School closures and RAAC – what you need to know

5th September 2023

Most schools and colleges are preparing for the start of term this week yet more than 156 in England, at least 12 in Scotland and two in Wales have been told to fully or partially shut due to RAAC. However, there is concern that many more could be forced to shut as further assessments are made of the risks.

What is RAAC?

Lightweight reinforced autoclaved aerated concrete (RAAC) was commonly used as a building material for flat roofing and floors and walls from the 1960s to the 1990s. It is an aerated form of concrete which was quicker to produce and easier to install than standard concrete. However, it is susceptible to structural failure when exposed to moisture. The Health and Safety Executive says RAAC is “now life-expired”, and is “liable to collapse with little or no notice”.

What will this mean for pupils?

If alternative teaching space within existing buildings cannot be found quickly, many schools and colleges will have to request that students remain at home and send work to be completed at home. This is likely to involve returning to 2020-2021 lockdown-type provisions such as completing classwork and homework online via Google Classroom and Microsoft Teams. In this way, schools will be ensuring that children’s right not to be denied an education is being preserved and they will be acting in line with their duty of care to prevent education suffering.

However, as always, careful thought needs to be given to wellbeing and how to provide education to those pupils that require additional support such as those with special educational needs/disabilities (SEND) or additional learning needs (ALN). As school closure due to RAAC is not accompanied by any government restrictions over social distancing, it may be possible for schools to cater for SEND and ALN pupils by providing in-person access to teaching or support staff at alternative locations. Ensuring that disabled pupils are treated no less favourably as a result of their disability will be critical to help prevent future discrimination claims arising from any adapted teaching arrangements.

Separately, any pupils without access to appropriate IT equipment may need to be provided with this during the closure period.

Extra-curricular trips and activities may still be able to go ahead, albeit there may need to be alternative pick up arrangements if pupils cannot congregate within closed school buildings.

What will this mean for school contracts?

Schools and colleges will need to check the terms of their supplier contracts, for example cleaning or catering, to determine if any provisions cater for government closure orders cancelling the parties’ obligations during the period of the closure (as part of a so-called “force majeure” clause). If not, there may need to be a careful negotiation over how the contract obligations can be put on hold or amended or whether termination provisions are triggered.

Given the passage of time since RAAC was installed, it is unlikely to be possible to bring a successful claim against any third party in relation to the design/installation of RAAC. However, schools and colleges will need to think carefully about how they plan and procure any remedial works to remove and replace unsafe RAAC. Interim mitigation measures, such as the installation of props, may also need to be considered.

What will this mean for staff?

School and college staff, such as teachers, teaching assistants and learning support assistants, may find themselves being asked to work from alternative teaching spaces within buildings that do not have RAAC, or to return to remote ways of working.

Employers should check the terms of staff contracts, handbooks and policies, as they may contain a clause that entitles the employer to change the employee’s place of work, subject to certain limitations. If such a clause does not exist, there may be a ‘flexibility’ or ‘variation’ clause that allows the employer to make changes to certain terms of employment, such as normal place of work, in certain circumstances. If an employer is considering changes to a contract using such clauses, they must still:

  • explain the change they’re considering and the reasons why; and
  • consult with the employee; and
  • consult with the unions as appropriate.

It will also be important to follow the same steps as during the pandemic to ensure that homeworking is appropriate and safe for employees, and that appropriate equipment is available.

How can we help?

We have significant experience of advising public sector bodies on the implications of RAAC and how to manage risks associated with this. We can also assist schools and colleges to navigate the practical duty of care and various legal issues that will arise from closure.

Please contact either Trish D’Souza of our Education team, Kate Howell in our Construction team or Matthew Smith in our Employment team.

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