Action on Unacceptable Unacceptable Actions Policies

One thing I come across from time to time is the application of “Unacceptable Actions Policies” by education authorities to parents raising concerns about their children’s additional support needs.

Typically, this might be used where an education authority have concerns about the frequency or nature of complaints made to school or other staff by a particular parent.  Where used, the effect would usually be to restrict the ways in which a parent is allowed to make contact with the school.  For example, they might be given a specific person to contact, and asked to do so only by e-mail.  Some examples might mean a parent is asked not to attend the school premises, except by prior arrangement – which can extend to not attending to drop off or pick up the child at school.

In considering this issue further, I have had a look at the policy in place for Glasgow City Council.  This is not because Glasgow are any worse than anyone else in this regard, but simply as they happen to the Council involved in the most recent case I looked at.  Fair play to Glasgow, it must be said, for making the policy freely and easily accessible on their website.  I also looked at decisions of the Scottish Public Services Ombudsman (SPSO) I was able to find which were relevant to this type of policy.

Glasgow’s policy specifies three different types of unacceptable actions by customers:

  1. Aggressive or Abusive Behaviour;
  2. Unreasonable Demands; or
  3. Unreasonable Persistence.

Aggressive or Abusive Behaviour

The policy helpfully distinguishes between anger (which it implicitly recognises may be justified) and aggression (which is not).  I have some slight concern that “it is sufficient for staff to feel afraid, threatened or abused for the council to consider a customer’s behaviour or actions unacceptable”.  This appears to be the case regardless or whether it is objectively reasonable for the member of staff to feel that way.  To give an extreme example, a staff member who felt threatened simply due to a parent’s stature and racial origin is surely not the sort of thing the policy intends to cover.  It also means that any declaration that staff felt threatened is effectively taken at face value without any enquiry into the circumstances of the case.

However, these are fairly extreme examples, and this section is by and large unobjectionable.

Unreasonable Demands

This covers things like insisting on speaking to a particular member of staff, continuing to raise the same issue in the hope of eliciting a different response, focusing on a “trivial” matter, insisting that a response is not adequate in spite of “a large volume of correspondence”.  Such things amount to unacceptable actions if they start to take up too much staff time.

We are clearly into much more subjective territory here, and possibly in danger of categorising understandable (and often necessary) parental advocacy as unacceptable.  Of course, the expectation is that the Council will apply the policy reasonably, but it leaves much effectively to the discretion and viewpoint of staff against whom (or against whose colleagues) complaints may be being made.

Unreasonable Persistence

“The way in which these customers approach us may be entirely reasonable, but it is their persistence in continuing to do so that is not.”

Basically, the Council reserve the right here to cease engagement with a customer on an issue at the point the matter is referred to the SPSO, or otherwise reaches the end of a complaints or other process.  Which is, in most cases, going to be fair enough.

Let’s have a look at some real life examples, as considered by the SPSO…

SPSO Decision 201806323, Glasgow City Council

In this instance, the Council placed restrictions on Ms. A under their policy.  However, in doing so, they failed to let her know about her right to appeal against that decision, they failed to let her know what conduct of hers had led to the decision, they failed to keep proper records indicating their reason for imposing the restrictions, and they failed to review the decision on a six monthly basis (as their policy required).

While the SPSO were keen to point out that “The Council are entitled to apply their UAP” and that “we are not an appeal route for that decision”, they did uphold the complaint against the Council and made a series of recommendations to improve the operation of the policy in future.

SPSO Decision 201702414, East Dunbartonshire Council

The Council’s policy was applied in this case due to correspondence from Mr. C placing unreasonable demands on the business of the Council.  The Council, however, confirmed that they did not / could not consider properly made Freedom of Information (FOI) requests to fall within the category.  As they have a statutory duty to comply with same, these could not be regarded as  imposing unreasonable demands.

However, the Council were then unable to produce to the SPSO much in the way of non-FOI correspondence.  The SPSO therefore found that Council had unreasonably applied their policy in this case.

