Covid-19: Reopening schools to all pupils – a view on best practice and current law

Can the Government require schools to reopen for all pupils? Can a local authority require schools to remain closed for most pupils? What powers does a local authority have to get schools to reopen? My stock answer is “I don’t know” but this is my attempt to answer the questions, writes John Fowler.

The background

The government published its Covid-19 recovery strategy (see LGIU briefing) on 11 May giving primary schools two weeks plus the half-term week to prepare to open for all nursery, reception and year 1 pupils from 1 June. Nearly all schools have remained open during the lockdown for the children of key workers and those who are known to children’s social care services.

The government’s ambition has been met by concerns from trade unions and local authorities about safety, access to personal protective equipment (PPE), and logistics of educating more pupils under current social distancing guidance. Channel 4 News on 20 May listed 27 local authorities which, it is claimed, are opposed to schools educating more children from 1 June. An examination of a few of these local authorities’ websites suggests that understandable caution may be seen as opposition to the government’s plans. The government will give its view following the latest scientific advice on 28 May although Ministers appear to be admitting that they do not expect all schools to open to all pupils in these year groups from the start of June. Getting to the truth about what is going on is difficult. The picture painted by the Times (£) Head teachers left to decide if and when schools will reopen (21 May 2020) will put pressure on Ministers even if its findings are disputable.

Meanwhile, Twitter is full of schools announcing they will not be ready to take more pupils back on 1 June. Similarly, many schools are announcing they are ready.

This article comes with the proviso that I am not a qualified lawyer and I and the LGIU cannot take responsibility for actions based on its contents. However, I have spent many years in education administration and have written several books on education legislation over the last 30 years.

Duty of care

There is a long-standing assumption that the person in charge of a school – the head teacher – has to take responsibility for immediate decisions required over the care, health and wellbeing of pupils and staff, i.e. there is a common law duty of care, and the consequential decision for a school to remain open or not. If time permits, ideally decisions should be with the proprietor (governing body) of the school and the local authority if the school is maintained. A Court of Appeal judgement in D v East Berkshire NHS Trust & Others [2004] “established the proposition that a duty of care at common law could be owed by a local authority to children residing in its geographical area to protect them from harm, including personal injury” may be applicable. See Common law duty of care (Malcom Johnson, Law Gazette, 26.02.18). The duty of care is not codified in statute law.

Schools are open to pupils on the school roll, and that publicly provided schools provide education for 190 days each school year. There are references to school closures in administrative practice. Ministry of Education Administrative Memorandum 531 (10 May 1956) requires seven clear days’ notice whenever a “school is to be closed, or its ordinary work suspended for holidays or otherwise” so HMI do not visit. If seven days is impracticable, a telegram had to be sent to the Ministry. Going further back, the need to inform but not explain can be found in the Code of Regulations for Public Elementary Schools although the 1912 Code has the threat of grant reduction if timely notice is not given (Regulation 56). The school’s HMI had to be informed using a yellow post card supplied by the Board of Education. If schools were not open for 400 sessions (half-days) a year, then a reduction in government grant could follow.

Regulation 57 of the 1912 Code provides for the Sanitary Authority acting on the advice of the local Medical Officer of Health to close a school ‘with a view to preventing the spread of disease or any danger to health likely to arise from the condition of the school, such requirement must at once be complied with’. The descendant of the sanitary authority is arguably the local authority today, responsibility having passed through NHS district health authorities and commissioning bodies before returning to local government following the 2012 Health and Social Care Act. The descendant of the Medical Officer of Health is the Director of Public Health.

The power that existed in 1912 appears to have been lost. The latest DHSC guidance Directors of Public Health in Local Government Roles, Responsibilities and Context (January 2020) does not state that a local authority acting on the advice of the Director of Public Health can close a school in order to prevent the spread of disease. The guidance does not mention that the local authority currently has a power in regulation 2 of the Health Protection (Local Authority Powers) Regulations 2010 under the Public Health (Control of Disease) Act 1984 (as amended) to require a named child does not attend school. The local authority must believe the child. may be infected or contaminated, the infection or contamination is one which presents or could present significant harm to human health and there is a risk that the child might infect or contaminate others.

Mass closure of schools

The one instance of mass closure of schools (and their movement to another area) was during the evacuations of 1939 and 1940. The logistics of the 1939 evacuation are astonishing:

“In the first four days of September 1939 about three quarters of million children left London and other large centres of population in school parties with their teachers and voluntary helpers.” (Policy and Progress in Secondary Education 1902 – 42, John Graves – 1949 reprint).

However, little planning had occurred, and many children returned to empty schools in the months ahead during the ‘phoney war’. Attendance was very low.

