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Coronavirus – FAQs for schools and academies

2 April 2020

Please note: the information contained in this legal update is updated regularly and is correct as at 19 May 2020

Schools and academies have always been a vital part of their communities and active civil participants. Even in ‘normal’ times the work schools and academies do has a wider impact on life outside the school gates.

Like all organisations, schools and academies are now turning their minds to the fact that if the disease continues to spread there will be a disruption to ‘normal’ curriculum delivery and working arrangements for some time.

In this rapidly evolving situation, it is also prudent to continue to review daily updates from the Government, the Department for Education and Public Health England.

In response to the many questions we have received, we’ve set out some answers to some of the most commonly asked questions from our education clients below. Covering legal matters from business planning to exclusions, exams and sixth-from admissions our responses relate to your legal obligations and responsibilities. Specific COVID-19 related education law queries can be found here.

Like you, our experts across the business are continuing to monitor the situation and are providing real-time advice and sharing best practice on a whole host of business areas including force majeure to employment matters. We will continue to update our coronavirus-hub and this education specific content as and when appropriate.

Should you wish to discuss a particular matter or situation with our team of experts please do not hesitate to get in touch.

Please refer to our article on the new DfE guidance on keeping children safe during COVID-19.

The Trust’s own articles would need to be checked for any specific details but the latest DfE model articles of association do not, directly or indirectly, provide for virtual general. This is in contrast to the ability to hold virtual board meetings (see Model Article 126 and above Q&A). Given the model articles require (as is common) a notice of a general meeting to state the time, date and place of a general meeting, this indicates that general meetings would have to be held in a physical place. To provide for virtual general meetings our view is that it would be sensible to include specific provisions in the articles that would provide suitable safeguards and a sensible process to secure effective governance of the meetings.

This leaves three options under the Model Articles:

  1. Delay the AGM if the Trust is able to properly convene a meeting within 15 months of the last AGM that was held;

  2. If critical resolutions need to be passed, then members can use the written resolution procedure in accordance with Article 35 but note this would not be in place of an AGM;

  3. Given the social distancing rules in place, convene a meeting at the house of one of the members (the convening member), but the other members (instead of attending) appoint an individual of the convening member’s family to be their proxy. This is a rather unorthodox approach but given the social distancing rules, a physical meeting can’t be convened. The articles do allow the members to appoint a proxy and if they appointed a proxy who lived in the same household as the convening member, the quorum requirements at Article 23 would be met. Clearly however this option won’t apply if the convening member doesn’t reside with any family members who could act as a proxy for those members unable to be present. When appointing a proxy, members have the choice to direct how the proxy to vote - the model articles give two different proxy appointment options (see Articles 40 and 41).

Whilst it may be possible to have some discussions relatively informally by email exchanges or phone calls, there will be times when it is important to have a formal Governing Board resolution because the subject matter of the decision demands it.

In the case of a maintained school, Governing Bodies have some flexibility to make alternative arrangements; for example, the governing body may approve alternative arrangements for governors to participate in or vote at meetings, including, but not limited to, via telephone or video conference.

You should therefore, check what alternative arrangements, if any, are already in place and if they remain appropriate. If arrangements are not in place or are not appropriate, then you may want to ensure that the Governing Board adopts arrangements to allow for meetings by telephone or video conference.

On a practical note, you should also make sure that all relevant contact details are up to date and can be accessed without visiting the school site.

For academy trusts, you should check your Articles of Association for the exact requirements, but there are likely to be two relevant provisions relating to meetings by telephone or video conference and written board resolutions.

First, the Department for Education’s current Model Articles, Article 126 provides for Trustees to participate in meetings by telephone or video conference provided that certain rules are followed as set out in the Articles. Second, Article 123 allows for written board resolutions. To be valid under the Model Articles, the resolution must be “signed by all the Trustees entitled to receive notice of a meeting of Trustees or of a committee of Trustees”. The inclusion of ‘signed’ in the Article does remove some flexibility but we can help with the format of resolutions if you are unsure.

In the case of maintained schools, Regulation 8 of the School Governance Regulations 2013 sets out the basis on which the Chair (or in their absence the Vice Chair) can take urgent decisions (often called ‘Chair’s Action’). This regulation applies to any decision that could be taken by a governing body, including those decisions that may delegated by the governing body to an individual and those matters that cannot otherwise be delegated to an individual pursuant to Regulation 19. However, it is worth noting that in relation to exclusions, the DfE’s exclusion guidance limits the sole role of the Chair to those instances where a public exam is imminent at paragraph 57 (link to guidance).

