HCR Law Events

23 March 2020

Covid-19: Schools Update

This is our second update for schools following the Government announcement to close schools with effect from Monday 23 March. Our first note provided initial thoughts on practical issues which schools might be thinking about and can be accessed here.

This note covers evolving issues in light of further Government guidance as well as practical issues which have been raised by schools.

This note is correct at the time of writing (March 23). More guidance providing clarity on some of these issues is expected; we will update schools when we can.

Further DfE guidance

The DfE has issued a range of further guidance on its plan to maintain educational provision during this period of uncertainty.

The guidance gives the following key principles:

  1. If it is at all possible for children to be at home, then they should be. This may be more appropriate for older children, or children where at least one parent is working from home, for example.
  2. If a child needs specialist support, is vulnerable (which includes, but is not limited to, children with EHC plans, young carers, disabled children, those with safeguarding or welfare concerns and looked after children) or has a parent who is a critical worker, then educational provision will be available for them under the Government’s proposal. If it is necessary for a school to close, parents should contact their local authority, who will seek to redirect them to an alternative open local school in their area.
  3. Schools are encouraged to continue to look after children of key workers and vulnerable children over the Easter holidays, wherever possible.
  4. Parents should not rely for childcare upon those who are advised to be in the stringent social distancing category such as grandparents, friends, or family members with underlying health conditions.
  5. Children (whether at home or at school) should observe the same social distancing principles as adults.
  6. Residential special schools, boarding schools and special settings should continue to care for children wherever possible.

The full guidance can be read here.

The DfE has also issued specific guidance for parents to answer some of the most common questions including regarding payment of school/nursery fees, exams, free school meals, vulnerable children, and where to access resources and support for children while at home. This guidance can be found here.

Data protection issues

We aren’t meeting our usual data protection standards – should we be worried?

The Information Commissioner’s Office (ICO) is a pragmatic and reasonable regulator. It has already acknowledged that, during this extraordinary period, healthcare providers may need to prioritise other areas and adapt their usual approach. Schools may not be under the same strains as the health sector, but they do face considerable pressures to adapt to a rapidly changing situation. We expect the ICO to take this into account before taking any action against schools.

What about timescales for responding to a Subject Access Request (SAR)?

The ICO cannot currently extend statutory timescales; for instance, the timescale to respond to subject access requests remains at one calendar month, unless emergency legislation changes this. What the ICO can do, through their various communication channels, is make the public aware that they may experience understandable delays. This has already started. Again, we do not envisage the ICO taking regulatory action against a school that is delayed in responding to a SAR if it is due to the current situation.

Can we collect sensitive health information on staff?

Schools have an obligation to protect their staff, so it is reasonable to ask them if they have visited a particular country, experienced coronavirus symptoms or have underlying conditions which may make them more vulnerable to the virus. Care should be taken to not ask for more information than is necessary, to hold it securely and only share it with those who need to know about it.

What do we need to consider when staff are working from home?

The ICO is clear that data protection is not a barrier to increased and different types of homeworking. Staff can use their own device if the school has not provided them with one. Schools will need to consider the same kinds of security measures for homeworking that you’d use in normal circumstances. Schools with a remote working policy or another policy which covers this ground should remind staff of its content. This crosses with employment obligations; more on this below.

Issues for governors/proprietors

We don’t know yet how deeply the effects of Covid-19 will be felt or how long for, but we do know there are some practical steps that schools can take to help get through this.

We have suggested a non-exhaustive list of things that governors or proprietors should be considering at this time over the next week and weeks to come. This is by no means a complete list and will of course be changing every day as new guidance is released by the Government and as the situation evolves.

Each school will also have their own specific issues to consider, based on their circumstances, but we hope it will be a helpful guide of the sort of things governors or proprietors and the senior leadership team should be thinking about. Where we refer to governors below, please read this as proprietors for a privately owned school.

In relation to schools that are charities, if this has not already been done, we would suggest that a working party is set up consisting of a few governors and the Senior Leadership Team, who can deal with things on a daily basis. That working party should report back to the full board on a regular basis and seek instructions and approval from the full board before making any key decisions.

To do list – key issues over the coming weeks, including practical steps you can take to help your school through this.

Cash is king

This is paramount and the focus should therefore be, more than ever, on getting receipt of payments at the earliest opportunity, and where possible, delaying payments out.

In relation to the receipt of payments, the payment of school fees will, of course, be something you are considering. As well as reviewing your parent contracts to determine whether there is a force majeure clause that would apply (if you were unable to provide sufficient education via remote learning) and if there is, how and when this should be exercised, thought needs to be given as to whether to charge the full amount for the summer term if schools remain closed or whether to offer a reduced amount.

Governors and the SLT should be discussing and weighing up whether managing a parents expectations and offering a varied fee in order to keep them on board might result in schools receiving more fees overall.

Whilst you might be minded to do this, based on no/reduced catering or boarding for example, care should be taken to ensure that you are not arguing on one hand that you are continuing to provide broadly the same educational services, and then on the other, that you are providing a reduction in fees because you are not providing particular services. The wording is key (please see more details below about referring to “variations” or “amendments” rather than “reductions” in your communications with parents).

Consideration of any fee increase for September might also be on the agenda, together with a recognition that parents may have financial difficulties or concerns. Engaging with your school community and communication about possible options and support is key.

In relation to delaying payments out, schools should monitor and consider whether/how to reduce costs where possible. Check your commercial contracts with customers and suppliers; this enables you to understand liability and to deal with the short term shortages.

As well as termination provisions, force majeure clauses should be considered in this context too and, if necessary, take advice on how to deal with a supplier invoking one. Force majeure clauses can be nuanced, so taking advice is important. Key suppliers of the school will hopefully be supportive.

