Financial and legal FAQs

We are reviewing all FAQs on a regular basis – adding new questions as they arise, updating answers to existing questions as information changes, and removing obsolete questions. 

If you have a question which is not covered here, and you are an ASCL member, please email coronavirus@ascl.org.uk, and we will try to find an answer and share it here. 

These FAQs are provided for general information purposes only and do not constitute legal or professional advice. They represent ASCL’s views, but you rely on them at your own risk. For specific advice relevant to your particular circumstances, please contact your employer’s HR service or legal advisers.
 

Students are not normally funded to resit courses within a programme of study. ESFA funding guidance states “When learning programmes are designed to enable students to resit or retake examinations and assessments these are not generally eligible for funding as the activity has already been funded”. 

There are existing exceptions to this rule though (para 89):

When there are exceptional circumstances outside the control of the student or institution, such as a period of long term sickness or good educational reasons then the retake delivery hours for individual students may be included in the funded study programme hours. These students must only make up a small percentage of the total 16 to 19 student cohort.”

Where there is good reason to consider that a student has been disadvantaged by the approach to grading in 2020, such as in cases where their school or college placed greater weight on the centre’s past performance when determining centre-assessed grades than other centres, this should count as a “good educational reason.”  We asked the ESFA about this and they replied as follows: “Schools and colleges themselves need to decide for individual students where there is a case under the guidance for them to re-take some of a course previously taught.” So, if a small number of students are repeating some subjects then this should be funded under the existing guidance.

Note - it may be more appropriate to point students towards the autumn series though, rather than resitting a full year. Schools and colleges are unlikely to be funded if students leave after taking the autumn resit exam.

 

Yes, though you are advised to read the detail of the relevant DfE guidance to ensure eligibility, including with regard to Early Years funding. 

The last date for new furloughing was 12 June. However, staff who had been furloughed by this date can be re-furloughed even after a period of working. Make sure you keep up to date with changing government guidance here

No.

The national voucher scheme has been developed to provide support for families who are eligible for FSM but are not attending school during the COVID-19 outbreak as the school is closed or partially closed. Schools will not have to pay for these vouchers during term time as the costs will be picked up centrally by DfE. 

Costs of the national voucher scheme to provide free school meals for eligible pupils have also been met by DfE over the Easter and May half-term holidays, and a version of the scheme will operate over the summer holiday. 

Some schools have made their own local arrangements which continue to be effective for the families of their pupils. In these situations, schools will be able to reclaim the cost of providing food or vouchers to eligible pupils, up to a maximum of £15 per week per pupil, through the DfE exceptional costs fund.  

However, there are some conditions applied here:

  • a ceiling on the overall total that can be claimed; and
  • an expectation that schools will not claim if they are able to add to any historic reserves in their current financial year (September 2019 to August 2020 for academies and April 2020 to March 2021 for maintained schools).

These conditions do not prevent schools from working with alternative voucher providers, or from being fully reimbursed where doing so will have a negative impact on their financial position. The claims process for the exceptional costs fund is due to be launched shortly. 

Following the cancellation of the summer 2020 season, awarding organisations agreed that partial refunds would be due. The partial refund reflects that awarding organisations incurred some costs in the preparation of exams that were subsequently cancelled.
 

The DfE exam support service
Guidance to support schools and colleges with their responsibilities in the autumn exam season, includes confirmation that funding will be made available to guard against any financial barriers.  The expectation will be that any savings made because of the cancellation of the summer series will be used to offset costs incurred in the autumn, for example partial refunds/ credit notes from awarding organisations. The support package is intended to ensure that centres do not suffer a net loss. We expect the service to launch at the beginning of the autumn term, along with guidance on how to make a claim.

The DfE Exam Support Service covers fees charged by awarding organisations, sites and invigilation, however, the service will not cover English language and maths GCSE exams taken by students who did not achieve a grade 4 or higher in these subjects. This is because these exams take place in November in a normal year and DfE anticipates that schools and colleges will have planned and budgeted for them. The full DfE guidance on School and college responsibility for autumn exams  is available here.