SPSO Decision 201701620, Aberdeenshire Council

The complaint in this case (made by Mr & Mrs C) was not upheld.  The Council had followed its own process correctly.  They had identified the conduct they felt was unreasonable, and had warned that it may lead to the policy being invoked.  They had written to clearly explain the restrictions being imposed, and explained the process for reviewing the decision (at least every three months).

SPSO Decision 201306096, Glasgow City Council

This complaint was upheld in part.  The SPSO determined that the application of the policy to Mr. A had taken place after proper consideration had been given to the nature and frequency of his communication with staff.  There was no evidence that the Council had been inconsistent or that they had been unreasonable in not inviting Mr. A to meetings regarding the care of his child.

However, the process for review of the decision had not been properly followed, and the complaint about the policy itself had been delayed.  Appropriate recommendations on these points were made.

SPSO Decision 201407836, Scottish Borders Council

While not upholding a complaint by a member of the public who had been turned away from a public event duet to his behaviour, the SPSO did recommend (for the sake of completeness) that the witness to the incident identified by Mr. C be contacted to see whether their testimony would have an effect on the decision.

SPSO Decision 201202410, Glasgow City Council

The SPSO found that the complainer in this case met the criteria for bringing the policy into effect – in terms of her behaviour and demands (which were related to complaints on noise).  While the Council would no longer respond to her e-mails or phone calls, they had left open a means by which she could complain about anti-social behaviour or noise, and had continued to receive and respond to her letters.

As we might expect from the SPSO, these focus largely on procedural elements.  They are nonetheless a useful reminder of the need for clarity in why a policy is being applied, the issueing of a warning beforehand, and the ability to access processes for appeal and/or review of the decision.

One important postscript to all of this is to bear in mind Section 27 of the Equality Act 2010 which forbid discrimination by way of victimisation.  The legislation designates complaints that a person or body had breached the 2010 Act as protected acts.  It is unlawful for an education authority to subject someone to a detriment due to them making an allegation of unlawful discrimination (whether they refer to the Act or not).  So, a parent making allegations to a school of unlawful disability discrimination (e.g. a failure to provide reasonable adjustments for a disabled child) should not be subject to any kind of detriment (e.g. having their contact with the school restricted).  The same protection applies to bring court of Tribunal proceedings under the Act, or being a witness in such proceedings.  The protection of the Act does not apply to false allegations which are made in bad faith.

Here is an example of these provisions being used in relation to allegations of discrimination on the grounds of religion or belief under older equivalent legislation: Council pays out in school religion row.

There are no equivalent protections under the Education (Additional Support for Learning) (Scotland) Act 2004, although it may be argued that in many cases, an allegation of failure under the 2004 Act for a disabled pupil, will also amount (in effect) to an allegation of unlawful disability discrimination – and therefore be protected in the same way.

Image Credit:

http://www.thebluediamondgallery.com/typewriter/c/complaints.html

In Safe Hands?

Section 7 of the Commissioner for Children and Young People (Scotland) Act 2003, as amended, allows the Commissioner to conduct investigations into:

whether, by what means and to what extent a service provider has regard to the rights, interests and views of children and young people in making decisions or taking actions that affect those children and young people (such an investigation being called a “general investigation”)

The first such investigation undertaken was on the issue of restraint and seclusion in Scotland’s schools (“No Safe Place”). The investigation focused on two main issues:

  • The existence and adequacy of policies and guidance.
  • The extent to which incidents are recorded and reported at local authority level.

The investigation was undertaken from an international law perspective – primarily the UN Convention on the Rights of the Child.  But what does Scots law have to say on these thorny issues?

Crime and Punishment

We start with a history lesson.  Following the Scottish case of Campbell and Cosans v. The United Kingdom, the European Court of Human Rights determined that the use of corporal punishment in public schools was a breach of the parents’ rights to ensure that their children’s education was in accordance with their own religious and philosophical convictions.  That’s right, the case to prevent children from being physically chastised at school was decided on a parents’ rights basis, not a children’s rights one!  Obviously.

