Legal liability

Racial tension and bullying: the duty to aid integration

scameron — Tue, 19 Oct 2010 17:14:44 +0100

We have previously discussed the supervision of pupils indoors and outdoors on school premises (issues 97 - Feb 2010, 102 - July/Aug 2010).

Is your school fulfilling its disability duties?

scameron — Thu, 27 May 2010 16:13:05 +0100

What are schools’ existing disability duties?

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How secure is your school’s data?

scameron — Fri, 22 Jan 2010 16:04:37 +0000

What does the Data Protection Act and data security have to do with schools?
Pupil information held by schools and teachers – whether at school or on laptops and other portable devices – attracts the same level of regulation under the Data Protection Act (‘the Act’) as other personal information held by public and private institutions such as banks, businesses in general and government agencies. Pupils’ information needs to be held as securely as possible to protect this potentially vulnerable group.
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New guidelines address allegations against staff

scameron — Mon, 21 Sep 2009 11:35:16 +0100

With the new Independent Safeguarding Authority (ISA) receiving a lot of press at the moment, some education professionals have expressed concern about the ‘soft information’. This material could be collated by the ISA following allegations of abuse against staff. With these concerns in mind and with a recent consultation on new guidance, Dai Durbridge considers the current management of allegations against staff and some possible changes on the horizon.
Is there current guidance on handling allegations against staff?
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Disability equality – the duty in schools

scameron — Mon, 06 Jul 2009 15:26:38 +0100

The law relating to disability discrimination is complex, and an increasing number of schools are finding themselves subject to legal challenge on the grounds of disability discrimination. Susie Roome discusses your responsibilities and obligations towards disabled pupils, and how recent case law may assist in successfully defending these challenges.
What disability equality law applies to the education sector?
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Taking photos in schools

scameron — Mon, 18 May 2009 11:56:43 +0100

There have been many instances reported in the press where schools haven’t allowed parents to take photographs or videos of their children in the school Nativity play. Usually, the dreaded Data Protection Act 1998 (the “Act”) is blamed because it strictly controls when ‘personal data’ (such as images and other data that identifies a living individual) may be ‘processed’ (processing includes the recording, holding and disclosure of personal data). In this article Simon White looks at why the Act is not to blame.
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Transport for pupils with SEN

scameron — Fri, 20 Mar 2009 16:55:13 +0000

QUESTION: What steps should a local authority take in arranging transport for pupils with SEN?
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Your legal responsibilities to international students

scameron — Fri, 20 Mar 2009 14:22:56 +0000

The Government recognises the value of students from abroad to our culture and economy
— in June 1999 it launched an initiative to encourage students to come to the UK. Each year international students are a significant source of income, bringing in approximately £2.5 billion to the UK economy in tuition fees alone, and an overall estimated contribution of £8.5 billion.
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Local authority powers: improving schools

scameron — Thu, 19 Mar 2009 17:15:48 +0000

The Education and Inspections Act 2006 gives local authorities a key role in promoting high standards of education. It also provides the legal framework for local authorities and the Secretary of State to intervene in schools causing concern.
Such intervention, or at least the threat of it, plays a crucial role in leading to the improvement of schools by motivating school staff and allowing schools to take early action when necessary.
But despite the existing powers to intervene, the Government has proposed further measures.
This article analyses:
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School trips and risk assessment

scameron — Wed, 25 Feb 2009 15:42:48 +0000

The new school year has brought with it a flurry of press reports about the benefits to children of play time and adventure. We are told that children benefit from outside play, and that wrapping them in cotton wool is creating a risk-averse generation that struggles to deal with challenges.
Nowhere is this more relevant for education professionals than in school trips, where outings are dropping because of overly bureaucratic health and safety rules, and a fear of prosecution if something goes wrong.
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When can a religious student be exempt from uniform policy?

