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Understand your statutory obligations for
safeguarding students outside the school
gates
Katie Michelon, solicitor
what we will cover
• reminder of basic safeguarding duties
• bullying
• liability for personal injury
• school trips
core safeguarding statutory duties
Maintained schools
• section 175 Education Act 2002
“the governing body of a maintained school shall make
arrangements for ensuring that their functions relating to
the conduct of the school are exercised with a view to
safeguarding and promoting the welfare of children who are
pupils at the school”
core safeguarding statutory duties
Independent schools/academies
• section 157 Education Act 2002
• Education (Independent School Standards) (England)
Regulations 2010
• regulation 7 – proprietor must ensure that “arrangements are
made to safeguard and promote the welfare of pupils at the
school”
common law duty
• individuals from all walks of life have a duty to take reasonable care to avoid causing foreseeable harm
• a person who breaches their duty of care may have to pay damages to anyone who suffers harm as a result
• school has a duty to take such care of pupils in their charge as a careful parent would, including a duty to take positive steps towards their well-being
• Bolam test – duty to exercise the skill and care of a reasonable teacher based on what would have been acceptable to reasonable members of the teaching profession at that time
safeguarding outside of school
• how far do these duties stretch beyond the school gates?
• various scenarios:
- bullying/cyber-bullying
- abuse
- health and safety
- school trips
- relationships outside of school
- FGM
- gangs
case law
• “the school does not have the charge of its pupils all the
time and so cannot directly protect them from harm all the
time”
• “the school cannot owe a general duty to its pupils…to
police their activities once they have left its charge. That is
principally the duty of parents and, where criminal offences
are involved, the police”
bullying
• school’s responsibility for bullying amongst pupils outside of
school very common query
• rise in use of electronic devices and social media means
increasingly blurred lines
• DfE guidance clear that where bullying outside school is
reported to staff, it should be investigated and acted upon
• “schools should apply disciplinary measures to pupils who
bully in order to show clearly that their behaviour is wrong”
• but do schools have the legal power to discipline for
something that has happened outside of school?
school’s statutory powers
• section 89 of Education and Inspections Act 2006
• head teacher of a maintained school must determine measures with a view to:
- encouraging good behaviour and respect for others and in particular to
prevent all forms of bullying
- securing that the standard of behaviour is acceptable
- otherwise regulating the conduct of pupils
• these measures “may, to such extent as is reasonable, include measures to be taken with a view to regulating the conduct of pupils at a time when they are not on the premises of the school and are not under the lawful control or charge of a member of staff of the school”
“reasonable”?
• question of whether reasonable to regulate that pupil’s
conduct at that time
• in determining whether the disciplinary sanction is
reasonable, look at whether it is a proportionate punishment
given the circumstances of the case and any special
circumstances relating to the pupil
• decision to impose the penalty and any action taken to
implement the decision must be taken on school premises or
elsewhere at a time when pupil was under the lawful control
of the pupil (e.g. school trip)
behaviour policy
• power does therefore exist in legislation but is it in your behaviour policy?
• “there is no magic in the term bullying. Any school has to have sensible
disciplinary policies and procedures if it is to function properly as a
school at all” (Lord Justice Judge)
• to apply disciplinary penalty conduct must have fallen below the standard
which “could reasonably be expected of him”
• therefore need clear remit of expected behaviour
• a lot easier to show that sanction is reasonable if behaviour policy is clear
that a certain type of behaviour outside of school is not permitted and can
be punished
• not just bullying, could be other types of behaviour – e.g. members of
public
failure to take steps – case law
• case law states that a school can be in breach of its common law
duty of care for failing to take steps to combat harmful behaviour
by one pupil towards another
• Bradford-Smart v West Sussex CC (2002)
- bullying alleged to have taken place on the bus to and from school and
on the estate where the pupil lived
- nub of complaint was what the school did not do in relation to the
bullies who were also pupils at the school
- school had failed to take certain steps but “it cannot be a breach of
duty to fail to take steps which are unlikely to do much good”
- Bolam test
failure to take steps – case law
• “there may be circumstances in which a failure to exercise those
powers [to discipline a pupil for behaviour outside of school] would
be a breach of the school’s duty of care to another pupil”
• look at what a reasonable school might do:
- how foreseeable that failure to act would result in harm
- extent of risk
- magnitude of harm
- practicality and likely effectiveness of any steps which might
be taken
failure to take steps – case law
• “there will also be difficult questions of judgement as to how far
the school should seek to step in where the parents or other
agencies such as the police or social services have not done so…an
ineffective intervention may in fact make matters worse for the
victim because she cannot be protected while she is out of school”
• “we accept that a school may on occasions be in breach of duty for
failing to take such steps as are within its power to combat
harmful behaviour of one pupil towards another even though they
are outside of school…”
(Bradford-Smart v West Sussex)
other steps
serious cases – DfE guidance:
• “the head teacher should also consider whether it is
appropriate to notify the police or anti-social behaviour co-
ordinator in their LA of the actions…”
• “if the misbehaviour could be criminal or poses a serious
threat to a member of the public, the police should always
be informed”
case study
Sally is 7 years old. During lunch, she runs out of the primary
school gates and is hit by a car outside of the school
premises. Is the school liable?
