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Legal avenues, cul-de-sacs, and highways

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Our investigations team has tried its best to understand what happened to TNS in legal terms so that everyone who may wish to bring an action against those responsible is aware of the potential transgressions that took place.

No-one is in any doubt that there was a huge injustice, but defining and understanding what that was is proving to be problematic because of the number of offending parties involved, and the legal complexities that will arise in proceeding with action under different areas of the legal system.

So far we have tended to focus on ‘negligence’ and the failure of the Care Inspectorate and others to exercise a duty of care towards those affected by their decisions.

The Care Inspectorate had a duty of care because it was regulating TNS at the time of closure and its decisions had a huge impact on the functioning of the service, and on the wellbeing of young people, their families and TNS staff.

The Board of Governors had a similar duty of care because their decisions had a critical impact on the same individuals, whilst the Witherslack Group had management responsibility for the school and were thus similarly obliged to exercise their powers in a way that was fair, proportionate, and justfiable.

Recent consultation with legal experts has opened-up a new and perhaps more effective approach to unravelling the whole saga; that of Administrative Law and the expectation that those in positions of authority behave according to certain standards enshrined in Public Law.

From our own efforts in digging-through the mountain of FOI documentation, we would have to conclude that there were serious failings in the way that the Care Inspectorate and Education Scotland acted throughout the whole affair.

Clear evidence exists of malpractice, a lack of equity in decision-making and advice, and disproportionality.

We are onto it.

Not just because we have an axe to grind ourselves but to protect other organisations and other individuals from the huge injustice that took place in November last year.

But this perspective may also be of interest to the school’s insurers who currently face huge costs in settling the actions being brought by members of staff who were so unfairly treated by the sudden closure of the school.

If it can be shown, as we believe it can, that the Care Inspectorate acted illegally in issuing an improvement notice when there was no evidence of wrongdoing, and that this had the effect it did in causing the school to close, then the financial costs which resulted may fall to the inspectorate and not to the insurers. Rather than battling against staff to reduce their own liabilities, the insurers may themsleves decide to pursue action against the inspectorate and any others who hold responsibility for what happened, and thus become not an adversary of good people simply trying to get some element of justice, but a powerful ally.

We shall wait and see.

For guidance on the legal obligations of public bodies, please click here.

Bill Colley