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.

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.

A2P1 and Access to Education during Covid-19

As the home-time bell rang on 20 March 2020, schools and other educational providers across the country closed their doors in response to the Covid-19 pandemic. The only pupils currently permitted to attend school are vulnerable children and the children of key workers. All children, however, continue to enjoy the right to education under Article 2 of the First Protocol (A2P1) of the European Convention on Human Rights (ECHR).

Strictly speaking, the right under A2P1 is a right to effective access to such educational facilities as the state provides. Currently, the only educational facilities being provided to most children come in the form of online classes and resources. Effective access to such facilities is likely to be much easier for some children than for others.

For example, the Good Law Project recently wrote to the Secretary of State for Education, highlighting the difficulties which children from disadvantaged backgrounds may have in accessing online learning due to the high cost of laptops, tablets and internet access. The Secretary of State subsequently announced that certain cohorts of disadvantaged children are to be given a free laptop or tablet, and 4G connectivity, in order to permit them to access online learning. See also Imogen Proud’s earlier blog post on this topic.

However, the categories of eligible disadvantaged children are relatively narrowly defined (as care leavers, those aged 0-19 with a social worker, and disadvantaged year 10 pupils). There are likely to be many children outside of this cohort whose families cannot afford a laptop or tablet, or who are required to share their device (and therefore their learning time) with siblings.

The problem has been recognised by the United Nations Committee on the Rights of the Child. The Committee has recently published a statement on the impact of Covid-19 on children, calling for states to “ensure that online learning does not exacerbate existing inequalities or replace student-teacher interaction. Online learning is a creative alternative to classroom learning but poses challenges for children who have limited or no access to technology or the Internet or do not have adequate parental support.”

Similarly, there is likely to be a significant cohort of children with disabilities and/or special educational needs who may find it more difficult or impossible effectively to access mainstream online resources. For example, children with visual impairments may require educational activities based around audio learning, whilst children with sensory needs are also likely to require specifically tailored activities.

The ability of some children effectively to access online learning and not others could, in principle, give rise to issues of discrimination on the grounds of socio-economic status or disability, contrary to Article 14 ECHR read with A2P1. For example, a local authority which fails to provide a disabled child with online learning in a form which is genuinely accessible is likely to be prima facie discriminating against them on the basis of their disability.

It would be open to the local authority to justify such discrimination. In order to do so, it would have to show that providing non-accessible home learning is a proportionate means of achieving a legitimate aim. Clearly, the need to curtail the spread of the Covid-19 pandemic, and the limited resources of public authorities during the crisis, will carry significant weight in any such analysis. In any given case, however, the local authority will be required to show that it has addressed its mind to the impact which failure to provide accessible materials will have on the individual rights of the child and balanced those rights against the interests of the community.

Ciar McAndrew is a junior barrister with a developing education law practice and a longstanding interest in education law issues.

Teachers threaten to sue over return to work

The teachers’ union NASUWT has threatened to sue local authorities if its members are forced to return to school without the same PPE given to NHS staff. The union said it has “fundamental concerns” about the government’s 1 June timetable for re-opening schools. The cause of action is said to be “breach of duty of care and personal injury due to foreseeable risk, and any other legal recourse available”.

The complexity here is that, in forming policy, the government must weigh the duties rightly owed to teachers against the harms which are accruing during the period of school closure, particularly to the most vulnerable children (see my earlier blog post). It seems the union’s answer is that the provision of the requisite PPE is the best route to a fair balance.

The Guardian is covering this story here.

Changes to the EHCP regime during Covid-19: a quick guide for parents and representatives

What are the New Regulations?

On 1 May 2020, the entitlements of children with SEND (and their parents) in relation to the Education, Health and Care (EHC) Plan process changed. The Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the ‘New Regulations’) came into force. They will expire on 25 September 2020 unless extended. The New Regulations amend four existing sets of Regulations including the Special Educational Needs and Disability Regulations 2014 (the ‘SEND Regulations’).

