Joint Committee on Human Rights: Covid-19 Measures Report

Imogen Proud looks at the Joint Committee on Human Rights’ findings in relation to children’s rights in its report on Coronavirus measures.

The Joint Committee on Human Rights has published a report which proposes that the Government must urgently address a number of issues, including the impact of Covid-19 measures on children’s rights, to ensure that its handling of the Coronavirus pandemic is human rights compliant.

In March, the Joint Committee on Human Rights announced that it would be scrutinising the Government’s Covid-19 response and issued a call for evidence. In particular, it was to look at legislation that the Government brought forward to contain and control the Covid-19 outbreak, how those measures are then implemented, and how the response could be differently affecting different groups of people.

The report, dated 21 September 2020, is now available.

Children’s rights including the right to education were a particular focus of the Committee, and are covered in section 7 of the Report. The Committee observed that:

  • School closures, as they potentially affect the right to education, must be “justified, done lawfully and transparently and only be done to the extent necessary”.
  • As well as affecting academic performance, children’s rights were otherwise impacted by school closures: the right to socialise was affected; schools can be an important source of nutrition; family finance and happiness were negatively impacted by Covid; schools’ ability to make referrals to children’s services decreased; examination uncertainty caused children stress.
  • Measures to repair these harms will need adequate Government resourcing.
  • School closures ought to have been brought about through the issuing of a direction under the Coronavirus Act 2020 rather than – as they were – by communications and press announcements encouraging schools not to allow most pupils to attend.
  • There was a “huge disparity” in the amount of education accessed during lockdown, with particular differences noted between those in deprived communities and those attending private schools. There were significant barriers to home learning for disadvantaged children including poor internet access, insufficient access to devices or study spaces and limited or no parental support.
  • As I have posted already on this blog (here, here, and here), the Government made the significant change to Education Health and Care Plans that local authorities would be deemed to have met the duty to secure the provision set out in those Plans if they used “reasonable endeavours” to secure it.
  • There were instances where there were “serious breaches of a child’s right to education” such as a school telling a child they could not attend school during the lockdown despite being in receipt of an EHC Plan (and thus classed as ‘vulnerable’ and able to attend).

The Committee concluded that:

  • “…the provision of education and the best interests of the child should be at the forefront of policy and decision making.”
  • “The unequal access to education for disadvantaged children is of real concern and the Government must ensure that it does not lead to wider inequality in society.”
  • “We urge the Government to look into the effect that school closures have had on young people with SEND and to address any barriers to them returning to schools and accessing education.”
  • “The Government must make it clear as to whether a new announcement, such as one purporting to “close schools” is made under legal powers to direct the closure of schools or is merely advisory—the rule of law is threatened if the Government obscures the legal status of its announcements.”
  • “Legal documents—including Notices and Directions—which may interfere with human rights should be easily accessible.”

The Committee has already published a report on Human Rights and the Government’s response to Covid-19: the detention of young people who are autistic and/or have learning disabilities, which may be of interest to readers of this blog, and is available here.

New term and summer round-up

Just as for millions of children across the country, it’s the start of a new term for the Monckton Chambers Education Law Blog.

It’s set to be a busy period in education circles, as schools grapple with the considerable challenges of re-opening in a Covid-secure way. Already, campaign groups are warning that children with certain disabilities face particular difficulty in returning to school, potentially giving rise to a host of legal issues concerning students’ right of access to education and their entitlements under Education, Health and Care Plans. Over the coming months, the Education Law Blog will bring you the latest news and analysis on these and other current issues in education law and practice.

First however, a quick recap on one of the biggest education law stories of the summer. Readers will not have missed the furore that surrounded the algorithm, developed by the Office of Qualifications and Examinations Regulation (‘Ofqual’), for awarding A-Level and GCSE grades to students who were unable to sit their exams due to Covid-19.

The algorithm was used by Ofqual to bring thousands of students’ predicted grades into line with the grades historically achieved by students at their school. In practice, this operated to pull down the results of high-achieving students whose schools had no history of achieving high grades. The standardisation effect was disproportionately felt by state school students in large classes: for cohorts of 5 students or less, the standardisation process was disapplied and students were awarded their teacher-predicted grades, giving a boost to the results of students from the independent sector.

