “his language is still slightly immature, as is his articulation, but he has made quite considerable progress.”

[29]It is not entirely clear whether Dr Christie had Mrs Fry’s letter available to him at the time he wrote that letter. I am inclined to think that he did not because I am not sure the essentially positive nature of his letter is matched by the contents of Mrs Fry’s letter. Nothing has turned upon it because by March the following year, after he had seen Anthony again on 1 March, Dr Christie was concerned to follow up the speech therapy re-assessment that Mrs Attridge had anticipated. He wrote to Mrs Alison Ross, the District Speech Therapist, asking if the re-assessment due in January could be carried out. She replied indicating that there was no regular speech therapist in post at The Dittons Clinic and that many other clinics were “unmanned at the present time” such that it would not be possible for Anthony to be seen elsewhere. She was hoping for the appointment of someone at The Dittons “fairly soon”. As I have indicated, it was not until August that Mrs Bentley was in post and Anthony was not seen until September.

[30]This was an unfortunate hiatus. However, the Second – Fifth Defendants cannot be criticised for not being able to make provision for speech and language therapy where it simply could not be provided. But there can be little doubt that Anthony needed help again. Mrs Jozefowicz saw Anthony at school on 18 May where she spoke to Mrs Fry and to Anthony’s teacher. She sent a memorandum to Dr Christie dated 20 May which contained the following passage:

“Teacher and Head feel [Anthony] has benefited little since his arrival in [September 1987], that there is a widening gap between his peer group. This applies both to verbal inter-reaction [songs, rhymes, communicating], and to pre-reading/pre-writing skills. The general approach is very prep school/academic, i.e. [Anthony’s] group will have achieved basic reading and writing by the end of this term. This accentuates [Anthony’s] learning difficulties. Head and Teacher think [Anthony] is in no way ready to move into the next class, and to repeat the same year with the next group with younger children would only delay a decision for a more appropriate placement. Mrs Fry intends to give both parents an appointment during this week. I will contact Mrs Crowley and offer an appointment for an up to date assessment, support and assistance in considering alternative placements. Has Anthony been notified for ‘Special [Educational] Needs’?”

Has Anthony been notified for ‘Special [Educational] Needs’?”

[31]It is clear from that passage and a note made by Dr Christie on 20 June that active consideration was being given to finding another school for Anthony as from September. Mrs Crowley had been in touch with Mr Halliwell by then and St Paul’s Roman Catholic First School in Thames Ditton had been identified as the best candidate. Dr Christie had also been in touch with Mr Halliwell. Dr Christie’s note includes the expression “? [Educational] Assessment”, an expression that plainly reflected the same question that had raised itself in Mrs Jozefowicz’s mind, namely, whether Anthony was a candidate for “statementing”.

[32]I should pause again in the chronology to note one aspect of the legal framework that operated at that time. Section 10 of the 1981 Act placed upon an Area or District Health Authority the obligation of bringing to the attention of the appropriate Local Education Authority any child under the age of five with which it had been dealing who, in the opinion of the Health Authority, “has, or probably has, special educational needs”. There is an obligation to inform the parent(s) of the child of this opinion.

[33]The process referred to in paragraph 32 would have involved, I was told by Dr Christie, a formal notification in letter form to the education authority. No formal letter was sent in this case. Mr Halliwell saw Mrs Jozefowicz’s memorandum and apparently checked with the Area Health Authority and with his own office to see whether any such notification had been given or received. He said in his witness statement that he discovered that Anthony had not been so notified and as a result thought that he “was not giving major concern to those who knew him better than me.”

[34]Mr Halliwell was not challenged about this aspect of his recollection which, he acknowledged, was largely dependent on the documentation. There is, in fact, no documentation to show that he checked the position following seeing Mrs Jozefowicz’s memorandum. Mr Halliwell said he documented all his telephone conversations. The only note in the period under consideration is a handwritten note of a telephone conversation he had with Anthony’s father on 13 June in which he recorded that Mr Crowley was “signalling that [he did not] think there are any [problems].”

[35]Nothing particularly turns on this, because even if the preliminaries to a statementing process had started at or about that time it would, I think, have been halted by the speech and language therapy assessment to which I will refer in paragraph 36 below. However, with all the wisdom of hindsight, this period is one where an opportunity was perhaps lost to secure active consideration to Anthony’s situation. I sensed that Dr Christie thought in hindsight that this was a time when a section 10 notification would have been appropriate given the difficulties Anthony was plainly having at Grantchester. Hindsight is not, of course, the criterion by which the action or inaction at this time is to be judged for this purpose.

[36]Arrangements were made for Anthony to go to St Paul’s and he started there in September. Mrs Bentley saw Anthony for the first time on 27 September after her appointment to The Dittons Clinic. Her assessment was that Anthony’s “general linguistic ability is improving” and that his articulation was also improving albeit with “some residual difficulties”. His comprehension was assessed to be five months retarded by reference to a further Reynell’s test. She concluded her letter dated 20 October 1988 to Dr Christie in this way:

“I feel he would benefit from a short course of therapy preferably in a group setting. I intend to see him as soon as there are (sic) a group of children with similar difficulties and when the waiting list eases off a little.”

[37]No criticism is maintained of that assessment or its conclusion and it is difficult to see how any formal assessment process commenced around this time would have led to any significant intervention because all that Mrs Bentley was suggesting was “a short course of therapy preferably in a group setting.” No special school or language unit was being suggested.

[38]The speech therapy that Mrs Bentley anticipated commenced in February 1989 and I will return to that below. In the meantime Mr Halliwell saw Anthony at school on 28 November. This visit seems to have been prompted by a further letter to Mr Halliwell from Dr Christie dated 30 September 1988 which was also copied to Mrs Jozefowicz and to Mrs Ross. It was in these terms:

“I saw Anthony Crowley recently. He has started at St Paul’s School, Thames Ditton, and has settled in there well, according to his mother. I gather he is due to have speech therapy in group sessions at Thames Ditton Clinic, and I believe Ann Jozefowicz will be visiting the school in the next few weeks. I think Mrs Crowley is very keen that Anthony should receive any extra help he may need as early as possible. My feeling is that he has made some strides with his language. His articulation is still rather immature. No doubt you will be keeping an eye on him at St Paul’s School. We can be in touch when I next see you at the Child Development Team meeting.”

[39]The final sentence of that letter does suggest, as Dr Christie told me, that children like Anthony were the subject of discussions (albeit unminuted discussions) at Child Development Team meetings from time to time. At all events, Mr Halliwell noted that the reason for his visit was the “[need] for careful monitoring of school attainments”. The note he made of his observations when he visited was in these terms:

“Feeling that he is generally delayed developmentally and in attainment but that he has made progress … [Ann Jozefowicz] has visited school once. [Educational Psychologist] collected samples of free writing and drawing. Letters poorly formed and no spaces between words. Discussion with [class teacher] about ways of spacing the words and about use of cursive scripts. Drawings of people below average range. [Educational Psychologist] carried out informal assessment. Knows some letter sounds. Wrote first name without the h and o and with the n rotated through 180 degrees. Uncertain about recognition of some digits.”

The actions Mr Halliwell set in place following that visit were (i) for the staff to implement certain ideas discussed (including the use of cursive writing and the spacing of words), (ii) for the class teacher to complete the NES-I-SEN checklist and (iii) for the educational psychologist to discuss Anthony at the Child Development Team meeting and to contact the parents to review progress.

[40]Mr Halliwell told me that the NES-I-SEN checklist was developed specifically as a North East Surrey “in-service” assessment checklist for those thought potentially to have special educational needs. It was designed for the class teacher to record a child’s numeracy, literacy and social skills at various points. The idea was for it to be completed from time to time to inform discussions about how the pupil was progressing (or not as the case may be) and to use it as a basis for deciding how to proceed. As will appear from paragraph 42 below, it was certainly completed once, probably at the end of the Autumn Term 1988, but was not completed on a second occasion.

[41]I will turn to the school’s assessment of Anthony shortly, but it is worth recording the impression that Mr Halliwell had formed of Anthony when he saw him in November. This was recorded in a letter to Dr Christie dated 31 January 1989 which post-dates one or two other matters in the chronology with which I shall have to deal. However, it is convenient to note at this point what Mr Halliwell said. It was in these terms:

“I was able to have a quick look at Anthony in class towards the end of last term. He certainly seems to be making a slow start with some aspects of his school work and I am sure he would benefit from extra help. However, I am not yet certain whether the source of the extra help should be from within the school’s own resources or whether we should organise things from outside for him. I have suggested some specific ideas to the staff to try with Anthony to help with that decision and I hope to follow up those ideas with the staff on a future visit. I have called Mrs Crowley recently to explain how far I have got and what we will be doing next. I will let you know any further developments.”

That letter certainly does indicate that at that preliminary stage Mr Halliwell had formed the view that Anthony “would benefit from extra help”, but that how it was to be sourced was a matter for further consideration. I will return to one finding of fact that I need to make against the background of that letter in due course.

[42]Returning now to the chronology of events towards the end of 1988, as I have indicated, the checklist referred to in paragraph 40 was completed (or partially completed) in relation to the Autumn Term 1988. Against the heading “language”, the class teacher had written “needs constant help”. His number recognition and “sets” were ticked, presumably indicating satisfactory progress.

[43]Dr Christie saw Anthony again on 29 December 1988. He wrote to Dr Woodhouse (copying the letter to Mr Halliwell and Mrs Bentley), the substantive part of his letter reading as follows:

“He has now completed one term at St Paul’s School ... where he seemed to be quite settled. Mrs Crowley thought that his writing deteriorated initially, but things are beginning to pick up now. Within the classroom his attention span is short and according to his class teacher he will not stick to the task in hand. His language has improved since I last saw him and his articulation is improved, although he still has some difficulty with sh and ch. In the last six months his drawing of a man has improved quite dramatically. In June 1988 it was little more than some disjointed scribble. Now he is able to draw a recognisable man. He attempted to write his name which he achieved with some prompting. Also, he was able to write the letter 5 for his age with some prompting.”

Dr Christie referred to the speech therapy planned by Mrs Bentley, to the fact that Mr Halliwell had seen Anthony and that Mrs Crowley was “eager for Anthony to have extra help within the school setting.”

[44]The documentary material indicates that the Head Teacher at St Paul’s, Mrs Bennett, telephoned Mr Halliwell to chase him up following his visit to see what the situation was. It was doubtless that telephone call that prompted Mr Halliwell to telephone Mrs Crowley on 13 January. The only note of that call is one prepared by Mr Halliwell which recorded that Anthony “gives up too easily – lacks confidence.”

[45]That telephone conversation took place some eleven days before Mrs Bennett wrote to Dr Christie with an appreciation of how Anthony was getting on. The substantive part of her letter (which was not seen by Mr Halliwell apparently) reads as follows: “His teacher considers he has been more settled and slightly more independent in that he makes an attempt to put on his coat and can follow the other children in classroom tasks. His limited span of attention continues to impede progress, however. …. His teacher has discussed his writing skills with [Mrs Noad], the remedial teacher who visits our school. No separate remedial help has so far been allocated to Anthony and I feel that this should be considered in view of the large number of children in the class and the limited amount of time for him at the disposal of the class teacher.” ….

[46]These events and communications took place before Mr Halliwell’s letter to Dr Christie to which I referred in paragraph 41 above. It is, however, clear that there was one telephone conversation between Mr Halliwell and Mrs Crowley at a time when Mrs Crowley, and indeed the school, were pressing for additional help and Mr Halliwell himself thought that Anthony needed it. Mrs Crowley’s evidence is that in a telephone conversation during Mr Halliwell’s involvement he “promised … that Anthony would receive five hours a week individual tuition that never materialized”. It is also clear that about 5-6 weeks after that telephone conversation, on 22 February, Mr Crowley telephoned the education authority asking for feedback following Mr Halliwell’s involvement and saying that they were “very anxious for help with Anthony and to have ideas re his future, etc.” Mr Crowley apparently said that they felt “left in limbo”.

[47]Mr Halliwell has said that he has no recollection of suggesting that five hours a week could be made available. He emphasized in his evidence that he would not have had the power to promise such provision even if he had thought it was needed. I do not think that Mr Halliwell was taking refuge in saying that he “did not recall” saying anything about five hours when in fact he did recall doing so. There is nothing in the contemporaneous documentation that directly confirms that something as specific as five hours per week was mentioned at the time. However, the circumstances recorded in paragraphs 41 – 46 above do support the notion that everyone, including Mr Halliwell, thought that Anthony did need some extra help at that time. Mrs Crowley was, within the limits of anyone who has to cast his or her mind back nearly twenty years, a reliable and honest witness and I do not think that she would have mentioned something as specific as five hours a week if it had not been said to her. Indeed after the conclusion of the evidence and whilst the hearing of the final oral submissions was pending, Mrs Crowley found a letter dated 12 January 1990 (which was disclosed and which I read without objection from Mr Warnock or Mr Ford) that she had written to a Mr Peter Fahey asking for some advice in which the following appears:

“Before the end of the last summer holidays, the Education Psychologist for our area had promised us Anthony would be receiving 5 hours a week individual instruction to help him grasp the basics of his education. Unfortunately, this has not transpired due to lack of staff.”

That certainly reinforces the evidence that Mr Halliwell had mentioned 5 hours a week in some conversation with Mr or Mrs Crowley or both. However, the issue is the context in which it was said.

[48]Whilst I do not doubt that what Mrs Crowley has said is what she genuinely thought at the time, I think there must have been a misunderstanding about the suggestion becoming a commitment to make such provision; I think it was more likely that Mr Halliwell said that he was “thinking in terms of” five hours a week or some such similar expression. However, to the extent that it is relevant, I do find as a fact that Mr Halliwell did mention the possibility of five hours per week individual tuition being provided at about this time, but I do not accept that it went as far as a promise that it would be provided.