There is not an equivalent to Chair’s Action as set out in Regulation 8 in the DfE Model Articles. You should therefore check whether you have included an equivalent in your own scheme of delegation (or other governance documentation). If you haven’t documented an equivalent and you want to do so now, then you have two options. First, you could incorporate suitable wording into your Scheme of Delegation. Second, you could pass a Board resolution setting out the provisions for Chair’s Action. We can provide advice on relevant wording and safeguards to adopt if you wish.

For both maintained schools and academy trusts it may, in practice, be simpler for the Chair to call a meeting on short notice, which is then held by telephone conference. This is particularly likely to be the case if the Chair wants others to input into the decision in the circumstances.

For those children who are still expected to attend school, it will be necessary to apply attendance procedures to establish reasons for absence, especially in light of the current health situation.

For all other children the code “#” should be used in the register to denote school closure.

Summer appeals (for a place to start in September 2020) must be held within 40 school days from the deadline for lodging an appeal. That deadline is around 20 school days from national offer day. A school day has a meaning in education law as being a day on when there is a school session, i.e. when pupils are present. Where a school is closed, there will not be a school day and, therefore, the timescale for holding appeals may be extended to cover the school closure.

Parents do not have to attend appeal panels in person. They may ask a representative to attend or they can provide written representations to the appeal panel. It would be advisable for admission authorities to update their guidance notes to parents about COVID-19 and the options available other than attending in person.

The appeal panel may proceed without a presenting officer being present as long as there is no disadvantage to the parents. It may be useful to ensure that a school has staff available to undertake the role in the absence of the usual presenting officer.

The appeal panel must have a minimum of three members. If a panel member becomes ill, the hearings should be postponed until such time as the panel member can continue. If the panel member cannot continue, all the appeals must be reheard. Panels and clerks should try to ensure that panels for summer appeals have more than the minimum number of panel members on hand to ensure the panel can continue to undertake its role. Where schools are struggling with numbers of available panel members for the summer appeals, it may be useful for school to collaborate and share panel members to boost numbers across the collaborating schools. This approach is referenced within the Appeals Code as a potential way of meeting the requirements on schools around appeals.

Admission authorities are responsible for making arrangements for the hearing of appeals and must do so in accordance with the Appeals Code. Whilst it is presumed that there should be a physical meeting with the parties and that the panel should be present in the same room, a virtual meeting (whether via conference call or video conference) would appear to be within the Code’s framework for appeals. Given the clear emphasis on the accessibility of appeals for parents, it would be necessary to ensure parents are able to access such arrangements prior to this approach being taken.

Schools with sixth forms will have made conditional offers to students based on predicted grades, with the offer not confirmed until the outcome of the GCSEs is known. The statement released by the DfE on Friday 20 March confirms that grades for GCSEs and A-Levels will be awarded through teacher assessment with grades awarded through this process indistinguishable from awards in other years. On this basis places will be able to be confirmed in the normal way.

The Cabinet Office has published guidance outlining who is classified as a key worker, this includes those working in the health and social care sector, education and childcare, key public services, local and national government and food and other necessary goods. The current guidance also indicates that only one parent would need to be a key worker, although parents are encouraged to keep children at home, wherever possible.

Vulnerable children include children who are supported by social care, those with safeguarding and welfare needs, including child in need plans, on child protection plans, ‘looked after’ children, young carers, disabled children and those with education, health and care (EHC) plans.

We are aware that a number of schools and trusts are circulating or have circulated questionnaires to parents to establish who is a key worker to allow them to plan their workforce requirements. We consider that this is a sensible approach. In order to ensure that the information is processed in accordance with your data protection obligations, the data should only be processed for the purpose for which it is collected, which is identifying key workers so that the school can ensure that the children are appropriately supported. The data should be retained until such time that the Government changes its position on this issue, at which point you will need to make a decision about further retention or destruction.

No. Unlawful exclusions apply to situations where a child is removed from school for disciplinary reasons, i.e. a breach of the behaviour policy. In cases like this, the removal from school would be for medical reasons and should not be viewed as exclusion.