The publication of the standardised A-Level results generated by the algorithm caused a public outcry and gave rise to multiple sets of judicial review proceedings. In one claim, A-Level student Curtis Parfitt-Ford argued that use of the algorithm:

  • Was contrary to Ofqual’s statutory objectives as set out in section 128 of the Apprenticeships, Skills, Children and Learning Act 2009, as the results which it produced failed to give a reliable indication of candidates’ knowledge, skills and understanding, or to promote public confidence in the system for awarding qualifications.
  • Risked producing irrational, arbitrary and unfair results depending on the size of a student’s cohort for a particular subject, or their school’s performance history in that subject.
  • Breached the requirements of the General Data Protection Regulation (‘GDPR’) and the Data Protection Act 2018 (‘DPA’), including the rules relating to profiling, automated decision-making and algorithmic bias.
  • Had been adopted in a way that was procedurally unfair, including a breach of the public sector equality duty under section 149 of the Equality Act 2010, and a failure to consult on the particular standardisation model used.

Monckton Chambers’ Ciar McAndrew was part of the legal team which acted for Curtis Parfitt-Ford (instructed by Rosa Curling of Leigh Day and supported by Foxglove).

A second claim for judicial review, brought by the Good Law Project on behalf of a number of students, focussed on the absence of appropriate appeal routes for students who were dissatisfied with their algorithm-generated grades. Amongst other things, the claim argued that the system adopted by Ofqual was inherently unfair, gave rise to an unacceptable risk of procedural unfairness at a systemic level, and was likely to discriminate against students with disabilities.

On 17 August 2020, the Secretary of State for Education and Ofqual confirmed that both A-Level and GCSE students would be awarded the higher of their teacher-predicted and algorithm-generated grades. On 19 August 2020, it was confirmed that BTEC results would also be reviewed in light of the issues identified with Ofqual’s algorithm.

However, the fall-out from the episode continues, with the Secretary of State due to be questioned by the House of Commons Education Select Committee on 16 September 2020 (following on from the Committee’s examination of various senior Ofqual officials on 2 September 2020). The Secretary of State can expect to be asked why the Department for Education failed to act on concerns about the algorithm which were identified in a report published by the Committee in July 2020.

Why online exams may breach data protection, equality and consumer law

Monckton’s Will Perry considers whether education providers’ online assessments might be unlawful.

The decision of various higher and further education providers (particularly universities), and professional regulators responsible for exams (such as the Bar Standards Board), to hold exams online as a result of the Covid-19 pandemic is contentious. Some students may welcome a switch from the exam hall to the bedroom. Others may see it as a necessary means of finishing their courses in time to take up further study or jobs.

However, some learners will deplore the difficulty of having to take exams from home, whether this affects their performance or interferes with their privacy. How might students rely on data protection, equality and consumer law to challenge this change in format? And what can providers do to reduce the risks of successful legal challenge to their decisions?

Data protection law

Many providers have required students taking online exams to use intrusive ‘proctoring services’ (for example, this one offered by ProctorExam, a leading European online proctoring service). These interfaces generally require students to sweep their room before the exam with a camera and then record video and audio whilst they sit it. Proctoring software may also monitor keyboard and mouse movements, track web browsing data, or require students to share their screen. The justification for such close monitoring is that it is the only way providers can eradicate cheating and ensure fair outcomes for students across the board.

The use of proctoring services will likely involve the processing of personal data and therefore raises various data protection issues that students and providers should be aware of. The two most pertinent are set out below, though other issues will be relevant – such as restrictions on transfers of data outside of the EU, the potential requirement to conduct a data protection impact assessment (DPIA), and the obligation to comply with subject access requests.

Lawful basis for processing

Organisations which process personal data must do so according to one of the lawful bases set out at Article 6(1) of the General Data Protection Regulation (‘GDPR’).

Providers may try to obtain students’ explicit consent (Article 6(1)(a)). However, as made clear by Article 4(11), this must be “freely given, specific, informed and unambiguous”. The “freely given” requirement might be lacking in the higher education context, where there is an imbalance of power between the education provider and student (see Recital 43) – especially where no alternative to an online exam is offered.

