Disclosure and Barring Service - January 2014
The Disclosure and Barring Service has recently reminded all users that it is an offence to request a check of the barred lists for a role that is not eligible for one.
The Disclosure and Barring Service has recently reminded all users that it is an offence to request a check of the barred lists for a role that is not eligible for one. There is frequent confusion between criminal records checks and barred list checks, as each are administered by DBS and are covered by a single form (question 64 asks the counter signatory “are you entitled to know whether the applicant is barred from working with children?”, which is the trigger for a barred list check). Please see the DBS’s publication and a useful e-guide.
Liability of independent schools for negligence of third parties
ISC have been approached by a number of schools concerned about the implications of the Supreme Court decision last October in Woodland v Essex County Council. The case involved a 10 year old schoolgirl who suffered severe brain damage during a swimming lesson organised by her maintained school but provided and supervised by a swimming teacher and a lifeguard, neither of whom was employed by the school or by the Local Authority. The Supreme Court decided that the school/Council had a “non-delegable duty of care” and would be liable for the negligence of these independent contractors.
Our view is that the implications for independent schools are limited for the following reasons:
- The Supreme Court explicitly considers the position of ‘fee paying schools’ and notes that, under similar circumstances, an independent school would be liable under the contract between the school and the parent. Indeed, one rationale for imposing liability on the Local Authority is stated to be the desirability of aligning the position of state schools with independent schools.
- The Supreme Court sets out what it describes as ‘important limitations’ on the range of matters for which schools might assume a non-delegable duty:
“They are liable for the negligence of independent contractors only if and so far as the latter are 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 functions). In the absence of negligence of their own, for example in the selection of contractors, they will not be liable for the negligence of independent contractors where on analysis their own duty is not to perform the relevant function but only to arrange for its performance. They will not be liable for the defaults of independent contractors providing extra-curricular activities outside school hours, such as school trips in the holidays. Nor will they be liable for the negligence of those to whom no control over the child has been delegated, such as bus drivers or the theatres, zoos or museums to which children may be taken by school staff in school hours”.
The impact of the ruling is therefore limited to schools which contract out part of their core educational offering to third parties: they will not in future be able to avoid liability for negligent performance by these third parties. Schools with particular concerns should contact their insurers for information, including exclusions and indemnity limits, regarding particular activities provided or arranged by the school.
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