At the present time, this would remain an option for head teachers to implement where the evidence showed a breach of the behaviour policy and where lesser sanctions were inappropriate. For permanent exclusions, the head teacher could only act where there was a serious breach or persistent breaches of the behaviour policy and where the child’s attendance at school would seriously harm the education and/or welfare of the child or others in the school community.

Given the current situation and the role of schools in supporting these groups of children, we would suggest an early conversation with the parents and local authority prior to any decision to see what other steps could be taken to avoid a permanent exclusion being imposed. Local authorities are undertaking a co-ordinating role during the COVID-19 outbreak and may be able to broker a placement at an alternative school.

The advice given above is subject to any changes that may be proposed in the amending legislation which has been suggested by the DfE.

The timescales for the governors’ review of exclusions is based on reviews taking place within a certain number of ‘school days’. A school day is a day when the school is open to students and, therefore, if you have to close your school due to COVID-19, the closed days will not count towards the timescales for holding an exclusion review. This may lead to delays in the review process of permanent exclusions, fixed-term exclusions (taking the number of days excluded to over 15 in a term) and exclusions of over six school days - whereby the parent has requested a meeting.

In normal circumstances, a face-to-face meeting with parents and the head teacher prior to the governor’s review would be the usual practice. Both exclusion regulations and guidance make reference to a ‘meeting’, but do not specify a physical meeting in one location. Governance arrangements for all state funded schools make reference to the ability to hold meetings by alternative means, such as telephone or video conferencing.

As there is no restriction within the exclusions framework, these methods could be adopted for use in reviewing exclusions as long as it was clear that all parties would have access to the same information and would be able to participate in the meeting held via these alternative means.

Whilst the Health & Safety Executive (HSE) has not issued a specific statement relating to statutory premises inspections, the position of the HSE remains that safety legal requirements remains with duty holders e.g. employers, landlords or persons in control of premises. The HSE website states “The HSE will continue its regulatory oversight of how duty holders are meeting their responsibilities in the context of the current public health risk...Our regulatory approach will take a flexible and proportionate account of the risks and challenges arising from the pandemic”.

Duty holders have a responsibility to ensure that their premises are safe and fit for occupation. This includes such things as ensuring that the building is in good repair, emergency lighting is suitable and in good working order, heating systems are safe and effective and fire alarms and detection are suitable and in good working order. Normally such matters would be the subject of regular and routine inspections by competent persons or specialists. But with the social distancing rules, furlough and difficult financial circumstances impacting on external contractors we understand that there are no guarantees that scheduled inspections will take place on time or at all.

Making contact with your external providers is therefore essential in order to understand what plans they have in place to undertake inspections and so that you can plan accordingly.

If providers are limiting or withdrawing their services then duty holders face making difficult decisions about whether to close premises or to continue to operate with lapsed inspections. The HSE has provided no guidance to date on how duty holders can demonstrate compliance with these duties in the current circumstances. Each decision will therefore need to be carefully balanced and based on an assessment of risk.

One option which you could consider is involving the health and safety representatives of the workforce by conducting joint inspections of buildings and identifying any defects or problem areas and working together to find potential solutions.

Where more specialist competence is required, such as to test and maintain life safety systems such as fire alarms and detectors, the more difficult it will be for duty holders to comply with their duties.

The Government has advised against any overseas trips for children under 18 organised by education settings. The Foreign and Commonwealth Office (FCO) has also advised against all non-essential international travel for an initial 30 days from 17 March.

Nationally there are restrictions in place for social distancing and the DfE is currently advising against residential and non-residential trips for children under 18 organised by educational settings.

Given the current circumstances you should contact your trip provider/travel agency for advice on cancellation and refunds. If the provider is not able to issue a refund, contact your insurer who will usually consider any claims based on the FCO advice at the time.

Clearly this is an unprecedented time. As an employer you have a duty to your staff and this applies now more than ever. You should signpost all staff to your employee assistance programmes but also consider looking at wider measures of support. Consider setting up a working group of employees to look at how staff can be supported in this period of isolation and give guidance to your line managers about what good practice could look like. This will evolve over time and, where good practice works well, share it with your colleagues.

You will have continuity plans in place for emergency situations, including those of national significance. Review your plan to take account of national guidance, which is changing daily, and be mindful of the need for flexibility and good communication with both staff and the wider community, including parents. Make sure the information given out is consistent and measured. Any communications or decisions about restricting activities should not come as a shock or a surprise to the school community.