Providers might, instead, say that the data processing is “necessary” for performance of their contracts with students (Article 6(1)(b)), or “necessary” for the purposes of theirs and students’ legitimate interests (Article 6(1)(f)) – such as interests in timely assessment and prevention of cheating. However, where alternatives to online exams exist, or less intrusive but equally effective alternative software is available, these gateways are unlikely to be fulfilled. Furthermore, under Article 9 GDPR, the contractual and legitimate interests bases will be unavailable if sensitive personal data is processed (for example, where a video of a student taking an exam could reveal their racial or ethnic origin or health conditions).

Retention of data

All retention policies should be strict. Data captured from a student during an online exam should be kept for “no longer than is necessary for the purposes for which the personal data are processed” (the storage limitation principle under Article 5(1)(e)). Once it is determined that a student has not acted suspiciously, their personal data should be erased. Any such determination should occur within a reasonable time frame. I have heard anecdotally of would-be-solicitors being told that videos and other data captured during their Legal Practice Course exams will be stored for a year following the exam in question. If correct, this practice is unlikely to satisfy Article 5(1)(e).

Equality law

It has been pointed out (for example, by students taking online Bar Professional Training Course exams), that online assessments unfairly affect disabled students who require reasonable adjustments, those with caring responsibilities (including women, who are more likely to be primary caregivers), individuals with limited internet access (either as a result of location or socio-economic status), and international students in different time zones.

Any difference in treatment could be discriminatory under the Equality Act 2010, which applies to both further and higher education institutions (sections 90-94) and general qualifications bodies (sections 95-97).

Where the education provider constitutes a public authority (e.g. a public university – see R (Ben-Dor) v University of Southampton [2016] EWHC 953) or a decision to introduce online exams is taken by a regulator (such as the Bar Standards Board), any difference in treatment might also contravene students’ rights under Article 14 of the European Convention on Human Rights, combined with a substantive right such as Article 10 (right to freedom of expression) or Article 2 of the First Protocol (right to education, which includes the right to “official recognition” of one’s studies – see the Belgian Linguistic case (No. 2) (1968) 1 EHRR 252).

The key issue here is whether discrimination can be objectively justified by the provider or regulator. Central to this is whether alternatives to online exams were both available and actually offered; such as exceptions which allow disadvantaged students to take exams in person (though these alone may be insufficient for students who are shielding or care-givers),the option to postpone exams to later in the year, or assessment through other means such as coursework or consideration of performance throughout the year (akin to how A-Level and GCSE results are being calculated).

Consumer law

There are three clear ways in which higher education providers may fall foul of consumer law when requiring students to take exams online.

First, information about the format of exams will give rise to implied terms when either: (a) that information was provided before the student entered into the contract and was subsequently taken into account by the student in deciding to enter into the contract or making a decision under the contract (section 50(1) of the Consumer Rights Act 2015 (‘CRA 2015’)); or (b) students can successfully argue that such information relates to the “the main characteristics” of the services under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. If an implied term arises in relation to the exam format, education providers will generally be unable to switch to online exams without students’ express consent (sections 50(2) and (4) of the CRA 2015).

Second, if the education provider has switched from ‘in person’ to online exams on the basis of an express unilateral variation clause in the contract, that term may be “unfair” under the CRA 2015, in particular if: it grants the education provider with an unreasonably wide discretion to introduce variations, which is likely the case where providers are not required to offer reasonable alternative solutions; is drafted in a way that lacks transparency; or allows changes to be made to the format of exams without provision of reasonable notice to students.

Third, if education providers enforce inflexible and harsh anti-cheating rules on online exam takers, these may also be unfair under the CRA 2015. For example, would-be barristers taking the Bar Practice Course have been told that if any other person is:

…detected as being in your physical location, whether visible or not; or overheard in any manner, whether physically detected through movement and making of noise or through sounds irrespective of whether they are in your current location or not during your testing session, the test will be terminated and you will not receive any score.

This gives rise to a risk that students’ (especially those with children) will unfairly have tests terminated, with potentially severe consequences.

