Case Summary: Sam Sebastian
Feb 14, 2021CASE SUMMARY
Sam Sebastian was an 18-years-old student at West Gate School, which takes on the educational responsibility for around 200 children aged 4-19 years old who have a range of complex needs and/or disabilities (Snow, 2019).
Sam was a student with Angelman syndrome, cerebral palsy, epilepsy, a severe developmental delay, and was, at the time of the incident, non-verbal. He needed assistance to walk and required one-to-one supervision during several activities, including when using the hydrotherapy pool for physiotherapy (Owen, 2017).
On Wednesday, 27 January 2016, Marilyn Smith and Eileen Coull, teaching assistants at West Gate school, were placed in charge of supervising Sam whilst using the on-site hydrotherapy pool for physiotherapy (BBC News, 2017). Ms Smith got into the water with Sam, and Ms Coull supervised from the pool surround (Snow, 2019). Sam was using a rubber ring to float in the pool. At some point during the session, Ms Smith and Ms Coull became distracted, and Sam slipped out of his swimming ring and submerged for 90 seconds (caught on CCTV) before he was rescued by Ms Smith (Snow, 2019).
Sam had suffered a cardiac arrest induced by drowning and required resuscitation at the poolside, which was commenced by Ms Smith and Ms Coull (BBC News, 2016). He was taken to the Leicester Royal Infirmary by paramedics, where he remained for nine weeks as doctors fought to protect Sam from numerous chest infections progressing to pneumonia (Owen, 2017; BBC News, 2017). Sam had incurred significant neurological damage during the 90 seconds that his brain was deprived of oxygen as he was submerged below the water. He was then transferred to a specialist brain injury unit at Leicester General Hospital (ITV News, 2016). It took four months following the incident before it was safe for Sam to return home (Snow, 2019).
Response to the incident
Simon Osborne, joint vice-chair of governors at West Gate, said (Owen, 2017; ITV News, 2016):
A number of changes have been made at West Gate since this tragic incident, including changes to the governing body. There is also a new policy in place around the operation of the swimming pool. We have three lifeguards on duty and every student has an allocated worker while they are in the pool.
Under the new headteacher we are now focusing on moving forward as a school community, with the safety of our students absolutely paramount to everything that we do.
Investigation
Ms Smith and Ms Coull were immediately suspended following the incident, pending the completion of an internal investigation conducted by the school (ITV News, 2017). An investigation was conducted by Leicester City Council's Adult Safeguarding Board (ITV News, 2016). The Police and HSE also immediately began their own investigations. Ms Smith and Ms Coull were immediately involved in no less than four investigations by four separate bodies.
Charges
Mrs Smith and Mrs Coull were both charged with breaching s.20 CJCA 2015 and s.7(1) HSWA 1974 (ITV News, 2016; Owen, 2017).
About the charge s.20 Criminal Justice and Courts Act 2015 (the “Care Worker” offence)
In response to the public inquiry into Mid-Staffordshire NHS Foundation Trust led by Sir Robert Francis QC, the Government set about creating an offence relating to the ill-treatment or wilful neglect of a person in care who has capacity. There were already offences for the ill-treatment and wilful neglect of patients with a mental disorder (s.127 Mental Health Act 1983) and those who lacked capacity (s.44 Mental Capacity Act), and for children in certain circumstances (s.1 Children and Young Persons Act 1933). There was no equivalent offence for those being cared for with full capacity, and so two new offences were created (s.20 and s.21 Criminal Justice and Courts Act 2015).
The first, s.20 CJCA 2015 (the “Care Worker” offence), set out the following:
It is an offence for an individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully to neglect that other individual.
"Care worker" is defined (s.20(3)) as meaning an individual who provides health care for an adult or child or social care for an adult as paid work. s.20 is an either-way offence punishable by up to five years imprisonment on indictment or not exceeding 12 months on summary conviction. The criminal sanction available to the court is, therefore, higher than it is under s.7 or s.37 of the HSWA 1974.
