CAN SCHOOLS FULLY DELEGATE THEIR DUTY OF CARE FOR PUPILS TO THIRD PARTY AGENCIES? YES, NO, DEPENDS...

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1 CAN SCHOOLS FULLY DELEGATE THEIR DUTY OF CARE FOR PUPILS TO THIRD PARTY AGENCIES? YES, NO, DEPENDS... The guidance within this document does not constitute an authoritative legal interpretation of the provisions of any enactments or regulations or the common law; that is exclusively a matter for the courts. The outcome of this decision by the Supreme Court impacts on all maintained schools, including local authority schools, academies and free schools. Fee-paying schools perform similar functions under contract rather than common law. It has long been said that where a school has any involvement in the organisation of an activity for pupils, it has some degree of responsibility for the safe outcomes of that activity. That is, a school had a continuing duty of care for the pupils in all school organised activities, whoever delivered the activity. Historically this has been a straight forward view because it was the school that organised and delivered most activities that pupils would experience. In recent times there has been an increase in outsourcing to third party agencies the delivery of particular school functions, such as swimming lessons, school sports activities or cover for planning preparation and assessment time (PPA). One such instance of this led to a judgement in the High Court which changed that understanding and established the standard that schools could delegate their duty of care to others (Woodland versus [1] Swimming Teachers Association, [2] Stopford [trading as Direct Swimming Services], [3] Maxwell, [4] Essex County Council and [5] Basildon District Council, 2011). The outcome of this case was summarised in Safe Practice in Physical Education, 2012, (paragraphs , pages 60-61), explaining the background to the claim, the reasoning for the judgement and providing advice as to how schools should now manage situations where support staff or third party agencies contributed to physical education and sport programmes. What happened? In July 2000 Annie Woodland (the pupil who was injured) went from a local authority school in Essex (the fourth defendant) to a swimming lesson contracted out to a company (the second defendant) which organised the hire of the pool (from the fifth defendant) and provided a qualified swimming teacher with the additional presence of a lifeguard (the third defendant). The class teacher was present on the poolside, as were district council swimming pool staff. During the lesson the pupil was found hanging vertically in the water. Poolside resuscitation was provided but the tragic outcome was that she suffered permanent brain damage due to a lack of oxygen. Pupils reported seeing Annie in distress as she swam but argument continues about the facts of the situation. The complex case title indicates that with only one opportunity to make a claim for compensation through the court, the pupil s legal representatives alleged inadequate duty of care against several of the parties involved in the situation. Essex County Council counter-claimed that the duty of care for the pupils had been delegated and become the direct responsibility of the swimming provider once the lesson had begun with the County Council having no liability for the actions of the commercial party. The pupil s father claimed 1

2 that Essex County Council maintained a non-delegable duty of care (i.e. remained legally responsible for the outcome despite purchasing the tuition and water safety from a separate commercial party). a. YES the duty of care was fully delegated to the commercial swimming agency: The High Court judge determined in 2011 that Essex County Council, as the school authority, was not liable for the pupil s safety during the swimming lesson, limiting the school s responsibility to: Where a school must take their pupils to other premises, they discharge their duty of care if they know the premises and if the premises are apparently safe, and if they know that the premises are staffed by competent and careful persons. This was a key statement establishing: i. the school s responsibility only to make a reasonable investigation that particular standards were met when taking groups to off-site activities, and ii. that the third party contracted to provide the off-site activity carried the duty of care for the pupils involved. The decision established significant implications affecting the common understanding and practice that schools could not transfer the duty of care when groups attended leisure services or other commercially provided sports sessions, adventure centres where specialist staff provided the technical input or where agencies provided activity sessions off-site. This was confirmed by the Appeal Court in 2012 and became the standard to work to when using external organisations to provide activities off-site. This expectation no longer applies read on... b. NO, the duty of care remains with the school authority: The issue went to the Supreme Court in 2013 where the original decisions were overturned. The final decision on this situation is that the school authority (a local authority, board of governors or trust) is responsible in situations where a duty is provided through a third party, whether on or off-site. It remains the school authority s obligation because the external agent contracted to provide the service does this on behalf of the school authority, therefore duty of care remains with the school authority and cannot be delegated: The work required to perform such a duty may well be delegable... But the duty itself remains the defendant s. Its delegation makes no difference to his legal responsibility for the proper performance of a duty which is in law his own. This brings the application of duty of care for schools back to the long understood standard. As the highest court in the land has made this decision it is now common law. This means that the local authority, governors or trust remain liable for any negligent act relating to its services and programmes, including where these are contracted out to a third party to use technical expertise not necessarily available within the direct work force of school staff. Where the external agency was found to be negligent then the school authority would be in breach of its duty of care to the pupils. A school authority s duty of care to pupils cannot be delegated to any external contractor bought in to take lessons. Schools are employed to educate children, which they can only do if they are allowed authority over them. That authority confers on them a significant degree of control. Where that control is delegated 2

