In the wake of the court ruling against Michael Howard, Jerry Bartlett looks at compensation for assaulted teachers. Every year an estimated 16,000 teachers and lecturers are assaulted by parents, pupils or intruders on school premises. Some suffer grievous bodily harm, others experience psychological side-effects that prevent them returning to the classroom.
Unfortunately, it is not normally possible to obtain realistic compensation through the courts. Criminal or private prosecution and civil action against assailants rarely result in adequate compensation. Derisory figures are often awarded after criminal trials because compensation is calculated on the basis of the assailant's resources. Awards resulting from civil claims are unenforceable where the attacker is unemployed or on a low income and has no capital assets.
A teacher's employer can only be successfully sued for compensation for a work-related assault where there is evidence that management negligence exposed the victim to an avoidable hazard.
But again, from the victim's point of view, there is seldom a successful outcome to such cases.
Local education authorities and governing bodies rarely insure the teacher victims of attack on a "no fault" basis, and even where cover is provided it is always inadequate.
Hitherto, where teachers have been permanently disabled as a consequence of incidents in schools, limited lump sum payments and small weekly pensions have been available through the Department of Social Security's Industrial Injury Disablement Scheme, which is now said to be threatened by Government cuts.
For the past 30 years, however, the Criminal Injuries Compensation Board Scheme (CICB) has been the most important source of damages for teachers assaulted at school. The principle behind this scheme has been that victims of crimes of violence should be compensated on the basis of common law damages.
Prior to the Government-imposed changes that took effect from April 1 of this year, the scheme allowed for awards that reflected projected loss of earnings and "post-traumatic stress".
The scheme introduced this spring is, however, based on a tariff system (see box). Ministers argued that the intention was to improve services to all victims of crime, and Home Office minister David MacLean claimed that a "simplified procedure based on a tariff structure offers the best prospects of providing quicker payments to claimants through a means that is fair, straightforward and understandable".
Nevertheless, it has become obvious that the real purpose has been to save money at the expense of crime victims. The Home Office estimated that the annual cost of the original scheme would rise to about Pounds 550 million by the year 2000. Under the Tariff Scheme, the projected cost is less than half that figure (Pounds 225m).
The Tariff Scheme does not permit individual assessment of loss of earnings or other financial losses. There is no separate assessment for post-traumatic stress, case consideration is not based on proper medical evidence, and the right to appeal is much restricted.
Furthermore, it will be much harder to win compensation for an attack by a pupil which leaves a teacher with cuts and bruises - by far the most common sort of incident. Under the old scheme, the National Association of Schoolmasters Union of Women Teachers managed to secure Pounds 1,000 compensation for a teacher in an EBD (emotional and behavioural difficulties) school who was left with a black eye after being assaulted by a pupil. No medical treatment was needed, but a photograph of the man's black eye was submitted to the CICB, and it was agreed that an award should be made.
This could not happen under the new rules, because to qualify for a payment for such injuries the claimant must have sustained at least three separate types of injuries, at least one of which must still have had significant residual effects six weeks after the incident. The injuries must also have necessitated at least two visits to, or by, a doctor within the six-week period.
The NASUWT has therefore joined a range of other unions and organisations, including the Police Federation, in the Campaign for Victims' Rights. It was also one of the 10 trade unions which, together with the TUC, secured the November 9 Court of Appeal declaration against the Home Secretary, Michael Howard, which stated that he had acted unlawfully in implementing the Tariff Scheme in abuse of his prerogative or common law powers.
The campaign has exposed ministers' worrying ignorance on the predicament of teachers who are left disabled. One NASUWT officer received a letter from Home Office Minister David MacLean claiming that ". . . generous long-term help is available from the National Health Service and the Department of Social Security. Many claimants also benefit from occupational pensionssickness schemes."
In fact, teachers only get assistance from their pension scheme where they are so severely disabled that they have to give up work. In these circumstances, pension entitlement is calculated on the basis of the individual's service contribution record, irrespective of the needs arising from the assault.
Following the Court of Appeal ruling, there are three options available to the Home Secretary. He could agree to hold discussions with representatives of victims of crimes of violence on the best method of compensating them.
Alternatively, he could appeal to the House of Lords or introduce legislation seeking to establish the Tariff Scheme on a lawful basis. We await developments with interest. Meanwhile, the NASUWT will continue to campaign for a system of adequate compensation for teachers who are assaulted at work.
Jerry Bartlett is a legal officer with the NASUWT.
How the new rates will differ Case 1: Mr A, a deputy headteacher, was shot by a former pupil and suffered shotgun wounds to the face and neck. These healed without scarring, but some pellets are still embedded in his body and he has experienced psychological trauma. At a Criminal Injuries Compensation Board hearing, a solicitor instructed by the NASUWT submitted reports from a surgeon and a psychiatrist. He also pointed out that Mr A had been unable to apply for headships during his convalescence.
Award obtained under CICB Scheme : Pounds 12,500 (Pounds 2,250 for the injury plus Pounds 10,250 for loss of potential earnings because of delay in promotion).
Maximum award available under Tariff Scheme: Pounds 1,500 Case 2: Mrs B, a maths teacher, was assaulted by a violent pupil during her lesson. The boy took hold of her hand with both of his and snapped her finger as if breaking a stick. The fracture was treated with manipulation under anaesthetic, but she has suffered discomfort and loss of feeling.
Award obtained under CICB Scheme: Pounds 7,200 (Pounds 4,700 for the injury, together with Pounds 2,500 in relation to psychological problems caused by the assault).
Maximum award available under the Tariff Scheme : Pounds 1,500
What you could expect to receive The Tariff Scheme will pay: Partial deafness..........Pounds 3,500 Fractured ankle (full recovery)......... Pounds 3,000 Punctured lung........... Pounds 3,000 Dislocated jaw........... Pounds 2,000 Head (scarring visible, but no significant disfigurement)....Pounds 1,500