The service will be open to all types of schools and colleges

  • State-funded schools
  • Independent schools
  • FE, sixth form and tertiary colleges
  • Independent training providers
  • Private exam centres
We do not expect that access to the support service will be limited by the financial reserves position of the school or college. We do expect that evidence will need to be provided to substantiate claims, for example, refunds / credit notes provided by awarding bodies.
 

The first claims window for claiming exceptional costs is now closed ( deadline of 21 July).

There will be no opportunity to request extensions to this claims window or to resubmit a claim after that date.

Further claims will be possible in a subsequent claim window in the autumn and details regarding that process will be published later in the year. This claim window will be for further costs incurred up to the end of the summer term in July, but not included in the July claims window.

When details of the autumn claims window are released  you will need a DfE Sign-in account to submit your claim.

Claims must be made at individual school level but can be submitted collectively by MATs.
 

The DfE has updated its guidance on School funding: exceptional costs associated with coronavirus for the period March – July 2020.

Costs that can be claimed for are:
•    Increased premises costs associated with opening over Easter and the May half term
•    FSM costs for children not in school that have not  been covered by the national voucher scheme 
•    Additional cleaning required due to confirmed or suspected cases of COVID

If a school faces other extraordinary costs to deliver appropriate support to their pupils over the period of partial closure that are not covered by this list and cannot be met by existing budgets, they will be able to register the details of these through the claims process. For other queries about financial support, complete the Education and Skills Funding Agency (ESFA) enquiry form.

Schools are not eligible to make a claim against this fund if they expect to add to their existing historic surpluses in their current financial year (September 2019 to August 2020 for academies and April 2020 to March 2021 for maintained schools). This means schools cannot claim if they began their current financial year with an accumulated historic surplus and expect to increase that surplus this year and thereby finish the year with a higher level of reserves than they started.

Schools are not eligible to make claims for any additional costs associated with more pupils returning to school that are not covered by these categories. The DfE has published guidance on the actions schools can take to open for more pupils in a way that minimises the risks of transmission. The DfE expect that schools will be able to implement the measures set out in the guidance (including increases to routine cleaning) within their existing resources.
 

Yes.
The government is temporarily extending eligibility criteria for the 2-year-old entitlement to include children assessed as being vulnerable and meeting the definition in Section 17 of the Children Act (1989) and who have No Recourse to Public Funds (NRPF).

The Secretary of State for Education has decided to temporarily extend eligibility for the free early education entitlement to 2-year-olds from families in receipt of Section 17 support who have NRPF, for the duration of the coronavirus (COVID-19) outbreak only. This is to support their safety and wellbeing whilst restrictions are in place. Eligible children are British-born children who are entitled to be in the country yet are not receiving support by virtue of their parents’ immigration status, which triggers the NRPF. This is a temporary measure during coronavirus (COVID-19) and is intended to support vulnerable children not usually eligible for a free place through the free early education entitlement.



 

Buyers in schools or those who manage supplier contracts, need to be aware of the following Government procurement policy notes (PPN) during the COVID-19 outbreak:

  • 01/20 gives information and guidance on public procurement regulations and responding to the coronavirus (COVID-19) outbreak
  • 02/20 and 04/20 set out information and guidance for public bodies on payment of their suppliers to ensure service continuity during and after the current coronavirus (COVID-19) outbreak

The PPN 02/20 guidance has been updated to include sector specific information for state funded schools and it focuses in particular on three important areas: 
  • helping to determine if you are a contracting authority and therefore whether PPN02/20 applies to you
  • to provide you with some overarching principles and guidance on how you may choose to review and respond to supplier requests within the scope of the PPN 
  • specific guidance on school food contracts

There are separate documents covering guidance notes on model interim payment terms, contingent workers impacted by Covid-19, additional guidance for state funded schools and FAQs.

