A (Rough)Guide to the Law

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Education law during the Coronavirus Pandemic

A potted guide

The new guidance on schools opening is available here

I have left this page online, since it may still be relevant for those who intend to continue not to send their children to school

Authorship, Disclaimer & Jurisdiction

Collated by the
"HE UK: Home School Lockdown, Resources & Support” Admin Team
Latest update: 0900, 12 May 2020

Introduction 

With schools temporarily closed, thousands of parents are seeking support from the Elective Home Education community on how best to educate their children at home during this stressful time.

We have prepared this overview of the relevant laws as we understand them.

Where possible the information contained here was fact checked at the time of compilation, using information corroborated via IPSEA, the DfE, various government departments, and other trusted sources.

Where possible links to sources are available within the article. Other links will be added as they become available. The date of the latest updates will be placed at the top of the document.

Current Legislation

When is Compulsory School Age (CSA)?

Children become of CSA at the start of term following the child’s 5th birthday and it ends the last Friday in June following the child’s 16 birthday. No child aged 17 or older can be of CSA.

Young people aged 16-19 must in theory take part in some form of education or training. However, since there is no legislative enforcement regarding this group, and there are no legal ramifications for non-attendance, we are setting this group aside.

Unless we say otherwise, the rest of the article assumes we are discussing children aged 5-16 living in England.

S7 Education Act 1996

This section outlines the educational rights and responsibilities of the parent towards the child.

S7 means that, regardless of where or how you decide to educate your child, it is always your duty to ensure your child receives an education suitable to their age, ability and aptitude, and any special needs they may have. 

This applies even if you send your child to school. So, in theory if you send your child to a failing school, you could be prosecuted for a failure to provide a suitable education. Though for obvious reasons this never happens.

S444 of the Education Act 1996

S444 of the Education Act 1996 says that unless they have been granted authorised absence by the Head Teacher, children who are registered at a school must 'regularly' attend.

If parents do not ensure children attend the school at which they are registered ‘regularly’, they are causing an offence.  

Welfare of Children

The welfare of children has primacy over education and the government message "is loud and clear": the health, safety and well being of children is paramount.

If children can stay at home, then that is what they should do, unless it is absolutely necessary to do otherwise.

It is most important to ensure children feel safe and loved especially since they are adapting to changes to their usual routines, restricted social contact and other uncertainties relating to the pandemic.

Indeed this is already written into law. S175 of the Education act 2002 says:

(2)The governing body of a maintained school shall make arrangements for ensuring that their functions relating to the conduct of the school are exercised with a view to safeguarding and promoting the welfare of children who are pupils at the school.

So paragraph 1 relates to local authorities and paragraph 2 relates to (state maintained) schools. Academies and private funded schools are not maintained schools, even if your child is funded with a placement there, such as in the case of an LA funded placement at a privately run special school.

However, all schools have a duty of care regardless and in all cases the prosecuting authority remains to be the Local Authority.

Promoting the welfare of children should, under the circumstances, include assessing the pressure and stresses that their pupils find themselves under. It also includes the stresses they cause the child in relation to pressure they place upon the family as a whole.

It cannot 'promote the welfare of the child' if the parents are unable to provide the time, space or materials (ie computers) sufficient to carry out the instructions of the school and threatening the children with sanctions upon return to the school is completely inappropriate.

If any person has genuine concern or evidence that a child is in danger, then they should of course raise it with their local Child Protection Teams, as they would at any time.

Leaving a child alone

We are being asked about the age its legal to leave a child alone. The government advice on this is here

ABOVE ALL, STAY HOME - STAY SAFE

In conclusion, what does the above mean?

Put together, it means that parents of children of CSA are responsible for their children’s education at all times, even if they send their child to school. The law states in broad terms what constitutes a suitable education and how the state ensures parents discharge their duty to provide a suitable education.

