England & Wales Covid-19, Education and children's services

Covid-19: what about free school education? A personal view

Photo by Martin Dawson on Unsplash

On 1 April 1945 – 75 years ago – one of the fundamental principles of the post-Second World War welfare state came into force. Section 61, Education Act 1944, declared ‘no fees shall be charged … in respect of the education provided’ in a school maintained by a local education authority. Previously, fees were charged for secondary education. An exception was made for board and lodging at boarding schools. School meals, transport and medical treatment (in those pre-NHS days) are dealt with elsewhere as they are not ‘education provided’. The latter two were provided without charge and the plan up to 1947 was that school meals would be free for all.

The 1980s saw the then government achieve its objective to control and reduce local government expenditure. This led schools and local authorities to introduce charges notably for music education. Legal challenges followed which local authorities inevitably lost. Limited charging was introduced under the Education Reform Act 1988 and amended several times in the subsequent 20 years. The law can be found in sections 449 to 462 Education Act 1996 (as amended). DfE advice Charging for school activities (2018) provides a good explanation. Each Academy Funding Agreement should require the academy school to comply with the law on charging for maintained schools.

This blog is not about the reported school practices on charging including so-called voluntary contributions for school activities. It is about the costs of home learning for the vast majority of children and young people who are currently isolated at home. Of note, the law (s.454) prohibits charging for ‘incidentals’ defined as ‘materials, books, instruments or other equipment’. In my view, this includes tablets and consequential internet access.

There was a flurry of activity on Twitter earlier this week when it was rumoured that the DfE was going to fund IT equipment and broadband access to enable all children at home to continue with their learning while supported by their teachers. However, DfE guidance Coronavirus (COVID-19): financial support for schools (7 April 2020) gives no credence to this rumour; the additional financial support is for children attending school and not those doing home learning. I understand that the DfE has denied the rumour.

DfE guidance Coronavirus (COVID-19): Closure of educational settings: information for parents and carers (16 April 2020) in its Q&A asks ‘What support is available to parents to help them educate their children at home?’ and the answer is ‘We want to support parents and all educational settings to ensure children and young people’s education can continue. For support for school-aged children, you should first contact your child’s school, who will be able to offer advice.’

A list of resources has been published: Coronavirus (COVID 19): online education resources (7 April 2020): ‘We have brought together an initial list of online educational resources to help children to learn at home. These websites have been identified by some of the country’s leading educational experts and offer a wide range of support and resources for pupils of all ages.’ However, the resources should ‘not be used in place of existing resources which schools may be using as part of their continued provision for pupils’ education at this time’ recognising that schools have developed online resources and some are enthusiastically supporting the transition from school to home learning even to the extent of supplying tablets to all pupils and paying for online access. See Coronavirus: AET to spend £2m on laptops as others call for tech donations (SchoolsWeek, 30 March 2020) for an example of what one Multi-Academy Trust is doing.

The guidance on closure of educational settings reports that the Government is actively working with ‘the major fixed and mobile operators’ to ‘ensure that any problems on the networks are rapidly addressed and rectified … so that people can work from home wherever possible’. This suggests the Government is supporting home learning ‘wherever possible’. Does ‘home learning’ come within the definition of school education? And should it be provided without charge to parents?

These two questions have been answered in the affirmative by the Good Law Project in relationship to vulnerable pupils but stops short of free education for all concentrating on ensuring ‘all families from socio-economically disadvantaged backgrounds are able to access online education resources’. See the Pre-action letter (9 April 2010) to the Secretary of State for Education.

From the perspective of someone who has worked in education administration, and is not a lawyer, education law is cumbersome. A school is defined in s.4, Education Act 1996 as ‘an educational institution for providing education’. This leads to all sorts of issues. One is that it does not tie a school to providing education in specific premises; that on the whole is an administrative matter.

Viewed in the light of current circumstances, is the home learning secured by schools ‘providing education’? And should the state (national government, local government, school) be financially supporting parents for the ‘incidentals’ to gain access to home learning for their children? I think the answer is yes to both questions.

Has the Coronavirus Act 2020 eased the duties? Leaving aside the issue of whether the directions under Schedules 16 and 17 have been properly made (an issue which could occupy many blogs), a schedule 16 ‘temporary closure direction’ does not close a school but requires the body in charge of the school to ‘take reasonable steps to secure that persons do not, for a specified period, attend premises of the institution’ where premises are defined as the places ‘which persons normally attend in order to receive services provided by the institution’. So, school buildings must close but the legislation does not remove schools (to anthropomorphise the word) from any duty to provide education ‘services’ in the previously announced school term dates. Pupils on a school’s roll remain on the roll.

Schedule 17 makes provision for ‘temporary continuity directions’, that is requiring schools to remain open for the children of critical workers and vulnerable children.

Stuck in the middle of Schedule 17, and not directly related to ‘temporary continuity directions’ is paragraph (5) (for England) which outlines the Secretary of State’s powers to disapply or modify legislation for any purpose relating to the pandemic. The list of legislation is short. It has to be done by a published direction. None have been issued to date as far as I know. A direction was contemplated on the local authority duties relating to Education, Health and Care Plans judging by the social media noise but has so far not been pursued.

It is difficult to see how the law on charging can be ‘eased’ using the listed legislation. The list can be extended using parliamentary regulations under paragraph (6) but this process has not started.

Even if the law requires it, the state is not going to able to support the ‘incidentals’ of tablets and home broadband access for 8 million children led by 400,000 trained teachers by the start the Summer Term. ONS data finds that 9 out of 10 households have internet access but this is mainly using mobile phones which do not generally have unlimited data which is probably necessary for home learning. I cannot find data on households with children who do not have internet access but the likelihood is that these households will include the most vulnerable children. And even when there is more that one device in a household, getting access when a teacher wants to hold a class lesson is problematic. Another sibling might need access at the same time. And school controlled devices can make for safer online use.

As readers in touch with the EdTech community will know, work was going on in the decade before last with integrating school and home learning through information technology. See for example, Extending Opportunity: Final Report of the Minister’s Taskforce on Home Access to Technology (2008). The closure of the world-leading British Educational Communications and Technology Agency (BECTA) in 2011 and the stagnation of the English school curriculum over the last decade have not assisted schools to develop their capacity for supporting the education of children during a period of household isolation. Against the odds, some schools are succeeding and LGIU would be pleased to publish a piece about their achievements. Please contact john.fowler@lgiu.org. Or fill out the comment box below.

In conclusion, my view is that both the law and the school system are woefully inadequate at supporting the perhaps 95% of children and young people who are home learning. In spite of this, teachers and school staff have worked brilliantly to keep in touch and support our children and their families during this difficult time. I can’t help but feel that the system has been lacking and its robustness needs reviewing once the all clear has been sounded.

All LGIU Covid-19 resources are being provided free of charge, including our Global-Local news bulletin highlighting how local governments around the world are responding to the pandemic. 

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