The UK and Scottish Governments have subsequently taken various steps to eliminate the use of corporal punishment from schools.  Section 16 of the Standards in Scotland’s Schools etc. Act 2000 imposes a ban on the use of corporal punishment, by removing any such defence in relation to the crime of assault.

So far, so good.  The legislation then goes on to say that anything done for reasons which include averting:

  1. an immediate danger of personal injury to; or
  2. an immediate danger to the property of any person (including the pupil themselves).

… does not count as corporal punishment.

And, that’s it.  That is basically all the law has to say about physical intervention in schools, which is to say almost nothing.  Note that the law does not say that it is okay to do these things, just that they are not corporal punishment (in case anyone was confused).  So what?

Well, corporal punishment is no longer a legal defence to charges of assault against a child (at least insofar as teachers are concerned – the defence of “reasonable chastisement” still exists in some circumstances for parents).  But actions taken to prevent injury to people or damage to property are not corporal punishment.  Which is relevant because they can amount to a defence to a charge of assault.  The law here is essentially a reminder that there is a defence of self-defence (or defence of other people – or property) in some circumstances.  This is subject to all of the usual criminal law rules about taking an opportunity to retreat where available, and ensuring that the level of force used was proportionate.

NB. Massive caveat – I have never done so much as a single day’s criminal law in my life, so my pronouncements on this should be treated with even more caution than usual!

And of course criminal law approaches to this issue mean that a criminal standard of proof applies to any prosecution (i.e. beyond reasonable doubt) – which may be problematic if relying on the evidence of younger children or children with additional support needs.

The use of restraint or seclusion in schools, perhaps as a result, is not often considered by the courts or other legal fora.

Administrative and Policy

One example relatively recently determined by the Scottish Public Services Ombudsman was Case 201607679 (The Moray Council) which is a bit of mixed bag in terms of outcome.  The SPSO determined that the act of restraint itself “was appropriate given the Council’s policy”.  However, the policy had a clear emphasis on avoiding or de-escalating a potential incident – and that staff did not act reasonably in line with their policy to stop the incident taking place.  There is a mixed message here.  The Council could have prevented the need for restraint, but as they did not do so, it was appropriate for them to use restraint against the complainer’s daughter?!

The Ombudsman also found that there had been a failure to document whether the child had sustained any injury following the incident, even though this was required by their own policy.  The Council were asked to provide evidence of the further training for staff which had taken place, and to apologise to the child and her mother.

There have also been a few (unreported) cases on this subject by the Additional Support Needs Tribunals in cases brought in terms of the Equality Act 2010.  The use of restraint or seclusion for a disabled child may amount to discrimination arising from disability (Section 15) where the education authority are unable to show that the treatment was a “proportionate means of achieving a legitimate goal”.

Again, in this context the use (or failure to use) of the correct paperwork has been of significance.  One Tribunal concluded:

There was no proper record of the use of these seclusions kept at any time by the school. Whilst the [education authority] has since devised a new policy which requires that seclusion is a risk-assessed, personalised, reported, recorded and reviewed strategy this policy was not in place when the child was secluded.  The Tribunal were unable to conclude upon what basis the seclusion was used as there are no records of its use, purpose or outcome in respect of it being used for the Child.  In the absence of these safeguards the [education authority] were unable to demonstrate to the Tribunal that the use of seclusion could be justified as proportionate to a legitimate aim in these circumstances.

That is all quite legalese, but what it is basically saying is that without the proper planning, policy and records, it will be difficult to persuade a Tribunal that the use of seclusion on disabled children has been lawful.

Overall, there are some small encouraging signs, but this is set against the backdrop of a system (educational, legal and political) which gives every appearance of valuing teachers above children.

Employees and Employments

For example, the case of Porter v. Oakbank School in 2004 which remains, to my knowledge, the only time that the issue of physical restraint in schools has been considered by the appeal courts in Scotland in terms.  This case involved a teacher at the school who fractured a pupil’s arm while trying to escort him to the “quiet room”, as he had been out of class without permission.

While accepting that an appeal decision is not going to be the best medium for getting a full sense of the facts of the case, it does seem that there was, perhaps, an incomplete understanding of the nuances involved, even allowing for the fact that this was over 15 years ago.

