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.
 

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

We are aware that it is causing distress and concern for some members that the majority of local authority (LA) finance teams are sticking to existing deadlines with regard to the closedown of the financial year 2019-20.

On 1 April, the DfE and ESFA published the updated Schemes for financing local authority maintained schools, and made the following statement “During this unprecedented time we would fully expect local authorities to exercise discretion on how and when they implement some of the usual requirements within their scheme for financing schools. Examples for such use of discretion are deadlines set out in the scheme such as the completion of the schools financial value standard (SFVS) for the financial year 2019 to 2020, and the submission by schools of budgets for the 2020 to 2021 financial year which is normally set for the end of May. In making such decisions, local authorities should take full account of the current pressures on themselves and their schools.” 

If you are in this situation, we would recommend asking your LA finance team for advice on how you can meet their set timelines, while observing non-essential travel, dealing with staff absences and all non-essential staff working from home. 

LA teams need to be aware that, as only staff required for the provision of childcare for key workers and vulnerable children are allowed on site now and for the foreseeable future, it may not be possible to access some source documents and information. You could outline what actuals and estimates you are able to provide in the circumstances. 

We would also recommend checking with your headteacher and chair of governors that they are supportive of this course of action. 

The above referenced guidance also provides the following updates about the delayed publication of the financial transparency consultation and changes to IFRS16:

We wanted to inform you that we have delayed the publication of the Financial transparency of LA maintained schools and academy trusts consultation response due to the COVID-19 pandemic, so there are no changes in the scheme relating to this. We will provide more information on the publication in due course.

Likewise, there are no changes relating to financing and operating leases (IFRS16) that were due to come into effect on the 1st April 2020. This has been delayed for a year, also because of the pandemic.”
 

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. However, this does not necessarily mean that this will be the case over the summer holiday period. We will let you know as soon as we find out.

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 for 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 in June.

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.



 

The general PPN 02/20 guidance has been updated to include sector specific information for state funded schools 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

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.

Yes. 

LAs have some flexibility on the use of free early education entitlements funding during the COVID-19 outbreak. Early years DSG funding can be redistributed if there are insufficient childcare places for children of critical workers and vulnerable children, and moving funding would help resolve the issue. Funding should only be withdrawn from settings that are closed as a result of COVID-19, and only after the LA has exhausted all other means of covering additional costs of providing sufficient places for eligible children.

There has been a delay in the announcement regarding successful 2020/21 CIF applicants. Applicants can expect to hear in June .

The LA will consult with the provider and consider the current sufficiency of childcare places for eligible children in the area and the current financial security of a setting. Careful consideration must be given to the impact of removal of funding on the longer-term sustainability of that setting and the local childcare market. The consultation should consider whether any reduction in the early years DSG funding would risk the ongoing sustainability of the closed provision, particularly their ability to cover operational costs and furloughing of staff (see other questions in this section). 

The government expects this funding flexibility only to be used in exceptional circumstances, and that it will be a time-limited response, kept under regular review by the LA.

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.
 

Yes.

Where a local authority withdraws some early years DSG funding from a provider, the provider will need to assess if this reduction requires additional staff to be furloughed. If necessary, they can then increase the proportion of their salary bill eligible for a Coronavirus Job Retention Scheme application, provided the conditions set out in the guidance on financial support for education, early years and children’s social care are met.

 

Where the DSG income of an early years provider increases to allow for payment of an additional staff member, for example, Coronavirus Job Retention Scheme support will cover the full three-week period for which that staff member has been furloughed.

The staff member must complete their minimum three-week furlough period before they can return to work and be ‘paid for’ by early years DSG funding.
 

Yes. 

Where a local authority provides additional early years DSG funding to a provider, that provider should reduce the proportion of their salary bill eligible for furloughing, and therefore for a Coronavirus Job Retention Scheme application, from the proportions they had calculated originally. The provider will need to assess the extent to which this increase in funding requires fewer staff to be furloughed as a result. 

The DfE and its agencies have cancelled or paused all but the most essential data collections, services and requests from educational and care settings until the end of June 2020. Data collections which are paused will be reviewed and the pause period extended if necessary. A decision on data collections or services which are not due to go live until later in the year will be made in due course. 