[49]Having made that finding, however, I am not sure that it advances the Claimant’s case in relation to negligence in any material sense. It merely evidences an initial view that Mr Halliwell may have formed personally about what may have been appropriate for Anthony at the time. However, in the form in which I have been able to find that it was mentioned, it was unspecific as to the precise nature of the support that Anthony would get even if the idea was implemented. Mr Halliwell had been criticized specifically in the Particulars of Claim for failing “to take any or any reasonable steps to ensure that the … Education Department provided the extra help he was sure Anthony needed” (my emphasis), specific reference being made to what was said by him in the telephone conversation. Since the allegations of negligence against him have not been maintained, in one sense I need say nothing more. However, since it has surfaced, and Mr Bowen in his Closing Submissions invites a finding that the promise was made, I think I should say that the highest that this could have been put is that Mr Halliwell ventured a view that five hours per week might be required or provided, but that it was never translated into either a concluded view or necessarily a commitment to provide a level of support the failure to provide which was negligent. The balance of the contemporaneous documentary material suggests that Anthony was to be monitored by his class teacher until a concluded view could be reached.

[50]The events with which I have been dealing in the last few paragraphs occurred in January/February 1989. On 21 February the speech therapy sessions foreshadowed in Mrs Bentley’s letter to Dr Christie of 20 October (see paragraph 36 above) commenced. The records indicate that she saw Anthony for therapy sessions (initially with others, but then on a one-to-one basis) on two sessions in February and once a month thereafter (though twice in June) until July although there are suggestions in parts of the documentation that it was more frequent than that.

[51]During this period she administered two specific tests, the first being the British Picture Vocabulary Scale Individual Test. The purpose of this test, which she carried out on 28 February 1989, was to test Anthony’s language understanding through the medium of a vocabulary understanding test. As I understand it, the standardized scores in this test were generally regarded as reflecting “general intelligence”. His standardized score of 83 was only just outside the average range for intelligence and within the range for children with mild global delay. I will return to the second test she administered in paragraph 66 below. Equally, I will deal with her assessment of Anthony’s progress over the three months or so to May 1989 in paragraph 57. The difficulty in trying to follow a seamless chronology through this (or indeed any) period is that the educational psychologists, the speech therapists, the paediatricians and the schools each had inputs at various times. In order to keep the chronology broadly on course I must now return to the educational psychologists and the First Defendant’s involvement.

[52]Mr Halliwell’s last recorded involvement was his letter to Dr Christie of 31 January 1989 (see paragraph 41 above). By the time of Mr Crowley’s telephone call on 22 February (see paragraph 46), it seems that Mr Halliwell was fading from the picture and Mr Adams was taking over Anthony’s case. He made arrangements to visit St Paul’s on 6 March. An internal record indicates that the question arose as to whether Mr and Mrs Crowley would be invited to go to the school when Mr Adams visited. The evidence suggests that the parents were not present when Mr Adams saw Anthony since the first written communication came from Mr Adams to Mr and Mrs Crowley in the form of a letter dated 28 April 1989 telling them that he had “now had an opportunity of seeing Anthony at school” and inviting them to ring him to discuss this.

[53]There is no evidence that Mr Adams conducted any formal assessment of Anthony when he saw him, but there may have been good reasons for that. The educational psychologists who gave expert evidence in the case, Mrs Gillian Willis and Mr Trevor Holme, agreed that there was a body of educational psychologists that would not have carried out full psychometric tests of intelligence at that time given that Anthony was in the reception class and was early in his school career. Mr Adams also did not follow up specifically the NES-I-SEN assessments that Mr Halliwell had put in place. He told me that he had a different (more “old fashioned” as he put it) approach to monitoring by seeing the child himself.

[54]Although no formal assessment was carried out, a clue to Mr Adams’ appreciation of Anthony’s limitations can be found in a letter he wrote to a Mrs Noad on 5 May 1989. Mrs Noad was a peripatetic literary support (or remedial) teacher employed by the First Defendant in the north east area. Mr Adams’ letter read as follows:

“I would be grateful if you could see this little boy who has considerable difficulties. He has progressed well since his admission to school but would, I feel, benefit from your unique approach.”

[55]Mr Adams would probably have had Mr Halliwell’s letter to Dr Christie of 31 January available (paragraph 41 above) and an appreciation from the school along the lines of Mrs Bennett’s letter to Dr Christie of 27 January (paragraph 45 above). It will be apparent from that latter letter that Mrs Noad had already offered some advice, but it seems that Mr Adams was suggesting some more direct involvement on her part. Mr Adams explained in his evidence that she was able to assist with children who, like Anthony, had difficulties with hand/eye co-ordination. Mr Adams confirmed in his evidence that the “considerable difficulties” he was referring to in his letter embraced Anthony’s failure to pick up skills in reading, writing, drawing and number – in other words, skills across the board.

[56]The positive action that Mr Adams took, therefore, at this stage was to invite Mrs Noad’s assistance. It seems fairly clear that efforts made by Mr and Mrs Crowley to speak to Mr Adams had come to nothing by then because on 16 May there was a telephone message for Mr Adams from Mr Crowley referring to an anticipated telephone call that had not materialised. Mr Crowley left his home number and office number for Mr Adams. It is unclear from the documentary material whether any such telephone conversation took place.

[57]At about the time all this was happening, Mrs Bentley wrote to Dr Christie to bring him up to date with her assessment of him. The letter was dated 12 May and was copied, inter alia, to Mr Adams. She said that there had been a “slow but steady improvement over the past few months” and said that his “receptive language is now within normal limits.” However, she said that his main difficulties arose from cause/effect issues and past/future issues, both of which had “implications for his expressive language”. She said that his range of vocabulary was “improving but [remained] outside normal limits.” She said that he worked “very hard during the speech therapy sessions” and was beginning to improve in his auditory discrimination. She concluded her letter in this way:

“He should make slow but steady progress but could well need a more intensive input in the near future.”

Ms Price, the speech and language expert for the 2nd-5th Defendants, thought this a rather puzzling conclusion, though Mrs Bentley explained (looking back at the letter) that all she meant was that she was reasonably happy with his progress, but that this progress should not be taken for granted. I think that is probably a fair reflection of her intention, although the letter does seem to herald the need for “a more intensive input” before long. Whatever it meant, it was overtaken by the matters to which I will turn in paragraphs 66-76 and following. Nothing really turns upon it.

[58]Dr Christie saw Anthony again on the 15 June. From the letters he wrote the following day it does not appear that he had received Mrs Bentley’s letter by the time he saw Anthony, or indeed by the time he wrote those letters. The material letter written on 16 June was to Mr Adams and it was in these terms:

“I gather you have taken over from Miles Halliwell in managing Anthony’s educational difficulties. I enclose a copy of the letter I wrote recently to the General Practitioner. I think Mrs Crowley is a little concerned that despite recommendations for extra help for Anthony within the school, so far this has not happened. Anthony has made steady progress since I last saw him. His drawing and writing have improved and also his language development is making steady progress. I would be very interested to have your opinion on his management within the school and I am sure Mrs Crowley would be pleased to hear from you about it. I will be contacting [Mrs Bentley] about her opinion on his language development. It may be helpful to discuss Anthony further at the Child Development Team meetings, and I will be delighted to meet you, if you can get up to Maple Children’s Centre on a Tuesday morning, between 9.30 and 10.30.”

It is, perhaps, worth noting, particularly in the context of what appears in paragraphs 59 and 60 below, that Dr Christie’s notes indicate that the remedial teacher “will start seeing [Anthony] in September.”

[59]Before returning to that letter, I should record that Mrs Bentley, in her ongoing speech therapy records, noted on 20 June that Mr Adams was involved and was possibly going to provide Anthony with “½ hr twice a week at school”. She noted in the same record that Anthony had just been seen by Dr Christie “who wants extra help for Anthony at school.” It seems fairly clear, therefore, that the school, Mr and Mrs Crowley and Dr Christie all felt that Anthony required extra help at school and, certainly so far as the school and Mr and Mrs Crowley were concerned, this had been recognized, at least in principle, by Mr Adams.

[60]There was no written reply by Mr Adams to Dr Christie’s letter. Indeed there is no evidence of any direct response to it. Mr Adams’ state of mind at this time can, however, be deduced from something in his handwriting written on the foot of the letter. The words are “NO HELP STARTS IN SEPT!!!” and it is underlined.

[61]He told me, when asked about this, that he could not explain the three exclamation marks, but said that the message being conveyed here was that any additional help was not going to start until the start of Year One given that it was rare for children in the Reception class to be given extra help. This was, of course, being written well into the Summer Term and it is understandable why it might not have been thought appropriate to start something then, although it seems to me plain that the parents and the school had at that stage been anticipating something earlier then the start of the next academic year.

[62]Mr Adams explained that the “NO” related to his inability to make the Child Development Team Meeting. It is, perhaps, pertinent to note that Dr Christie’s invitation to Mr Adams to attend such a meeting was likely to fall on deaf ears. Mr Adams accepted that Mr Halliwell attended CDT meetings, but said that he never did so. He explained that as Senior Educational Psychologist he was responsible for running a team and that, in order to help the team, somewhat unusually he took on a school as his personal responsibility. However, he had considerable administrative duties, including the preparation of two hundred or so draft special educational needs statements each year, and as a result his liaison with others who were interested in children with whom he was involved professionally was by telephone (or, presumably, letter). (The revelation that he was responsible for drafting special needs statements within the education authority emerged during the trial. It became the subject of comment and indeed the suggestion on the claimant’s behalf that it afforded grounds for alleging negligence. I will deal with this as a discrete issue in paragraphs 134-139 below.)

[63]It would be impossible to characterize this attitude towards attendance at CDT meetings as falling below the standards of the reasonably competent educational psychologist. One can well understand the practical difficulties involved and Mr Holme, whose evidence I accept on this issue, said that the practice of sharing information during that period was not as good as it is now. However, with the wisdom of hindsight, this does appear to have been a period when a gathering of those who were involved professionally and personally with Anthony could have been of considerable benefit. It would have enabled a free exchange of views about his needs and could have avoided what seems to have happened from time to time, namely, that one assessment by one professional (say, a speech and language therapist) “missed” being fed into a subsequent assessment by another professional (say, the paediatrician) with the result that everyone’s perception got somewhat out of kilter.

[64]Equally, of course, communication with (understandably) concerned parents helps to allay fears that legitimate requests for help are not simply being ignored or sidelined.

[65]However, as I have had to observe elsewhere, this case is not to be judged by hindsight and, in any event, the ultimate issue is what would have happened for Anthony had there been this closer dialogue between the professionals concerned. I will revert to that in paragraph 126, in particular, below.

[66]I must now move in the chronology of events to the second test carried out by Mrs Bentley to which I referred in paragraph 51. On 4 July she administered the Renfrew Action Picture Test (RAPT). This tests the expressive language skills of a child by analysing the child’s spoken responses. Scores are given for information about a picture that the child can convey and for the grammatical complexity used. Her contemporaneous note records Anthony as “much improved” with his language and sentence construction “much more mature”. It is clear from the phraseology that the results of this test were being compared with an earlier one. In fact the results of that earlier test are undated, but Mrs Bentley thought (and this makes sense) that she probably administered it when she first saw Anthony in September 1988.

[67]The assessment carried out on 4 July carried a positive message and it is to be noted that, although the Particulars of Claim had pleaded a case of negligence against Mrs Bentley (as indeed it had against Mrs Attridge) in connection with her assessments and conclusions, the speech and language experts who gave evidence, Mrs O’Keefe and Ms Price, agreed that she had conducted a reasonable assessment of Anthony’s speech and language difficulties, had reached appropriate conclusions and had given appropriate speech and language therapy. However, notwithstanding this essentially positive assessment, within about two months Anthony was (as I shall indicate in paragraph 71 below) being tested by a more senior and experienced speech and language therapist with a more sophisticated test of his speech and language skills.

[68]Mrs Bentley did record in her note made on 4 July that Mrs Crowley had expressed the hope that the education authority would carry forward its “intention of extra help for [Anthony] at school.” The note continues:

“He does need it so follow up in September to make sure that this is happening.”

This note suggests that, by whatever means it was communicated, Mr and Mrs Crowley had been made aware of Mr Adams’ position as I have recorded it in paragraphs 59 and 60 above.

[69]At about the same time as Mrs Bentley’s RAPT assessment (see paragraph 66 above), the school was preparing its report for the end of the year. Anthony’s class teacher recorded that he was “very happy and mixes well with other children”, but noted that his general personality was “very immature still”, that he still had “quite babyish speech” and that he found it “difficult to dress and undress himself.” In relation to learning behaviour she noted that he found it “difficult to grasp new concepts” and “hard to concentrate for long on any task.” She elaborated on these assessments. She said that he found “concentration very hard” and that on a “one to one basis he achieves quite well”, but that he needed “a great deal of attention and encouragement ... to produce satisfactory results in a classroom environment.” She noted that his reading had “improved quite a lot” but that, whilst he knew most sounds, he was unable to join them up. In relation to writing she said that letter formation was poor and that his drawings were “quite immature”. She said he found it difficult to copy words from the blackboard and that he had “difficulty with number work.”

[70]If one takes that assessment at face value, it is plain that, whilst he was fitting in well socially at school and that some improvements were being manifested, he was generally struggling unless he had close attention and supervision. This is much the same message as that conveyed in Mrs Bennett’s letter to which I referred in paragraph 45 above.

