Please see our separate Coronavirus FAQs on Planning for School Re-Openings for further information in that respect.
At the outset of the crisis, the Government required schools to close temporarily, but asked that, where possible, schools then re-open to care for the children of key workers and vulnerable children ('priority groups'), including during school holidays.
The Coronavirus Act 2020 ('Act') came into force on 25 March 2020. Under Schedule 16, the Secretary of State has the power to direct schools to close. The Act post-dates the Government's original requirement for schools to close, however, which means that schools were never formally directed to close by the Secretary of State under the Act. The official status of schools (eg for the purpose of statutory timeframes measured in 'school days') was not therefore entirely clear.
During this time, and regardless of whether they were caring for priority groups, schools were instructed to mark their attendance registers with a hash ("#") signifying full or partial closure.
However, the Government has now asked schools and childcare settings (including special schools and alternative provisions) to reopen to specified year groups from 1 June 2020, and to provide some face-to-face support to supplement the remote education of Year 10 and 12 pupils (and Year 11 in alternative provisions) from 15 June 2020, (in addition to priority groups), at which time schools will resume taking attendance registers as before but with some modifications (see below).
More detailed information in respect of the requirements for re-opening can be found in our Coronavirus FAQs on Planning for School Re-Openings.
The Government's guidance explains that these are children with at least one parent who is a key worker. A key worker is defined as being somebody who works in one of the critical sectors:
The Government may continue to refine these categories and guidance may change in the future.
Vulnerable children include children who are supported by social care, those with safeguarding and welfare needs (including those with child in need plans or child protection plans), looked after children, young carers, disabled children and those with education health and care plans ('EHC plans').
Schools also have flexibility to accept other children who have been assessed as otherwise vulnerable by schools or local authorities (including social care), for example those on the edge of care, adopted children, those at risk of becoming NEET ('not in employment, education or training'), those who are young carers, and any others at their discretion.
No. In many cases, where they can be safely cared for at home, they will remain at home. This is for parents to decide.
However, the Government is strongly encouraging the parents of children in the priority groups to send them to school. The Government has stated that children with an EHC plan should attend school if it is determined that their needs can be as safely, or more safely, met in school.
Children must not be looked after by those in the vulnerable category (eg grandparents) for whom more stringent social distancing or shielding measures apply due to their increased level of risk.
Yes, changes were made with effect from 1 May 2020 as follows:
The Coronavirus Act 2020 has temporarily (until 25 September 2020) changed the law on EHC plans meaning that local authorities now no longer have a duty to secure educational provision in accordance with the child's EHC plan. Instead, they now have a duty to use their ‘best endeavours’ to do so. This is likely to mean that there is an increased pressure on schools to fill the gap. The DfE's guidance Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19) ('new EHC guidance') sets this out in further detail.
The new EHC guidance also confirms which key elements of the processes regarding EHC needs assessments and plans are unchanged. Notably, this includes that a local authority must:
The changes will apply from 1 May 2020 to 25 September 2020 inclusive. They apply to any deadline which falls on or between these dates. They do not apply to deadlines which fell before 1 May 2020.
It is important to note that the temporary changes to timescales only apply where it is not reasonably practicable, or it is impractical, for the local authority or other body to comply with the original statutory timescale because of a reason linked to coronavirus. If this is not the case, the original statutory timescale will still apply.
The various modified timescales are set out in the new EHC regulations, and the DfE has published additional guidance called Annex A: details of the amendments to the existing Regulations, which sets out what regulations have been modified with a regulation number, for ease of reference.
The timescales which have been temporarily amended include those for the following tasks:
No. As the amendments are temporary, the DfE has confirmed that no amendments will be made to the Code.
This is in line with all other statutory guidance and departmental advice published by the DfE which remains valid, with supplementary guidance setting out temporary modifications.
In its Actions for schools during the coronavirus outbreak guidance, the DfE has confirmed that the power to discipline pupils for breaches of discipline will continue to apply.
The DfE also published some limited guidance on its School attendance: guidance for schools covering web page which states (as at 29 May 2020) "Children who attend a school on a temporary basis because of coronavirus (COVID-19) will still be pupils for all purposes other than registration. For example, [the school] will still be … able to apply its normal behaviour policy to such children...". This confirms that schools are able to apply their behaviour policies to children of key workers and vulnerable children attending the school who are not the school's registered pupils.