liability outside school gates
• “loco parentis” – teacher acts in place of parent
• takes into account conditions of school life
• case law
- Jenney v North Lincs County Council (2000)
- Nwabudike v Southwark LBC (1996)
• consider repair to school premises
• “balance has to be struck between security and preventing a school being turned into a fortress” (Nwabudike)
• key point that school has duty to take reasonable steps to prevent reasonably foreseeable injury
school trips
• change in approach
• Government wants to reduce burdens on schools – expects a
“common sense” approach and attempting to simplify health
and safety requirements
• HSE’s message echoes this – “accidents and mistakes may
happen on school trips but fear of prosecution has been
blown out of all proportion…”
• activities should take place safely rather than not taking
place at all
prosecution
• HSE will prosecute serious breaches
• Glenridding Beck case
• “HSE has brought prosecutions in rare cases where there was evidence of recklessness or a clear failure to follow sensible precautions…”
• incidents overseas are outside of HSE’s jurisdiction
• considerations would be:
- severity of injury
- how far good practice was followed
- seriousness of breach of law
- whether there is a public interest in prosecution
key guidance
• Government guidance aimed at schools – “Health and safety:
advice on legal duties and powers” (June 2013)
• HSE advice document – “School trips and outdoor activities –
tackiling health and safety myths”
• FAQ page on HSE website regarding school trips
legal duties - legislation
• Health and Safety at Work Act 1974 - key legislation
• regulations made under this legislation
• requires employers to ensure health and safety of employees
and non-employees (pupils) so far as reasonably practicable
• duties are also applicable when activities take place off the
school premises
• can delegate functions associated with this duty to certain
staff but not accountability
legal duties – common law
• teachers organising and taking part in school trips act in loco parentis
• rare for staff to be prosecuted under criminal law in relation to pupil accidents – claims will be brought against school/local authority who will have insurance
• negligence claim requires:
- member of staff to have failed to take care as a prudent parent would have done
- as a result, a pupil was injured
- the injury was a foreseeable consequence
case law
• Gravesend Grammar School for Girls (2012)
• pupils raped on school trip overseas
• one teacher and two of company’s representatives attended the trip
• claimed negligence of school and company that organised the trip
- vicarious liability attached to actions of rapist
- school liable for allotting only one teacher
- questions of whether 3 supervisors in breach of duty of care to keep pupils free from harm
risk assessment
• just one element of health and safety obligations
• not required for every aspects of every school trip
• “the aim of the assessment process is to identify the real
risks, assess them and record the significant findings…” (HSE)
• assessment of “trivial” and “fanciful” risk not required
• proportionate to level of risk
• distinction between “low risk” activities and “high risk”
• Is it a new activity or is it something that is a usual part of
the school day?
parental consent
• Government guidance that written consent not a
requirement for majority of off-site activities
• written consent for activities with higher level of risk or
those taking place outside school hours
• see DfE’s “one-off” consent form
• what is your policy?
licences and quality assurance
• adventure activities licence
• Quality Badge provider – not mandatory but offers
reassurance
• way of demonstrating good practice
questions?
www.education-advisors.com
