As unions warn of school leaders of being legally exposed by ‘deeply flawed guidance‘, Simon Foulkes says the government must use its powers to give them the cover they need to reopen
Government guidance now asks schools to open for more pupils from 1 June. 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? School governing bodies and academy trustees/directors need clear answers, and these are not easy to find.
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. But the English DfE guidance contains no such reference, and appears to be freestanding. That is an uncomfortable start!
In Wales it is made clear that the existing provision in schools for special groups of children is predominantly childcare. Such education as they receive is expected to be a face to face version of what all pupils on the roll of each school should otherwise be receiving on line. So far, so helpful.
But in England, it looks as if specified year groups are intended to receive “education” from 1 June – although this is not really clear in the guidance and if true would beg many questions about equality of access
Neither DfE guidance nor any legislation relieves leaders from full liability
But it is uncertainty about where the liabilities rest in these challenging times that will most be worrying 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 DfE 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 only do so in the light of the uncertain advice being issued by 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 (if any) of PPE do staff (or indeed pupils) need? Are supplies likely to be available? Is regular testing required or likely to be available? All of these are important questions with no clear answers in the guidance.
Some of the difficult issues we are being asked about include frequency of risk management, insurance, job descriptions, unwilling staff, the developing scientific advice, health and safety and safeguarding duties, the requirements of faith school site trusts for the sites to be used as schools (not childcare), and with RE and worship as conditions of occupation. Our webinars on these topics fill almost as soon as we offer them, a sure sign of generalised anxiety around 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 government wishes governors, trustees or directors to shoulder the liabilities consequent on a misjudgement or just bad luck, then it owes them indemnity (whether via 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 to issue statutory guidance that will protect school governors/trustees/directors and thereby enable them to undertake with minimum risk the phased return of children to school that appears to be government policy.