NGA – Frequently Asked Questions on Coronavirus (COVID-19)

The DfE is clear that performance management requirements remain in force. However, it states that it expects schools ‘to use their discretion and take pragmatic steps, to adapt performance management and appraisal arrangements to take account of the current circumstances’.

Schools, governing boards and trusts are therefore encouraged to respond flexibly and pragmatically, given that the performance management objectives of teachers and leaders are likely to have been impacted by the government’s covid-19 emergency measures, including school closures. Indeed, it is likely to be the case that the vast majority of objectives set for teachers and leaders will be adversely affected by the inability of teachers and leaders to work towards their objectives during a substantial part of the performance management cycle.

The impact of COVID-19 will continue to be felt for some time to come and focuses governing boards on the duty of care they have to school/trust leaders and their staff. The logistical, safety and safeguarding issues attached to providing reduced provision and the gradual re-opening of schools may well increase levels of pressure and anxiety. It is likely that your headteacher/CEO will have reported on these issues from their operational perspective, but they may be less forthcoming about any personal issues and their own wellbeing. Now is the time for governing boards to reflect how the culture of their school or trust promotes the wellbeing of everyone involved in making it what it is. We encourage governing boards to consider their wellbeing strategy in the light of current circumstances and how it:

• encourages senior leaders to prioritise their own wellbeing and look after themselves;
• highlights and responds to specific pressure points and risks that need addressing;
• communicates (and demonstrates) the commitment (e.g. to reducing working hours);
• allocates resource to providing confidential external support for those who need it, and
• is monitored, discussed and informed by feedback,

Further guidance on monitoring staff wellbeing can be found on NGA’s Guidance Centre

Some parents and carers will understandably be concerned about how the decision to re-open schools will affect their child and so it is vital that they are given the opportunity to share these concerns and have their questions answered. Much of this will be done by the Senior Executive Leader who will also want to find a way of gauging the appetite amongst parents about their children returning to schools.

Governors and trustees are expected to retain their strategic role and so it is not expected that they proactively engage directly with parents and carers. However, some parents and carers may also look to the governing board for reassurance and so boards should consider supporting the communications from the school. This could involve the co-signing of a letter that goes out to parents.

For governing boards of maintained schools, in cases of urgency where a delay would be likely to be seriously detrimental to the interests of the school, a pupil, a parent or member of staff it is possible for the chair or vice chair (if the chair is unable to act) to make decisions independently. This does not extend to approving the annual budget, the suspension of governors or reviewing the exclusion of pupils except where permitted in accordance with the law around pupil exclusion.

Whilst this approach is embedded in maintained sector governance regulations, there is no such equivalent power for academy trusts. Whether chairs and vice chairs of academy trusts and academy committees (LGBs) can be delegated functions in cases of urgency will depend on the provision made in schemes of delegation or by trustee resolution. If no such provision currently exists, then it may be advisable to call an urgent trustees meeting to approve the principle and circumstances in which decisions can be made by individuals in cases of urgency.

Although provision is made within the regulations for maintained schools for “alternative arrangements for governors to participate or vote at meetings”, it is not clear as to whether this would extend to making decisions via email. In any case, NGA thinks that holding governing board meetings by alternative means such as telephone or video conference, is preferable to governing boards conducting business and voting by email correspondence.

Academy trust boards do have the option of making decisions by passing a written resolution. A written resolution would require agreement by all the trustees as opposed to a majority, so would be unsuitable if some trustees were precluded from voting due to conflict of interest.

Yes, decisions made in virtual meetings have the same legal standing as face to face meetings in person, although there are some practical considerations, for example how votes are cast at the meeting.

In practice, voting at governing board meetings usually takes place by a show of hands. This is still possible if the meeting is being held by video conference and the clerk can see all the voting participants on their screen. Otherwise it may be necessary for clerk to ether ask each voting participant to confirm their vote or ask if there is anyone who wishes to vote against a proposal working on the assumption that the vote will be carried.

If the vote requires a secret ballot such as the election of a chair, then an option could be for all governors/trustees to email their vote to the clerk who will collate and announce the result.

There is nothing to prevent the governing board proceeding with appointment and/or re-appointment of governors/trustees as they normally would at meetings held by telephone or video conference. The governing board may wish to consider how the process is managed on a practical level given that they are not going to be in the same room at the same time. For example, whether they wish to ask the individuals concerned to join the virtual meeting at a later stage after their appointment/re-appointment has been confirmed.

