Beyond this first step; maintained schools, academies, further education colleges, special educational needs schools, independent schools and other institutions will all be following suit over the coming months, slowly re-opening their gates and phasing in a return of face-to-face teaching, albeit in this new world of social distancing. Schools and institutions will, of course, have many practical considerations when implementing Government guidelines on social distancing; there will also be legal considerations.
We take a look at these considerations below.
With the Government for example requiring class sizes of no more than 15 pupils and desks at least two metres apart, school and college buildings will have to be physically adapted to accommodate social distancing. Depending on the extent of the adaptations required, certain consents or permissions may be needed, particularly when the institution does not own the freehold to the site. Legal requirements will therefore differ depending on the school/college type, and the land-holding arrangements. Where schools occupy under a lease, consent from the landlord for internal, minor adaptations/works will often not be necessary (but this is not always the case), whereas external/structural alterations are more likely to require consent. For example, where erecting modular buildings as a useful medium-term solution to the need for additional classroom space, landlord’s consent and planning permission would likely be necessary. Maintained schools and academies should also be aware that a change in use of playing field land requires the consent of the Department for Education.
A school might share paths, roads, entranceways or other common parts with other schools, trusts, tenants or the Council, and if certain alterations are required, you may need to consider who has the legal responsibility for them.
Alterations to school buildings and sites will mean that other health and safety considerations (aside from Covid-19) will need to be considered, that continued compliance with fire and other building regulations is ensured, and it will also be advisable to refresh risk assessments.
Finding ways to expand and obtain extra space, and utilising existing space, may well be beneficial and necessary. Short-term leases of local authority owned land/buildings suitable for teaching outside of the main site might be a possibility. Revisiting shared-use arrangements (for example community use agreements, licences, letting agreements and sports hall arrangements) and third party leases (for example to nurseries) in place at the school and college sites could be an option in a bid to free up more space and during hours, days and holiday periods not traditionally utilised for teaching, navigating the crisis by working collaboratively with any third parties.
Any on-going development and construction works on site could also be delayed as a result of Covid-19, which in turn could have legal implications (for example with respect to obligations and rights in building contracts and development agreements), and impact the return of students and the use of the site.
The payment of any rents during this time of uncertainty could also be a concern. Whilst maintained schools will usually occupy under a peppercorn lease, independent schools can often owe substantial sums as rent under the terms of their leases and rent reductions and deferrals may need to be negotiated with landlords. On the flipside, schools and colleges may have issues in recovering rent from their own tenants on site (for example nurseries, scout groups and sports organisations), and may need to consider their options.
It would seem that the impact of Covid-19 and the new normal has many practical and legal implications for the Education sector not least the adaptation of school and college sites.
If you have any questions or would like to discuss these matters further please get in touch with Richard Jones ([email protected] or 020 7551 7957).
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of May 28, 2020.