The Government’s response to COVID-19: human rights implications Contents

7Children and the right to education

School closures and the right to education

169.As part of the country’s response to Covid-19, on 18 March 2020, the Government announced the closure of schools for all except “children of key workers and vulnerable children.”206 Schools remained closed from 23 March until 1 June, when some primary and secondary school children returned to school.207 The closure of schools to the majority of children and the consequent loss of learning engages the rights of the child and in particular children’s right to education. These rights are protected notably by Article 2 of Protocol 1 of the European Convention on Human Rights; Articles 2, 3, 6, 13, 15, 19, 23, 24, 28, 29, 31 and 34 of the UN Convention on the Rights of the Child; Article 7 and 24 of the UN Convention on the Rights of Persons with Disabilities; and the 1960 UNESCO Convention against discrimination in education.208

170.A decision to close schools has the potential to affect, and interfere with, children’s right to education. Any interference with human rights must be justified, done lawfully and transparently and only be done to the extent necessary. Education is not just about academic performance, important though that is, indeed children’s rights have been affected in many varied ways:

171.Urgent measures are needed by schools, communities and children’s services to repair harm done. This will require adequate resourcing from Government.

172.There are specific provisions in the CA 2020 to allow the Government to direct the closure of schools where certain circumstances are met. However, whilst the Government’s messaging was indeed that schools had been closed, upon probing, the Government had not used its powers to close schools. Instead of issuing a direction under the CA 2020 to close educational establishments, and properly justifying the need to close schools, the Government, through communications and press announcements, encouraged schools not to allow pupils to attend except for certain groups and encouraged parents not to send their children to school.217 We consider that measures which are likely to affect human rights should have a proper legal basis and be properly justified, rather than being announced through a press notice. The legal status of such measures should also be properly communicated so that parents and children know on what legal basis they are being denied access to schools. To do otherwise raises real rule of law and human rights concerns.

173.The measures taken to combat the virus have had a huge impact on children’s right to an education. Children have been impacted, in many different ways, often depending on their individual situations. In this section we discuss some of the issues of concern which were raised in written evidence.

Widening inequalities

174.While the closure of schools disrupted all children’s education, there was a “huge disparity” in the amount of education accessed during the lockdown, with particular differences noted between those in deprived communities and those attending private schools.218 Despite the various approaches to distance learning adopted by schools, there were significant barriers to home learning for disadvantaged children including poor internet access, insufficient access to devices or study spaces and limited or no parental support.219 Surveys have shown that school closures have had a more damaging impact for already disadvantaged children. Research by the Sutton Trust found that in the first month of lockdown 60% of private schools and 37% of schools in the most affluent areas had an online platform to receive work, compared to 23% in the most deprived schools. Another survey of 4,000 parents in England between 29 April and 12 May by the Institute of Fiscal Studies found that children from better-off families spent 30% more time on home learning than those from poorer families.220

Children with special educational needs and disabilities

175.In response to Covid-19, the Government also made significant changes to Education, Health and Care (EHC) plans. An EHC plan is a document that the local authority is obliged by law to prepare and maintain, and which sets out an individual child’s special educational needs and the support they require.221 On 30 April the Secretary of State for Education issued a Notice, under the Coronavirus Act 2020, modifying section 42 of the Children and Families Act 2014.222 Under section 42 of the 2014 Act, local authorities had a duty to secure special educational provision in accordance with EHC plans.223 Pursuant to the Notice, local authorities were deemed to have met this duty if they used their “reasonable endeavours” to secure the provision.224 Further notices were issued for the months of June and July. The Secretary of State announced that these temporary legal changes to the standard of the duty were not expected to be extended nationally beyond the end of July.225

176.The change in duties towards children with special educational needs and disabilities (SEND) during this period, combined with the wider “closure” of schools, had a significant impact on many children with SEND.226 The vast majority of these children were not able to attend school during the lockdown and consequently missed out on specialist support that comes with being at school. The Children’s Commissioner for England told us that there had been instances where there were “serious breaches of a child’s right to education” such as a school telling a child they could not attend school during the lockdown despite being in receipt of an EHC Plan.227 This is despite the DfE press release specifying that children in receipt of an EHC Plan were classed as “vulnerable” children who could continue to attend school during lockdown.228

177.The Government has obligations to ensure that all children have access to education and that the best interests of the child are a primary consideration in decision-making. Thus, the provision of education and the best interests of the child should be at the forefront of policy and decision making.

178.Our evidence suggests that whilst school closures have affected all children, these closures have had different impacts for different groups of children. The effects of these different impacts - and how best to mitigate against unwanted impacts - should be factored into the Government’s policy and decision-making. The disparity in education accessed by different groups of children suggests that there should have been better guidance to schools from the Government around continuity of education. The unequal access to education for disadvantaged children is of real concern and the Government must ensure that it does not lead to wider inequality in society.

