The abuse team at Leigh Day have recently reached an out-of-court settlement on behalf of a 16-year-old boy with Autism and Down’s Syndrome whose family allege was subjected to excessive and unreasonable physical restraint at a private residential school for children with learning disabilities.
The boy, known only as ‘B’ to protect his anonymity, was placed at the school by his local education authority when he was aged nine and he remained there for two-and-a-half years.
The school, which has since closed down, was for children with moderate to severe learning disabilities and communication difficulties, many of whom could also display challenging behaviour.
B suffers from various physical difficulties as a result of his disabilities, including a congenital heart defect and hearing impairment, and has limited communication abilities.
His parents are also concerned he may suffer from atlantoaxial instability (neck instability) due to his Down’s Syndrome, meaning he may be at increased risk of serious injury if pressure is applied to his neck.
During his placement at the school, B was repeatedly restrained by members of staff and, on many of these occasions, it is alleged that the restraint used was excessive and unreasonable. This included ‘ground hold’ restraints where he was held on the floor.
During the course of the legal action, the private Trust which ran and operated the school entered into voluntary liquidation and was dissolved.
This made it difficult to obtain B’s complete educational records from the school, but even on the basis of the limited records available it was revealed that B may have been subjected to over 300 physical restraints, including up to 52 ground hold restraints.
Some of these restraint incidents were recorded to have lasted as long as 32 minutes and, on many occasions, it was recorded that B also suffered physical injuries, including carpet burns, scratches and bruising.
Whilst B was still at the school, Ofsted undertook an unannounced inspection and found that the management of challenging behaviour was not effective.
It was noted that a high number of restraints were used by staff and that they were not adequately monitored. The school consequently received an ‘inadequate’ rating for pupils’ behaviour and personal development; pupils’ welfare, health and safety; and leadership and management, and was required to make improvements.
As a result of their concerns, and as they did not feel assured that the school could safeguard their son, B’s parents ultimately decided to withdraw him from the school.
B’s family, represented by Alison Millar and Kate Whiting from the Abuse Team at Leigh Day, brought a legal action against the private trust on his behalf alleging negligence and breach of his human rights under Article 3 (the right not to be subjected to inhuman or degrading treatment) and Article 8 (the right to respect for private and family life).
The team at Leigh Day obtained supportive liability evidence from an independent social work expert, who was of the view that the treatment provided to B at the school was negligent and that many of the restraints used were excessive and disproportionate.
Although the medical expert instructed by Leigh Day was unable to formally interview B due to his disabilities, when he met with B he was nonetheless of the view that he appeared to be suffering from symptoms of Post-Traumatic Stress Disorder which continued when B was placed at a new school.
At home, B’s parents were also particularly distressed to witness him repeatedly placing himself on the floor, something they had not seen him to do before.
They were very concerned that B may have been re-enacting the restraints that had been used on him at the school and reported that he would place his hands over his eyes; drop to the floor on his knees; or crouch and place his hands over his eyes.
The Defendant made no admissions of liability in the claim but agreed to make an award of damages to our client. His family intend to use this for specialist therapeutic support for B and to help him settle into a supported living placement when he reaches 18.
As B is unlikely to ever have the capacity to manage his own financial affairs, it has been agreed by the Court that his compensation may exceptionally be paid into a Personal Injury Trust managed by his parents, to ensure B has immediate access to the funds and in accordance with his best interests.
Kate Whiting from the Abuse Team at Leigh Day, who with Alison Millar represented B in the legal action, said:
“Our client, who is an extremely vulnerable young person, was placed in the care of a specialist institution which was specifically for children with learning disabilities. Whilst at that institution, he was subjected to repeated physical restraints and sustained numerous physical injuries.
“Our client’s parents feel deeply let down by the care that was provided to their son at this specialist school, and it seems clear to us that both our client and his family have been greatly affected by what happened to him there.
“Sadly, in our experience, there are many cases where people with a learning disability or autism, and who may display behaviour that challenges, are subjected to poor treatment in supposedly specialist institutions, whether that be a school, hospital, care home or other residential setting.
“Furthermore, whilst there are undoubtedly a range of views and approaches on the use of restrictive physical intervention, when its use is not properly recorded, monitored and assessed, there is a real risk that it becomes routine; is not used in exceptional circumstances only; and may be used in a disproportionate and abusive manner.
“In B’s case, I am very pleased that we have been able to reach a resolution for him and his family and hope that, with the damages award he has received, he will be able to access the specialist therapeutic support that he now needs.”
B’s family said:
“We are indebted to the Abuse Team at Leigh Day and can’t speak highly enough about the way Alison Millar and Kate Whiting have handled our son’s case.
“We have gained closure, acknowledgment and some practical financial leverage for therapy for him. While the case was long running and protracted, Alison and Kate were clear about this from the start and their expert advice, honesty and timely liaison has been first class. We couldn’t recommend them enough for any other family who might find themselves in the position we did.”