Even if your children attend a school, should the education your child receives there not be suitable to his or her needs as defined by s7 above, then technically you could be prosecuted, although, of course, that is extremely unlikely to happen, especially where the school is a state school.

But above all the welfare of the child trumps education. Local Authority (LA) staff have an absolute duty to ensure the well being of all children when conducting their various roles.

Coronavirus Act 2020

The corona Virus Act is now law.

As part of its campaign to combat the current pandemic, the government has introduced emergency legislation called the Coronavirus Act 2020.

Part of the act (schedules 16 and 17) gives the Secretary of State for education powers to temporarily close schools in England (and likewise, the equivalent minister in Wales for Wales) and to temporarily revoke certain sections of the Education Act 1996.

Schedule 16 of the Coronavirus Act

Schedule 16 deals with school closure orders and other matters arising from a school closure order.

It says that if a school has been temporarily closed using powers in the Act then, in relation to any matter stemming from the direction to close, S444 of the Education Act 1996, will cease to be in force for any issue relating to the school's closure.

This means that if your school has been closed due to a government order, you will not be liable for prosecution under S444 of the Education Act 1996 if your child subsequently fails to attend during the closure of the school.

S7 however, remains in force, so you should still make reasonable steps to ensure your child(ren) receive a suitable education during the pandemic.

What has changed

The enforcement sections of the Education Act 1996 (S437 & S444) have effectively been suspended during your child's school closure.

So there is no penalty for failing to provide a suitable education while your school is closed. If your school is open and functioning outside the directions of the Coronavirus Act 2020, you remain subject to S437 - S444 depending on your circumstances.

This means that during a period of closure directed by the Secretary of State, the school has no legislative power to force you to undertake any particular form of work during the closure period since the only sections available to them to sanction you have been suspended.

Education & Health Care Plans (EHCPs)

Activation of the Act

The Coronavirus act 2020 is what is known as a "sunset act" meaning it is an emergency act which will cease to be law two years after it is fully enacted (receives Royal Ascent) and the secretary of state has informed everyone necessary.

Notices under the Act are valid for one month but can be repeatedly made with reasons given, Reasons must relate to the pandemic.

Vicky Ford, The Secretary of State for Children

Vicky Ford has issued an open letter to children and young people with SEN, their parents, carers, families and others who support them (see IPSEA link at end). Some important elements in Vicky Ford’s open letter are:

Who is a "vulnerable child"

Vulnerable children include those who have a social worker and those children and young people up to the age of 25 years who have EHC Plans.

Those who have a social worker include those who have a child protection plan and those who are looked after by the LA.

A child may also be deemed vulnerable if they have been assessed as being in need or otherwise meet the definition in s17 of the Children and Family Act 1989 (CIN).

A child's eligibility for free school meals should not be a determining factor when assessing vulnerability, because LAs and or parents may use this to either get a school placement or force a child to school

Continuing to attend during a 'closure'

Those with EHCPs should be risk assessed by their nursery, school or college in consultation with the LA and parents to decide whether they need to continue to be offered a place at school or college or whether they can have their needs met at home.

This assessment could include necessary carers, therapists or clinicians visiting the home to provide essential services.

Many children with EHC Plans can safely remain at home. (See the main IPSEA link at the end of this document for more details)

Duties of parents of children with EHCPs during school closures

Whilst children are at home due to school closures, parents have the same duty and rights under S7 of the Education Act 1996 as other parents, which means that parents have a duty to ensure their children receive a suitable education according to their age aptitude and ability and any special needs.

An EHCP is only a legally binding document if it has been finalised. Or if an existing EHCP is being amended the provision included continues to be lawful until amendments have been added and finalised.

The provision outlined in the plan is usually delivered by teachers employed by your child’s school and or other professionals named in the plan, such as Speech and Language Therapists (SALT) and Occupational Therapists (OT).

It seems reasonable to assume that parents will not be expected to implement, deliver or facilitate the EHCP provision since schools have closed.

