Coronavirus (COVID-19) Reopening of Schools Legal requirements regarding Ordinary School Provision

In its updated guidance on the wider opening of schools in September, the Government’s primary focus is to ensure that all children are back in school in the autumn with education settings working at full capacity. The reopening of schools in the autumn and the guidance issued by the Department for Education (DfE) poses a number of challenges for schools. We set out potential questions that might arise and how the guidance might assist.

Overall, our principal advice is to read the guidance and then communicate with your parents, staff and pupils about the steps you propose to take (although formal consultation is not required); enter into dialogue with the local authority regarding issues beyond your control, e.g. public transport requirements; and finally, but most importantly, plan as far as you can for as many scenarios as you can.

Do we have to bring back all children?

The Government is asking schools to prepare for all pupils to return full time from the start of the autumn term. The view is that the risk regarding COVID-19 is low and provided that schools put in place essential but proportionate measures, the risk regarding all children returning is manageable.

What are the essential measures?

Requiring those who are ill to stay at home; incorporating a robust hand and respiratory hygiene protocol; having enhanced cleaning arrangements (which may include cleaning during the school day); engaging with NHS Test and Trace; and taking steps to minimise potential for contamination (for example maximising distancing in school insofar as possible).

Do I need to risk assess?

Yes – as part of the planning for a return to full time provision in autumn it is a legal obligation to update / revise your risk assessments so that you actively consider the additional risks of greater numbers of pupils and, possibly, staff, and what control measures you need to put in place to mitigate those risks.

You should already have a COVID-19 risk assessment in place so you can revise that.

Do I need to consult with my staff again in relation to the updated risk assessment

Yes – that is the one area where a consultation is required. The guidance emphasises the importance of bringing your staff with you and consulting with them.

How do I know what good control measurements look like?

The guidance helpfully sets out a system of controls that it says schools ‘must’ take. The guidance lists them into prevention and response groups. We cannot go into full detail here but refer you to the guidance on those systems.

If all pupils are back, can we return to normal?

Unsurprisingly, the answer is no. Minimising contact means continuing the idea of ‘bubbles’ and through maintaining distance between individuals. It is recognised that the balance of both these measures will depend on age of children (and ability to distance), the layout of the school, and the feasibility of keeping groups separate whilst offering a broad curriculum.

How do we group our pupils?

The guidance accepts that it will be different for different education phases. It accepts that to deliver the full range of curriculum subjects in secondary school, for older pupils it may be necessary to have a group that corresponds to the size of the year group. For younger secondary school pupils and primary school, it suggests that bubbles or groups that correspond to class size may be feasible. Essentially, if smaller groups are possible that is preferred, as there is going to be greater control and a reduction in the number of those who may need to isolate should someone contract COVID-19.

The guidance does emphasise flexibility in approach, and to assess circumstances to identify how best to manage the practical logistics. Whatever the size of the group, they should be kept apart from other groups where possible and older children encouraged to keep their distance within groups. The thrust of the guidance is to limit interaction, sharing of rooms, and sharing of social spaces between groups as far as possible. Don’t worry if you cannot do everything, but do everything possible within the context or the setting.

Do we need to observe social distancing?

Social distancing is still encouraged with a recommended distance of 2 metres where possible, particularly between pupils and staff. It is accepted that is an aspiration and wherever possible one metre plus should be observed between pupils, but the Government notes that even that will not be possible all the time.

“Let’s organise a whole school assembly to explain everything…”

We admire the logic but you will have to think about other ways of ensuring pupils are aware of the different protocols in place and what is expected of them. You must explain to them that there will be an amended behaviour policy as you will want to ensure that deliberate refusal to comply with appropriate and proportionate health measures can be addressed. Large gatherings such as assemblies or collective worship should be avoided.

How can we address school transport issues?

Firstly, note that advice for passengers on public transport does not apply to dedicated school transport. It is also recognised that dedicated school services take different forms, e.g. a single pick-up location, multiple pick-ups, varying numbers etc. Again, it will depend on the local context. There is an exhortation to adopt a partnership approach with local authorities, schools, trusts, dioceses etc. Collaboration to try and achieve the best and safest model is key. In an ideal world you would be able to group pupils on transport in accordance (say) with year groups but, other than that, measures you need to consider are around hygiene (sanitiser on boarding / disembarking), additional cleaning, organised queuing. You might consider additional buses to facilitate distancing but we acknowledge there is a cost attached to that. Face coverings for pupils over the age of 11 is to be considered ‘where appropriate, for example, if they are likely to come into very close contact with people outside of their group’.