scameron — Wed, 25 Feb 2009 15:15:22 +0000

Fortinbras, in Hamlet, goes to war over ‘a little patch of ground that hath in it no profit but the name.’ In the recent case of Watkins-Singh, which reached the High Court, war broke out between a school and one of its pupils over a plain steel bangle about 5 millimetres wide. The bangle was a Sikh Kara, which is worn by Sikhs as a sign of their identity and faith.
The Kara did not meet the uniform requirements of the school, which stipulated that no jewellery other than a wrist watch and one pair of plain metal studs in the ear were permitted.
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LA powers to intervene in schools causing concern

scameron — Mon, 23 Feb 2009 14:54:39 +0000

Schools causing concern have been in the news recently as a result of the government’s controversial National Challenge Initiative. The Education and Inspections Act 2006 (the 2006 Act) gave LAs a key role in promoting high standards of education and provides a legal framework for LAs and the secretary of state to intervene in schools causing concern. Further power and responsibilities of intervention are to be contained in the Education and Skills Bill.
When do LAs have the power to intervene?
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Maintaining good order and discipline: what powers do teachers have?

scameron — Thu, 12 Feb 2009 12:30:39 +0000

Over the past 18 months or so, the government has, through legislation and guidance, provided teachers with a number of new powers intended to provide them with the support and protection required to ensure that effective education is not disrupted. In theory, the most far-reaching changes include law and guidance on confiscation of pupils’ property and the use of force in schools.
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Obligation to educate Gypsy, Roma and Traveller children

scameron — Wed, 28 Jan 2009 18:12:02 +0000

QUESTION:
How should their educational needs be balanced against those of the community at large?
ANSWER:
The case of Hughes v The First Secretary of State and South Bedfordshire District Council [2007] ELR 1, CA looked at this question.
Mr Hughes was head of one of four Traveller families who bought a site for their caravans. The site, in the green belt, was subject to stringent planning restrictions.
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Advice on how to use necessary force with a pupil

scameron — Wed, 28 Jan 2009 15:28:29 +0000

Deciding how to use force
Passive intervention
If attempts to avoid the use of force or avert a difficult situation have failed, then the teacher or staff member may wish to attempt a passive intervention. For example, if two younger pupils are fighting, it may be that simply stepping between them will be enough to bring the situation to a halt.
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Facilitating reading for additional support needs

scameron — Wed, 07 Jan 2009 11:24:37 +0000

Secondary-school pupil ‘Susan’ is in her third year and has a visual impairment. She can use a low vision aid but prefers to read books printed in 24-point text. Staff in the local authority Transcription Unit create accessible versions of textbooks and other learning materials, either by scanning the original into the computer and then editing it, or by typing the text into the word processor directly.
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Exclusion: how to write the decision letter

scameron — Mon, 15 Dec 2008 13:26:01 +0000

QUESTION:
How much detail is required, and how should the decision be expressed?
ANSWER:
The case of R (T) v Independent Appeal Panel for Devon County Council and the Governing Body of X College [2007] ELR 499 concerned a boy, T, 15, who began to attend X College, a mainstream secondary school, in 2002. An NHS medical officer diagnosed him with Asperger's Syndrome, a form of autism that causes an impairment of social interaction.
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Understanding parents' and schools' responsibilities towards excluded pupils

scameron — Fri, 12 Dec 2008 11:31:12 +0000

From September 2007 new law and revised statutory guidance on exclusions came into force. The new law, Improving Behaviour and Attendance: Guidance on Exclusion from Schools and Pupil Referral Units:
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When can you use force to control and restrain a pupil?

scameron — Thu, 11 Dec 2008 10:36:27 +0000

THE DCSF introduced updated guidance in November 2007 on the use of force to control or restrain pupils. This guidance replaces DFES Circular 10/98. The guidance applies to all schools in England and Wales.
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Education employment law: statutory leave and pay entitlements

scameron — Fri, 05 Dec 2008 16:02:10 +0000

One of the defining features of the last 11 years of New Labour government has been its apparent commitment to, and promotion of, measures designed to encourage a work-life balance and to facilitate what is termed a family friendly working environment.
‘Good’ employers, therefore, have taken the view that the remuneration and benefits package should in some way exceed the statutory minimum requirements in terms of leave and pay.
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Disability discrimination in schools

scameron — Tue, 18 Nov 2008 09:42:19 +0000

An increasing number of schools are finding themselves the subject of legal challenges to either independent exclusion appeals panels or Sendist allegations of discrimination against a pupil on the grounds of a disability. The law relating to disability discrimination is complex and frequently seems impenetrable, and recourse to legal advice is often recommended. Moreover, recent case law is likely to assist the schools to successfully defend more of these challenges.
Since when has disability equality law affected the education sector?
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Legal consent: when and how is it needed at school?