Since S444 and S437 of the Education act 1996 are both suspended while a school has an authorised closure, parents cannot be prosecuted for failing to provide a suitable education due to circumstances arising from the closure.

Ultimately it is the duty of the LA to ensure EHCP provision is implemented and facilitated.

The LAs' statutory duties relating to EHCPs

The Coronavirus Act 2020 says that LAs' statutory duty to provide the EHCP criteria, provision and school or college placement is temporarily suspended. Although LAs are encouraged to provide support to the best of their ability for those children who need it.

Does the LA still need to carry out EHCP needs assessments?

The Minister's open letter suggests the government will be seeking to amend regulations on the time scales for the EHC Plan processes where it is appropriate.

As yet IPSEA have not seen any proposed drafts and will keep this under review; however it is important to recognise that even if there are no changes to legislation  the LAs' ability to comply with deadlines may be impeded by staff absences.

 Will SEND tribunal appeals continue?

Yes, the SEND Tribunal has confirmed that hearings will be on paper or by telephone and where possible by video starting on Monday 23.3.20

The Tribunal (SENDIST) has asked parties NOT to call the Tribunal until 2 DAYS before hearings if they haven’t heard anything because, like every public service, they are affected by staff shortages

It is expected there should be no need to adjourn hearings if parties are ready to go ahead, even though they are currently not able to take place in person.

For further information on how telephone and video hearings will be used during the COVID-19 outbreak, visit the IPSEA web site.

Will Annual Reviews still be carried out?  

While annual reviews are a mandatory requirement, parents attending in person is not.

The Coronavirus Act 2020 allows the requirement to carry out an Annual Review (AR) to be temporarily ‘disapplied’ where it is considered to be ‘appropriate and proportionate’.

Otherwise, Annual Reviews are mandatory and apply to all children who have EHCPs regardless as whether they attend school or are home educated.

Ministers comments relating to the EHCP process during the pandemic

If you feel there is an urgent need to amend the provision or placement in the child or young person's EHCP, speak to the school and/or the LA to establish what review processes could be put in place.

Should parents need independent SEND advice we suggest you visit the IPSEA web site and leave a message for a call back on their online facility for FREE impartial legal advice.

What if I don’t want to send my child to school, for example due to immunodeficiency

If your child is not well enough to attend school you must keep them at home. Fines or penalties for parents who fail to send their children to school have been temporarily disapplied (see above re S437 and S444).  

LA duty to make the provision in an EHCP

The absolute duty to make the provision in an EHCP may be temporarily amended to a ‘reasonable endeavours’ duty.

This could be implemented via an order of the Secretary of State, which would have effect for one month (although further orders could be made if necessary).

The order would need to set out why the Secretary of State considered this to be “appropriate and proportionate action in all circumstances relating to the incidence or transmission of coronavirus.” This means that during the specified period the LA needs to do whatever it reasonably can to put provision in place, but if they cannot do so they would not necessarily be breaching the law.

The duty of a school named in an EHCP

The duty of schools to admit a child where the EHCP names that school may be temporarily disapplied.

Again, if there could be a risk to the child or young person’s health, well being or safety if they do not receive a particular provision or intervention, raise this with your school and LA without delay.

If your child is not registered at a school (Home Education)

If you have previously deregistered your child, making you a ‘home educator’, then S437 will remain operational in your circumstances, regardless of any orders being made to close local schools.

The LA would naturally be hampered in any action against you due to a difficulty in finding a school which they could name in a School Attendance Order.

Should you be in this situation, I suggest you join one of the main Home Education Forums and ask for support there.

FAQs


1) do I have to make my child do the work set by school?

It is your decision. As parent you should ensure you meet your duties under S7 above. However, if the schools have been closed by government order, then the work set by the school is an offer of assistance to you as the parent. It is your choice whether you take that offer up.

