Khatija Hafesji considers the Department for Education’s latest school closure and mass testing decisions and their implications for the right to education.
On 2 January 2021, the National Association of Head Teachers (“NAHT”) announced in a message to its members that it had sent a pre-action letter to DFE concerning its plan for a phased reopening of schools in January. The challenge appears to be on multiple grounds, including the plans to introduce mass testing in schools. NAHT is joined by the Association of Schools and College Leaders in its proposed judicial review, and the action is designed to support their call for government to “remove people in schools from the physical harm caused by the current progress of the disease and to work with the professional and Public Health England to establish new protocols and interventions to make schools covid-secure.”
The government’s position in respect of secondary school students, which was revised on 30 December 2020, is set out in updated guidance entitled “Schools and childcare settings: return in January 2021” and provides for a phased return to education. The plan is for all pupils to return to on-site education by 18 January 2020, but with the following steps to be taken in the coming weeks:
The testing regime proposed for schools appears (from guidance published on 15 December 2020) to consist of lateral flow tests, which is a device designed for mass asymptomatic testing recently piloted by the government and described in the guidance as providing results in 30 minutes.
The position concerning primary school children is different. Primary school children are expected to return to school at the usual start of term, with testing to be rolled out in mid-January. This is with the notable exception of children attending Primary schools in London, who are subject to the same timetable set out above.
The government’s position, which appears to have the support of the Children’s Commissioner, is that it is in a child’s best interests to remain in school. This is because most children are at very low risk of having a severe response to the Covid-19 virus, and remote learning is a poor substitute for on-site education.
NAHT’s position looks to the public health implications of schools remaining open. They are the subject of intense debate, however it appears from the introduction to the Contingency Framework published on 1 January 2021 that the government’s rationale for keeping schools open is based upon a narrow focus on the risks posed to staff and students from Covid-19 compared to the detriment children will suffer if they are out of school. The position is based on upon scientific advice which has not yet been disclosed. It is unclear the extent to which the government has had regard to the wider public health implications of keeping schools open and taken that into account in its risk analysis, this includes the health impact on the families of staff and children, as well as the wider community with whom children and staff come into contact. Fears are particularly acute for those most disadvantaged in society who are more likely to live in overcrowded accommodation, with extended family, and where other family members cannot work from home. The understanding of the link between keeping schools open and the spread of Covid-19 has also developed since the decision was taken to reopen schools in September 2020, as has the nature of the Covid-19 virus itself.
No doubt the requests for information made by NAHT in its pre-action correspondence go to the extent to which these considerations were taken into account by the government before reaching its decision and, the extent to which the decision taken was rational in the light of that information. Another potential argument, following on from the case of Article 39 v Secretary of State for Education  EWCA Civ 1577 may concern the extent to which the Children’s Commissioner was consulted, particularly around improving the provision of remote education to children in the coming weeks.
The focus of this blog post, however, is more on what impact the closure of schools (as advocated by NAHT) will have on children’s education and particularly on equality of opportunity and the life chances of those disproportionately affected by the closures. What rights do such children have and what obligations does the Secretary of State, local authorities, and schools owe all children during this difficult time?
The Temporary Continuity Direction
On 30 September 2020 the government published the Coronavirus Act 2020 Provision of Remote Education (England) Temporary Continuity Direction, which requires that where a class, group of pupils, or individual pupils need to self-isolate or there are local or national restrictions requiring pupils to remain at home, schools are expected to provide immediate access to remote education. The direction remains in force and does not apply to post-16 education. The quality standards for the education to be provided is set out in the guidance for full opening which provide that provision:
In addition to being enforceable by the Secretary of State, a breach of the direction may also be relied upon by an individual child who is not receiving the education which their school is required to provide.
Article 2 of the First Protocol of the European Convention of Human Rights (“A2P1”) guarantees an individual right to education. The key case which sets out the substance of this right is Belgian Linguistic (1968) 1 EHRR 252 notes that the rights protected by A2P1 include inter alia (i) the right to access educational institutions existing at a given time, and (ii) the right to an effective education. The right is not an absolute one, however any restrictions which the state imposes must be foreseeable for those concerned and pursue a legitimate aim. The means must be reasonably proportionate to the legitimate aim. However, any restrictions imposed by the state cannot go so far as to impair the very essence of the right or to deprive it of its effectiveness (Leyla Sahin v Turkey no. 44774/98 ECHR 2005-XI). The state is afforded a margin of appreciation, however this varies depending upon the importance of the education to the individual and society at large. Accordingly, there is a greater margin of appreciation afforded to the restriction of the right to access higher education than restrictions to primary or secondary education (Ponomaryovi v Bulgaria no. 5335/05, ECHR 2011 at para 56).
Impact thus far of school closures on disadvantaged children
Where schools close as a result of the Covid-19 pandemic, state provision of education switches (for most children) from on-site provision to remote provision. It is arguable that to ensure that all children have an effective right of access to this education, the state needs to take proactive measures to ensure that the provision on offer is suitable for all children and that all children can access it. The experience of school closures from 2020 suggests that this did not happen:
The impact of missed education may be most acute for those in their examination years, however the notion that children in other year groups can simply ‘catch up’ is not supported by the evidence. Missed education is highly likely to exacerbate pre-existing inequalities. This is likely to have a disproportionate impact on children from ethnic minority backgrounds, those who are suffering neglect and abuse at home, and those who have special educational needs or disabilities.
On 1 October 2020, additional resources were committed by the Secretary of State and the eligibility criteria were expanded. However, the above evidence from the Children’s Commissioner indicates that schools were already under-resourced – the additional contribution may only have reduced the shortfall, not cured it. Moreover, it is unclear whether additional resources have been provided to schools in order to prepare for two weeks of school closures this term. In any case, the Secretary of State’s focus on access to technology excludes several other key issues faced by disadvantaged children, including the availability of study space, the difficulty of multiple children trying to access resources simultaneously, the importance of nutrition, the impact on children with SEND who require specialist resources, and the impact of the inability of some parents to adequately support their children with learning.
If schools are to close again, the state – working with schools and local authorities – must do more to ensure that all children can access effective education. There is precedent for a more proactive approach in order to comply with A2P1, see Orsus and Others v Croatia (2010) 52 EHRR 300 para 177, a case concerning poor attendance and high dropout rates of Roma children. The General Court held that this “called for the implementation of positive measures… [including by] active and structured involvement on the part of relevant social services.” It seems to me that the apparent inadequacy of the resources allocated by the Secretary of State to schools and local authorities to deliver the remote learning they are directed to provide is key to any challenge in this regard. Accordingly, if school closures are achieved, the next step must be to ensure that children – particularly those most disadvantaged – are not left behind.
Khatija Hafesji is a barrister at Monckton Chambers with a broad public law practice, including in children’s rights and education law. She previously worked at the University of Cambridge Admissions Office on access for disadvantaged children to higher education. This article has been republished by the Local Government Lawyer.