The second offence, s.21 CJCA 2015 (the “Care Provider” offence), set out the following:
It is an offence if an individual who has the care of another individual by virtue of being part of a care provider’s arrangements ill-treats or wilfully neglects that other individual.
There are three elements to the offence:
The individual must have a relevant duty to care for another individual by virtue of being part of the care provider’s arrangements (s.22(3) and s.21(4) provide further details on that definition).
The breach of that duty must arise from the way the care provider’s activities are managed or organized.
The breach of duty must be gross (s.21(6)).
But for the breach of duty, the ill-treatment or wilful neglect would not have occurred or would have been less likely to occur.
The sanction available to the court for a breach of s.21 is a fine, publicity order, or remedial order. The s.21 offence was closely modelled on the Corporate Manslaughter and Corporate Homicide Act 2007. In this case, Marilyn Smith and Eileen Coull were charged with a breach of s.20 CJCA 2015. The School was not charged with s.21 or any other offence.
R v Marilyn Smith and Eileen Coull (2017) (Unreported, 13 July, Leicester Crown Court).
Marilyn Smith and Eileen Coull appeared at Leicester Magistrates Court in 2016, charged with a breach of s.20 CJCA 2015 (wilful neglect of individual under their care). They pleaded not guilty to the charge. They were remanded on unconditional bail to appear at Leicester Crown Court for trial at a later date (ITV News, 2016).
The defence applied to the prosecution to reduce the s.20 CJCA 2015 charge to an s.7(1) HSWA 1974 charge. The CPS granted permission to reduce the charge to s.7(1) on the condition that the two defendants pled guilty to the new charge (BBC News, 2017; Owen, 2017). There are various grounds on which a prosecutor is permitted to make such a decision, including (a) no material difference to the likely sanction to be imposed and (b) information has come to light which demonstrates it is no longer in the public interest to proceed with the original charge (c) lack of evidence to demonstrate an element of the offence and various others. A prosecutor must seek the permission of the CPS before agreeing to revise the indictment and can do so at any time prior to judgment being given.
Ms Smith and Ms Coull appeared at Leicester Crown Court on 5 July 2017, where they pled guilty to the s.7(1) HSWA 1974 charge for failing to take reasonable care of others (Snow, 2019; BBC News, 2017; ITV News, 2017). They were remanded on unconditional bail pending the sentencing hearing.
The sentencing hearing took place on 13th July 2017 and was presided over by HHJ Nicholas Dean QC (since July 2020, The Recorder of Manchester). The two defendants, a now 63-year-old Eileen Coull and 61-year-old Marilyn Smith appeared at the hearing.
The court was told Sam had spent more than four months in hospital following the incident (ITV News, 2016). The complexity of Sam’s needs prior to the incident, combined with those he incurred as a result of the accident, meant that it had been difficult for the parties to assess the extent of Sam’s injury caused by the accident, but the parties concluded it continued to be significant (BBC News, 2017; BBC News, 2016).
The role of the school was also discussed for its part in the wider context of the two defendant’s offences. The school told the court that it had implemented a number of changes since the incident, including the provision of more qualified lifeguards and allocated members of staff for pool sessions (BBC News, 2017). In a passing sentence, HHJ Nicholas Dean QC said (Owen, 2017; Snow, 2019; BBC News, 2017):
Unfortunately, even if the distraction of the two defendants was understandable, they were each distracted for a not insignificant amount of time and so neglected their duties towards Sam for sufficient time for him to come to harm.
The defendants’ culpability seems to me, if not to be wholly subsumed within, or extinguished by, the manifest failings in the systems of work that have been identified, then very largely so.
Punishment of the two defendants lies in the fact they have been convicted and in the acceptance by both defendants of their guilt for their part in the culpability of this tragic event. The defendants must live with the guilt they feel for the rest of their lives.
I accept the mitigation advanced by the defence that both defendants have otherwise impeccable career records and have since retired following suspension from their posts at the School.
I also take account that the lack of risk assessment, training and monitoring were duties of the School and were in my judgment contributory to this accident. The failings here were, in truth, not primarily those of the defendants, but rather those responsible for systems of work and safety at West Gate School. The systems put in place by the school were wholly inadequate.
