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FAQs - Covid-19 - Operational and Governance Issues for Schools and Academies

03 April 2020

With schools closed, exams cancelled and new guidance issued on almost a daily basis schools are adapting quickly to deal with the current crisis.

We have drawn together some of the most recently asked questions from maintained schools and academies, together with answers that are current at the date of publication. For specific advice on any of these issues please contact the team using the contact details at the end of this article.

Further information on employment law issues during the Covid-19 crisis may be found here and here on our Covid-19 news pages.

 

No. This only applies to primary and secondary schools, not special schools and alternative provision. Primary and secondary schools are only required to remain open for children who are vulnerable, and children whose parents are critical to the COVID-19 response or work in a critical sector and cannot be safely cared for at home.

The closure of schools and academies will end when the DfE directs.

Where possible, schools should be open over Easter for children who are vulnerable, and children whose parents are critical to the COVID-19 response or work in a critical sector and cannot be safely cared for at home.

The arrangements for staff will be made in accordance with their contract of employment. Employers may negotiate the terms upon which they engage staff in the holidays and the most sensible approach is likely to be a rota system bearing in mind home circumstances may make it difficult for employees to continue to work through the holidays. Depending upon their terms and conditions, staff may be entitled to additional pay for the work undertaken and/or to have time off in lieu of days worked.

Unions recommend holidays are operated on a two week rota - this will offer significant benefits in protecting staff health through minimising the extent of contact with different colleagues. This arrangement should be recorded and staff asked to sign an agreement. Some staff will not be able to participate if they are shielding or off sick due to self isolation or illness.

The critical sectors include: health and social care; education and childcare; key public services (such the justice system, those delivering frontline services or managing the deceased, journalists and broadcasters); local and national government; food and other necessary goods; public safety and national security; transport; utilities, and communication and national services. Further details are available here.

Those children: with a child protection plan; looked after by the local authority; with an EHCP; disabled; or unlikely to achieve or maintain a reasonable standard of health or development or whose health or development is likely to be significantly or further impaired without local authority support.

Mainstream schools are advised to risk-assess each child in consultation with the local authority and parents to decide whether they need to be in school or can safely have their needs met at home. Where a child cannot be educated in school, for example because of staff absence, and it is not safe for them to be at home, the local authority remains under a statutory duty to secure the special education provision specified in the EHCP and will need to do this by securing staff or premises from elsewhere.

Special schools must remain open and should also risk-assess each child in consultation with the local authority and parents and then notify the local authority where the child cannot be educated in school and it is not safe for them to be at home. It will then be for the local authority to secure the provision specified in the EHCP by other means.

Alternative provision settings should remain open where it is feasible to do so and should similarly risk assess each child in consultation with the local authority and parents to decide whether they need to be in school or can safely have their needs met at home. Where neither is possible, the local authority remains under a statutory duty to arrange their education to be provided by other means. The DfE will also provide support to keep alternative provision open where it is feasible to do so.

These schools are considered households for the purposes of the household self-isolation policy, meaning they should self-isolate if a resident shows symptoms. As these settings will have staff and other professionals arriving and leaving the premises, they will need to review visiting guidelines and risk assessments and implement infection control measures. Further guidance is available here.

Primary and secondary schools do not need to take an attendance register and should use Code # (planned whole or partial closure). However, schools should use the short daily return to report whether they are open and how many children and staff are in school for safeguarding purposes.

Yes, but only for children who are vulnerable, and children whose parents are critical to the COVID-19 response or work in a critical sector and cannot be safely cared for at home. For all other children, no offence is committed while the DfE requires the school to remain closed.

The duties of parents and local authorities in respect of school attendance orders don't apply to the extent that any failure to comply is attributable to the DfE direction on school closure. Existing school attendance orders therefore continue to apply and new school attendance orders may therefore be made but only for children who are vulnerable, and children whose parents are critical to the COVID-19 response or work in a critical sector and cannot be safely cared for at home. School attendance orders do not apply and may not be made in relation to any other children until the DfE directs that schools are to re-open.

Schools are required to provide free school meals to children who are vulnerable, and children whose parents are critical to the COVID-19 response or work in a critical sector who are educated at school. Schools are also expected to provide meals and food parcels to children not attending school in line with social distancing guidance and discuss this with their catering provider. Where this isn't possible, schools can provide eligible families with supermarket vouchers in term-time weeks. The DfE has created a centrally-funded national voucher scheme to support this. Further details are available here.