Schools must, however, take into account the impact that recent events will have had on pupils when determining a fair, reasonable and proportionate response to a breach of discipline. Pupils may have been bereaved and/or have been exposed to a range of adversity over recent weeks which will inevitably impact on their mental health and behaviour.
The situation is, however, different in respect of pupils who are receiving remote education at home (see below).
Yes. In its Actions for schools during the coronavirus outbreak guidance, the DfE has directed schools to update their behaviour policies to set out the school's new rules which are needed to put in place protective measures and routines in response to the coronavirus pandemic.
We would recommend that schools do this by including a separate annex at the back of their current policies. Please contact a member of our Regulatory Compliance team (whose contact details are below) to discuss the template annex we have developed.
Although schools are, in certain circumstances (as set out in the DfE's Behaviour and discipline in schools guidance), permitted to sanction pupils for behaviour which occurred outside of school, schools are only permitted to impose a sanction on a pupil while the pupil is either on the school premises, or under the lawful control of a staff member.
Pupils who are not therefore attending school and are being remotely educated at home are not under the lawful control of a staff member, and therefore cannot be lawfully sanctioned at that time. It is in theory possible for a sanction to be imposed on a pupil once they return to school for something that happened outside of school while they were being remotely educated, but only if this would be a fair, reasonable and proportionate response to the misbehaviour, taking into account the length of the delay involved.
Where a technical breach of policy or other incident occurs, schools should consider whether it raises a safeguarding concern and, if it does, deal with it under its safeguarding and child protection policy and procedures in the usual way.
Please see our separate article on Safeguarding During Coronavirus - Your Duties Towards Pupils in School and Learning Remotely during this period for more information.
Yes, the Headteacher's power to exclude for a fixed term or permanently still applies. Schools should note that this power cannot be delegated to other staff members, even when the Headteacher is not on site (the power can only be exercised by an Acting Head formally appointed while the Headteacher is on extended leave, or when the Headteacher's post is vacant).
However, headteachers should be very cautious about exercising this power, particularly in respect of children of key workers and vulnerable children, who might not be safely cared for at home at this time, which would raise a potential safeguarding concern if they were excluded.
If schools are struggling with the behaviour of pupils/children in school, they should contact the local authority in the first instance to carry out a risk assessment in the event of an exclusion, to ensure that another place is found for the child immediately to minimise any gap in provision. The local authority is responsible for coordinating care provision in response to coronavirus in their area.
Yes there are. New regulations called the School Discipline (England) (Coronavirus) (Pupil Exclusions and Reviews) (Amendment) Regulations 2020 ('new exclusion regulations') came into force on 1 June 2020.
The new exclusion regulations temporarily amend the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 which contain the statutory exclusion framework which all schools must follow in respect of:
These are referred to as a 'relevant exclusion'. The relevant date is the first day of the exclusion, not the date the decision was made, or the date that the notification letter was sent out.
The new exclusion regulations expressly permit 'remote access' Governors' Disciplinary Meetings ('GDM') and/or Independent Review Panel hearings ('IRPH'), and slightly relax the timescales, in certain specified circumstances (see below).
In respect of a relevant exclusion, a GDM and/or IRPH may now take place by 'remote access' (ie by telephone or video conference) where it is not reasonably practicable, because of coronavirus, for these meetings to take place in person, within the usual timescales, and all of the following conditions are met:
It is the GB's responsibility to ensure that these conditions are met before the GDM or IRPH takes place, and continue to be met during the GDM/IRPH.
The GB should assess the facts of the case, the circumstances in which a meeting in person could be expected to take place, the needs of the intended participants (as far as this is possible), and the latest public health guidance, when determining whether it would be reasonably practicable to meet in person.
The GB should explain what technology it plans to use to parents, and ensure that they are told that they do not have to agree to participate by 'remote access', in which case the GDM or IRPH is likely to be delayed.
Those who have indicated that they do not intend to participate should not be regarded as participants. The GB must take into account any additional needs and/or disabilities the participants may have, and be prepared to make reasonable adjustments.
Although all participants have to consent, where the parents have consented, reasonable efforts should be made by other participants to accommodate that preference unless there is a clear reason not to.
The use of 'remote access' does not alter other procedural requirements. For example:
Schools should familiarise themselves with the DfE's statutory guidance Exclusion from maintained schools, academies and pupil referral units in England for full details of the requirements and factors which must be considered.
