Legal Issues - Regional Training Unit

Recent Legal Issues and Case Law –
RTU Annual Conference for
Special School VPs
21st November 2013
Nessa Agnew and Linda Aitcheson
Education and Library Boards Solicitors
Topics for Discussion
The Legislative Framework for Discipline/Restraint
The Disciplinary Policy
The question of restraint
Dealing with Serious Incidents
Compliance with provisions of Statements
The Legislative Framework
Education (Northern Ireland) Order 1998
“The scheme of management for every grant-aided school
shall provide for it to be the duty of the Board of Governors
to ensure that policies designed to promote good
behaviour and discipline on the part of pupils attending the
school are pursued at the school”
(Article 3(1))
The Legislative Framework - 2
 Article 3(3) states that:“The scheme of management for every grant-aided school shall provide for it to
be the duty of the principal(a) To determine measures (which may include the making of rules and
provision for enforcing them) to be taken with a view to(i)
promoting among pupils, self-discipline and proper regard for authority;
(ii) encouraging good behaviour and respect for others on the part of pupils
and particular preventing all forms of bullying among pupils;
(iii) securing that the standard of behaviour among pupils is acceptable; and
(iv) otherwise regulating the conduct of pupils
Before determining such measures, to consult the registered pupils at the school
and the parents of those pupils”
Power of member of staff to restrain
 This is contained in Article 4 of the 1998 Order
 A member of staff may use such force “as is reasonable in
the circumstances” to prevent the pupil from doing (or
continuing to do) any of the following:-
 Committing any offence
 Causing personal injury to, or damage to the property of, any
person including the pupil himself; or
 Engaging in any behaviour prejudicial to the maintenance of
good order or discipline at the school or among any of its
pupils, whether that behaviour occurs during a teaching
session or otherwise
Power to Restrain
 “reasonable” is not strictly defined – this is subjective
 It covers class time, and situations outside the
classroom eg break, lunch, school trips
 A member of staff includes a teacher or other person
who with the principal’s authority has lawful control
of the pupils (eg classroom assistant, therapist)
 These provisions do not permit corporal punishment
 It is use of force to prevent, rather than use of force
to punish
A Case in Point – “C”
 Proceedings brought by parents of a pupil with SLD and severe behavioural difficulties
 It was alleged by a member of the public that the pupil was assaulted by a member of
staff on a school bus parked at the side of the road
 The members of staff present reported that the pupil’s behaviour was such that he
could injure himself or others – kicking, hitting, headbutting the window
 The member of staff said that his actions were to restrain to prevent the pupil from
having sufficient leverage to lash out. The technique demonstrated in court
suggested that the staff member placed his arms across the pupil’s arms and legs
 The alleged incident was reconstructed at the scene as part of the court case so the
judge could determine the locations of all involved and what they could have seen
 The claim was dismissed on the basis that the member of the public could not have
seen the incident as he described from his vantage point; also the pupil’s medical
notes of a GP’s examination a short time after did not recount any injuries to the pupil.
 The case was not reported but lasted for eight days in the County Court
Additional Guidance
 The Department also issued guidance by way of the
Regional Policy Framework on the Use of Reasonable
Force/Safe Handling
 This is a useful document that explores the
outworkings of various scenarios, types and forms of
restraint, and defusing conflict
The Disciplinary Policy
 The ability to suspend applies to all grand-aided
schools, including special schools Special schools
would also be subject to the provisions of their
respective Board’s Suspension and Expulsion Scheme
 Schools should ensure that any measures to be
adopted to deal with disciplinary matters have been
incorporated into the school’s disciplinary policy
The Question of Restraint
 School staff should avail of appropriate and adequate
training and records kept of same
 Restraint can take various forms – e.g. laying on of
hands, the use of aids
 Restraint may also involve removal to a place of
The Use of a “Time Out” Facility
 Points to consider:
 Could this amount to false imprisonment – defined as the
unlawful imposition of constraint on another’s freedom of
movement from a particular place?
 Can the pupil exit the room of their own free will?
 Is the access point locked or barricaded?
 Could this amount to a breach of Article 3 of the European
Convention on Human Rights (prohibition of torture/inhuman or
degrading treatment)?
 Is it a breach of Article 5 (right to liberty and security)?
 Is the purpose of the “time out” facility to provide a calming
environment or as a disciplinary measure?
Use of a “Time Out” facility
 How has it been determined when the facility can be used?
 Has a risk assessment been carried out?