scameron — Mon, 10 Nov 2008 10:28:41 +0000

Can a parent always give consent on behalf of their child?
The short answer to this question is no. However, whether you need a parent/guardian’s consent, a child’s consent, or both, will depend on the activity involved, the age of the child, their maturity and their ability to provide informed consent.
When can a child consent to medical treatment?
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When can parents educate their children at home?

scameron — Mon, 03 Nov 2008 11:09:07 +0000

QUESTION:
When can parents educate their children at home?
ANSWER:
The case of Konrad and Others v Germany [2007] ELR 435, a European Court of Human Rights case, considered this question. The parents belonged to a Christian community and objected to their children's attendance at school which, by State law, was compulsory.
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Guide to school employment tribunals

scameron — Thu, 30 Oct 2008 14:40:56 +0000

Most employment claims are heard in the employment tribunals. The process can be daunting for those involved, whether they are legally represented or not. The tribunal is more informal than the civil courts, but increasingly regulated.

Those who properly engage in the litigation process at an early stage are more likely to succeed — or at least to minimise cost and management time. This article is a guide to tribunal procedure — to allow your school, if faced with a claim, to engage as successfully as possible.

The claim

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Dealing effectively with cyberbullying

scameron — Tue, 28 Oct 2008 15:48:23 +0000

Bullying is always an emotive subject. It is getting worse according to the latest research conducted by Ofsted, as published in its report, Children on Bullying. One may argue whether this is a question of fact or whether greater publicity means it is talked about more. Regardless, school bullying already claims the lives of about 20 teenagers a year, while thousands more suffer physical and psychological torment. What is clear is that the emergence of cyberbullying means there is no longer any safe haven from its effects.
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Safe internet usage at school

scameron — Mon, 27 Oct 2008 09:52:47 +0000

Following the Byron Report in March 2008, a new government body has recently been launched to oversee child internet safety. The UK Council for Child Internet Safety (UKCCIS) is going to be responsible for implementing the Report’s recommendations, including delivery of e-safety through the curriculum and ensuring that teachers receive the training they need for safe use of the internet. This makes it timely to review schools’ legal obligations in this area.

The internet in schools: protecting pupils and staff
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Accidents at school: liability in terms of supervision

scameron — Fri, 24 Oct 2008 12:06:54 +0100

In the latter half of 2008, the courts dealt with a trilogy of cases on the liability of supervisors when a child in their care was injured. What is especially notable about these cases is that in each, a decision of the High Court was later overturned by the Court of the Appeal.

In this two-part feature, we will look at why these decisions were reversed and at their implications for teachers and school support staff.

In this article, we explore the facts of the three cases; the effect of the Compensation Act 2006; inherent risk; and the nature of supervision.
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Independent Safeguarding Authority: a new vetting and barring system

scameron — Fri, 10 Oct 2008 09:38:04 +0100

The new vetting and barring scheme, involving the Independent Safeguarding Authority (ISA), replaces the current List 99, PoCA, PoVA and Disqualification Orders regimes. Legal Expertise discusses.
Why do we need a new vetting and barring scheme?
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School websites: how to protect your pupils and your schools

scameron — Mon, 29 Sep 2008 10:35:48 +0100

School websites can be a dynamic and creative method of communication between a school, its pupils, staff and the wider community. Websites can serve a wide purpose - from promoting the school to prospective parents and staff, to a gallery for pupils’ work, a resource for teaching and learning, or to assist in recruitment. However, this range of exciting opportunities is mirrored by the equally wide range of legal risks that can apply to a website. So how does a school ensure that its website does not inadvertently break the law, or compromise the safety and privacy of its pupils?
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Legal case notes: Risking painful treatment to improve a child's life

scameron — Tue, 16 Sep 2008 11:51:55 +0100

NHS Trust v A [2008] 1 FLR 70, [2008] 1 FCR 34, Holman J
The facts
A six-month-old baby girl suffered from haemophagocytic lympho-histiocytosis (HLH), a genetic defect in the immune system which causes a viral infection to trigger an abnormal and massive overproduction of the body’s scavenger cells, which then invade and literally eat into vital organs such as the liver, bone marrow and brain. She lived happily at home in a loving, caring and devoted family, but without treatment would die within a year or so.
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Legal aspects of The Children’s Plan

scameron — Mon, 08 Sep 2008 12:53:00 +0100

The Children’s Plan was announced by the Department for Children, Schools and Families (DCSF) in December 2007. The plan is described as a long-term vision designed to improve schools and change the way parents and families are supported in the upbringing of their children. Ceri-Sian Williams of Browne Jacobson considers the impact this will have on schools.

