Date updated:

Secondary schools have been asked by the Department for Education (DfE) to test pupils onsite when they return from their Christmas break. With one eye on the new Covid-19 variant, “Omicron” the DfE stated that “testing pupils upon their return in January will help reduce transmission after a period of social mixing during the holidays.”

The DfE’s FAQ guide states that:

  • “Secondary school pupils should undertake one test onsite at the start of term in their school asymptomatic test site, followed by one lateral flow device self-test at home 3-4 days after their onsite test. They should then continue to test in line with government guidelines”; and
  • “FE students and staff in all secondary schools and colleges should take one lateral flow device self-test at home either the evening or morning before they return to their school/college followed by one lateral flow self-test at home 3-4 days after then continue to test in line with government guidelines”

The DfE’s “Rapid asymptomatic testing in specialist settings” guidance clarifies that “Schools and colleges should continue to retain a small asymptomatic testing site (1 to 3 bays, depending on the size of the school) onsite, so you can offer testing to students who are unable to test themselves at home or would prefer to test onsite”.

Key operational considerations

No, testing is voluntary (but is “strongly encouraged” by the DfE).

Consent will need to be obtained in all cases. We advise that written parental consent will be required in practice for all students under the age of 16 to avoid any later arguments about the capacity of younger children to give consent for this testing.

The DfE recommends that schools plan to deliver one test onsite in the first week of term. Our understanding is that schools will be permitted to stagger the return of pupils in the first week of term to help with the logistics of delivering the onsite testing. If schools do intend to stagger the return of pupils, this should be communicated to parents/carers as soon as possible ahead of the Christmas break.

Our understanding is that the test will be self-administered by students by applying a swab within their own throat and nose, under adult supervision but without the adult being involved (except children with SEND where necessary). There should be a low risk of injury, but if harm is caused as a consequence of the process not being carried out correctly then a claim for financial compensation could follow. Even though a court would almost certainly support a school following Government guidance as being reasonable, the actual administration of the tests would still need to be a carried out at a basic level of competence to avoid a breach of duty. If there was such incompetence, causation of any injury would be simple to establish, although compensation levels for any injury would be likely to be low unless serious injury occurred. Consequently, schools should be particularly vigilant in maintaining a sufficient safety regime regarding testing, given the risk of a small minority of parents potentially attempting to make claims in due course. Incidentally, getting parents to sign a waiver regarding liability would be of no effect regarding a personal injury claim. 

As regards staff, schools should consider the potential risk of repeated exposure to Covid-19 by those involved in testing and how this risk should/can be managed. We would suggest that a risk assessment of the testing site and process are carried out as a preliminary step. 
The DfE has confirmed “The RPA will indemnify members if a claim is brought by a third party (including pupils) or employees. It will cover death, injury, or damage to third-party property, due to the school or college undertaking the asymptomatic tests”. Institutions who are not members of the RPA should contact their individual commercial provider for clarification over the extent of their cover (if any).

A failure to carry out a suitable and sufficient risk assessment of the activity and carry out sufficient training could lead to prosecution, in theory, in respect of systematic failings. In reality, given the Government guidance (the totality of which we have not yet seen) our advice is that the risk of prosecution for shortcomings in carrying out this testing is negligible. Prosecutions for shortcomings leading to safeguarding issues are phenomenally rare, and it is highly unlikely that the Health and Safety Executive will view prosecutions to be in the public interest, consistent with their approach during the pandemic to Covid-19 related initiatives.