[71]As I indicated in paragraph 66, a more sophisticated speech and language test was conducted in September. Mrs Bentley referred Anthony to Mrs Sue Browne who was the Chief Speech Therapist in the Kingston and Esher Health Authority and the team leader of the team which Mrs Bentley had joined the previous year. Whilst neither she nor Mrs Bentley could remember precisely the circumstances in which she was invited to assess Anthony, the contemporaneous record of the “Reason for referral” referred to “concerns regarding Anthony’s language development” with a consequent need for “a very detailed assessment”. Mrs Browne accepted in her evidence that she was being asked for a second opinion and that this must have occurred because Mrs Bentley had a sufficient level of concern.

[72]The assessment that Mrs Browne carried out (on 5 September when Anthony was aged 5 years and 10 months) was the Illinois Test of Psycholinguistic Abilities (ITPA). It required special training to administer (which Mrs Browne had received) and was described by her in her witness statement as follows:

“The ITPA was a detailed assessment of choice for investigation of a child’s processing. In particular, those parts of the tests that dealt with auditory and visual abilities were considered to be very accurate. The test provided information about the patient’s auditory-vocal channel and visual-motor channel and which of these was superior.”

[73]In using the word “processing” I understood that the ITPA is designed to evaluate a child’s ability to understand and then process material received. As Ms Price described it, the test involved breaking down language processes into their individual “parts”. Twelve sub-tests were available to assess these individual language processes, the sub-tests being designed specifically to isolate each of these processes from each other. Comprehension would, for example, be assessed primarily by reference to the auditory and visual reception sub-tests.

[74]It is difficult to do justice to the results in descriptive form. Anthony did quite well on certain tests and quite badly on others. He had what was described as a “spikey” profile as revealed by this overall test. He scored badly on visual memory (ie. showing him unusual shapes on a card and asking him to reproduce the shapes subsequently using plastic tiles when the shape had been taken away), but well on auditory memory (repetition of sequences of number digits) and sound blending (putting together individual sounds to create a word). The results on these three specific sub-tests were sufficiently at variance with the norm to be regarded as “statistically significant”. All the other tests were either a bit above or a bit below the norm, Anthony scoring consistently lower than the norm on the sub-tests measuring comprehension. His overall Mean Scaled Score (MSS) of 32 compared with the MSS of a child of any age of average ability (36) meant, according to Mrs Browne, that his global psycholinguistic skills were slightly below average. His psycholinguistic age equivalent was 5 years and 3 months compared with his chronological age of 5 years and 10 months.

[75]In her report prepared following the test, upon which the Claimant places considerable reliance in this case, Mrs Browne concluded as follows:

“By grouping the scores in a certain way, it is possible to get information to compare the auditory-vocal channel with the visual-motor channel. (All the sub-tests are in one or other channel.) Anthony’s auditory-vocal channel is marginally superior to his visual-motor channel. Anthony also shows little difference between the levels of functioning but he does achieve the sub-tests at the automatic level (e.g. memory tests) slightly better than those requiring language representation. However it is at the process level that his difficulties are exposed. His receptive process is weaker than the association process which, in turn, is weaker [than] the expressive process. This I felt to be, in part due to his poor attention control although there are some features of a language disorder. I therefore feel that Anthony’s language development should be very carefully monitored, and this detailed assessment repeated regularly in order to assist in the remediation programme.”

[76]I will deal with the substantive implications of this report (about which no criticisms are made by the Claimant) later, but it is to be noted that it was copied, inter alia, to Dr Christie, Mrs Bennett and a Mrs Tiley, an Educational Psychologist at the North East Surrey Office in Weybridge where Mr Adams was based. Regrettably, it was not sent to Mr and Mrs Crowley. Mrs Crowley told me that she had never received a copy of the report. The speech therapy notes indicate that on 30 January 1990 (getting on for five months after the test was carried out) Mr and Mrs Crowley arrived with Anthony and were “both very distressed not to have been given [the] results of ITPA and [were] very keen to know what it revealed and ‘where it indicated they should go from here.’” The same sequence of notes indicates that it was not until May 1990 that the results of the test were explained to Mrs Crowley by Mrs Bentley. Mrs Browne had left her post to move to Cambridgeshire on 31 December 1989.

[77]Whether this omission has any bearing on the issues I have to determine is doubtful, but any parent concerned about his or her child’s education would sympathize with the feelings of intense frustration and annoyance that Mr and Mrs Crowley must have felt at that time. A second opinion from the Senior Speech and Language Therapist in place would not have been sought without good reason. For at least two years Mr and Mrs Crowley had been pressing for more support for Anthony and indeed for an insight into the problems that were causing his teachers concern. But a relevant and highly material report was not sent to them. Mrs Browne accepted that this represented an unacceptable administrative oversight – indeed she went so far as to say that it was “awful” practice and she apologised for the fact that it occurred.

[78]If no further gloss was put upon the conclusions to be drawn from the ITPA, the final two paragraphs quoted in paragraph 75 above would suggest to most reasonably well-informed readers that Anthony’s understanding processes were weaker than his ability to express himself, that this may in part have been due to poor attention and in part to a language disorder and that there was a need for very careful monitoring of his language development.

[79]Whilst the report was not sent directly to Mr Adams, it is clear that he did see it because he referred to it in a letter he wrote in February 1990 (see paragraph 94 below) and indeed he confirmed in his evidence that he had seen it soon after it was produced. It does not appear to have been referred to specifically by anyone else in the period between September 1989 until early 1990. About a week after the ITPA was carried out, St Paul’s School telephoned Mr Adams saying that they were “receiving no help for Anthony at the present and were expecting some.” The note of the telephone conversation indicated that Mrs Noad had been coming into the school in the previous year, but was no longer doing so. This call presumably represented a follow-up to what must have emerged as Mr Adams’ attitude in June: see paragraphs 59 - 61 above.

[80]On the day following the above telephone call (13 September) there is a note of a telephone call from Mrs Crowley to Mr Adams raising the question of whether Peripatetic Remedial Teacher (PRT) help could be given to Anthony. There is also a sentence that reads as follows:

“Can Anthony be statemented, please?”

The same note appears to indicate that Mrs Noad had telephoned to say that she would try to get into the school to offer the teachers some advice about how to help Anthony, but that there was no one available to go in as a PRT and she did not know when there was likely to be someone available for St Paul’s.

[81]These messages were intended for Mr Adams. There is no further contemporaneous documentation evidencing what he did in response. However, there is a file note on Anthony’s file within the education authority written by Mr Adams and dated 3 October 1989, some three weeks after these telephone calls. The note was in these terms:

“Anthony is progressing. His fine motor co-ordination is improving and his letter formation is markedly better than the previous occasion when seen. Anthony is receiving help each day in a small group setting. Mrs Noad is also to advise on a programme of help for Anthony.”

[82]Mr Adams said in his evidence that he did not think that he saw Anthony again before making that note and that it must have followed a conversation with the school. Mr Adams had, of course, seen Anthony some six months previously in March. He told me that he had seen Mrs Browne’s report by then, had taken its significance on board and had noted her conclusion. He said that he would not have noted down what the speech and language therapists would have said and would have been assuming that the support they thought necessary was being provided.

[83]I am acutely conscious of the need not to be over-critical of explanations for things done many years after the material events, but I did not find Mr Adams’ explanation of this note to be particularly illuminating when assessed by reference to the other contemporaneous material. Whilst the first part of the note would have been consistent with some parts of some of the assessments given over the previous few months (namely, that Anthony was making some progress in some areas), it could hardly be said that the overall picture gleaned from the other sources to which I have referred was encouraging. It would have been surprising if the “little boy who has considerable difficulties” in March (see paragraph 54) would have made that much progress given that Mrs Noad’s input (Mr Adams’ initial solution) was not anticipated until September. I would be surprised if Mrs Bennett or Anthony’s class teacher would have been as sanguine about his progress as is conveyed in this note.

[84]In relation to the specific matters referred to in the note, Mr Adams says that:

“Letter formation is markedly better than the previous occasion when seen”, although this is hardly the message conveyed in the class teacher’s comments to which I referred in paragraph 69. It is difficult to know when the two assessments of letter formation (which there must have been to justify this observation) were made – and indeed by whom. Equally, it is unclear whose assessment underpins the observation about “fine motor coordination”

. I can only assume this was based on something said by Mrs Noad since, according to Mr Adams, she had particular experience and expertise with children who had poor hand/eye coordination.

[85]Mr Adams’ note also records that Mrs Noad “is to advise on a programme of help for Anthony.” This would be consistent with the telephone note dated 13 September. He also records that Anthony is having “help each day in a small group setting.” There is no clear contemporaneous record of what this involved, but Mrs Crowley told me it involved the withdrawal of ten children (including Anthony) from the class with a mother acting as an assistant. Dr Christie’s notes of his meeting with Mrs Crowley and Anthony on 28 November record that Anthony was having “some extra help in school each day for ½ hour.” There may have come a time when the daily assistance was reduced to four days per week, but Mrs Crowley’s description of what it involved was, I think, broadly accepted by Mr Adams who said that the size of the group was ten which was assisted, not by a trained teacher, but by a helper under the guidance of a teacher.

[86]Mr Adams’ note is, therefore, accurate so far as what was happening factually within the school was concerned. However, the assistance Anthony was getting was a long way short of the kind of remedial help that Mrs Bennett must have had in mind when she wrote her letter in January (see paragraph 45), when Mr Halliwell mentioned the possibility of 5 hours individual help per week (paragraphs 46-48) and when the school telephoned Mr Adams on 12 September (see paragraph 79).

[87]I have dwelt on this file note at some length because Mr Bowen focused on it during his cross-examination of Mr Adams. It is the first occasion upon which Mr Adams recorded anything after Mrs Crowley had for the first time raised the issue of “statementing”. Whilst the reasons for generating the note were not examined in depth during the trial, it is at least possible that it should be seen as something of an internal reminder that the existence of “progress” and the availability of “help” within the school were both matters militating against the need to consider statementing which Mr Adams has not disguised represented his consistent view of Anthony’s case. It cannot have been intended (as indeed its form demonstrates) as a full appreciation of Anthony’s situation at this time. As I have already indicated, there is no evidence of what, if anything, Mr Adams said specifically in response to Mrs Crowley’s enquiry about statementing if indeed he did say anything at the time, though his attitude emerged in clearly articulated form in the early part of the following year: see paragraph 94 below.

[88]I should, perhaps, say that I reject entirely some of the suggestions put to Mr Adams by Mr Bowen during cross-examination some of which could have been taken to question his good faith. I thought that Mr Adams was an honest witness, again doing his best to assist me many years after the material events. The only matter I would record in relation to him was my impression, again both from his demeanour in the witness box and from the way he expressed himself in some of the contemporaneous material I have seen, that he fairly quickly formed a view about something which would not readily be changed. I think also he was probably not a natural communicator. These were both generational traits which, I think, helps to explain why he and Mrs Crowley (and perhaps some of Anthony’s teachers) saw things differently. If one puts this into the picture as well as acknowledging the pressures that he was under in his role (see paragraph 62 above), it is not difficult to see why Mrs Crowley felt that, though she regarded him as a pleasant man, he and she came at the issue from different angles. She summarised his attitude (in my view, fairly) by recalling Mr Adams’ view that Anthony really was not that bad, that he was a slow learner and that he did not have any major issues. Since she was getting a different message from others, one can well understand her confusion and, at times, frustration. What really matters in this case is whether the forming and maintaining of that view by Mr Adams was negligent in the professional sense such that it affords grounds for remedy in an action such as this. I will deal with this later.

[89]The next professional involvement with Anthony during the Autumn of 1989 was that of Dr Christie who saw him on 28 November. He noted that Anthony’s “language [had] improved considerably” and that “he no longer has speech therapy.” Dr Christie also noted that Anthony’s “drawing of a man and the house are more mature and he is attempting to write his name.” Those quotations are from a letter that Dr Christie wrote to Mr Adams dated 1 December in which he also drew attention to what Mrs Crowley had told him, namely, that there was still “a lot of concern … about his progress at school and also … that he is only having limited extra help at school.” Dr Christie referred to the suggestion that Anthony’s “concentration is still a problem.” He invited Mr Adams’ opinion on his progress against the background of his (Dr Christie’s) understanding that “some time ago there were plans for extra remedial help within the school for Anthony.”

[90]I would interpose this observation: it was correct, as a matter of fact, that Anthony was not receiving speech therapy at that time, but if Dr Christie’s letter was intended to convey the message that this was no longer considered necessary, I do not think that that would have been consistent with Mrs Browne’s assessment (see paragraph 75). Indeed, as will be apparent, speech and language therapy commenced again a couple of months after Dr Christie’s letter.

[91]There was no immediate response from Mr Adams to Dr Christie’s letter, but it appears that he arranged to visit St Pauls to see Anthony on 29 January 1990 which indeed he did. Before dealing with that, I should note the following further involvement of Mrs Bentley.

[92]It appears from the note she made on 3 January 1990 that she spoke to the school nurse who reported that Mrs Crowley had requested that Anthony be statemented. However, Mrs Bentley recorded the school nurse as having been told (although it is not indicated by whom) that he could not be statemented “unless there is a likelihood of him going to [a] special school.” Mrs Bentley’s note of that concludes with an exclamation mark and a question mark. In her evidence she explained that she put these marks on the note because she did not understand that to have been the position. She understood that in some cases a child’s special needs could be met within a mainstream school. At all events, this conversation took place within a few days of Mrs Browne having left her post (see paragraph 76 above).

[93]There is a gap until May 1990 before Mrs Bentley became directly involved again. But in the meantime Mr and Mrs Crowley had had the meeting on 30 January 1990 to which I referred to in paragraph 76 with a speech and language teacher identified during the trial as Brenda King. She agreed to give Anthony six sessions of language work starting on 5 February and the records indicate that that indeed occurred, with the final session being on 1 May.

