Ticket to ride
There is a stampede on the school bus. A child is hurt. Is the school responsible? To answer the question we must distinguish between power and responsibility.
A head has the power to discipline pupils outside the school grounds; particularly where the pupils are under supervision (eg on a school trip, whether to Skegness or Vladivostok).
This power is not limited to trips. If the behaviour of pupils out of school affects the reputation or discipline of the school, a head may take action - even when pupils are not under direct supervision or are off the school site.
However, the power to discipline is a very different matter from responsibility for pupils' behaviour, and hence for their safety, off the school site.
In fact, responsibility for behaviour on school buses and, consequently, buses used for home to school travel, is quite clear.
"Legally the bus driver is responsible for managing passenger behaviour," stated the House of Commons Transport Select Committee in its report on home to school travel.
The DfES website, under 'home to school travel', states: "Schools are only responsible for safety on the school journey where they have specifically arranged transport."
For example, in the case Bradford-Smart v West Sussex County Council, a mother claimed that the school was negligent in failing to protect her daughter from bullying off the school site, among other places, on school buses.
The Appeal Court held that the school could not be held responsible. In the words of the judgement: "The school does not have the charge of its pupils all the time and so cannot directly protect them from harm all the time.
"At a day school, that charge will usually end at the school gates... the school cannot owe a general duty to its pupils, or anyone else, to police their activities once they have left its charge.
"That is principally the duty of parents and, where criminal offences are involved, the police...(anything a school does) is a matter of discretion rather than duty."
In other words, a school can take disciplinary action if a pupil misbehaves and brings the school into disrepute or if actions on a school bus may affect pupils in school.
A head can use his or her discretion - but it is discretion and not duty.
It is the responsibility of the LEA to provide transport. It could be argued that the LEA has an implied obligation to take reasonably practical steps to ensure that this transport is safe.
This requirement for safety could extend to ensuring that 100 children are not left entirely unsupervised for an extended period with nothing to do but to amuse themselves in any way they see fit.
Should schools organise bus loading outside the school gates? SHA's view is that they should not. However, it is different if the buses are loaded within the school grounds.
To supervise bus loading outside the school is to assume a duty of care. This could then expose the school to action for a breach of the duty of care it has assumed.
This would not prevent supervision up to the gate and action to discipline pupils who misbehave, or disregard the actions of bus supervisors, beyond it.
LEAs are well advised to provide a proper area for loading pupils within the school grounds.
Does the school have power to regulate over other forms of transport? Some schools, for example, make rules about motorcycles and bicycles.
A school can certainly take action over foolish or dangerous behaviour outside the school. However, it should be wary of any implied control or approval that may lead to a duty of care over the journey to school itself.
It can certainly ban motorcycles from being brought on to school premises and the police may have a view as to whether they should be parked en masse outside the school gates.
Schools cannot be responsible for everything and the courts recognise this. We should be very wary of assuming duties of care that the law does not require us to.
It is unusual for heads to find that they have 'power without responsibility'. It is usually the other way round.
By Richard Bird, SHA's legal consultant
© 2013 Association of School and College Leaders