Academies and maintained schools – how to manage issues related to Covid-19 and non-Covid-19 related news

This is our sixth note published since the start of the Covid-19 pandemic and we are pleased that this comes in the context of the phased re-opening of schools. This edition focuses on the latest government guidance for schools on governance and exclusions. It also considers the updated guidance on supplier relief. It is intended for academies and maintained schools. If you have any questions, do please contact Emma Swann (contact details set out below).

DfE guidance on school governance – June update

The DfE guidance provides advice for schools on the role of governing bodies and trust boards in the current situation. The governing or trust board is responsible for its schools at a strategic level but chief executive officers and/or headteachers have delegated responsibilities for the day to day operational management of their school. Governing and trust boards will need to be aware of the operational decisions being taken by the school’s senior leaders and should be assured that an adequate risk assessment has been conducted and that protective measures are in place to reduce risks to children and staff.

Governors and trustees should be satisfied that senior leaders are communicating frequently with staff, parents and the local community, and listening and responding to any concerns they may have regarding the further opening of the school. In academy trusts, executive leaders and the trust board should engage with the local governing body (LGB) to understand the local context. The trust board has ultimate responsibility for being assured by the CEO that all the academies within the trust have been risk assessed and are ready for extending their opening. If an LGB has concerns regarding the decision to extend the opening of an academy, the LGB chair should raise their concerns in accordance with the scheme of delegation.

Whilst social distancing rules remain, boards should adopt alternative arrangements for holding meetings, for example, by using video or teleconferencing applications. Governing and trust boards should take a pragmatic approach to handling any urgent business and assess whether it is reasonable for virtual committee meetings to go ahead. Availability of governors or trustees will need to be considered to ensure that committee meetings are quorate. It may be more practical for the urgent business of any committee to be discussed at the governing or trust board meeting instead.

A significant issue addressed in the guidance is that trustees may temporarily rescind any delegated responsibilities, if necessary to maintain effective and timely decision making (except where there is a requirement within the Academies Financial Handbook for the establishment of a committee with particular responsibilities), for example, where a committee is currently unable to meet due to Covid-19. However, DfE would expect any short-term changes to be reassessed as the situation changes over the coming months.

Schools will continue to receive their core funding allocations in 2020 to 2021, regardless of any periods of closure or reduced operation. The DfE is also providing additional funding to schools, on top of existing budgets, which we highlighted in an earlier edition to cover unavoidable costs incurred due to the Covid-19 outbreak that cannot be met from their existing resources. This funding does not cover loss of income. Where schools normally provide a service that is wholly or significantly funded by private income, schools can consider re-deployment or using the Coronavirus Job Retention Scheme (CJRS).

On 17 March 2020, the Secretary of State for Education announced the temporary suspension of routine Ofsted school inspections. While routine school inspections are not taking place, Ofsted retains the power to inspect schools if it has significant concerns. There are no plans to re-start routine school inspections this term.

What is the current position regarding academy conversions?  The DfE has already supported schools who wanted to convert to academy status on 1 April, 1 May and 1 June to do so. DfE will continue to do this for future months on a case-by-case basis.

Procurement Policy Note – Update

The Cabinet Office has issued further guidance, (PPN04/20) to public sector bodies (maintained schools and academies are contracting authorities) supporting suppliers who have been affected by the Covid-19 outbreak. The guidance updates the previous supplier relief guidance (PPN02/20).

PPN04/20 covers the recovery and transition from Covid-19 and applies from 1 July – 31 October 2020. The note reiterates much of the information contained in the previous guidance on supplier relief but also covers the need for contracting authorities find ways to bring relief measures to a close as soon as possible and, in any event, before the end of October. Important points to highlight in the new guidance are that: the school has the final decision on whether it deems a supplier at risk and in need of relief; supplier relief payments are not intended to duplicate government support measures; and there is no automatic supplier entitlement to the relief measures set out in the guidance.

Suppliers must still open their books to provide evidence of cash flow through their business and must not expect to make a profit on undelivered elements of the contract. The new guidance also confirms that suppliers should not receive both relief under this guidance and relief under the Government’s Coronavirus Job Retention Scheme. It clarifies, however, that it is permitted for suppliers to claim labour costs under that scheme whilst also receiving partial payment from a school for non-labour related costs.

