Thomas Francis Academy v Secretary of State [2007] EWCST 939(IS) (11 January 2008)

Thomas Francis Academy
-v-
Secretary of State
[Section 166(1) Education Act 2002 appeal]

[2007] 939.IS

-Before-

His Honour Judge David Pearl
(President)
Mr David Braybrook
Ms Judith A Wade

DECISION

PRELIMINARY MATTERS

1.	The Appellant, Thomas Francis Academy (proprietor: Ms P Ferreira) appealed against the determination of the Secretary of State that it should be removed from the Register of Independent Schools in England. The determination was made on 24th January 2007 under section 165 of the Education Act 2002. The determination letter reads as follows: “I must inform you that the Secretary of State considers there is a serious and sustained failure to meet the required standards and to provide suitable education for the pupils. Further, there is a failure to safeguard pupil’s welfare, health and safety and to provide suitable staff and premises. Additionally, there is a failure to provide information to parents and other interested parents. For these reasons, the Secretary of State has decided that the school must close as soon as is practicable, and I am, therefore, directed to serve on you the enclosed Determination under section 165(7) of the Education Act 2002 which requires the school to close by 28 February 2007”. 
2.	The Appellant was informed of the right of appeal under section 166 Education Act 2002 to the Care Standards Tribunal. Both the determination letter and the accompanying Determination were signed by Ms Penny Jones the Deputy Director of the School Formation and Infrastructure Group, and served on Ms P Ferreira, the Proprietor of the Thomas Francis Academy.
3.	The School exercised the right of appeal by way of a letter and Appeal Form dated 21st February 2007. The Appellant was represented at this time by Needleman Treon, Solicitors. The letter from Needleman Treon states that the Appellant “does not seek the appeal to be determined on written evidence alone.”
4.	The Secretary of State responded to the appeal by way of a Response Form dated 26th March 2007. The Response was drawn up by Mr J Hyam of Counsel and contains the following three reasons for the opposition to the appeal:
(i)	on the basis of the evidence available at the time of the Secretary of State’s decision on 24th January 2007, the School was, in the clear opinion of the Ofsted inspectors, failing to meet the required standards for registration. There is no justification for the Tribunal interfering with that decision on appeal.
(ii)	Even if it were proper to consider the post-decision information provided with the Appellant’s appeal notice, the School, in the opinion of Ofsted and the Secretary of State, notwithstanding that further information, still fails to meet the requirements for registration.
(iii)	In the light of the very substantial opportunity that the School has already had to remedy its failings, and the purpose of the Regulations which is to ensure that proper education standards are met in the independent sector, the Secretary of State’s determination was entirely appropriate on the facts and should be upheld by the Tribunal.
5.	The Respondent invited the Tribunal to consider, prior to the substantive determination of the appeal, whether an appeal under section 166 Education Act 2002 is a supervisory review of the Secretary of State’s exercise of discretion, or an appeal on the merits; and, if the latter, whether post-decision evidence is relevant to the determination of the appeal. 
6.	The Tribunal held a Preliminary Hearing in accordance with Regulation 6 on 9th July 2007 in order to deal with Directions and to provide a Ruling on the issues raised by the Secretary of State as set out in his Response. The Tribunal decided, in a determination promulgated on 16th July 2007, that a section 166 appeal is a full merits appeal and that it may consider post-decision facts. The Tribunal accordingly disagreed with Mr Hyam, who represented the Secretary of State on that day, and decided that both the Appellant and the Respondent can rely on post-determination material, and that the appropriate approach would be for the Respondent to conduct a further inspection, and for the Appellant to be at liberty if so advised to comment on the further inspection.
7.	It is relevant to mention that Ms P Ferreira (supported by her colleagues) appeared in person on that date. By an email dated 5th July 2007, Needleman Treon had sought an adjournment of the Preliminary Hearing. The letter stated: “We have received a written request from our client this afternoon (5th July 2007) who has expressed concern that Counsel is yet to be briefed to represent the school and they have requested that we in turn ask for an adjournment of 4-6 weeks to enable that to take place…” The adjournment was refused by way of a Direction dated 5th July 2007. The Direction states: “The adjournment is refused. This matter has been set down as long ago as 23rd April 2007. The date was fixed in consultation with the Appellant’s solicitors (Needleman Treon) and by letter dated 20th April 2007, Needleman Treon confirmed that he would be available on 9th July 2007.”
