THE Government asked schools to open for more pupils at the start of June, but without issuing any statutory guidance for schools to rely on. Statutory guidance would have provided greater clarity for schools about their legal responsibilities.
With a multitude of practical issues to consider, you might think that schools have enough to think about without worrying about the legal details. But where do the legal risks lie if something goes wrong in the face of such unclear guidance? School leaders, governing bodies, and academy trustees/directors need answers, and these are still not easy to find.
In contrast, the Coronavirus Act 2020 is powerful legislation, as are the “lockdown” regulations made separately in England and in Wales under section 45R of the Public Health (Control of Disease) Act 1984. In Wales, the coronavirus guidance published in respect of schools is explicitly said to be published under the Welsh regulations.
It has been made clear in Wales that the existing provision in schools for special groups of children is predominantly childcare. Such education as they received was expected to be a face-to-face version of what all pupils on the roll of each school should otherwise be receiving online. It was announced earlier this month that schools in Wales would reopen to all pupils on 29 June, with a phased return in place for about one in three children to attend, to minimise the risk of Covid infection.
But, in England, specified year groups are intended to receive “education” (not childcare) from 1 June (Comment, 5 June) — although this is not really clear in the guidance, and, if true, would prompt questions about equality of access. Real concerns are being raised that “hard-to-reach children” in disadvantaged families and communities are less likely to come to school or undertake online study, with the consequent long-term damage to their education and life chances.
BUT it is uncertainty about where the liabilities rest in these challenging times which will also be worrying school leaders, governors, and trustees. They are the bodies with overall responsibility for running schools as educational institutions, and, for voluntary aided and foundation schools and academies, they also employ the staff. Neither the Department for Education guidance nor any legislation relieves them from full liability (corporately, and perhaps, in some circumstances, individually) for all the consequences of their decisions.
Of course, those making such decisions are being told that they must do a risk assessment, but they can do so only in the light of the uncertain advice being issued by the Government against an ever-increasing variety of scientific views. How liable are children to be asymptomatic carriers who may transmit the virus? What protection distances really need to be observed? What level of PPE do staff — or, indeed, pupils — need? Are supplies likely to be available? Is regular testing required or likely to be available? Why are face masks required on public transport but not in schools? All of these are important questions with no clear answers in the guidance.
Some of the difficult issues that we are being asked about include frequency of risk management, insurance, job descriptions, unwilling staff, union opposition, the developing scientific advice, health and safety and safeguarding duties, the requirements of church-school site trusts for the sites to be used as schools (not childcare), and with RE and worship as conditions of occupation.
My firm’s webinars on these topics fill almost as soon as we offer them: a sure sign of general anxiety about expanding provision and, in turn, of unsatisfactory guidance.
The uncertainties make it difficult for the responsible bodies to know when they have done enough to discharge their duty of care. If the Government wishes school leaders, governors, trustees, or directors to shoulder the liabilities consequent on a misjudgement, or just bad luck, then it owes them indemnity (whether by means of insurance or otherwise) should legal action of any sort ensue. But there is no suggestion that any such support is being thought about, much less that it will be guaranteed.
In conclusion, the lack of a coherent legal and regulatory framework for the current guidance in England has left school leaders in a vulnerable place. The Coronavirus Act gives the Government immense powers. It should use them and should issue, at the very least, statutory guidance that will protect school leaders and their governance boards, thereby enabling them to undertake, with minimum risk, the phased and safe return of children to school.
Howard Dellar is a solicitor at Lee Bolton Monie-Williams who specialises in charity, ecclesiastical, and education law.