I have never seen a detailed examination of the statutory powers used by central and local government to manage the evacuation. Perhaps in such circumstances, those in authority have to act irrespective of the law although the terms of the Emergency Powers (Defence) Act 1939 passed in late August may have sanctioned the actions. As it so happened, the school leaving age was to be have been raised to 15 from 14 on 1 September 1939 although 14-year olds could still leave if the local authority certified that the child was entering “beneficial employment”. The government announced the change was not going ahead and many year 10s (to use modern parlance) left school without beneficial employment. Legislation approving this change, the Education (Emergency) Act 1939, did not reach the statute book until 12 October 1939, six weeks after the start of term.

Local authority duty to secure sufficient schools, etc

The local authority duty to secure ‘sufficient’ schools found in Section 14 (Functions in respect of primary and secondary schools) Education Act 1996 is relevant to answering the questions at the start of the blog (although the local authority role as the employer of staff in community schools is also). If a local authority did not provide sufficient schools by causing them to be closed temporarily or by not making provision in the first place then at what point would the local authority be in default of its section 14 statutory duties?

Two legal judgements are worth considering where it was alleged the local authority caused the closure of all schools: Meade v London Borough of Haringey [1979] and R v Liverpool City Council, ex p Ferguson [1985].

The Haringey case came about because of strike action by school caretakers and ancillary staff. The local authority told head teachers to inform parents not to send their children to school but to ask that teachers attend but that schools should not be open if children attempted to attend. In summary, a local authority’s decision to close schools during a strike would be unlawful if taken in sympathy with a trade union’s actions and affected by considerations not relevant to the provision of education. From Eveleigh LJ in the Court of Appeal, “Provided the grounds which they [the local authority] genuinely have for their action can be regarded as such a state of emergency, in other words, as just and reasonable excuse for the closure, the authority would not be in breach of duty.” In the Liverpool case the authority had issued dismissal notices to all teachers employed by the authority, and the consequent and expected closing of all schools, following the non-setting of a rate in 1984 and the subsequent financial position of the council. The actions of the council were held to be illegal as the court found the actions were to bring about a collision between the council and the government.

Also of interest, in R v Inner London Education Authority, ex p Ali [1990], over the failure to make sufficient schools available in the Tower Hamlets area, the judge characterised the duties in what is now section 14 as “target duties” and not “absolute duties” giving a degree of latitude to the local authority.

The Haringey case suggests that a local authority, with good reason, can tell schools to close, but the case is over 40 years old when there was a very different relationship between local authorities and the maintained school sector. Today, some local authorities have no remaining maintained schools. In 2020, there can be no certainty that the majority of schools would respond to a request by the local authority to close especially when the national government opposes it.

One aspect of the Haringey case is that the aggrieved parent, Mr Meade, had asked the then Secretary of State to intervene under section 99 the Education Act 1944. She declined. The power is now found in section 497 (general default powers), Education Act 1996. The likelihood is if a local authority was to ask schools to close then the current Secretary of State might choose to use the section 497 power to give a direction for the purpose of enforcing the performance of a duty as appears to the Secretary of State to be expedient. Alternatively, section 496 (power to prevent unreasonable exercise functions) could also be used.

DfE guidance on emergency planning and response

DfE guidance on emergency planning and response was last updated on 23 December 2015. Schools are advised to make an emergency plan to cover a range of potential incidents including public health incidents, e.g. flu pandemic. Examples are given of local authority resources for school emergency planning including that of the Nottinghamshire county council.

Links are given to the Cabinet office plans for pandemic flu which was last updated on 24 November 2017. Relevant sector guidance mentions:

Education/childcare

“The Department for Education has produced a range of guidance documents in consultation with other government departments and various external bodies as part of the government’s co-ordinated efforts to encourage prudent planning across all sectors, supporting the Department of Health, as lead department, in preparing and planning for a possible pandemic. This guidance is currently under review and a link to revised guidance will be provided in the near future.”

No link is provided to revised guidance.

Education/childcare is included in the work of Local Resilience Forums. The webpage is linked to the 37 page guidance document Preparing for Pandemic Influenza – Guidance for Local Planners (July 2013) that “under some circumstances the decision may be made by head teachers (and their Board of Governors where relevant) to close establishments temporarily”. Although “the primary responsibility for planning for and responding to any major emergency rests with local organisations, acting individually and collectively through Local Resilience Fora (LRF) and Strategic Coordinating Groups (SCG)” (page 17) … “Unless the government issues advice to close, there is probably no role for LRFs or SCGs in Department for Education sectors” (page 25).

