Coronavirus (COVID-19) Legal Consequences of Closing a School: Staffing and Pupil Provision

The government has issued guidance to schools on school closure and critically on the continued provision for children of critical or key workers. Key points arising are:

  1. The DfE is “preparing legislation currently the [Coronavirus Bill] that will temporarily disapply or modify some requirements on schools to enable them to focus on this core new ask. Schools should focus on safeguarding duties as a priority…”

  2. Regarding the two categories of children who can attend school;

    1. “Children with a parent or carer who is listed on the government’s critical worker list should be considered for a school place, so long as their job cannot be done from home [note this critical qualification].”

    2. Vulnerable children are defined as definitely including “those who have a social worker and those children and young people up to the age of 25 with education, health and care (EHC) plans [i.e.  “All children in special schools, and in particular in residential special schools, are in the vulnerable category”]”.   Beyond that there is no full clarity yet on the extent of those who might covered, save that “Eligibility for free school meals in and of itself should not be the determining factor in assessing vulnerability”.

  3. Students with EHCPs should be risk assessed by the LA and school “to decide whether they need to continue to be offered a school/college place in order to meet their needs, or whether they can safely have their needs met at home.” Note that some may not be able to attend a school safely for health reasons.

  4. “Alternative provision (AP) settings and pupil referral units (PRUs) serve a small number of children and young people, a high proportion of whom meet the definition of vulnerability and are well-placed to cater for their needs. This would be difficult to replicate elsewhere.”

  5. The DfE is “asking schools, wherever possible, to maintain provision for children of workers critical to the COVID-19 response over the Easter holidays.”  The employment team will doubtless be advising schools and colleges re variation of employment contracts if needed.

  6. As regards what schools are expected to provide: “The most important thing is that children of critical workers and vulnerable children are supervised and properly cared for at school. Emergency legislation will lift curriculum requirements for schools, giving flexibility to provide support, activities and education in the way they see fit.”  So it is still not clear whether the provision will be “school sessions” which will continue the obligations (e.g. re exclusion obligations and admission appeals) to carry out steps within a certain number of “school days”.

  7. If relevant, see “Further information on the cancellation of GCSEs, AS and A levels in 2020 is available.

  8. If relevant, see “guidance on Coronavirus (COVID-19) isolation for residential educational settings”:  “Most boarding schools will need to keep their residential provision open and decisions will have to happen on a case by case basis”.

Further DfE guidance information can be found here.

If you are an independent school please see our additional guidance for independent schools.

The law and practice referred to in this article has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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