On how the government’s response to our pre-action letter differs from the published guidance and why it must be amended to reflect the government’s official position on local discretion and school attendance for vulnerable family members.

First published in December 2020.

The Public Interest Law Centre (PILC) has been acting on behalf of clinically vulnerable families to challenge the government’s policy on school attendance during Covid-19.

We understand that schools and local authorities have felt unable to authorise absence in some cases, no matter how compelling the circumstances. Officials have said that their ‘hands are tied’ due to the Government’s guidance in this area, which states that:

We sent out a pre-action letter to the Government challenging this position because:

  • Vulnerable families are being forced to choose between risking contracting the virus, or facing fines, de-registration from school and/or a criminal conviction;
  • A policy that only a very small cohort (clinically extremely vulnerable children) should have their absence authorised, is irrational and has been implemented in breach of Equality and Human Rights Law; and
  • The policy appeared to leave local authorities and schools no discretion to authorise a child’s absence in cases where:
    • They have vulnerable family members;
    • They are vulnerable but not extremely vulnerable themselves; and/or
    • There are mental health issues or special educational needs to consider.

The Government responded to our pre-action letter, and its official position (cleared by ministers), is NOT what it seems from the published guidance.

It is as follows:

  • The Government has not made the above clear in its published guidance.
  • Schools and local authorities are therefore confused about what their powers are, and for that reason have not been exercising discretion in many cases.
  • Vulnerable families are facing sanctions as a result.

We will now be pushing the Government to:

  • Amend its published guidance to reflect its official position on local discretion.
  • Change its guidance on school attendance and vulnerable family members, which in our view is irrational and in breach of equality and human rights law (notwithstanding the fact that this is not binding on schools and local authorities)

However, in the meantime, we wanted to bring the Government’s position on authorising absence to the attention of parents, school and local authorities so that:

  • Local authorities and schools are clear that they are able to exercise discretion when authorising a child’s absence, taking into account the vulnerabilities of family members (whether clinically vulnerable or extremely vulnerable) as well as any other factor such as mental health issues or special educational needs.
  • Parents are able to rely on this notice when liaising with schools and local authorities and requesting that they authorise their child’s absence from school.

Public Interest Law Centre, Law centre specialising in public law, actions against public authorities, public enquiries, research and legal education.

[This piece was originally published on the PILC website and re-published in PMP Magazine on 15 December 2020, with the author’s consent. | The author writes in a personal capacity.]

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