As can be seen by recent developments in Greenwich, DfE policy is determined to keep schools open for physical attendance whenever possible. This robust policy runs counter to the usual cautious approach expected of schools in maintaining the health and safety of their pupils, and has the effect that schools cannot shut to prevent a breakdown in health and safety due to Coronavirus, but can only shut when a Coronavirus outbreak has occurred and it has the agreement of Public Health England. This briefing advises Academy Trusts and individual schools on how to respond to this very directive approach from Government.
The DfE Guidance for full opening: schools does not provide a threshold at which a school can stop overall attendance. Our advice based on what that Guidance does say is as follows:
- The DfE still acknowledges that that “schools must comply with health and safety law, which requires them to assess risks and put in place proportionate control measures”. Those control measures can include partial or full closure of a school where the school population is at a sufficient level of risk to their health.
- The DfE’s advice that control measures should include “keeping groups separate (in ‘bubbles’)”, means that schools should, if their circumstances allow, analyse the health and safety risk by each bubble (i.e. normally a year group or class) and if appropriate maintain a risk assessment for that bubble which identifies the risk threshold below which the members of the bubble should switch to remote learning at home for reasons of safety. The Guidance (section 10) sets out detailed and limited definitions of what type of “close contact” would trigger a child having to go home to self-isolate.
- In devising and implementing the above control measures, the school must seek local health protection team advice and follow it (unless, we advise, there is a clearly justified reason for not doing so). The Guidance states that “The advice service (or PHE local health protection team if escalated) will provide definitive advice on who must be sent home.” The Guidance goes on to state that: “In some cases, health protection teams may recommend that a larger number of other pupils self-isolate at home as a precautionary measure – perhaps the whole site or year group. If schools are implementing controls from this list, addressing the risks they have identified and therefore reducing transmission risks, whole school closure based on cases within the school will not generally be necessary, and should not be considered except on the advice of health protection teams.”
So, as regards pupils, the DfE Guidance seeks to limit the discretion of schools to decide who stays at home, and requires schools to follow the advice of the local health protection team. Furthermore, The Secretary of State has a statutory power under the Coronavirus Act 2020 to issue a continuity direction ordering a school to remain open to attendance by pupils. If a school was to refuse to comply with such a direction, the Secretary of State could seek an injunction to force it to do so. If such an injunction was considered by a court, the rationality of the Secretary of State using the direction in the factual circumstances faced by the school would be scrutinised by the court, but it is highly likely that the court would enforce the direction, given the broad discretion given by Parliament to the Secretary of State in the Coronavirus Act.
As regards staff, Academy Trusts and other school employers will continue to have their usual duties as employers regarding health and safety within the context of current DfE Guidance. Despite the limited resources available to schools, they will almost certainly be criticised by the DfE if they close a year group or an entire site without exhausting supply options to make up for staff absences due to the pandemic.
Given the above, schools will probably be protected from Health and Safety claims from staff and pupils provided they follow DfE advice, but they should challenge the specific advice of the local health protection team and/or local or central government if it does not rationally address the particular health and safety situation in their school, and document the outcome carefully. Ultimately the decision to close the school is for the headteacher to make (having obtained the agreement of governors or trustees) but any decision to close the school for attendance which is not supported by the advice from the relevant health protection team should be checked by your legal advisers. If you need legal advice about this issue, please contact RogerInman@stoneking.co.uk.