The New Regulations were also considered in an earlier post by Alexandra Littlewood, which may also be of interest to readers.

Accompanying guidance was published on 30 April 2020, entitled ‘Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19)’ (the ‘New Guidance’). This guidance is non-statutory. Whilst not binding, there is an expectation that it be followed by LAs.

What changes have the New Regulations made?

The temporary changes introduced are to the timescales within which Local Authorities need to take steps within the EHCP process. The steps which LAs are required to take remain the same, and technically the time limits remain unchanged, but LAs are now given a reason (or, in some cases, an additional reason) why they may lawfully miss a deadline. Where is not practicable for the LA to meet certain requirements for “a reason relating to the incidence or transmission of coronavirus”, the LA need no longer comply with the time limit. This is called the “coronavirus exception” in Regulation 5 of the New Regulations. In relation to certain requirements, the LA is required instead to take the action “as soon as reasonably practicable”.

The following timescales have been amended so that now the LA need not comply “if it is impractical to do so because of a reason relating to the incidence or transmission of coronavirus”:

    • 6 weeks for an LA to notify a child’s parents that it has determined that it is not necessary to make special educational provision in accordance with an EHCP (Regulation 4(1) of the SEND Regulations, amended by Regulation 6 of the New Regulations)
    • 6 weeks for an LA to notify a child’s parents of a decision whether or not to conduct an EHC needs assessment (Regulation 5(1) of the SEND Regulations, amended by Regulation 7(b) of the New Regulations)
    • 16 weeks for an LA to notify a child’s parents of a decision not to secure an EHCP (Regulation 10(1) of the SEND Regulations, amended by Regulation 9(b) of the New Regulations)
    • 20 weeks for an LA to send a finalised EHCP to a child’s parents (Regulation 13(2) of the SEND Regulations, amended by Regulation 10 of the New Regulations)
    • 1 year in which an LA must review an EHCP, which is replaced by a requirement that the LA instead conduct a review as soon as reasonably practicable (section 44(1) of the Children and Families Act 2014, see now Regulation 11 of the New Regulations)
    • 8 weeks for an LA to amend a plan following a review (Regulation 22(3) of the SEND Regulations, amended by Regulation 12 of the New Regulations)

A full list of all the changes made by the New Regulations can be found in Annex A to the New Guidance.

The 15 days which parents must be given in order to make representations on a draft EHCP is not changed (Regulation 13 of the SEND Regulations).

Parents and advisors should note that the Secretary of State has been given the power to ‘pause’ the duty of LAs to conduct annual reviews of EHCPs (Sch 17 para 5 of the Coronavirus Act 2020), but this has not yet ben used, so annual reviews are still required at the moment.

What should parents expect?

The amendments do not give LAs a licence not to comply with legal deadlines for any reason they choose. Their reason for non-compliance must relate to Covid-19. Further, if subject to legal challenge, it is likely that an LA merely pointing to the existence of the Covid-19 pandemic will be insufficient to establish that failure to comply with a deadline was lawful. Rather, the LA would need to establish that the failure was specifically “because of a reason relating to the incidence or transmission of coronavirus” ie it seems necessary to be able to identify a specific “reason”.

Parents should be vigilant. Where it is suspected that the new leeway is not being used properly, parents may wish to seek legal advice.

The substantive entitlements of children with SEND remain unchanged. There has been no relaxation of the duty to consider new requests for assessments, so parents should continue to make such requests as before, where they have concerns.

School closure: the impact on children and parents unfolds

Where are we now?

Schools in England, along with childcare and other education providers, have been closed “until further notice” since 20 March 2020, for all but vulnerable children and the children of critical workers. With several European countries beginning to re-open schools (Denmark from 17 April, Germany from 4 May and France from 11 May), it remains to be seen when and in what way the closure of our schools will be brought to an end. At the time of writing, the Department for Education (DfE) maintains that no date has been set for schools in England to re-open, but there is speculation around an announcement on 10 May. Geoff Barton, General Secretary of the Association of School and College Leaders (ASCL), has conjectured that the earliest “realistic” point at which schools in England could start re-opening would be from 1 June. A poll for the Observer on 2 May 2020 suggested that fewer than 1 in 5 of the British public believe the time is right to consider re-opening schools. However, in the meantime, the impacts of school closure – including its myriad legal implications – continue to accumulate.

