As the government moves to stem the problem of bullying and £8m in claims are being pursued, Mark Blois says insurance should perk up

As the summer holidays end and school term begins the problem of bullying may start making headlines again. This week the government announced its latest effort to manage the problem with Tell Someone - an information film for children, designed to reinforce the message that bullying is unacceptable and to encourage victims of bullying to "tell someone" who can help.

While new phenomena such as "cyber bullying" (where bullies exploit mobile phone and internet technology to achieve more secretive and insidious ways to torment) arise, there is no reason to think that bullying itself is actually any more common than before. Two things, however, are clear.

First, that public awareness of this problem has increased significantly in recent years, culminating in the saturated coverage of this summer's tragic spate of bullying-related suicides. Second, bullying remains a cause of anxiety and distress for significant numbers of pupils, affecting both their physical and psychological well-being and their capacity to learn.

Given this background, claims for damages relating to school bullying are inevitably increasing . A recent survey carried out by The Observer estimated that there are presently £8m worth of bullying claims being pursued in the courts. Clearly there is good reason for the insurance and public risk sector to become interested in the risk management agenda created by school bullying claims.

While an anti-bullying policy is arguably still the single most important thing that a school must have in terms of preventing both bullying and claims relating to the same, it can be predicted that more will be required of schools and local education authorities (LEA) in the near future.

Fresh efforts
Concern has been expressed by a number of organisations in recent months that despite policy-orientated initiatives, the problem of bullying has persisted. In short, despite government urging people not to "suffer in silence", that is exactly what significant number of pupils continue to do. This has prompted calls for fresh efforts to be made to address the problem and these calls can be expected to have a significant effect upon the risk management agenda for school bullying over the next few years.

Research into bullying by charity Childline found that there was no single factor that made one school more likely to have a bullying problem than others. Instead, the key issue was whether a school enabled children to feel they could talk to teachers and that they in turn would take effective action to stop the bullying. Critically, Childline's research found that more than two-thirds of secondary school pupils said that they would not feel comfortable talking to a teacher about being bullied, and expressed concerns that they would not be taken seriously or would suffer reprisals as a result.

Such research suggests schools should place an emphasis on a "bottom-up" rather than "top-down" approach to bullying. While top-down can be flawed to the extent that it fails to take sufficient account of the reality of a child's social world, the bottom-up approach adds in the involvement of pupils in decision-making at an individual and school-wide level. It looks to devise systems to minimise the risk involved in pupils telling teachers about bullying, including making confidential sources of advice and support more widely available.

Positive action
It appears to be this theme that the government has started to pick up on its information film and which is also likely to be central to the "anti-bullying charter" which it proposes will now be developed in partnership with an alliance of professional associations and voluntary organisations to help schools check that they are doing all they can to tackle bullying. Certainly, education minister Ivan Lewis has previously stated his intention to issue new guidance to schools and LEAs looking at ensuring better communication between victims and teachers and specifically on holding consultations with pupils with a view to ensuring that the act of reporting bullying does not rebound upon the victim.

It is, of course, true that a failure to implement such an approach, whether promoted by the government or other agencies, will not be the basis of a finding of negligence. For the immediate future such strategies will represent best practice, rather than the reasonable standards of care of the day. This point was emphasised in a recent High Court judgment (Faulkner and Faulkner v Enfield London Borough Council and Lea Valley High School, November 2002) which found that the government's guidance in this area, in the shape of Don't Suffer in Silence, was designed to assist schools in developing their systems to mirror best practice and was not be considered to be "a prescriptive list to be used as a stick with which to strike schools developing their own approach to these matters".

Indeed, judgments to date have shown the courts to be generally sympathetic to the pressures upon education professionals and appreciative of the difficulties involved in eradicating bullying. To the writer's knowledge, there has to date been only one bullying claim taken successfully to trial (Cotton v Trafford Borough Council) in which the claimant was awarded only £1,500

The problems inherent to this type of claim were emphasised in the case of Bradford Smart v West Sussex County Council, where in finding for the defendant (LEA), one of the points stressed by the Court of Appeal was that in bullying claims it is necessary to both identify fairly precisely any breach of duty and the likely effectiveness of steps proposed by the claimant and whether they would actually have been effective in preventing the bullying. The Court of Appeal had expected these would be evidential obstacles for claimants to overcome in making out their claims.

However, research that in time is likely to be the impetus behind developments in the necessary standard of care, can also be seen to be acting to deconstruct some of those evidential obstacles.

For example, Kidscape, a national charity dedicated to preventing bullying and the sexual abuse of children, recently published the results of a three-year pilot study of bullied children aged between eight and 15 who took part in a one-day assertiveness course. It was found that the type of intervention offered by assertiveness training can dramatically reduce bullying, self-harm and reduce suicide rates.

The results of the research showed that 79% of the 750 participants in the study were no longer bullied after taking part in a one day assertiveness course, 80% were bullied less and 90% felt more able to deal with bullying.

As this kind of information is disseminated to schools, a body of empirical evidence is fast developing as to the effectiveness or otherwise of particular anti-bullying strategies. That evidence is likely to be referred to in bullying claims as evidence that positive actions by schools do make a difference in terms of combating bullying. Certainly - as such research proliferates - it can be expected that it will become easier for claimants to identify a causal connection between the breach of duty and their alleged injury as demanded by the Court of Appeal in Bradford v Smart.

While it remains to be seen what specific strategies will be in the government's forthcoming anti-bullying charter, the current risk management agenda is one that recommends that schools and LEAs take the initiative in encouraging a culture of openness and reporting among their pupils.

Those who take it upon themselves to meet this challenge are likely to both minimise the existence of bullying in their institution and limit the risk of facing claims relating to bullying and be in the strongest position to defend themselves against any claims that do arise.

  • Mark Blois is an associate at Browne Jacobson