What is the Children’s Plan?
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Would you use force on a pupil?

scameron — Sat, 30 Aug 2008 12:21:45 +0100

What power does the Act give to teachers to use force?
As with confiscation, Parliament set out the rules on the use of force in one short part of the Education and Inspection Act 2006.

One point needs to be made clear: this is not a return to corporal punishment. Corporal punishment is and will remain unlawful, and the new Act reiterates this and confirms that staff members cannot use force as a punishment. Instead the use of force is allowed to stop a pupil:
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Would you confiscate a student's property?

scameron — Sat, 30 Aug 2008 12:21:44 +0100

In response to the public perception that pupil behaviour had deteriorated and that steps needed to be taken to redress the balance in favour of the teacher, the government passed the Education and Inspection Act 2006, which included the powers for teachers to confiscate pupil property.

Now that those provisions of the Act have been in force for over a year, Dai Durbridge considers the extent to which teachers are using them and whether they have had a positive impact.

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School trips: responsibility and liability

scameron — Sat, 30 Aug 2008 12:21:43 +0100

As a teacher, do I have personal responsibility for events that take place on school trips and visits?
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Improving the safety of children and young people

admin — Sat, 30 Aug 2008 12:21:42 +0100

What is 'Staying Safe'?
Staying Safe was launched for consultation in July 2007 by the Department for Children, Schools and Families (DCSF), with the aim of promoting a widespread discussion on how best to keep children and young adults safe, and how to respond when they have been harmed. More than 1,000 people responded to the consultation − parents, practitioners, voluntary groups and, perhaps most importantly, children and young people themselves.
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How will the Children and Young Persons Bill affect looked after children?

admin — Sat, 30 Aug 2008 12:21:40 +0100

This Bill focuses on the education attainment of looked after children. Why is this necessary?

Everyone agrees that the statistics showing the attainment of looked after children make grim reading. There are 60,000 children in care at any given time who, compared to children outside local authority care, are:
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Child Protection: Negligence and liability within schools

sara — Sat, 30 Aug 2008 12:21:38 +0100

What are the facts of the case?
The judgment is referred to as A v Hoare. It contains the decision in six cases, four of which were to do with allegations of historic child abuse allegedly perpetrated by employees of local authorities, including teachers. Browne Jacobson acted for the Defendants in three of those cases − H v Suffolk County Council, and X and Y v London Borough of Wandsworth. In each case, the claimants made allegations of serious sexual abuse against employees of the defendant.
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Guidance on information sharing

sara — Sat, 30 Aug 2008 12:21:36 +0100

Is there any guidance available on how to share information?
Yes, there is. In April 2006 The DfES (now the Department for Children, Schools and Families) introduced information sharing guidance specifically aimed at those who work with children: Information Sharing: Practitioners' Guide (click here to read).
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Handling allegations against staff

sara — Sat, 30 Aug 2008 12:21:35 +0100
Education Questions and Answers

Where can I find the latest guidance on how to handle allegations against staff?

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New powers to search pupils for weapons

sara — Sat, 30 Aug 2008 12:21:34 +0100
In this the third issue we explain the new powers given to headteachers to search pupils for weapons with and without consent. As you will see, this is a challenging and potentially risky area for schools and colleges.

Tragically, seven teenagers have been stabbed to death this year (2007) in London alone. New powers for headteachers to deal with the risk of weapons being brought on to school premises were originally proposed back in 2004 but have only recently arrived on the statute book.

Education Questions and Answers

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Data protection: your legal obligations

sara — Sat, 30 Aug 2008 12:21:34 +0100
The Data Protection Act 1998 (DPA) has been described by the courts as "a cumbersome and inelegant piece of legislation". However, its importance is undeniable.

Richard Thomas, the Information Commissioner has even gone so far as to say that "data protection law stands in the way of a surveillance society where government and commercial bodies know everything about everybody".

