Breaking the Law: Covid-19 and Online Learning

All children in England have the legal right to access education. However, as many as one million children are not being included in online learning during the lockdown because they have poor technology access. As the Good Law Project have highlighted, this is unlawful and needs to change. In this blog, I explain the legal action being brought against local authorities and central government, and what this could mean for the education sector.

What is the legal case?

The Good Law project are threatening to sue local authorities for failing to ensure access to education for pupils unable to participate in online learning during the lockdown (i.e. because they lack adequate access to a device and/or the internet). At the same time, they are pressing central government to provide funding and guidance to local authorities to enable them to fulfil their obligations to affected children.

Why is this case being brought forward?

The Good Law Project’s argument is strong. Under s.19 Education Act, 1996, local authorities have a duty to provide education to children who cannot attend school. This legislation is often used to ensure that excluded pupils still receive an education. It applies even where children usually attend an academy or free school:

As well as this, children’s right to education is reinforced by the Human Rights Act 1998 and the UN Convention on Rights of the Child.

The covid lockdown has resulted in schools largely operating online, partly because central government have encouraged this. If online learning is the only way to access education at the moment, local authorities must ensure that all children have the means to take part. They are duty bound by legislation.

As well as the technical claim, the case has a strong moral argument. We already know that disadvantaged pupils are struggling to access education online and this is not fair. As recent research highlights, the lockdown is intensifying educational inequalities between richer and poorer pupils. Teach First and TeacherTapp found that:

• only 2% of teachers working in the most disadvantaged communities believe all their pupils have adequate access to devices for home learning
• This is four times less than teachers working in the most affluent schools (9%) and three times less than the national average (7%).

What are the implications for the sector?

Local government, central government and schools

Government and schools will also have to think carefully about how to ensure that technology equipment is given to those who actually need it. A universal solution is likely to be prohibitively expensive, but could be an option. On the other hand, a bureaucratic burden would perhaps fall on schools if they were asked to make decisions about which children and families need assistance.

As well as this, central and local government will need to work out a system for giving pupils internet access. This could work in a similar way to the free school meals voucher system where families are given vouchers for dongles or other forms of internet access. Such a system would need investment and careful monitoring to avoid the problems the free school meals voucher scheme has had.

Telecom companies

Although they are not usually part of the education community, telecom companies have a role to play in making sure all children have equal access to education. The government will need to collaborate with corporates to come up with a quick and cheap plan to provide internet access to poorer pupils. Companies may be reluctant to lower their costs or find affordable solutions, but if the Good Law Project’s case gets plenty of press coverage, they may do so in order to protect their reputations.

It is undeniable that this is an extremely difficult time to be in government. The covid-19 lockdown puts pressure on the entire public sector and we are all adjusting to a new way of living. This does not, however, nullify the law. Children still have the right to an education. Local and central government must now collaborate with the education and corporate sectors to ensure all children have equal access to one. As we recommend in Supporting vulnerable young people through Covid, the government, companies and organisations should take further steps to stop disparities in internet and technology access acting as barriers to learning.