Some contracts may have a force majeure clause which relates to situations that are beyond your control (such as COVID-19). You will need to check the terms of individual contracts and also check your insurance provisions.

If a contract does not include such clauses, or if the force majeure provision does not cover COVID-19 and you want to terminate the agreement, then frustration of the agreement can, in some limited circumstances, be relied upon.

As far as possible, make payments and arrangements as normal. This may mean looking to do more online payments and checking that third parties are aware that postal communication may not be appropriate if the school is closed.

For further information from our commercial disputes team on force majeure please click here. If you encounter a specific problem and would benefit from pragmatic advice, please do not hesitate to contact us.

If schools are closed but some workers are required to come in for essential works, then the first consideration is what does your emergency plan state. Check the plan and any requirements that are set out. If there are none for the specific circumstances, make contact with those workers to make appropriate individual arrangements. This might involve consideration of how many people will be in school at any one time or simply considering access arrangements in respect of keys/security.

It is highly unlikely that measures will be relaxed. The ICO however, is a sensible regulator and will take account of the wider public interest when you are complying with data protection legislation. Statutory timeframes will not be extended but understandable delays will not be penalised.

It may well be that responding to data breaches and/or subject access requests will be more of challenge in the current circumstances, especially as resources may well be diverted away from data protection compliance to support more pressing needs. As a result, your practices might slip below your usual high standards– the one month period for complying with subject access requests may be missed and meeting the 72 hour deadline for reporting data breaches might also be extremely difficult.

The ICO have confirmed they will not penalise you where you need to prioritise resources elsewhere or simply cannot access systems or documents due to lockdown. Compliance remains important, but it should not be prioritised in this time over the focus on public health issues.

No, not at all. Data protection law still applies so you will need to ensure appropriate security measures are in place to adequately protect personal data. These will not differ from those you would use in normal circumstances.

You should, and data protection does not stop you from doing so. However, as always think about data minimisation – you probably do not need to share the name of the individual, just the fact that a staff member has contracted the illness.

As long as appropriate security measures are in place, then yes. We would advise that staff have passcodes/facial or fingerprint recognition to access the phone and if any other person can also access that phone, then the email access itself should have an additional lock, such as a further passcode.

The government has released further details on how it proposes to award grades this year. This will be through teacher assessment with the hope that grades can be released in July. Grades will be awarded based on mock examination information and non-exam assessment. Ofqual will release further information on how to do this in due course.

Ofqual will also assess the national grades awarded compared to other years, to ensure that students are not disadvantaged as a cohort compared to other years.

For academies, there is no specific requirement to hold classes for a specified number of days in the year, so there will be no breach of any requirement due to the government decision to close schools. There is also no requirement to continue to deliver the curriculum remotely although our advice would be that if this is practical academies should seek to do so.

Maintained schools are required to hold 380 sessions a year (with two sessions a day) but if these cannot be met where the school is prevented from doing so and there is no practical way of holding the sessions, these will be counted as having met the requirement. Whether delivering the curriculum remotely will be practical will depend on the circumstances of the school.

Whichever type of school you are in, if you do have the technical options in which to deliver the curriculum remotely in some format, then this is something that should be considered. We are aware of some clients, for example Academy Transformation Trust, have been considering this as part of their contingency planning.

Incoming Trusts

Your obligations under TUPE are in reality limited. You will be required to send a measures letter to the outgoing employer in the usual way. The outgoing employer will then need to send the usual letter to the employee representatives (normally the unions) with the information specified in TUPE.

Unless you are envisaging measures against your existing members of staff, you do not have a legal duty to consult under TUPE. There is no legal duty under TUPE to consult with staff or unions if the only measures that are being envisaged are in relation to the transferring employees. It is rare that incoming Trusts envisage measures against existing employees, but you should take specific legal advice if you are in any doubt.

The informal consultation process that Trusts routinely engage in is designed as a hearts and minds exercise to ensure that the unions and transferring staff are on board to ensure a smooth transition. There is no reason in principle why this could not take place remotely or in other creative ways. It remains to be seen how the unions will approach this issue, but we expect that their approach will depend on your existing relationship with the unions and the extent of the measures envisaged.

Ultimately, you could decide to proceed without any form of informal consultation whatsoever or you could engage with staff directly if the unions are non-cooperative. We recommend that specific advice is sought in these circumstances.