8.	In the event, Ms Ferreira appeared at the Preliminary Hearing in person, and the decision of the Tribunal, to the effect that the appeal was a full merits appeal and that the Tribunal may consider post-decision facts, was a decision against the Secretary of State’s primary submission and in the Appellant’s favour.
9.	The Order dated 10th July 2007 set out detailed Directions in accordance with the Tribunal Regulations relating to exchange of documents, the exchange of witness statements, and providing leave to the Secretary of State to conduct a further inspection early in November 2007, and for the Appellant, if so advised, to serve a Response. The case was set down for a hearing commencing on 17th December 2007 with a time estimate of five days. 
10.	The Directions were amended subsequent to a hearing on 24th September 2007, when Mr P Doggart of Treasury Solicitors represented the Respondent and Ms K Thomas, the headteacher at the school, appeared on behalf of the Appellant.  The timetable for the exchange of documents and witness statements was amended. The Direction relating to leave to conduct a further inspection in early November 2007, with leave to serve a Response, was repeated. The parties were reminded that the case had been set down as a fixture for five days commencing on 17th December 2007. The date of the Amended Directions Order is September 24th 2007.
11.	There was a Further Amended Direction Order dated 4th October 2007. An email had been sent on behalf of the Appellant by Udu Emmanuel Edada of Emanuel and Co, Solicitors dated 4th October 2007. The email sought a further extension of two weeks for the exchange of documents “in order to prepare for exchange of documents and to familiarise myself with this case.” The Directions dated 24th September 2007 were amended as requested. Paragraph 3 of the Directions Order dated 4th October 2007 reminds both parties again that the case is set down as a fixture for five days commencing on 17th December 2007. 
12.	There was yet a further amendment to the dates for exchange of documents and witness statements, subsequent to a telephone conference on 5th November 2007. The Respondent was Represented by Mr Doggart, and the Appellant was represented by Mr Edada of Emmanuel and Co. The Further Amended Directions Order yet again repeats the date of the fixture. The Appellant was reminded of the power available to the Tribunal under section 166(5) of the Education Act 2002.
13.	At the hearing on 17th December 2007, Mr J. Hyam of Counsel appeared on behalf of the Respondent. Mr L.J. Pocock of Counsel appeared on behalf of the Appellant, instructed by King and Co, Solicitors. This firm had written to the Tribunal by letter dated 12th December 2007 stating that they were now representing the Appellant. 
14.	Mr Pocock made an application to “strike out” the Respondent’s Response. The basis of his application was as follows. In the Record of Monitoring Evidence by Mr Tom Smith, an Additional Inspector (AI) there is the following summary  based on his inspection visit of the 28th September 2006: “There is no indication of capacity to improve and thereby meet the minimum requirements for registration.” The School was advised of this by letter dated 9th November from Ms S Lidster of the Independent Education and Boarding Team. The School was told that there would be a further visit towards the end of the term. In the Record of Monitoring Evidence by Mr George Derby, an AI based on his visit of the 13th December 2006, the final page contains the following statement: “Comments for inclusion in official letter (at DfES discretion) ‘The School has not demonstrated that it has the capacity to improve.” 
15.	Accordingly, Mr Pocock pointed to the Witness Statement of Ms Penny Jones prepared for these proceedings, which at paragraph 15 refers to the December 2006 visit and states: “In December 2006, Ofsted reported some improvements but confirmed that 19 of the 37 failings found in November 2005 still remained, as follows…:” Mr Pocock submitted that as 18 of the failings had been “put right” it was incorrect to state that there was no capacity to improve; and that the situation had improved further, subsequent to the change of premises as reported by Mr George Derby in his inspection report of the School dated 7th-8th November 2007. Mr Pocock submitted that the decision based on “no capacity to improve” was plainly wrong and therefore the Response should be struck out.
16.	Mr Hyam, in response, submitted that there was no merit in this application. First, he submitted that Mr Pocock was raising issues of fact, and it was not appropriate that these issues should be determined by way of a summary application, without evidence. In any event, he submitted that the case showed that at each inspection there had been serious failings in a number of categories, not simply relating to premises; and that Mr Pocock’s concerns were matters which required testing at the substantive appeal.
