House of Lords
Session 1999-2000
The Phelps v London Borough of Hillingdon (2001) 2 AC 619 is the landmark case on the failure to diagnose dyslexia, in accordance with duty of care in English law, and to hold that the appellant could pursue her claim against her school for humiliation, lost confidence, and lost self-esteem, and for loss of earnings following its failing to diagnose and treat her dyslexia. Extract below. For full document follow the link:
http://www.publications.parliament.uk/pa/ld199900/ldjudgmt/jd000727/phelp-3.htm
Vicarious liability: teachers
My second illustration concerns a teacher. Does a teacher owe a common law duty of care to a pupil who is obviously having difficulty and not making the progress he should? Teachers are not educational psychologists, and they are not to be treated as though they were. But they, too, are professionals. It would make no sense to say that educational psychologists owe a duty of care to under-performing pupils they are asked to assess, but teachers owe no duty of care to under-performing pupils in their charge or about whom they give educational advice under the statutory scheme. In the same way as an educational psychologist owes a duty of care in respect of matters falling within the scope of his professional expertise, by parity of reasoning so must a teacher owe a duty of care to a child with learning difficulties in respect of matters which fall within his field of competence. A teacher must exercise due skill and care to respond appropriately to the manifest problems of such a child, including informing the head-teacher or others about the child's problems and carrying out any instructions he is given. If he does not do so, he will be in breach of the duty he owes the child, as well as being in breach of the duties he owes his employer, and his employer will be vicariously liable accordingly.
My third illustration raises a particularly controversial issue. It cannot be that a teacher owes a duty of care only to children with special educational needs. The law would be in an extraordinary state if, in carrying out their teaching responsibilities, teachers owed duties to some of their pupils but not others. So the question which arises, and cannot be shirked, is whether teachers owe duties of care to all their pupils in respect of the way they discharge their teaching responsibilities. This question has far-reaching implications. Different legal systems have given different answers to this question.
I can see no escape from the conclusion that teachers do, indeed, owe such duties. The principal objection raised to this conclusion is the spectre of a rash of 'gold digging' actions brought on behalf of under-achieving children by discontented parents, perhaps years after the events complained of. If teachers are liable, education authorities will be vicariously liable, since the negligent acts or omissions were committed in the course of the teachers' employment. So, it is said, the limited resources of education authorities and the time of teaching staff will be diverted away from teaching and into defending unmeritorious legal claims. Further, schools will have to prepare and keep full records, lest they be unable to rebut negligence allegations, brought out of the blue years later. For one or more of these reasons, the overall standard of education given to children is likely to suffer if a legal duty of care were held to exist.
In England and Wales, the failure of schools to diagnose and provide remedial can help for dyslexia following the House of Lords decision in the case of Pamela Phelps has created an entitlement for students with dyslexia in Higher education to receive support funded via the Disabled Students Allowance. Support can take the form of IT equipment (software and hardware) as well as personal assistance, also known as non-medical helper support. Dyslexic students will also be entitled to special provision in examinations such as additional time to allow them to read and comprehend exam questions.