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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Crowley v Surrey County Council & Ors [2008] EWHC 1102 (QB) (20 May 2008) URL: https://www.bailii.org/ew/cases/EWHC/QB/2008/1102.html Cite as: [2008] EWHC 1102 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
ANTHONY DAVID CROWLEY (SUING BY HIS MOTHER AND LITIGATION FRIEND PATRICIA CROWLEY |
Claimant |
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- and - |
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SURREY COUNTY COUNCIL And KINGSTON and RICHMOND HEALTH AUTHORITY And KINGSTON and RICHMOND COMMUNITY NATIONAL HEALTH SERVICE TRUST And KINGSTON PRIMARY CARE TRUST And SOUTHWEST LONDON STRATEGIC HEALTH AUTHORITY |
1st Defendant 2nd Defendant 3rd Defendant 4th Defendant 5th Defendant |
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Mr Andrew Warnock (instructed by Weightmans Solicitors) for the First Defendants
Mr Steven Ford (instructed by Browne Jacobson Solicitors) for the Second, Third, Fourth and Fifth Defendants
Hearing dates: 3,4,5,6,7,12,13,14 December 2007 and 18 March 2008
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Crown Copyright ©
Mr Justice Foskett :
Introduction
The legal framework in relation to breach of duty
"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 ."
The parties
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.
The factual background
"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."
"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'?"
"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."
"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."
"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.
"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.
"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."
"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."
"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.
"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."
"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.
"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."
"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.
"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."
"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."
"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."
"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."
"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.
"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."
"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.
"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."
Negligence up to July 1991
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.
"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"
"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
Post July 1991
"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."
"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."
"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."
"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.
"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 "
"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.
"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."
" 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."
"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."
Does Anthony have a specific language disorder?
Causation if breach of duty had been established
Other matters
Concluding remarks
Note 1 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. [Back]