| SPOTLIGHT |
The High Court has rejected a judicial review claim brought by a City Technology College, which challenged a decision by Ofsted to rate the leadership and management at the school as 'good', rather than 'outstanding'.
In Thomas Telford School v Office for Standards in Education, Children's Services and Schools [2024] EWHC 880 (Admin) Mrs Justice Stacey concluded that although it was “disappointing” that the inspectors were not aware of the special status of City Technology Colleges (CTCs) prior to the commencement of their inspection and initially made two “fairly basic errors” as to both the Exclusions Guidance and Attendance Guidance, the errors were corrected during the course of the inspection process itself.
The claimant, Thomas Telford School (TTS), is a City Technology College (CTC). The freedoms and rules applicable to CTCs in their statutory arrangements are different in some respects to other educational institutions inspected by Ofsted.
At the heart of the school’s complaint was whether the watchdog failed properly to understand the different statutory arrangements and freedoms of CTCs, “with the consequence that they fell into error in their Inspection Report and during the inspection process”, said the judge.
The two areas of concern identified in the inspection by Ofsted (published on 5 July 2023) were the school's approach to recording absences in the attendance register and its behaviour policy and practices.
The grounds brought to the court by the school were:
• Whether the conclusion of "good" for leadership and management at the school in the Inspection Report was a “legally rational conclusion” or if it was based on material errors of law (Ground 1).
• Whether the Inspection complied with the requirements of procedural fairness (Ground 2).
Outlining the facts of the case, Mrs Justice Stacey said the school was established as a City Technology College on 24 September 1990 by a Scheme of Government (SOG) which was approved by the Secretary of State for Education.
In relation to school discipline, the SOG provides:
• “14. (g) The Head shall have jurisdiction over the discipline of the school, subject to the restriction that corporal punishment is not permitted in a City Technology College.
• (h) The Head shall have the power in his (or her) discretion to suspend or expel any student and in the event of expulsion shall invite and give due consideration to representations from the parents of such student and consult the Chairman of the Governors (or if unavailable the Vice-Chairman) before making a final decision.”
The judge said: “TTS operates a disciplinary policy which does not provide for students to be suspended which is a policy of considerable importance to the school and on which it prides itself.
“It has a behaviour policy ("the Behaviour Policy") which sets out the standards expected of students and the steps to be taken should behaviour fall below the expected standards. The Behaviour Policy contains no reference to suspension or temporary exclusion.”
The fact that the statutory Exclusions Guidance does not apply to TTS means that it is not obliged to report suspensions to the local authority, only to report any permanent exclusions.
Although the school is not required by law to apply the Attendance Guidance prepared by the DfE, as a matter of practice TTS adopts and applies the attendance and absence codes for recording any absences from the school set out in the Attendance Guidance.
When the Ofsted inspection visit started on 6 December 2022, the Lead Inspector (LI) was “wrongly under the impression” that the statutory Permanent Exclusion Guidance from Maintained Schools (September 2022) applied to the school. He also wrongly believed that the school was required to follow the Attendance Guidance, said the judge.
Since the LI and his inspectors were at first under the impression that the school was bound to follow the Exclusions Guidance and Attendance Guidance, the LI considered that the school's approach to sending children home were illegal exclusions.
The draft report was issued on 3 January 2022 which rated the school as "outstanding" for quality of education; behaviour and attitudes; personal development; and sixth form provision.
It rated the school as "good" for leadership and management which gave it an overall rating of "good".
Following a factual accuracy check process, Ofsted shared its final report with the school on 23 January 2023. The headteacher lodged a complaint in response to the final report on 27 January 2023 seeking to change the judgement of "good" for leadership and management to "outstanding".
The complaint raised a number of issues. It criticised the manner in which the Inspection had been undertaken and the “frequent inaccurate initial assertions” by the LI that the school was acting illegally. Further, the Lead Inspector and his team's initial failure to understand the special legal status of CTCs was asserted by the school as “a breach of his obligation to prepare adequately for the Inspection”.
The outcome of the complaint was responded to by Ofsted on 30 March 2023. It did not uphold the central complaint nor did it change the assessment of "good" for leadership and management.
However, the wording of the final report was amended and softened adding “greater clarity” to fully reflect the inspection findings, said the judge.
Outlining submissions from the parties, Mrs Justice Stacey said that TTS contended the whole inspection “proceeded on the wrong premise”, and although the error was seemingly corrected during the course of the inspection, the false reasoning infected the whole process.
The school argued that if the inspectors had properly understood the status and powers of a CTC from the beginning, they would have approached the whole exercise differently and asked different questions. This was described as a “fundamental flaw”.
For Ofsted it was submitted that the early misunderstandings about the unique, and now extremely rare, status of CTCs were corrected during the Inspection process and before the inspection team reached its provisional judgments. The rating of "good" rather than "outstanding" was not infected by any misunderstanding of fact or law.
It was contended that the reason why the school could not be rated as "outstanding" in leadership and management “went beyond the technical coding issues and compliance with the Exclusions Guidance”. Instead, the problem was the “shortcomings” in the school's system of recording absences in the attendance register meant that the school leaders could not properly scrutinise patterns of student’s attendance and behaviour.
Analysing the case, the judge said: “Behind the noise of the inspection and the school's understandable fury at the way it was conducted, Ofsted had two legitimate concerns with the school's approach that were not predicated on the misunderstandings of the LI and his inspection team – firstly that it was not possible to ascertain which students were absent for misbehaviour under [the] Behaviour Policy because of the mis-coding of absences and secondly because the Behaviour Policy did not reflect the actual practice in some cases.”
She added: “If one takes the initial errors made completely out of the equation - ignores them utterly - and asks the question: Could the LI and his inspection team rationally and reasonably conclude that there were shortcomings in the absence record keeping process that reduced the overall assessment of the school's leadership and management from "outstanding" to "good"? the answer would be Yes.”
Dismissing grounds 1 and 2, the judge concluded that although it was “disappointing” that the inspectors were not aware of the special status of CTCs prior to the start of their inspection and initially made two “fairly basic errors”, these errors were corrected during the inspection process itself.
She found that the errors over the legal requirements applicable to CTCs were “not relevant” to the criticisms found in the absence reporting process.
She said: “The entire inspection process is well-placed to identify and correct mistakes and misunderstandings […] and in this case it did.
“It was neither irrational or unreasonable for Ofsted to conclude that it represented "good" rather than "outstanding" practice.”
The school was ordered to pay Ofsted’s costs of £42,000.
Lottie Winson