Prospective litigation (and how to avoid it)

Students bringing a successful claim on each of the legal bases outlined above might obtain significant compensation payments – in the low thousands of pounds, or potentially more where students can establish that underperformance in online exams has materially reduced their earnings potential. For students who are yet to sit online exams, injunctive relief – as part of an overall judicial review or private law data protection or consumer law claim – will also be available. Though those bringing judicial reviews should first exhaust all alternative remedies, such as a complaints to the Office of the Independent Adjudicator. Students should also consider the possibility of group litigation, which would reduce any costs issues.

The best way for education providers to treat students fairly (and minimise legal risks) is by seeking the explicit consent of all students to changes to exam format, and then considering reasonable alternatives for students who cannot genuinely take exams online. Providers should also take a proactive approach to deciding how online exams are conducted, ensuring the software used is as unintrusive as possible, that reasonable adjustments are available when necessary, and that anti-cheating rules are not unfair.

Government confirms no plans to issue further EHCP modification notices

On 30 April 2020, the Secretary of State for Education published a notice temporarily modifying the duty in section 42 of the Children and Families Act 2014 to secure special educational provision and health care provision for children and young people in accordance with Education Health and Care (EHC) Plan. Prior to that notice, section 42 placed an absolute duty on local authorities to secure that provision. Following the notice, local authorities were required only to use “reasonable endeavours” to secure that provision. This first notice was explained in my earlier post.

The first notice, which expired on 31 May 2020, was replaced by two subsequent notices for June and July, as Imogen Proud has explained in two posts (here and here).

Yesterday, on 2 July 2020, the Secretary of State published new guidance confirming that “…unless the evidence changes, we will not be issuing further national notices to modify the EHC duties, but will consider whether any such flexibilities may be required locally to respond to outbreaks“. This means that, subject to any change in the evidence or any local measures, section 42 duties will apply in the ordinary way from August onwards.

Interestingly, this change in the government’s approach follows judicial review proceedings commenced in June challenging the decisions to downgrade legal duties to children with SEND (details of which can be found here).

The announcement will come as a welcome relief to parents of children with EHC plans concerned about local authorities failing to provide adequately for those needs at a time when children with EHC plans are being encouraged to return to school.

It is to be welcomed that the notice has been published some weeks ahead of the reinstatement of the absolute section 42 duty to secure provision. This will hopefully allow local authorities enough time to ensure that all educational provision in EHC can once again be secured from August.

However, the announcement contains the large caveat that the government will continue to consider local notices to respond to local outbreaks. The power to modify the section 42 duty in a “specified area” is found in paragraph 5(2) of Schedule 17 to the Coronavirus Act 2020. With a local lockdown already in place in Leicester, and further localised outbreaks of the virus being reported in other parts of the country, future local modifications of the section 42 duty remain a real possibility.

Third Notice confirms EHCP duty modification continues in July

On 29 June 2020, the Secretary of State for Education published a third Notice which modifies for a further month the duty on local authorities in England in relation to Education, Health and Care (“EHC”) Plans.

The Notice confirms that for the period 1 July until 31 July 2020 the duty under section 42 of the Children and Families Act 2014 will be modified as it was in May and June, meaning that local authorities are able to continue to use ‘reasonable endeavours’ when securing the provision in a child’s EHC Plan. Previously, the duty was an absolute one.

The Secretary of State is required to state in each Notice why he considers “that the issuing of the notice is an appropriate and proportionate action in all the circumstances relating to the incidence or transmission of coronavirus” (Coronavirus Act 2020, Schedule 17, paragraph 5(4)). The Third Notice comes as children with EHC Plans are being encouraged to go back to school, and means that upon their return they have no guarantees of the provision they will receive. There would seem to be a risk for the Secretary of State that some parents/carers may question whether the continued modification is appropriate and proportionate given the circumstances of the return to school, and a judicial review of this latest decision may follow. In a challenge on this basis, the Secretary of State would need to prove that his position in the Notice was a reasonable one.

See my earlier blog post on the June Notice and the continuing standards to which LAs will be held.

See Alex Littlewood’s earlier blog post about the previous Notice for May.

Schools reopening: where are we now?

Since primary schools ‘reopened’ for years 1, 2 and 6 on 1 June, the return to school has barely left the headlines.

Teaching unions have taken the view that it is not yet safe for their members to return to school amid the ongoing coronavirus pandemic, and at least 54 councils in England took the side of the unions by either telling schools not to reopen or leaving the decisions up to headteachers. Parents who keep their children at home do not currently face any fines.