17.	We agree with Mr Hyam on his submissions. There is, however, a further reason why Mr Pocock’s submission is bound to fail. There is no provision in the Tribunal’s Regulations that allows for a Response to be struck out. Regulation 4A deals only with applications to Strike Out appeals or applications for leave to appeal. The Tribunal is a creature of Statute and it must comply with the Regulations as approved by Parliament. It cannot invent procedures that do not exist. Furthermore, this Tribunal does not consider that the absence in the Regulations of a “strike out procedure” of a Response document, is in any way a breach of Article 6 of the European Convention on Human Rights. The Appellant has brought an appeal, the Respondent has served a Response to this appeal, and the Tribunal must now decide, on the basis of the evidence, whether the Respondent (on whom the burden of proof rests) has proved to us that the Determination to close the School was appropriate both in law and based on the facts. 
18.	Mr Pocock submitted further, an argument based on abuse of process.  If we understood him correctly, he argued that the Secretary of State had acted in bad faith in arranging a visit for 6th November 2007, when the School had just moved premises. We reject this submission. First, the date of the visit in early November 2007 was a date set down by the Tribunal and was known to the School since July 2007. Secondly, the visit was postponed for one day, and the School was functioning and therefore a visit was permissible under the Education Act 2002.  Mr Pocock stated that there were 42 days from 6th November and the date of the hearing and the visit could have taken place later. We do not accept this submission. The dates were set down in July 2007, and at the telephone conference on 5th November 2007, there was no indication given by the Solicitor representing the Appellant at that time of any problem relating to the inspection due to take place shortly, and indeed no application was made for an adjournment of the inspection. The abuse of process submission has no merit.
19.	Mr Pocock then applied for an adjournment, on the basis, to use his phrase “that he was not up to speed.” The Tribunal refused an adjournment generally. The Tribunal must apply Regulation 7(6), in that the hearing shall not be adjourned unless satisfied that refusing an adjournment would prevent the just disposal of the case. 
20.	The Tribunal, however, was anxious to ensure that the Appellant had an opportunity either of appearing in person (as she had done at the Preliminary Hearing) or for Mr Pocock to “get up to speed.” We decided therefore not to proceed on the first day but to adjourn to 10.30am on the third day of the hearing, in order to provide Mr Pocock with an opportunity for the remainder of the first day and the entirety of the second day to familiarise himself with the documents in the case. The case had been set down for five days, and we have no reason to believe that Mr Pocock was unaware of the time estimate for the case. 
21.	We decided not to exercise our powers under section 166(5). We accepted Mr Hyam’s submission that section 166(5) was not appropriate in this case. He submitted that this case is based on breaches of regulations rather than a risk of serious harm, which would have enabled the Tribunal to provide by order that the School be regarded as not registered until it determines the appeal. 
22.	We resumed the hearing on Wednesday 19th December 2006 at 10.30am. Mr Hyam of Counsel appeared on behalf of the Respondent. The proprietor of the School was not present, and no one appeared on the School’s behalf. On the Monday, in addition to Mr Pocock of Counsel, Ms Thomas, the headteacher, and Ms Campbell, a teacher, had been present; and we have no doubt but that both the professionals instructed by the School, and the proprietor of the School would have known of the decision to proceed with the case on the Wednesday 19th December.
23.	We adjourned briefly to arrange for a member of the Tribunal staff to contact King and Co, the Solicitors on the record. Phone calls were made to the telephone numbers on the letter head, but the staff received no reply. An email was sent informing King and Co that the appeal was proceeding, and asking them if there was a reason why the Tribunal should not inform their professional body that, contrary to their professional responsibility, they had failed to appear without any explanation. No reply has been received. A copy of this determination drawing attention to this paragraph will be sent to the professional bodies responsible for the discipline both of the solicitors’ profession (in relation to King and Co) and the barristers’ profession (in relation to Mr L.J. Pocock of Chancery Chambers).

