Over-stretched?

Two years after the extended schools agenda was announced, the government is putting increasing pressure on schools to 'extend'. Richard Bird looks at where schools stand on financial and legal aspects.

The range of activities covered by the 'extended schools' agenda is vast. Childcare, a wide menu of activities after and before school, parenting support, access to specialist services through the school or on the school site and community access to facilities are all included in the mix, though not necessarily to be provided by one school.

Schools are expected to act as providers, facilitators, promoters and hosts.

Prudent schools will be asking themselves questions now about legal liability. The list of questions includes: What we do; what funding we may use; who has access to the pupils; where do we send them or recommend they go; who takes them there; and what happens when they get there?

The legal implications come from the Occupiers' Liability, the Common Law duty of care to children, the Common Law duty of care in offering professional advice, the duty to promote welfare, in particular the Education Act 2002 and the Children Act 2004, and the Safeguarding Vulnerable Groups Act 2006.

If a service is to be provided in exchange for a payment, there are also questions of contract.

Financial responsibility

Some questions can be relatively easily addressed. The school may, for example, use its own delegated budget only to provide activities linked to school business. So a pre-SATs catch-up activity is a legitimate charge on the school budget. A recreational after-school club almost certainly isn't. There is a pleasing grey area in between.

This applies also to the debts that may be run up through ill-advised activities. It is clear that activities related to the school may be a charge on the budget. It is not at all clear who is responsible for debts run up by other activities and what budget is chargeable.

It is important to get an absolutely clear statement from the local authority on legal liability before entering into any activity that is not guaranteed to break even.

Legal responsibility will vary depending upon whether the school provides the activity itself, hires in someone else to provide it, or signposts parents towards it. The more remote from the school, the less responsibility.

The school needs to ensure that child protection procedures (which Ofsted said were 'haphazard at best' in extended activities) are fully operational. The school will need to apply checks to its own volunteers or additional staff and should insist on outside contractors following child protection procedures, having child protection policies and having a process for reporting incidents to the school. This should be regardless of whether the school is employing a contractor or providing the contractor with a venue.

A failure to do so may incur action for beach of statutory duty or for failing to safeguard the well-being of children in your care or children as visitors to the site.

Greater community access to school facilities raises questions as to the possible access of adult users to children also on site at the same time. Rules need to be clear and limits marked out and enforced.

A school will want to be clear about its contract with parents who are paying for a service. The contract should include the right to remove children from the activity if parents are regularly late in picking up their children, for example. A school has a responsibility for children all the time they are present on its premises, regardless of whether it is in school hours or not and regardless of who is supposed to be looking after them.

Recycled wheels

These issues are not insuperable. The old community schools and community colleges had over 60 years of experience in sorting them out. There is no need to reinvent the wheel. However, wheels are needed.

Extended schools coordinators have a vital role here. They should not only be enthusing people but sorting out obstacles to progress. The legal obstacles are important and schools need to know where they stand.

Similarly, where pupils are being moved around between schools and colleges, a coordinator should help to devise protocols of mutual inspection and exchange of information which will give an assurance to the despatching school that the receiving school is following appropriate procedures and has appropriate policies in place.

As in so many legal issues, foreseeability is the key. If something goes wrong the law will want to know whether the school knew, or ought to have known, what was going on. It is for the school to ensure that it does.

Richard Bird is ASCL's legal consultant