Requirement to Provide Remote Education
From 22 October 2020, the Coronavirus Act 2020 Provision of Remote Education (England) Temporary Continuity Direction places a legal duty on schools to provide immediate remote education in the event that a class, group, or small number of children need to self-isolate, or a local lockdown requires them to remain at home.
The Direction applies to all state funded schools: maintained schools, maintained special schools, academies, Alternative Provision academies, pupil referral units and also to independent schools where the pupil’s place is wholly funded from public funds.
The Direction only applies to children of compulsory school age (and those who would normally be educated in the same class as those of compulsory school age, for example Reception pupils who are still aged 4). It does not apply to post 16 education settings.
The Direction will apply for the rest of the current school year, 2020-21, unless revoked by a further direction.
Department for Education Guidance
The Direction states that schools must have regard to the Department for Education’s “Guidance for full Opening: Schools” document published in July 2020 and updated on 1 October. The Guidance states:
- Schools should (from the end of September) already have a contingency plan in place for the delivery of remote education.
- It anticipates that there will be a mixture of online and offline learning.
- It recognises that pupils with SEND may have difficulty in accessing remote education without adult support and states “pupils should work with families to deliver a broad and ambitious curriculum”. There should not be an over-reliance on long term projects, internet research, or activities which would place significant demands on parents’ help or support.
- There is an expectation that there will be some daily contact with teachers, and that the educational programme is the equivalent length to the core teaching time in school.
- Schools should work collaboratively with families, making reasonable adjustments where necessary, for pupils with SEN to be able to access remote education alongside their peers.
- The duty is on the Local Authority (and the Clinical Commissioning Group where applicable) to secure provision set out in an Education, Health and Care Plan (“EHCP”)[1]. Pursuant to similar provisions in s.66 of the Children and Families Act 2014, schools are also under a duty to use their “best endeavours” to secure provision needed by a pupil to meet their special educational needs. The Guidance acknowledges that it will be difficult to deliver provision, for example where a pupil is self-isolating.
- The emphasis is on addressing each individual case, for example considering if provision can be delivered online; there is no “one size fits all” approach.
Possible Implications for Non-Compliance
The Direction provides that the Secretary of State for Education can apply for an injunction against the Responsible Body of a school which is not complying with the Direction to require it to do so, although the Direction also acknowledges that legal action would be a last resort and where concerns or issues have been identified or raised by schools themselves, the Department’s first priority will be to help schools with their remote education plans and provision.
If a school treats a pupil with a disability less favourably than a non-disabled pupil without objective justification it may be at risk of a claim for disability discrimination. A number of actions, decisions or inaction can be construed as “unfavourable treatment”, and “even if a school thinks that it is acting in the best interests of a disabled pupil, it may still be treating that pupil unfavourably”[2]. Disability discrimination claims are brought by parents against the Responsible Body (RB) of a school, and can be very costly and time consuming for schools to defend. Pupils with SEN (with or without an EHCP) are not automatically considered to be disabled, but neither is it a requirement for a pupil to have any sort of diagnosis for them to be considered as disabled within the definition of disability set out in the Equality Act 2010. If a Tribunal claim is received, the RB must seek legal advice immediately as the SEND Tribunal timetable generally requires a full response to the claim together with supporting documentation and evidence within 8 weeks (or sooner in the case of a pupil who has been excluded and where the parent is seeking reinstatement). We have significant experience in acting for schools in defending these claims and can provide advice and support.
An allegation of disability discrimination and/or non compliance with the Direction to provide remote education might also result in negative publicity in the press and/or on social media.
Finally, the School is likely to receive formal complaints from parents if it does not comply with the Direction.
Catch-up Premium and the NTP
In July 2020 the Department for Education announced that schools would be provided with a COVID-19 catch up premium. This is available to all maintained mainstream and special schools, and is intended to be used to support pupils to catch up for teaching lost during the lockdown period where schools were not fully open. Schools have flexibility to spend the grant in accordance with their own circumstances, and the Education Endowment Fund have produced guidance on COVID-19 support for schools which can be accessed here.
The National Tutoring Programme is a separate government initiative intended to support disadvantaged pupils whose education has been most affected by the COVID-19 school closures. Further information is available on the website.
Annual Reviews
Pupils who have an EHCP and whose needs have changed significantly may require different and/or additional provision than that which is set out in their EHCP. Schools may therefore want to consider holding an early annual review. It is important that any early review is convened in the same way as an annual review, and we can provide advice to schools on the requisite procedure and timelines.
The relaxation of timescales for annual reviews and statutory assessments of SEN that were in place temporarily pursuant to the Coronavirus legislation ceased on 25 September 2020, and Local Authorities are required to conduct annual reviews and statutory assessments within the usual timescales as set out in the Children and Families Act 2014 and the SEND Code of Practice 2015.
Further Information
For further information on any of the issues raised in this briefing note, please contact our School Support Service team on 0345-070-7437 or schoolsupport@wslaw.co.uk.
[1] As of 25 September 2020 the temporary relaxation of the s.42 Children and Families Act 2014 duty pursuant to a notice issued under the Coronavirus Act 2020 expired and Local Authorities are again under an absolute duty to secure provision in an EHCP rather than just to use their reasonable endeavours to do so.
[2] Equality and Human Rights Commission Technical Guidance for Schools in England, updated July 2014, paragraph 5.44