[94]As I have indicated, Mr Adams saw Anthony on 29 January 1990 when he administered the Wechsler Intelligence Scales for Children (WISC) test. This revealed a Verbal Scale IQ of 85, Performance Scale IQ of 72 with a Full Scale IQ of 77. Mr Adams’ conclusions were as follows:

“It is apparent that Anthony’s verbal skills are better developed than his non verbal skills. The strengths suggested in the speech therapist’s report are again evident in terms of his auditory memory. He still finds perceptual and tasks involving visual memory difficult. Anthony was able to attempt the Burt Rearranged Word Reading Test, where he gained a reading age of 5 years 7 months. He wrote his name correctly with a neat hand. (His hand/eye coordination has obviously improved greatly.) Anthony only managed to spell one word correctly and he is obviously not finding learning an easy matter. In terms of the 1998 Education Act, Anthony’s learning difficulties/under-functioning would not be considered to be severe and/or complex and his needs should be met from the resources which are normally available within schools. At the moment, Anthony receives additional support on 4 days of the week for a period of 30 minutes in a small group.”

[95]The letter from Mrs Crowley to Mr Fahey of 12 January 1990, to which I referred in paragraph 47 above, contains the following sentence:

“He is … being taken out of the class, in a small group with another teacher everyday, for half an hour.”

Whilst there may be a slight issue about whether this took place on 4 or 5 days a week, it appears to have been the way his perceived needs were being met by the school at this time.

[96]The findings and conclusions of the WISC test were communicated by Mr Adams to Dr Christie and copied to the school. Mr Adams’ assessment was criticised in her report by Mrs Willis, the educational psychologist instructed on behalf of the Claimant, on the basis that Mr Adams had not assessed Anthony’s reading or listening comprehension. She also suggested that he had ignored the report of Mrs Browne. As to that latter matter, it would seem that Mrs Willis had overlooked the sentence in Mr Adams’ letter that plainly refers to Mrs Browne’s assessment.

[97]In relation to the failing to assess Anthony’s reading and listening comprehension Mr. Adams explained in his evidence that he thought it was not appropriate to give the comprehension test at this time when Anthony had a reading age of only 5 years 7 months (compared with a chronological age 6 years 3 months) and was therefore likely to fail or do very badly. Mr. Holme, whose views (as I indicate elsewhere) I regarded as persuasive, said that this was a valid reason. There was plainly a matter of judgment involved in deciding which components of tests such as these should be administered at this age in particular and I do not think that Mr Adams can be adjudged negligent for taking the view he did. Mr Warnock made the further point (which I regard as a fair one) that Mr. Adams did consider it appropriate to assess Anthony’s comprehension later that year and found it to be in line with his other skills

[98]It is plain that Mr Adams’ view at that time was that Anthony was not a candidate for being “statemented”. The reason given in his letter to Dr Christie was that Anthony’s “learning difficulties/under-functioning would not be considered to be severe and/or complex”. Mr Bowen has criticised this as being the incorrect test in deciding whether there should have been an assessment of Anthony’s educational needs – it was the test for whether there should be a statement. That may be so, but the fact is that Mr Adams was close to the criteria adopted by his education authority at the time and this would have been a judgment, in my view, that, if wrong, had to be challenged in a public law setting and not through the medium of an action such as this. I will return to this issue in a broader sense later, but even if I was wrong about the means by which this position could be attacked, I do not think that the application of the wrong test in this context made any difference to the outcome.

[99]As I have indicated in paragraph 95, the results of the WISC test were sent to Dr Christie and the school. It is unclear whether they were sent to Mr and Mrs Crowley. Since there is a telephone message dated 26 September 1990 from Mrs Crowley to Mr Adams asking for “a copy of the IQ report you did earlier in the year”, it would seem that they were not. However, there is a file note made by Mr Adams dated 26 March 1990 to the effect that Anthony’s parents had been seen and that Anthony was “to be reviewed at the end of June 1990.” It would be inconceivable that the results of the IQ test were not discussed at that meeting.

[100]During this period Anthony was having the speech and language therapy sessions to which I referred in paragraph 93. The last session with Brenda King was on 1 May. It appears that there was another session with Mrs Bentley about a fortnight later. At that session Mrs Bentley explained that she too was leaving her post, but she reassured Mrs Crowley (who was understandably unhappy) that a new therapist would be in place as soon as possible. She agreed to go through the ITPA results (which had not been explained previously: see paragraphs 74 and 76 above) the following week.

[101]Mrs Bentley did indeed explain the ITPA results on 22 May 1990. She was not herself qualified in the ITPA approach but she had looked at the manual to help her formulate her explanation. A handwritten note she prepared at the time assists in how she would have explained the results. In summary, she explained that Anthony had been shown to have poor visual memory (i.e. he found repeating a pattern of symbols very difficult) and that this might have implications for remembering visually longer sentences. Her note of the meeting on 22 May recorded that she had suggested “that if it [was] available … Anthony may benefit from Language through Reading – available at [St Philips] and [Buckland Language Unit].” As I understand it, these were two different language units for primary school children with moderate language difficulties. “Language through Reading” was described by Ms Price in the following terms:

“This programme used colour-coding of grammatical word classes, and the materials, in three sequential levels, were developed for children with severe specific language disorders, hearing impairments, and moderate learning difficulties.”

[102]As noted, Mrs Bentley’s note seemed to suggest that Anthony might go to St Philips or the Buckland Language Unit and indeed the note had been interpreted in that way by some experts. However, Mrs Crowley said that this had never been suggested and Mrs Bentley explained that all the note meant was that arrangements might have been made to borrow the “Language through Reading” programme (which was a very expensive package) from one of those two places had it been thought worth pursuing. In the event, it was not pursued.

[103]Two days after Mrs Bentley saw Mrs Crowley, Mrs Crowley and Anthony saw Dr Kumar, the Senior Clinical Medical Officer with the Kingston and Esher Health Authority, and effectively Dr Christie’s assistant. Dr Kumar wrote to Anthony’s GP in the following terms:

“Anthony was seen in Dr Christie’s clinic yesterday. He is coming on well. He has extra help of ½ hour for 4 days in the week and he is happy at school. He can write his name clearly, draw a man, house with a chimney and a dog and a tree. He has been having regular speech therapy from February. His mother has seen the educational psychologist in February and his assessment was that Anthony was better in verbal skills than in non verbal skills. His learning difficulties are not severe, hence he is having extra help at school”

The proposal was that Anthony would be seen again in a year’s time.

[104]That was an essentially optimistic report. In her notes of the examination of Anthony, Dr Kumar had recorded that Mrs Crowley had raised the question of whether to change Anthony’s schooling to a private school. The note indicated that Anthony could stay in his present school for another 2 years. The note contains the words “good improvement”, an assessment that Mrs Crowley did not share.

[105]As I have said, this was an essentially optimistic assessment. It is unclear whether it was seen by Mr Adams because there is no indication on Dr Kumar’s letter that it was copied to him. However, it does sit reasonably comfortably with other assessments made of Anthony during this period.

[106]The proposed review in June by Mr Adams does not appear to have taken place, but Anthony’s school report for the year to July 1990 contains some encouraging words although a number of the concerns expressed the previous year (see paragraph 69 above) appeared again. Improvements were noted in his maturity, fine motor skills, handwriting, copying from the blackboard, reading and vocabulary. However, his speech was described as “still rather immature” and it was noted that he found pronunciation difficult. He was described as “rather distractible in the classroom”. In relation to learning behaviour the following was said:

“Anthony finds it very difficult to absorb new information and needs plenty of repetition and reinforcement. He does not listen attentively to instructions and needs to develop his concentration span.”

The class teacher’s general observation was as follows:

“Anthony achieved success slowly and needs much practical reinforcement. He works well on a one-one basis, but must be encouraged to apply himself more to his work with more independence.”

[107]Whatever thoughts Mr and Mrs Crowley may have entertained about placing Anthony in a private school, they decided to keep him at St Paul’s for the coming year. On 25 September, presumably soon after the new term began, Mrs Crowley rang Mr Adams to say that she had been told that Anthony had reached an age “when he could plug in to ‘increased help’” and was asking what it was and whether anything was being done. Mr Adams made arrangements to visit St Pauls at a time convenient to Mrs Crowley and this occurred on 4 October. On that date Anthony was aged 6 years and 10 months and the tests that Mr Adams carried out suggested the following attainment ages: Reading age - 6 years 7 months; Reading accuracy age - 7 years 1 month; Comprehension age - 6 years 6 months; Spelling age - 6 years 2 months; Basic number skills - 6 years 10 months.

[108]In his letter to Mr and Mrs Crowley dated 15 October, Mr Adams referred to the “good progress” that Anthony had made. In the same letter he said that they might like to look at a school that would meet his needs at a later stage, that school being More House School, Frensham, which, Mr Adams said, “has a good reputation for helping children who are not learning as quickly as their peers.”

[109]This letter has been the subject of some adverse comment during the trial. Mrs Willis suggested that by identifying a school specialising in children with difficulties in communication and achievement Mr Adams was acknowledging that Anthony’s needs could not be met from resources available within mainstream schools. Mr Holme said that he was surprised by the letter, but saw it as an attempt by Mr Adams to act in Anthony’s best interests by steering the family towards an independent school that had special features if, as he perceived, the family were intent on pursuing the idea of independent education.

[110]Mr Adams said that he had become aware that Mr and Mrs Crowley were considering returning Anthony to the independent sector, but his view was that there was no school that was appropriate for Anthony at that particular age. He did feel that if this was the way they wanted to take things forward More House was the best option for the longer term future. He was, he said, just trying to be helpful and that there was no more significance to it than that.

[111]To the extent that it is material to the issues in the case, I accept that Mr Adams’ motives in writing this letter were as he said they were. There is no doubt that this was a period when Mr and Mrs Crowley were considering finding a suitable independent school for Anthony and, whilst saying what he said was unusual for a local education authority educational psychologist, Mr Adams was probably senior enough not to be misunderstood by his employers if he gave advice along these lines. His analysis of the difficulties that Anthony faced (namely, that he was not learning as quickly as his peers) is consistent with the view he had formed about Anthony and which he had expressed on other occasions.

[112]So that was the position as at the beginning of the 1990/1991 academic year. If one pauses and reviews the assessments made by the school, Dr Kumar and Mr Adams, the message was generally positive with indications of improvement though the school report still reflected areas of concern. No further speech and language therapy was provided in the meantime and I can only assume, since there is no very clear evidence of what the position was at this time, that no replacement had been found for Mrs Bentley (see paragraph 100 above).

[113]Whilst I do not think that the comparative paucity of contemporaneous comment between October 1990 and January 1991 will have reflected an acceptance by Mr and Mrs Crowley (or indeed the school) that the situation was satisfactory, it appears that Anthony continued to receive the extra time on at least 4 days a week during this term, but nothing more.

[114]There is a very brief record dated 22 January 1991 when Mrs Crowley is recorded as having expressed the view that Anthony needed more speech therapy as soon as possible, but it does not appear to have been something that the health authority could or did provide at that time. Indeed between January and July 1991 Mr and Mrs Crowley organised some private speech therapy sessions with a Mrs Strong, presumably because no health authority provision could be made. He had 7 such sessions with Mrs Strong. I might add that this was a period during which they had also arranged some extra private maths tuition.

[115]On 28 June 1991 Anthony was seen by Mrs Sheila Read who was head of paediatric speech and language therapy with the 2nd Defendant. She had taken Anthony’s case from the caseload previously managed by Mrs Bentley. The upshot of that was a sequence of speech therapy sessions conducted by Mrs Read herself. The first was in the January and there were 3 further sessions in October, November and December. I will return to these speech therapy sessions shortly and the issue of whether Mrs Read should have conducted a language test at this time, but I should record some other assessments made at or about the same time as Mrs Read saw Anthony for the first time.

[116]On 26 June Dr Kumar had seen Anthony and Mrs Crowley again. She recorded Mrs Crowley’s account of the meeting she and her husband had with Mr Adams in October which was to the effect that Mr Adams thought that Anthony did not require extra help. She suggested to Dr Kumar that the teachers felt that he needed 1:1 tuition. Dr Kumar noted that Anthony got extra help 4 times per week for 1 hour and also noted that he would be leaving his present school for a private school where there were 18 pupils to the class. Mrs Crowley told me that the object of moving him on (to Wimbledon College Junior School, otherwise known as Donhead) was purely because the classes were half the size of those at St Paul’s. To the extent that it matters, I accept that. There was a half suggestion in Mr Warnock’s cross-examination of Mrs Crowley that she and her husband actually favoured the private sector over the state sector. I do not think that that was so and there is nothing, in my judgment, in their treatment of Dominique’s education that supports that suggestion. As with most parents, they were prepared, where necessary, to make sacrifices to pay for something for their children if it was to their children’s advantage, but that does not evidence an inclination to prefer private education over the state system. By 1991 they had been endeavouring over several years to make some progress as they saw it for Anthony in the state sector.

[117]The meeting with Dr Kumar came a few days before Anthony’s Key Stage 1 SAT (Summary of Attainment) scores became available. The results indicated an overall level of attainment in English, Maths and Science at level 1. Of the various component parts of this assessment, Anthony had not achieved level 1 in speaking and listening. It was recorded that he was “working towards” level 1 in that respect.

