Can we limit the number of vulnerable and/or critical-worker children we have in school during lockdown?
On Friday 8 January, the Department for Education’s (DfE) updated its guidance slightly to explain that where a child can remain at home rather than attend school, they should.
Please note: the information contained in this legal update is correct as of the original date of publication.
The Department for Education’s (DfE) guidance is clear that places should be offered to children who fall within the vulnerable category or where one parent is a critical worker. The guidance has, however, not placed any limit on the number of places that a school can offer or a group size limit. The categories of critical worker whose children should be provided with a place have been expanded when compared to the first lockdown. On Friday 8 January, the DfE updated its guidance slightly to explain that where a child can remain at home rather than attend school, they should.
There have been a number of reports of some schools over 50% full based on the criteria, and where schools are concerned about the number of pupils in school, either from a health and safety perspective or in terms of the need to provide staffing cover for this, a risk assessment should be undertaken. Where the risk assessment indicates that not all those pupils who fall within the DfE advice can be provided with a place, then consideration should be given to the priority of offer of a place. Importantly, this should be a last resort where there is no other reasonable option to mitigate these risks.
Where places are going to be limited, our advice would be that consideration needs to be given to the priority offer of places and that this is not done on a random basis. For a number of reasons, our advice would be that places are first offered to pupils considered vulnerable before places are then offered to critical-worker children. This is partly because of the potential risk to those children remaining in the family home (where there is social care involvement) but also due to the wider impact on these pupils, as well as the potential litigation risk of denying them a place. The critical-worker category now contains a wider number of occupations, and so within this it would be important to prioritise those children of workers who are on the front line of the Covid health response, being workers in primary and secondary care and those involved in the vaccination programme, followed then by other healthcare workers. Places could then be offered to the children of workers in social care settings and teachers, with subsequent places offered to those of other critical workers in a sensible order.
If a school seeks to go down the route of limiting places, it would be important to communicate openly and clearly to parents about the decision and the reasons for it, as well as the order in which you will be providing places to children. As above, the limiting of places should be a last resort in terms of mitigation of the risks. If you need specific advice on this please do get in touch.
Contact
Philip Wood
Senior Associate
philip.wood@brownejacobson.com
+44 (0)330 045 2274
You may be interested in...
Online Event
Wellbeing and financial considerations – practical solutions for challenging times
Legal Update
be connected - Spring 2023
Legal Update
Teacher strikes – lessons learnt so far
Opinion
Can toilet facilities amount to sex discrimination?
Legal Update
New support launched to manage school complaints
Legal Update
Cyber security and data breaches
Legal Update
#EdCon2023 virtual event hailed a success
Online Event
Flexible working in schools webinar
Legal Update
What does the new Provider Access Legislation mean for schools?
Legal Update
High Court dismisses Welsh RSE right to withdraw claim
Opinion
Term-time school worker entitled to national minimum wage for unworked basic hours
On-Demand
Industrial action essentials: what you need to know
Legal Update
Education Software Solutions Limited breaks against the CMA’s intervention: A victory for freedom and flexibility in contracting for MIS services
Legal Update
Safeguarding at scale report published
Legal Update
Trade unions announce plans to re-ballot members
Legal Update
Widespread industrial action now confirmed for schools
Legal Update
Industrial action and minimum service levels within education
Opinion
Consultation on holiday entitlement – part-year and irregular workers
Guide
FAQs - converting to academy status
Guide
FAQs - becoming a sponsored academy
Guide
FAQs - becoming an academy sponsor
Guide
FAQs – single academy joining a MAT
Legal Update
EdCon2023 launch: Thursday 12 January
Legal Update
The importance of understanding the transitional provisions under the Electronic Communications Code
Legal Update
Biodiversity Net Gain: positive for nature and an opportunity for landowners
Legal Update
Discrimination comes of age
Legal Update
Protecting children and their data in the online environment
Guide
#EdCon2023: Access a range of expert guidance and resources at our FREE virtual conference
Legal Update
be prepared for the 2022-23 academic year
Legal Update
Teacher Pay Survey 2022
Legal Update
be connected newsletter for schools - Winter 2022
Guide
Good governance essential to avoid falling foul of the ESFA
There’s been little evidence of interventions or financial management reviews this year and it appears the Education and Skills Funding Agency (ESFA) has re-focussed on financial delivery. It’s also telling that there were no discernible changes to the reporting of financial irregularities in the Academies Trust Handbook 2022.
Legal Update
Children's commissioner recommendations for SEND reform
The Children’s Commissioner, Rachel De Souza, has recently published a report “Beyond the labels: a SEND system which works for every child, every time”, which she intends to sit alongside the DfE’s SEND Review (2019) and SEND Green Paper (2022) and which she hopes will put children’s voices at the heart of the government’s review of SEND system.
Legal Update
Top three training topics 2022-23
As well as providing day-to-day support to help you focus on managing your settings, we also provide training and professional development on a range of topics to keep you and your staff up-to-date.
Legal Update
School complaint management - exploring a new way forward
There’s greater opportunity than ever for parents, carers and guardians to voice any concerns they have relating to their child’s education and for their concerns to be heard and to be taken seriously. While most staff in schools and academies are conscious of their legal duties relating to complaints management, many are struggling to cope with such a significant increase in the volume of complaints they must manage.
On-Demand
The UK's green agenda - the outcomes of COP27 and actions since COP26
Guide
Setting up a trading subsidiary – a guide for academy trusts
We’re pleased to collaborate with Lloyds Bank, who recently asked us and audit and risk specialists Crowe UK to offer guidance that academy trusts would find helpful when considering setting up a trading subsidiary.
Legal Update
DfE Trust Capacity Fund
The DfE has published new guidance and opened the application process for window two of the Trust Capacity Fund (TCaF) for 2022/2023, with a fund of £86m in trust capacity funding focused particularly on education investment areas.
Guide
The Independent Inquiry into Child Sexual Abuse - A guide for schools and trusts
The Independent Inquiry into Child Sexual Abuse was established in March 2015. We now have its report. As you would expect with such a broad scope, the report is long and makes a number of far-reaching recommendations. In this article, Dai Durbridge highlights seven of the 20 recommendations, sets out how they could impact on schools and suggests what steps to take now.
Press Release
Law firm picks up record breaking sixth Education Investor Award
Browne Jacobson’s education team has been named as winner of the ‘Legal Advisors to Education Institutions’ category at the Education Investor Awards 2022 for a record sixth time.