Dealing with Coronavirus: Local Authority Powers in respect of School Children, the Decontamination of Things and Premises, the Control of Dead Bodies, and Requesting Co-operation

Introduction

 In the interests of public health, Local Authorities have powers in respect of school children, the decontamination of things and premises, the control of dead bodies, and to request co-operation. These powers are found in the Health Protection (Local Authority Powers) Regulations 2010 (‘the 2010 Regulations’) (in force 6 April 2010) made under Part IIA of the Public Health (Control of Diseases) Act 1984 (‘the 1984 Act’).  The 2010 Regulations considered here are those that apply to England. How do they work and how do they relate to other powers?

These powers are adjacent to and separate from the powers of Local Authorities to seek orders from Magistrates to control persons, things, and premises, see my blog post Magistrates’ Powers to Make Orders to Control People, Things, and Premises to Reduce Infection Risk, and from local authority enforcement of public health regulations, see my blog posts UK Government powers to compel people to stay at home: How far can Public Health Regulations go to defeat Coronavirus? and Summary of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (from 1 pm on 26 March 2020).

School Children – Requirement to Stay Away from School

 Local Authorities have power to require a child (under 18 years of age) to be kept away from school.

Where a local authority is satisfiedin relation to a child that:

  • The child is or may be infected or contaminated
  • the infection or contamination is one which presents or could present significant harm to human health
  • there is a risk that the child might infect or contaminate others
  • it is necessaryto keep the child away from school in order to remove or reduce that risk; and
  • keeping the child away from school is a proportionate response to the risk to others presented by the child

the local authority may by serving notice on the child’s parent require that parent to keep the child away from school. A local authority may serve consecutive notices.

The bar for serving a notice is low and can be as low as where it is satisfied that a child may be infected, could present significant harm to human health, and there is a risk they might infect others. Of course, it must also be judged necessary and proportionate to keep the child away from school. There would need to be some evidence considered for a local authority to be satisfied that it was so. The quality and content of that evidence would impact upon whether or not a local authority had acted lawfully in reaching its judgment.

The notice must include the following information:

  • the date from which the requirement commences
  • the duration of the requirement (up to a maximum of 28 days)
  • why the requirement is believed to be a necessary and proportionate measure
  • the penalty for failing to comply with the notice; and
  • contact details for an officer of the local authority who is able to discuss the notice

The local authority must as soon as reasonably practicable after serving notice inform the headteacher of the child’s school:

  • that it has served such a notice in relation to the child; and
  • of the contents of that notice.

The Parent may request that the local authority review the notice at any time before the requirement lapses. If they do so, the local authority:

  • must review the notice within 5 working days beginning with the day on which the request is made where the parent is requesting a review in respect of that notice for the first time; or
  • may review the notice in the case of all other requests

The local authority must inform the parent and the headteacher of the child’s school of the outcome of any review it conducts as soon as reasonably practicable after the review is concluded.

A local authority may varyor revokea notice. It must as soon as reasonably practicable after varying or revoking a notice inform the parent and the headteacher of the child’s school that the notice has been varied or revoked and, if varied, the nature of the variation.

A local authority must inform the parent and the headteacher of the child’s school as soon as reasonably practicable where a notice has expired and no further notice is to be served.

It is a criminal offence for the parent to fail without reasonable excuse to comply with a notice served) or varied.

Any person who commits an offence under this regulation is liable on summary conviction to one or both of:

  • a fine not exceeding level 2 on the standard scale
  • a further fine not exceeding an amount equal to 50% of level 1 on the standard scale for each day on which the default continues after conviction

Requiring a parent to keep a child away from school interferes with the rights of the child, including as regards their best interests, the right to education, the right to respect for private life, freedom of assembly, and freedom of movement. The limitation of such rights in the public interest may well be justified during a pandemic but individual cases will be fact sensitive both as regards the evidence in relation to the child concerned, and the wider risks to public health at the time the notice served.

School Children – Requirement to Provide Details of Children Attending School

 Local Authorities have power to require provision of details of children attending school. By serving notice on a headteacher of a school in its area, a local authority may require that headteacher to provide it with a list of the names, addresses and contact telephone numbers for all the pupils of that school, or such group of pupils attending that school as it may specify.

A local authority may only serve such a notice where it is satisfied that:

  • a person (note, not just a child but any person) who is or has recently (how recently?) been on the school’s premises isormay be infected or contaminated
  • the infection or contamination is one which presentsor could present significant harm to human health
  • there is a risk that the person may have infected or contaminated pupils at the school
  • it is necessary for the local authority to have the list in order to contact those pupils with a view to ascertaining whether they are or may be infected or contaminated; and
  • requiring the list, and contacting those pupils which may be infected or contaminated, is a proportionate response to the risk presented by that person

 

The bar for serving a notice is low and can be as low as where it is satisfied that  a person has recently been on the school’s premises may be infected, the infection could present significant harm to human health, and there is a risk they might  have infected school pupils. Of course, it must also be judged necessary and proportionate to require the list. There would need to be some evidence considered for a local authority to be satisfied that it was so. The quality and content of that evidence would impact upon whether or not a local authority had acted lawfully in reaching its judgment.