Yes it can, as long as the participants agree and fairness and transparency can be ensured. Schools should ensure that those participating by 'remote access' are able to see those participating in person, as well as being able to hear them. It is also possible to have some participants engaging by telephone and others by video conference.
No, they cannot. Unlike with the changes made to admission appeal hearings, no provision has been made for paper-based GDMs and IRPHs, and the law does not permit this. They must either take place in person, or by 'remote access' (or a combination of the two, as set out above).
The Chair or Clerk should make reasonable efforts to contact the missing participant to establish the reason for their non-attendance. Where this was unintentional, the start of the GDM or IRPH should be delayed while attempts are made for them to connect. If they cannot connect, the GDM or IRPH will need to be adjourned.
The Chair or Clerk should make reasonable efforts to check that participants are able to fully engage during the course of the meeting. It may be prudent to provide all participants with a separate telephone number for the Clerk or Chair which they can use in a situation where they have lost connection and need to communicate this so that the GDM or IRPH can be adjourned (it must not continue without them, unless they have made it clear that they no longer want to participate from that point forwards).
The timescales have not been changed from those set out in the DfE's statutory guidance Exclusion from maintained schools, academies and pupil referral units in England. However, where it has not been reasonably practicable for the GB to meet in person or by 'remote access' within the statutory timescale, it may be extended as set out in the table below:
Extended to or Replaced with
Permanent exclusion or fixed-term exclusion where total in current term is more than 15 school days
15 school days
May be extended to 25 school days, or as long as reasonably necessary, for a reason related to coronavirus
Fixed-term exclusion where total in current term is between 6 and 15 school days
50 school days
May be extended to 60 days, or as long as reasonably necessary, for a reason related to coronavirus
Deadline for requesting an IRPH
15 school days
Changed to 25 school days
Deadline for arranging an IRPH
15 school days
May be extended to 25 school days, or as long as reasonably necessary, for a reason related to coronavirus
This does not apply to exclusions where the statutory timescale has already passed before 1 June 2020, but the GDM or IRPH has not yet taken place. Where this has happened, the GDM or IRPH must be arranged in person or by 'remote access' as soon as it is safe and practical to do so.
Yes, it should. Please contact our Regulatory Compliance team (contact details are stated below) if the school would like us to review and amend its letters, or check its own amended wording.
In order to protect itself from criticism and possible legal challenge, schools should keep a contemporaneous written record of what it considered, its decisions and the rationale for this, as well as clearly communicating this to parents.
During the early stages of the crisis, the DfE amended its published web advice for maintained schools to state that it does not expect them to handle new or existing complaints while they are closed, but that they should still engage with parents and pupils where they can. Although this guidance does not directly apply to academies, it is usually regarded as best practice in respect of their complaints processes as well.
In our view, this did not mean that schools should adopt a blanket policy to postpone dealing with all complaints until they reopened to other pupils. Schools must be seen to be acting fairly and reasonably in accordance with public law principles. On a case-by-case basis, we advised that schools should consider whether reasonable alternative arrangements can be made at each stage of the complaints process, having regard to various factors (see below).
Once schools have re-opened to wider year groups on 1 or 15 June 2020, we consider that the timescales states within complaints policies (which are not statutory, but are almost always measured in 'school days') will start to apply again, and we anticipate that the DfE will amend its advice to maintained schools to confirm that schools must resume dealing with complaints going forwards, having regard to social distancing rules.
We would recommend that you consider this subjectively, on a case by case basis. We set out below some considerations:
No, they do not.
In the case of childcare and early years settings, the DfE has confirmed in its Actions for early years and childcare providers during the coronavirus outbreak that all children who normally access childcare are strongly encouraged to attend so that they can gain the educational and wellbeing benefits of early education.
In the case of primary schools, the DfE has confirmed in its Planning guide for primary schools that although parents are "strongly encouraged" to send their children to school, they will not face fines or other sanctions if they do not.
There is no corresponding statement in the DfE's Guidance for secondary school provision from 15 June 2020, however the DfE has confirmed this in their Opening schools and educational settings to more pupils from 1 June: guidance for parents and carers.
While schools were closed to all pupils except the children of key workers and vulnerable children from 23 March 2020, the DfE told schools that they should mark each day in the statutory register with a hash ("#") signifying whole or partial closure. Alongside this, the DfE published a suggested template for an Excel spreadsheet called a 'Record of Children in Attendance Form' to allow schools to submit a short daily return to the DfE via its website by 12.00 noon each school day.
