QB-2022-002971 - [2025] EWHC 2445 (KB)

The pleaded allegations of breach of duty in this regard are primarily set out at paragraph 28.1 of the Particulars of Claim. It is alleged that the school:

“Failed to give effect to, and in fact acted entirely contrary to, the guidance provided by Dr Otel Seijas in his psychological report. For example, from as early as the first month in the School, Irune was subjected to several detentions and at one point had an angry outburst as a result. Moreover, an undated internal school staff note states that “getting angry with her will not be a solution to her behaviour in class …At all times, keep calm”, which indicates strongly that the staff had been getting angry with the Claimant instead of using positive, reinforcing techniques as instructed by Dr Oteo Seijas. This was a breach of the School’s duty of care as clearly the School was not handling her situation in a prudent manner as it was acting contrary to the professional guidance of the Claimant’s psychologist”.

As noted at [10] above, the Claimant’s Particulars of Claim, which were not pleaded by counsel, are unconventional in certain respects, and the pleading in respect of Issue 2 provides little, if any, explanation as to (a) what it is alleged that the Defendant should have done which it did not do; and (b) how the alleged negligence is said to have caused or contributed to the incidents of 25-27 September 2019 and/or to the Claimant’s injury. Mr Edwards treated Issue 2 as a facet of Issue 1 and/or Issue 2, going to the standard of care, as opposed to an allegation of a breach of duty which, on the facts of this case, could be said to have caused or contributed to the Claimant’s injury.

Ms McTague sought to characterise Issue 2 as a failure on the part of the Defendant to recognise the Claimant’s profile as giving rise to safeguarding risks, such that the school wrongly treated them as “behavioural” issues to be punished rather than “risk” issues requiring protective measures to be put in place. It was also suggested that the Claimant should have been the subject of a risk assessment.

It is common ground that a Welfare Plan was produced by the school. It is dated “Sep 19” and summarises relevant information and proposed “strategies and support”. Under the heading “review date” the plan stated “after assessment has been carried out and when we can ascertain if this record is an accurate assessment of her social standing”. Mr Samson’s evidence was that this was emailed to staff on 13 September 2019. It was suggested in cross-examination that the relevant email (along with various other documents) had not been disclosed, but I am not aware of the Claimant’s lawyers having sought a copy of the relevant email in advance of trial.

The Claimant contends that the Welfare Plan was not amended and updated whilst the Claimant was at the school notwithstanding that her behaviour and mental state was a cause for increasing concern (see, for example, [30] and [31] above), and staff concerns about her “mental stability” (see [53] above). Reliance is also placed on the 12 detentions received by the Claimant between 17 September and 10 November as indicating a policy of punishment rather than “reinforcement”, contrary to the strategies suggested by Oteo Seijas’s report.

The internal school staff note referred to in paragraph 28.1 of the Particulars of Claim, quoted at [103] above, summarises the type of strategies outlined by Dr Oteo Seijas, using similar language. Contrary to the submissions on behalf of the Claimant, that document does not suggest, in my judgment, that members of staff were getting angry or failing to use appropriate strategies. In my view, the note evidences the care which the school was taking to ensure that the guidance provided was being disseminated to staff and taken into account, in accordance with the Welfare Plan.

Insofar as the Bolam test (see [82] to [84] above) may be applicable to certain aspects of the case advanced by the Claimant in respect of the school’s handling of the Claimant’s additional needs, I have no relevant expert evidence before me in relation to the professional practices of reasonably competent teachers in this regard. Approaching the Claimant’s case under Issue 2, as Ms McTague urged me to do, as primarily concerned with the “health and safety” duty owed by the school, then in my judgment, the documentation produced by the members of staff contemporaneously evidences (a) an awareness of the issues set out in the Dr Oteo Seijas’s psychological report and the associated behavioural issues and (b) sustained efforts being made by the school to take account of, and to give effect to, the guidance provided by Dr Oteo Seijas in his report.