Schools should also be talking to their lenders about payment holidays. Large lenders will hopefully be open to discussion. A failed business now offers them nothing, whereas providing schools with some relief and time to breathe might result in a school picking itself up in the weeks and months to come. Consider alternative sources of finance too and seek to renegotiate overdraft facilities.

If you rent or have a licence in relation to all or some of your property, then discuss a rent holiday with your landlords. They are going to need to be flexible, so start talking to them.

Next year’s budget

No-one knows how long this problem will go on for. You therefore need to plan and adapt. Governors should be reviewing and amending the budget that was agreed for the next year, allowing for a potential reduction in fee income and reviewing items such as fee increases and salary increases as a result. You will need to keep this budget under review and continue to amend it as the situation evolves.

Insurance cover

Check your insurance policies – will they cover income lost during Covid-19 related closures and what protection do you have with your business continuity clauses? Seek advice on how to challenge non-payment of business interruption insurance.

Remote learning, including digital etiquette and safeguarding

The more remote learning that is provided, the stronger the argument to parents in relation to the payment of fees. Is your school set up to provide this? Speak to your IT providers and make sure there is a plan in case they are impacted in any way.

Thought also needs to be given to promoting digital etiquette and to safeguarding issues in relation to remote learning. A code of conduct for staff and pupils will be helpful in this regard, setting out what is expected and accepted behaviour and etiquette. This should include issues such as recording lessons, electronic contact between staff and pupils, uploading and sharing images and how to deal with any cyber bullying.

Staff issues

As part of reducing costs, we are aware that some schools will be considering their staffing costs. If necessary, options such as asking staff to agree to reduced pay for a period of time or reduced hours should be considered. We are in the process of drafting guidance and template letters for schools to use, which will be made available via the ISBA member website in light of the announcement of the ability to furlough staff. This will include guidance on the use of furlough (how many people knew that term a week ago?), reducing hours and pay and redundancies.

Schools should conduct and record a risk assessment for staff who work remotely, as well as considering any code of conduct or agreement in terms of behaviours.

Government assistance

As Government guidance continues to be updated, thought should be given to whether your school qualifies for any Government assistance. The sector associations are doing what they can to clarify what funding will be available if you are an independent school, including for schools who have remained open during the Easter period (boarding or otherwise).

Fees for Term 3

Should we reduce Term 3 fees?

This is a matter for each school to determine, subject to their own circumstances, but we anticipate that if pupils are not able to attend school due to the Government guidance, parents will not expect to pay the same fees. The message to parents might be that without some fees, there is a risk that the school will not be able to open after the impact of the virus subsides. But you will want, at the same time to demonstrate that as a school you will continue to support the parents and their child (ren) through this unprecedented time by temporally revising the fee structure.

How much should we charge?

The amount and method by which fees may be temporally varied will depend upon the overheads your school is likely to have over the final term. You may wish to consider last year’s expenses and establish a break-even point if all other aspects (catering/utilities) were to remain the same as last year, even though they possibly will not, but this will create a buffer. Spreading that cost across the parent body will give some guidance as to the minimum your school will need from each parent to survive.

You should then consider what level of service you are continuing to provide. Are all pupils going to be able to access teaching (via online remote learning – can your staff deliver lessons via an online conference facility e.g. Skype/Zoom, from home or school, subject to any safeguarding concerns, if supporting key worker parents)? If your school is still providing educational value, parents will be more comfortable in paying for that service.

How should we vary the fee structure?

It is important not to link any fee reduction openly to the reduction in service being provided, so the message to parents should be that any reduction is to assist during these difficult and unprecedented times. Any communication should make it clear that this is not a permanent variation/relaxation of the fee structure, but a temporary one without prejudice to the terms of the parent contract. Therefore avoid using the words “reduction” or “discount” in any communication, “variation” or “amendment” would be less problematic.

From a legal standpoint, you are proposing a variation of the terms of the parent contract, which you would normally have the right to amend on notice. Such a variation amounts to an offer, which in order to become contractually binding, needs to be accepted. Ordinarily, acceptance is demonstrated by the child attending the school and/or payment.

You may therefore wish to consider including a method of acknowledgment or acceptance of the revised fees in your communication with the parents. It is also worth making the point that, if the variation is not accepted, the existing fee structure – ie a full term’s fees are due – would technically still apply. Making this point might help to secure prompt payment.

You will need to provide a consistent approach to all parents, so the communications should be, as far as possible, sent simultaneously to all parents. However, you should recognise that not all fee arrangements with the parents are the same; some pay termly and others by direct debit, others may also be in receipt of a bursary. You can avoid concerns and unnecessary panic if the communication is tailored to a given parent’s existing circumstances, but sent at the same time to all parents.

There will, of course, be parents whose circumstances will make it difficult to make payments during this time. These should be approached in your normal way, but to protect the school, any alternative arrangements reached (such as adding any shortfall to next year’s fees) needs to be confirmed in writing and signed by both the school and the parent.

Can we still insist on a term’s fees in lieu of notice?

Yes, the parent contract is still in force, and providing you are endeavouring to educate, any attempt by a parent to argue there is a failure to educate is most likely going to be given short shrift by a court. Equally, a court might not be too sympathetic to a school looking to enforce a full term’s fees in lieu of notice in the current circumstances. Therefore, you could consider confirming the position to parents that a term’s notice is still required should they regrettably decide to withdraw their child(ren) from the school, meaning that Term 3 payments will still be taken, albeit possibly at the varied rate.

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About the Author
Kristine Scott, Partner, Head of Education Sector and Cheltenham Office

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