[118]There has been a debate about how those results should have been viewed. I will summarise it but, at the end of the day, the debate is, in my view, of no real consequence. I will explain why in paragraph 126 below. Mr Adams did not see the SATs results and acknowledged that it would have been helpful if he had. The issue of whose responsibility, if there was any responsibility as such, to bring them to his attention was not canvassed during the trial. He accepted that the “working towards” aspect was worrying, but drew attention to the other two aspects which were within the average range. Mr Holme said that 25% of children would not have reached level 2 at this stage

[119]However, Mr Adams’ view of the SATs does not seem to me to advance matters much. They represent some additional evidence that Anthony had certain problems (mild global learning difficulties, Mr Holme said); but the issue for present purposes is whether those problems, whatever they were (as to which see paragraphs 182-186 below), were such that by now at the very latest Mr Adams was negligent in not instituting the assessment process that represents the first stage in the procedure that might have led to a statement of special educational needs. Given that from September 1991 onwards (until the events I shall describe in more details in paragraph 140 and following below), Anthony was in an independent school, not maintained by the 1st Defendant, it is difficult to see what ongoing liability it, or its employees or officers, had towards him at least until any degree of responsibility for his educational progress was reassumed by them. Indeed it was agreed between Mrs Willis and Mr Holme that there was no responsibility on a local education educational psychologist to assess children in independent schools at that time. However, irrespective of that consideration, this is a convenient point in the chronology to pause to consider the allegations made on the claimant’s behalf over the period of 4 years or so ending in about July 1991 both against the education authority and the health authorities. If it be the case that by then arrangements should have been made for Anthony to attend a special school, then any continuing failure by 2nd-5th Defendants to provide appropriate speech and language therapy (if such failure be established) would have little, if any, bearing on his future progress since responsibility for his language development would have been undertaken within such a school.

[120]The other reason for pausing and taking stock at this stage is that Anthony was aged 7, rising 8 in November 1991. It is clear from the expert evidence that I have heard (see paragraphs 187-191 below) that remediation undertaken by or from this sort of age is likely to have greater impact on the underlying problem than remediation later depending, of course, on the nature of the underlying problem. Without necessarily characterising as doomed to failure the argument that proper intervention at a later stage than this could still have made a material difference to Anthony, there is little doubt that his causation case would be the stronger at this stage.

Negligence up to July 1991

[121]Given that all negligence allegations against Mr Halliwell are no longer pursued, the live pleaded case against the 1st Defendant, as vicariously liable for the acts or omissions of Mr Adams, for this period can be summarised thus: i) Mr Adams failed to carry out a full and appropriate psychometric test on Anthony; ii) That Mr Adams failed to advise that Anthony required intensive in-class specialist support for his language and learning difficulties; iii) That Mr Adams assessments of Anthony, carried out in February and October 1990, failed to take account of the overwhelming evidence which pointed to language processing difficulties and to investigate accordingly; iv) That Mr Adams failed by February 1990 at the latest to have formed the view that Anthony had speech and language difficulties that required a specialist placement in a school for children with speech and language difficulties; v) That Mr Adams failed to form the view that there should be a full statutory assessment of Anthony’s needs with a view to producing a statement of special educational needs.

[122]Allegations are made against unnamed education/special education needs officers that they failed to act on Mr Halliwell’s view that Anthony required 5 hours per week individual tuition and/or upon the report of Mrs Browne (see paragraphs 74 and 75 above) by initiating a full statutory assessment of Anthony’s needs.

[123]These allegations have been modified to a degree during the trial and I will mention this shortly. Before doing so I should record what continued to be the “live” allegations made against the health authorities given that all original allegations against Mrs Attridge, Mrs Bentley and Mrs Browne (save in respect of the distribution of her report to Anthony’s parents) have not been pursued. The reality is that, for this period, it is only the lack of distribution of her report to Anthony’s parents by Mrs Browne that was pursued specifically. In his Outline Opening for the Claimant, Mr Bowen had invited consideration to the question of whether Mrs Read should have gone further in her assessment of Anthony in June 1991 and suggested that she was in breach of duty for not having done so. Although no precise allegation was formulated, the issue was debated without objection and I will deal with it below. However, for present purposes it is to be noted that the substantive allegations against the health authority defendants for this period are confined to the two matters to which I have referred.

[124]There is a corollary to the abandonment of the allegations originally made against Mrs Attridge, Mrs Bentley and Mrs Browne so far as their assessments of Anthony were concerned. Mrs Attridge (see paragraphs 22-24 above) had assessed Anthony’s language problems as a reflection of his generally slower rate of physical and emotional maturity. Mrs Bentley’s assessment (paragraphs 36, 37, 51, 57, 66-67) are consistent with Anthony’s language development being delayed rather than being impeded by some innate disorder. Mrs Browne’s test and assessment (paragraphs 72-76), whilst referring to “some features of a language disorder”, in fact contained results that contradicted the diagnosis of a specific speech and language disorder. It follows that, whatever the true nature of Anthony’s difficulties (see paragraphs 182-186 below), assessments of three separate non-negligent speech and language therapists to the effect that his language development was delayed, rather than being impeded by some specific language disorder, were reasonable assessments for them to have made. None of them raised a suggestion that Anthony should be placed in a speech and language unit and it follows that this must be characterised as a reasonable position to have taken.

[125]The point is made strongly by both Mr Warnock and Mr Ford that the assessments of Anthony made by those for whom their respective clients are vicariously liable had each independently of the other reached a similar conclusion during this period, namely, that his speech and language difficulties were essentially difficulties associated with delay in his overall development. This had been Dr Christie’s initial assessment and, of course, was Mr Adams’ assessment from start to finish. Mr Halliwell had not really lived with the case long enough to have formed a final view.

[126]It is at this stage of the analysis, and given the matters I shall refer to in paragraphs 129-131 below, that an air of unreality about the case advanced on the claimant’s behalf emerges. Mr Adams is criticised for not taking on board the views of the speech and language therapists and failing, by February 1990 at the latest, to conclude that Anthony “required a specialist placement in a school for children with special language difficulties” (see paragraph 120(iv) above). Whilst I think there is some scope for criticising Mr Adams’ rather rigid attitude to communicating with fellow professionals (though I am not persuaded that I could characterise it as negligent in the period within which these matters fall to be assessed), the question has to be addressed as to what would have come of such a communication over the period of 1989-1991 with which I am presently concerned. If there had been a meeting between him and the speech and language therapists and the question had been asked of the latter “does Anthony need a specialist placement in a school for children with speech and language difficulties?” the answer would almost certainly have been “no”. This answer would have emerged either during a period when a parental request for an assessment (which Mr Adams accepted would have been reasonable during 1990) was being considered or when the assessment, if pursued, was being carried out. Whilst input from Anthony’s school might have highlighted his difficulties, it is impossible to think that any such input, or indeed any other input, would have trumped that of the specialists in the field of speech and language therapy.

[127]This brings into relief the distinction between a specific language disorder, on the one hand, and delayed language development, on the other, to which I have alluded previously and upon which substantial reliance is placed by Mr Warnock and Mr Ford. It is, I should record, common ground that a specific language disorder is a congenital condition. They assert that the claimant’s case is predicated (and indeed pleaded) on the basis that Anthony has throughout had a specific language disorder which has (negligently) not been diagnosed and that it is the failure to address and remediate this disorder that, they say, underpins his claim for damages. They assert that the evidence does not justify a finding that Anthony has at any material time suffered from a specific language disorder and that, accordingly, his claim must fail. Although Mr Bowen did indeed say in his Amended Outline Opening (at paragraphs 1 and 68) that “the core point relied upon is the defendants’ individual/shared failure to work together and appreciate that he … suffered from a specific and severe language disorder” (my emphasis), his retort to the argument of Mr Warnock and Mr Ford was that this is too mechanistic an approach and that the defendants’ employees needed to address Anthony’s significant language difficulties however those difficulties might have been labelled.

[128]It is not difficult to have some sympathy with that argument, but what I cannot do is ignore the evidence I have heard about how these matters were addressed in the period under review, now getting on for 20 years ago. The two speech and language experts from whom I heard, Mrs O’Keefe and Ms Price, agreed that “it is now accepted that language disorder can coexist with cognitive deficit which impairs learning” (my emphasis), although they disagreed on how the expression “specific language disorder” was defined at the time Anthony was in his primary schooling. It follows from their agreement that at the time there was a distinction drawn between the two, a proposition that, in my view, is confirmed by the way Mrs Browne’s report (see paragraph 75) was phrased and by the way Mrs Burrow’s report (see paragraph 174) was drawn. Indeed the evidence of Mrs Attridge and Mrs Bentley also confirmed it. Mrs O’Keefe appeared to take the view, when cross-examined by Mr Ford, that the distinction was becoming less clearly drawn by speech and language therapists in the 80s and 90s, but acknowledged that those engaged in education (and also the medical profession) still used the distinction as a benchmark for determining the support and assistance the child would receive. She accepted that a diagnosis of a specific language disorder was key to a statutory assessment which itself would have unlocked the door to a placement in a language unit or language school.

[129]The point, therefore, for present purposes is that the label of “specific language disorder” (or “specific language impairment”) was important at the time of the material events in Anthony’s case. If it could be applied to a child, it would unlock the door to a statement of special educational leads. If it could not, then the door either remained locked or less easy to open.

[130]Anthony was not seen as having a specific language disorder by the speech and language therapists he saw – and indeed some of the tests administered undermined such a conclusion. At least one of Mr Adams’ WISC tests also tended to negate it and to a degree complimented Mrs Browne’s ITPA test. In those circumstances, I am unable to see how it could be said that Anthony was deprived of the kind of educational support to which someone who had a specific language disorder was reasonably entitled at the time. That is so irrespective of whether in fact he did have a specific language disorder (as to which see paragraphs 182-186 below) – the fact is that he was assessed, on reasonable grounds, not to have such a disorder.

[131]That, as it seems to me, is a conclusive answer to any alleged inadequacies of communication between the education and health authorities during this period. That there were some inadequacies is apparent from the chronology I traced. It is, of course, never attractive to say that even if the inadequacies had been eradicated, the result would have been the same. However, for the reasons I have given, I consider that to be so. I believe there was general agreement between Mrs O’Keefe and Ms Price that a multi-disciplinary approach was required in order to diagnose a specific language disorder. In other words a speech and language therapist could not do this alone. As Ms Price said in her report, where access to a multi-disciplinary team is not available, “liaison and discussion with colleagues about their test findings is clearly essential.” If that is the test, the evidence does not suggest close liaison between education and health during this period. However, had there been such, the result would almost certainly have been a continued decision that, whatever the precise nature of his problems, Anthony did not have a specific language disorder and was not someone who needed a specialist school or a language unit.

[132]Since it will be necessary for me to address the issue of specific language disorder/delayed language development in the next period of Anthony’s educational history, it may be convenient to say a word about the distinction between the two and how the former is diagnosed. Ms Price said this in her report, about which I do not think that there was any significant dispute. She was drawing a distinction between what she termed “associated language delay” and “specific language disorder”. She said this:

“Associated language delay: this term will be used to describe the slowed speech and language skills associated with children who have associated learning difficulties, and are learning all intellectual skills more slowly. Innate, “hardwire” slowed processing, reduced learning speeds, reduced memory capabilities all result in reduced potential for learning language skills, both in understanding an expressive use of language. For children best described in this way, their test results in many areas of development will be comparable. The group is defined by their even profile of development: many of the more recently published verbal and non-verbal measures, which will be obtained from testing to establish this profile, now have statistical calculations available to demonstrate the evenness/unevenness of profile scores across different areas of development. Specific language disorder: in contrast to associated language delay, this description is made via “cognitive referencing”: the child’s communication skills are at odds with “much lower than” other more general aspects of development. A child with “classic” specific language disorder will, right from the onset of concern, show non-verbal (visual reasoning, problem solving) abilities in the normal range for their age, but with contrasting and marked deficits in their communication skills.”

She then drew attention to the two well known classification systems, the ICD (International Classification of Diseases) and the DSM (Diagnostic and Statistical Manual of Mental Disorders) and said this:

“The definition is, therefore, one of discrepancy: the child with a specific language disorder has poorer developed language skills (receptive, expressive or both those) than their stronger, better developed non-verbal skills (of such abilities as visual reasoning/problem solving). These definitions above are those which are internationally accepted and widely used in diagnostic assessments. Furthermore, the Royal College of Speech and Language Therapists (UK) offer guidance through the best practice governs document Communicating Quality with regard to the detailed definition of specific language impairment: • Language skills, as assessed on standardised tests, are below the two standard deviations limit for the child’s age • Language skills are at least one standard deviation below non-verbal IQ assessed on standardised tests • There no neurological sensory or physical impairments that directly affect the use of spoken language, nor is there a pervasive developmental disorder” • Language skills, as assessed on standardised tests, are below the two standard deviations limit for the child’s age • Language skills are at least one standard deviation below non-verbal IQ assessed on standardised tests • There no neurological sensory or physical impairments that directly affect the use of spoken language, nor is there a pervasive developmental disorder”

[133]None of these formal classifications was in operation at the time relevant to the issues in question, although the thinking behind each undoubtedly was. Ms Price offered the following observation as a contribution to the Joint Statement with Mrs O’Keefe:

“In the mid-late 80s, [specific language impairment] was definitely viewed as a “discrepancy” diagnosis, with many of the resources aimed to support children targeted at those children who had a demonstrable difference between their testable non-verbal (performance) abilities, and their verbal (language skills). Since that time, the understanding of the relationship between developing cognition and language abilities has changed, and it has come to be recognised that children may show additional and specific deficits in language processing abilities, in conjunction with (or even arising from?) generalised cognitive impairment. The concept of “discrepancy” a gap in language/non language skills remains key, however, to deployment of diagnosis and resources for this group.”

That does, in my view, encapsulate the position accurately on the basis of the evidence that I have heard.

