This session looked at the rise of regulation and the more proactive approach of the consumer in the 21st century, the school's obligations and what to do when faced with an allegation.

1. Education law conference
March 2017, Manchester
What to do when it all goes wrong – a Barrister’s
perspective

2. What to do when it all goes wrong
A Barrister’s perspective
15th March, Manchester
Ben Bentley, Associate Barrister
Join the conversation #BJ_EDC

3. Overview
1. The rise in litigation / regulation
2. National College proceedings
3. Disability Discrimination claims
4. Practical tips

4. The rise of regulation
• Public trend towards holding professionals to account;
• “Consumers” more hands on and proactive in 21st century;
• Growth in referrals to the National College for Teaching &
Leadership
• Increase in Special Educational Needs and Disability discrimination
claims
• Greater access to the SENDist Tribunal hearings for litigants in
person
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5. NCTL Professional Conduct Panel Proceedings
• National Regulator considering allegations of serious misconduct
NOT competence:
• Unacceptable professional conduct;
• Conduct bringing the profession into disrepute;
• Conviction, at any time, of a relevant offence
• Relates to all unsupervised teaching work in England
• Cases of serious misconduct which have the potential to result in
prohibition orders being made

6. Your obligation
• Statutory duty under S141D Education Act 2002 (as amended):
• Where a teacher’s employer has dismissed the teacher for
misconduct, or
• Would have dismissed them had they not resigned first,
• They MUST CONSIDER whether it is appropriate to refer to the
NCTL
• All local procedures must be complete prior to referral

7. What to do
Preventative
• Difficult in reality - take steps to mitigate/prevent;
• Ensure clear and comprehensive policies in place;
• Ensure staff are up-to-date with all training such as safeguarding;
• Have a clear reporting procedures for concerns;
• Stay vigilant

8. What to do
If allegations are raised
• Follow disciplinary policy;
• Investigate fully;
• Trained investigating officer
• Document all meetings/ interviews;
• Speak to key personnel and students as soon as possible;
• Retain all relevant documentation;
• Don’t go it alone - refer to appropriate agencies - LADO, Police
• Cooperate with NCTL and support potential witnesses

9. First-tier Tribunal (Special Educational Needs and Disability)
1. Appeals against a special educational needs (SEN) statement;
2. Appeals against an education, health and care (EHC) plan
decision;
3. Claims of disability discrimination;
1 and 2 are against the Local authority but claims can be linked

10. Disability Discrimination Claims
• Claim against a:
• Maintained school, nursery or pupil referral unit;
• Independent school
• Free school, including academies
• Claim by:
• Someone with parental responsibility for young person or foster
parent or carer;
• Young person over school leaving age but under 18
• Limitation - 6 months from alleged discrimination

11. Disability
S6 Equality Act 2010
Disability:
• Physical or mental impairment;
• Impairment has a substantial and long-term adverse effect on
person’s ability to carry out normal day-to-day activities
Case by case consideration

12. Disability
Exceptions
Equality Act (Disability) Regulations 2010
Regulation 4
“For the purposes of the Act the following conditions are to be
treated as not amounting to impairments:—
(a) a tendency to set fires,
(b) a tendency to steal,
(c) a tendency to physical or sexual abuse of other persons,
(d) exhibitionism, and
(e) voyeurism.”

13. Discrimination
S15 - Discrimination arising from disability
“(1) A person (A) discriminates against a disabled person (B) if—
(a) A treats B unfavourably because of something arising in
consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of
achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and
could not reasonably have been expected to know, that B had the
disability.”

14. Discrimination
S20 - Duty to make adjustments
Where a disabled pupil is put at a substantial disadvantage in relation
to a relevant matter in comparison with pupils who are not disabled
due to:
• a provision, criterion or practice of the School;
• a physical feature of the School;
• the absence of an auxiliary aid
There is a duty to take reasonable steps to avoid the disadvantage or
provide the auxiliary aid.

15. Discrimination
Common Claims
• Exclusions;
• Failure to educate/ inadequate provision of appropriate work
during absence;
• Part-time attendance at school/ in class;
• Failure to provide additional assistance.

16. Outcomes
Tribunal Powers
• Finding of discrimination or dismissal of claim
• If finding, can order:
• Reinstatement of pupil at School (expedited process);
• Apology letter to pupil and parents/guardian;
• Review of policies;
• Additional training;

17. What to do - Practical tips
Preventative
• Clear policies on equality and diversity;
• Clear behavioural policy and exclusion procedure;
• Open lines of communication with parents;
• Multi disciplinary approach - seek assistance from external
agencies such as behavioural support, autism outreach;
• Document - full notes of meetings, incidents;
• Rationale - ensure all decisions are justified;
• Be mindful of correspondence - may become disclosable;
• Apply for additional funding but consider general SEN budget

18. What to do - Practical tips
In the event of a claim
• Take seriously - do not ignore;
• Comply with all Tribunal deadlines;
• Consider settlement;
• Clear and full response with accompanying documentation:
• Take out the emotion - stick to the facts!
• Put it into context - size of school, number of SEN children,
resources and budget;
• Relevant witnesses;
• Support staff.

19. Press
• National College proceedings heard in public;
• Statutory requirement for all NCTL findings of misconduct to be
published:
https://www.gov.uk/government/publications?keywords=&publication_filter_option=decisions&topics%5B%5D=
schools&departments%5B%5D=national-college-for-teaching-and-
leadership&official_document_status=all&world_locations%5B%5D=all
• Name of School published;
• Witness names are not published;
• Disability discrimination claims - private hearings;
• Decisions not published automatically but can be shared by
parties.

20. Any questions?

21. Find out more
www.brownejacobson.com/education

22. Talk to us
Ben Bentley | 0115 908 4826 | ben.bentley@brownejacobson.com
Please note
The information contained in these notes is based on the position at March 2017.
It does, of course, only represent a summary of the subject matter covered and
is not intended to be a substitute for detailed advice. If you would like to
discuss any of the matters covered in further detail, our team would be happy to
do so.
© Browne Jacobson LLP 2017. Browne Jacobson LLP is a limited liability
partnership.
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