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With the positive benefits of a vaccine on the horizon and the school return date looming, Ian Brownhill and Stephanie David examine the tests that remain for primary, secondary and tertiary education this year
Whether to open, or to close, schools and universities has been one of the most controversial matters throughout the COVID-19 pandemic. The prospect of the Department for Education litigating against individual local authorities has seemed possible at times. If open, keeping staff and students safe has posed a practical and legal challenge. Closing schools has posed difficulties in respect of both safeguarding and the administration of exams.
While the positive benefits of a vaccine are on the horizon, there remain tests in primary, secondary and tertiary education this year.
Notable, too, is the ongoing litigation from last year’s examinations and the suggestion, at least, of civil claims arising from the treatment of students during the first and second lockdowns.
How 2021 school examinations will work remains unclear. Although many 2020 candidates were pleased to accept centre assessment grades, which are those that schools and colleges considered the students were most likely to have achieved, had the exams gone ahead, those who had concerns still have appeals and complaints working their way through the labyrinthine system.
In light of the national restrictions announced in January, the national 2021 school examinations (including both GCSEs and A-levels) were cancelled, but the position was initially unclear regarding technical and vocational exams. On 6 January 2021, Ofqual (the exam regulator) responded to the Prime Minister’s announcement on 4 January 2021 and stated that it was working with the Department for Education regarding alternative arrangements. Further, the Secretary of State for Education, Gavin Williamson, sent an open letter to Ofqual on 13 January 2021 in respect of a joint consultation by the Department of Education and Ofqual on alternative arrangements for GCSEs, A-levels and vocational qualifications.
At the time of writing, there are reports of possible ‘mini’ exams marked by teachers but set by the exam boards as well as internal assessments including portfolios of work. If that is right, there must be consideration as to: (i) how centre assessment grades will be calculated based upon the mini exams and other factors; and (ii) a fair appeals process to challenge not only the calculation (ie the procedure of determining the grade) but also the substantive outcome. Furthermore, if the mini exams go ahead, then what allowance will be given to the impact of the loss of education (particularly as that varies between children with different levels of support at home)? There is also the issue of how that impact can be reflected in the calculation of grades, which will be practically and legally difficult.
The Secretary of State’s letter provides some comfort – he emphasises the importance of maximising the remaining opportunity for teaching (and accordingly delaying the final decision regarding a student’s grade until as late as possible), as well as ensuring that any assessment is undertaken in a fair and consistent way between students and institutions. Ofqual, in turn, has acknowledged the importance of appeals as part of the alternative arrangements and the need for a comprehensive equalities analysis in respect of the decisions taken.
University students have faced a number of legal issues in light of the coronavirus pandemic from private law disputes over unused accommodation and tuition fees to possible human rights breaches by virtue of being deprived of their liberty.
Wrangles over unused accommodation and tuition fees look as though they might spill into civil claims at some universities, while others have offered generous rebates and refunds to those students who haven’t been able to occupy their accommodation or access the services for which they have paid.
In at least one university there has been a suggestion that students were falsely imprisoned in their accommodation by security staff and university authorities by virtue of a 14-day period of self-isolation resulting from a number of positive cases. Any limitations imposed on the movement of students by their institutions, rather than through a statutory framework, are clearly vulnerable to challenge.
Overseas students (and their sponsors) have had the further headache of dealing with their visas in light of the various travel restrictions. They need to navigate the minefield of Home Office guidance on the issue, including, for example, the temporary concessions in response to COVID-19 for short-term students.
The Office of the Independent Adjudicator (OIA, which deals with university student complaints) has provided specific updates regarding its approach to complaints raised during the pandemic and advice to both providers and students alike, particularly in respect of what students should expect from universities. The OIA has also provided summaries of the coronavirus-related complaints that give a flavour for the broad range of issues facing students (including changes to studies, online teaching, industrial action, refunds of tuition fees) and the OIA’s response.
Finally, a number of universities have explicitly changed their disciplinary frameworks to reflect the constraints caused by the pandemic. The sanctions related to those frameworks included fines and even exclusion from university. The challenge for the universities will be to harmonise those frameworks with wider society over the next year, especially if there is a return to the tier system. Can a university really justify the exclusion of visitors or the imposition of self-isolation if it is not required in the wider community?
If anyone dared to doubt the critical role that schools play in safeguarding children and young people, those doubts must now be finally resolved. Safeguarding children came to be one of the staple arguments for keeping schools open during the various phases of lockdown.
There remain significant causes for concern in respect of vulnerable pupils who do not attend school. Schools will be expected to continue to monitor the attendance of those pupils and place safeguarding scaffolding around them despite the exigencies of the pandemic. This will be particularly difficult where the core safeguarding team are self-isolating or are stretched due to other staffing shortages. As restrictions endure for at least the remainder of the academic year it has to be acknowledged that the safeguarding system is vulnerable. Likewise, once there is a complete return to on-site teaching, the system remains exposed. Schools and local authorities should expect that exposure to trauma during lockdown will result in disclosures and observations which are likely to require investigation and action. An immediate increase in safeguarding concerns and referrals during the on-site teaching should be planned for.
