Coronavirus Bill – Impact on Education Cases

Coronavirus Bill: Education law impacts

 

  1. The provisions in the first draft of the Coronavirus Bill, as published on 19 March, that relate specifically to education and schools are in Schedules 15 and 16 (which are given effect by clauses 35 and 36).

 

School closures

 

  1. Schedule 15 relates to the powers to close schools. Part 1[1] gives the Secretary of State (or the Welsh Ministers) the power to issue ‘temporary closure notices’ to any and all schools, educational institutions and childcare providers[2]. This can include partial closures, or restricting attendance of some but not all pupils, and must be for a specified period. These powers can also be delegated by the SoS/Welsh Ministers to local authorities: paragraph 4 of Part I

 

  1. Paragraph 3 of Part 1 of the Schedule sets out that where a school is given a notice, section 19 will not apply to a pupil who may not receive education as a result, and the provisions around school attendance in ss.437-444 will not apply.

 

 Educational provision when schools are closed

 

  1. The provisions in Schedule 15 are fairly straightforward in providing for school closures; Schedule 16 (Part 1 for England and Wales) then deals with continuity of educational provision when schools are closed. Broadly, it provides for the SoS and Welsh Ministers[3] to also issue ‘temporary continuity directions’ to educational institutions, and modifies various legislation accordingly.

 

  • Temporary Continuity Directions (TCD)

                                                                                                         

  1. TCD would require educational institutions to take steps in relation to the provision of education, training or childcare (and ancillary matters). Paragraph 4 provides that these steps could include:

 

“(b) require a relevant institution to open, to stay open, to re-open, or to open at times when it would not usually be open;

 

(c) require a relevant institution to provide education, training or childcare, services relating to education, training or childcare or ancillary services or facilities;

 

(d) require a relevant institution to allow specified persons to attend that institution for the purpose of receiving education, training or childcare, services relating to education, training or childcare or ancillary services or facilities, provided by or on behalf of that institution;

 

(e) require the alteration of term dates;

 

(f) require a relevant institution to provide or make arrangements for the provision of transport or other services relating to the provision of education, training or childcare or to ancillary services or facilities”

 

  • Notices temporarily removing or relaxing statutory provisions

 

  1. Paragraphs 5 and 6, in relation to England, and Paragraphs 7 and 8 in relation to Wales, provide for a power for the Secretary of State and Welsh Ministers, by notice, to disapply or modify various specified statutory provisions (and any equivalent Academy Funding Agreement). These notices can only be given for a period of up to 1 month.

 

  1. The disapplication or modification would have to be for a specified period, and could be total (countrywide) or applied to particular areas or people. Paragraph 5(4) requires that the Secretary of State specify in any notice why the Secretary of State considers that the issuing of the notice is an appropriate and proportionate action in all the circumstances relating to the incidence or transmission of coronavirus.”

 

  1. The power to modify legislation is not an unrestricted power to re-write it: the modifications that are allowed are all set out in the Schedule (in lengthy tables) so the effect of these can be seen to some extent in advance. However, paragraph 6(1) would give the Secretary of State a ‘Henry VIII’ power to amend the list of legislation that is covered, which would potentially mean any other provisions not currently mentioned could be added later.

 

  1. The power to disapply legislation applies to specified provisions, currently set out in paragraphs 5(5) and 7(5). For England these are:

 

  • section 512(3)(b) and (c)(ii) of the Education Act 1996 (provision of school meals);
  • sections 437, 443 and 444(1) and (1A) of that Act (provisions relating to attendance at school);
  • section 87 of the School Standards and Framework Act 1998 (no requirement to admit children permanently excluded from two or more schools);
  • section 1(6) of the Care Standards Act 2000 (which provides that a school is a “children’s home” in specified circumstances);
  • section 5(1), 13(2)(b), 15(3), 17(2), 48(3) and 49(1) and (2) of the Education Act 2005 (provisions relating to inspections);
  • section 1A(1)(b) of the Academies Act 2010 (requirement for academy to have broad and balanced curriculum);
  • section 43 of the Children and Families Act 2014 (schools and other institutions named in EHC plan: duty to admit);
  • section 44(1) of that Act (reviews and re-assessments).

 

  1. The list of enactments in relation to Wales is different, and while it includes most of the equivalent powers to the English ones, it does not always precisely equate to these:

 

  • section 324(5)(a) and (b) of the Education Act 1996 (statement of special educational needs);
  • section 328(5) of that Act (review of education needs);
  • sections 437, 443 and 444(1) and (1A) of that Act (provisions relating to attendance at school);
  • section 87 of the School Standards and Framework Act 1998 (no requirement to admit children permanently excluded from two or more schools);
  • section 101(1) of the Education Act 2002 (basic curriculum for every maintained school);
  • sections 28(1), 39(2), 40, 42(2) and 50(4) of, and paragraph 2(1) and (2) of Schedule 6 to, the Education Act 2005 (provisions relating to inspections);
  • regulation 12 of the Childcare Act 2006 (Local Authority Assessment) (Wales) Regulations 2016 (S.I. 2016/88 (w.42)) (annual progress reports), so far as it requires an annual report for the years 2020 and 2021.

 

  1. In particular, this would allow for all of Section 324(5) of the 1996 Act to be disapplied (i.e. not just the duty on named schools to admit pupils, but also the LA’s duty to ensure the provision in a statement is delivered).

 

  1. The tables of permitted modifications are detailed, and rather than set these out I have attached these as extracted from the Bill. The key ones which would seem likely to be important to our work mostly involve modifying existing absolute duties with a duty to use ‘reasonable endeavours’

 

  1. In relation to England, that could include:

 

  • Reducing the duty under section 19 EA 1996 to one to use ‘reasonable endeavours’ to secure provision
  • Reducing the transport duties under ss.508A-F and Schedule 35C EA 1996 to use ‘reasonable endeavours’ to secure provision
  • OFSTED’s duty to inspect schools under EA 2005 being reduced to a ‘reasonable endeavours’ obligation
  • Perhaps most key, the CFA 2014 section 42 duty to secure SEP in an EHC Plan could be reduced to a ‘reasonable endeavours’ duty

 

  1. Equivalent provisions in Wales are generally then included as well (although school transport is not, presumably as it is now a devolved matter) and again it refers to both sections 324(5)(a) and (b) without distinction (and also includes s.328).

 

  1. Notably – at present at least – none of these modifications would affect the duties to carry out statutory assessments, or prepare Statements/EHC Plans (except in relation to Learning Skills Assessments in Wales), so that if a request for an assessment is made (and granted) an LA would still have to arrange one and secure all necessary advices. How that would work if professionals were not able to see a child in person (nor in school) is not then clear.

 

Additional

 

  1. In the Commons Committee stage of the bill, a new clause was proposed which would have provided for a general duty on all schools and FE providers that are closed (either by direction or otherwise) to ensure that its pupils continue to receive educational provision.

 

  1. However, although it is not entirely clear whether that new clause was adopted – the bill as amended in Committee has yet to be published – it would appear that it probably was not. It would also seem that both clauses 35 and 36, and Schedules 15 and 16, were effectively passed through the Commons stages.

 

Chris Barnett

24 March 2020

 

[1] Parts 2 and 3 relate to Scotland and Northern Ireland

[2] Schools have of course already been closed prior to the Bill being passed, probably under powers given in the Public Health (Control of Disease) Act 1984.

[3] Again this can be delegated to LAs or, for Higher Education, to the OfS or HEFC for Wales.

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