A Covid-vulnerable family has sent a pre-action protocol letter to a council that it says unlawfully told a headteacher to stop allowing their children to stay home during rises in case numbers.
Law firm Simpson Millar sent the letter to Solihull Metropolitan Borough Council on behalf of a husband and wife who were told their three children could no longer be kept out of school over Covid concerns.
The family, which has received support from the Good Law Project, has intermittently home taught their children to protect the father who takes immunosuppressant drugs and the youngest child who has a rare form of epilepsy which is triggered by illness and, in particular, fever.
The school's headteacher previously agreed to the arrangement. However, they no longer support the approach after being told by the council that the council's legal department and the Department for Education said headteachers have "no grounds" to do so, the letter claims.
According to the letter, schools are being told they should "unauthorise" the absences that they had already authorised and go down the route of initially issuing a fixed penalty fine.
The letter threatens a judicial review challenge based on the following four grounds:
- The council appears to have acted ultra vires after having: (i) decided an absence should not be authorised; and (ii) instructed, recommended or otherwise advised the headteacher to act accordingly.
- The council's instruction to the schools that the children must not be granted a leave of absence amounts to a breach of s.6 of the Human Rights Act 1998.
- The council's instruction to the schools that the children must not be granted a leave of absence also amounts to a breach of ss.19-20, 85(2)(f) and 98 and paragraphs 1-2 of Schedule 13 of the Equality Act 2010.
- In light of the potential health consequences for individuals in the family and that follow from the council's approach, the council must have failed to comply with its duty under s.149 of the Equality Acy 2010.
In September, the Good Law Project wrote to the then Secretary of State for Education, Gavin Williamson, threatening legal action if he failed to issue guidance that protects vulnerable children and families as schools reopen.
The public interest litigation campaign group based its challenge on advice from education law specialists, Fiona Scolding QC and Yaaser Vanderman.
The advice says fines or prosecutions for not attending school could - depending on the facts - be unlawful; and vulnerable children or children who belong to vulnerable families may have a legal right to be provided with an education at home.
New guidance from the Education Secretary followed, which said schools need to be sensitive to families' needs when considering absence due to Covid.
Since then, some schools have exercised their discretion fairly, but "many aren't", according to the Good Law Project. "These schools are insisting on rigidly applying Government guidance, despite the Education Secretary's concession, or say their hands are tied by local authorities insisting on a strict approach," the group said.
The group added: "If Solihull Council has acted as the schools allege, we believe it has acted unlawfully. The regulations say that absences should be approved by schools. The local authority does not have the power to involve itself in those decisions or to issue blanket guidance seeking to tie schools' hands."
The council has until 1 December to respond to the pre-action letter.
Solihull has been approached for a statement.