However, the DfE has confirmed that, once reopened to the specified year groups, schools must resume taking attendance registers, and submit failing attendance figures via the DfE's educational setting status web page.
The DfE's temporary guidance Recording attendance in the school attendance register during the coronavirus outbreak confirms that, once reopened to the specified year groups, schools must resume taking an attendance register to record attendance and absence, as follows:
Where the pupil is dual registered at their home school and their host school (eg an alternative provision), the home school must record them as Code D (dual registration). This must be used to register that they were not expected to attend on that date. The host school will record their attendance in line with the answer to the question above.
Where the pupil is not registered at the host school, their attendance at the host school must be recorded by their home school as Code B (off-site educational activity). The host school must not add the child's name to their admission register, and must not record their attendance in their attendance register, but they must keep a separate record of their attendance for safeguarding purposes, and include the child in their daily totals submitted to the DfE.
Schools hosting children who are not their own registered pupils must put in place arrangements with their home schools to notify the home school of any absences.
It has always been left to schools to determine a reasonable amount of time to leave their attendance registers open for the determining whether to record an absence or late arrival, and to ensure that this is clearly communicated to parents. These should now be reviewed.
Where schools are setting staggered arrival times to ensure social distancing, schools should also set clear staggered deadlines for determining whether to record an absence or late arrival, and clearly communicate these to parents.
It should be made very clear to parents that, in order for social distancing measures to be effective, parents must make every effort to get their child to school at the specified time.
The DfE has confirmed that schools will not be held to account for their attendance figures at this time.
The Government has published detailed guidance notes on its Admission appeals for school places web page setting out how admission appeal hearings should be dealt with between now and 31 January 2021.
National Offer Day for primary school places went ahead as planned on 16 April 2020, and parents retain their statutory right of appeal against a refusal of a place.
The Government confirmed that it expects admission appeal hearings to go ahead before September. In order to facilitate this, the Government has enacted The School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020 ('new admission regulations') which:
The new admission regulations came into force on 24 April 2020. Please see our separate article New Coronavirus (COVID-19) Admission Appeals Regulations in Force for detailed information about the new requirements and how we can support you with your admission appeal hearings going forwards.
No. The new admission regulations do not remove any of the Clerk's duties, or the requirement for them to be independent of the admission authority and local authority.
Additionally, the new admission regulations make no changes to the requirement that clerks and admission appeal panel members must be appropriately trained.
There is currently no specific guidance on this question.
In our view, from 1 or 15 June 2020, an application for the admission of a child to one of the specified year groups identified for returning to school would, technically, be a valid application for admission which must be processed strictly in accordance with the school's determined admission arrangements for that intake and the School Admissions Code (2014).
A request by a parent or local authority to care for a child of a key worker or a vulnerable child in school at this time should not to be conflated with a formal application for admission to the school. The local authority is responsible for coordinating care provision for the children of key workers and vulnerable children during the crisis. Schools and parents should therefore liaise with their local authority where care provision is needed for a child meeting this criteria.
Schools are able to accommodate children other than their own registered pupils at this time, where it is deemed the most appropriate care provision for them.
As employers, schools are responsible for providing adequate and appropriate equipment, facilities and personnel to ensure their employees receive immediate attention if they are injured or taken ill at work. The relevant regulations continue to apply but there is no set ratio for of people to first aiders.
Schools should conduct risk assessments to determine their own requirements.
The Health and Safety Executive (HSE) has published First aid cover and qualifications during the coronavirus outbreak which schools may find useful.
As employers, schools continue to have a statutory duty and responsibility to ensure the heath safety and welfare of their workforce. As such, schools must ensure that there are proportionate and reasonable measures in place keep their employees (and others) are safe during the coronavirus outbreak.
Schools should undertake risk assessments in light of social distancing guidelines to ensure that the health and safety of their workforce is protected. Areas that might need to be reviewed include: online safety, home working, lone workers, working with display screens, stress and mental health.
The DfE has published Managing school premises during the coronavirus outbreak guidance on managing partially open premises, and please also see our Secure Your Schools Against Trespassers article on securing the school against trespassers.
Yes. The health and safety executive has published Carrying out thorough examination and testing of lifting and pressure equipment during the coronavirus outbreak guidance which confirms this.