Our pupils use public transport – what about them?

This is a challenging situation. Schools are being steered to encourage parents, staff, pupils to walk or cycle if at all possible. ‘Walking buses’ are suggested – the familiar sight of the crocodile. The guidance trumpets the Government’s investment in pop up cycling lanes and widened pavements. If public transport cannot be avoided, then the guidance suggests staggered start times which may enable journeys to take place outside of peak hours. Schools should contact the local authority to commence a dialogue on potential public transport issues and potential alternatives.

Will we need to take steps in case of non attendance?

There is an emphatic statement by the Government that the relaxation of the law on attendance at school is to cease. From the beginning of the autumn term, the usual rules on attendance will apply – it is mandatory. Schools will need to record attendance, and absence, and follow up on absence. Sanctions are again a possibility.

If pupils are required to self-isolate or shield then surely they don’t have to attend?

That is of course correct. There may be pupils who are unable to attend school due to being required to self-isolate. In addition, pupils may be required to shield if community rates are high. In general shielding advice is scheduled to pause on 1 August, which will mean that even those on the shielded patient list will be able to return to school. If a pupil cannot attend school due to self isolating, then schools are expected to ‘immediately offer them access to remote education’; this means staff will need to keep on top of such remote provision so a hybrid approach to education may be required.

We have anxious parents and pupils – what do we do?

It is understandable that families may be anxious about the prospect of their children returning for a variety of reasons. That is why communication / dialogue is so important. Everyone has a different attitude to risk, so it is a question of understanding what the concerns are and explaining what steps / measures are being taken to address any risks there may be. It may be that further adjustments can be made in light of concerns but ultimately parents need to understand that attendance will be compulsory unless a lawful reason for absence applies.

The Government is asking schools and local authorities to communicate clear and consistent expectations around school attendance to families throughout the summer and identify and develop plans for pupils who are reluctant or anxious about returning.

Staffing Issues

Please refer to our paper on issues to do with staff on our website at - FAQs for reopening schools.

Safeguarding

You will have revised your safeguarding policy to adapt to the implications of the pandemic, and then (in all probability) further revised that policy to reflect the partial reopening of schools earlier in the summer. The policy might need further adaptation as more (hopefully all) children return in September. You need to continue to refer to the coronavirus safeguarding guidance published by the DfE and of course comply with the statutory guidance. DSLs should be provided with more time to focus on safeguarding issues at the start of term in order to support staff and children with regards to any new concerns. This reflects the fact that, having not seen the majority of children for a significant time, it may well be that safeguarding issues regarding individual children are evident for the first time.

Educational visits

There is a continuation of the advice against domestic overnight and overseas educational visits. Non-overnight domestic educational trips are able to resume in September but, again, thought needs to be given to try and reflect the protective measures (such as bubbles) that have been put in place. We would stress that the position in July may yet change nearer to September, so please do refer back to the guidance nearer the start of term.

Extra-curricular provision

Before and after school provision are back on the radar, with schools being asked to consider resuming these where possible. As always, the focus is on being flexible and perhaps building up provision over time. Have regard to the protective measures you have in place for the actual school day and try to work these into the before / after school provision where possible. You may wish to have regard to the guidance drawn up for out-of-school settings.

Physical activity / sport

The position this month (July) may well change for September, so please continue to refer back to the guidance. At the time of writing, the advice is that contact sports should be avoided, equipment cleaned thoroughly between use and pupils kept in consistent groups. Distancing is encouraged, hence outdoor sports is to be prioritised where possible and hygiene / cleaning cannot be overstated.

There is reference to guidance from Sport England and Government guidance on the phased return of sport and recreation – we advise that this is considered carefully.

Schools can use external coaches, clubs, organisations for curricular / extra-curricular activities provided you are content that it is safe to do so and also pay due regard to considering how such arrangements can be utilised within the measures you have applied.

Behaviour expectations

As referred to earlier, you will need to review your behaviour policies and ensure that any new rules are included to cover behaviour related to the pandemic. If you do amend the behaviour policy (which is recommended for clarity) you will need to ensure that pupils, staff and parents are aware of the new expectations: the new focus is likely to be on hygiene and being disciplined in terms of staying in any designated bubble. Equality Act obligations remain, of course, so bear that in mind, in particular because it is likely that children in general will be relatively unsettled and the new (and different) routines might impact more severely on some children.

The law and practice referred to in this article or webinar 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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