Until last week, the government insisted all primary school children would go back for a month before the summer holidays. However, on 9 June, the education secretary Gavin Williamson conceded that this had changed, and “we will be working to bring all children back to school in September”. The Guardian reported this as “the latest screeching U-turn” from DfE.

This slippage will anger those who feel that children’s right to education is being sacrificed by the continuing closure of schools for the majority of year groups, particularly since children are considered to be at much lower risk of contracting Covid-19 than adults. See my earlier blog post on the continuing impact of school closures for pupils, particularly the most vulnerable learners, and its potential legal implications.

“Us for Them”, a campaigning organisation on behalf of parents, which calls for the return to school of all pupils as soon as possible, has written an open letter to Gavin Williamson asking to be shown the science said to be backing government back-to-school policy. The letter was covered in depth by the Daily Mail. The group considers that current policy unlawfully subordinates the welfare of children to other interests and is poised to launch a legal challenge.

The Telegraph commented back on 19 May 2020 that “it is fear – not science – that is stopping our children being educated”. On June 10 2020, the Telegraph became the first mainstream paper to call for social distancing in schools to be scrapped in order “to save our children’s education”. The paper argues for a hard deadline of September for a full return to normality in classrooms (here).

The Prime Minister made a surprise announcement on 10 June 2020 of a “massive catch-up operation” for children in England who had missed out on months of schooling. This was met with surprise from headteachers, local authorities and unions who had not been consulted. An announcement from Gavin Williamson is expected this week, and it may include vouchers for online tutoring and volunteer-led summer holiday programmes (see the Guardian’s coverage here).

There are suggestions that the so-called ‘2-metre rule’ may be removed by September which would allow a full return to school. The Government’s chief scientific advisor Dr Patrick Vallance suggested last week that the 2-metre diktat was “not a scientific rule” and had never been official advice. That news came after many schools had invested a great deal of money and time making changes to school buildings to allow 2-metre distancing for the year groups yet to return, such as introducing one-way systems and changing classroom layouts. This has led many headteachers to criticise the frequent guidance changes for England’s schools.

Imogen Proud is instructed by Us for Them.

School is able to avoid contractual obligations on the basis that it had no capacity to enter into the contract in the first place

In a judgment handed down on 7 May 2020, the High Court (Foxton J) decided that it was ultra vires for a secondary school to enter into a contract for the construction and hire of a modular building and associated equipment. The key issue in School Facility Management Ltd v Governing Body of Christ the King College [2020] EWHC 1118 (Comm); [2020] 5 WLUK 65, was whether the school could resist claims for debts owed and damages under the contract, on the basis that that contract was ultra vires.

In 2013 the College, a voluntary aided school, entered into a contract with BOSHire, which put together together finance packages for customers who wished to acquire modular buildings, for the supply of a modular building, for a 15-year period. Subsequent assignments of the contract led to School Facility Management and GCP Asset Finance 1 Limited obtaining the rights to payments under the contract. All three entities were Claimants to the claim.

The College subsequently took possession of the modular building. The payments made under the contract led to a substantial increase in the level of the College’s deficit, leading to the College asking the local authority, the Isle of Wight Council, to allow it to increase its deficit. The College further asked for financial support from the Council, but in 2016 the Council served a formal Notice of Concern on the College concerning the College’s debt. In September 2017 the College defaulted on the contract, failing to make an annual payment which had fallen due. Following negotiations, in 2018 a letter was sent terminating the contract and informing the College that it was no longer permitted to use the modular building, and a claim was subsequently issued later that year, claiming debt and damages against the College under the contract.

