New COVID-19 DfE Directive: what are schools’ duties now to provide remote education?

The DfE has issued a new Directive dated 30th September 2020 compelling English schools to “provide remote education” to pupils who are unable to attend school due to coronavirus. Schools need to take account of the Remote education direction explanatory note when meeting this duty. The duty will apply from the 22nd October 2020 to the end of the current school year.

Which pupils does it apply to?

Those of compulsory school age and pupils who are below compulsory school age but who would usually be taught in a class with compulsory school aged children (most commonly in a reception class). This Direction does not apply to post-16 education.

In which schools?

All pupils within that age range in entirely state funded schools and those pupils in independent schools whose education is wholly funded by the state (e.g. pupils with wholly state funded EHCPs).

When is the obligation triggered?

When a pupil of this type’s “travel to or presence at the school” is contrary to any Covid guidance published by Public Health England or the Secretary of State: i.e. “where a class, group of pupils, or individual pupils need to self-isolate, or there are local or national restrictions requiring pupils to remain at home.” Consequently those schools affected can rely on other current DfE Guidance on school attendance notably that in Guidance for full opening: schools.

That Guidance expects ordinary school attendance unless a particular specified reason exists. As regards individual children nothing has changed regarding their expected attendance as a result of this Directive, although schools may find themselves under pressure to authorise absence more extensively.  We strongly advise schools against doing so, because of the risk of being seen to support unlawful absence from school and because of the likely further strain on their resources. 

What standard of “remote education”?

The explanatory note says that “The expectations on the quality of remote education expected of schools remain those set out in the guidance for full opening published in July 2020”. So again, in theory nothing has changed regarding this standard, which is found under the “Curriculum” section of Guidance for full opening: schools and summarised as “high-quality and safe, and aligns as closely as possible with in-school provision. Schools and other settings continue to build their capability to educate pupils remotely, where this is needed.”

That does not however require schools to put all their own classroom provision live online: the requirement is what is “possible” within the resources actually available to schools.  Each school is advised to develop clear policy on the content and extent of its remote provision to manage expectations. This is particular so for any pupils who are long-term disabled and unable to attend school because of Covid-19, for whom reasonable adjustments will also need to be made regarding their remote provision.

Summary

This directive actually just legally compels the standard of remote provision already expected under existing DfE Guidance. By imposing a duty it clarifies what parents can expect in specific circumstances when their child cannot attend school, and also clarifies what schools are required to ask of their teaching staff regarding remote provision, although the education unions have expressed concern about the impact on the workload of teachers if they are required to provide more extensive remote provision as well as in class teaching. The overall concern is that, unless closely managed in practice, this directive may have the unintended effect of increasing unlawful absence of pupils from school and raise the expectations of parents regarding remote provision by schools to a level beyond the realistic capacity of schools to deliver.

What happens if a school does not follow the directive?

In theory the DfE could seek an injunction to force it to do so, although that would be a last resort. 

Roger will also be participating in the Confederation of School Trusts seminar looking at legal duties under the Remote Education Direction on Tuesday 6th October at 1pm. This is also an open zoom meeting, so please join if you can. The link to the meeting is here. Meeting ID: 830 7943 6039; Passcode: 375182. Or you could dial in +44 203 051 2874.

The full detail of The Provision of Remote Education (England) Temporary Continuity Direction is here.

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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