Schools should work with suppliers to agree a transition plan to bring relief payments to an end as soon as possible. This should include an assessment of whether the contract is still operationally viable in light of Covid-19. If it is not, the transition plan should include proposals for variation or termination.  Contracting authorities are expected to be reasonable and proportionate in their response to performance issues and contract enforcement, acting in a spirit of co-operation to achieve just and equitable contractual outcomes. This is a complex area where balancing arguments need to be weighed and advice sought as necessary to justify any termination of a contract.

School’s construction contract void for lack of capacity under the Education Act 2002

The High Court has recently held that a school’s contract with a construction company, under which it would make periodic payments in return for the construction of a sixth form centre, was void on account of the school lacking capacity to enter the contract. It was found that the contract comprised a finance lease and not an operational lease and this constituted borrowing for the purposes of the Education Act 2002 (EA 2002). The school had not obtained the consent of the Secretary of State pursuant to paragraph 3 of Schedule 1 to the EA 2002 and therefore it did not have capacity to enter the contract. This highlights the importance of ensuring the appropriate consents are obtained by a school before entering in to any such arrangements. The contractual claims against the school for failing to pay period payments did not succeed but the school was required to make payments for unjust enrichment.

Changes to the school exclusion process

The DfE has released statutory guidance relating to the exclusion process.  These new temporary procedures must be followed by all maintained schools, academies and pupil referral units (PRUs). The regulations came into force on 1 June 2020 and are currently intended to run until 24 September 2020.

The arrangements also apply to:

• permanent and fixed term exclusions occurring before 1 June which have not yet been considered by the governing board of the school
• permanent exclusions occurring before 1 June which have been considered by the governing board, if they have chosen not to reinstate the pupil and the time limit to apply for a review of this decision has not passed
• permanent exclusions occurring before 1 June where a parent has requested a review of a governing board’s decision but this has not yet happened.

Those considering an exclusion (governing boards or independent review panels (IRP)) can do so remotely, via telephone or video-conference, as long as certain conditions are met:

• all the participants agree to the use of remote access
• all the participants have access to the necessary technology
• all the participants will be able to put across their point of view or fulfil their function
• the meeting can be held fairly and transparently via remote access.

When assessing if a remote access meeting should take place, the needs of the participants, equalities legislation, along with the latest public health guidance, should be considered. It should be made clear to the parents that they do not have to agree to a remote access meeting but if they do not consent then the meeting will likely be delayed.

The DfE appreciates that it may not have been possible to meet the normal time limits, for governing board meetings, over recent months, due to the disruption caused by the pandemic. The new timelines are set out as follows:

Meetings to consider permanent exclusions, and fixed period exclusions resulting in the pupil missing more than 15 school days in a term

If a pupil has been excluded for 16 school days or more, in a term, the governing board should try to meet to discuss reinstatement within 15 school days.

If a face-to-face meeting has not be practicable, due to Covid-19, and a remote access meeting has also not been possible the limit will be extended to 25 school days, or as long as reasonably necessary for a reason related to Covid-19.

Meetings to consider fixed period exclusions resulting in the pupil missing between 6 and 15 school days in a term

If a pupil has been excluded for at least 6 school days in a term but not more than 15 school days in that term, and the parent chooses to make representations about the exclusion, then the governing board should meet to discuss reinstatement within 50 school days. If a face-to-face or remote meeting has not be practicable, due to Covid-19, the limit will be extended to 60 days, or as long as reasonably necessary for a reason related to Covid-19.

Timescales for application for independent review of exclusions

Where a governing board declines to reinstate a pupil who has been permanently excluded, parents can apply for a review of the governing board’s decision. The deadline for applications is extended to 25 school days from the date on which notice in writing of the governing board’s decision is given to parents.  Schools must wait for this extended deadline to pass, without an application being made, before deleting the name of a permanently excluded pupil from their admissions register.

Timescales for meetings of independent review panels to consider permanent exclusions

If a face-to-face meeting has not be practicable, within the original 15 school days’ time limit, due to Covid-19 and a remote meeting has also not been possible the limit will be extended to 25 school days, or as long as reasonably necessary for a reason related to Covid-19.

This note is correct as at 25 June 2020, but please note the current situation is constantly changing and we remain available to provide specific advice to your school.