The primary defence raised by the College, supported by the Council, was that the contract was in fact beyond its capacity and outside the authority of those who signed it. The College therefore argued that, as a matter of law, it could never have entered into the contract with the Claimants. Having reviewed a number of the seminal public law cases on what constitutes an error of law (including the decisions in Anisminic and Lumba v SSHD), and when a public law error can be relied upon either to found, or to answer, a private law claim (Wandsworth LBC v Winder), Foxton J described the issue in the case as: “whether any public law ground of challenge to a decision to contract suffices to render the contract void ab initio as a matter of private law, or whether only some grounds of public law unlawfulness have this effect” ([116]. The Judge carried out an extensive survey of the case law on this issue (spanning some twenty or so cases). He held that the authorities offered conflicting views on the issue and that it was necessary to return to first principles. Foxton J concluded (at [156]) that “public law invalidity and private law incapacity are not co-extensive” and that this could be derived from the fact that “the taking of an ultra vires point in private law proceedings is not subject to any of the procedural safeguards which apply in public law proceedings” (i.e. the obligation to bring a challenge promptly, that relief is discretionary and can be withheld on various grounds). The upshot was “that a contract will be void if a public body lacked power to enter into a contract of that type, in the same way as a contract entered into by a private statutory corporation would be void, absent (in each case) the effect of the saving legislation. In such a case, the public law lack of power provides the basis for the private law defence of lack of capacity.” This position was distinct from where a public body had power to enter into a contract, “but the exercise of that power is unlawful on public law grounds.” It such circumstances it would be necessary for the facts giving rise to the public law unlawfulness to provide a basis for impugning the contract recognised in private law.

Despite this magisterial survey of the law, ultimately Foxton J concluded that the contract was void ab initio, because it was a “finance lease”, which amounted to borrowing under the Education Act 2002, and that a condition precedent to “borrowing”, and therefore entering into the contract, was obtaining consent from the Secretary of State, which the College had not done. Therefore, the College’s defence – that it had no capacity to enter into the contract in the first place on the basis that entry into the contract was ultra vires in public law terms – succeeded. The Claimants’ various claims against the college, including claims of misrepresentation and misstatement, ultimately failed. Nevertheless, one of the Claimant’s claims for unjust enrichment against the College succeeded.

This judgment is useful in two key respects. First, it provides a useful and extensive overview of the role which public law may play in either bringing or defending private law proceedings. Foxton J’s analysis sets out the extent to which an ultra vires public law argument will and can inform whether or not a party, at private law, had capacity to enter into a contract. The Judge’s analysis seeks to resolve a number of tensions in various decisions at first instance and in the Court of Appeal and it will be interesting to see whether his decision will be appealed on this issue. And secondly, it is a salutary reminder of the importance of public bodies, including those in the education sector, as well as their counterparties, seeking to ensure that they comply with their public law obligations, prior to entering into a contract.

New blog for EU Relations Law

As a subscriber to the Monckton Chambers Brexit Blog, we thought that you might be interested in a new website and blog founded by members of Monckton Chambers.

As you will, of course, be aware, Brexit formally took place on 31 January 2020. No longer an EU Member State, the UK’s relationship with the EU has altered fundamentally. Now that Brexit has happened, this requires a forward-looking shift to consider the new legal position after Brexit.

With that in mind, members of Monckton Chambers have launched a new website blog, covering EU Relations Law.

EU Relations Law represents the new, developing area of law (distinct from EU law) concerning the specific arrangements between the UK and the EU post-Brexit, covering all aspects of the new legal relationship between the parties. This includes the potential for private parties to assert rights and/or bring claims based on legal agreements concluded between the UK and EU. It also includes the potential for legal disputes between the EU and UK. The implementation and transposition of the new arrangements also gives rise to potential disputes.

The new website explores all areas of EU Relations Law from both international and domestic law perspectives, including:

  • the meaning and application of the Withdrawal Agreement;
  • the UK and EU implementations of the Withdrawal Agreement;
  • the Northern Ireland Protocol;
  • the Future Relationship Agreements;
  • case comments on relevant judgments and opinions; and
  • legislative changes and analysis of their implications.

You can visit the website at www.eurelationslaw.com, where you can also subscribe to receive new blog posts by e-mail. The website is maintained and edited by Alan Bates and Jack Williams. Blog posts are written by subject specialist barristers at Monckton Chambers, academics, policy experts, regulatory officials and solicitors. The site is aimed at all those interested in the law post-Brexit, including: solicitors, academics, students, regulators, policy experts, and in-house clients.

In due course this Chambers Brexit blog will be phased out. We very much hope that you will join the conversation concerning the new legal arrangements between the UK and EU, EU Relations Law, by subscribing to the new site.

