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Face coverings in classrooms – legal update (England)

Published Date: 15 Mar 2021
Photo: The National Deaf Children's Society is taking legal action
We’ve taken the first steps in legal terms against the Department for Education in England over its guidance on face coverings in education (see later in this blog for more information on what’s happening in Northern Ireland, Scotland and Wales).

Why are we doing this?

For several months, we have been calling on the Department for Education to strengthen guidance on face coverings in education to make sure that deaf children are not disadvantaged as part of our wider UK-wide #KeepItClear campaign.

This issue recently came to a head with the announcement in February that face coverings would be recommended in secondary classrooms in England when schools returned.

Last year, the Secretary of State for Education, Gavin Williamson, told us that he would amend guidance to reference clear face masks. However, after several months of waiting, when guidance was updated, the only mention of them casts doubt on their effectiveness, despite the fact approved ones are being used in the NHS.

We are calling on the Government to make urgent changes to the guidance to endorse the use of clear face masks where they will benefit deaf children. We also want to see much more detailed information on the reasonable adjustments that schools and colleges should be making if face coverings are being worn. Examples of reasonable adjustments might include, for example, clear face masks, radio aids and additional communication support and deaf awareness training, depending on the individual needs and wishes of deaf children.

This action is being taken as a last resort, out of urgent concern for deaf children and young people.

We are very grateful for the support from DLA Piper’s Public Law Team comprising Paul Stone (Partner) and George McLellan (Associate) and from Barrister Steve Broach of 39 Essex Street.

For more information on facemasks in education read our position paper.

What happens next?

We have asked the Department’s legal team to respond to our letter urgently. Once we have a reply, we’ll be considering next steps.

Legal action is always a last resort, and we are keen to work with the Department on changes to the guidance.

The Government says exemptions are in place – so why is this necessary?

Across the UK exemptions are in place which mean that face coverings can be removed if communicating with someone who relies on lipreading.

This is an important exemption and we know of examples of teachers doing this in classrooms to support deaf children.

However, this exemption on its own is not enough. Our evidence is clear that face coverings are already being widely used in classrooms with deaf children. We know that many people will feel uncomfortable about removing their face covering. We also know that deaf children and young people may not feel comfortable asking other people to do this.

This is why it’s so important that government guidance highlights the impact of face coverings and includes clear messages on the need to make reasonable adjustments if face coverings are being worn. Many deaf young people have told us that clear face masks are one of a range of reasonable adjustments that should be considered – see Dinah’s petition for example.

It’s important to be clear that this legal action is not around whether face coverings should or shouldn’t be worn. We’re not a public health charity so this question is outside of our charitable remit. However, we do believe that government guidance must highlight the needs of deaf children and the legal duty to make reasonable adjustments. It is not enough to simply suggest to schools that they be “sensitive” to the needs of deaf children.

Are we taking legal action in the nations?

This is a devolved policy area. This means that each of the UK Governments is responsible for setting their own policy on face coverings on education. It also means that the wording in government guidance is different in each nation.

As in England, face coverings are now recommended or required in secondary classrooms in Northern Ireland and Scotland. We expect Wales to follow suit soon.

In Northern Ireland, we’ve worked with officials to ensure that guidance sets out clearly the need to support deaf children if face coverings are being worn.

In Scotland, we have also been exploring litigation with the Equality and Human Rights Commission and have written to the Scottish Government urging them to strengthen guidance on face masks in education so that deaf children aren’t disadvantaged. We will be considering next steps once we receive a reply.

In Wales, we have been in discussions with officials and are waiting to see if and how guidance will be updated. We have been reassured that they will continue to consider and highlight the needs of deaf children.

What should I do if my child is affected by this issue?

Our website has more information on what you can do if face coverings are being worn in your child’s classroom. This includes template letters that you can use to raise the issue with your child’s school.

Wider information about deaf children’s education is available in our coronavirus blogs for families and professionals.

If you would like further information, support and advice, please contact our Helpline.