Pengggwn
IMO, it comes under a teacher's duty of care to a pupil, per the NUT:
"Teachers’ Duty of Care to Pupils
- Teachers are required to do all that is reasonable to protect the health, safety
and welfare of pupils. Their legal responsibilities derive from three sources and
this section considers each of the three:
the common law duty of care;
the statutory duty of care; and
the duty arising from the contract of employment....
Teachers have a duty of care to pupils which derives from the ‘common law’. The
‘common law’ is law developed through decisions of the Court as opposed to law
which has been determined by Parliament and set down in statute.
- Traditionally, the term ‘in loco parentis’ was used to describe the duty of care
that a teacher has towards a pupil, to the effect that a teacher has a duty to take
the same reasonable care of the pupil that a parent would take in those
circumstances. ‘In loco parentis’ originally embodied the nineteenth century
common law principle that a teacher’s authority was delegated by a parent so far
as it was necessary for the welfare of the child. A court held, in 1893, that “the
schoolmaster is bound to take such care of his pupils as a careful father would”....
A breach of the duty of care by a teacher could amount to common law negligence....
Negligence could also arise if there is a serious failure to prevent harm to a child
arising from, for example, pupil bullying."
IMO, leaving a child, who a class teacher can see, is struggling in class, due to what looks like undiagnosed SEN, while the SENCO tells the parents that they won't get an EHC plan, as the child is not two years behind (when it does not say this in the Children and Families Act 2014 or the SEN CoP); is a serious failure to prevent harm.
"The Statutory Duty of Care
14. Teachers are also responsible under the Children Act which places statutory
duties upon those who care for children.
15. The Children Act 1989 Section 3 (5) defines the duty of care to the effect that a
person with care of a child may do what is reasonable in all the circumstances for
the purpose of safeguarding or promoting the welfare of the child.
16. When issues arise concerning safeguarding or promoting the welfare of children,
teachers should take into account the ascertainable needs and wishes of the
children as individuals, considered in the light of their ages, understanding and
any risk of harm....
Health and Safety at Work
35. The main responsibility under the Health and Safety at Work etc Act (HSWA)
1974 rests with employers, who have to take reasonable care for the health and
safety of their employees and others on their premises. Employers are required
to organise, control, monitor and review how health and safety measures are
managed. They must assess risks, record their assessments of risks and inform
employees of safety procedures. All schools, academies, free schools and colleges
should have written health and safety policies in place, of which all employees,
including teachers, should be informed. Furthermore, Section 2 of the HSWA
requires employers to consult with safety representatives on health and safety
matters.
36. The duty on employers includes taking reasonable care for both the physical and
mental health of their employees. This means that employers should assess the
risks to teachers of excessive workload, pupil behaviour and the conduct of other
staff.
37. All employees have a duty under the Act to take reasonable care for the health
and safety of themselves and others who may be affected by their acts or
omissions at work. Thus, teachers have a duty to take reasonable care of both
their own and their pupils’ health and safety at school (Section 7 of the HSWA)."
It is entirely foreseeable that failing to ensure that a child's SEN are assessed and addressed will impact on their mental health.
"If Child Abuse is Suspected
58. Child abuse is widely defined, but may include physical abuse; emotional abuse,
which is the persistent emotional maltreatment of a child such as to cause severe
and persistent adverse effects on the child’s emotional development; sexual
abuse, which involves forcing or enticing a child or young person to take part in
sexual activities, including prostitution; and neglect, which is the persistent
failure to meet a child’s basic physical and/or psychological needs, and is likely to
result in the serious impairment of the child’s health or development.
59. Teachers are not responsible for investigating suspected abuse but should know
to whom they should report any concerns. It is the responsibility of the
designated teachers to discuss cases with, or refer cases to, the investigating
agencies, which are social services departments and the police. All schools,
academies and colleges should have procedures, of which all staff should be
aware, for handling suspected cases of abuse of pupils or students. The school,
academy or college child protection policy should also be made known to parents."
Is failing to make reasonable adjustments for say a child's autism "persistent
failure to meet a child’s basic physical and/or psychological needs, and is likely to
result in the serious impairment of the child’s health or development."?
I would say its psychological abuse?
IMO, any teacher who says they can't tell parents about the SEN charities, is failing in their duty of care to a vulnerable child, and is clearly a jobsworth, citing "gross misconduct" - exactly the sort of teacher, parents of SEN children are complaining about!