Questions not covered here should be sent to: PPN0220.QUESTIONS@education.gov.uk
 

We believe that staff or children visiting alternative sites are included within a school or college’s employers’ liability and third party insurances. The DfE’s Risk Protection Assurance (RPA) scheme includes a list of what is covered. Contact details for the RPA scheme are provided below, but we recommend raising individual concerns with your insurance provider in the first instance. 

As outlined in the DfE’s Coronavirus (COVID-19): safeguarding in schools, colleges and other providers guidance, where schools and colleges collaborate and children and/or staff from multiple settings are clustered in one place, the principles in Keeping children safe in education (KCSIE) guidance continue to apply. We believe the same principles apply where staff (with agreement from their employer) take their child to the school or college in which they are working.

Schools and colleges are required to continue to provide a safe environment, keep children safe, and ensure that staff and volunteers have been appropriately checked and risk assessments carried out as required. It is, for example, important that statutory safety checks (e.g. water testing) continue to take place, which may require contractors attending the school site. In these situations, schools and colleges should consider what measures they could take to minimise the risks of contractors being onsite, such as asking them to wash their hands before entering the building.

It will be important for any school or college whose pupils are attending another setting to do whatever they reasonably can to provide the receiving institution with any relevant welfare and child protection information.

General enquiries about the RPA scheme can be sent to academies.RPA@education.gov.uk (for academies) or LAMS.RPA@education.gov.uk (for local authority maintained schools). 

 

The government has updated its guidance for local authority maintained schools about setting up and reviewing complaints procedures. This now includes best practice guidance about handling complaints during the coronavirus outbreak.

The DfE does not expect schools to handle new or existing complaints while they are closed. Schools should, however, still engage with parents and pupils where they can. Complaints should be considered once schools have reopened.

All successful applicants to CIF 2020/21 bidding round are able to access the Post Approval Guidance document via the CIF portal. This document sets out what schools need to do next to get projects underway, including guidance on scope change requests. 

The DfE requires projects to put in a scope change request if they want to change project timing (or indeed other changes to the approved project scope). The DfE has not instigated an automatic extension to project end dates, however, they have told us that they are aware that some projects are likely to be affected by supply chain delays this year.
 

Responsible bodies (RBs) include local authorities and MATs with five schools and 3000+ pupils. For RBs with projects being delivered centrally by DfE, the Department is keen to continue progressing into contract and continue building works where possible, but COVID-19 will inevitably have an impact on timescales. The DfE will work with RBs, but all contractors are expected to apply the Public Health England (PHE) guidance and take whatever steps may be necessary to ensure that their employees are able to follow this guidance. 
 
For RBs managing their own projects, keep in close contact with your named DfE lead about potential delays, so that the Department can review these on a case by case basis. The current situation may lead to project delays.
 

In April 2020, to help reduce the burden on early years, children’s social care, schools, and further education providers, the DfE and its agencies cancelled or paused all but the most essential data collections. 

The published list is reviewed regularly by government and can be found here.

Check the published list regularly to make sure that relevant staff are aware of the current status of data collections.
 

Public funding for colleges during the Coronavirus crisis has already been confirmed by the government. However, the government has now confirmed that where college funding which would normally come from a mix of public and other income streams, e.g. fees and commercial income, has ceased or reduced, it may be appropriate for colleges to seek support from the Coronavirus Job Retention Scheme. 

The update on 17 April gives five conditions in which furloughing may be appropriate for FE and apprenticeships, adding  that when it is difficult to distinguish whether staff are funded through continuing public funding or other income, for the purposes of the first three conditions (where an employee is not temporarily required, would otherwise be redundant and is not involved in delivering provision that is already funded but will be required at a later date), those staff may be furloughed.  

Where providers receive AEB or apprenticeship funding as part of a contract with the ESFA and this work is financially at risk, they may be eligible for support as part of the Cabinet Office’s Procurement Policy. This support will count as public funding for the purpose of furloughing. 

Some providers may also be eligible for the Coronavirus Business Interruption Scheme, also outlined in the guidance.