Alongside the voucher scheme above, schools and academies can claim for legitimate additional costs due to Covid-19 up to the following limits.

Mainstream schools and academies can claim up to

• £25,000 (250 pupils or fewer)
• £30,000 (251-500 pupils)
• £50,000 (501-1,000 pupils)
• £75,000 (over 1,000 pupils)

Special schools and alternative provision can claim up to £50,000.

Our article here provides further detail.

All exams including SATs, GCSEs, AS levels and A levels have been cancelled.

Schools need to calculate grades based on

  • records of each student’s performance including for example progress review data, classwork, bookwork, and/or participation in performances in subjects such as music, drama and PE

  • performance on any non-exam assessment (NEA), even if this has not been fully completed

  • AS results from 2019 in the A-level subject

  • performance on any class or homework assessments and mock exams taken over the course of study

  • previous results at the school in the subject

  • the performance of this year’s students compared to those in previous years

  • any other relevant information

  • likely achievement with the reasonable adjustment/access arrangement in place for disabled students

  • the evidence that is available and

  • a rank order of students within each grade from 1 to 15 (where 1 is the most secure/highest attaining)

Further details are available here.

Students will be able to appeal against their grade under a process devised by Ofqual, which is considering what arrangements might be put in place to allow an effective appeal and will consult on proposals. Students will also have the opportunity to sit an exam as soon as is reasonably possible after schools open or in 2021.

Except as above, there has been no change in the law and so statutory requirements remain in place.

The health and wellbeing of its pupils and staff. Government directions will make clear any release of the ordinary functions and requirements of the governing body during the period of closure.

Schools should already have continuity plans (sometimes referred to as disaster recovery) in place, which (whilst unlikely to specifically refer to Covid-19) should provide a framework for how to manage in the circumstances. Virtual meetings can take the place of face-to-face meetings and DfE guidance advises the use of telephone or video conferencing (such as Skype, Microsoft Teams or Zoom (or similar). DfE guidance also expects governing bodies to focus on urgent decisions and to defer non-urgent matters until future meetings, which my not be practicable depending on the length of the school closure, lockdown, social distancing and self-isolation requirements. Governing bodies should therefore keep a watchful eye on the situation and be prepared to meet virtually to discuss matters and make decisions which might not be urgent but nevertheless need to be addressed.

For the governing body of an academy trust, the answer is no as their articles of association allow them to meet virtually where the trustees have been given the telephone or video conference details at least 48 hours in advance and can access the facility. The governing body of a maintained school will need to approve the arrangements, which it can do by email.

Yes, provided the decision is taken by a majority of the governing body.

This will depend on the particular circumstances of the school; for example, whether or not the majority of governors are infected, self isolating due to contact or vulnerability or otherwise fit and healthy.  The later two, and to some extent infection, do not mean that skype (or similar) and telephone conference meetings cannot be held.  Required decisions can still take place so long as the meeting (however it is convened or conducted) is properly quorate.

It is principally for governing bodies to support the operational decisions and delegated authority given to their head teacher and senior leaders. It may therefore be appropriate to give specific authority to a smaller group of governors to liaise with the head teacher and other senior leaders during the closure period.

This is a period of unprecedented uncertainty in which schools must be able to quickly respond to the guidance and advice that is issued from the government. School leaders should feel confident that they have the support of their governors.  In part that means that head teachers should not need to wait for approvals from the governing body on what are at this stage principally operational matters. 

Governors should feel confident that they have a professional leadership team in place, one that is capable of making the operational decisions necessary at this time.

Governors should have a clear understanding of their own role and responsibilities and allow the senior leaders the space needed to do their job.  Maintaining an overview, providing critical challenge and holding the head teacher to account does not require governors to take a hand's on role.

The DfE has issued guidance which confirms schools aren't expected to handle new or existing complaints while they're closed (though they should engage with parents and pupils where they can) and should consider complaints once the DfE confirms schools can safely re-open.

The law offers contracting parties limited relief from contracts when they become difficult or impossible to perform. This includes frustration and force majeure. Our article here looks at this in further detail.

If you would like to discuss any aspect of this article further, please contact Graham Shaw, Alacoque MarvinChris Billington or any other member of the Education team on 0113 244 6100.

You can also keep up to date by following Wrigleys Education on Twitter here.

The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors

 
Graham Shaw View Biography

Graham Shaw

Consultant
Leeds

Alacoque Marvin View Biography

Alacoque Marvin

Solicitor
Leeds

Chris Billington View Biography

Chris Billington

Partner
Leeds

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