Second Notice confirms EHCP duty modification continues in June

The Secretary of State for Education has published a second Notice which continues to modify the duty on local authorities in England in relation to Education, Health and Care (“EHC”) Plans throughout June 2020.

The Notice confirms that for the period 1 June until 30 June 2020 the duty under section 42 of the Children and Families Act 2014 will be modified as it was in May. Prior to the Notices, local authorities were under an absolute duty to secure the specified educational provision in a child’s EHC Plan. The Notice means that local authorities are able to continue for another month instead to use ‘reasonable endeavours’ when securing the provision.

The extent to which this constitutes (continued) ‘relaxation’ of the duty depends ultimately upon how the courts interpret ‘reasonable endeavours’. It will be a dramatic lessening of the duty if, when a local authority’s provision is judicially reviewed, the Administrative Court finds that a local authority did discharge its ‘reasonable endeavours’ duty because the attempts that it made to secure the specified provision were not irrational in the circumstances (ie not so unreasonable that no reasonable local authority could have made them). DfE Guidance may assist the courts. This was updated on 29 May 2020 but continues to stress that “the notice does not absolve local authorities … of their responsibilities” and they “must consider for each child and young person with an EHC plan what they can reasonably provide in the circumstances during the notice period”. The Notice is not a ‘get out of jail free’ card for local authorities, who will be unlikely to succeed in defending judicial reviews where they have not considered what could reasonably have been provided to a given child eg remote provision of therapies.

The rationale behind the Notice is set out at (d) of the Notice. Although the wording has changed from May, the substance remains largely unchanged. Local authorities are experiencing Covid-19-related reductions in SEND staff capacity. It may not be possible for all children with EHC Plans to attend their education settings. Even where they do attend, the normal educational programme will probably be disrupted. The relaxation is therefore said to be an appropriate and proportionate action. The proffered rationale has been criticised by some SEND practitioners who argue that the reasoning does not justify the extent of the relaxation.

The Notice was signed earlier last week (the handwritten date appears to be either 26 or 28 May) but it was not published until late on Friday 29 May, giving schools and local authorities just two weekend days to plan the provision they would make for those returning to school the following Monday (1 June 2020). If a third Notice is to follow for July, which looks likely, it would certainly be preferable for those tasked with making specified provision to be told further in advance. Indeed, if there is not to be a July Notice, and the absolute duty is to return, it would seem an even longer lead-in time would be required in order that local authorities can ensure all educational provision in EHC Plans will once again be secured.

See Alex Littlewood’s earlier blog post about the previous Notice for May.

School fees in times of Covid: Tips for schools and parents

The lockdown has posed inordinate challenges for education – with schools and universities adjusting to remote learning on extremely short notice. For private schools and universities, there have been tough choices between furloughing staff, deciding which lessons and courses to continue and justifying the level of fees, when many parents are in financial difficulty themselves. Boarding schools and universities have additional problems as they have a high level of sunk costs in infrastructure for overseas students that, at present, are not allowed to travel.

Most contracts have force majeure clauses which, aided by the WHO classification, recognise Covid-19 as a pandemic. Most of these clauses have been inserted as boiler plate clauses to deal with one-off events like war and terrorism that no one really expects will ever be triggered. Suddenly, everyone is dusting off Treitel and recalling their law school cases on frustration and Acts of God.

How do these apply to Covid-19? Frustration is where the contractual obligations are no longer capable of being performed because an event changes the fundamental nature of the bargain struck between the parties so that it would be unjust to hold them to it. Force majeure entitles either party to justify their non-performance of their contractual obligations due to an event that is beyond their control. These remedies are not easily available. A recent example is Canary Wharf (BP4) T1 Ltd v European Medicines Agency [2019] EWHC 335 (Ch), where it was held that Brexit did not make the EMA’s continued occupation of its London headquarters impossible so they remained bound by the contract.

For force majeure, the burden rests on the party seeking to excuse their performance to prove that, as a result of the event, they are prevented (i.e. it is physically or legally impossible for them to carry out their obligations) or hindered (i.e. that service delivery is “more difficult, but not impossible”). They also need to show that they cannot mitigate the loss by finding an alternative means of performance.