The alleged ‘conflict of interest’ on the part of Mr Adams

[134]I will now return to the issue to which I referred in paragraph 62, an issue thrown up by Mr Adams’ dual role at the time as the Senior Educational Psychologist within Surrey County Council and as the draftsman of special educational needs statements within that Authority. As I indicated earlier, the fact that he had this dual role emerged during the course of the evidence. Mr Bowen seized upon it and, having asked Mr Holme about it, has invited me to say that I should find negligence on the basis, as I understood the argument, that it represented either personal negligence on the part of Mr Adams (because he should have known it was wrong) or that it reflected a systemic failure for which the local educational authority was directly responsible.

[135]This was, of course, an unpleaded case which arose in effect ex improviso. In his Written Closing Mr Bowen foreshadowed the possibility of amending his pleading to reflect the case he sought to advance, although no amendment was in fact formulated. The debate was joined without objection from Mr Warnock and I consider that I am in a position to rule upon it without injustice to the First Defendant or to Mr Adams. I should say, however, that I am concerned about the way allegations have emerged and receded in this case and I will say a word about that at the conclusion of the judgment. However, as I have said, this is one matter upon which I feel I can form a view without injustice either to the First Defendant or to Mr Adams.

[136]It is true that, depending on the extent of Mr Adams’ ultimate authority in the statementing process, there was potential for conflict between his role as an educational psychologist in examining and reporting on a child and in the decision making process on whether the child met the criteria for a statement within the authority. The latter plainly had resource implications; the former required exercising simply the skills of a trained educational psychologist.

[137]Mr Bowen is right to say that Mr Holme expressed his reservations about the practice and said that it would not have been acceptable within his own local education authority at the time. He did not, however, as Mr Bowen has sought to suggest, brand the practice as negligent. As I understood his evidence, he was not in a position to say that what took place within Surrey County Council at the time was unique and, therefore, wrong. Indeed he said that at this time it was not uncommon for the educational psychology service to administer the statementing process and to draft the statement. My review of the papers for the purposes of preparing this judgment has revealed that Kingston’s principal educational psychologist, Hedy Firth, also took responsibility for drafting statements – and indeed did so in Anthony’s case. This tends to confirm what Mr Holme said.

[138]I rather suspect that the practice has moved on since that time, but on the evidence available to me I cannot characterise the system that operated within Surrey County Council as “negligent”. If it was a matter in respect of which criticism could be levelled it would, in my view, had been something that would have fallen to be raised within the judicial review regime. However, whatever route might have been adopted to criticise the system if criticism was justified, I do not think that Mr Adams can fairly be criticised for accepting his responsibilities within it.

[139]I will mention one other allegation that emerged during the hearing that could, on one analysis, be attributed to the conflict to which Mr Adams was exposed in his dual role. It relates to his failure to advise Mr and Mrs Crowley of their right to ask for an assessment of Anthony by the local authority and of the right to appeal if they disagreed with the local authority’s conclusion. Mr Holme certainly appeared to accept that this fell below acceptable standards and, as I understood him, Mr Adams felt he should have done this. The matter was not pleaded and I do not really understand why this point could not have been deployed earlier. However, it seems that there is no prejudice occasioned by dealing with it on its merits. Whilst, in the absence of Mr Holme’s view and Mr Adams’ acceptance of the point, I might have required a little more evidence to satisfy me that this represented a breach of duty to Anthony, in the circumstances I think I have to characterise it as a negligent omission. The question, though, is what difference it would have made. It would only be of relevance if it can be proved, on the balance of probabilities, that giving such advice would have led to an assessment that would have led to a statement of educational needs that resulted in a material improvement in Anthony’s position. For the reasons I have set out above, I do not think that this can be established.

Post July 1991

[140]I need to turn now to the period after July 1991. For the reasons I have endeavoured to set out, I cannot see how either defendant can be criticised for the position Anthony found himself in by the time he left St Paul’s and went to Donhead. That a solution to his problems had not been found (if a solution was ever to be found) was regrettable, difficult for him and frustrating for his parents, but the fact that it had not be so found cannot be attributed to any individual or systemic negligence thus far. Furthermore, whatever problems there were, there were always positive signs. It is, of course, possible that they masked a more serious, underlying problem, but those concerned cannot, in the circumstances, be blamed if they were misled by this. Whilst St Paul’s continued to express concerns, it is a fair point that the school itself never sought to suggest that a statutory assessment should take place by making direct contact with the local educational authority.

[141]Perfectly understandably, Mr and Mrs Crowley decided to try the independent sector and, by payment, achieve Anthony’s presence in smaller classes. Although in hindsight, it may have been the wrong decision, it is, as I have said, perfectly understandable and a course which many parents in their position would have followed. It follows, of course, from my appraisal of the period from 1987 until then, that the move to Donhead cannot be “blamed” on the defendants and the cost of sending him there cannot be laid at their door.

[142]As I have indicated in paragraph 115 above, Mrs Read had commenced a series of speech and language therapy sessions. She had noted “poor auditory discrimination” as a matter of concern and noted also that Anthony found certain tongue placements for a particular sound very difficult. In paragraph 123 I have drawn attention to the unpleaded criticism of Mrs Read about her involvement at this stage. The foundation for this allegation presumably comes from Mrs O’Keefe’s report where she says that Mrs Read “and any other speech therapists involved with Anthony between July 1990 and November 1995 were negligent in failing to properly test and/or diagnose Anthony’s language disorder and in failing to ensure proper educational support was put in place for him.” Mr Bowen cross-examined her on the basis, as I understood him, that she should have administered the ITPA test (or its equivalent) that Mrs Browne had intended to repeat a year after it was originally done (namely, some time in or after September 1990) and/or looked into what had happened in the meantime in more depth. Mrs O’Keefe criticises her for focusing on articulation only without looking further at the notes.

[143]I might have been disinclined to have regard to this allegation, emerging in the way it did, but for the fact that the expert for the 2nd – 5th Defendants, Ms Price accepted, as I understood her, that Mrs Read should have conducted a language test at this time. However, the issue seems to me to be a non-issue since there is no reason to suppose that any test carried out then (whether ITPA or CELF, as to which see paragraphs 155 and 174 below) would have done anything more to confirm a specific language disorder than any other test so far had done.

[144]As it was, Mrs Read did try to deal with the issue that Mrs Crowley had raised with her, albeit made more difficult by Anthony’s change of school and, whilst there are aspects of Mrs Read’s involvement that do merit criticism (see paragraphs 165-167 below), I do not think that this is a period when any, or any significant, criticism can properly be advanced.

[145]The chronology can move forward somewhat. Anthony went to Donhead in September 1991. Since he was being educated privately there would, for the reasons I have already given, have been no reason for Mr Adams to have any specific professional contact with him unless asked to become involved. Indeed he had no further involvement until May/June 1993 in the circumstances I will mention shortly. Equally, after Mrs Read’s speech therapy session on 4 December 1991, there was very limited contact with the speech and language therapy service until about April 1993.

[146]In the period between September 1991 and April/May 1993 Anthony attended Donhead, but with limited success. The reports indicate that, whilst he was trying hard, he was struggling to keep up. He was almost always bottom of the class, was finding exercises in comprehension very difficult and grasping new ideas difficult. He was seen by a remedial teacher, Lesley Jenkins, in May 1992 who referred to his difficulty to maintain concentration and his immature spoken language. Mr Jenkins thought he would improve with maturity and did not see any need for any specialist coaching at that time. He saw him again in March 1993 and spoke of progress he had made, but referred again to his immature language and lack of understanding of what was required of him. He concluded his report in this way:

“I think it would be worthwhile having Anthony assessed by an educational psychologist to see what his intellectual potential is and also to see if there are any underlying problems which we could help him with.”

[147]About a month prior to that report Dr Kumar had asked for a speech and language reassessment the net effect of which was the involvement of Jane Griffiths who saw Anthony for the first time in April and then again once a month until August. She saw him again once or twice in the Autumn, but was unable to offer more help for the problem of a lisp that she had been addressing since seeing him in April.

[148]Mr Adams had seen Anthony in the meantime in June (when he was aged 9 years and 7 months) and administered the Verbal Scale from the WISC (Revised Edition) which revealed a Verbal Scale IQ of 77 having omitted from the computation the score of 2 for Information. The results were communicated to Mr and Mrs Crowley by letter dated 14 September 1993 although in an undated letter, but presumably written earlier than the letter of 14 September, he had said this:

“I … found that he was functioning in the below average range of ability. The result of the present assessment is a little lower than that which I previously carried out, suggesting that he is functioning within the bottom 10% of the population with regard to his verbal skills. I administered a number attainment tests and found that Anthony is making excellent progress in the areas of reading, spelling and numeracy and this must reflect great credit on both himself and his school. Anthony does not appear to have any specific learning difficulties but will need a good deal of support and encouragement in the context of his present school in order to foster his confidence and self esteem. It was particularly noticeable that Anthony gave up very quickly when he encountered the slightest difficulty and needed to be encouraged to attempt tasks for which he was perfectly capable of performing.”

[149]The pleaded case against Mr Adams is that he failed to take up the significance of this test and failed to judge correctly Anthony’s true levels of understanding and ability to learn in a mainstream environment. In Mr Bowen’s opening, presumably based on Mrs Willis’ view, it was suggested that Mr Adams negligently omitted sub-tests relating to reading comprehension and listening comprehension. Mrs Willis, in the Joint Statement with Mr Holme, said that the testing Mr Adams carried out at this time did not conform with that which a body of responsible educational psychologist could have performed at the time. That, of course, is not the test for determining whether the testing carried out was negligent. It would only be if the testing was testing that no reasonably competent responsible educational psychologist at the time would have carried out that it could be characterised as negligent. Mr Holme said that it did conform to that which a body of responsible educational psychologist would, in similar circumstances, have performed at the time. He was in harness as a local educational authority educational psychologist during this period (whereas Mrs Willis was not). Whilst it is true, as Mr Bowen has sought to emphasise, that his perspective is that of someone engaged throughout his professional life within the local education authority setting, it has to be observed that it is that setting that determines reasonable practice at any particular time subject to the practice being capable of withstanding logical analysis (cf Bolitho v City and Hackney Health Authority

[1998] AC 232

). To that extent his evidence is bound to be more compelling than that of Mrs Willis, who does not share that perspective and experience. Mr Holme was prepared to be critical when he thought criticism was justified and as a witness was thoughtful and measured. I do, therefore, accept his evidence on this issue and where he and Mrs Willis differed I preferred his evidence.

[150]Mrs Willis did say in her oral evidence that this test was not a reasonably competent assessment by Mr Adams. She said that Mr Adams’ suggestion that it showed “excellent progress” was misleading and also said that had the information score been included the IQ score would have been 50. Mr Adams said that this score derived from general knowledge questions and that his judgment was that if it was included it would have lowered the overall score misleadingly, though in his view it would have lowered it to 70. Mr Holme said in his report that it was reasonable professional practice to omit scores in the calculation if the validity if the score is questionable (e.g. if factors such as lack of motivation or attention were operating) and Mr Adams said that he thought at the time that he had not established a sufficient rapport with Anthony for that particular score to be valid.

[151]All that being so (and I see no reason to doubt it), the resultant verbal scale IQ of 77 put Anthony within the bottom 10% of the population for his age. Mr Holme’s evidence was that he would have expected a child “just within the bottom 10% of the school population [to] be educated at a mainstream school.” In other words, certainly at the time with which these events were concerned, there was no basis for Anthony being sent to a special school (which, for this purpose, would have been a language unit). As the quotation from his undated letter shows (see paragraph 148), Mr Adams did emphasise that Anthony would need “a good deal of support and encouragement within the context of his present school in order to foster his confidence and self-esteem.”

[152]Although it was not, as I understood it, put to Mr Adams that he had deliberately slanted the results of this test to support his own view that Anthony did not require a statement of special educational needs, the implication of what was being suggested was to that effect. Whilst there is no doubt that Mr Adams’ view at the time, as it had been throughout, was that Anthony did not meet the criteria for a statement, I make it quite plain that I reject any suggestion that the test was in any way slanted so as to become self- fulfilling.

[153]There is no doubt, however, that the concerns that had prompted the school to get Mrs Crowley to contact Mr Adams continued to exercise them and Mrs Crowley’s confusion about what to do continued. If I may say so, I can well understand this state of affairs. My task, though, is to determine whether personal or systemic negligence was operating at this time such as to create an actionable breach of duty that led to remediable damage. For the reasons I have given, I cannot conclude that any such negligence has been demonstrated on the part of Mr Adams. Mrs Crowley says, and I accept, that the school expressed surprise to learn that Anthony was not regarded as a candidate for statutory assessment. There is contemporaneous documentary reference to the prospect of Anthony not being able to stay at Donhead. However, as with St Paul’s, the school did not raise the issue formally with the Local Education Authority.

[154]Although Mr Adams cannot recall it, it is clear from the documentation that he visited Donhead on 18 November 1993 and met there with Mrs Crowley and Anthony’s form teacher. In a note apparently held on the 1st Defendant’s file, Mrs Crowley wrote on 16 November 1993 that she had been advised to inform Mr Adams “on Thursday when we meet” that Anthony should be statemented. On 17 November Dr Kumar wrote to Mr Adams saying that she was going to arrange a speech assessment with Jane Griffiths (see paragraph 158 below) “in case you wish to proceed with statementing” Anthony. On the same date Dr Kumar wrote to Jane Griffiths, who was based at the Molesey Clinic, referring to a telephone conversation between them and saying this:

“As discussed on the phone, I would be most grateful if you could do a detailed assessment for Anthony. There are a lot of anxieties about his education and would be a good idea if you express his difficulties and recommendations.”