The judgement summarises the context as follows: “The .. school [is] for children with special educational needs. .. The school was accustomed to dealing with disruptive and unruly pupils. The staff received tuition in ‘crisis and aggression limitation and management’ (CALM), a technique for controlling violent or disorderly persons.”  This is a description with which CALM Training may take some issue!

The Court found that there was not sufficient evidence of unnecessary force in this case, and cast doubt on “whether textbook solutions were practicable in the emergency that pupil A had himself created.”  The Court upheld the earlier decision that the teacher had been unfairly dismissed by the school.

Reporting and Responding

It will therefore be interesting to see what response there is to the Commissioner’s report.

The Commissioner found that while children’s rights are referenced in many policies, they are not given meaningful expression in terms of how they should impact on practice.

There was also criticism of the Scottish Government for failing to produce a national policy to ensure consistent and lawful practice, something which groups like Positive and Active Behaviour Support Scotland (PABSS) have been calling for for years.

Several recommendations were made, including:

  1. Local authorities should, as a matter of urgency, ensure that no restraint or seclusion takes place in the absence of clear consistent policies and procedures at local authority level to govern its use.
  2. The Scottish Government should publish a rights-based national policy and guidance on restraint and seclusion in schools. Children and young people should be involved at all stages of this process to inform its development. The policy and guidance should be accompanied by promotion and awareness raising.

All those who are subject to recommendations are required to respond to the Commissioner in writing by 31 January 2019.

Anti-Bullying Policies at School

A recent decision of the Scottish Public Services Ombudsman (SPSO) provides a useful reminder of the importance of schools having and implementing their own anti-bullying policies.

The complaint, against the Highland Council, was that they had failed to ensure that the school attended by the complainant’s daughter had an anti-bullying policy in place. The SPSO upheld the complaint. Although the Council’s own policy was thorough, the Ombudsman found that the school did not have its own policy in place that sufficiently met the requirements of the council’s policy.

The SPSO recommended that the council:

  • apologise to Miss C and Miss A for the failings identified in this case; and
  • reflect on the failings identified and advise us of the actions they will take to address these.

A National Approach to Anti-Bullying for Scotland’s Children and Young People” (Scottish Government, 2010) was drawn up by the Scottish Anti-Bullying Steering Group (SABS) which included representation from a number of relevant public and voluntary sector bodies.

The National Approach adopts a definition of bullying which is focussed on its impact on those experiencing it:

“Bullying can be understood as behaviour which leaves people feeling helpless, frightened, anxious, depressed or humiliated.” (p4)

It sets anti-bullying firmly in the context of GIRFEC and the Curriculum for Excellence, and adopts as one of its key principles:

“We will seek to prevent and tackle bullying, through the development and implementation of effective anti-bullying policies and practices … We will address the needs of children and young people who are bullied as well as those who bully within a framework of respect, responsibility, resolution and support” (p8)

A school’s anti-bullying policy and practice are therefore seen as the main ways in which preventing and tackling bullying is done.

The National Approach is clear that all organisations that work with children and young people should develop and implement an anti-bullying policy.

It goes on to specify that anti-bullying policies should include the following (p9):

  • a statement which lays out the organisational stance on bullying behaviour;
    a definition of bullying, developed through consultation creating a shared understanding between all parties involved;
  • expectations or codes of behaviour and responsibilities for staff and children and young people;
  • preventative and reactive strategies showing what an organisation commits itself to, what strategies it will employ when faced with bullying incidents or allegations and to prevent bullying from happening;
  • clarity on how and how often the organisation will communicate its anti-bullying policy and to whom; and how parents and carers will be informed of incidents;
  • the recording and monitoring strategies that will be used for management purposes; and
  • how and how often the policy will be evaluated to understand how successful and effective the policy is.

By following the National Approach, schools will be best placed to create a strong anti-bullying ethos and to respond effectively to incidents of bullying as they arise.

Image credit: By Alejandrasotomange (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)%5D, via Wikimedia Commons