In the week beginning 18 May, four trade unions – the National Education Union, Unite, GMB, and Unison – jointly wrote to school and college leaders suggesting, “it is important you fully understand the potential liability you are exposing yourself to by following the current deeply flawed guidance.”
 
For the sake of reassurance, this is a brief summary of the legal position. 
 
As far as employees are concerned, if members are following DfE guidance and their employers’ instructions, they should not find themselves personally liable for matters not within their control. 
 
In the event that a mistake is made, employers are ‘vicariously liable’ for the consequences of an employee’s error. This principle means that the employer is liable for the mistake rather than the employee being personally liable.
 
An employee who has suffered illness or injury at work and alleges it to be the fault of another employee or employees or because of an unsafe place or system of work would be advised to bring their claim against the employer, not individual employees, because:
  

  • the employer has insurance and/or the resources to pay any compensation
  • for a claimant, it is likely to be less difficult to blame an employer for an unsafe system or place of work than it would be to identify the alleged failings of individuals which contributed to causing the injury or illness.

For these reasons, ‘employer liability’ claims for compensation against individuals are extremely uncommon.

Employers are advised to ensure that appropriate risk assessments are in place and updated at regular intervals, along with appropriate policies and procedures being adopted in line with the official guidance issued by the DfE in respect of schools and colleges opening more widely.
 

The government has made a number of temporary changes to legislation around EHCPs. These will be in force from 1 May to 25 September, during which time local authorities, health commissioning bodies, education settings and other bodies that contribute to issuing or maintaining EHC plans will be given more flexibility in discharging their responsibilities. This is important information for SLT and SENCos. Schools may also want to inform parents of these changes as it is important that co-production with parents continues despite these necessary modifications.

Whilst temporary, these changes are significant. They include the following: 

  • Section 42 of the Children and Families Act 2014 includes the duty placed on a local authority to secure the special educational provision contained in section F of an EHC Plan. Now a local authority will have discharged this duty if they have used ‘reasonable endeavours’ to do so.
  • Section 42 also places the same duty in relation to health care provision on the responsible commissioning body. Again, this is now subject to the reasonable endeavours test.

‘Reasonable endeavours’ are not defined, and are dependent on local circumstances resulting from the pandemic. The DfE gives useful examples of what alternative arrangements may be reasonable. These include:
  • a home learning reading programme, provided by a SENCo and reviewed weekly
  • specialist SEN teachers providing advice and support to parents in relation to autism, visual or hearing impairment or literacy programmes
  • where an EHC plan already includes a personal budget or a direct payment, widening its use to enable the purchase of equipment or other relevant material to support home learning
  • loaning parents school equipment, such as specialist support equipment to be used at home to support learning

 

On 7 May, the government updated its guidance for FE and skills, which now includes information on the use of college resources to support the community. 

Where colleges have supported the NHS, foodbanks, provided PPE or any similar activity, they are asked to clarify with their governing boards that this commitment is in the interest of the college and not an ongoing risk. 

 

The DfE’s main guidance for schools about temporarily closing includes some information about the impact of COVID-19 on governing boards’ duties to consider reinstatement of excluded pupils, and the process for independent review panels (IRPs).

The government has also published guidance on the temporary changes they have made to the school exclusion process due to the coronavirus outbreak. The arrangements came into force on 1 June 2020 and will apply to all exclusions occurring from then until 24 September 2020 (inclusive of those dates).  
 

The government’s updated advice for educational settings on travel during the coronavirus outbreak highlights information on travel insurance implications produced by the Association of British Insurers (ABI). 

Here are some suggestions that you can consider:

  • The travel provider and tour operator are the first port of call. If the provider is ABTA/ATOL they should settle with 14 days. In some instances (depends on the contract) some operators are not responding, then a partial settlement from the provider may be obtained (with the balance potentially provided from the credit card provider)
  • Another option is that the school could go to school insurance provider or (if a member) contact the DfE Risk Protection Arrangement Team
  • If the response from the operator is a definitive no, then direct to insurers if they are a bonded body
  • In cases of extreme difficulty, a final option maybe to consider contacting the Financial Conduct Authority or Financial Ombudsman, seeking legal advice, with ultimately potentially pursuing via the courts
If you believe an insurance or travel company isn’t complying with these expectations, please let us know (using the coronavirus@ascl.org.uk email address) and we will pass on the details of the company to the DfE. 