Legislation does not allow for an extension to the terms of office for elected governors at maintained schools. At academy trusts, the articles of association will determine if it is possible to extend the terms of office for elected trustees and academy committee members.

The latest school governance update from DfE advises maintained school governing boards to take a pragmatic approach to the timing of governor elections during the outbreak and continue to function with vacancies where necessary and practical. It also advises academy trusts to make pragmatic decisions as to whether elected parent trustees and/or local parent governors can be extended under the terms of their articles or whether the trust can continue to function with less governors or trustees if necessary.

NGA recognises that most schools and governing boards are currently not in a position to hold or complete the process of governor/trustee elections and that this may continue for some time. Therefore, we have taken the view that although maintained school governance regulations and some articles of association do not allow the terms of office of elected governors/trustees to be extended, it is still sensible to do this when it is not possible to elect replacements and the governing board is unable to function without replacements.

We have taken this view based on an intelligent assessment of the risks attached to circumstances that make it impossible to make a decision or discharge a function in strict compliance with the regulations/articles. However, governing boards should not take these decisions lightly. We accept that the preferable alternative to extending terms of office is:

• to function with vacancies until such time it possible to hold governor/trustee elections and/or
• to use governors/trustees whose terms have expired in an associate and/or advisory capacity

All governing boards in this position, whether or not they have taken the decision to extend terms of office, should now be considering the timing of governor/trustee elections even if this is provisional and subject to change.

The governing board’s responsibility to safeguard and promote the welfare of children continues even when schools and colleges are operating in a way that is fundamentally different to business as usual.

School and colleges will already have an effective child protection policy in place, which will already have been updated ad a response to COVID-19. Now that schools are re-opening to more pupils, a further review may be necessary. It is not necessary for the whole policy to be re-written and instead, a COVID-19 annex/addendum is preferable. More information on what needs to be included in this annex/addendum can be found here. In practice, the review of the child protection policy will be managed by the Designate Safeguarding Lead (DSL) or their Deputy. Given the importance of having an effective safeguarding policy in place, any changes that are made can be approved by Chair’s action prior to them being discussed and approved at a meeting of the governing board.

To help maintain effective oversight of safeguarding, the safeguarding governor/trustee, chair or other member of the board as appropriate may wish to make contact with the school leader and or DSL to receive an update on the safeguarding arrangements made in response to COVID-19 such as the arrangements in place to keep children not physically attending the school or college safe. Safeguarding should also be a specific agenda item at all governing board meetings held during this period.NGA has produced an information sheet that includes a list of safeguarding questions for governing boards to ask in their own school’s context.

DfE and ESFA are clear that schools are not expected to handle new or existing complaints whilst they remain partially closed. Instead, complaints should be considered in line with the school/trust’s policy once school fully re-open.

However, schools should seek to engage with complainants wherever possible. If the matter is time sensitive and unlikely to need be considered once schools full re-open for example, a complaint from a parent/carer relating to the ‘bubble’ their child has been placed with, it is in the best interest of everyone that this is considered as soon as possible in a reasonable manner.  Therefore, the board may wish for the chair (or another nominated governor/trustee with the relevant skills) to look into the matter, provide feedback and hopefully a resolution that is appropriate in the circumstances. If the complainant is not satisfied with the chair’s response, then they still have the option to escalate it through the adopted complaints procedure (i.e. request that it is considered by a complaints panel). However, it should also be made clear from the outset that the panel will be considering the complaint retrospectively after the school has re-opened to all pupils.

The timeframes attached to reviewing exclusions including governing board and independent panel reviews have remained in place. However, the government appreciates that it may not be possible for these timeframes to be met due to the disruption caused by COVID-19. The DfE has therefore advised governing boards and arranging authorities to assess the facts of the case and decide whether the review needs to be delayed  until as soon as is reasonable practicable, or whether to proceed using alternative technology such as video conferencing.

More information can be found in the DfE’s statutory guidance on Changes to the school exclusion process during COVID-19

Typically articles of association require the notice of a general meeting to state the time, date and place of a general meeting. This could mean that general meetings would have to be held in a physical place as this is not possible, an alternative solution will need to be considered.

If possible, the AGM should be delayed although given that the AGM plays an important role in helping maintain effective governance, this is only a temporary solution and so plans will, at some point need to be arranged for the AGM take place.

NGA’s legal partner, Browne Jacobson have produced a legal update on this matter.