3 to someone else to perform the school s educational function the school should be answerable for the careful exercise of its control by the delegate. The standard to which this duty applies is also clearly set out. The school needs to check that whoever performed the duty did so without fault, and not simply pre-check competence. The school remains personally responsible to see that care is taken in doing it. This clearly indicates a requirement to manage and monitor what the external provider is doing and how it is being done. c. DEPENDS, on the circumstances: But...the context of this particular tragic outcome involved a school s duty to provide what is a statutory requirement to deliver national curriculum swimming lessons. The Supreme Court has placed limitations on the range of situations for which a school or local authority cannot delegate the duty of care for the pupils. It is not an open-ended liability that is imposed. The judgement set out the overall context in which a school authority would maintain the duty of care and could not delegate it to a third party as being when having control over the claimant for the purpose of performing a function for which the defendant has assumed responsibility. Schools are liable for the negligence of independent contractors only if and so far as the independent contractor is performing functions which the school has assumed for itself a duty to perform, generally in school hours and on school premises (or at other times or places where the school may carry out its educational function ). This clearly applies to all mandatory curricular situations. It also includes activities the school deems it important to provide for the pupils (i.e. functions which a school assumes an obligation to perform ), such as out of lesson time sports and adventure activities provided by the school. Where the school has opted to provide activities beyond the curriculum and outside the normal timetabled day, such as school fixtures, attendance at sports festivals and visits to adventure activity centres, then the school is demonstrating a function which it believes to be an essential aspect of school life and assumes the duty to provide such experiences, albeit as optional activities as part of an extended day or on a residential basis. By assuming such an obligation it indicates that the school maintains the duty of care for the pupils as it is the school placing the pupils into those contexts even where a third party is contracted to deliver the activity on behalf of the school. This is the interpretation of a lay-person but it will be for the legal experts to clarify these examples and other potential contexts. School staff are advised to clarify with their employer s legal advisers to check whether they take a different view. The judgement set out three contexts in which the school authority would not be held liable for any negligent act by an independent contractor. These clearly establish a distinct separation between provision and responsibility for the pupils viz: i. where the school s duty is not to perform the relevant function but only to arrange for its performance ; This context relates to situations such as a school having no duty to provide transport for an event but choosing to arrange it for the convenience of the group, such as travelling to away fixtures, whereby the transport is arranged but the pupils remain the responsibility of the school staff. ii. the defaults of an independent contractor providing extra-curricular activities outside school hours, such as school trips in the holidays ; 3

4 The wording may cause some confusion - what is extra-curricular? The explanation given in the judgement clarifies this. Where a school allows an independent provider to organise sports activities on its site, or allows advertising for the independent activity through school, but the school has had no direct involvement in the activity, it is likely that the independent provider would have the responsibility for the children rather than the school. iii. not liable for the negligence of those to whom no control over the child has been delegated, such as bus drivers or theatres, zoos or museums to which the children may be taken by school staff in school hours. Under occupiers liability law and other relevant statute the provider would have an independent responsibility unless the school had made an arrangement for the bus driver or zoo keeper (for example) to take direct responsibility for pupils on behalf of the school. In a nutshell, where a school opts to provide an activity and contracts an external agency to provide that activity of behalf of the school then the school maintains control of the pupils and responsibility to ensure that: i. the premises on which the activity takes place are safe; ii. the external agency staff are competent, and iii. the activity is carried out safely. Where a school simply makes pupils aware of an opportunity to participate in an activity independent of the school s responsibility then the external agency would have responsibility for the safety of those who opted to participate. d. afpe s advice for the profession to consider is: i. School staff would be wise to ensure that they are familiar with any requirements or guidance relating to the use of external agencies that are set out by their employer. ii. iii. iv. School authorities (employers) should clarify with schools under what circumstances any activities outside the national curriculum are deemed to be an assumed duty to provide. A school s continuous duty of care to pupils is not altered for curricular programmes of activity on or off-site whether delivered by a teacher or an independent agency. Workforce Regulations demand that, in curriculum contexts, a coach/helper/external agent is managed by a class teacher and delivery of a regulated activity must be supervised where the coach/helper/external agent does not have disclosure certification and barred list clearance through the Disclosure and Barring Service (DBS). In a school organised activity on or off site delivered by an external agency, the teacher s duty of care to pupils continues whether or not the teacher is involved in the teaching of the session. v. The same standard of care applies in or out of lessons, on or off site, weekends or holidays where the school has assumed for itself a duty to provide an activity. vi. vii. viii. A school must ensure that any programme of activity delivered on its behalf by a contracted external agent is done safely and not restrict evaluation to a pre-event check of competence. Parents need to be kept fully informed at all times of who is responsible for their child. Clear roles and responsibilities are essential for all adults providing sessions to pupils. 4

5 ix. Control, behaviour and group-management standards need to be consistent, whoever is teaching or managing a class. Schools should be able to evidence that this has been taken into consideration. x. Where school staff are unhappy about the level of safety provision within an activity led by someone else, they should intervene. xi. Careful and considered quality assurance decisions about using particular agencies need to be made involving visits to any premises, facilities or activity centre to be used, and competency checked. (Many schools already do this as standard practice and a number of quality assured awards are available for an external agency to demonstrate the level and quality of experience they offer). Peter Whitlam afpe Project Manager for Health and Safety November Copyright 5