They agree with our legal analysis7th October 2021
We have now received a response from the Government. The good news is that the Education Secretary, Nadhim Zahawi, has agreed with our legal analysis, and confirmed that the provision which allows schools to authorise absences in exceptional circumstances – “regulation 7”1 – does apply to Covid-related absences, including children who are vulnerable or live with vulnerable family members.
Crucially, the response makes clear that schools do have discretion to authorise such absences, and the Secretary of State expects them to use it. It says he: “would expect in the first instance that parents would seek to resolve their concerns in dialogue with schools.”
It goes on to say that, where a leave of absence is requested: “schools should, as set out in the Attendance Guidance, consider each application individually, taking into account the specific facts and circumstances and relevant background context behind the request, and their obligations under the 1998 and 2010 Acts.”2
The Secretary of State’s impression is that all this is perfectly clear. However, the Department for Education’s guidance doesn’t say explicitly that regulation 7 applies in relation to Covid, and in our view is confusing, as it implies the opposite. It states: “all clinically extremely vulnerable pupils should attend their education setting unless they are one of the very small number of children […] who have been advised by their clinician or other specialist not to attend”, without hinting that there might be exceptions.
We’ve written back to the Education Secretary today to point out that many parents will have never even heard of regulation 7. And while schools will have heard of it, it is unfair to expect them to work out that it applies in the unique context of the pandemic, when the guidance doesn’t mention that.
1 in 20 secondary pupils are now infected with Covid, the vaccine roll out for under-16s is progressing slowly, and more families each day are deregistering their children to avoid penalties. Others have had to allow their children to return to the classroom and, inevitably, catch Covid. Since we sent Government our pre-action letter on 28 September, one of the parents we are working with has been hospitalised with Covid-19; she caught it from her son, who became infected within weeks of returning to school and was seriously ill himself.
Government needs to leave schools and local authorities in no doubt that they can, and should, take a flexible approach to the hundreds of thousands of vulnerable families. We have asked them to either update their guidance or write to schools as a matter of urgency, and to set out clearer plans for providing remote education. In the meantime, we hope that their letter to us will be useful for parents who are in negotiations with their child’s school.
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1 Regulation 7 of the Education (Pupil Registration) (England) Regulations 2006
2 The Human Rights Act 1998 and the Equality Act 2010