The notice must:

  • specify a time limit for meeting the requirement
  • specify an address where the list is to be sent
  • provide contact details for an officer of the local authority who is able to discuss the notice

It is a criminal offence for a headteacher to fail without reasonable excuseto comply with a notice served. Any person who commits an offence under this regulation shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale.

Requiring a list of names of children attending school may interfere with the rights of the child, including as regards their best interests, the right to education, the right to respect for private life, freedom of assembly, and freedom of movement.  It may so as the provision of a list of names may be a precursor to, or part parcel of, action than ends with serving a notice on a parent requiring them to keep a child away from school. The limitation of such rights in the public interest may well be justified during a pandemic but individual cases will be fact sensitive both as regards the evidence in relation to the child concerned, and the wider risks to public health at the time the notice served.

Disinfection or Decontamination of Things

 A local authority may disinfect or decontaminate, or cause to be disinfected or decontaminated, a thing where requested to do so by the owner of the thing. It may charge the owner for the disinfection or decontamination of the thing if the owner is made aware of the charge prior to disinfection or decontamination being carried out and agrees to pay it. The charge must not exceed the cost incurred by the local authority in carrying out the disinfection or decontamination.

Where a person who has custody or control of a thing so requests, a local authority may disinfect or decontaminate, or cause to be disinfected or decontaminated, a thing, if the local authority is reasonably satisfied that the financial value of the thing will not be reduced as a consequence of the disinfection or decontamination. The local authority may charge the person with custody or control for the disinfection or decontamination of the thing if they are made aware of the charge prior to disinfection or decontamination being carried out and agree to pay it. The charge must not exceed the cost incurred by the local authority in carrying out the disinfection or decontamination.

These powers are available to a local authority where an owner or person with custody or control requests decontamination or disinfection. They are to be distinguished from a local authority’s ability to apply to a magistrate for an order to disinfect or decontaminate a thing, see my blog post Magistrates’ Powers to Make Orders to Control People, Things, and Premises to Reduce Infection Risk.

Disinfection or Decontamination of Premises

 A local authority may disinfect or decontaminate, or cause to be disinfected or decontaminated, premises where requested to do so by the owner of the premises. It may charge the owner for the disinfection or decontamination of the premises ifthe owner is made aware of the charge prior to disinfection or decontamination being carried out and agrees to pay it. The charge must not exceed the cost incurred by the local authority in carrying out the disinfection or decontamination.

Where the tenant of a premises so requests, a local authority may disinfect or decontaminate, or cause to be disinfected or decontaminated, premises if the local authority is reasonably satisfied that the financial value of the premises will not be reduced as a consequence of the disinfection or decontamination. It may charge the tenant for the disinfection or decontamination of the premises if the tenant is made aware of the charge prior to disinfection or decontamination being carried out and agrees to pay it. The charge must not exceed the cost incurred by the local authority in carrying out the disinfection or decontamination.

These powers are available to a local authority where an owner or tenant of premises requests decontamination or disinfection. They are to be distinguished from a local authority’s ability to apply to a magistrate for an order that to disinfect or decontaminate premises, see my blog postMagistrates’ Powers to Make Orders to Control People, Things, and Premises to Reduce Infection Risk.

Dead Bodies: Restriction of Contact and Access, and Relocation

 Contact on Premises

 As regards contact with a dead body, a power arises where a local authority is satisfied that:

  • a dead body is or may be infected or contaminated
  • the infection or contamination is one which presents or could present significant harm to human health
  • there is a risk that the dead body might infect or contaminate people
  • it is necessary to restrict contact with the dead body in order to remove or reduce that risk; and
  • prohibiting any person from having contact with the dead body is a proportionate response to the risk presented by that dead body.

The local authority may serve on the person having charge or control of the premises in which the dead body is located a notice prohibiting any person from having contact with the dead body. On receipt of a notice that person must arrange for a copy of the notice to be conspicuously displayed near the dead body without delay.

The notice must include:

  • a statement to the effect that contact with the body near which the notice has been displayed is prohibited
  • a statement to the effect that breach of the prohibition is a criminal offence
  • contact details for an officer of the local authority who is able to discuss the notice; and
  • the legal authority for the prohibition

It is a criminal offence if, without reasonable excuse:

  • that person fails to arrange for a copy of the notice to be so displayed
  • any person removes or defaces a notice displayed; or
  • any person fails to comply with a notice so displayed

However, as regards a person who fails to comply with a notice so displayed, an offence is not committed if:

  • the person has the local authority’s consent to have contact with the dead body; or
  • the person is exercising the functions of a coroner or is acting under the authority of a coroner.