The order of this court is that both defendants serve a 12-month conditional discharge.
Following the judgment, the School made an application to recover costs from Ms Smith and Ms Coull, which was promptly dismissed, along with a counterclaim for costs by Ms Smith against the school (Snow, 2019).
Following the hearing, Sam’s mother, Minimol Mathew, said (Owen, 2017):
It was a miracle he survived. The severity of Sam’s condition when he arrived at Leicester Royal Infirmary was such that the family priest was called upon to administer last rights. Doctors told me it was a miracle he was alive.
Sam’s life has been severely compromised as a result of his injuries. She said it has affected his vocal ability and mobility. He lost the ability to walk, is unable to eat solid foods and remains prone to infection.
She added that she had suffered from depression since the incident, which has also had a huge impact on family life and her job as a nurse, where she suffers occasional flashbacks when dealing with other very ill young people.
School disciplinary investigation
The school decided to await the outcome of the criminal trial of the two defendants, Ms Smith and Ms Coull, which took place in July 2017. As discussed above, both were convicted of breaching s.7(1) HSWA 1974.
Ms Coull had already served her resignation prior to the incident in January 2016 and, as such, was serving her contractual notice at the time of the incident. Ms Coull, as a result, retired with immediate effect following the incident, whilst Ms Smith still sought the option of returning to work if she was afforded the opportunity and the investigations cleared her of any wrongdoing.
In November 2017, Ms Smith attended a disciplinary hearing and was accused of gross misconduct. After submitting her case to the panel and responding to the panel’s questions, the panel retired to consider its decision. The panel was unanimous in its decision to dismiss Ms Smith with immediate effect for gross misconduct in December 2017.
In January 2018, Ms Smith made an application to the school to appeal the decision of the disciplinary panel. A second panel was convened and heard further evidence from Ms Smith. The second panel upheld the decision of the first disciplinary panel with the effect that Ms Smith remained dismissed on the basis of gross misconduct.
Ms Smith continued to hold the view that the investigation conducted by the school was inadequate. She sought to challenge the decision of the school to dismiss her in the Employment Tribunal in 2019 (Snow, 2019).
Marylyn Smith v The Governing Body of West Gate School and Leicester City Council (2019) ET 2600675/2018 (Leicester Employment Tribunal, 1 - 3 July)
At Leicester’s Employment Tribunal between 1 and 3 July 2019, HHJ Hutchinson presided over Ms Smith’s claim for unfair dismissal and breach of contract. The judgment was published on 15 August 2019. The specific allegations advanced by Ms Smith were:
4.1 The investigation was not reasonable.
4.2 All the circumstances were not considered.
4.3 She was a scapegoat.
4.4 There was inconsistent treatment of her compared to others.
4.5 The Respondent failed to take all mitigating circumstances into account.
4.6 Dismissal was not in the band of reasonable responses i.e. that she could have been dealt with in an alternative way; by for example a final written warning.
Ms Smith was represented by her solicitor Mr Anastasiades. The two respondents, The Governing Body of West Gate School and Leicester City Council, were respondents by their barrister Mr Heard.
In the judgment given by HHJ Hutchinson, he started by setting out the factual basis on which the disciplinary panel had reached their decision to dismiss Ms Smith. Paragraph references refer to those given in the judgment.
Ms Smith had first started to work at the school in 2004 and was dismissed on 12 December 2017 for gross negligence, which amounted to gross misconduct without notice. The court had sight of a seven-and-a-half-minute CCTV clip covering the pool when the incident occurred.