This cuts both ways:

  • Parents that have lost their jobs may want to withdraw their children from school and avoid paying a term’s fees in advance or giving the requisite notice period; alternatively they may want to continue their child’s education and preserve their child’s place for the return after lockdown;
  • Schools recognise that they cannot provide the full curriculum or boarding provision but want to provide continuity in core education and maximise contributions to fixed costs. Similarly, universities want to continue their courses and attract/maintain students for the next year but recognise that they cannot provide the full range of facilities

The standard remedy for force majeure and frustration is cancellation of the contract but that outcome may not be what either party needs or wants. Most contracts provide notice provisions, where either party can notify the other if they cannot perform their side of the contract any longer due to unforeseen circumstances. Some contracts may provide for an escalation procedure or cooperation provisions to manage the process. Others are silent.

The Cabinet Office has published Guidance, which encourages responsible and fair performance and enforcement of contracts during the COVID-19 emergency. It advises that parties are “reasonable and proportionate in responding to performance issues and enforcing contracts (including dealing with any disputes), acting in a spirit of co-operation and aiming to achieve practical, just and equitable contractual outcomes having regard to the impact on the other party (or parties), the availability of financial resources, the protection of public health and the national interest”. Examples where parties can relax rules in good faith, include demanding payments, granting extensions, relief for impaired performance (including the nature and scope of services provided), using ADR and mediation where appropriate

How can counterparties effectively manage this uncertain situation when neither of them may wish to call time?

  • Parents/students should notify the school or university provider if they are concerned about their ability to pay fees and seek to negotiate a reduction or staggered payments over time. That will need to be evidence-based on ability to pay rather outright refusal to pay to ensure fair and equal treatment. The important thing is not to panic and cancel your place when schools may resume in July or September as you may still end up having to pay a term’s notice. Many schools have set up hardship funds to assist parents that have been furloughed or are self-employed. You may want to add in a regular update and review, should the pandemic and job insecurity continue after 6 months or a year.
  • Most schools have notified parents that they can no longer perform the full-range of services as envisaged in the contract. This is not a breach of contract but they are fulfilling their obligation to carry out their side of the bargain to the best of their ability. The transition to online learning has been an impressive example of alternative mitigating means. Whilst some aspects (such as science experiments and practical art or boarding facilities/after school clubs) are not possible, schools have offered fee reductions of between 5-25% to reflect the lower standard of services provided.

Some parents have raised objections as they consider the fee reductions offered by their school/university are not sufficient when compared to the cut-back in facilities and extra-curricular activities or are lower than those offered by other schools. Two providers (even within the same locality) may not be comparable as they may have different levels of fixed sunk costs, different access to funding and endowments and have made different choices regarding which subjects, courses, clubs to continue. Putting pressure on schools and universities may be counterproductive as waiving a significant proportion of their fees could squeeze the cash flow leading to cost cutting, teachers losing their jobs and cut backs on future investment plans resulting in inferior services when they do eventually resume.

For schools, it is imperative that any decisions regarding prices are taken in complete independence without any direct or indirect contacts with other schools, through associations or charitable foundations. In 2006, 50 independent schools were found to have taken part in price-fixing by exchanging pricing information and were fined over £10,000 each and required to pay £3m into a trust fund. The CMA has recently sent a warning letter to private schools not to share pricing information or coordinate discounts in response to Covd-19.

However, it is important that providers do not overreact and reject opportunities for legitimate cooperation that might assist them in these troubled times. The European Commission has announced a “Temporary Framework” and the CMA has issued Competition Act 1998 Guidance, offering an exemption from competition law, for essential cooperation between competitors regarding production, distribution and logistics. For example, the European Commission has just issued a comfort letter to pharmaceutical companies for the production of intensive care medicines. Those measures will not, of course, offer protection for price fixing or market sharing, but could conceivably allow different private schools or universities to share remote learning content, allocate production of webinars or online lesson plans in certain subjects between themselves, enter into joint purchasing, distribution or logistical arrangements. The schools will need to show that such temporary arrangements generate efficiencies and cost savings and do not go beyond what is necessary to achieve those benefits for students and parents. It would also be advisable for any educational providers taking part in such arrangements to set up appropriate checks and controls to prevent any confidential information being circulated within the group of participants.