NGA also forwarded the question to the DfE.

Their response was that trusts that have an urgent need to hold their AGM are encouraged to consider whether their articles of association allow for it to be held remotely using video conferencing technology.

Where this is not possible, it is advisable for trusts to postpone the AGM. DfE do not expect any action to be taken against the trust for taking a reasonable decision to postpone the AGM meeting in these circumstances.

Where postponing the AGM has wider implications for the trust, for example it delays the sign off of the accounts, then they are advised to contact the Education Skills and Funding Agency (ESFA) to discuss alternative arrangements.

The AGM is an opportunity for the Members to hold the trust board to account and so trustees should be prepared to report back to Members and answer their questions about how they have carried out their role. NGA’s Leading Governance Development for Boards programme is an effective way to demonstrate and evidence how your governance practice has evolved. Fully funded by the DfE, it is consultant-led and tailored to your board’s circumstances, designed to improve both practice and outcomes. For more information about the programme, visit https://www.nga.org.uk/LeadingGovernance/Boards.aspx. Trust boards can access up to £2,500 of funding to access both the Development for Boards, and Development for Chairs Leading Governance programmes; to learn more or enquire about eligibility, call the team on 0121 237 3780 (option 4), or email leading.governance@nga.org.uk.

In our view, the decision on whether a school should re-open to more pupils is operational and should be taken by the headteacher/senior executive leader. This is because they know the unique circumstances of their schools best and therefore are best placed to make the detailed decisions required when it comes to safety.

The governing board as a corporate entity remains accountable and responsible for all decisions made and school leaders operate within the autonomy, powers and functions delegated to them by the board.

The headteacher/senior executive leader will need to undertake a full risk assessment before making a decision, and it would be wise for them to bring that assessment to their governing board. Governing boards, while trusting their headteacher/senior executive leader assessment, should test its robustness.

The NGA information briefing on the safe re-opening of schools to more pupils includes advice for governing boards on testing the robustness of their headteacher/CEO’s risk assessment.

A genuinely collaborative process and full discussion should give the governing board the confidence to support their headteacher/CEO’s decision and be an advocate for the position taken.

There is no requirement for the governing board to ratify the headteacher/senior executive leader’s decision to re-open the school to more pupils. However, the full discussion that takes place between the headteacher/senior executive leader and the governing board regarding the risk assessment and plan (for re-opening the school to more pupils) will, in all probability, result in the governing board confirming that they support their headteacher/senior executive leader’s decision (effectively making it a joint decision) and to this being documented in the form of notes/minutes.

Legally the answer to this question is yes because the governing board (within the parameters of the governing structure) as a corporate entity remains accountable and responsible for all decisions made and school leaders operate within the autonomy, powers and functions delegated to them by the board.

However it is most unlikely that this will happen if there has been a full discussion of the risk assessment and the advice of the governing board has been taken into account alongside relevant advice given by local health and safety teams including the LA or trust.

A maintained school where the LA is also the legal employer (e.g. community and voluntary controlled schools) would need to have a very good reason and explain their decision to re-open to more pupils when the LA has advised that it is not safe to do this.

Regardless of who is the legal employer of the staff schools should seek to understand local concerns and to factor these into risk assessments. Planning to open more widely needs to be a participative process which builds the confidence of staff, parents and communities.

No, each school should carry out their own risk assessment based on their individual characteristics. We anticipate the final decision on whether to re-open to more pupils to be made by the Head of school, in discussion with the Chief Executive Officer (CEO) and relevant academy committee (also referred to as local governing bodies).

This may well lead to some schools in the MAT not re-opening to more pupils, but it is important the decision reflects the risk assessment and is the right decision for that particular school.

The Trust is the legal employer of staff in all its schools. On that basis an individual school within the trust would need to have a very good reason and explain their decision to re-open to more pupils when the trust has advised that that it is not safe to do this.

The risk assessment is a working document. When reviewing it, the senior executive leader should have regard to the latest government guidance as well as the advice issued by their local authority or trust, and public health bodies, which take into account the data on local rates of infection. They will also need to consider the evolving situation at their school, for example staffing levels, feedback received from stakeholders and the impact of the numbers of pupils returning.

We recommend that senior executive leaders use their chair and/or vice chair as a sounding board when reviewing their risk assessment and that the governing board is kept informed so that they have the opportunity to test the robustness of decisions arising from the review.