It is clear to me that, both before and after the weekend of 27/28 September, members of staff devoted considerable amounts of time and effort to attempting to deal with Irune Pedrayes’s poor behaviour and the underlying causes of that poor behaviour. The internal communications between staff demonstrate, in my judgment, a very real concern about Irune Pedrayes’s behaviour and a recognition of the need to take particular care in relation to her. In particular:

Furthermore, the above points are consistent with the evidence of Mr Samson as to how the school attempted to engage with Irune Pedrayes and to address her complex psychological profile and her behavioural issues. It is clear that she was a student with difficult and complex behavioural issues which posed challenges for staff at the school and, I anticipate, would have posed real challenges to almost any mainstream school.

It is correct that the Claimant was consistently punished for her poor behaviour and the Claimant’s closing submissions accurately summarise the position as follows:

However, I have seen no evidence to suggest that the punishments were unwarranted, inappropriate or that they were somehow contrary to the generalised guidance provided by the Claimant’s treating psychologist. It is clear from the evidence, including Mr Samson’s evidence, that the school was attempting to set boundaries in relation to the Claimant’s behaviour and ensure that poor behaviour was not condoned and I have not seen any evidence to suggest that the school was negligent in the steps it took in this regard.

It is suggested on behalf of the Claimant that the Claimant’s behavioural issues after the weekend of 28/29 September were a result, at least in part, of untreated psychotic episodes. Leaving aside the question as to whether any such allegation is adequately pleaded, I am not able to conclude, on the evidence before me, that the school should have been able to detect any appreciable change in the pattern of the Claimant’s poor behaviour prior to and following the weekend of 28/29 September.

It is also necessary to have in mind the real difficulties faced by a school in the Defendant’s position. The finite time of members of staff during a school term will necessarily be divided between all the students within the care of the school. The evidence before me suggests that the time spent by the staff on caring for the Claimant was considerable.

Insofar as it was contended in submissions on behalf of the Claimant that the school was in breach of duty in failing to undertake a “risk assessment of the Claimant” and/or to treat her as a safeguarding concern, neither of these issues was, in my view, properly pleaded as constituting allegations of negligence. The Particulars of Claim do not allege that the school was negligent for failing to carry out a risk assessment and the only reference to “safeguarding” in the particulars of negligence relates to the report from the hospital to the Claimant’s General Practitioner which, it was common ground, would not have been seen by the school.

In closing submissions reliance was placed by Ms McTague on the fact that the Ofsted report of January 2019 had identified certain issues in relation to the standards of teaching for pupils with special educational needs and/or disabilities. However, at least part of the concern identified was that teachers did “not always” demonstrate “high enough expectations of what pupils can achieve… sometimes pupil’s work was too easy.” This appears to have been an educational issue, as opposed to one relating particularly to any “health and safety” issues which might arise in relation to children with special educational needs. This issue was not raised in the Particulars of Claim and was not, therefore, addressed in the Defendant’s evidence. In any event, I have not seen any other supporting evidence to indicate that this was a continuing issue.

In summary, there is no basis, in my judgment, for a finding that the school was negligent in relation to any of the pleaded particulars of negligence which might be said to fall within this Issue 2. I reject the contention that the school acted contrary to the professional guidance of Dr Oteo Seijas in the manner in which teachers dealt with the Claimant and attempted to manage her behaviour and I do not consider that the school otherwise failed to “manage her situation in a prudent manner” as alleged. To the contrary, it is evident to me that different members of staff devoted a considerable amount of time and effort to trying to manage the Claimant’s very challenging behaviour throughout her period of time at the school, and attempting to do so in accordance with Dr Oteo Seijas’s guidance.

As Mr Edwards implicitly accepted, the matters raised in Issue 2 in relation to the Defendant’s knowledge of the Claimant’s additional needs and the level of care which she required as a result of her psychological profile, are nevertheless relevant to the standard of care to be expected of the school and, accordingly, fall to be taken into account under Issue 1 (see, for example [96] above) and Issue 3, (see, for example [138] below).