The case of a Muslim girl who won an appeal court ruling that her school had unlawfully excluded her highlights how legally aware students have become, reports Jon Robins


Commentators have long since observed that the so-called compensation culture has infiltrated our schools and colleges, but surely a line has been crossed with news that a student is taking his maths teacher to court to try to stop him dishing out too much homework.


It was recently revealed that a 17-year-old schoolboy in Wisconsin in the US, was suing both his advance calculus teacher and his school. ‘There’s not supposed to be any work when someone is on vacation,’ he said. ‘It should be my time to pursue whatever I like without having the school following me when it’s not even the school year.’


It is a view that might not be backed by watertight legal authorities (apparently 16 law firms have refused to take the case on) but the potential action has done wonders for the pupil’s social standing. Some of his schoolmates have taken to wearing T-shirts bearing his photograph.


On this side of the Atlantic, there have been other more serious shows of pupil power. Earlier this month, Shabina Begum, a 16-year old schoolgirl from Denbigh High School in Luton, won her legal battle to challenge the decision to send her home to change into school uniform when she appeared at school wearing the Islamic head-to-toe jilbab. She claimed that the head teachers and governors were denying her the ‘right to education and to manifest her religious beliefs’. Her argument was initially rejected by the High Court; however, the appeal judges ruled that the school had unlawfully excluded her.


Last month, around 100 students mounted a legal challenge against Exeter University’s decision to close its chemistry and music departments. The students are accusing the university of a breach of contract and are suing for damages that could run into hundreds of thousands of pounds.


Their solicitor, Frank Goddard, head of civil litigation at the Exeter law firm Woollcombe Beer Watts, has little sympathy for the university. ‘I feel for the poor freshers who started in September and were told in December their courses were being discontinued,’ he says. ‘The university has taken good money off the students. It can’t have it both ways.’


‘We definitely see students as consumers now,’ reckons Jaswinder Gill of west London firm Gills, which specialises in education work and especially students in higher education. ‘As a result of the introduction of tuition fees and the disappearance of grant funding, students feel they have made a considerable investment in their education,’ he says. ‘It is no different from any other type of service industry, and universities sell themselves as “providing excellence in education” and, in turn, students chose them as consumers in their own right.’


He represented six students from Rycotewood college in Thame, Oxfordshire, who were awarded damages in a landmark case in 2003 after suing for breach of contract. They argued their Higher National Diploma course in historic vehicle restoration, on which they enrolled in 1996, had been a waste of time and not lived up to the promise of the prospectus. It set a precedent for courts to award damages akin to those for ruined holidays or weddings. ‘We argued that a programme of higher education was something that a student looks back on and regards as a life experience,’ explains Mr Gill.


Of course, lawyers that specialise in representing academic establishments are less enthusiastic about this incursion of consumerism. The concentration of academic results with league tables and the annual panic over GCSE results makes for frustrated pupils and parents, reckons David Smellie, head of the education team at London firm Farrer & Co, which specialises in acting for independent schools.


Parents have increasingly turned into consumers over the past ten to 20 years, he says, ‘justifiably, perhaps because they have paid an awful lot of money in school fees.


‘But it’s a shame that everything has been reduced to a blame culture so that it’s no longer possible that the child just didn’t work hard enough,’ the solicitor continues. ‘It’s good for business but my heart does sink because it seems such a strong trend and it is only going in one direction.’


Mr Smellie breaks down Farrers’ workload into a ‘hotchpotch of problems’ from child protection issues, and educational negligence, to ‘one-off’ concerns such as advising schools on the implications of the Charities Bill and what fee-paying schools might have to do to pass a ‘public benefit’ to retain charitable status.


