Human rights trends in claims against local authorities
Simon Johnson examines an increasing trend for claimants to place reliance upon Articles 3, 5 and 8 of the European Convention on Human Rights (ECHR) in claims against local authorities. In particular, Simon looks at two specific sets of circumstances: children with complex needs associated with autistic spectrum disorder (ASD) being allegedly subjected to excessive use of restraint and seclusion at school; and children being held in police custody following charge but prior to trial, not being placed in secure local authority accommodation as an alternative to police custody.
Schools: excessive restraint and seclusion
All public bodies in the UK must ensure that legislation, procedures and regulations are compatible with Convention rights. Article 3 of the ECHR provides that no person should be subjected to torture or inhuman or degrading treatment or punishment. Within any school setting this may include disciplinary exclusion from school, other disciplinary measures and detention as a sanction or disciplinary measures for poor behaviour. Article 3 is an absolute right and cannot be infringed under any circumstances.
We have seen an increase in the number of claims brought on behalf of schoolchildren, where they have allegedly been subject to excessive restraint and/or seclusion which is alleged to constitute a breach of their Convention rights under Articles 3 and 5. Article 5 provides that everyone has the right to liberty and security of person except in a number of defined circumstances.
People with autism sometimes behave in ways that others can find challenging and which, on some occasions, may be dangerous, potentially resulting in harm to the person displaying the behaviour, peers, staff or the public.
A restrictive physical intervention (RPI) is typically defined as a:
"Physical force to prevent, restrict or subdue movement of a person's body or part of their body which is not physical assistance or physical guidance".
Seclusion is the supervised containment of a person in a room, which may be locked, to protect others from significant harm. It is a form of restraint and should only ever be used as a last resort when there is an immediate risk of significant harm to others.
Some local authorities, such as Devon County Council, issue guidance on the use of reasonable force to control or restrain pupils. The guidance also includes a specific section aimed at schools for children with severe and/or complex learning difficulties, including autism. In their guidance note, Devon County Council recognises that:
"The complexity and range of need and consequent support for children and young people in SLD schools may be such that physical intervention is the norm and not the exception."
The policy goes on to give examples of low, medium and high level intervention in such settings.
It is unlikely that a claim founded on an alleged breach of Article 3, within the context of a school setting, is likely to meet the threshold of torture or inhuman treatment or punishment. Theoretically, treatment must reach an intense level of severity for a challenge under this provision to succeed.
The threshold for degrading treatment is lower, however, and such treatment might arouse feelings of fear, anguish and inferiority capable of humiliating and debasing the victim. Excessive restraint could cross the threshold here. The conduct complained of must involve a minimum level of severity. Whether it does so, will depend on the specific circumstances of the case, including the age and health of the victim. In general, the more vulnerable the victim, the more likely it will be that the threshold will be met.
It is often alleged that no consent was obtained from the pupil's parents for the use of seclusion and/or restraint or no proper behavioural plan, risk assessment or monitoring and reviewing arrangements were in place or – and the argument can be compelling - that the right to respect for private and family life set out at Article 8 has been infringed by the failure to obtain informed consent from the Claimant's parents.
The value of a claim for damages in such cases will be typically considerably less than the amount of costs the Claimant's solicitors will contend for at the conclusion of the claim. Often, such claims receive public funding and, to the extent that the claims involve an element of personal injury (it is frequently alleged that pre-existing conditions have been exacerbated by the use of excessive restraint and/or seclusion), then the application of Qualified One Way Costs Shifting would mean that even in the event of a successful defence, the Defendant's costs would not be recoverable.
From a risk management perspective, we strongly recommend that all local education authorities should seek to ensure full consent is obtained from the parents of the children for the reasonable use of seclusion and/or restraint and ensure that an adequate behavioural plan is in place together with an accessible policy, properly applied by adequately trained staff.
Children held in Police Custody
Where children are arrested and detained in police custody an important issue arises for the relevant local authority, notably the question of what duty is owed by those local authorities to provide "secure accommodation" for arrested juveniles whom they are requested, usually by the Custody Sergeant, to receive under section 38(6) of the Police and Criminal Evidence Act 1984.
Such cases are likely to include an allegation that the rights to liberty and security (Article 5) and to privacy and family life (Article 8) have been infringed by the public authority, although such arguments would be susceptible to challenge.
There can be a presumption amongst Custody Sergeants that the nature of the offence with which a child has been charged is sufficiently serious to meet the threshold criteria for a request for the provision of secure accommodation to be made of the relevant authority. Most local authorities do not have secure children’s homes. Without a change in national funding it is very unlikely that local authorities will ever have the resources to be able to build and staff a secure accommodation unit. Local authorities frequently purchase beds in privately managed secure units.
It is incumbent on all local authorities to have in place a reasonable system to enable them to respond to requests under section 38(6) for secure accommodation. However, the local authority is not under an absolute duty to provide secure accommodation whenever it is requested by a Custody Officer. In R(M) v Gateshead MBC , Dyson LJ said that:
The Court should be slow to strike down as unlawful arrangements that have been made by local authorities. In my view, they should do so only if satisfied that an authority has made no arrangements at all, so that they can never provide secure accommodation when it is requested, or where the arrangements that have been made are ones that could not have been made by a reasonable authority, mindful of the need to avoid having children detained in Police cells, if at all possible.
The key message for local authorities is that once the Custody Sergeant makes the assessment that secure accommodation is required, they must decide what arrangements to make to provide such accommodation when it is requested by the police.
We are aware of one law firm, in particular, which has made Freedom of Information Act requests of all London local authorities seeking details of their policies and procedures in place for dealing with requests from Police for the provision of secure accommodation for children who would otherwise be held in custody. We would encourage insurance and risk managers of our local authority clients, particularly bearing in mind the potential for such a claim to fall upon the insurance fund and if it is also alleged that a breach of a Convention right has occurred, to examine their existing policies and procedures for dealing with requests for secure accommodation received by local Police forces and ensure they are compliant with the statutory framework.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.