Recent Legal Issues and Case Law – Special Schools Conference 9 th May 2013

1. Recent Legal Issues and Case Law – Special Schools Conference 9th May 2013 Nessa Agnew and Linda Aitcheson Solicitors Education and Library Boards Solicitors

2. 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

3. 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))

4. 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- To determine measures (which may include the making of rules and provision for enforcing them) to be taken with a view to- promoting among pupils, self-discipline and proper regard for authority; 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”

5. Power of member of staff to restrain pupils • 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

6. Power to Restrain “reasonable” is not strictly defined – this is subjective It covers class time, and situations outside the classroom egbreak, 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

7. 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

8. 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

9. 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

10. 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 safety

11. 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?

12. 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 therapist? 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?

13. C –v- A Local Authority [2011] EWHC 1539 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 support 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

14. “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

15. “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.

16. Dealing with Serious Incidents Do the emergency services need to be contacted? Do other agencies need to be informed (as well as the parent)? Are there child protection issues? Is an emergency review of the child’s statement needed? MOST IMPORTANT – RECORD, RECORD, RECORD

17. Compliance with provisions of statement 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

18. 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 trigger 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

19. 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.”

20. 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.

21. However…….. 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.

22. 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 Statement.

23. 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 engage 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

24. 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

25. 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 violence” Whilst the deterioration could have prompted departure from his statement, another viable approach would have been enforcement for non-attendance 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.

26. 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 meaningless 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