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Handsam has written to client schools advising them that the recent reduction of formal government guidance from 160 pages to 8 pages may have gone too far in superseding all the 1998 guidance.
While broadly welcoming the DfE’s emphasis on common-sense rather than over-bureaucratic control and keenness to dispel the concern expressed by some teachers who worry about being prosecuted if an accident occurs on a school trip, teachers, Handsam feels, are not going to be encouraged by the Department’s only advice on civil liability which emphasises that legal action can be taken against members of staff for any negligence where the staff have not acted as ‘a prudent parent would have done’.
It might have been more reassuring if the government had taken the opportunity to point out to schools that courts have moved on considerably since the original concept of ‘the careful father’ was first aired by Mr Justice Cave in 1893. All the leading cases affirm that any action by a member of staff which was ‘within a range of reasonable responses’ would be a good defence.
Indeed, of the 50,000 reportable incidents in schools in the five years from 2005-2010 only 29 led to HSE prosecutions, and only 2 of those stemmed from incidents on off-site activities.
It is a pity, too, that the Department did not mention the importance of the Compensation Act 2005 which stemmed from Tony Blair’s government’s earlier desire to encourage staff to participate in off-site activities. The Act cut down the incidence of negligence cases at a stroke. Courts now have to take into account the benefits offered by a particular activity and to have regard to whether taking particular steps to reduce risk would prevent a desirable activity taking place. The Act is not well known and advice on school health and safety would have benefitted from a mention of it.
Also missing is any mention of the government’s own Quality Badge scheme run by the Council for Learning Outside the Classroom. The scheme, which cost £1million to research and set up, requires holders to have approved codes of practice and in some cases to undergo external verification of their health and safety arrangements.
Also missing from the DfE document is advice on staff-pupil ratios, safety at water margins, use of parents and volunteers, the role of health and safety committees, the role of staff safety representatives, and the requirement to consider the needs of pupils with disabilities, which were all part of the 1998 guidance.
Common-sense is all very well but it does need to be informed by up-to-date information.
With the majority of cases stemming from civil action in any event, Handsam encourages schools and staff to think beyond the government advice to ensure that their arrangements are comprehensive as well as commonsensical.
Access the full Handsam advice here. |
