In addition to the guidance provided by our article covering general legal advice & FAQ's for schools, independent schools may also want to consider the following:
- Closure and Fee Payment
It is likely that your parent contract will make provision for school closure, for instance through a ‘force majeure’ clause (see further below*). The provisions may include additional obligations for instance in relation to notice requirements and continuity of provision remotely, and care should be taken to understand the implications of those requirements.
The parent contract may also set out the position regarding the obligation to pay fees in the event of closure. Again, there may be obligations associated with those provisions, which need to be taken into account. Ultimately it is likely to be a combination of these provisions, together with the actions taken by the school during this period, which are relevant to determining the position relating to fees. Particular consideration should be given to how boarding fees are treated under the contract, including differences for the different types of boarding arrangements. This is described in more detail below.
Even where fees are contractually payable, schools may be considering some reductions in fees, particularly in relation to boarding fees. In these cases, trustees and leaders will need to give careful consideration to the various factors (such as the contractual position, the parent relationship, the financial position, and trustees’ duties) when deciding whether to make any accommodation to fees. The decision will need to be documented to demonstrate compliance with trustees’ duties, and very carefully communicated to parents in order to protect the school’s rights in terms of the contractual position.
It is therefore important to be clear as to the contractual position now so that steps can be taken in accordance with the contract, which will help in responding to queries regarding fees, and in any discussions with your insurers. Please do let us know if you would like us to review your parent contract and set out the suggested next steps.
*Schools may want to take advice as to whether to formally notify parents of a force majeure, as there are implications both in terms of protection against breach of contract claims, but also potential risks where the provisions permit termination by parents after a particular number of days of continuance of the event. The approach will depend both on the school’s particular circumstances, the wording of the parent contract, and the school’s ongoing provision (for instance whether it is day/boarding, the extent of the educational provision currently being provided). If you would like us to consider your particular scenario and force majeure provisions, please do let us know.
- Remote provision of education
It is likely you already have various plans in place regarding the remote provision of education. Those plans should include delivery of educational content (taking into account the different subjects / year groups), pastoral support, and even whether there is scope for delivery of less obvious subjects such as Physical Education, and extra-curricular subjects in some form. These plans should be kept under review and modified as appropriate. All planning and provision should be documented, as this will provide the audit trail which may help demonstrate that the school met its obligations.
Consideration should also be given by relevant staff to any individual pupils’ needs (whether these are particular learning needs, pastoral or emotional needs, or physical limitations) and how they may individually be affected:
- by their situation (whether that is being at home or in a limited school setting);
- whether there may be issues for them in accessing the provision which has been put in place; and
- whether any additional strategies, differentiated learning / formats, or support should be put in place to support their well-being and/or learning.
For more detailed consideration of these issues, see our safeguarding briefing.
- Allowing parents more time to pay
In light of the challenging financial climate, there may be an increase in parents under financial strain, and who seek some form of leniency in relation to fee payment.
Whilst – subject to the school’s own cashflow considerations – it may be possible to offer some flexibility (for instance, paying monthly for future terms’ fees in cases where parents currently pay termly), care needs to be exercised in agreeing any further delay in payment. This includes allowing time to pay overdue fees for previous terms or the current term. This is because it could be seen as extending credit to parents for the purposes of financial services legislation (assuming the school is not FCA authorised to provide credit). There are potentially severe sanctions for breach of these requirements, and therefore it is advised that advice is sought before entering into any such arrangement.
- Charity Commission Serious Incident Reporting
The Charity Commission is regularly updating its Covid-19 guidance for charities, and can be found here Commission Guidance. In terms of incident reporting, it is for trustees to continue to report serious incidents using the guidelines, and use their judgement to determine when an incident is significant in the context of their charity (with particular regard to incidents placing individuals at risk, or which have a significant impact on the charity’s operations and therefore harm to the charity’s work).
It could of course be argued that the temporary closure of the school itself represents a significant impact on its operation, and trustees may choose to take a cautious approach. This is a judgement call for trustees to make as to whether or not the situation is significant in the context of the charity at this time. In many cases this is a decision which will be kept under review as the situation evolves and the timeframes and implications for each school / charity become clearer.
As a reminder, the Charity Commission advised that you should report an incident if it results in, or risks, significant:
- harm to people who come into contact with your charity through its work
- loss of your charity’s money or assets
- damage to your charity’s property
- harm to your charity’s work or reputation
The main categories of reportable incident are:
- protecting people and safeguarding incidents – incidents that have resulted in or risk significant harm to beneficiaries and other people who come into contact with the charity through its work
- financial crimes – fraud, theft, cyber-crime and money laundering
- large donations from an unknown or unverifiable source, or suspicious financial activity using the charity’s funds
- other significant financial loss
- links to terrorism or extremism, including ‘proscribed’ (or banned) organisations, individuals subject to an asset freeze, or kidnapping of staff
- other significant incidents, such as – insolvency, forced withdrawal of banking services without an alternative, significant data breaches/losses or incidents involving partners that materially affect the charity
As indicated above, the requirement to report an incident to the Charity Commission is quite fact specific. If you would like to discuss the reporting requirement in your school context, please do contact us.
- Review your lettings contracts
Many independent schools may have lettings scheduled to take place on the school site. These are unlikely be able to go ahead from either the school or hirer’s perspective, and the contracts should be checked for relevant termination and cancellation provisions and any force majeure clauses.
Depending on the relationship it may be that pragmatic positions can be reached between the school and hirers, but each scenario will depend on a combination of the contract terms and any commercial arrangements reached between the parties.
- Contracts with other third parties (e.g. suppliers)
Schools should review their arrangements with all third parties, as it is likely that there may need to be changes to these arrangements in light of the current circumstances.
The first step should be to collate and review these contracts in order to understand the school’s / the other party’s rights to terminate or suspend the contract, and any associated penalties. As with lettings, it may be that a strict interpretation of the contract is not the most pragmatic way forward with key suppliers, and may not be conducive to returning to a ‘normal’ working relationship in the future. That said, any agreed variations require careful documentation, in order to ensure that the school’s position is appropriately protected. Please do let us know if you would like to discuss any contractual arrangements.
The change to school provision has brought various safeguarding issues to the fore, both in relation to pupils who continue to attend school, and those who are at home.
For detailed guidance about safeguarding considerations, please see our safeguarding briefing.