It appears the government wishes to reserve decisions on mass closure to itself. However, heads and governors can make ‘temporary’ closures ‘under some circumstances’. I suspect schools (as under the 1912 regulations) would prefer such decisions to be in consort with the local expert in infectious diseases. The implication that local decision-making and co-ordination arrangements only have a role when the government issues ‘advice’ to close suggests an urgent need to review of these arrangements.

The run up to the closure

The announcement that all schools, colleges, educational establishments, and childcare settings were to close was made on Wednesday, 18 March effective from the following Friday, 20 March. From Monday, 23 March schools would close but reopen for a small number of priority children: children of key workers and those children who had some involvement with children’s social care services.

As late as 12 March, DFE’s “education in the media” blog the coronavirus in school closures was stating: “Our position on closures is clear: schools should remain open unless advised otherwise by Public Health England. No decision to the contrary has been made.” Meanwhile newspapers and social media reported schools were closing due to staff going off sick and otherwise, making the Secretary of State for Education’s announcement less than a week later that all schools and other educational institutions would close “until further notice”, except for a few priority pupils, inevitable.

There are two pieces of legislation commencing in March which are relevant: the Coronavirus Act received Royal Assent on Wednesday, 25 March and The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI2020/350) which came into effect at 1 PM on Thursday, 26 March 2020. In both cases, this was after schools closed to all but a few pupils.

Coronavirus Act

The Coronavirus Act received Royal Assent on 25 March 2020. Provisions to do with education, childcare and skills are found in sections 37 and 38, and schedules 16 and 17, and commenced on Royal Assent. The Act and accompanying documents can be found on the Parliament website here.

The legislation was drafted to take account of the possibility that not all education institutions would close. The Explanatory Notes to the first print of the Bill (paragraph 71) state that the legislation contains “a suite of powers to enable government to react flexibly to manage differing levels of risk” to meet the “particular challenges and risks to those operating in an education or childcare context, whether children, students, teachers or visitors, because of the need or tendency for persons to learn together in groups and because of the harmful effect that any break in education may have on a young person’s development and progression to further study or employment”.

What the Act does

The Act applies throughout the United Kingdom although there is separate legislation for each of the four jurisdictions. The Act gives the “appropriate authority” (the Secretary of State in England):

• a power to direct temporary closure (a “temporary closure direction”) of one or more named educational institutions or registered childcare providers (or a particular description of establishments or all establishments) requiring relevant institutions to ensure specified persons do not attend the institution (Schedule 16, Part 1);
• a power to direct temporary continuity (a “temporary continuity direction”) of one or more named educational institutions or registered childcare providers (or a particular description of establishments or all establishments) requiring relevant institutions ‘to take steps specified in the direction in connection with the provision, for a specified period, of education, training or childcare and services or facilities relating to education, training or childcare’ (Schedule 17, Part 1, paragraphs 1, 3 and 4); and
• a power to disapply or vary specified existing legislation contained in or arising out of education and childcare legislation (no children’s social care legislation in specified in the Act) (Schedule 17, Part 1, paragraphs 5 and 6).

In summary, the Act gives the Secretary of State power to close educational establishments (Schedule 16) and childcare settings and then reopen them for specified purposes (Schedule 17).

Where are the directions?

There is a problem in that compliance – schools closed to all but a small number of pupils – was achieved three days before the Act became law and no directions have been published. For the temporary closure direction issued under sch16(1)(a)) the Secretary of State must first receive advice from the Chief Medical Officer under sch16(1)(3) and

• Publish the direction (sch16(5)(1))
• State the specified period (Sch1(3)), i.e. how long the direction lasts
• State whether local authorities have been authorised to exercise any of the Secretary of State’s functions over all schools in the local authority’s area (Sch16(4)(a)) and
• It would be helpful to state which of the 35+ pieces of guidance ‘persons’ (governing bodies etc) who are subject to a temporary closure direction ‘must have regard to’ (sch15(5)(4)).

Given that the Secretary of State can enforce directions through the courts (sch16(1)(8)) it is regrettable that directions have not been published.

Similarly, temporary continuity directions must be published (Sch17(4)(1)), state the period of the direction (Sch17(2(b)), publish authorisations about the local authority role if any (sch17(3)(1)) and state which of the ‘any guidance’ published by the Secretary of State ‘persons’ (governing bodies etc) who are subject to a temporary closure direction ‘must have regard to’ (sch17(4)(4)).

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350) came into effect three days after schools had closed to all but a few children. The regulations were made under the Public Health (Control of Disease) Act 1984. The regulations prevent a child (with or without a parent) without reasonable excuse from attending childcare or educational facilities where they are still available to the child with the implication it was not a “reasoned excuse” to attend school if you were not in the priority groups. In the absence of anything else this would have stopped the vast majority of children going to school.