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Tabitha Cave is a partner at leading education law firm Veale Wasbrough Vizards

Managing allegations

Independent schools have seen a rise in historic abuse claims since Operation Yewtree. Tabitha Cave looks at how schools can best respond

Posted by Dave Higgitt | March 03, 2014 | School life

It was reported in the Times on 20 January that teachers at 130 independent schools have been implicated in sexual abuse allegations. The majority of these allegations relate to historic abuse (in the 1960s-1980s) and with high-profile prosecutions and continued media interest, the "Jimmy Savile effect" shows no sign of abating.

It can be difficult for schools to manage such claims as they often relate to deceased former personnel and to periods for which records have long since been destroyed. It is not safe to rely on a claimant being out of time to bring a claim as limitation periods are often disapplied in such cases.

When an allegation is made

Initial notification of an allegation is not always made through lawyers. It often follows direct contact by a former pupil or by the police following a report of a crime. Sometimes the former pupil will expressly refer to a claim for compensation, but on other occasions their motives are less clear.

How the school responds to this initial contact can influence whether and how the victim takes the matter forward and whether they then pursue claim for compensation. It must be handled sensitively, but in such a way that it does not prejudice the school's position. Below is a suggested plan of action:

Immediate action

Schools should:
* Ensure that the allegations are properly recorded.
* Brief appropriate members of the school's senior management team, trustees or governing body. Given the confidential and sensitive nature of the allegations, schools may wish to inform only key members of the school's senior management team and governing body and set up a "task force" to manage the issue.
* Consider whether the allegation relates to a current member of staff and if so, consider the need to take urgent action to suspend them pending further investigation.
* Contact the school's insurers or brokers. It will usually be the public liability or professional indemnity insurers who insured the school at the time of the alleged abuse which will be on risk for the claim. These are not always easy to identify. In addition to cover for a claim, schools may also have separate cover for legal costs or for the costs of professional advice on reputation protection or critical incident communications.
* Prepare for the allegation hitting the press or social media and draft statements for release if required. These should include statements for the media and separate ones for governors, staff and parents. It is easy to set up internet alerts to monitor press interest and blogging.

Reporting and recording

These could include reports to:
* The local authority designated officer (LADO). Even where the allegations are historic, such allegations should be dealt with in accordance with the school's current safeguarding policy and where appropriate reported to the LADO.
* The Charity Commission. Charitable schools should consider whether historic abuse allegations should be reported to the commission as a serious incident.
* The police. If the victim has not contacted the police, then there is no obligation on the school to report the allegations, but the school should be aware that the LADO and/or victim may do so.

Internal investigations

Before commencing an internal investigation, schools should consider the need to do so and the status of it. Schools are not obliged to accept formal complaints from former pupils but may wish to do so. If a claim is made, then an investigation will be required.

Either way, investigation reports may become discloseable in related civil and/or regulatory proceedings and schools are therefore recommended to seek legal advice before starting an investigation. Lawyers will consider whether it is covered by legal privilege (which could prevent its subsequent disclosure).

Schools should not take steps which could prejudice the investigations of external bodies such as the police and the LADO.

Having considered the nature of the proposed investigation, the school should first check for internal records relating to the alleged victim and perpetrator and ensure these are retained. If they have been disposed of, it is useful to record when this was done.

Dealing with claims

Consider what the victim is looking for and whether this can be achieved without formal proceedings, but bear in mind that schools should not admit liability or say anything that could be construed as such without having obtained the appropriate authority and/or advice.

If a formal letter before action is received, this should be reported without delay to the school's insurers.

Next, schools should consider who is the appropriate defendant, particularly where there has been a change in legal entity or incorporation since the allegation was made as they may simply be able to pass the claim to a different entity.

It may be possible to recover the school's outlay from the perpetrator or their estate, and steps should be taken to preserve the school's position in this respect.

Insurance

Whilst some schools have been able to locate relevant insurers, many cannot. Damages for abuse claims often vary between £50,000-£450,000 and the legal costs of defending such claims and dealing with potential reputational damage are likely to be significant.

It is therefore imperative that adequate insurance records are kept. Employers' liability insurance only became compulsory in 1969, and public liability or professional indemnity cover remains optional. Unless schools can prove that they had insurance in place at the time of the alleged abuse, even if the identity of the insurer is known or suspected, insurers are unlikely to accept responsibility for the claim. Insurance data miners may be able to assist schools with investigations into historic issues.

It is recommended that schools ensure that insurance schedules for each year are retained and that historic insurance records are retained indefinitely.

Tactics

Schools will generally be vicariously liable for the acts (or omissions) of staff, even where staff carry out illegal acts of abuse which were expressly prohibited by the school. Vicarious liability is a principle of strict, no-fault, liability whereby schools are liable to pay compensation and costs for the illegal or tortious actions of staff, even if they were not aware of them.

However, the claimant still has an obligation to prove that their claim should be allowed to continue, that the abuse they complain of took place and that it caused them injury and loss.

If the perpetrator has already been convicted of abuse, then the claimant is likely to be able to establish the abuse complained of, but s/he will still need evidence as to its effects in order to value the claim. This can be arranged without formal court proceedings and in these situations, schools may be best served by entering into settlement negotiations at the earliest opportunity.

Where there is no conviction or the perpetrator is dead, schools will need to consider whether to challenge the claimant's allegations and it is recommended that they seek legal advice.

These claims are tricky as they involve not only a historic claim, but also the need to apply some of the school's current policies.

Tabitha Cave is a partner at leading education law firm Veale Wasbrough Vizards. If you would like more advice or assistance in relation to any of the issues raised in this article please contact Tabitha on 0117 314 5381 or at tcave@vwv.co.uk

 

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