6. Inappropriate Policy on Physical Intervention, inadequate training for staff - non compliance with DfEE, DfES and Department of Health Guidance...
All schools have a 'duty of care' in Common Law and a statutory duty under the Health & Safety at Work Act 1974 (HSW) to ensure, so far as is reasonable and practicable, that no harm happens to anyone and that good order and discipline are maintained.
In certain circumstances, the 'duty of care' extends to a responsibility to take positive action in the form of using physical force on a pupil.
There are a wide variety of situations in which reasonable force might be appropriate, or necessary, to control or restrain a pupil. They can be separated into two broad categories:
(a) where action is necessary in self-defence or because there is an imminent risk of injury or where there is a developing risk of injury, or significant damage to property;
(b) where a pupil's behaviour is compromising good order and discipline.
Examples of situations that fall within category (a) are:
• A pupil attacks a member of staff, or another pupil;
• Pupils are fighting;
• A pupil is engaged in, or is on the verge of committing, deliberate damage or vandalism to property;
• A pupil is causing, or at risk of causing, injury or damage by accident, by rough play, or by misuse of dangerous materials or objects;
• A pupil is running in a corridor or on a stairway in a way in which he or she might have or cause an accident likely to injure him or herself or others;
• A pupil absconds from a class or tries to leave school (N.B. this will only apply if a pupil could be at risk if not kept in the classroom or at school).
Examples of situations that fall into the category (b) are:
• A pupil is behaving in a way that is seriously disrupting a lesson.
• A pupil persistently refuses to obey an order to leave a classroom;
In such circumstances, the legal 'duty' in both Common Law and HSW translates to a legal authority to take the action, providing no more force is used than is reasonably necessary in the circumstances and proportionate to the harm that is being prevented.
Physical intervention is recognised world wide as an inherently risky (and potentially deadly) process and providing school staff with suitable guidance, instruction and training that helps to minimise risks are considered 'reasonable steps' that schools are expected to take.
Without proper training, guidance and instructions, school staff will always be at a disadvantage when situations arise which might necessitate physical intervention and may, as a consequence, take an inappropriate course of action (which could be inaction!) that could have disastrous consequences for the child.
Use of force on pupils is the subject of plenty of Official Guidance.
Guidance current (at the time) included DfEE Circular 10/08 - which was produced for schools just after Section 550A of the Education Act 1996 came into force on 1 September 1998*. Section 550A confirmed and clarified the legal authority to use reasonable force on pupils which already existed in Common Law and HSW. The aim of the new legislation was to clear up misunderstandings!
* NOTE: On 1st April 2007, the Education and Inspections Act 2006 came into force. It repealed sections 550A and 550B of Education Act 1996 and section 61 of the School Standards and Framework Act 1998 (which were superseded by sections 88 to 93 of the Education and Inspections Act 2006 which further defined and added to the powers of school staff).
Something that Schools need to take into account is that, as a result of their diagnosis, some pupils may (predictably) present a frequently recurring need for physical intervention and re-direction. (e.g. those with Aspergers Syndrome, ASD). Recognising this, the Department of Health published Guidance on Restrictive Physical Interventions for People with Learning Disability and Autistic Spectrum Disorder, in Health, Education and Social Care Settingsin July 2002. The Guidance sets out in detail what arrangements schools should have in place if they are catering for pupils with these disabilities.
Summary
A summary of the legal position appears in the Executive Summary (Page ii) of DfES Research Report No 451 - Evaluation of Circular 10/98 on the Use of Force to Control or Restrain Pupils, published in July 2003, which states:
"Arguably, schools that do not attend to the guidance in Circular 10/98, and do not regard consideration of the use of restraint as a critical element within their behaviour management policy, are neglecting important Health and Safety issues, thus putting themselves at risk in the event of an incident."
Against this background........
On Tuesday, March 06, 2007, following a series of incidents which had provoked concern about the competency of the school staff deputed to support Josie and after repeated requests for the information, Chris Edwards, Headteacher at Ringwood School, sent me an email confessing that NONE of the school staff had been trained in physical intervention/ restraint.
I was horrified! Josie's behaviour quite often warranted some form of physical intervention (and re-direction) to protect against her either intentionally or accidently causing herself or others harm and also - more usually - to prevent her conduct from disrupting whatever else might be going on.
I regarded the school's failure to train ANYONE at the school in how to carry out necessary physical interventions as a serious shortcoming in the safety arrangements.
In my opinion, the school's conduct amounted to more than simple neglect. It was 'knowingly' disregarding its legal obligations and the DfES Guidance.
So, I sent an email back to the school saying that my experience was that the school staff were clearly unaware of the extent of their Common Law 'duty of care' to the children in their care; were unaware of their legal authority under S550A of the Education Act 1996; were operating under the misapprehension that they have no authority to intervene physically in situations which call for it to happen - and that the situation was unsafe!
I requested that the school act quickly to remedy the position (i.e. by providing staff with appropriate training) and, meanwhile, 'own up' to parents and the LEA about the inadequacy of the training provided to staff - so that the LEA(s), in everyone's best interests, would stop placing children with behavioural problems / learning difficulties at Ringwood school, at least until the school implemented the necessary improvements.
I also copied the email to Hampshire County Council - as the Local Education Authority - to raise awareness of the shortcomings and provoke remedial action. I also asked the Council (Sheila Young, District Manager for New Forest) the following questions:
Please can you:
1.Tell me whether or not Hampshire LEA considers the school's position (i.e. not training staff in physical intervention/ restraint skills) to be good practice in mainstream secondary schools.
3. Advise me whether, in the light of the information above, Hampshire LEA considers Ringwood School's arrangements for managing behaviour are appropriate for the care of pupils with SEN.