Any person who commits an offence under this regulation is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Access to a Room

As regards access to a dead body, a power arises where a local authority is satisfied that:

  • a dead body is or may be infected or contaminated
  • the infection or contamination is one which presents or could present significant harm to human health
  • there is a risk that the dead body might infect or contaminate people
  • it is necessary to restrict entry to the room in which the dead body is located in order to remove or reduce that risk; and
  • prohibiting any person from entering the room in which the dead body is located is a proportionate response to the risk presented by that dead body.

The local authority may serve on the person having charge or control of the premises in which the dead body is located a notice prohibiting any person from entering the room in which the dead body is located.

On receipt of a notice served that person must arrange for a copy of the notice to be conspicuously displayed at each of the entry points to the room without delay.

The notice must include:

  • a statement to the effect that entering the room in which the dead body is located is prohibited
  • a statement to the effect that breach of the prohibition is a criminal offence
  • contact details for an officer of the local authority who is able to discuss the notice; and
  • the legal authority for the prohibition

It is a criminal offence if, without reasonable excuse:

  • that person fails to arrange for a copy of the notice to be displayed at each of the entry points to the room
  • any person removes or defaces a notice so displayed; or
  • any person fails to comply with a notice so displayed

However, as regards any person who fails to comply with a notice so displayed, an offence is not committed if:

  • the person has the local authority’s consent to enter the room in which the dead body is located; or
  • the person is exercising the functions of a coroner or is acting under the authority of a coroner

Any person who commits an offence under this regulation is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Relocation of Dead Bodies

 As regards the relocation of a dead body, a power arises where a local authority is satisfied that:

  • a dead body is or may be infected or contaminated
  • the infection or contamination is one which presents or could present significant harm to human health
  • there is a risk that the dead body mightinfect or contaminate people
  • it is necessaryto relocate the dead body in order to remove or reduce that risk; and
  • relocating the body is a proportionate response to the risk to people presented by the dead body in its current location

The local authority may relocate, or cause to be relocated, the dead body to a place where it considers that the risk of the dead body infecting or contaminating people is reduced or removed. However, it may not relocate, or cause to be relocated, the dead body if:

 

  • a coroner has jurisdiction over the dead body; or
  • it has failed to take reasonable stepsto inform the person with charge or control of the premises where the dead body is located of its intention to take action.

 

Any person having charge or control of premises in which a dead body is located must co-operate with a local authority that intends to take action. It is a criminal offence for any person to fail without reasonable excuse to comply. Any person who commits an offence is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

General Considerations in Respect of Dead Bodies

The bar for serving a notice or relocating a body is low and can be as low as where it is satisfied that the dead body may be infected, the infection could present significant harm to human health, and there is a risk they might infect people. Of course, it must also be judged necessary and proportionate to take such action. There would need to be some evidence considered for a local authority to be satisfied that it was so. The quality and content of that evidence would impact upon whether or not a local authority had acted lawfully in reaching its judgment.

Restricting contact with or access to a body, or relocating it, may interfere with the dignity to be accorded to human remains as part of the right to respect for private life. The limitation of such rights in the public interest may well be justified during a pandemic but individual cases will be fact sensitive both as regards the evidence in relation to the child concerned, and the wider risks to public health at the time the notice served.

The powers that are available to a local authority in respect of dead bodies are to be distinguished from a local authority’s ability to apply to a magistrate for an order in respect of things (including the power to seize or retain dead bodies), see my blog post Magistrates’ Powers to Make Orders to Control People, Things, and Premises to Reduce Infection Risk .

Requests for co-operation for health protection purposes

By serving notice on them, a local authority may request any person or group of persons to do, or refrain from doing, anything for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination which presents or could present significant harm to human health. The notice must provide contact details for an officer of the local authority who is able to discuss the notice. The local authority may offer compensation or expenses in connection with its request.

Although this power is not further defined in the 2010 Regulations, it would appear to be have greatest applicability in respect of requests as to movement (note the reference to persons and groups of persons), as well as in relation to the use of things and premises (note the reference to compensation and expenses).

 The Scope for Making Regulations

The 2010 Regulations are made under the power in Part IIA of the 1984 Act for a Minister to make public health regulations to make provision for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in England and Wales, whether from risks originating there or elsewhere, see my blog post UK Government powers to compel people to stay at home: How far can Public Health Regulations go to defeat Coronavirus?.

Such public health regulations may make provision for:

  • conferring on local authorities or other persons functions in relation to the monitoring of public health risks, and
  • imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health, including a requirement that a child is to be kept away from school

The 2010 Regulations are made in the exercise of this power.

As regards the enabling of the imposition of restrictions or requirements on or in relation to persons, things or premises, in public health regulations the decision-maker must consider the restriction or requirement to be proportionate to what is sought to be achieved by its imposition. The 2010 Regulations make provision for that consideration where a restriction or requirement is imposed.

Finally, public health regulations may, among other things, confer functions on local authorities, create criminal offences, permit the levy of charges, and permit the payment of expenses. The 2010 Regulations do all these things.

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