The legal duties relevant to staff working in the SEND sector are manifold and can be a source of anxiety. The key to being comfortable with your legal duties is to have access to just the right level of information: a little knowledge can be a dangerous thing but too much information can lead to paralysis.
Duty of care
We all have a duty to take reasonable care to avoid causing harm to those around us, and we may find ourselves liable to pay damages if a breach of this duty causes harm.
For schools, the established duty of care goes further: education professionals have a duty to create and maintain an environment which is not only physically safe for pupils, but which also meets their educational needs. Teachers therefore owe a duty of care to all pupils in respect of the way they discharge their teaching responsibilities. Should they fall below the standard expected of them they could face a complaint, or even find themselves in court defending a “failure to educate” claim.
This expected standard of care is not one of perfection. Teachers are expected to possess a degree of competence in line with the general standards of other professionals, and there are some simple steps they can take to ensure they can demonstrate this standard:
- Keep up-to-date with appropriate training.
- When considering a course of action, always think about whether fellow professionals would agree.
- Take on board and implement the latest best practice advice issued by the Department for Education, Ofsted and relevant professional bodies.
- When following the above steps, take care to lay an evidential trail.
Equality legislation
When it comes to disabled pupils, equality legislation brings an additional layer of obligation. The Equality Act 2010 places responsibility on a school to protect pupils with a disability from discrimination in every aspect of their education, from teaching and learning to exam arrangements, school trips and access to facilities.
“Disability” is defined in the Act as being a physical or mental impairment which has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities.
SEN are not always disabilities, but the definition can include sensory impairment and learning difficulties, where there is a more than trivial effect on day-to-day activities that has lasted or is likely to last at least 12 months. The fact that the impairment can be rectified or controlled by treatment (such as hearing aids for hearing impairment) is irrelevant.
Schools must make reasonable adjustments to make sure disabled pupils or prospective pupils are not put at a substantial disadvantage. The duty is anticipatory: you cannot wait for a disadvantage to actually arise before making adjustments.
The Equality and Human Rights Commission offers guidance on the factors to consider when deciding whether an adjustment is reasonable. These include cost, available resources, practicability, effectiveness, and the interests of other pupils or prospective pupils.
Of course, it may be that the SEN provision attached to a Statement or new Education, Health and Care Plan overcomes the disadvantage, in which case no reasonable adjustments are required by the school. In other cases, however, additional steps may need to be taken to ensure compliance with the law.
Information-sharing and confidentiality
The personal information relating to pupils with SEN will of course be sensitive. The Data Protection Act 1998 regulates the sharing of all personal data. As holders of personal data, schools have obligations as “data controllers” under the Act, and risk a range of sanctions if they do not comply with them. However, there is a balance to be drawn between protecting confidentiality and sharing information in the appropriate circumstances.
If you receive a request from an individual for access to their personal information, you should consider the following key questions before sharing:
- Is there a clear and legitimate purpose for sharing?
- Does the information identify a living person?
- Is it confidential?
- Do you have informed consent to share?
- If you do not have consent, is there sufficient public interest to share the information?
- Are you sharing appropriately and securely?
- Have you properly recorded the information-sharing decision?
Schools should ensure that all staff are familiar with government guidance on information-sharing, and seek further advice if in any doubt over their obligations.
- Mark Blois is a partner and head of education at Browne Jacobson.
Further information
Nasen Live provides the opportunity for SENCOs, teachers and practitioners to update their SEND practice. It takes place in Leeds on April 29 and 30. Mark’s session takes place at 3:30pm on April 29. For more details, visit www.nasen.org.uk/nasen-live/