The court was told that Ms Smith knew Sam well. She had worked with him since 2010 and on a more permanent basis since September 2015 (four months prior to the accident). She was aware of his needs and knew from previous pool sessions she had to keep a close eye on him when he used the pool. On 27 January 2016, Ms Smith, along with three other colleagues, took Sam and other students for a hydrotherapy session in the on-site pool (Para 24):
I have seen the CCTV footage which shows another student being lowered into the pool. I could see that for a considerable period i.e. about seven and a half minutes the Claimant turned her back on student A and did not see him slip through the ring and become submerged. I saw this and that for about ninety seconds he was underwater before another member of staff saw him and pulled him out of the water. He almost drowned and had to be resuscitated. It was thought initially that student A might not recover at all. He has suffered brain damage because of the incident.
The court heard that a Police investigation followed immediately after the incident. Ms Smith was suspended by Virginia Ursell, the Acting Head Teacher, by letter the following day (29 January 2016). The reason given for the suspension was (Para 25):
May have committed a serious breach of health and safety rules, and in so doing, may have harmed or placed at risk of harm a vulnerable person and failed to uphold the core duties of your role.
Ms Smith gave a short statement along with one of her colleagues Sam Pease. Eileen Coull and Jo Whitehouse were also suspended at the same time as Ms Smith. Ms Ursell reported the incident to the local authority designated officer and the Health and Safety Executive, who both subsequently took up their own investigations. Ms Coull had already given notice of her resignation by retirement in November 2015, and in February 2016, she retired.
The Judge referred to the Claimant’s own behaviour and that of her colleague Eileen Coull (Para 35 paraphrased below):
These defendants bare responsibility and culpability for that but they are not alone in doing so.
Marylyn Smith’s role was to supervise student A on a one-to-one basis. In other words, she was responsible for him while he was in the water, and was required to stay close to him, and keep her attention directed towards him at all times.
These were not roles the defendants were unfamiliar with, although it is right to say that there were significant deficiencies in the training with which they had been provided and the systems of work in place at the time – I will return to these deficiencies in due course.
…It is clear that each defendant should or would have been conscious that the other was so involved because they were close together at the time. They had their backs to student A who was at the opposite end of the pool.
The failings of these defendants are all too obvious. Each allowed herself to be distracted from important aspects of her work. It is important to note that the distraction was in the form of a focus upon something that was also important, the safety of the boy student A – and the distraction was itself a consequence of inadequacies in the systems of work in place and the equipment provided… Unfortunately, even if their distraction was understandable, they were each distracted for a not insignificant amount of time and so they neglected their duties towards student A for sufficient time for him to come to harm.
Marylyn Smith had direct one to one responsibility for student A’s care. Jointly thought, their culpability seems to me if not to be wholly subsumed within, or extinguished by, the manifest failings in the systems of work that have been identified, and very largely so. The failings here were in truth not primarily those of the defendants, but rather of those responsible for systems of work and safety in the West Gate School.
The court also heard that the HSE conducted its own investigation on 31 October 2016. It set out various contraventions by the school and actions it required to be undertaken (para 36). HHJ Hutchinson then moved on to state his conclusions which I have summarised the key points from below (para 68 onwards):
[68] I am satisfied that the Claimant was employed by the Governors of West Gate School. This is a foundation school and the employer is governed by the provisions of section 36 of the Education Act 2002. That states clearly that her employer is the governing body of the school. The proceedings therefore against Leicester City Council cannot continue and are dismissed.
[69] I am satisfied that the Claimant was dismissed and that the reason for the dismissal was her gross negligence. That on 27 January 2016 she had failed to supervise a vulnerable student during a swimming session. This amounted to gross negligence in the performance of her duty.
[70] I am satisfied that the decision to dismiss was fair. In particular: -
The Respondents had a genuine belief that the Claimant had committed the act of gross negligence amounting to gross misconduct.
The Claimant had admitted that she had failed in her obligations both by pleading guilty in the Crown Court and in her admissions to the Respondent in the disciplinary hearing. The Respondent was correct to understand and believe that she had been assigned one to one responsibility with student A. The Claimant knew what was required i.e. to stay in close contact with him and be watchful of him. He was severely disabled and could not swim so he was dependent on her. She had failed him.
The Respondents had reasonable grounds for that belief because of those admissions.
