Education e-alert: Keep up the good work

7 April 2020

It has been another hectic week for schools with lots of additional guidance from the DfE. This e-alert provides a brief round-up of the changes and on-going issues being considered by schools nationwide.

Please see the link to the COVID-19 Information Hub on the Wilsons website. Articles from all departments will be uploaded to the website over the coming weeks.

Force Majeure

A force majeure clause in a Parent/School Contract is a contractual term which may excuse the School from the performance of the contract in whole or in part during the COVID-19 pandemic. To determine whether the clause applies and to what extent, it is necessary to consider the precise wording of the clause and the precise obligations to which the School is subject under the contract. The School may be excused from performing only those obligations that it cannot perform due to the pandemic i.e. those that involve the physical presence of pupils and teachers. You are not excused from performing those obligations that can still be performed. Many schools have given considerable thought to how best they can adapt their services to deliver remote learning programmes and it is important that they continue to do so. Of particular concern is the ability to deliver a service for pupils in the Nursery, Kindergarten or Early Years, where the provision of a remote service is more challenging.

If the School is prevented from or delayed in carrying out its contractual obligations as a result of COVID-19 or consequent government guidance or regulation, you may need to notify parents in writing in order to be excused from performing those obligations while the force majeure event continues.

A force majeure clause should not be considered in isolation – other relevant contractual provisions may relate to the giving of notice and termination and there may also be financial repercussions that require consideration.

It will be important to carefully consider the wording of your particular contracts with parents, the specific circumstances at your school, what the Governors have decided in terms of summer Term 2020 fees and what has already been communicated to parents of day and boarding pupils.

In relation to the School's contracts with other suppliers, it will depend on the exact terms of the force majeure clause (if there is one) and of the contract.

We would suggest that a tailored approach is required here, rather than a blanket approach. Please do get in touch with us to discuss specific queries on this topic.

Remote learning

The Easter holidays will no doubt be used to develop your school's remote learning programmes further to ensure that they can be implemented for as long as may be required in to next Term.

Keep working with parents to support them during this time and try to clarify exactly which elements of the service you will absolutely not be able to deliver and which elements will be adapted and provided remotely.

The DfE has published the COVID-19 online education resources list this morning for schools and parents to help children continue their learning remotely.

Education Health and Care Plans (EHCPs)

In regard to students with EHCPs, the government has stated that schools should carry out a risk assessment for these students, taking into account the following factors:

  1. the potential health risks to the student from COVID-19;
  2. the risk to the individual if some or all elements of their EHC plan cannot be delivered at all, and the risk if they cannot be delivered in the normal manner or in the usual setting;
  3. the ability of the individual’s parents or home to ensure their health and care needs can be met safely;
  4. the potential impact to the individual’s wellbeing of changes to routine or the way in which provision is delivered.

The Coronavirus Act 2020, which came into force on 25 March 2020, allows the Secretary of State to issue a temporary notice to remove the duty on local authorities to 'maintain the precise provision in EHC plans'.  From this point, the standard expected of local authorities will be that they use 'reasonable endeavours' to support children with EHC plans as well as their family. Any changes to the EHC plan must be reversed at the expiration of the temporary notice.

Free School Meals

Where children of key workers or vulnerable children are eligible for free school meals and continue to attend school they should continue to be provided with free school meals. 

If students eligible for free school meals are staying at home during the outbreak, the government has introduced a new voucher scheme. Vouchers are claimed by schools and passed onto parents/guardians to spend in a range of food shops. It has been announced that this voucher scheme will also be extended to include the Easter holiday period.

To make a claim under this scheme, the guidance confirms that schools must:

  1. Check which pupils are eligible for free school meals.
  2. Log in to the Edenred portal to order vouchers. The Department for Education sent an email to every school on 31 March 2020 explaining how to access the portal.
  3. Confirm the value of the vouchers.  This can be up to £15 each week for every eligible child.
  4. Either: 1) send an 'eCode' directly to the parent or guardian of the student, who will then choose an eGift card from a range of supermarkets; or 2) select an eGift card on the parent/guardian's behalf, print and post it to them.

If the school's existing caterer is able to prepare meals or food parcels, the school should continue to use them (in line with social distancing guidance). The government have stated that schools should continue to pay food suppliers that are considered 'at risk' for the cost of free school meals. In turn, the government will continue to provide funding to schools to cover free school meals, in addition to the voucher scheme.

For guidance on which suppliers considered 'at risk', please click here.

The government guidance on free school meals was updated earlier today and is available here.

Changes to statutory guidance 'KCSIE' postponed

Due to the disruption caused by Coronavirus, the government has announced that the consultation on amendments to the statutory guidance 'Keeping children safe in education' (KCSIE) has been suspended.  At this stage there is no indication on when it is likely to resume. 

In the meantime, schools should continue to follow the existing guidance in KCSIE (September 2019 version – updated on 2 April 2020 to include a link to COVID-19 guidance), which is available here.

Induction for NQTs

The normal regulations for newly qualified teachers' induction periods provide that, if a newly qualified teacher takes ad-hoc absences of 30 days or more, their induction period will automatically be extended by the number of days absent.  Given that the current disruption is likely to increase the number of absences taken by NQTs, the government have announced their intention to change the regulations so that induction periods will not be automatically extended after absences of at least 30 days if the absences are caused by the coronavirus outbreak. 

If headteachers and appropriate bodies feel that teachers have not achieved the requisite standards at the end of their induction period (by reference to assessment records, teaching practice over lockdown and discussion with induction tutors) due to the absences, they should recommend an extension to the induction period.

No secondary legislation has yet been passed to implement the proposed change and so, for now, automatic extension continues to apply.

Summer Term 2020 Fees

Independent schools will be sending out invoices for summer Term 2020 fees and the communications to parents around this issue will be key. Our Education team would be happy to assist with drafting or reviewing letters to parents.

In addition, several schools are looking to set up a 'Hardship Fund', intended to operate as additional bursary funding at this difficult time. There are charity law requirements to consider here, including how to set up and operate such a fund. The options will vary from school to school and will also depend on any existing bursary arrangements. Our Charity law & Governance team would be happy to provide advice, which will need to be tailored to the circumstances for each individual school.

If you have any specific queries, please do not hesitate to contact Vicky Wilson on or 01722 427 756 or your usual Wilsons contact.

Thank you for all that you school leaders are doing at this time. We hope you manage to enjoy a break over the Easter period. Stay safe.

Best wishes,

The Education Team

This update is of a general nature and is not a substitute for professional advice. No responsibility can be accepted for the consequences of any action taken or refrained from as a result of what is said.

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