Data protection seems to have been in the news a lot recently. Why is that?

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Legal obligations on uniform policy

sara — Sat, 30 Aug 2008 12:21:33 +0100

In the first issue of Legal Expertise we have decided to look at school uniform. Over the last two years there have been a number of legal challenges mounted to aspects of school uniform policies and in response the DCFS issued new comprehensive guidance to schools last month. However, last week news broke of a further legal challenge relating to the rights of pupils to wear religious symbols, this time from a 14-year-old Sikh pupil whose school has barred her from wearing a silver Kara bangle, one of the five symbols of Sikh identity.
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"Fitness to teach": a guide to the law for education providers

scameron — Sat, 30 Aug 2008 10:21:01 +0100

Employers of existing and prospective teachers, lecturers and those entering initial teacher training have a responsibility to ensure that employees have the health and physical capacity to teach and will not put children and young people at risk.

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Should 'suitable education' be defined by parents or LA?

scameron — Sat, 30 Aug 2008 10:21:01 +0100

QUESTION:

Whose opinion takes precedence in a dispute over provision – parent or local authority?

ANSWER:

in the case of R(R) v Kent County Council [2007] ELR 648, a boy of 14, S, started his local school, the W School in September 2004. He was called names, and bullied. His father met the headmaster, who took the complaint seriously.

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Safeguarding Vulnerable Groups Act 2006: impact on information sharing

scameron — Sat, 30 Aug 2008 10:21:00 +0100

In autumn 2008, we should have a new vetting and barring scheme for people working with children and vulnerable adults. The Safeguarding Vulnerable Groups Act 2006 paved the way for the new scheme. Previously in Education Law Update we have explored the scheme in detail (see article Safeguarding Vulnerable Groups Act 2006: how it will affect your school). Here we will review information sharing in the light of the new provisions.
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Workplace stress: protect staff and avoid litigation

scameron — Sat, 30 Aug 2008 10:21:00 +0100

Stress is one of the most serious problems facing teachers today, according to the NUT. Teaching is an increasingly demanding job, with escalating pressure levels. Research shows that teachers now face greater occupational stress than most other employees. One union leader has even referred to 'Ofsted-related stress', which he said was the cause of two teacher suicides.
The Health and Safety Executive defines work-related stress as 'the adverse reaction people have to excessive pressure or other types of demand placed on them'.
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Admission appeals: how to avoid litigation

scameron — Sat, 30 Aug 2008 10:20:58 +0100
This article expands on Admissions and appeals, the new codes explained, in Education Law Update last month, and critically analyses how admissions authorities and statutory appeal panels should tackle their decision-making in order to avoid potential litigation by parents.

Many readers will be aware that the previous statutory schools admissions guidance has, over the years, led to a number of complaints by parents to the local government ombudsman and has also resulted in applications for judicial review to the High Court.

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Reinstating an excluded pupil

scameron — Sat, 30 Aug 2008 10:20:58 +0100

QUESTION:
When a school is directed to reinstate a permanently excluded pupil, how far must it go?
ANSWER:
In R(O) v The Governing Body of Parkview Academy and Another [2007] ELR 454 CA, the claimant,15, was a pupil at Parkview Academy. He had a good record but in June 2006 he assaulted and injured the female manager of the school canteen. The head teacher decided to exclude him permanently, and the governing body upheld this decision.
Independent appeal panel
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Historic abuse claims become easier to manage

scameron — Sat, 30 Aug 2008 10:20:57 +0100
The House of Lords, in January, gave judgement in two important cases on time limits for making historic abuse claims. The judgement will have serious consequences for schools and education providers, in both the private and public sectors. There will also be implications for social services and healthcare, and children's clubs.

This article will examine the implications of the judgement for those in education and children’s services, and explain why it will take some pressure off defendants in historic abuse claims.

The claims

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Safeguarding Vulnerable Groups Act 2006: how it will affect your school

scameron — Sat, 30 Aug 2008 10:20:57 +0100

The Safeguarding Vulnerable Groups Act 2006, which came into force in November 2006, makes significant changes to the way that people who work with children or vulnerable adults are vetted. In fact, the reforms are so substantial that the Government is going to phase them in to avoid teething problems.

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