At the time they formed the belief they had conducted a reasonable investigation. The CCTV footage was viewed extensively. There was an independent investigation. There was a disciplinary hearing at which the Claimant could and did put forward her case. There was then an appeal hearing at which the claimant could put her case to a fresh panel.
The disciplinary panel and the appeal panel both took their own individual decisions that the Claimant’s behaviour did amount to gross misconduct.
[71] Bearing in mind the Claimant’s admitted behaviour and its consequences for student A dismissal was well within the band of reasonable responses.
[72] I am satisfied that the Claimant was not a scapegoat. Whilst there were major failings of health and safety, that did not change the Claimant’s own responsibilities. She was responsible for her own actions.
[73] I reject the submission by Mr Anastasiades that there was any inconsistent treatment. No one else was responsible for the one to one care of the student. Only the Claimant was responsible for him.
[74] I am satisfied that all the circumstances of the case were considered including the remarks of the Crown Court Judge. They considered mitigating circumstances and whether there was any alternative to the outcome of dismissal but they reasonably decided there was none.
[75] The decision to dismiss was within the band of reasonable responses. The claim of unfair dismissal therefore fails and is dismissed.
[76] I am satisfied that the Claimant had committed an act of gross negligence which amounted to a fundamental breach of her contract of employment. She had failed to supervise a vulnerable student during a swimming session. The claimant is not therefore entitled to any notice pay and the claim of wrongful dismissal therefore fails and is dismissed.
References (10)
Note: I wish those affected all the best in their future. No part of this article purports to attribute blame. See our methodology page for further details of how these case summaries are constructed.
BBC News. (2016). West Gate School staff deny pool brain damage neglect. (8th November, 00:00). Available at: https://www.bbc.com/news/uk-england-leicestershire-37907179 accessed 31st January 2021.
BBC News. (2017). West Gate School staff admit health and safety charge over disabled pupil care. (5th July, 00:00). Available at: https://www.bbc.com/news/uk-england-leicestershire-40508074 accessed 31st January 2021.
BBC News. (2017). West Gate School staff sentenced over near drowning. (13th July, 00:00). Available at: https://www.bbc.com/news/uk-england-leicestershire-40601854 accessed 31st January 2021.
ITV News. (2016). Disabled pupil in hospital after pool incident. (17th March, 18:00). Available at: https://www.itv.com/news/central/2016-03-17/exclusive-disabled-pupil-in-hospital-after-pool-incident accessed 31st January 2021.
ITV News. (2016). Teaching assistants appear in court charged with neglect over swimming pool incident. (6th October, 14:04). Available at: https://www.itv.com/news/central/2016-10-06/teaching-assistants-appear-in-court-charged-with-neglect-over-swimming-pool-incident accessed 31st January 2021.
ITV News. (2017). Assistants admit failing to care for disabled teen. (5th July, 17:00). Available at: https://www.itv.com/news/central/2017-07-05/assistants-admit-failing-to-care-for-disabled-teen accessed 31st January 2021.
Marylyn Smith v The Governing Body of West Gate School and Leicester City Council (2019). 2600675/2018 (Employment Tribunal, 1st-3rd July).
Owen, D. (2017). Judge blasts Leicester school over incident where pupil nearly drowned. (Leicestershire Live, 18th July, 18:13; first published 13th July, 19:01). Available at: https://www.leicestermercury.co.uk/news/leicester-news/judge-blasts-leicester-school-over-199011 accessed 31st January 2021.
QLM. (2017). Quarterly newsletter. Issue 67. (August 2017, 00:00). Available at: http://qlmconsulting.co.uk/wp-content/uploads/2018/03/July-2017-Newsletter.pdf accessed 31st January 2021.
Snow, M. (2019). Teaching assistant sacked after teen nearly drowned at school has appeal dismissed. (Leicestershire Live, 4th December, 18:00). Available at: https://www.leicestermercury.co.uk/news/local-news/teaching-assistant-sacked-after-teen-3607748 accessed 31st January 2021.
Citation: Jacklin, D. 2021. Case Summary: Sam Sebastian. Water Incident Research Hub, 14 February.