Elective home education registrations were described as, ‘soaring’ at the start of the academic year. Some local authorities were reported to have increases of more than 200% in respect of registrations. The corollary is that local authorities must ensure that their arrangements to identify children of compulsory school age in their area who are not registered pupils at a school and are not receiving suitable education otherwise than at school as per the Education and Inspections Act 2006 are sufficiently robust.
One challenge has been in respect of young people of non-compulsory school age being removed from education during the pandemic. Where those young people are able to make decisions for themselves then, they are entitled to weigh the risks and the benefits of leaving or pausing education. The Court of Protection is now experiencing an influx of cases where young people with issues in respect of their capacity have had the decision made for them.
The decision of A Local Authority v GP (Capacity – Care, Support and Education) [2020] EWCOP 56 (29 September 2020) considers, in detail, the approach to be taken as to assessing capacity to: (i) request an assessment for an education and healthcare plan; (ii) make decisions as to education.
When normality returns, questions will need to be asked as to whether young people who lack capacity to make decisions as to their education ought to return. A number of cases where young people have been removed from formal education without a best interests decision have been issued in the Court of Protection. However, there remains a risk that some young people will simply have been removed, will not return and they will lose rights afforded to them under the Children and Families Act 2014.
The conflation of vulnerability and special educational needs was one of the strange narratives during various moments of the pandemic. That narrative was harmful and failed to consider the individual needs of children with and without special educational needs. Undoing the narrative that all children with special educational needs are vulnerable must be a priority.
While some of the courts have been slow to adapt to the realities of coronavirus restrictions, the First-tier Tribunal (Special Educational Needs and Disability) has not been one of them. The Chambers President and Deputy Chamber President of the Health, Education and Social Care Chamber quickly took the decision on 19 March to move the tribunal to full digital working to ensure that it could deal with the usual caseload without interruption. There are no doubt some challenges with remote hearing, for example, for those who rely on lip reading for communication or do not have access to the necessary technology. The tribunal has, however, been flexible and commended generally on its approach.
Ian Brownhill is a barrister at 39 Essex Chambers, he was counsel in A Local Authority v GP and was part of the 2020 ‘honour the offer’ campaign at Oxford University.
Stephanie David is a barrister at 39 Essex Chambers specialising in education, health and sport. She advises and represents clients in both public and private law proceedings.
Whether to open, or to close, schools and universities has been one of the most controversial matters throughout the COVID-19 pandemic. The prospect of the Department for Education litigating against individual local authorities has seemed possible at times. If open, keeping staff and students safe has posed a practical and legal challenge. Closing schools has posed difficulties in respect of both safeguarding and the administration of exams.
While the positive benefits of a vaccine are on the horizon, there remain tests in primary, secondary and tertiary education this year.
Notable, too, is the ongoing litigation from last year’s examinations and the suggestion, at least, of civil claims arising from the treatment of students during the first and second lockdowns.
How 2021 school examinations will work remains unclear. Although many 2020 candidates were pleased to accept centre assessment grades, which are those that schools and colleges considered the students were most likely to have achieved, had the exams gone ahead, those who had concerns still have appeals and complaints working their way through the labyrinthine system.
In light of the national restrictions announced in January, the national 2021 school examinations (including both GCSEs and A-levels) were cancelled, but the position was initially unclear regarding technical and vocational exams. On 6 January 2021, Ofqual (the exam regulator) responded to the Prime Minister’s announcement on 4 January 2021 and stated that it was working with the Department for Education regarding alternative arrangements. Further, the Secretary of State for Education, Gavin Williamson, sent an open letter to Ofqual on 13 January 2021 in respect of a joint consultation by the Department of Education and Ofqual on alternative arrangements for GCSEs, A-levels and vocational qualifications.
At the time of writing, there are reports of possible ‘mini’ exams marked by teachers but set by the exam boards as well as internal assessments including portfolios of work. If that is right, there must be consideration as to: (i) how centre assessment grades will be calculated based upon the mini exams and other factors; and (ii) a fair appeals process to challenge not only the calculation (ie the procedure of determining the grade) but also the substantive outcome. Furthermore, if the mini exams go ahead, then what allowance will be given to the impact of the loss of education (particularly as that varies between children with different levels of support at home)? There is also the issue of how that impact can be reflected in the calculation of grades, which will be practically and legally difficult.
The Secretary of State’s letter provides some comfort – he emphasises the importance of maximising the remaining opportunity for teaching (and accordingly delaying the final decision regarding a student’s grade until as late as possible), as well as ensuring that any assessment is undertaken in a fair and consistent way between students and institutions. Ofqual, in turn, has acknowledged the importance of appeals as part of the alternative arrangements and the need for a comprehensive equalities analysis in respect of the decisions taken.
