Please note that this document is for general guidance purposes only.
The Government's guidance encourages schools to plan for a phased re-opening:
As yet, there is no formal direction that they do so (although the Government has the power to issue one under the Coronavirus Act 2020).
Schools are therefore entitled to make their own decision on this, but should do so in the knowledge of the possible ramifications of any decision to remain closed, to include issues such as the risk of:
Regardless of the legal merits of any claim, there is a risk of disputes and such claims being made.
The prospects of any such claim being successful will depend on the reasons for the school's decision not to re-open. If, for example, the school does not re-open this term because it is unable to operate in compliance with government coronavirus guidance, or in a manner which is safe and suitable, then there may not be sufficient grounds for judicial review providing the school can demonstrate its reasonable basis for its decision not to re-open.
The school will need to be able to justify decisions taken on the basis of its risk assessments. These should consider the issues on a cohort by cohort basis, and with special regard for pupils who are vulnerable.
Decisions and risk assessments will be open to scrutiny, so it is important that they are rigorous and well documented. Effective engagement with staff (which is mandatory) and parents (recommended) concerning risk levels and the basis of any decision may help to manage the risk of disputes arising.
We note that insurance provided by the RPA (and standard cover provided by commonly used commercial insurers) does not extend to legal costs incurred in defending judicial review proceedings.
The Government has stated it only wants schools to extend their opening to pupils in eligible year groups specified in the guidance. Before any schools seeks to deviate from the specified year groups, we would advise contacting the local authority and the school's insurer before final decisions are made. Following this, if it is possible to extend the year groups (which we think may be unlikely), then the rigorous risk assessment and documentation, plus all other steps must be extended accordingly.
At this stage, and with ministers being very specific on which year groups should return and the orders of priority, schools are advised to consider both the regulatory and reputational risks of deviating from the government guidance very carefully.
The general expectation is that primary and secondary schools will provide face-to-face tuition to specified year groups and continue to provide remote education to children in those year groups whose parents choose not to send them, and to other year groups.
Childcare and Early Years Settings
The Government is asking these settings to continue to support the learning of those children not attending these settings, as well as providing support to parents and carers for home learning.
Schools will be under a continued duty to support and educate pupils who are in year groups which are back in school but who do not attend, whether because they or somebody they live with are shielding, or they are self-isolating, or simply because their parents have decided against sending them to school.
A school's responsibilities in these circumstances will be the same as have always been in place for pupils who are unable to attend school, and will not necessarily extend to the provision of formal timetabled classes remotely.
We do not expect that teachers will be able to provide face to face and remote education concurrently so schools should consider how they can reasonably support pupils who are away from school when their class returns and discuss this with parents.
Primary schools are asked to consider where pupils may benefit from printed resources, where online access may not be possible.
Schools will be under a duty to use best endeavours to support pupils remaining at home, to make the most of the remote education available to ensure a 'high quality offer'.
We understand that the Government is currently considering approving summer schools to help pupils to catch up, particularly for disadvantaged Year 10 and 12 pupils.
Availability of staff, preparing the site, and putting the necessary practical steps in place to reduce risk would also need to be considered.
The Government has made it clear that it is only 'strongly encouraging" parents of eligible children to send their children to school, and that parents will not be sanctioned for not doing so. In addition, schools will not be accountable for their attendance figures during this period.
We cannot rule out the risk of any such claim. However, if schools were to face one, then both the claim and the costs of dealing with it are likely to be insured. We strongly advise schools to check their insurance cover in advance, and ask for this to be confirmed in writing.
Such claims would be likely to be based on a failure to comply with the relevant health and safety legislation and/or a failure to take reasonable care, which means that the school's risk assessments and adherence to the measures identified in that are likely to be key to defending any claim.
The RPA has stated in their FAQs that:
"If a claim is brought against the school (or governor) we can confirm that RPA will defend the claim on the school’s (or governor’s) behalf, the RPA will also indemnify the school to the extent that the school (or governor) is legally liable to pay compensation or damages to the injured person. The relevant sections of the RPA are the Governor’s Liability, Employers Liability and Third Party Liability.
We trust risk assessments will be in place and a review of policies and procedures as a result of official guidance issued by the Department in respect of schools re-opening following the COVID-19 outbreak…"
The courts are likely, in these circumstances, to not just consider the law, but also the provisions of the Compensation Act 2006 and the desirability of the activity in question.
Trustees have a general duty to take reasonable steps to assess and manage risks to the Trust's activities, pupils and staff, property, work or reputation. In discharging this duty, the Trustees are under an obligation to exercise reasonable care, skill and due diligence.
As with any other duty, personal liabilities can in theory arise, if there is a breach of these duties. However, the law (and insurance) generally protect trustees who have acted honestly and reasonably and who have not benefited from their actions. Higher standards are expected of a trustee with particular relevant expertise.
It is therefore important for the trustees to have general policies in place in relation to risk and to demonstrate their engagement and oversight of the risk management process. They should test the robustness of the assessments and keep this under review.
Schools are under a legal duty to assess risks to health, safety and welfare of staff and pupils.
Effective risk assessment and planning will require engagement with parents and staff, and the sharing of information about their personal circumstances and those of their pupils.
We have prepared a draft communication to parents seeking information from them, which we will be happy to share with you.
The Government has produced guidance to support schools on implementing protective measures in education and childcare settings and safe working in education, childcare and children’s social care to help them to reduce the risk of transmission as more pupils return to school. Approaches schools have been asked to take include:
The Government has also published planning guides for early years and childcare settings, primary schools and secondary schools.
Pupils are encouraged to walk or cycle to school where possible and avoid public transport at peak times. The Government has produced Coronavirus (COVID-19): safer travel guidance for passengers which staff, parents and pupils should use to plan their journeys.
Schools have been asked to ensure that the use of public transport for travel to and from school is minimised, especially at peak times. The Government is currently consulting with sector representatives to develop suggested models to demonstrate how this could operate and will publish further guidance in the coming weeks.
If schools arrange their own home to school transport, they should seek assurance from their transport providers that they have put measures in place to assess and address the risks of coronavirus in accordance with Coronavirus (COVID-19): safer transport guidance for operators. Schools should also review this if they plan to use their own minibuses during this time.
The expectation is that schools will provide meals for all children in school, which will require appropriate social distancing and hygiene measures to be put in place and discussions with kitchen staff about how meals will be prepared and served safely.
Lunch breaks may need to be staggered to reduce mixing between groups of pupils and ensure tables are cleaned between sittings.
The updated non-statutory Actions for schools during the coronavirus outbreak guidance, published on the 3 June 2020, says that out of school settings including holiday clubs are not currently permitted to have children on site. In a recent DfE press release Billion pound Covid catch-up plan to tackle impact of lost teaching time it has said:
"The Government’s ambition is that all providers running holiday clubs and activities for children over the summer holiday will be able to open, if the science allows…Guidance will be provided to the sector on how to implement the protective measures necessary to open safely, and to parents on how to minimise the spread of the virus if they choose to attend."
This may suggest that, whilst the guidance has not provided a direct answer to the question, the intention of the Government is that the return of children to schools is for the moment intended to apply only to term time activities. It is however likely that restrictions will be relaxed in due course so that holiday clubs can go ahead.
We understand that sector bodies are lobbying the DfE for a direct answer to this question and that many schools will already be planning in earnest to go ahead with Summer programmes. Whilst we are awaiting further guidance, we suggest that schools can usefully advance their own preparations by completing risk assessments based on currently available guidance and best practice and by liaising with insurers and their local authorities over proposed arrangements.