Covid-19 – Are schools and academy trusts required to comply with DfE guidance on a phased wider opening?

We look here at whether schools and academy trusts must comply with DfE guidance on the phased wider opening of schools from 1 June 2020.

On 11 May 2020, the Department for Education (DfE) published Actions for education and childcare settings to prepare for wider opening from 1 June 2020, Coronavirus (COVID-19): implementing protective measures in education and childcare settings and Opening schools and educational settings to more pupils from 1 June: guidance for parents and carers, accompanied by a press release. The guidance has received a mixed response with some asking whether a phased wider opening of schools from 1^st June can sensibly proceed given concerns over the health and safety of staff and pupils. School and academy leaders and their governing bodies and boards are asking whether and to what extent they must comply with the guidance and who is responsible and liable for the decision. The legal position is as follows.

For an academy trust, the position is framed by its funding agreement with the Secretary of State where the academy trust and the Secretary of State agree that the academy trust will operate its academy or academies in accordance with the requirements set out in the funding agreement. In this regard, the DfE model funding agreement requires the trustees to 'have regard to any guidance issued by or on behalf of the Secretary of State'. The trustees must therefore be able to show that they are aware of the guidance, have taken this into account when deciding whether to proceed with the wider opening of any academy and, if they decide to depart from the guidance, have good reasons for doing so. "Having regard" to guidance is not a requirement to blindly follow it.

The trustees must also comply with their duties under charity law and so, in this context, must act prudently, in good faith (with genuine honest intention or motives), with undivided loyalty and in the best interests of the academy trust and its pupils. Further, the trustees must comply with their company law duties as directors and so, in this context, must promote the success of the academy trust, avoid conflicts of interest and exercise independent judgement, reasonable care, skill and diligence. This could involve the board instructing a series of reports to help them decide whether to proceed with the phased wider opening of an academy. Obtaining robust health and safety advice will help the academy trust consider the guidance and protect the trustees in any decision they take which the academy trust is ultimately liable for.

For a maintained school, the position is framed by the Education Act 2002 which confirms that the conduct of the school is ordinarily under the direction of the governing body and that the governing body may do anything which appears to them to be necessary or expedient for the purposes of or in connection with the conduct of the school. Unless the school is subject to intervention by the Secretary of State or the local authority, the decision whether to proceed with the phased wider opening of the school therefore lies with the governing body. In making the decision, the governing body must be able to show they are aware of the guidance, have taken this into account when deciding whether to proceed and, if they decide to depart from the guidance, have good reasons for doing so. In accordance with the School Governance (Roles, Procedures and Allowances) (England) Regulations 2013, they must also act with integrity, objectivity and honesty and in the best interests of the school when making the decision. Further, the governing body of a voluntary or foundation school, as an exempt charity, must comply with charity law and so the governors must comply with their duties as charity trustees. The governing body of a maintained school may also want to instruct a series of reports to help decide whether to proceed. They will benefit from robust health and safety advice to inform and protect them in any decision they take, which the governing body is ultimately liable for.

In summary

Maintained schools and academy trusts naturally look to the Department for Education for guidance on key issues, not least in the midst of Covid-19. However, they needn't follow guidance simply because it has come from the Department for Education. Nor must they follow what their local authority has decided to do in response. Instead, they are required to exercise their own judgement and make decisions in the best interests of their school or academy/academies, which may sometimes depart (to a greater or lesser degree) from Department for Education guidance. The DfE may of course highlight non-compliance and threaten intervention in other areas to pressure the school or academy trust to comply.