You could decide to follow all of the school’s suggestions, because you want your child to have covered all the relevant topics for when the schools reopen. This may be particularly relevant as your child approaches exams. Alternatively, you may decide to use some of the material, but not all.

You may even choose not to use any of the material and provide an alternative form of education for your child instead.

2) My school says that if we do not submit work to the teachers by set deadlines, they will call Social Services.

If the powers in S1 of Schedule 16 of the Coronavirus Act are in force, then the school is ‘closed’ and there is no requirement for you to submit work by any deadline.

For the school to have a duty to report a concern to the Child Protection Team, they would need a reason to believe there is a serious risk of significant harm to the child. A failure to keep in touch with the school or complete work, would not be sufficient reason of itself to arrive at that conclusion. Although either may be a contributory factor leading towards such a conclusion where other reasons are present.

A ‘reason to believe’ could include things like previous serious concerns. (Such children are likely to be on the at risk register,) or more recent, current reports to the children's services relating to the child’s welfare. These could come from any agency or even a member of the public.

3) I want to use the school resources but my circumstances don't allow it.

Some parents are saying they want to follow the school's provision, but for various reasons they cannot. These may include not owning a computer, or having too few computers in the home. The parents may be working long and demanding hours from home and may not be available to supervise their child's work. The child may have an SEN with an EHCP which requires complex support the parents are unable to provide.

In such cases we recommend you discuss these with the school, preferably in writing (email or letter.) failing that a telephone conversation with a senior member of staff. If you have a social worker, you should discuss it with them.

Keep a record of what is said, when and by whom.

4) My child’s school is saying we must log on for classes at set times. Must I?

If the powers in S1 of Schedule 16 of the Coronavirus Act are in force, then the school is ‘closed’ and there is no legal requirement to attend. You may choose to 'attend' the classes your school is providing online, but it is not mandatory.

5) Do I need to keep any evidence that my child is receiving an education?

You are not legally required to keep evidence of the education that your child is receiving; however, while it is exceedingly unlikely, the LA may still make ‘informal enquiries’ about your provision. We would therefore (in an abundance of caution,) suggest you keep some form of record regarding what you have done. This may be in the form of pictures, screen shots, a scrap book or diary. It may be a built in part of your provision for the child to do this. However, There is no need to labour it.

6) Contact with the LA

In the extremely unlikely event that the LA make contact, it is good practice to:

  • keep a written record of correspondence and telephone conversations.
  • include times and dates of contact or receipt of correspondence.

In the case of telephone conversations you also need:

  • the name and 'business' address of who you spoke with
  • an outline of what was said.

To ensure everyone agrees with what was said, it is good practice to confirm a telephone conversation in writing with the LA.

We always recommend that contacts between parents and local authorities are done in writing. This is to ensure that an accurate record of the exchange is kept. We also recommend that you keep copies of your letters to them.

Though again, such contacts remain unlikely, and they appear not to have any power to prosecute you for truancy during the school closure.

7) Key Workers' children and school provision

The government has released further guidance for schools, colleges, LAs, setting out their approach to maintaining educational provision this including a full list of key workers (see IPSEA link below). However, this ‘final’ list of key workers has been amended a couple of times. So it’s possible it may continue to be amended.

Re-Opening of Schools

We have produced this new guidance on the announcement of the re-opening of schools from June.

L i n k s


Where can I go for support?

The Home Education community is providing support to those with children temporarily at home for free via a Face book group
 
(IF YOU APPLY TO JOIN- please answer all 3 questions and agree to the group rules.)

DfE Corona Virus Help line
0800 046 8687

(8-6, Monday to Friday & 10-4 weekends)

If you are in crisis, I have additional links to organisations who may be able to help

DfE Corona Virus Email

Further Information

Government guidance page
HE UK
IPSEA
ACAS
Public Health England (PHE)
Public Health Wales

The TES

SNJ

Further links will be added as we locate useful, reliable, information.


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