QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF THE GOVERNING BODY OF UPLANDS JUNIOR SCHOOL||Claimant|
|LEICESTER CITY COUNCIL||Defendant|
|DR TIMOTHY LUCKCOCK||Interested Party|
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Mr C Sheldon QC and Mr S Aughey (instructed by Leicester City Council) appeared on behalf of the Defendant
The Interested Party did not appear and was not represented
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"(1)A maintained school is by virtue of this section eligible for intervention if—
(a)the [local authority] have given the governing body a warning notice in accordance with subsection (2)."
By subsection (2):
"(2)A [local authority] may give a warning notice to the governing body of a maintained school where the authority are satisfied—
(a) ...(b)that there has been a serious breakdown in the way the school is managed or governed which is prejudicing, or likely to prejudice, such standards of performance, or(c)that the safety of pupils or staff of the school is threatened (whether by a breakdown of discipline or otherwise)."
A warning notice is defined in subsection (4) thus:
"(4)For the purposes of this section a "warning notice" is a notice in writing by the [local authority] setting out—
(a)the matters on which the conclusion mentioned in subsection (2) is based,(b)the action which they require the governing body to take in order to remedy those matters,(c)the initial period applying under subsection (1)(b) [in the first instance 15 days], and(d)the action which the [local authority] are minded to take (under one or more of sections 63 to 66 or otherwise) if the governing body fail to take the required action.
(5)The warning notice must also inform the governing body of their right to make representations under subsection (7) during the initial period."
Subsection (9) requires Ofsted to give notice in writing of its decision whether or not to confirm the warning notice to the local authority, the governing body and others.
Subsection (10) provides, interalia, that the time for complying with the notice when a governing body makes representations to Ofsted begins on the day on which Ofsted confirms the warning notice and ends on the 15th working day thereafter.
"The local authority has previously sought to work with the governing body to resolve concerns about the current position of the school. This has included the joint commissioning of a report from an independent investigator. Upon receipt of the draft report on 8 July 2013 (first working day) the governing body's response is inadequate in that their proposed action gives the local authority cause for concern with regard to governors' exercise of their delegated powers."
The letter goes on to set out the history of difficulties between the governing body and the staff. It asserts, and this is not disputed, that:
"Issues in the schools were increased to a significant level at the start of January 2013 and which resulted in a collective grievance from staff against the head teacher and a collective complaint from staff against the governing body. The head teacher launched a grievous against staff, particularly with regard to his senior management team."
There is then reference to the allegations about the headteacher's postings on Facebook and his appearance in a subsequent television interview. There is no need for me to go into the details here. The letter goes on:
"The local authority has sought to actively engage with the school to resolve these issues resulting in an agreement to appoint an independent investigator to investigate the issues referred to above (starting from 2013) and to issue a fact-finding report. Joint terms of reference were provided to the independent investigator. There has been industrial action by staff at the school (including strike action). The local authority has evidence as to falling standards within the school year on year. Provisional results for this year shows there has been a significant drop of 15 percentage points since 2011."
I pause there to observe that the evidence of such a significant drop in attainment gave very serious cause for concern.
"At the meeting the governing body indicated their proposal to suspend four members of staff (and which did not include the head teacher). The suspension of those four members of staff was and remains against the advice of the local authority. The advice of the local authority includes representations that the head teacher should be considered for suspension."
The letter continues in the third numbered paragraph:
"A further explanation of the local authority's concerns in respect of the governing body's proposed suspension of lower ranking staff members opposed to the head teacher in respect of whom, they said, he appears to have caused significant harm."
It was for that reason that the governing body had been asked to consider his suspension.
The local authority "considers that there is insufficient evidence contained within the report (of the independent investigator) that justify the suspension of the four members of staff on the basis of their potential to interfere with the forthcoming disciplinary investigation".
"That the breakdown in the working relationship between staff and the head teacher (and governing body) caused by the implementation and management of change, communication and staff engagement must be taken ultimately as the head teacher's responsibility and he must be held accountable for this and its impact on the day-to-day functioning of the school;" The investigation had further concluded that there had been "such a serious breakdown in working relationships [which would] almost inevitably lead to a degrading of provision and probably a deterioration in standards."
The letter continued:
"The governing body has failed to resolve the issues to the satisfaction of the local authority. Consequently, the local authority has no option but to serve upon you the formal warning notice under Section 60(2) of the Education and Inspections Act 2006."
The letter went on to set out the reasons for the notice and to specify particular concerns.
Finally, at '1' the letter says:
"(1)There has been a serious breakdown in the way the school is managed or governed which is prejudicing, or likely to prejudice, such standards of performance; and/or
(2)The safety of pupils or staff of the school is threatened (whether by a breakdown of discipline or otherwise)."
The warning notice then goes on to require the governing body to undertake actions to:
"(i) Halt the current disciplinary procedure on the grounds that it is not in accordance with the requirements of council policy and potentially is not in accordance with law;
(ii) Reinstate the four suspended members of staff whilst any further investigation and disciplinary procedure is completed in a manner that is lawful and fair. To ensure any such process is compliant with the legal liabilities of the local authority and governors, the local authority will seek to consider appropriate action in relation to suspensions, appoint an independent investigation officer, disciplinary panel and appeals panel.
