Allergy management in schools

A recent incident in Scotland serves as a timely reminder of what can happen if things go wrong for schools in terms of allergy management, even prior to the implementation of Benedict's Law and the new statutory guidance.

With Benedict's law set to be enacted through the new Children's Wellbeing and Schools Act (the Act) and amended statutory guidance (for more information on this, please see here), education providers may face increased scrutiny and challenge in relation to their management of allergies and medical conditions.

Allergy incident in Scotland

Dumfries and Galloway Council paid out £30,000 in compensation to a family following a school meals error that resulted in a child being given food that they were allergic to on multiple occasions.

Since the incident, and in light of the fact that over 400 pupils in the region are reportedly registered with special dietary requirements, stricter measures are being implemented, and the council is undertaking a review of school meals.

This incident emphasises the importance for all those involved in the education sector to act sooner rather than later to get their allergy policies and procedures in line, as regardless of the implementation of Benedict's law, action could still arise now in negligence.

After Benedict's Law is implemented

The new statutory guidance is due to be implemented in September 2026 and, from the point of its implementation, schools must have regard to it and be able to provide a clear and justifiable reason if they wish to depart from it. This means that educational institutions could face regulatory action, criticism and legal liability for non-compliance if a pupil is harmed.

From a regulatory perspective, it is likely that inspectors will consider medical conditions and allergy safety policies and the effectiveness of their implementation as part of the inspection process. In practice, this means that a failure to follow the guidance after its implementation could be taken as evidence that an education provider has not met its legal and safeguarding duties and could even result in a failed inspection.

The proposed changes to the statutory guidance would require schools to have a named allergy governor and senior leader, who must take ownership of the school's allergy safety and medical conditions policies.

Governors are expected to exercise reasonable oversight and staff are expected to act reasonably and within their training. A failure by the named allergy governor to oversee the school's allergy policies and procedures appropriately could, therefore, lead to scrutiny, particularly if a serious incident occurs.

Similarly, serious failings by the senior allergy lead could lead to internal disciplinary processes or professional consequences, and even legal action.

Schools should be aware that, although rare, there are examples of health and safety and criminal prosecutions against organisations and in some cases individuals arising as a result of failings concerning allergy-related deaths in other sectors.

Recommended actions

The importance for education settings to 'get their ducks in a row' in relation to their allergy policies and procedures as soon as possible is clear. Here are some actions that settings may wish to take now, ahead of the implementation of Benedict's Law:

• Review key policies: Pending the potential introduction of the new policy requirements detailed in the draft statutory guidance and the Act, schools should review their medical conditions and allergy policies to ascertain whether they align with the proposals.
• Review allergy procedures: Schools should also review their allergy management procedures in light of the proposed changes, including in relation to risk management, food and catering procedures, staff training and arrangements surrounding adrenaline devices.
• Check individual healthcare plans: Schools may wish to conduct a review of any individual healthcare plans now, to ensure that they are in place where required, reviewed regularly and that all staff members understand their responsibilities.
• Strengthen incident reporting: A review could be undertaken in relation to how schools record medical incidents, near misses and lessons learned from incidents to ensure alignment with the proposed requirements.

The incident in Dumfries and Galloway and other similar stories serve as a cautionary tale of what can happen when things go wrong.

Natalie Wargent is a Partner at VWV. The firm's experienced team of education solicitors are equipped to advise on all aspects of allergy compliance and incident management.