It is wise in our view for schools to share their risk assessment with stakeholders, for example by publishing it on their website. This will demonstrate transparency and help to instil confidence that the risks (associated with reopening the school to more pupils) have been considered and, as far as possible, mitigated.

Publishing the risk assessment also provides an opportunity for the school to demonstrate that it has taken into account feedback obtained through the engagement and wider discussion with parents and staff (and union representatives) about opening safely for more pupils, and has been subject to a full discussion with the governing board, who support its conclusions.

Yes, although current DfE guidance does not require schools to single out specific characteristics, governing boards should expect the risk assessment carried out by their senior executive leader to be proportionate but sufficiently robust. The risk assessment should take into account the higher level of risk and measures needed to protect certain groups who are more vulnerable to COVID-19. These include people over sixty, those with underlying health issues, black and minority ethnic (BAME) communities and those who are shielding.

We appreciate that governing boards are concerned about personal liability in relation to their responsibilities towards staff, especially where the governing board is the legal employer of staff such as trustees in academy trusts and governing boards of voluntary aided schools.

However, the Governance Handbook is clear on the issue of personal liability:

The board is legally responsible for the conduct of its school(s). However, individuals are generally protected from personal liability. Provided they act honestly, reasonably and in good faith, any liability will fall on the board even if it exceeds its powers, rather than on individuals.

We appreciate that governing boards are concerned about personal liability in relation to their responsibilities towards staff, especially where the governing board is the legal employer of staff such as trustees in academy trusts and governing boards of voluntary aided schools. Working with the parameters set by the government guidance and other authorities (local authorities, public health advice etc.) will serve to protect school leaders and governing boards. It should also be noted that the governing board has collective responsibility for health and safety, rather than individual responsibility. Employer liability claims for compensation against individuals are extremely uncommon and it would be very rare for individual governors to be personally liable for health and safety issues.

Government guidance clearly states that to ensure service continuity during and after Covid-19, public bodies should continue to pay suppliers. NGA thinks that now more than ever, it is vital that boards have access to an effective clerk and so we encourage that schools ensure that financial commitments in relation to clerking are promptly met.

Not yet. Whilst social distancing rules remain, the number of people visiting the school site should be kept to the essential minimum. Governing boards should adopt alternative arrangements for holding meetings and discharging their functions. For example, by using video or teleconferencing applications to hold monitoring conversations with relevant staff.

School leaders and governing boards are currently working in difficult circumstances. However, it is important that governors and trustees are kept up to date with developments within the school.

As the Senior Executive Leader will be working hard to assess options and ensure the best decisions are being made for the school, children and its staff, regular full governing board meetings to feedback may not be possible. However, we would expect that regular contact is maintained with at least the chair of governors. To help ensure that the workload remains manageable for the chair, the vice chair could also be involved. This update can then be shared with the rest of the board. Any update amongst governors and trustees should be just that, an update and consideration of business such as the risk assessment should be left to governing board meetings.

Governing boards will recognise that the current circumstances mean that it is not possible for the work being provided to children who are not in school to replicate the learning they would normally undertake in school. However, governing boards should maintain oversight of this provision. We would expect that this is something discussed when the chair and/or vice chair catches up with the Senior Executive Leader but also something that will be reported on during board meetings.

When doing this, it is important to take into account the context of the community served by the school/trust and the range of needs of families; those governing should gain an understanding of the approach being taken to support parents and carers to help their children learn at home. This includes how teachers are maintaining contact with their pupils, supporting them in their work and managing issues relating to on-line learning. As well as fulfilling their monitoring role, it also provides an opportunity for governing boards to recognise and show their appreciation for the time and effort the staff are giving to overcoming the challenges presented by remote teaching and learning.

Yes, DfE acknowledges that there will be some instances where schools face additional costs as a result of the COVID-19 outbreak. In these circumstances, additional funding is available for specific items. More information can be found in DfE guidance.

In the first instance, refunds should be sought from the agent or tour operator. If this is not possible, or they refuse then schools should contact their insurers. For some schools, a claim may be possible under the cover they have under the Risk protection arrangement (RPA). If schools do not have cover under RPA, their own insurers should be contacted.

If unsuccessful with making a claim under insurance, and schools used a credit card, enquiries should be made as to whether a refund can be sought from the credit card company.

Unfortunately, if a refund is not possible through the above means, then as these costs are unlikely to be covered under the scheme for reimbursement for the additional costs incurred as a result of Covid-19, the school is likely to have to absorb the costs.