THE HEARING

24.	We proceeded to hear the appeal at 11.10am on Wednesday, 19th December 2007. We heard evidence from Ms Penny Jones and Mr George Derby. Ms Jones confirmed in particular the evidence contained in paragraph 13 of her witness statement. This reads as follows: “In November 2005 the school received a full Ofsted inspection under s 162A of the Education Act 2002. The School was found to have failings under each of the seven standards but most particularly in Standard 1 – the quality of the educational provision, Standard 3 – the welfare, health and safety of pupils and Standard 4 – the suitability of the proprietor and staff. An action plan was provided by the School on 17th February 2006 [In fact it is dated 10th February 2006] but when evaluated by Ofsted it was found to be of very poor quality. It did not specify the steps to be taken to meet the standards or the projected timeframe as required by section 165(4). Consequently a formal notice was issued on 24th February 2006 under section 165(3) of the Act which required the School to submit a fresh action plan. Although much improved, the fresh plan [which was submitted on 27th March 2006, although incorrectly dated 23rd February 2006] was not wholly acceptable, and it was felt that, with a copy of the full Ofsted evaluation advice, the School should have further time to address the failings. Consequently, the School was notified of Ofsted’s comments on 8th September 2006 and told that Ofsted would return to the School that term to check that the action plan had been implemented…” 
25.	The Tribunal was concerned by the gap in the response from the Department between March when the fresh action plan was sent to the Department and September 8th 2006 when the School was notified of Ofsted’s comments on the action plan. Ms Jones accepted in her evidence, both in chief and by way of answers to detailed questions from members of the Tribunal, that the gap of six months was an administrative oversight. We wish to draw the Respondent’s attention to this failure, and whilst accepting that 2006 was the first full year that the Department was working with the detailed and quite complex provisions of the Education Act 2002, it was most unfortunate that systems were not in place to deal more expeditiously with a case load that, although quite substantial, should have been managed more efficiently by the Department. 
26.	Ms Jones told the Tribunal that Ofsted was furnished with a list of 25 schools early in September 2006 that required an inspection, and that the Department did not “micro-manage” Ofsted’s inspection dates. This also was unfortunate, because the letter setting out the acceptance of the action plan with modifications (the letter served on the Appellant by virtue of section 165(5)(b) Education Act 2002) is dated 8th September 2006, and the inspection took place on 13th September 2006. 
27.	The six month gap between the submission of the revised action plan and the acceptance of that action plan but with modifications, and the inspection visit just five days later, gave the Tribunal cause for concern. We were not impressed by Ms Jones’ answer to a question from the Tribunal that the Department had “attempted to fit what Thomas Francis had produced into what is contemplated by the legislation.” We would hope that lessons will have been learnt by the Department in the light of its experience in this case, and that a much more proactive engagement is made with schools who fall so far below what is expected of them under the Regulations.
28.	However, in this case, we were reassured to some extent by the fact that by a  letter dated 9th November 2006, the Department wrote to the School enclosing the Record of Monitoring Evidence Advice from the inspection of 28th September 2006, and provided the School with an opportunity to respond quickly during the remainder of the term and to justify the view of the School that it could improve quickly. In effect this letter is really the follow up to the paragraph in the letter from Ms Lidster dated 8th September 2006 where the School is informed “Ofsted will be re-inspecting in the autumn term to report to the Department on whether the School has finally taken the required steps to meet the regulatory standards.” Ms Jones accepted that the School does need at least three months to institute an action plan, and that the inspection which was important for the Department was the one “towards the end of the term.”