 Has a clinical need been identified and approval sought
from the professionals with responsibility for the pupil’s
care e.g. clinical psychiatry/psychology, behavioural nurse
 Has the provision been discussed with the parent and
informed consent obtained?
 How are incidents reported and recorded?
 What other strategies should be tried first?
C –v- A Local Authority [2011] EWHC
 C was an 18 year old man with severe ASD and learning difficulties, exhibiting extreme
challenging behaviours, severe anxiety, self-harm and destructive traits
 He lived at a residential special school, which save for supervision provided by a clinical
psychologist did not have a multi-disciplinary team, instead purchasing advice and
 C’s statement included 24 hour care all year round with 2:1 staffing ratio and the use of
the blue room at the school, which was 10 feet square and padded with a secure door
and window (but the whole room could not be seen with the door closed. The door
could not be locked but staff would only hold the door shut if he was trying to be or
continue with an aggressive outburst When use was agreed (in May 2007) it was felt in
C’s best interests to use the facility as it was said to help calm him
 C also frequently undressed and staff were to encourage him to go back into the blue
room and dress to ensure his privacy and dignity were not compromised and others
were not exposed to his nakedness.
 By 2010 use of the room had significantly increased (although there were plans in
place to try and reduce this) due to his behaviour, which on one occasion resulted in
staff injuries including a broken nose and a detached retina
“C” - continued
 In September 2010, his mother sought a judicial review requesting, amongst other
things, an appropriate care plan and details of all incidents of restraint
 This case was heard by the court of protection to ascertain capacity and what was in
C’s best interests
 By June 2010, the log showed he had been confined to the blue room with the door
held shut on average 6.4 times per day
 His mother alleged that he was undressed most of the time and was tall, emaciated
and pale because he was in the blue room so much and not out in fresh air.
 It was agreed that C had become habituated to the use of the room but school said
there was little prospect of an alternative intervention other than physical restraint
 There was concern that not only as he confined there, he was also encouraged to use
the room as a safe place – the court took the view that there were real issues about
the appropriateness of the room for disparate purposes
“C” – The Outcome
It was conceded that when C was confined to the blue room, this could amount to a deprivation of
his liberty and in so far as it is not authorised by the court, would be unlawful and in breach of
Article 5 of ECHR
The court was there to look at how best to proceed in C’s interests and in transition to his new
placement having reached 18 years of age
However, it was noted that the expert evidence concluded that isolation room were not prescribed
therapy for ASD, learning disabilities, challenging or self-harming behaviour – rather they are a
means of managing behaviour
No such room should be used without a full intervention plan and appropriately trained staff
The room should not be used as punishment – placing him there to preserve his dignity was “in
effect punishing him for removing his clothes
Separate strategies were needed for seclusion and withdrawal. Seclusion was needed for his safety
but the expert evidence also recognised that C needed private space where certain behaviours
could be tolerated
The aim should also be to give him freedom to move between rooms and the school garden so he
could learn he had choices. At that time, the space available to him were rooms contained within a
locked corridor. However, reducing time spent in the blue room was likely to be difficult.
It was accepted that a general deprivation of liberty within the school was necessary and
proportionate but should be within a defined compass.
Dealing with Serious Incidents
 Do the emergency services need to be contacted?
 Do other agencies need to be informed (as well as the
 Are there child protection issues?
 Is an emergency review of the child’s statement
Compliance with provisions of
 Must be in disciplinary policy (Ballyclare HS case)
 Must consider if measures considered do not breach
the provisions of the statement
 For example – providing 1:1 teaching or alternative
education provision may not comply with the
requirements of the Statement of SEN
Re ED (a Minor) [2004]
 ED was a pupil at a special school with severe behavioural
difficulties arising from a diagnosis of ASD
 Concerns were growing about the number and unpredictable nature
of violent outbursts for which it had not been possible to detect a
 ED was educated in a small group setting with other children of a
similar age
 The school held a large bundle of accident reports forms where
staff had been injured as a result of his outbursts
 Due to concerns for the safety and welfare of other pupils (and
staff), the school sought to employ a teacher and classroom
assistant to teach him on a 1:1 basis in a separate classroom. He
remained out of school until the staff could be employed
ED (continued)
 A judicial review was brought by ED’s parent on the grounds that
he was not being education in accordance with the provisions of
his statement ie a small group setting
 Kerr J (as he was then) stated at paragraph 16 of the judgment
that:“In my judgment, article 16(5) requires of the Board and the school
substantial compliance with the terms of the statement. They may
not ignore those requirements and they are bound to fulfil them
unless it is either impractical to do so or the full implementation of
the terms of the statement will put staff or other pupils at risk. The
provisions of the statement must therefore in general be
scrupulously observed but the school is not bound to follow those
terms slavishly where it is plainly impracticable to do so.”