Jack Rabinowicz, a leading education law expert and partner at London firm Teacher Stern Selby, represented Pamela Phelps in the leading case on educational negligence. In 1998, Ms Phelps was awarded £46,650 from the London Borough of Hillingdon for its failure to recognise and help with her dyslexia. She had been assessed by an educational psychologist who failed to diagnose dyslexia. She went through school without support and found it difficult to get a job. The council appealed against the award and Ms Phelps was ordered to return the money, but in 2000 the initial decision was upheld by the House of Lords.


Mr Rabinowicz reports that since Ms Phelps was successful in 2000, instead of similar cases being greeted ‘with open arms’, there have been increasing problems with legal aid. ‘You aren’t only fighting the system and the politicians who see such claims as a no-go area – even though they have created the climate for these claims – but you’re also fighting those people who should fund these cases,’ he says. ‘It does make it difficult to survive the slings and arrows.’ His four-strong team receive 150 new inquiries every month, roughly one quarter are educational negligence claims but ‘very few translate into work’.


Leading disability lawyer David Ruebain heads London firm Levenes’ three fee-earner strong department, specialising in both education and disability law. Much of work is done before the special educational needs and disability tribunal and High Court, representing disabled children and their families. He also takes cases for the Disability Rights Commission.


He reports a significant growth in appeals to tribunals for families seeking funding for home-based programmes for children, primarily with autism, ‘where families feel that they need intensive provision outside schools’.


‘Such care tends to be very expensive and, hence, an area which local authorities don’t ordinarily fund,’ he says. It is another relatively new area of law created under the Disability Discrimination Act 1995. ‘There has only been the possibility to being claims concerning disabled students since September 2002 when the law was amended [to cover access to education for all disabled people] and we’re only now starting to see a number of cases coming through finally,’ he says.


Former Cabinet minister Stephen Byers launched a ferocious attack on the ‘compensation culture’ last year where he reckoned that claims against schools had hit £200 million a year. He extrapolated that that cost, combined with claims against the National Health Service (£477 million), was enough to hire 8,000 teachers and 22,700 nurses. Press reports linked that ministerial assault on the country’s litigiousness to the Legal Services Commission’s (LSC) review of the legal aid funding code, which included the proposal to scrap legal aid for educational negligence cases and replace it with conditional fee arrangements. Talking about the problems in schools, Mr Byers said: ‘We see it with equipment being fenced off, hanging baskets being taken down as a health hazard, teachers being advised no longer to supervise school outings.’


Geraldine Elliott, head of London-based Reynolds Porter Chamberlain’s education team, acts for schools and colleges as well as professional bodies representing teachers. The firm recently represented the headmaster at Soham Village College in the Bichard inquiry into the way police handled information about Ian Huntley, the killer of Holly Wells and Jessica Chapman.


Ms Elliott also defends schools from dyslexia-style claims over a failure to provide adequate education. ‘They are a product of a more litigious society, the growth of our compensation culture and a greater availability of conditional fees,’ she says. ‘Five years ago, this styles of case was unheard of.’ However, she argues that such cases are only going to be of limited appeal to lawyers working on a no win, no fee basis.


‘If it is a personal injury case, you can assess the merits of a case relatively easily but for an educational negligence case it is much harder to assess what is, in essence, a professional negligence case.’


Ministers last week published their response to last year’s LSC proposals and it seems that legal aid will continue to be available in such challenges. Mr Rabinowicz, former chairman of the Education Law Association, reckons it is a ‘temporary reprieve’. If the government’s much-vaunted commitment to ‘education, education, education’ is to be taken seriously then, he asks why it appears to be taking away public money for legal actions when things go wrong.


‘Educational negligence claims are a result of the system set up by repeated governments who have encouraged parents and pupils to believe they have rights and shouldn’t be badly educated,’ he says. ‘Continuing Ofsted inspection reports saying how bad a significant number of teachers are simply reinforces the view that it is something that people simply ought not to have to suffer and, as a result, they should get compensation.’


It is an argument many lawyers will understand and many of the public will not. To judge by the fuss that surrounded Ms Begum’s case, this tension will not go away soon.


Jon Robins is a freelance journalist