29.	That inspection took place on 13th December 2006, when Mr George Derby went to the School to follow up “the progress made by the School following the inspection visit which took place in September 2006.” Ms Jones said in evidence that she believed that the three month period between the September 2006 inspection and the December 2006 inspection was sufficient time for the School to “pull itself together”. We are inclined to agree, and thus it is the 13th December 2006 inspection which is of importance to us when considering the appeal in this case. 
30.	Mr Derby recommended that the School be deregistered, in that it had not demonstrated that it had the capacity to improve. Ms Jones, in her evidence before us, said that having read the 13th December 2006 report, the decision was taken to de-register the School. She said that the underlying concern was the failure of leadership and management, and that the School was run in an inconsistent and chaotic fashion. 
31.	Mr Derby gave evidence to the Tribunal.  He said that the key role that inspectors perform in monitoring visits is to evaluate progress in relation to the Regulations that have not been met.
32.	Mr Derby was the inspector who visited the School in November 2007 pursuant to the Directions of the Tribunal. He said in evidence before us that the accommodation had improved, but that there were still issues surrounding the accommodation. We were particularly concerned about the inadequate  arrangements for the toilets and also the presence on the premises of people not connected with the school for whom CRB checks were not available. Mr Derby said that the head teacher simply does not understand the Regulations that she is required to comply with. He said it was unclear how many staff there were, that the staff were not sure how old the children were, that the lesson plans, although they had improved slightly, were still too general, that the head teacher could not provide any schemes of work, and that the School’s policies were not their own. For example, in relation to Special Educational Needs, he said that appeared that the policy belonged to a school in Southampton. 
33.	The Tribunal asked Mr Derby a number of questions arising out of the witness statement of Ms Karlene Thomas. This statement was undated, but it was agreed that it was served shortly before the inspection in November 2007. Mr Derby did not disagree with Ms Thomas’ statement in paragraph 2 that the School plays a vital role in the local community, for example giving and receiving respect, taking part in local events, and community performance for black history.  
34.	In paragraph 3, Ms Thomas said that “the pupils are learning who attend the school. Pupils are taught in small groups…in an environment that is self promoting, positive and uses a holistic approach to teaching: involving pupils, parents and society at large.” Mr Derby stated in evidence that it was his opinion that pupils were not learning sufficiently quickly, that there were few demands made on the children and that the pupils were not given enough responsibility. For example, he said that science was taught from a book, and that there was no opportunity for practical experiments. He accepted that the school presented as a family scenario with the older pupils looking after the younger ones.
35.	Mr Derby agreed with paragraph 5 of Ms Thomas’ statement that the parents believe in the school. He said that the parents believe that the School is a “sanctuary.”
36.	In summary, however, Mr Derby said that the test that had to be applied was whether the quality of education that was being provided by the School was acceptable. He was firm in his view that the School did not comply with the regulatory requirements as set out at pages 5-7 of his November 2007 Report. We agree with his conclusion.