(iii) Engage and communicate with the local authority and its appointed representatives as appropriate and in a way which enables the local authority and the governing body to discharge its roles and responsibilities, particularly with regard to employment matters."
"(1) Suspend the school's right to a delegated budget;
(2) Appoint an Interim Executive Body (IEB)to act as the governing body, subject to the consent of the Secretary of State; and
(3) Appoint additional governors until such time as an IEB can be established."
The letter also informed the claimant of its right to appeal to Ofsted.
"Serious breakdown in management
It is clear that there is no disagreement between the local authority and the governing body that relationships between staff, the headteacher and the governing body at Uplands Junior School have broken down. Neither side offers any argument or evidence to suggest that the situation is close to resolution. Four members of staff remain suspended.
There is however a clear disagreement as to how the situation at the school should be handled and resolved ...
Ofsted is not in a position to judge whether or not the steps taken by the governing body or their intentions comply with employment law. However, it is clear that there has been a fundamental breakdown in relationships between the governors and the headteacher on the one hand, and members of staff (including senior members) on the other. The fundamental nature of this breakdown is such that it will have an adverse impact on the management of the school. There does not appear to be any prospect of this breakdown being resolved in the near future. The steps that the local authority is requiring the governing body to take are reasonable and proportionate to the issues that Uplands Junior School faces."
Ofsted concluded thus:
"Leicester City Council has provided convincing evidence that there has been a serious breakdown in the way the school is managed or governed which is prejudicing or likely to prejudice standards of performance.
Ofsted ... is satisfied that a warning notice can be issued on the basis of the breakdown in management prejudicing or likely to prejudice the standard of performance alone.
Consequently, the governing body's appeal is not upheld and the warning notice is confirmed."
"We are not satisfied that governors have met the requirement to engage with us. Their failure to do so to date does not demonstrate a commitment to doing so in the future, which will be essential if we are to resolve the ongoing problems with leadership and management, and industrial relations, which continue to have a detrimental effect on the quality of education for children at the school."
"The specific (but not exclusive) focus of the third requirement was on employment matters as this was obviously the area in which the particular problems at the school had arisen. It was plain and obvious to the Claimant (or should have been) that it should engage and communicate with the Council in respect of employment matters; as well as other more general matters that it would reasonably know would be of concern to the Council, such as matters involving the proper governance of the claimant."
I agree. In my judgment, therefore, ground 1 of the challenge must fail. Before leaving that ground I note that Ofsted is the expert body tasked with inspection of schools and upholding of standards within schools. It upheld the warning notice and did not appear to have any difficulties in understanding the words of the third requirement.
"To assist you in understanding what would constitute reasonable compliance or compliance to our satisfaction, I will expand on a point I made in our meeting on Monday, 9th September 2013.
Compliance is not just about ticking the boxes within the statutory compliance period. We need to be confident that governors will act, and continue to act in a way that addresses the breakdown in relationships and leadership in the school. Specifically, we need to know that governors have the capacity to govern the school and secure good leadership of the school to prevent continued disruption of children's education. In the past 12-18 months, the school has been subject to disruption due to industrial action, the entire staff have submitted a grievance against the Governing Body and the head teacher, and the head teacher had also lodged grievances. In addition, there has been 3 whistleblowing disclosures.
A school cannot thrive and improve in circumstances where there has been such a breakdown in relationships and trust, and management of change has been so poorly led that it has resulted, inevitably, in a sustained deterioration of the quality of education for the children.
In the interests of the school and the children, governors need to demonstrate to us that they can and will engage productively with us to address the fundamental issues of leadership and management, and working relationships in the school.
In any school, governors have significant powers delegated to them. There is a direct link between how governors discharge their powers and their role, and the quality of education provided for children. Governors are accountable to the Local Authority for the quality of what is provided in schools and for educational outcomes. Where we are not satisfied that governors are discharging their responsibilities effectively to secure good education outcomes, our duty is to intervene.
Both Ofsted and the Department of Education are clear that they expect Local Authorities to intervene. Unless we are satisfied that you will, and have the capacity to engage with us on the issues set out here, the school will be subject to intervention next Tuesday 17th September 2013. This means that we will use our statutory powers to:
(i) Remove delegation;(ii) Appoint additional governors; and(iii) Begin the process of establishing an IEB.
We cannot write the action plan for you or give you a detailed list of actions required to comply satisfactorily. As I've attempted to explain here, and in March, we need to be satisfied that you have the capacity to make appropriate judgments; take appropriate decisions and implement appropriate actions, to remedy the issues at the school and secure improvement. This includes appropriate actions and judgments as to how and when to engage with the LA as well as exercising the autonomy of the Governing Body in the interests of the school." (I have adopted Mr Sheldon's underlining).
"The defendant's notice to the claimant that it was suspending the delegated budget, emailed at 1.27pm on 18 September 2013, stated that 'whilst delegation is suspended the local authority will seek to continue to engage with the governing body on matters relevant to the school but will hold the ultimate authority to make decisions'."
He submits that this can only be read as a clear and binding promise to consult before exercising any of its powers. Mr Sheldon submits that the language is not sufficiently clear to amount to an unambiguous promise to engage or an unambiguous promise to consult.