179.In particular, school closures have created specific barriers to children with SEND’s access to their right to education. This is really concerning. We urge the Government to look into the effect that school closures have had on young people with SEND and to address any barriers to them returning to schools and accessing education. Where it is not in the best interests of the child to be in school, for example if they are shielding, appropriate support should be provided to them so that they can learn from home.

180.Some of these changes to children’s right to education were made through press announcements alone or through the use of Notices or Directions issued under powers in the Coronavirus Act. The Government should not interfere with human rights without a clear legal base and should be clear as to whether it has legally changed children’s rights or is merely changing messaging—such differences have been obscured during the Coronavirus crisis communications and this makes it difficult for parents and children to understand their rights. Whilst Government explanations, comments and press notices can be useful tools to explain legal changes, the Government must make it clear as to whether a new announcement, such as one purporting to “close schools” is made under legal powers to direct the closure of schools or is merely advisory—the rule of law is threatened if the Government obscures the legal status of its announcements. Further, legal documents—including Notices and Directions—which may interfere with human rights should be easily accessible. This is crucial for compliance with both the rule of law and human rights. The Government must ensure that all Notices and Directions interfering with human rights are published and readily available or signposted on

206Schools, colleges and early years settings to close”, Department for Education, 18 March 2020. The press notice described “vulnerable children” as “those who have a social worker and those with Education, Health and Care Plans.”

207 From 1 June, particular year groups in primary schools were allowed to return to school and from 15 June, secondary schools pupils in years 10 and 12 were allowed to return to spend some time in school in small groups. From 15 June, primary schools were also allowed to bring back other pupils if they had the capacity to do so. See, Department for Education, Guidance for full opening: schools, 2 July 2020.

209 Centre for Sport and Human Rights, An Overview of the Sport-Related Impacts of the COVID-19 Pandemic on Children, June 2020. p. 9

210 The Children’s Society, Briefing paper: The impact of COVID-19 on children and young people

211 Department of Education, Characteristics of children in need: 2018 to 2019 England, 31 October 2019. p.10

212 European Network of Ombudspersons for Children and UNICEF Survey, The Ombudspersons and Commissioners for Children’s Challenges and Responses to COVID-19, May 2020

214 Early Years Alliance “Early Years Recovery Briefing”, 2020

216 HL Deb, 15 June 2020, cols 5693

217 In addition, Notices were issued under section 38(1) of, and paragraph 5 of Schedule 17 to, the Coronavirus Act 2020, disapplying section 444(1) and (1A) of the Education Act 1996, which create offences relating to the failure of parents to secure regular attendance at school of a registered pupil. Notices were issued on 30 April, 1 June and 30 June and 30 July 2020.

218 Children’s Commissioner for England (COV0143)

219 Children’s Commissioner for England (COV0143); The Children and Young People’s Commissioner Scotland (COV0088); UNICEF UK (COV0188)

220 Institute of Fiscal Studies, Learning during the lockdown: real-time data on children’s experiences during home learning, 18 May 2020; Written evidence submitted to the Education Select Committee: The Children’s Commissioner’s Office (CIE0150)

221 An Education, Health and Care Plan is required under s. 37 of the Children and Families Act 2014 after an Education, Health and Care needs assessment has been made under s. 36 of the Children and Families Act 2014.

223 See Children and Families Act 2014, Section 42

224 From 1 May to 31 July 2020, section 42 of the Children and Families Act 2014 (duty to secure special educational and health care provision in accordance with EHC plan) was modified by a notice from the Secretary of State for Education issued under the Coronavirus Act 2020.

225 Department for Education, Education, health and care needs assessments and plans: guidance on temporary legislative changes relating to coronavirus (COVID-19), updated 6 July 2020. It is worth noting though that there are also other relevant changes to the law. For example, the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (S.I. 2020/471) amend the Special Education Needs and Disability Regulations and related Regulations to ease deadline requirements for various actions in relation to a EHC plans and assessments, often replacing a firm deadline with an obligation to do an action as soon as is “reasonably practicable”.

226 Children’s Commissioner for England (COV0143); Greater Manchester Disabled People’s Panel (COV0206); Scottish Alliance for Children’s Rights (COV0075); Scottish Commission for People with Learning Disabilities (COV0126) Children’s Rights Alliance for England/Just for Kids Law (COV0148); Alliance for Inclusive Education (COV0160)

227 Children’s Commissioner for England (COV0143)

228Schools, colleges and early years settings to close”, Department for Education, 18 March 2020. The press notice described “vulnerable children” as “those who have a social worker and those with Education, Health and Care Plans.”

Published: 21 September 2020