CONCLUSIONS

37.	This is a full merits appeal and we have carefully evaluated all of the evidence that is contained in the documentation, and the evidence presented to us by Ms Jones and Mr Derby. We have arrived at the conclusion that the School does not meet all of the requirements in respect of the curriculum; the provision of pupils’ welfare, health and safety; the suitability of proprietor and staff; the premises and accommodation; or the provision of information for parents, carers and others. 
38.	Accordingly, it is our decision to uphold the determination (section 167(3) Education Act 2002.)
39.	Section 167(4) Education Act 2002, states that where the tribunal upholds the determination, the registration authority shall remove the school from the register on such date as the tribunal may specify or, if it does not specify a date, on such date as the registration authority may determine.
40.	Mr Hyam urged on the Tribunal that, in the event that the Tribunal upheld the determination, it should leave the date of removal from the register to the Respondent to determine. He said that this would provide the Respondent with the opportunity of liaising with local education authorities to find suitable alternative schooling for the pupils.
41.	Whilst we understand the reason for this submission, we have decided not to follow it. As will be clear from our decision, we are far from satisfied with the way the Respondent has handled this particular school, and we are reluctant to leave matters yet again in the hands of the Respondent. In any event, we have a steer for the time that is required to enable the pupils to be found alternative schooling. The determination letter of 24th January 2007 states that the School will be removed from the register on 28th February 2007. The five week period was considered sufficient in 2007, and we are told that the number of pupils is now less than at that time. In November 2007, the number of pupils on the roll was 10, aged 9 to 16 (one in Key stage 4; three in Key stage 3 and the rest in Key stage 2).
42.	It is our unanimous decision, therefore, that the determination of the Respondent to remove the school from the register be upheld, and that the Respondent remove the School from the Register of Independent Schools on 15th February 2008.
43.	The specialist members of the Tribunal are nominated by the President from the members of the panel who appear to him to have experience and qualifications relevant to the subject matter of this case (Regulation 5(5)). Accordingly, it is hoped that the following comments may be of assistance to the Respondent when faced with other instances where section 165 Education Act 2002 is of relevance. Section 165(3)(b) is at the heart of this legislation, and it requires the registration authority to serve a notice on the School requiring the proprietor to submit an action plan specifying the steps that will be taken to meet a standard or standards and the time by which each step will be taken. Where the action plan is approved, with or without modifications, the registration authority must be under a duty to conduct monitoring visits against the action plan. This is clearly envisaged by section 165(7), because when a step has not been taken by the date specified in the plan, the registration authority has powers under section 165(8) that include removal from the register. It is the view of the Tribunal that the registration authority must ensure that monitoring visits, subsequent to the acceptance of an action plan (with or without modifications), must focus firmly upon the action plan. The Reports should concentrate on the progress or otherwise of the School against the action plan. The Tribunal in this case felt that the visits of September 2006 and December 2006 were not sufficiently focussed on the action plan; and concentrated instead on setting out the failings of the School against the section 162A Education Act 2002 inspection format. We would hope that lessons can be learnt by the registration authority from an analysis by them of the current case. In particular, it should ensure that systems are put in place in relation to the request for action plans, and for prompt consideration of the plans and prompt feedback to the School with any required modifications of the plan. Equally important, is that monitoring visits should report on progress against the action plan.

ORDER

1. APPEAL DISMISSED

2. IN ACCORDANCE WITH SECTION 167(4) EDUCATION ACT 2002, THE TRIBUNAL UPHOLDS THE DETERMINATION UNDER SECTION 165 TO REMOVE THE SCHOOL FROM THE REGISTER

3. IN ACCORDANCE WITH SECTION 167(4) EDUCATION ACT 2002, THE TRIBUNAL SPECIFIES THAT THE REGISTRATION AUTHORITY SHALL REMOVE THE SCHOOL FROM THE REGISTER ON 15th FEBRUARY 2008.

His Honour Judge David Pearl (President)
Ms Judith Wade
Mr David Braybrook.
COSTS:

Mr Hyam submitted a Schedule of Costs amounting to £1802.99p incurred on the abortive hearing of 17th December 2007. The Respondent is asked to serve on the Tribunal a Submission in accordance with Regulation 24, setting out the basis upon which it is asserted that the Appellant was unreasonable in conducting the proceedings. That submission, together with the Schedule of Costs will then be served on the Appellant, who will be invited to make representations. The Respondent is asked to serve the Submission in support of the application for costs within fifteen working days of the receipt of this decision, and the Appellant will be invited to make submissions thereon within fifteen working days of the receipt of the submission of the Respondent.