Outgoing Employers

A very similar analysis to above applies. You still must send the information letter to the employee representatives. There is no obligation to hold meetings with the outgoing employees, although as we have set out above under normal circumstances this is advisable.

The outgoing trust may have a duty to consult with its own employees if it envisages measures against its retained employees as a result of the transfer. A common example is that the transfer could result in redundancies of the retained employees. If you are in any doubt about whether this applies to you, you should seek specific legal advice.

The situation will depend on the circumstances and whether there is a force majeure provision in the contract that covers Covid-19. If not, or if the force majeure provision does not cover Covid-19 and you want to terminate the agreement, then frustration of the agreement can in some limited circumstances be relied upon. Our commercial disputes team has provided further advice on this.

Children with EHCPs are part of the minority of pupils who are entitled to continue to attend school, although the exact nature of the provision expected to be made for such pupils has not yet been clarified by the DfE.

Currently, special educational provision for children with SEND is subject to two duties.

  1. A local authority must secure the special educational provision specified in an EHCP for a child and this duty cannot be delegated. A mainstream school must use it best endeavours to make special educational provision.
  2. A mainstream school must use it best endeavours to make special educational provision. The duty on schools is a wider duty and other factors can be taken into account in making provision. This would allow schools greater discretion to provide support that is reasonable in the circumstances of the school, including staff absence, safeguarding and health and safety issues.

The Coronavirus Act 2020 amends the duty on local authorities to secure the special educational provision for a child and replaces it with a duty to use reasonable endeavours to secure such provision. This is a less onerous duty and one which is similar to that placed on schools and therefore can take a wider set of circumstances into account.

The intention is that from Monday 23 March parents and carers who are ‘key workers’ and/or where children are ‘vulnerable’ children should be able to attend their current school in the normal way.

Over time it may be necessary for local arrangements where due to Covid-19 it is not possible for a school to open.

If you have a date fixed for a hearing then you will need to consider whether it is an essential meeting. If not, check your complaints policy and look at the options. If there are no provisions in place or if you think that the provisions are not sufficient for the current situation consider whether it can proceed remotely.

If the parties do not have the technology to do this an alternative would be for the panel to consider written representations and reach agreement via email discussion. If the chosen way forward is not part of the published policy consider the best alternatives including postponement, bearing in mind that if it is in the best interests of the child for the complaint to be resolved then a remote solution may be more appropriate than to simply postpone.

In all cases approach the complainant for their view. If they refuse to engage without good reason indicate that the process will be halted and the complaint considered to be closed. It is a balance of maintaining timely progress in the circumstances to bring a resolution to a complaint and enabling the complainant to have their platform. Any decision needs to be taken fairly and with transparency.

Coronavirus support

We are helping across business, health, education and government sectors:

training and events

14Oct

ISBL regional Conference Sheffield

Browne Jacobson’s Associate Sophie Jackson discusses the rise in growth of SEN and the impact of this on schools. Please note that this event was postponed from June 2020.

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19Nov

CST Inaugural Annual Conference Hilton Metropole, NEC, National Exhibition Centre, Pendigo Way, Marston Green, Birmingham, B40 1PP

Come and meet the team at CST’s Inaugural Annual Conference this summer. Partner Nick MacKenzie will also be delivering a workshop on governance leadership.

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focus on...

Keeping children safe 2020 – managing allegations and agency staff

Our leading HR and safeguarding experts Emma Hughes and Dai Durbridge will provide you with all the information you need in order to meet your statutory obligations in the on-demand recording.

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Upcoming webinars

Negotiating contracts under PPN04/20 with Bishop Fleming

This webinar will explore the potential pitfalls of contract negotiation and the regularity implications for Academies. After the webinar you will be well prepared to ensure that you have commercially competitive contracts, that also comply with the Academies Financial Handbook.

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Back to School - preparing for the reopening of schools in September

Schools in England were closed other than to the children of key workers and children who are classified as vulnerable from 20th March as part of the management of the coronavirus pandemic. As part of the relaxation of lockdown measures many primary schools in England began a phased reopening for pupils from 15th June.

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Legal updates

Admissions during Covid-19

Whilst the Department for Education (DfE) has implemented statutory changes to elements of the frameworks relating to admission appeals, exclusions and special educational needs, there have been no changes relating to the legislation relating to admissions.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

Mark Blois

Mark Blois

Partner and Head of Education

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