On Tuesday 15 December, @EducationGovUK announced that teachers and pupils will have access to rapid testing from the start of January 2021. Then, with less than three days left of the current term, it published a 27 page handbook, advised that additional guidance will be published soon and that it will hold a live event today, Friday 18 December between 1 and 2pm on 'to provide more information on testing, which will include an opportunity to ask questions'

We answer a number of questions our education clients have asked us about the tests and the steps they need to take to get ready for the Spring term.

1. Why is the government introducing tests?

According to official statistics, attendance in state-funded schools reached a low point of 83% on 19 November and, although it has started to recover, there are still a significant number of pupils who aren't able to attend school/college because they have coronavirus symptoms or are self isolating because someone in their bubble has coronavirus. Secondary schools appear to have fared much worse than primary schools.

The government hopes that introducing rapid on site testing will enable more pupils and teachers to remain in school/college, even if they have been in close contact with someone with coronavirus. It intends to prioritise secondary schools and colleges, including special schools and alternative provision, before extending testing facilities to primary schools.

2. Who will be tested?

Teachers and other staff will be able to be tested every week. 

Staff and pupils who have been in close contact with someone who has tested positive will be able to be tested for seven days without having to self isolate unless they also receive a positive test. 

3. Are the tests compulsory?

No, although the government says that staff and pupils are 'strongly encouraged to participate to reduce the risk of transmission within schools and colleges'

No-one should be tested unless they've agreed to it and have signed an appropriate consent form. But, if they won't consent to be tested and have been in close contact with someone who has tested positive for coronavirus they will have to self isolate at home for 10 days.

4. How do teachers and pupils consent to being tested?

Teachers can consent by completing an appropriate consent form. You will need to prepare separate forms for weekly testing and the serial testing component of the programme and make it clear that they can withdraw consent at anytime. The guidance refers to a consent template and privacy notice which is says will be available to download but the links don't appear to be working at the moment. 

The position with regard to children is more complicated (anyone under the age of 18 is treated as a child for the purposes of data protection). The GDPR puts in place special protection for children and expressly states that they must be addressed in 'clear language that they can understand'. In England and Wales, there is no set age at which a child is generally considered to be competent to consent to processing of their data. ICO guidance says that 'in some contexts you may be able to make an individual assessment of the competence of a child. However, if you aren’t in a position to make this kind of assessment then you should at least take into account the age of the child and the complexity of what you are expecting them to understand'.

If children are competent to consent to their data being processed to support testing, in most cases, it will be appropriate to let them act for themselves. If you don't believe that a child is of sufficient age and maturity to provide their own consent,  you will need to ask their parent or legal guardian for permission. 

You must provide information to explain what the tests involve, who will administer them and how long you will retain this information. The guidance suggests that you include a Privacy Notice and FAQ's on your website and send copies of these to anyone you are asking to consent to a test.

5. Can we insist that teachers take a test so they can continue to provide face to face teaching?

As we indicated in the answer to question 3, anyone being tested has to consent beforehand. Unless a member of staff has been asked to self isolate or has Covid symptoms they can continue to come into work, even if they refuse to be tested. 

Anyone who has been in close contact with someone with Covid can remain at school/college provided they are tested for seven days and those test results are negative. You may be able to argue that it's a reasonable management instruction to ask any member of staff in this position to agree to be tested so that they can continue to provide face to face teaching. If they refuse, you may be able to discipline them but we'd recommend that you take advice first. 

6. Who will be doing the testing?

It looks as though, where appropriate, the tests will be self administered. But , the school head teacher or college principal has appoint appropriate people to undertake the following seven roles:  

  • Quality lead/team leader who is responsible for the overall on site operations
  • Test assistance who provides guidance and supervision to pupils/other staff members on swabbing and collects the samples
  • Processor who prepares the test sample for analysis, conducts the processing and interprets the result
  • Covid coordinator who schedules testing and makes sure that anyone who is tested has agreed to it
  • Registration assistant who is responsible for giving out tests and the smooth running of the test site
  • Results recorder who collectives the results and uploads them onto the system
  • Cleaner who correctly disposes of all clinical waste etc

The government has said that the same person can do more than one role and that leaders can draw on volunteers such as parents, retired teachers, Red Cross, St John Ambulance and community organisations for help. 

It has also said that additional funds will be made available to reimburse schools/colleges for their 'reasonable costs'. It's not entirely clear how generous this will be and organisations may be out of pocket if they take on additional temporary staff to assist them. For example, the Association of Colleges has estimated that the average cost of testing would be £75,000 per college, per month.

Training will be available via online platforms and varies in length from 30 minutes to 2 hours.

7. How long should we keep the test results?

It's not yet clear whether the 'results recorder' has to input the test results into their school/college system or onto some other system. But, either way, the processing of information must comply with GDPR rules on processing special category data, which means that you have to identify the lawful basis* you are relying on for monitoring, update your Privacy Notices and don't retain information for longer than necessary. The guidance suggests that all results should be deleted after 14 days.

*The guidance suggests that schools can rely on safeguarding to process this data (the 'legal obligation' lawful basis). But, the statutory provisions referred to only apply to maintained and non maintained schools rather than colleges. It may also be possible for academy trusts, maintained schools and colleges to argue that processing is necessary to perform a task carried out in the public interest (the 'public task' lawful basis). 

Hopefully, further guidance will be published soon to provide clarity on this issue.

8. Where are the tests carried out?

Tests must be carried out on site and must follow the requirements set out in the guidance. These require: a room which is well lit, has good ventilation and non-porus flooring (so anywhere with a carpet is out). It has to be big enough to contain a registration desk, swabbing bay (which has to have its own processing desk) and a recording desk. Each area has to be clearly demarcated and people being tested mustn't enter the processing area. There has to be one-way travel and the usual social distancing requirements must be followed.

Webinars will be recorded to help schools/colleges properly set up their areas.

The tests have to be stored between 2 - 30  degrees celsius.

9. What type of test will be used?

Lateral flow tests will be used in the first instance. These deliver a result in 30 minutes and don't need to be sent to a lab. Anyone with a positive test result must self isolate and get a second test via the free NHS service that will be processed in a lab.

These are designed to identify anyone who has Covid-19 but is asymptomatic.

10. Are we expected to have this up and running in the first week back?

The government takes the view that 'there is no expectation that school and college staff will need to work on this over the Christmas break' and that the five days at the start of term should be long enough to set up testing. It's also now asking secondary schools and colleges to delay opening for one week to all students apart from Year 11s, Year 13s, children of key workers, those deemed vulnerable and those in exam years. During this staggered return, schools and colleges will also have to provide remote education.

Our advice is not to rush into making plans. Even if tests are available in the first week in January, many schools and colleges won't be able to start testing straightaway. Term ends today and there's no time to prepare for this at such short notice. 

Jo Moseley in a Senior Associate at Irwin Mitchell

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