The Coronavirus pandemic has had a massive impact on each and every one of us and schools are under a huge amount of pressure against a very uncertain backdrop. The Government has announced that schools are to close for most pupils but they should allow the most vulnerable pupils, pupils with Education, Health and Care Plans (“EHCPs”) and pupils of ‘key workers’ to attend. Further details have been released as to who will qualify under this criteria and is available here. This is going to present a significant challenge to schools in circumstances where staff may be required to self-isolate at short notice and many staff have already had to do so. It also seems that some schools are intending to offer this provision individually and other schools will work with others in their locality to create a ‘hub’ school for these children to attend, which could raise logistical challenges for parents and carers. A clearer picture of how this provision will be delivered in practice should emerge over the next few days.
Schools must continue to follow advice from the Government and Public Health England but our School Support Service are here to provide guidance and reassurance along the way and can be contacted via our helpline.
Our team have already responded to a number of legal issues that have arisen as a result of this crisis so we have produced this article to summarise some of our experiences so far and to highlight areas that we anticipate might cause schools some issues going forward.
We have received a number of enquiries from schools about whether supply agencies should be paid during this period of partial school closure. We have prepared a policy / statement that schools can issue to agencies upon receipt of such enquiries. Please get in touch if you would like more information.
It is very important that schools ensure that a plan is put in place for any children for whom there is a safeguarding concern but who might not qualify for continued attendance under the Government’s plans and / or where those children are kept at home by their parents or carers in order to self-isolate or because they do not want their child to go to school.
Schools will also need to review any individual health care plans that are in place for any children with medical conditions who are continuing to attend school to ensure that members of staff who may not be familiar with their medical needs have any information that is necessary for the welfare of the pupil (it is particularly important to securely share this information if the pupil is attending a different ‘hub’ school). As part of this review, schools will need to ensure that they have trained staff who can administer medication where that forms part of a pupil’s health care plan and that sufficient stocks of medication are held on site. For pupils with medical conditions who are not attending school, it is important to check if the parents or carers require you to return any medication that you hold on site to ensure that those children have enough of their medication at home. Please liaise with an appropriate healthcare professional for further support.
In addition, pupils will be spending large amounts of time online if they are not attending school which increases the risks surrounding online safety such as cyber-bullying and radicalisation. Many young people may also struggle with their mental health as a result of isolation. Schools should alert pupils and parents / carers to policies and information about how to manage these issues during this period and signpost them to how they can obtain support.
The Government guidance acknowledges that it will not always be possible for those children in school at this time (i.e. children of keyworkers and vulnerable children including those with EHCPs) to continue to attend their usual provider/setting. It goes on to advise that where a setting is unable to stay open, the Department for Education will work with the local educational authority, regional school commissioners and neighbouring providers to find an alternative setting for their pupils. If you have pupils with EHCPs and are in a situation where it is impossible for your school to stay open due to a lack of staff availability, you should contact your local authority in the first instance to discuss their contingency plan. We are aware that some schools have rota arrangements in place with neighbouring schools. It may be that there are experienced or specialist staff available in your local area (for example in Specialist Resource Bases attached to local mainstream schools) who could help with delivering the particular support or provision that a pupil needs.
In terms of the duty to provide the provision specified in a child or young person’s EHCP, again the Government recognises that in times of widespread school closures and staff shortages this is going to be extremely challenging for education settings. The Coronavirus Bill (which is not yet law at the time of writing) contains a provision relating to the s42 (Children and Families Act 2014) duty to secure provision through an EHCP to make it one that is discharged by the person responsible using “reasonable endeavours”. It will be important to be able to show what you have done to try and deliver key provision where possible especially, for example, if it is necessary for the pupil to be able to regulate their behaviour at times such as these when anxiety is likely to be heightened and routines disrupted. Clear and regular communication with parents will be extremely important.
We are aware that there is advice being provided to the parent community from SEN advocates and charities that suggests to parents that if they feel strongly that their child needs to continue receiving (at least some) educational input, the key thing to flag is whether there could be a risk to their health, wellbeing or safety if they do not receive a particular provision or intervention.
Behaviour / discipline
Behaviour and discipline issues are likely to materialise during the period of school closure and there are interesting questions about the extent to which schools will have much control over this in relation to the pupils who are off site. Where schools are providing remote learning facilities, we anticipate that it might be helpful for schools to issue an updated behaviour policy to set out your expectations for the completion of work and the rules relating to online conduct and general behaviour.