[155]Jane Griffiths had, of course, been seeing Anthony intermittently, but had been focusing on helping with his lisp. The experts, incidentally, thought that this intervention was “tokenistic”, hoping to placate the parents and Dr Kumar. I have not heard from Ms Griffiths so it is difficult to form a view about the suggestion other than to say that the general view seems to have been that the lisp was the least of Anthony’s problems. Jane Griffiths did, however, conduct a proper language assessment in January 1994 following Dr Kumar’s request. This was a CELF test – the acronym for Clinical Evaluation of Language Fundamentals. It was accepted by the experts that this was an appropriate test although Mrs O’Keefe said that the findings should have been documented in greater detail and also said that, properly interpreted, the findings supported the diagnosis of a specific language disorder. Her argument was that since his receptive language score was 70 and his expressive language score was 82, a discrepancy of 12 between the two existed and that this was statistically significant. However, when it was put to her by Mr Ford that the CELF Manual showed that such a discrepancy was not statistically significant, she had to accept the proposition, but asserted that it was in her clinical experience “on the cusp”. I do not think that that assessment, even if correct, converts Ms Griffiths’ interpretation of the results into a negligent interpretation: it merely reinforces what, to my mind, emerges from the general pattern of testing in Anthony’s case, namely, that identifying his true underlying problem or problems is and was extremely difficult (see further at paragraphs 182-186 below).

[156]Both experts agreed Ms Griffiths should have referred Anthony to a specialist multi-disciplinary team at this point, Mrs O’Keefe because she believes that his specific language disorder should have been identified at this time, whereas Ms Price was of the view that, since no such specific language disorder had been identified, the time had come for a detailed look to see where the true problem was or where the true problems were.

[157]Given that agreement, the conclusion has to be that the failure to do so constituted a falling below acceptable contemporary standards and thus a breach of duty. However, for any such breach of duty to be of true significance, it would be necessary to be satisfied, on the balance of probabilities, that had the reference been made Anthony’s true problem (on the assumption that it was not a specific language disorder) would have been identified and acted upon effectively. For reasons which will emerge, I am unable so to conclude.

[158]Ms Griffiths reported her findings in this way:

“Anthony does not have any specific language difficulties rather his language delay is part of a more global development delay. It is therefore recommended that the aims of provision should be to improve communication skills by his placement in a small class where a language programme geared to the children’s overall learning ability forms a regular part of classroom activity in a language stimulating environment. Access would also be available in this setting to individual or group speech and language therapy as appropriate.”

Expressed in that way (which is consistent with what the CELF Manual said), the conclusion is also consistent with the conclusion that had been reached by others before. The report was sent by Ms Griffiths to Mr Adams and in a covering letter she said that Anthony’s speech and language skills “appear to be in line with his general learning difficulties”. She said that she did not feel that he needed treatment for his language skills, but would benefit from a class geared to his general abilities.

[159]Not surprisingly, given the history, Mr Adams saw that as confirmation of his own view of Anthony’s situation and, of course, reflected the assessments of others at earlier stages.

[160]There is no doubt that in the latter part of 1993 and the early part of 1994 Mr and Mrs Crowley were focusing actively on the possibility of Anthony being “statemented”. It is not entirely clear to me whether they made a formal request for this to occur, although this seems to have been in Mrs Crowley’s mind when she spoke to Mr Adams on 18 November 1993 (see paragraph 154 above). What is clear, however, is that by 3 February 1994 Mrs Crowley had decided to raise the matter formally and she wrote to the Assistant Director of Education at Surrey County Council on that day saying that she would like to appeal under the Education Act for Anthony to be “statemented”. She referred to the fact that Mr Adams had said that Anthony could not be recommended for “statementing” because of government criteria. She put the matter this way:

“I am requesting this appeal because Anthony is very near the borderline with his IQ score. He has recently undergone a speech therapy test to determine the required help he needs in this area, a copy of the speech therapists findings are enclosed, which I feel are quite significant. During Anthony’s education so far, several teachers … have told me that our son needs help on a ‘one to one’ basis. Whilst I appreciate there are others who have more extensive problems, I feel Anthony is slipping through the net … [He is] not getting the help and guidance to which he is entitled …”

[161]She received a reply dated 22 February 1994 from Mrs Sylvester, the County Coordinator for Speech Needs Administration. The basis for the letter was the opinion of Anne Wright, the principal psychologist with the County Council: it would appear that Mr Adams had nothing directly to do with the formulation of the reply. The relevant part of the reply was in the following terms:

“The Authority has looked again at Anthony’s case in the light of your letter, but considers that Anthony does not meet our criteria for formal assessment, and is in fact currently performing at the expected level, given his age and ability.”

The letter invited a complaint to the Secretary of State for Education if Mrs Crowley felt that the authority had acted unreasonably by deciding not to assess Anthony formally.

[162]There is a note which indicates that Mr Crowley telephoned the education authority upon receipt of that letter indicating that they were not happy with the response. It seems that Mrs Sylvester suggested to Mr Crowley that he wrote again to Mr Adams and also to the Department for Education and Science. All this occurred just before the family was due to move to Kingston-upon-Thames, Surrey, which indeed happened in April-May period. When they did move, they moved out of the First Defendant’s area for the purposes of “statementing”. As I understand what happened subsequently, Mr and Mrs Crowley followed up the suggestion of pursuing the matter of “statementing” further with the new education authority by instructing Mr Arno Rabinowitz, then an independent Chartered Educational Psychologist who had previously worked in various local educational authorities as an educational psychologist. He was not, of course, a speech and language therapist. He first saw Anthony on 21 June 1994 and thereafter on a number of occasions. His view was that Anthony had a range of “severe and special educational needs that warranted a statement”. He apparently assisted Mr and Mrs Crowley with their negotiations with the Kingston local education authority into whose area, as I have mentioned, they had moved a few months previously.

[163]On 25 June 1994 Mr and Mrs Crowley made a request of the Kingston Education Authority for Anthony to be made the subject of a full statutory assessment. Mr Rabinowitz’s report (which, of course, was based on a very limited period of contact with Anthony) was attached to their request. Kingston made arrangements for Anthony to be seen by their principal educational psychologist, Hedy Firth, and she saw him in August. Her report was dated 1 September 1994 and she appears to quote substantially from Mr Rabinowitz’s report, but she herself seems to have concluded from her assessment that, whilst Anthony was “potentially within the average range of ability, he is quite unable to function at this level due to a severe language disability.” She identified a number of needs including the need to continue to “develop language skills in terms of both expressive and receptive language.”

[164]Against the background of that report, on 29 September Kingston decided to make Anthony the subject of a full statutory assessment. I will summarise the events thereafter shortly, but it does have to be noted that from this time forward the statutory procedures had been engaged (as they had not been hitherto) and, it seems to me, added caution needs to be observed to ensure that criticisms of anything that took place do not cross the threshold from individual professional (or, where relevant, systemic) negligence into the prohibited area of a back-door claim for breach of statutory duty.

[165]At all events, the assessment process began (which included, as I understand it, receipt of a report from Mr Rabinowitz suggesting that Anthony behaved “very much like a dysphasic The dictionary definition of dysphasia being “language disorder marked by deficiency in the generation of speech, and sometimes also in its comprehension, due to brain disease or damage.” child”) and ended with a draft statement of educational needs dated 20 February 1995, to which I will refer further below. The contribution of the speech and language therapy service to the assessment process was made by Mrs Read. Her report was dated 11 January 1995 and read as follows:

“Anthony’s only remaining articulatory immaturity is an inter-dental ‘s’ sound. He will be offered a short course of therapy to remediate this. Speech is sometimes unclear, but Anthony is able to rectify this himself when he is made aware that he has not been understood. No other speech and language therapy input is required.”

[166]This report was criticised by the 2-5 Defendant’s expert, Ms Price, as having been put forward without any additional language assessment, not referring to the findings from the language assessment completed by Jane Griffiths and making no reference to the psychological testing completed a year earlier. She described Mrs Read’s standard of care as “less than adequate”, something which later in the year the Speech and Language Therapy Manager for the Kingston and District Community NHS Trust, Ms Rebecca Lacey, effectively confirmed when she described the “standard of assessment” by Mrs Read as “poor”. In their Joint Statement, Ms Price and Mrs O’Keefe agreed that Mrs Read’s assessment was not reasonable for the following reasons:

“…her report gave none of the essential information from the background of the case, or recommendations for supporting Anthony in school. Enough time had elapsed since testing for her to have made a valid reassessment using the CELF-R to inform the Statutory Assessment process. Most statement reports give at least a brief chronology of involvement of the speech and language services up to that point, give assessment of all relevant communication skills, and recommendations for the impact of any communication difficulties in the classroom.”

[167]Against that background, it seems an inescapable conclusion that this was an assessment that fell sufficiently short of prevailing professional standards to be characterised as negligent. However, as with any breach of duty, the crucial question is whether, as in any claim for compensation (which this is), on the balance of probabilities it caused or materially contributed to any injury or loss sustained by Anthony. For the reasons I will give shortly, it seems to me that, despite its failings, the report cannot be said to have had that effect.

[168]It is at this stage that the allegations of negligence against the 2nd-5th Defendants cease. The final criticism made is the criticism of Mrs Read’s report. As I have said, in terms of pure breach of duty, the allegation is well-founded. In order, though, to determine whether its effect is something that gives rise to compensatable injury, tracing the chronology a little further is necessary.

[169]The draft statement of educational needs did not identify any particular school at which his needs were to be met and the speech and language therapy provision was, it was suggested, to be met by the Kingston and District Community NHS Trust through the Maple Children’s Centre. Mrs Crowley immediately took issue with this, suggesting that Anthony’s needs could not be met within an ordinary school and inviting the local education authority to consider More House school. This was the school that Mr Adams had mentioned previously (see paragraph 108 above), the attraction to Mrs Crowley being its small classes and its Catholic tradition. This prompted a dialogue that continued into May and June 1995 with various schools other than More House being suggested by Kingston as possible candidates. Mrs Crowley visited them all and in a letter of 16 June 1995 gave detailed reasons for still preferring More House and rejecting the others. However, on 14 July 1995 Kingston decided that the preference for More House school could not be accepted and the opinion was formed that Anthony’s special educational needs could be met at Chessington Community College with access to the Open Door Language Unit. The latter was a language unit for secondary schools within the Kingston and District Community NHS Trust.

[170]In due course the revised final draft statement of educational needs was promulgated with Anthony’s placement being confirmed at Chessington Community College with time to be spent at the Open Door Unit. It does have to be noted that the speech and language therapy input into this final draft mirrors exactly the phraseology of the report of Jane Griffiths and not that of Mrs Read. It would seem, therefore, that Mrs Read’s inadequate report had no effective influence on the statement that was issued. As will be apparent from paragraph 172 below, Mrs Read’s assessment did surface again a few months later, but again, in the result, nothing turned upon it.

[171]I need to continue the chronology a little further. Mr and Mrs Crowley accepted reluctantly the proposed placement for the first term of the academic year pending an appeal against the placement. The appeal process was set in motion, Anthony took his place and started at Chessington Community College. On 23 August 1995 Mr and Mrs Crowley wrote a detailed letter (with, I suspect, the assistance of Mr Rabinowitz) setting out their reasons for thinking that the proposed placement was unsuitable. The concerns expressed included the fear that Anthony would be the butt of jokes at a mainstream school such as Chessington Community College “regarding his voice and the way he speaks”. They argued for More House with its small classes and the attendance of a speech and language therapist every day.

[172]Kingston’s detailed response to the appeal was dated 13 October 1995. Part of its response referred to the lack of need for any significant speech and language therapy, an assertion based upon Mrs Read’s report.

[173]In the meantime an observation of Anthony by an educational psychologist at Open Door took place on 9 October with a view to a review meeting taking place on 16 October. The sequence of events is a little difficult to discern from the documentation, but it is clear that Anthony’s progress at both institutions was very much under the spotlight at this time. On 11 October Mr and Mrs Crowley wrote a long letter to Mrs Stirling, Head of the Special Educational Needs Operating Unit at Kingston, setting out the reasons why they felt things were not working out in the current placement. On the same date Mrs Read wrote a handwritten note to Mrs Shula Burrows, who at the time was a specialist speech and language therapist who worked one morning per week at the Open Door Language Unit, referring to a forthcoming assessment of Anthony by Mrs Burrows. Mrs Read sent Mrs Burrows Anthony’s notes and made certain comments which Mr Bowen suggested to her were designed to influence the assessment so that she backed up what other speech and language therapists had said previously. Mrs Read denied the suggestion and, in the event, I do not think I need to decide on what her motives for writing the note were. As I shall indicate below, there is no doubt that Mrs Burrows conducted a thorough and independent-minded assessment. It should be noted that Mrs Crowley had recently expressed concerns about the speech and language therapy that Anthony had received and was critical of Mrs Read’s report. She wrote to the Royal College of Speech and Language Therapists on 17 October complaining, copying the letter to Mrs Burrows. At that stage Mrs Burrows’ report on Anthony was pending.

[174]Having seen Mrs Burrows give evidence, I have not the slightest doubt that she prepared her report without any influence from any quarter. She carried out a series of tests including the CELF test. These tests showed a 3 years 9 months delay which, in the body of her report, she described as “a very significant delay/disorder in language development”. In her conclusion to the report she said that Anthony “presents with a severe receptive and expressive language disorder (language age on CELF = 8 yrs, 2 mths)”. In fact Mrs Burrows, who was due to leave her post shortly thereafter, did not sign the report – it was signed by Ms Lacey for her. I will say something about that shortly, but it is plain that this report had some influence in Kingston’s attitude although it was not, I think, a governing feature in the decision to which I will refer later. The recommendation of this report was for 10 speech and language therapy sessions – not, I should observe, for a specialist school or language unit.

