Legal Framework

National guidance and Employer policy/procedures for visits derive from H&S law.

Make sure you and your visit leaders are aware of and following Employer guidance / policy.

NASUWT leaflet and www.teachersunion.org.uk

“Educational Visits: A Checklist for Members” “….you must follow exactly your LA guidance….” Leaders should ensure they have “obtained appropriate experience, qualifications and training .”

Employer’s Guidance

Any legal analysis of a visit incident will be in the context of guidance provided by the employer.

HASPEV

( DfES 1998) This is the definitive national guidance document but must be used in conjunction with the supplements published in 2001 and 2002.

• •

Employer retains overall responsibility for health, safety and welfare

–

the LA is the employer in LA maintained schools (Community and VC) and statutory youth service, Looked after Children;

–

the Governing Body/trustees/owners are the employer in Foundation, VA, Academies and Independent Schools.

LAs have overall responsibility but will delegate most visit approval to Heads

•

Employees have significant responsibilities

Legal Duty of Employers

Under the Health and Safety at Work Act (1974) and associated regulations, employers must ensure that:

• • •

Employees are provided with appropriate guidance Employees are trained to ensure that they understand their employer’s guidance There is access to further advice to clarify guidance issues

• Employers have overall responsibility but will delegate most visit approval to Heads as they know the visit leaders and young people • Employees have significant responsibilities as they will be present on the visit

Common Law Duty of Care

• We all have a common law duty of care to do what is reasonable to prevent harm occurring to another person • A higher level of duty of care is expected of teachers / youth workers (or other professionals) as a result of their specialised training / knowledge

Roles and Responsibilities Who should be doing what?

Roles within the LA and the Establishment

•

The LA/Employer

–

H & S Team/Outdoor Education Adviser

•

The School/Unit/Establishment

–

The Governing Body/Managing Body

–

The Headteacher/Manager

–

The EVC

–

The Visit Leader

Task – Whose Roles?

LA GOVs HEAD EVC VISIT LEADER

Task – Whose Roles?

LEA GOVs HEAD EVC VISIT LEADER 5 6 1 9 4 10 3 8 2 7

Key Functions of the EVC

• • • • • •

Ensure all off-site activity meets employer and establishment requirements Make a judgement call about the competence of colleagues to lead visits Organise training and induction Keep appropriate records Review systems Monitor practice

The Visit Leader

The Visit Leader MUST:

–

Be an employee

–

Be approved

–

Be competent

–

Follow establishment and Employer policies/ procedures

–

Plan and prepare - including assessing the risks) – but this is best done as a staff team .

–

Define the roles and responsibilities of other staff and young people to ensure effective supervision.

Legal expectation is the “reasonably practicable” and is NOT “perfection”.

Legal Expectations of Supervision (What’s the Ratio?)

•

The law expects “

effective supervision”

•

The

nature and location of the activity

,

the competence and experience

of staff, together with the

age

and

ability

of the young person, determine the degree of supervision required.

CRB Checks

• •

Legal requirements based on CRB checks (and potentially ISA registration in future) provide no absolute guarantee of child protection.

The placement of young people with adults must always be within a wider consideration of all the issues, based on a common sense approach, supported by a risk-benefit assessment.

To CRB or not to CRB?

Employees that have, or could have, substantial, unsupervised access to young people must undergo an enhanced CRB check You do not have to CRB host families for exchange visits when the placement is “less than 28 days”, and provided that “the adults are volunteers; and the child’s parents have agreed the selection of the adults who will provide accommodation and care for the child.”

Overcoming the Fear of Litigation…

Perception v Reality

November 4 th 2004 Media Myths:

•

Teachers are too afraid to run visits

•

The number of visits is in steep decline.

The benefits of outdoor education are far too important to forfeit and by far outweigh the risks of an accident occurring. If teachers follow recognised safety procedures and guidance they have nothing to fear from the law.

Autumn 2003

Spring 2005

Civil Claims of Negligence

• •

Negligence may arise from the lack of due care and where the incident is reasonably foreseeable. However, an injury or damage may not be reasonably foreseeable - an accident and therefore NOT actionable.

Tomlinson v Congleton BC (2004)

Common Sense from the House of Lords

“…..it is not, and never should be, the policy of the law to require the protection of the foolhardy or the reckless few…..”

INCLUSION and the Law

SEN, Disability Act & Disability Discrimination Act

• •

It is unlawful: to treat a disabled person less favourably to fail to take reasonable steps to ensure that disabled people are not placed at a substantial disadvantage without justification.

Does the issue fall within the Act?

• •

Yes if the problem is attributable to a “physical or mental impairment” No if the problem is attributable to a social, domestic or parenting issue

Inclusion and visit management

• • •

Key principles: entitlement – the right to participate accessibility – direct or by realistic adaptation or modification integration – participation with peers

•

Inclusion Tips

Document how you have reached your decision

•

Adjustments made should not impinge unduly on the purpose of the trip e.g. inviting a parent to accompany a child may not be appropriate if the purpose of the trip is to engender independence or relationships.

•

Expectations of staff or providers should be reasonable i.e. within their competence and normal work practices