It is also likely that schools may have to respond to behaviour issues involving the children who attend school and thought will need to be given to how those issues will be managed lawfully if there is an altered management structure. Given that some members of staff may be asked to work with children whose needs they are not familiar with, urgent training on the school’s positive handling policy should be provided where appropriate for the protection of the staff and pupils.
Schools are likely to receive many enquiries from suppliers and service providers about whether payment will be received during the period of closure. Some contracts are going to be affected more than others and each contract will need to be looked at on a case by case basis to decide what the best approach is in the circumstances. Some contracts may have a ‘force majeure’ clause which sets out what should happen to the contract if circumstances beyond the parties’ control arise, although usually steps have to be taken to mitigate or avoid the effects of the force majeure event. However, the wording of such clauses will vary in different contracts and may or may not cover the school’s situation. Whether or not there is a force majeure clause, schools will need to proceed with caution and our team can support you if you require advice on specific arrangements.
Trustees and governors should provide ongoing governance as best as they can in the circumstances. Communication is key so chairs / clerks to Governing Bodies should aim to contact the rest of the governing board(s) to outline their proposals for the continued operation of the Governing Body, including any online / telephone conference facilities that are available to enable the trustees / governors to continue to operate remotely. If your Board does not currently have the power to hold virtual meetings, then trustees / governors should address this as one f the first items on the agenda. Contingency plans should also be put in place in case trustees or governors become ill. Trustees of multi academy trusts should update governors on local committees about an interim measures that are in place during this period and keep them updated as the situation develops.
For any urgent decisions, a school might need to rely on ‘Chair’s Action’, although you would need to check if such authority has been delegated to the Chair (and possibly the Vice-Chair) to enable this to happen. We can advise further on the process of delegating this authority and the wording for a resolution if required.
Subject to Government and Public Health advice, urgent issues that are likely to require attention in light of the requirement for schools to stay open for certain groups of children include (but is not limited to) contingency plans should key members of staff have to self-isolate or become ill and management of health and safety and safeguarding if there are reduced staffing levels.
As many staff are now working from home, it raises a number of data protection issues that schools need to be alert to. Reassuringly, the Information Commissioner’s Office have confirmed that they will not take regulatory action if an organisation’s data protection practices are not up to their usual standard as a result of the pandemic if organisations need to prioritise other areas or adapt their usual approach during this extraordinary period.
However, it will still be important for schools to consider data protection as part of their management procedures going forward, not least because of the potential safeguarding risks associated with a data breach. Given the large amount of personal data and sensitive personal data that staff members will now be processing from home, ideally schools should carry out a data protection impact assessment to help to identify any measures that need to be put in place to manage the risks. Staff should be reminded about the need to be careful with personal data and support and advice should be given to staff to ensure that they have appropriate security and anti-virus measures on their devices and laptops. You should review your policy on the use of personal devices / home working and update it to reflect the current circumstances if required.
Our hope is that all stakeholders will be supportive of schools at this very difficult and challenging time but sadly we are already hearing from some of our clients that this is not the case. In the event that schools find that they are receiving any difficult or serious complaints, we anticipate that it may be necessary to prepare an updated complaints policy which will set out how any such issues will be handled in these circumstances. Our team can assist with such a policy should this be required and help with any specific complaints if schools do not have the capacity to respond to parents at this time.
This is a worrying time for everyone and parents may be asking questions that you are simply not in a position to answer while the new arrangements are bedding in. However, a clear and consistent communication policy with regular updates for stakeholders should help you to provide reassurance to the community and help you to ensure that your resources are not diverted away from other issues which require your attention.
Once the new system comes into force, it is likely that there will be various issues that arise that might call for a revised or interim policy to help the school to maintain control and manage risks appropriately. Please contact our team for further advice or support with your policies.
This briefing is intended to summarise some of the key issues that schools will need to consider as we enter an uncertain and unprecedented period for schools. It is likely that there will be many other issues that schools will need to tackle over the weeks and months ahead.
Many schools will feel that they are firefighting other urgent issues at this point in time and it may seem as though the rule book has gone out of the window for now. However, when the immediate crisis subsides, it will be important for schools to establish systems and structures to help you to steady the ship and manage the situation for the foreseeable future.
Schools are resilient and flexible and we know that our clients will cope with the difficult road that lies ahead in the way that you do with all the other challenges that you encounter on a day to day basis.