4. Advise me whether (or not) Hampshire LEA will be making any representations to the school to remedy the shortcomings in the safety arrangements.
5. Advise me whether (or not) Hampshire LEA will be reviewing its policy on placing SEN pupils at Ringwood School, if Ringwood School refuses/ fails to remedy the shortcomings in the safety arrangements.
Sheila responded, proclaiming that the Council was satisfied with the school's arrangements for managing behaviour and did not regard the school's failure to train anyone at the school in how to carry out physical interventions as a safety concern.
I found it simply impossible to believe that, after properly appraising herself of all the evidence to the contrary that I'd sent her, she could reasonably hold the opinion that current DfES Guidance was being appropriately applied at Ringwood School.
Consequently, being unable to think of any reason why Sheila had made the proclamations - other than to protract and frustrate the proper investigation and resolution of my concerns, in order to protect herself(and perhaps other senior colleagues) against complaint - I lodged an Official Complaint.
This resulted in an infuriating response from Mr John Coughlan, the Director of Children’s Services at Hampshire County Council.
Mr Coughlan's letter (dated 22/06/2007) advised that a Dr Travell, Consultant Educational Psychologist with a lead on pupils' behaviour management) had reviewed the position and had agreed with Mrs Young's view that the school's policy, not to train all staff in physical restraint skills as a matter of course, was reasonable and typical of other mainstream secondary schools in Hampshire.
Infuriating, because, Mr Coughlan had misrepresented what I was complaining about.
My complaint was about the school not training ANYONE in physical restraint skills - not everyone!
(If I was to be asked whether it was necessary for all staff should be trained, my response would be "Ideally yes, but in practice no, not all, just enough!")
In any event, the message from Mr Coughlan was that the LEA was not going to intervene!
I mistakenly thought there was perhaps a chance that Mr Coughlan had misread or misunderstood exactly what I was complaining about (a recurring theme!) and so I sent him a further letter, making my complaint even more explicit.
To read the full text (.pdf) : Click Here
Mr Couglan responded in a letter dated 10th July 2007, saying that the Council was happy with its position, content for the matter to be referred to the Secretary of State and confident that the Council's position would be endorsed by the Minister.
To read the full text (.pdf) : Click Here
On 23rd March 2008, I contacted the Department for Children, Schools and Families (formerly the DfES) and alerted them to the shortcomings in the safety arrangements at the school and requesting the Secretary of State's intervention. I supported my case with plenty of references and links to DfEE, DfES and DoH Guidance.
To read the full text (.pdf) Click Here
Below is the reply I received (3 months later) from Mrs Yetunde Fakayode at the DCSF's Improving Behaviour and Attendance Unit on Wednesday, 9th July 2008:
Dear Mr O'Dwyer
I am writing further to your emails of 17 and 30 June to my colleague, Maureen Lewis, about Ringwood School. You had previously written to theSecretary of State requesting him to take action under section 496 or section 497 of the Education Act 1996.
The Secretary of State can only intervene when he is satisfied that the school or governing body has failed to exercise a legal duty or acted unreasonably in the discharge of a legal duty.
I have now received a response to my enquiries about your case from the Headteacher of the school. She advised me that you have not made a formal complaint to the school about the issue you raised in your email to the Secretary of State of 20 March 2008. The Department does not investigate complaints against schools unless local means of redress have been exhausted.
I would therefore advise that you make a formal complaint to the school using the school's complaints procedure. A copy of that procedure is attached for ease of reference.
Yours sincerely
Mrs Yetunde Fakayode
Improving Behaviour and Attendance Unit DCSF
On 14th July 2008, I sent an email back to Mrs Fakayode saying:
Hi Yetunde,
I've received your email - and I'm flabbergasted!
I don't see how the fact that I haven't made a formal complaint to the school can be an issue here?
I have alerted you (i.e. the Department for Children, Schools and Familes) to circumstances at Ringwood School that conflict with the Department's Guidance, that are not disputed by the School or Hampshire LEA and which I'd have thought merited the Department's immediate intervention to:
1. Ensure appropriate standards are maintained at Ringwood School
2. Ensure that Ringwood School doesn't continue to break the law (H&S)
3. Ensure the Ringwood School conducts its statutory duties reasonably (i.e. within the law)
4. Ensure that other schools in Hampshire LEA's area have got suitable arrangements (i.e. as per the Department's Guidance.)
Ask yourself this. What would the Department do if it was an Ofsted Inspector who was bringing the safety shortcomings at Ringwood School to your notice, together with written confirmation from the LEA that it wasn't prepared to do anything about it?
I look forward to hearing back from you soon.
Best wishes,
Jim O'Dwyer
Finally, on Monday, August 04, 2008, I received confirmation from the DCSF that it was up to me to pursue my 'complaint' through the school's Complaint's Procedure - and that they intended to do nothing.
Dear Mr O'Dwyer,
Thank you for your email of 14 July in response to my email to you of 9 July about complaint against Ringwood School.
Every school is required by law to have a formal complaints procedure because that is the best way to deal with formal complaints. The Department does not therefore investigate a parent's complaint against a school unless the parent has made a formal complaint to the governing body through the school's complaints procedure, is dissatisfied with the way in which the governing body has dealt with the complaint and has evidence that the governing body has either failed to carry out a statutory duty or has exercised a statutory power unreasonably.
This means that, if you want the Department to investigate your complaint, you will need to make a formal complaint to the school using its complaints procedure. If you are dissatisfied with the way in which the governing body has dealt with your complaint and have evidence that it has behaved unlawfully or unreasonably you can then refer the matter to the Department, including copies of relevant correspondence with the chair of governors.
I hope this clarifies the situation for you.
Yours sincerely,
Mrs Yetunde Fakayode
Improving Behaviour and Attendance Unit DCSF