ED (continued)
 He further added at paragraph 18:“…the evidence presented by the Respondents as to the circumstances that led to the
school’s decision to remove E from the “group setting” is overwhelming. The sheer volume
of material relating to incidents of E’s aggression permit no conclusion other than that this
young boy, because of his unfortunate disability, is frequently and unpredictably violent”.
At paragraph 21 he went to consider whether E should be allowed to remain in class with
other students and said it:“must be informed by the professional expertise of the teachers who are intimately involved
with him and the other children with whom he would come in contact. An area of
discretionary judgment must be allowed the teachers in this matter. One must recognise
that they are in a much better position to make that judgment than is the court. It is of
course true that a decision not to comply strictly with the terms of the statement must be
examined critically but it would be quite wrong for the court to substitute its view of the
matter for that of the professionally qualified experts.”
Accordingly, the judicial review was dismissed.
 This is in contrast to the decision in the case of MR (a minor), given
by Morgan J in 2004
 The case concerned a 15 year old boy in mainstream school
diagnosed with Aspergers Syndrome and dyslexia. His statement
provided him with access to an appropriate level of adult assistance.
 A disagreement had arisen between the school and the parents as
to the deployment of the classroom assistant. In reality, by the time
the case was heard he was being provided with four hours tuition at
school and six hours at home. This had arisen as a result of a
compromise following educational psychology advice that he
should be educated in a small group setting without adult
assistance. However, the school did not offer this type of provision
and there was no such provision in any of the local schools.
MR continued
 Although the judge referred to the ED decision and was happy to
follow that approach, he concluded that although he had no
reason to doubt it was based on the Board’s view of the pupil’s
best interests, he did not consider that it represented substantial
compliance with the terms of the statement.
 Morgan J took the view that the Board should have amended
the statement following annual review in accordance with
Article 19 of the Education (NI) Order 1996 which would have
given the parents a right of appeal to the Special Educational
Needs Tribunal.
 He made a declaration that the Board had not arranged the
special educational provision for the pupil set out in his
Also…..Re A [2012]
 A was a 15 year old pupil statemented for behavioural difficulties
whose educational placement was named as a school, in
partnership with EOTAS
 Over his Year 10, a marked deterioration in his behaviour was
noted and his hours were amended in light of his refusal to
 In June of his Year 10, it was agreed that tuition would be
provided in a local hall
 The case arose when the tuition continued into September,
which the mother claimed she hadn’t realised and only
discovered when he couldn’t get on the school bus
 It was alleged that this was an unlawful suspension
Re A (continued)
 The Board in its response outlined the difficulties it had
faced and that tuition was being provided as the most
appropriate in light of the needs he was presenting
 The Board denied he had been suspended from the Centre
and that the changes had been agreed with his mother
 It submitted that his attendance had been very poor (he
was also taken on holidays during term time) and the
Board had at all times provided the Applicant with
education in accordance with his statement – the Centre
formed part of EOTAS, as did the tuition service, providing
flexibility to meet his changing needs
Re A (continued)
 The judge held that A had been removed de facto from the Centre
 He noted differences with the case of ED, in that A’s behaviour took the
form of “absenteeism, disengagement and disruptiveness rather than
 Whilst the deterioration could have prompted departure from his
statement, another viable approach would have been enforcement for nonattendance at school
 The provision of individualised tuition for lesser hours was not in compliance
with his statement as it amounted to a modification of the curriculum, which
the statement had not deemed necessary
 As it stood, the failure to proceed to enforcement (when the young person
had some control over his behaviour) was a legal flaw. The decision to
reduce his timetable was inconsistent with the requirements of his
statement and was therefore wrong in law.
To conclude
 A pupil’s statement is the most vital document but IEPs and
behaviour plans should also contain sufficient details
 Statements require a degree of flexibility that allow them to be
workable on a day to day basis but not so vague as to render them
 Non-compliance with the provisions of the statement is possible but
only in truly exceptional circumstances
 Careful recording of meetings, discussions, decisions, assessments
and incidents is needed to enable the defence of legal challenges
 The carrying out of risk assessments and the seeking of advice from
appropriate professionals will also strengthen your position
 Remember you are not alone – make use of your Board officers

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