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Guest advice blog by Dan Rosenberg, Partner at Simpson Millar
As children returned to school in September, I acted for Good Law Project and three individual co-claimants in proposed proceedings against the Education Secretary regarding families with clinically vulnerable members. We were pleased to secure a concession that schools weren’t, contrary to what Government guidance suggested, required to force children from these families back to school despite the risks.
With schools returning after half term, now is a good time to review how much that concession has improved things for children who have particular reason to be concerned about either catching the virus or bringing it home.
Transmission of the virus in schools is still extremely high. I have personal experience of this: one of my own children recently caught Covid and I have only just recovered from it myself. A relatively low percentage of eligible children, which now includes all 12-15 year olds, have received a vaccine.
The three co-claimants
My colleagues and I have spoken to numerous concerned parents over the last few months. The issues facing parents, and the way schools have reacted to the Education Secretary’s concession, are well-illustrated by the stories of the three parents who I acted for in the proposed claim.
The outcome for the first clinically extremely vulnerable mother we represented could have been far worse. Government messaging and pressure from the school encouraged her to send her asthmatic child back to class. He caught Covid shortly after term started and became very unwell. He needed medical intervention to avoid a hospital admission. As our client feared, she contracted Covid herself, deteriorated rapidly and was admitted to hospital. Fortunately, she recovered and her son is back in school – but she is understandably furious that he had to acquire, through serious illness, post-infection immunity rather than being allowed to wait for a vaccine that was just weeks away.
The second parent had a happier outcome: she had a child with multiple serious health issues, who was not attending school for unrelated reasons. She was under significant pressure to send his brother in. She made it clear that she was legally represented and presented Good Law Project’s advice at a meeting with her local authority. This fortunately led to the school agreeing to provide her son with suitable education at home until his vulnerable sibling had been fully vaccinated.
We are still representing a third parent with an autoimmune disease and numerous other health issues. Her child remains on the school roll despite threats of prosecution for non-attendance. We have presented her case to the school, and are hopeful of a positive resolution. The fact that one has not yet been reached shows that some schools are still hesitant to authorise these kinds of absences, despite it having been established that they are allowed – and in some cases obliged – to do so.
Which absences should schools be authorising?
✔ – children who will be fully vaccinated and able to return to school by Christmas
Children who were eligible for early vaccination (namely over-12s who have specific vulnerabilities or live with someone who is immunosuppressed) should have had their first dose by now, and are likely to have their second dose by Christmas. By the start of next term, they will be as protected as they can be. It is also likely that anyone they live with who is immunosuppressed will also have had their third primary dose by then (many will have had it already).
There is no obvious justification for a school refusing to approve an absence which would by definition be of limited duration – particularly since Covid cases are currently very high, and are unlikely to reduce significantly before Christmas.
We would expect schools to take the sensible approach and authorise these absences and provide remote education if at all possible.
✔ – immunosuppressed children who will be fully vaccinated and able to return to school later in 2022
A small number of immunosuppressed over-12s will need a third primary dose to be fully protected. Their position is the same as above, save that they will not be fully protected until later in 2022. Again, we would expect schools to authorise their temporary absence and provide remote education.
? – other children who will be fully vaccinated and able to return to school later in 2022
Some 12-15 year olds will live in a house with someone who is vulnerable but not immunosuppressed. These children will not necessarily have qualified for early vaccination, but may now be eligible for two doses – in which case they may not be fully vaccinated until further into 2022, not least because the vaccine roll-out is progressing slowly. Some parents will want to keep their children at home until they are fully vaccinated to protect the vulnerable relative.
There can be no blanket rule here, but we would expect schools to take a pragmatic approach to authorising such absences. If the non-immunosuppressed vulnerable relative is fully vaccinated, the school may conclude that the risk to them of catching the virus from the child is sufficiently reduced. But schools should be aware that even people who are fully vaccinated can become seriously ill – like our first co-claimant – and in certain cases families should be allowed to keep their child at home until they too are fully vaccinated.
? – primary school children from vulnerable households
The position for younger children is more complicated. The United States is currently well ahead of the UK, and vaccinations are authorised there for five to 11-year-olds. It is likely, but not certain, that that will also happen in the UK, at least for those who are clinically vulnerable themselves or have vulnerable family members.
But if children in this category are kept at home while they await the vaccine, they are likely to be waiting for quite some time. Parents will need to think carefully about whether the risks to their child or their family justifies a long absence, the end point of which is currently unknown. But again, schools should be pragmatic, especially since some form of vaccination for under-12s seems likely to be announced in the near future.
? – children who are, or have family members who are, unable to be vaccinated for medical reasons
The position for vulnerable people who cannot be vaccinated for medical reasons, is yet more complex. Some parents whose children or other household members fall into this category will want to keep their children off school until cases have dropped substantially.
This puts schools in a difficult position, as they are essentially being asked to authorise an indefinite absence. But the response should not be a blanket “no”. Schools are likely to want to understand the medical position on a case-by-case basis, and will no doubt wish to seek to understand relevant case specific evidence. Schools should do what they can to keep children on the roll and to make sure they are not significantly behind when they do return. Pressure which may trigger deregistrations is in nobody’s interests.
? – children who are, or have family members who are, known to only be able to mount a weak (or no) immune response post vaccination.
This is also complex, but the principles are very similar to the position for vulnerable people who cannot be vaccinated for medical reasons above. Schools may wish to understand the relevant medical evidence in respect of immune response (so far as it is currently known), which may well be condition specific.
X – children whose parents want to keep them at home even after all vulnerable household members are fully vaccinated (where the vulnerable person is able to mount a full vaccine response)
We understand that some parents may not want to send their children into school even once all members of the household have been fully vaccinated, not least because we know that even fully vaccinated people can become seriously unwell with Covid. These parents will have some long-term decisions to make.
Schools are unlikely to feel confident in authorising indefinite absences where families are as protected as they can possibly be. But schools should be engaging with these families and doing all they can to reassure them – for example, they could maintain sensible mitigation measures which may go beyond the minimum the Government requires.
X – absences of children with an unvaccinated family member
Any family which has concerns about the effects of Covid on a vulnerable family member needs to ensure that they and every other member of the family has had all the vaccines which are recommended for them. Schools can be expected to take a dim view of a parent requesting absence over concerns about Covid in circumstances where another family member is, say, unvaccinated and going to work each day. We have spoken to a number of families where this was the case – there was little that we could do for them, other than suggesting that they resolved the issue around vaccination and then discussed the matter again with the school.
The issues here are serious ones and schools really need, as the Government belatedly made clear, to consider each request for leave on its individual facts.
My view is that schools and local authorities should be going further than this and reviewing some of their previous decisions, particularly where their decisions have led to fines, prosecution, or deregistration. It is in nobody’s interest for children from clinically vulnerable families to be left behind or allowed to fall through the cracks in the system.
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