Legality of DfE 'keep schools open' demand questioned

Greenwich council sends legal letter to Gavin Williamson questioning the DfE's authority to stop schools moving online
15th December 2020, 4:56pm
John Roberts

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Legality of DfE 'keep schools open' demand questioned

https://www.tes.com/magazine/archived/legality-dfe-keep-schools-open-demand-questioned
Coronavirus: Greenwich Council Has Questioned The Legality Of The Dfe's Order That It Withdraws Guidance That Schools Switch To Online Learning

A council that has been directed by the government to abandon plans to move school lessons online this week over Covid concerns has questioned the legality of the Department for Education's actions. 

Greenwich council backed down and met the DfE demands today as its leader, Danny Thorpe, said he could not justify spending public money on a legal battle.

But in a letter from the authority's director of legal services to education secretary Gavin Williamson, the council has questioned the legality of the DfE demands.


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Greenwich's director of legal services, John Scarborough, has written to Mr Williamson saying that the council was concerned that the DfE's actions were "arguably ultra vires [done without legal authority]."

Coronavirus: Pressure for schools to switch to online learning

Last night the education secretary issued a direction ordering the council to withdraw letters which asked schools to close their doors to all but vulnerable children and those of key workers, with lessons moving online from today.

But Mr Scarborough has questioned whether the department had the authority to direct this.

In his letter, sent today, he says: "The Royal Borough of Greenwich has not ordered schools to close. It cannot therefore order schools to reopen.

"If you had wished this to be the case, you would need to have issued the direction against the responsible bodies for the institutions - which in this case would be the governing body and/or board of directors of the schools, who are responsible for their running."

His letter adds that the actions the DfE has told the council to take "are not steps which require a relevant institution to stay open or to require them to provide relevant education. They involve withdrawing letters and issuing a letter drafted by the school standards minister."

Mr Scarborough adds: "We also consider that it is neither necessary nor proportionate for you to issue the direction as is required under the legislation.

"Given the public health situation set out above, the short amount of time until the end of the term and the continuity of educational provision for children and young people, the decision of the secretary of state is not necessary, nor is it proportionate."

The council had asked schools to move lessons online after an "exponential" increase in Covid cases in the borough.

In the letter to Mr Williamson, the authority says that there have been more than 500 students or school staff  who have tested positive for Covid-19 and more than 12,000 pupils who have had to self-isolate this term. 

Under the Coronavirus Act, the education secretary can issue a direction requiring schools to stay open.

In this case Mr Williamson issued a direction ordering the council to withdraw its letters, which had asked schools to move to online learning for most pupils from today. 

The DfE has been approached for a comment.

Last night the Association of School and College Leaders' general secretary, Geoff Barton, described issuing threatening legal letters to schools, councils and academy trusts as "disgraceful" "bully boy tactics".

 

 

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