What are the legal risks to re-opening schools?

Last month, the government made the unprecedented decision to order all schools and nurseries to close, with effect from 20 March, to all except vulnerable children and the children of critical workers. Schools across the country have faced the immense task of maintaining a skeleton provision for the children that are still permitted to attend, as well as establishing a programme of remote learning for the rest of their students.

Naturally, the million dollar question is when schools and nurseries will be allowed to re-open. While the government will wish to minimise the impact on children’s development and education by recommencing normal provision as soon as possible, it will also be crucial to factor safety considerations into this decision.

Before they can reopen fully, schools will need to consider the duty of care they owe to their students and their staff. This will mean determining what steps they ought to be taking in order to uphold this duty, and whether, practically speaking, it will be possible for them to take such steps in the current climate.

What are the risks of opening too soon?

The immediate risk of opening too soon, or without appropriate protective measures in place, is quite clear: further spread of the COVID-19 virus, placing pupils, parents, staff and their families at risk. Clearly this is something that schools and nurseries will wish to avoid as far as possible.

From a legal perspective, schools and nurseries owe a duty of care, both to their charges and to their staff. Schools which reopen their doors without engaging in a careful risk assessment, and putting in place all reasonable protective measures, could find themselves vulnerable to negligence claims for breach of this duty of care.

Schools and nurseries will need to be particularly aware of their safeguarding duties (which the government has indicated remain a priority during the crisis), as well as the needs of other vulnerable children, including those with underlying health conditions, those with SEND and those with an EHC in place.

How can schools and nurseries meet their duty of care?

It is established in the law of tort that the greater the risk of injury, the more significant steps a party will be expected to take in order to manage that risk. Under the current circumstances, it would be safe to say that the risk is substantial – COVID-19 has proved to be highly contagious, and has caused thousands of deaths across the UK. Schools and nurseries will therefore need to carry out detailed risk assessments of all locations and circumstances in which children will find themselves (classrooms, canteen, playground, PE classes, etc.), and put in place appropriate measures to minimise the risk of infection as far as possible.

1. Social distancing measures. In line with current government and NHS advice, it will be vital for schools and nurseries to maintain social distancing measures as far as possible once things begin to return to normal. This may involve age-appropriate health teaching, for example, using a song to teach early-age children to comply with the 20 second hand washing advice. However, many commentators including the National Education Union (NEU) have expressed the view that effective social distancing simply is not possible in schools. Each school or setting will need to assess their particular circumstances, and whether they believe it will be possible for adequate measures to be maintained.

2. Personal protective equipment (PPE). One obvious measure schools might consider, particularly for the protection of their staff, is the use of PPE. However, the Department for Education (DfE) guidance currently maintains that educational staff do not require PPE, and there are no plans to organise provision of PPE to schools. This guidance has been challenged by UNISON, who have emphasised the importance of PPE as a protective measure in educational settings where effective social distancing will not be possible. They have also highlighted the importance of school cleaners being equipped with PPE and adequate cleaning supplies, which is not currently accounted for in the DfE guidance.

3. Enhanced cleaning. WHO guidance emphasises the importance that all surfaces and objects which children or staff come into contact with should be cleaned and disinfected at least once per day. UK Government advice on cleaning during an outbreak of infection is to arrange for twice daily cleaning of areas which can easily become contaminated.

4. Testing. At present, this measure unfortunately lies beyond the control of schools or local authorities. The current availability of testing for COVID-19 in the UK remains very limited. It was reported on 23 March that the National Education Union (NEU) had demanded that testing be made available for all school staff still required to attend. This would undoubtedly be one of the most effective tools to manage the risk of infection and allow schools to reopen safely. The recent rollout of a national testing programme for key workers shows a positive step in this regard, and schools will need to stay alert to developments in the availability of testing for school staff.

What are the further challenges for schools and nurseries?

1. Staff shortages. Long before this crisis hit, teacher shortages were a major problem facing schools in England. Further strain has arisen from teachers and support staff with underlying health conditions being unable to work, and staff needing to self-isolate under current NHS guidelines. 

It is possible that these guidelines will stay in place after schools are permitted to reopen fully, leaving schools short staffed at a time when implementing appropriate health and safety measures will necessitate more hands on deck. It should also be noted that any staff who have been furloughed during this period to ease the financial burden on schools cannot work or volunteer while they are furloughed.

 2. Financial concerns. Early-age settings and private schools are facing the additional concern of reduced cash flow, and the need to keep up with fixed costs in order to survive during forced closures. Some private schools in particular face a pressure to reduce their fees, while continuing to provide substantial distance learning opportunities for pupils which means staff must be kept on. There have been reports in recent weeks of a number of independent schools facing closure unless further funding, or new owners, can be found. 

One of the key pressures on most schools and nurseries’ cash flow will be their premises, whether leased or mortgaged. In both cases, measures have been announced to provide some relief: the government has declared a moratorium on evictions by commercial landlords, to last initially until 30 June, and mortgage holidays to be granted by institutional lenders to those struggling to meet payments during this time. However, education providers must be careful not to take this relief as a reason for complacency; there is no guarantee that landlords and lenders will not be able to take action for any outstanding payments which cannot be made up as soon as these temporary measures are lifted. Where possible, providers should consider reaching an agreement with their landlord or lender, which might involve reduced and/or deferred payments, to manage the risk of facing proceedings further down the line.

One welcome development has been the extension of the business rates holiday to nursery businesses, which will apply from 1 April 2020 to 31 March 2021. This relief will be applied automatically for all nurseries based in England which are on the Ofsted Early Years Register, or which provide care and education for children up to 5 years of age.

What practical approaches should be considered to aid reopening?

1. Staggered classes. Practical solutions such as staggering arrival and departure times from school, as well as lesson start and end times to minimise the number of children moving around at any given time, may help to support social distancing efforts. If staff numbers are not sufficient to enable reduced class sizes, schools might also consider dividing classes, so that each half of a class rotates between a week of in-school lessons and a week of remote learning.

2. Volunteers. Government advice has indicated that schools may continue to use volunteers to support their work, provided that they are DBS checked. This could help to mitigate the problem of staff shortages in the short term.

3. Agreeing payment terms. Those private schools and nurseries with rent or mortgage payments to consider should try wherever possible to agree sensible terms with their landlord or lender. It is advisable to strike a balance between managing cash flow in the present, and minimising the build-up of debt and risk of action being brought for missed payments going forward.

Conclusion

The most important message is that all schools and nurseries need to consider the steps they can take to minimise the risk of infection once they re-open. This will involve keeping up to date on the latest guidance and policy from the Department for Education, for example on key measures such as availability of PPE and testing, which may change over the coming weeks and months. It will be crucial to carry out a thorough risk assessments, consider the measures that will be required to minimise the risks identified, and determine whether it will be possible to adequately protect both children and staff, before taking the decision to re-open fully. In addition, private institutions will need to consider their cash flow position, and where appropriate should try to reach an agreement with landlords or mortgage lenders in relation to current and future payments, to improve their chances of survival in the long term.

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For more information, please contact Helen Wong.