The government is facing a legal challenge over guidance that says lower-income pupils who don’t have access to digital devices should attend school during the pandemic while their wealthier peers remain at home. 

On Wednesday, education secretary Gavin Williamson confirmed that pupils without access to technology such as laptops can attend school during the third national lockdown.

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Classrooms are also open for vulnerable children and the children of key workers, and headteachers this week expressed concern that the number of pupils coming in because they had no laptop would undermine the lockdown. 

Now, the Good Law Project has launched a legal challenge to ensure that lower-income pupils and those from black, Asian and minority- ethnic (BAME) backgrounds, who are at higher risk from Covid-19, are not being forced into schools unsafely.

In April 2020, during the first lockdown, the Good Law Project launched a legal challenge against the government to make sure pupils could learn online. This litigation was pulled after the Department for Education said it would provide laptops and wireless routers to children on the wrong side of the digital divide.

The Good Law Project has said that while Mr Williamson has said 1 million laptops have been ordered, only 560,000 have been delivered and there is still a significant shortfall, given that Ofcom estimates 1.7 million students have no devices and 880,000 live in homes with only a mobile internet connection.

“But instead of putting his hand in his pocket to remedy the issue, education secretary Gavin Williamson issued new guidance saying children who cannot learn remotely “due to a lack of devices…should attend school or college”, the charity says.

“Good Law Project believes by forcing poorer kids to go into schools, government is endangering families and communities who it knows are already exposed to higher Covid-19 risks. 

“Parents should not have to choose between the education of their child and their family’s health.”

The challenge is based on the legal grounds of legitimate expectation - as Gavin Williamson promised in April that education sites would be exempt from data charges, and a breach of the Equality Act as there is no evidence that Mr Williamson conducted an inequalities impact assessment.

It is also based on the government’s failure to take into account material considerations - in particular that the new guidance makes no mention of families without access to data, while the government has not collected accurate statistics on how many children are without devices. 

Jolyon Maugham QC, director of the Good Law Project, said: “We all know that health outcomes for working-class and BAME families are especially poor.

“Forcing children of those families to go into school at the height of a pandemic because government can’t or won’t provide devices for them looks suspiciously like sacrificing their health to protect its reputation.”