A full list of the data collections and services that are in scope can be found here.
 

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.

The government has pledged to work with HE providers to support financial viability and sustainability and the Student Loans Company is planning to make Term 3 tuition fee payments as scheduled.

 

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).

On 7 May, the government updated its guidance for FE and skills, which now includes information on traineeship programmes. 

Temporary flexibilities are now permissible for traineeships, as long as evidence is kept of action taken. This includes situations where trainees cannot complete the full number of hours required on work placement, or when they have not completed basic or work skills or maths and English qualifications. Traineeship programmes may be extended in those circumstances, but robust evidence of action taken must be kept for audit purposes.
 

SCA are made to responsible bodies (local authorities and MATs with five schools and 3000+ pupils). Capital funding allocations for SCA and devolved capital for 2020/21 have now been published. 
 

Yes. We have raised this question directly with the DfE and have their assurance that this is ok. Using parents’ email addresses in this case may be done under the lawful condition of ‘legitimate interest’, rather than consent. This lawful condition is more appropriate for these circumstances as the benefit from processing personal data outweighs the potential impact on the child (the data subject).

 

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). 

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. 

 

Schools are included as contracting authorities under PPN 02-20 Supplier Relief. This has been updated with sector specific guidance for state funded schools. With regard to school food contracts, the advice from DfE is as follows:

Contracting authorities should inform suppliers who they believe are at risk that they will continue to be paid as normal (even if service delivery is disrupted or temporarily suspended) until at least the end of June. The government will continue to provide schools with their expected funding, including funding to cover free school meals and universal infant free school meals, throughout this period of closure.

You should, therefore, continue to make payments to food suppliers that are considered at risk in relation to the cost of free school meals and universal infant free school meals. This does not apply to the costs of meals usually purchased by parents for children who are not eligible for free school meals. Such payment to suppliers should be made on the basis of the previous three months’ invoices, and only where suppliers agree to act on an open book basis and make cost data available to the contracting authority.

The PPN02-20 Supplier Relief includes a set of FAQs which cover specific scenarios. Questions not covered here should be sent to: PPN0220.QUESTIONS@education.gov.uk
 

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

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.

The academies budget forecast return 3 year (BFR3Y) collection was due to go live on 23 June 2020, but has been deferred. A decision about this return is expected to be deferred until later in 2020. 

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

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.” 

The ESFA have considered the timetable for trusts and their external auditors preparing, auditing and submitting financial statements and associated returns, including auditors’ management letters and internal scrutiny reports, by the deadline of 31 December 2020. At the moment they are advising that this timetable will remain in place. 


 

In the vast majority of cases the answer will be yes, as it is a reasonable assumption that any 16-19-year-old who receives a bursary will rely on this money, not only for transport but also for other study and living expenses. This now includes connectivity from home.

Where providers can evidence that they do not have sufficient funds available to support disadvantaged students, ESFA is operating a business case process that will assess requests for additional funding, where appropriate, for devices and/or internet connectivity. Full details, including a business case template that must be completed, can be found here.
 

On 31 March the government launched the national voucher scheme for children eligible for free school meals (FSM), along with guidance on how this should be implemented.

Key points are as follows:  

  • Schools which are open for the children of critical workers and vulnerable children should continue to provide meal options for staff and children who are in school, and free school meals for all eligible pupils in attendance.
  • The new voucher scheme is to help children who are eligible for benefits-related FSM and are not currently in school. 
  • There is no obligation for schools to switch to the new scheme if you already have arrangements in place which are working in your context, including distributing meals provided by local suppliers (in line with social distancing guidelines) or providing families with vouchers from local shops.  
  • The national scheme is based on arrangements with a number of major supermarkets – Morrisons, Tesco, Sainsbury’s, Asda, Waitrose, M&S, Aldi and (from w/b 27 April) McColl’s
  • Schools can use a new portal to order vouchers for the families of all children eligible for FSM. Schools can either send a code directly to families, which they can turn into electronic gift cards for any of the supermarkets listed above, or they can create the gift cards themselves and post them to eligible families. 
  • The vouchers are for £15 per week per eligible child. 
  • Universal infant free school meals (UIFSM) are being suspended during this period. Children in Reception, Year 1 and Year 2 who are eligible for benefits-related FSM will be included in the national scheme, but not other children in those years. 
  • 16 to 19 providers with a free meals in further education allocation will now be able to access the national voucher scheme, with the value of the vouchers being claimed back via their free meals in FE/16 to 19 bursary allocations. The published guidance, criteria and business case templates for 16 to 19 providers with a free meals in further education allocation can be found here.

