After requests from parents and campaigners, we are publishing the government’s response to our pre-action letter.
We have had a brilliant response to the briefing note on school attendance for vulnerable households during Covid-19, which we published on Tuesday.
The response makes clear that many parents, schools and local authorities were unaware that there was any local discretion in these sorts of cases.
We have therefore decided to publish the government’s response to our pre-action letter. We hope this will help vulnerable households when liaising with schools and local authorities.
The full response can be read and downloaded here. Parts have been redacted for confidentiality reasons.
What does the government’s response mean?
There are two parts to the letter.
Part 1: The government justifies the current guidance
Pages 2-3 of the letter restate the government’s guidance on infection control (i.e. the steps that schools should be taking) and school attendance during Covid-19. The Secretary of State restates his expectation that children should attend school even if parents are shielding/vulnerable.
The response seeks to justify that view by reference to medical evidence and guidance published by the Department of Health and Social Care and Public Health England.
Part 2: The Government makes clear that, contrary to the published guidance, authorising absence during Covid-19 is a matter of local discretion
This is a really important concession. Previously it was believed there was no flexibility or room for local discretion in this area.
Pages 4-5 of the letter make clear that:
- Whether leave of absence should be granted is determined by each individual school headteacher or local education authority. This is a matter of local decision-making and is made on a discretionary basis.
- A child’s absence can be authorised beyond the examples set out in the government’s guidance. The categories of authorised absence contained in the Government’s guidance are therefore not ‘closed’. They are non-exhaustive examples.
- None of the national guidance from government overrides local discretion and flexibility. Schools have the final say.
This applies to cases involving both clinically vulnerable (CV) & clinically extremely vulnerable (CEV) parents. (The response refers to ‘the situation of [our] client’. One of our clients who received this response was a CV parent. The other, who received the same response, was a CEV parent.)
What can CV and CEV parents do?
- You can write to your child’s school and/or your local education authority requesting that they exercise discretion and authorise your child’s absence. Ask them to take into account any vulnerabilities and the impact school attendance is having/would have on your family. If possible, you should include supporting evidence, e.g. GP letter
- You should make clear in your letter that the question of whether leave of absence should be granted is ultimately determined by each individual school head teacher and not central government. Authorising absence is a matter of local decision-making
- You should also make clear that the government’s guidance does not override the existing school attendance provisions. Absence can be authorised beyond the examples noted in the guidance and can cover your situation (as a CV or CEV parent). You can cite the information outlined here, our briefing note and/or the government’s response to our letter.
The headteacher or local authority may, of course, decide not to exercise discretion in your case and may refuse to authorise your child’s absence. If that happens, their decision may be open to legal challenge.
What are we doing now?
The government is continuing to defending its current guidance, which states that vulnerable parents should still send their children to school. It has failed to make clear that schools and local authorities have discretion.
We will now be pushing the government to:
- Amend its published guidance to reflect its official position on local discretion in such cases, so that schools can be made aware that their hands are not tied.
- Change its guidance on school attendance and vulnerable family members. In our view the guidance is irrational and in breach of our clients’ basic rights.
We will continue to provide updates about our legal challenge.
Thank you very much for all your support!