Can independent schools access public resources to remotely educate state-funded pupils?

The UK government has rolled out measures to help schools comply with their obligation to provide remote learning for pupils during lockdown, but there is confusion over whether independent schools can benefit from state support in respect of publicly-funded students.
  In January 2021, with a third national lockdown in place, all except the children of key workers were told to remain at home until at least mid-February.
 
Worried about pupils falling behind, the Department for Education (DfE) imposed a legal duty on schools last year to "provide immediate access to remote education" where "a class, group of pupils, or individual pupils need to self-isolate, or there are local or national restrictions requiring pupils to remain at home".
 
The new legal duty was published as a temporary Continuity Direction on 1 October 2020 in The Gazette (an official public record of legal notices), together with an explanatory note. The Direction came into force on 22 October 2020 and “will have effect until the end of the current school year, unless it is revoked by a further direction”.
 
Paragraph 1 of the Direction specifies that it applies to fee-paying independent schools, but only in respect of pupils whose places at those schools are wholly paid for out of public funds. The Direction does not apply to post-16 education.
 
To help schools uphold their duty and ensure the provision of high-quality education that aligns closely with that which would be provided in school, the government has provided links to a variety of funded resources that schools subject to the Direction can access to deliver remote learning.
 
While it is clear that the Direction applies to independent schools providing schooling to state-funded pupils, neither the Direction nor the explanatory note makes clear to what extent independent schools can access government-backed support in respect of these pupils.
 
The government documents make no mention of restrictions on independent schools accessing the various resources available, which include government-issued laptops and funded support for setting up and getting trained on the Office 365 Education or G Suite for Education digital platform.
 
The Key for School Leaders organisation, which rolls out the digital education platforms for the government, stated on its website in June 2020 that independent schools are not eligible for funding for a digital education platform (which is one of the resources available for remote pupils) but "can still apply for support as long as they cover the costs themselves". Whether this remains the position now that the new Direction is in force is unclear*.
 
This lack of clarity presents a number of questions.
 
Does it prevent independently schooled but state-funded pupils from accessing these useful resources at home, should they need them, if their school is unwilling to pay?
 
Does it infer that the funding/provision of such resources should come from the independent school, as opposed to relying on state funded provisions?
 
Or should independent schools, if barred from accessing the funded support, ignore the new Direction, on the basis it is not applicable to them, as they are unable to make full use of the provisions available without a cost?
 
Most independent schools have been educating their pupils remotely since March 2020, irrespective of their status as state-funded or privately-funded. This includes access to remote educational resources both on and offline.
 
It is likely this will continue, in line with the new provisions – and be funded by the independent schools themselves. Whether any will seek to access to the government-funded support, and whether this will be successful, remains to be seen as the Direction plays out across the next academic year.
 
It should be noted that any school that fails to comply with the terms of the new Direction could face an injunction in the High Court or County Court to compel it to act in accordance with the Direction.
 
However, the DfE said taking legal action would be a “last resort” and that the department “will take a proportionate and fair approach to assessing the adequacy of remote education provision”.
 
*The author contacted The Key for School Leaders for clarification but did not receive a response.
 
This article was written by Laura Penny, a regulatory lawyer specialising in education at Fieldfisher.