     
The DfE has agreed with Edenred to allow schools to place an order for a family to cover a period of up to four weeks in one order, i.e. up to a maximum of £60 instead of £15 on a four-weekly cycle. This should reduce the administrative burden both on schools and on the online system. 

On 21 April, the government announced a temporary extension of FSM eligibility (subject to conditions) for children from the following groups who have no recourse to public funds (NRPF), during the period of the COVID-19 outbreak: 
  • children of Zambrano carers
  • children of families with no recourse to public funds with a right to remain in the UK on grounds of private and family life under Article 8 of the European Convention on Human Rights
  • children of families receiving support under Section 17 of the Children Act 1989 who are also subject to a no recourse to public funds restriction
  • children of families supported under Section 4 of the Immigration and Asylum Act 1999

The guidance linked to above provides more detail on how this extension will work. 

Any employees you place on furlough must be furloughed for a minimum period of three consecutive weeks. When they return to work, they must be taken off furlough. Employees can be furloughed multiple times, but each separate instance must be for a minimum period of three consecutive weeks.

Full details of the scheme are available here.

From 1 May to 31 May (in the first instance), a number of statutory requirements have been removed or relaxed. The Secretary of State has issued four notices, which:  

  • disapply offences for non-attendance in schools during the coronavirus (COVID-19) outbreak, so that parents will not be penalised if their child does not attend school 
  • modify pupil registration requirements so that a child attending a school on a temporary basis because of the coronavirus outbreak should not be registered as a pupil and should return to their usual school once it reopens 
  • disapply the duty on Ofsted to undertake regular inspections of state-funded schools within prescribed intervals 
  • 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 (EHC) plans (see more detail on this below) 

On 7 April the government published guidance on the financial support schools will receive to reimburse them for exceptional costs incurred during this period.

Funding will be available to cover costs relating to specific items – those judged likely to be necessary to allow schools to provide appropriate support to those children who continue to attend school under the current arrangements. These are:

  • increased premises-related costs
  • support for free school meals (FSM) for eligible children who are not attending school, where those costs are not covered by the FSM national voucher scheme
  • additional cleaning costs
If a school faces other, extraordinary costs to deliver appropriate support to their pupils through this period that are not covered by this list and cannot be met by existing budgets, they should contact DfE.CoronavirusHelpline@education.gov.uk

The guidance includes limits for the amount of money that can be claimed by different types and sizes of school, unless exceptional circumstances apply.

Schools will need to keep records of expenditure relating to COVID-19. ASCL Funding Specialist Julia Harnden has produced this ‘Quantifying the Cost’ data collection template to help make this process as simple as possible. Please read the user notes on the ‘START’ tab.

The DfE has confirmed that schools will continue to receive their core funding for 2020/21 and that local authorities will continue 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 will continue to receive their grant funding for the remainder of the funding year 2019/20. 

At the moment we do not have any information about the funding year 2021/22.

We have raised this as an issue with government and will provide a definitive answer as soon as we can. Our view is that awarding organisations will have already incurred some costs as a result of preparing exams which are not going ahead, and will incur further costs in moderating teacher-assessed grades this year. 

However, these costs may not be as high as those incurred in normal circumstances. In this scenario, we would expect a portion of the fees paid by schools to be refunded to them, or for this to be reflected in next year’s fees. We understand that many awarding organisations are already considering this. 

We would advise schools and colleges which have not yet paid this year’s exam fees to do so. 

As students due to sit exams in Year 10 or below are unlikely to be part of the teacher-assessment process being implemented for students in Year 11, we would expect any exam fees paid for these students to be returned in full. 

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Centre-assessed Grading 2020: Technical guidance

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