University students have faced a number of legal issues in light of the coronavirus pandemic from private law disputes over unused accommodation and tuition fees to possible human rights breaches by virtue of being deprived of their liberty.
Wrangles over unused accommodation and tuition fees look as though they might spill into civil claims at some universities, while others have offered generous rebates and refunds to those students who haven’t been able to occupy their accommodation or access the services for which they have paid.
In at least one university there has been a suggestion that students were falsely imprisoned in their accommodation by security staff and university authorities by virtue of a 14-day period of self-isolation resulting from a number of positive cases. Any limitations imposed on the movement of students by their institutions, rather than through a statutory framework, are clearly vulnerable to challenge.
Overseas students (and their sponsors) have had the further headache of dealing with their visas in light of the various travel restrictions. They need to navigate the minefield of Home Office guidance on the issue, including, for example, the temporary concessions in response to COVID-19 for short-term students.
The Office of the Independent Adjudicator (OIA, which deals with university student complaints) has provided specific updates regarding its approach to complaints raised during the pandemic and advice to both providers and students alike, particularly in respect of what students should expect from universities. The OIA has also provided summaries of the coronavirus-related complaints that give a flavour for the broad range of issues facing students (including changes to studies, online teaching, industrial action, refunds of tuition fees) and the OIA’s response.
Finally, a number of universities have explicitly changed their disciplinary frameworks to reflect the constraints caused by the pandemic. The sanctions related to those frameworks included fines and even exclusion from university. The challenge for the universities will be to harmonise those frameworks with wider society over the next year, especially if there is a return to the tier system. Can a university really justify the exclusion of visitors or the imposition of self-isolation if it is not required in the wider community?
If anyone dared to doubt the critical role that schools play in safeguarding children and young people, those doubts must now be finally resolved. Safeguarding children came to be one of the staple arguments for keeping schools open during the various phases of lockdown.
There remain significant causes for concern in respect of vulnerable pupils who do not attend school. Schools will be expected to continue to monitor the attendance of those pupils and place safeguarding scaffolding around them despite the exigencies of the pandemic. This will be particularly difficult where the core safeguarding team are self-isolating or are stretched due to other staffing shortages. As restrictions endure for at least the remainder of the academic year it has to be acknowledged that the safeguarding system is vulnerable. Likewise, once there is a complete return to on-site teaching, the system remains exposed. Schools and local authorities should expect that exposure to trauma during lockdown will result in disclosures and observations which are likely to require investigation and action. An immediate increase in safeguarding concerns and referrals during the on-site teaching should be planned for.
Elective home education registrations were described as, ‘soaring’ at the start of the academic year. Some local authorities were reported to have increases of more than 200% in respect of registrations. The corollary is that local authorities must ensure that their arrangements to identify children of compulsory school age in their area who are not registered pupils at a school and are not receiving suitable education otherwise than at school as per the Education and Inspections Act 2006 are sufficiently robust.
One challenge has been in respect of young people of non-compulsory school age being removed from education during the pandemic. Where those young people are able to make decisions for themselves then, they are entitled to weigh the risks and the benefits of leaving or pausing education. The Court of Protection is now experiencing an influx of cases where young people with issues in respect of their capacity have had the decision made for them.
The decision of A Local Authority v GP (Capacity – Care, Support and Education) [2020] EWCOP 56 (29 September 2020) considers, in detail, the approach to be taken as to assessing capacity to: (i) request an assessment for an education and healthcare plan; (ii) make decisions as to education.
When normality returns, questions will need to be asked as to whether young people who lack capacity to make decisions as to their education ought to return. A number of cases where young people have been removed from formal education without a best interests decision have been issued in the Court of Protection. However, there remains a risk that some young people will simply have been removed, will not return and they will lose rights afforded to them under the Children and Families Act 2014.
The conflation of vulnerability and special educational needs was one of the strange narratives during various moments of the pandemic. That narrative was harmful and failed to consider the individual needs of children with and without special educational needs. Undoing the narrative that all children with special educational needs are vulnerable must be a priority.
While some of the courts have been slow to adapt to the realities of coronavirus restrictions, the First-tier Tribunal (Special Educational Needs and Disability) has not been one of them. The Chambers President and Deputy Chamber President of the Health, Education and Social Care Chamber quickly took the decision on 19 March to move the tribunal to full digital working to ensure that it could deal with the usual caseload without interruption. There are no doubt some challenges with remote hearing, for example, for those who rely on lip reading for communication or do not have access to the necessary technology. The tribunal has, however, been flexible and commended generally on its approach.
With the positive benefits of a vaccine on the horizon and the school return date looming, Ian Brownhill and Stephanie David examine the tests that remain for primary, secondary and tertiary education this year
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