What is the impact of continued closure on children and parents?
  • The most obvious impact is upon pupil progress. The attainment gap between maintained and independent school pupils will likely broaden, as fee-paying schools are incentivised to provide more and higher quality online resources in order to justify continuing to charge fees which are often only slightly reduced below normal rates. (A future blog post will consider parents’ ability to bring legal actions where online teaching quality is not considered commensurate with continuing fee levels.) Initiatives such as the Oak National Academy, whilst helpful, are unlikely to bridge the gap.
  • The negative impact of virtual-only schooling is likely to be felt most acutely by disabled children and those from low income families, raising the possibility of indirect discrimination. The Government announced on 19 April that “disadvantaged children” (care leavers or those with a social worker) were to be given a free laptop/tablet and 4G based mobile broadband to access online learning. However, it seems a band of children who do not fall within this definition of “disadvantaged” but nonetheless cannot access remote education could continue to see their right to education infringed by local authorities who have an obligation to ensure all children can access teaching. Readers may also be interested in Ciar McAndrew’s blog post of 18 May 2020 on this topic.
  • Whilst schools are required to remain open for vulnerable children (defined as those with a social worker or an Education, Health and Care Plan), uptake has been considerably lower than hoped, with just 5% of vulnerable children entitled to a place turning up. Some parents are believed to be keeping children from school in response to broad, strong Governmental messages to stay home. However, if non-attendance were due to insufficient school places for vulnerable children (or children of critical workers) during school ‘closure’, responsibility lies with local authorities who are tasked with monitoring demand and supply, and eligible children with nowhere to go may have a legal cause of action against them. For a proportion of the children entitled to free school meals, their school dinner can be the most nutritious meal of the day, and so schools are expected to continue to provide support either in the form of food or vouchers, through the Department for Education’s national voucher scheme. Concerns remain that school closures could leave children hungry, as food and vouchers may not reach all children from low income families.
  • During term time, teachers and other school staff are often the first to identify and report when a child may be vulnerable to abuse and neglect, or specific harms such as FGM or being drawn into terrorism (under the ‘Prevent Duty’). School closure brings an end to this safeguarding potential. Coupled with this is the fact that, as highlighted by the CEO of the NSPCC on 8 March, children not known to social services are more at risk at home than anywhere else. This means that, for example, sexual abuse – both in person and online – is likely to increase at the same time as schools’ ability to monitor children for such issues is removed. The Government pledged £1.6 million on 19 April 2020 to the NSPCC to expand its national helpline for adults raising concerns, but this safety net can by no means catch all children.
What should we expect?

When schools re-open it is going to be necessary to maintain social distancing, which will require advance planning, making a short-notice announcement of schools re-opening unlikely. It may be safest to do as other European countries re-opening schools have done and reintroduce certain year groups first. It was previously thought by some, including the ASCL, that it was most likely that England may opt for the German model, under which those preparing for upcoming exams or for secondary transfer return first. However, the Prime Minister indicated on 3 May that primary schools may be prioritised, which would mirror Denmark’s approach. Amanda Spielman, head of Ofsted, supports such a method. Any decision by Boris Johnson or Gavin Williamson would only apply directly to schools in England, since education policy is devolved to national administrations.

In the meantime, whilst the Government has thus far not responded to calls to make it compulsory for vulnerable children to attend school, it would be beneficial to have clearer Governmental messages around the availability of school places for them, which stress that those places are to help pupils and parents rather than to be a burden. Unless the most vulnerable soon return to school, the ramifications set out above will continue to cause problems, and families may turn to the courts for the remedy.

Imogen Proud is a barrister at Monckton Chambers who practices in Education Law. Before coming to the Bar, she was a state school teacher in Hackney and Islington.