 

The Academies Financial Handbook (AFH) has not been suspended.

The ESFA wrote to academy Accounting Officers on 21 April 2020 to advise on the requirements for financial returns, and the AFH requirements, during the Covid-19 crisis. In relation to the continued use of the AFH, the letter stated “I see strong governance, financial management and decision making as essential to help trusts deal with the current challenging circumstances.” and that therefore trusts should not move away from using it.
In relation to the internal scrutiny requirements in the Handbook, the letter states “whilst in-person review visits to academies would be inappropriate at present, it is at boards’ discretion whether remote checks are feasible and helpful in managing risk during school closures.” 

Submission of 2019/20 financial returns
 The ESFA wrote again to accounting officers of academy trusts on 26 August 2020, to outline changes to the deadlines for some of the financial returns academies are required to complete. In her letter, Eileen Milner explains that due to Covid-19, the deadline for academy trusts to submit their financial statements to ESFA for the year ending 31 August 2020 has been extended by one month to 31 January 2021, and the accounts return until 23 February 2021. In addition, it states that the deadline for the land and buildings collection tool (LBCT) has been extended until 17 December 2020. 

BFRO
Please be aware that academy trusts will not be required to submit the BFRO this year. A link to the BFRO webpage on GOV.UK can be found here.

BFR3Y
The academies budget forecast return 3 year (BFR3Y) collection was due to go live on 23 June 2020, but  was deferred. 

The workbook and further information regarding the BFR3Y is now available. The online form will be available on 8 July 2020, with a submission deadline of 29 Sept 2020.

The workbook is not intended for submission and is only there to help you complete the online form.
Due to the impact of the coronavirus (Covid-19) outbreak on education settings, this year’s BFR3Y 2020 will have some one-off changes made to it. The changes include: 

  • extending the deadline by 2 months to 29 September 2020
  • removing the need to submit forecasts for academic years 2021/22 and 2022/23 for this year only
All academy trusts must still compile longer-term forecasts for their own internal financial planning as required in the Academies Financial Handbook (section 2.11).

Data collections, services, and requests
A full review of DfE data collections has taken place. The DfE guidance on reducing burdens on educational and care settings includes a full list of returns that have been cancelled, paused or deferred.
 

Since 1 May a number of statutory requirements have been adjusted or relaxed by order of the Secretary of State.

The following notices remain as at 1 September 2020: 

  • modify pupil registration requirements, because whilst the government expects all pupils to return to school in the autumn term, a small minority of children may need to attend a school other than the school at which they are registered in the event of regional lockdown in response to localised increases in coronavirus incidence and transmission. In such cases, this notice will facilitate the attendance of pupils at a different school in the area, as a temporary measure. ( For review 30 September 2020)
  • disapply the duty on Ofsted to undertake regular inspections of state-funded schools within prescribed intervals. (For review 30 September 2020)
  • modify the duty on local authorities to secure special educational provision and on health commissioning bodies to arrange health provision in accordance with education, health and care plans. This modification expires on 25 September 2020 after which all the usual statutory timescales will come back into force.

Schools have continued to receive their core funding for 2020/21 and local authorities have continued to receive their high needs budgets for 2020/21. For maintained schools this is the period from April 2020 to March 2021, and for academies the period from September 2020 to August 2021. Academies continued to receive their grant funding for the remainder of the funding year 2019/20. This funding has not been affected by the pandemic.

Indicative budgets for the funding year 2021/22 have now been published and are available here. The funding year 2021/22 represents the second year of the three year settlement for schools (5-16 year-olds) announced in the September 2019 spending round. This has not been affected by the pandemic.

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