We know that many leaders and governors are considering making changes to how they operate at the end of term. Changes under consideration include:
- keeping the same end of term date as planned, but moving to remote learning for some or all pupils for the last week, or last few days
- finishing term early, and adding missed days onto the spring or summer terms
- bringing forward inset days planned for later in the year, so that staff are on site until the end of term as planned, but pupils are not
The government has made it clear that they do not wish schools and colleges to take any of these actions. They are concerned about the impact on both children’s education and on parents’ ability to work. Their COVID-19 Winter Plan
includes the line that “nurseries, schools and colleges should not change their Christmas holidays or close early this term”. A trust which announced its intention to close early was publicly reprimanded by a Regional Schools Commissioner for doing so, and has since reverted to its original term dates.
Most schools, colleges and trusts considering taking one of these actions are doing so in order to minimise the likelihood of pupils or staff needing to self-isolate over the Christmas period. Some are concerned about not being able to make it to the end of term on current staffing levels, and see this as a way to manage the end of term in a planned, rather than a chaotic, way. Some of those hoping to bring forward inset days intend to use these to evaluate their approach to remote learning, and to plan how to make this as effective as possible next term.
These are all thoughtful and understandable reasons for wishing to take one of these actions. We have consulted our education law partners, Browne Jacobson
, about where schools and colleges might stand legally in these situations. Their view is that any decision to finish term early, or to move to remote learning unless there was an immediate and insurmountable need to do so, could leave a school or college open to challenge, including from the DfE. The decision to close the school or college is one for the headteacher or principal, in consultation with governors/trustees, and should be a decision based on a risk assessment of the situation.
However, in light of the government policy to keep schools open, the DfE may intervene and could, ultimately, issue a direction under Schedule 17 of the Coronavirus Act 2020
to require a school or college to stay open. This direction could be backed up by an injunction through the courts.
Colleges are broadly subject to the same DfE guidance as schools, but what the guidance for FE providers says about closure and/or moving to online learning is slightly different. Whilst the presumption is that colleges will stay open until the end of term, the guidance does say that providers have the option to restrict on-site delivery if:
- they have received written public health advice to do so
- it is strictly necessary for operational reasons, with all other mitigations having been exhausted
This suggests that the power to close rests with the college (which the schools guidance does not say). However, it is worth noting that Schedule 17 would apply equally to colleges, so they could also be challenged over decisions to close early or move to remote learning.
ASCL’s view is that leaders and governors must be able to make the right decisions for their communities, and that individual operational decisions such as these cannot possibly sensibly be made centrally. We continue to push for a clear set of parameters within which leaders and governors are able to make these decisions. We have also been asking, for several weeks now, for the government to take action to ensure leaders aren’t expected to continue to track and trace contacts of positive pupils or staff during the Christmas break.