[175]The position was reviewed in early February 1996 when, it seems, the prevailing view was that the combination of Chessington Community College and the Open Door Unit was not working for Anthony. The record of a meeting reflected in a letter written by Mrs Stirling on 6February 1996 referred to Mrs Burrows’ report. The relevant paragraph in the letter reads as follows:

“Hilary Stirling felt that this was a very thorough report and, for the first time, it gave the LEA an in-depth report on Anthony’s difficulties. Arno Rabinowitz agreed that the report gave a clear view of the level of Anthony’s difficulties which had not been clear prior to the report, in particular his speech and language difficulties.”

[176]The agreed position following that meeting was that Mr and Mrs Crowley would visit three schools suggested by Mrs Stirling, with a view to day school provision, one of which was St Dominic’s, near Godalming. That indeed occurred and on 15 February 1996 they wrote to Mrs Stirling saying that their preference was for St Dominic’s because the provision for speech and language therapy was much greater than the only other school of the three that had a place for Anthony. Various other consultations had to take place before this became the confirmed position, but it did eventually become the confirmed position, the proposed appeal to the Special Educational Needs Tribunal being adjourned whilst this happened. Anthony started at St Dominic’s in the middle of June 1996 and fairly quickly it became obvious that it would be better for him if he boarded, particularly given the journey times from and to home each day. This was eventually agreed from the beginning of 1997.

[177]During his initial time at St Dominic’s, amongst other arrangements made to address his difficulties, he had six group sessions with a speech therapist each week plus some individual tuition.

[178]Whilst all the documentation relating to Anthony’s time at St Dominic’s was available in the bundles supplied for the purposes of the trial, little reference was made to it. It appears to be accepted on Anthony’s behalf that his placement there was appropriate and met his needs. His sister, Dominique, spoke of the transformation in him and Mrs Crowley said that he was at his happiest whilst he attended St Dominic’s.

[179]The reports from St Dominic’s do indeed indicate some progress generally during his time there, particularly socially, and some improvements in his language functioning. It would, however, in my judgment, be impossible to say that, whatever his problems were, they were “cured” by the help he received there. Indeed it is rather difficult to see that they were “remediated” to any significant degree during his time there either. The annual review conducted on 16 December 1999 (about six months before he was due to leave St Dominic’s), which was attended by his speech and language therapist, indicated that he continued “to have problems word finding and his range of vocabulary remained limited.” The observation was made that he would not need direct speech and language therapy “if he moves into a supportive environment that understands his language problems”. That assessment does not suggest that any very significant progress was made with remediating his language problems during his time there.

[180]Whilst I have not heard from her and her assessment has not been the subject of debate before me, I note that Ms Auriol Drew, a speech and language therapist instructed as I understand it on behalf of Anthony at one stage in the context of this litigation, saw him in June 2002, thus two years after he left St Dominic’s. If one leaves to one side the label she attached to it (to which I will refer later), her conclusion was that Anthony had “weakness, variability or difficulty in every aspect of speech, language and communication” with his “comprehension, expression and pragmatic skills … [which were] mostly in the 6-8 year equivalent age range …”.

[181]Mr Bowen has made it clear that the Claimant’s case is that had, as he suggests should have been the case, Anthony’s language difficulties been appreciated earlier, he should have been sent to a place like St Dominic’s. The difficulty that seems to me to be presented by this approach is that, even assuming a breach or breaches of duty that, had they occurred, might (not necessarily would) have brought forward Anthony’s education at St Dominic’s by, say, a year or so, the history does not suggest that it would have made any or any significant difference to the eventual outcome. I note that Mr Holme commented that Anthony had made little progress at the end of his time at St Dominic’s, a comment which seems to me to be entirely justified for the reasons I have given above. The only breach of duty I have been able to find established (effectively by virtue of the agreement of the speech and language experts) is that of Mrs Read in respect of her report of January 1995. I have already concluded that it was not materially influential on the course of events. But if I was wrong about that, a more thorough report such as the one prepared by Mrs Burrows would only have brought the statutory process forward by a relatively short period, far too short for it to have made any real difference.

Does Anthony have a specific language disorder?

[182]I have referred previously to the distinction between a specific language disorder and delayed language development: see paragraphs 132-133 above. Whilst, as I indicated earlier, the distinction for diagnostic purposes has become less clear cut over the years since the crucial decisions were made in Anthony’s case, I should, perhaps, endeavour to address the question of whether Anthony has been shown to have a diagnosable specific language disorder. Mrs O’Keefe says that Anthony does suffer from a specific language disorder, but that is not, of course, the issue. The question is whether, if he does, it should have been diagnosed during the period that matters in this case.

[183]Through no fault of Mrs O’Keefe the conditions in which she made this diagnosis can hardly be described as ideal. She was first instructed to review the background to this case in March 2007, some 8-9 months before the trial. She saw Anthony on 22 May 2007 and concluded that her “impression” was that he had a “severe language disorder” (by which I take it that she means a “specific language disorder”) based on certain difficulties he displayed in her attempts to engage him in conversation. He was, of course, suffering from schizophrenia at the time and she was unable to make a formal assessment. I do not doubt that this impression is indeed her genuine impression and I do not discount the possibility that Anthony does now have (and may at all times in the past have had) some kind of specific language disorder; but that is far removed from saying(a) that he probably has and has had such a disorder and

(b) that if he did it ought to have been diagnosed at any earlier stage as a condition in isolation from a more generalised delay in intellectual functioning. Mrs Browne said that there were some signs of a language disorder (but went no further than that) and Mrs Burrows’ true conclusion, according to her evidence (which I accept), was that what she observed was consistent either with a specific language disorder or delayed language development. Had she proof-read her report she would, she said, have corrected the apparently definitive conclusion to reflect what had been said in the body of the report.

[184]Two other speech and language therapists have expressed the view that Anthony has a specific language disorder (a Mrs Connery, who saw Anthony in May 1996, some 6-7 months after Mrs Burrows saw him) and Ms Auriol Drew, to whose report I referred in paragraph 180 above. She said that he had “a continuing severe receptive and expressive speech and language disorder”. Those views have not been tested before me and all I would say, as I have indicated already, is that there may have been in Anthony’s case some element of a specific language disorder coexisting with a more generalised delay, but I am unable to hold, on the balance of probabilities, that he did at any stage have a readily and obviously diagnosable specific language disorder. Indeed his profile was not typical of someone with such a disorder.

[185]Anthony has been something of a diagnostic conundrum. If he did indeed have a specific language disorder, whether with or without coexisting delay, there was always a degree of improvement in his apparent ability between assessments that suggested that, whatever his problems were, he was moving forward. If there was a specific language disorder, then this kind of progress put those looking for it off the scent and, as I have said, his profile was not typical of someone who had such a disorder. Against that background I do not think that anyone conducting an assessment of Anthony that accorded with the reasonable practice at the time negligently “missed” discovering a specific language disorder.

[186]There is always the possibility that, had a particular combination of professional views come together at a particular time different educational provision might have been made for Anthony. But this is the stuff of speculation and doubtless could be said of almost anyone’s education. It is always possible, when analysing the sequence of events in someone’s life over a period of time (8 years in this case) to say that if only X had happened Y might have occurred. But that is not the nature of the exercise here. I am not satisfied that anyone failed negligently to identify a specific language disorder, if there was one, and I do not consider that, judged by the standards of the day, Mr Adams failed negligently to assess Anthony properly. His only fault was having a somewhat fixed view, but it was a fixed view that was justified by the evidence available to him, both on the basis of his own tests and those of others.

Causation if breach of duty had been established

[187]Those conclusions mean that I do not have to resolve the issue of what would have happened if Anthony had been sent to what, at least arguably, was a better educational environment at an earlier stage. I will express my views on this briefly in the circumstances.

[188]Given the acceptance that his schizophrenia was going to develop anyway, the issue is the extent which his ability to respond to or accommodate it would have been better if his language problems had been dealt with differently at an earlier stage in his life. One only has to state the issue to see the complexities of any potential answer. It is necessary to consider the effect that a “better” education would have had upon someone who had the difficulties (whatever they were) that Anthony had and then consider the impact that the results of that “better” education would have had upon someone who, like Anthony, was destined to develop schizophrenia in any event. No issue is too complex for a court not to provide an answer within the bounds of the established parameters of causation; but it requires little imagination to see just how difficult it would be to respond in more than a very speculative way to questions such as these.

[189]Dr Judith Barnsley and Dr Kiriakos Xenitidis were, I thought, both very impressive witnesses, albeit approaching this difficult issue from differing perspectives. Dr Barnsley is a Consultant Child and Adolescent Psychiatrist and Dr Xenitidis is a Consultant Psychiatrist who deals with adults. I do not think either would claim a monopoly of wisdom on this issue. Dr Barnsley thought that Anthony would have been significantly better able to respond to his schizophrenia had he “received suitable schooling and therapeutic input from the age of 7 and had his language disorder been diagnosed and treated” (my emphasis). That view was expressed in the Joint Statement and was, as indicated, predicated on the basis that a language disorder had been identified and acted on.

[190]Whilst she did argue with conviction that the distinction between a language disorder and a speech and language delay should not be of importance, she acknowledged that the distinction did have an impact on remediation. She accepted that a child with delay would not be put in a language unit and there were differences in the aims of the remediation programme. Mr Warnock was, in my view, justified in saying that Dr Barnsley’s written report was based entirely on the premise that Anthony’s case was one of language disorder and that the literature to which she referred was based on such a premise. As I have observed, her contribution to the Joint Statement proceeded on the same premise. She accepted that, at this stage in the research, any view could only be advanced on the basis of “informed speculation”. Whilst I do not say that there may not be cases where causation in the sense required might be established if a language disorder has been overlooked negligently, the research upon which she relied showed that about 58% of children who received intensive support in a language unit nonetheless still ended up requiring intensive specialist tuition. However, for present purposes it needs to be noted that the research to which she referred related exclusively to children with a specific language disorder/impairment. It did not help with assessing how an individual with Anthony’s particular combination of difficulties (including low cognitive ability) would have fared with different provision. Her intuitive response (which I think would be shared by all) is that the earlier the intervention, the better the prospects of a better outcome. Interestingly, though her evidence was not before the court for examination, Ms Auriol Drew expressed the view that, on her assumption that he had a speech and language disorder, a specialist language unit placement from the age of 6-7 would have been necessary to effect any significant change. Her opinion was that research showed that on the assumption that he had a speech and language disorder and where he had got to by the age of 5, Anthony was likely to have a degree of residual speech and language impairment for the rest of his life.

[191]At the end of the day, all that can be said is that some more intensive assistance at the earliest stage possible might have given Anthony a better chance of accessing the curriculum. This does not, however, get over the well-established evidential hurdles of establishing causation from a legal point of view (see Gregg v Scott

[2005] 2 AC 176

and DN v. Greenwich

[2004] EWCA Civ 1659

) even if, which it cannot, a breach of duty can be identified that, but for which, he would have received earlier intervention, whether for a specific language disorder or language delay or a combination of the two. It does not establish either that he would, more probably than not, have been able to handle his inevitable schizophrenia sufficiently better to be able to lead a more independent life than currently predicted.

Other matters

[192]This has been a lengthy judgment, the need for its length being driven largely by the need to review in some detail 8-9 years of Anthony’s educational life in the context of the criticisms made of the actions or inactions of a good number of professionals with whom he had contact over that period of time. The judgment would have been even more lengthy had I addressed every point raised in the written and oral argument. I have endeavoured to focus on the issues that have seemed to me the most relevant.

[193]For the sake of completeness, I would merely say that I did not feel that reliance on the case of Bull v Devon Area Health Authority [1993] 4 MedLR 117 advanced the Claimant’s case materially, nor did the allegations against unnamed education officers. Given the parameters set by the authorities (see paragraphs 8-10 above), the case against the First Defendant boiled down to the case against Mr Adams and the case against the 2nd-5th Defendants to the case against the individual speech and language therapists. I have addressed the issue of alleged lack of communication between the education and health authorities in paragraphs 63 and following.

Concluding remarks

[194]It follows from all this that this claim fails.

[195]Not unnaturally, this will be a disappointment for Mrs Crowley to whose devotion to Anthony’s cause I express my genuine admiration. She used the expression “slipping through the net” in one of her letters in the past and, on one view, Anthony did slip through the educational net. On the other hand, Mr Holme said that by and large 85-90% of children with special educational needs do not become the subject of a statement of special educational needs. However, slipping through the net is not the test for determining whether he can be compensated for actionable negligence. Had he not been the diagnostic conundrum that he was, it is possible that his needs (whatever they were) could have been addressed actively and timeously and his level of functioning improved. However, it was not to be and the fact that it was not cannot be attributed to any individual or systemic negligence even though there were times when certain events could have been handled better by those involved. Even if he had received some appropriate and active intervention, it cannot be established to the necessary standard that it would have made the kind of difference that would sound in damages.

[196]Whilst I have expressed my sympathy to Mrs Crowley (as indeed I do to Anthony) for the disappointing outcome, I would add a word of sympathy to those individuals whose names were singled out for criticism even if, as it turned out, quite a few of those criticisms were abandoned at or shortly before the trial and, as a result of my findings, a good number have been rejected. It is a major anxiety to live under the cloud of a potential finding of professional negligence when, in reality, all that each individual had done was his or her professional best within the structures created by the difficult circumstances of the late 80s and early 90s. As I have already observed, certain criticisms, which had been maintained for some considerable time, were abandoned at or shortly before the trial and others then emerged during the course of it. The process, which as I have already observed is plainly an expensive one in terms of the expenditure of public money, is I am bound to say not a very satisfactory one from that point of view as well. Earlier identification of the potentially sustainable issues is plainly in the interests of all concerned. However, that is merely an observation about the process as it operated in this case.

[197]The net effect of my decision on the merits of this case is that the claim must be dismissed.