Du­rand, Du­rand

More chal­lenges to in­spec­torate’s rul­ings could fol­low this week’s land­mark vic­tory in the High Court

TES (Times Education Supplement) - - CONTENTS - Martin ge­orge

What the acad­emy’s High Court win means for Of­sted judge­ments

IT IS ev­ery head­teacher’s nightmare – “in­ad­e­quate”: the ul­ti­mate Of­sted damn­ing judge­ment that could see them out of a job and their school turned into an acad­emy.

How­ever, a sur­prise High Court vic­tory by one of the most coun­try’s most con­tro­ver­sial schools could give hope to oth­ers that have been branded “in­ad­e­quate” and left to deal with the verdict’s dam­ag­ing con­se­quences.

Lawyers are al­ready warn­ing that the rul­ing could have se­ri­ous con­se­quences for the gov­ern­ment’s acad­e­mies pol­icy. Heads’ lead­ers are ex­pect­ing scores of schools to take le­gal ad­vice as a re­sult.

The case in­volves Du­rand Acad­emy, based in Stock­well, south Lon­don, which has made na­tional head­lines be­cause of its former head Sir Greg Martin’s to­tal salary of al­most £400,000, the cre­ation of a pri­vate leisure cen­tre on the school grounds, and its pro­longed bat­tle with the Depart­ment for Ed­u­ca­tion over its com­plex gov­er­nance struc­ture.

Of­sted added to the pres­sure on the school when it sent in in­spec­tors late last year. It was, Judge Martin Mckenna says, a “fraught” in­spec­tion, and the re­sult­ing draft re­port rec­om­mended that the acad­emy be put into spe­cial mea­sures.

‘Not a ra­tio­nal or fair process’

Af­ter the school mounted a High Court chal­lenge, Mckenna quashed the re­port last week. He based his de­ci­sion on Of­sted’s com­plaints pro­ce­dure, which does not al­low any “in­ad­e­quate” school’s judge­ment to be changed. It is, he says, “not a ra­tio­nal or fair process”.

In the hours af­ter Tes broke the story, so­cial me­dia was alight with spec­u­la­tion about the im­pli­ca­tions of the rul­ing.

Would Of­sted over­haul its com­plaints process? Would all spe­cial mea­sures judge­ments be quashed? Would Of­sted have to halt in­spec­tions un­til it had ad­dressed the judge’s con­cerns?

For one ed­u­ca­tion lawyer, the big­gest im­pact of the rul­ing could be on the gov­ern­ment’s academi­sa­tion pro­gramme.

Since the Ed­u­ca­tion and Adop­tion Act passed last year, all schools that are rated “in­ad­e­quate” must legally be turned into acad­e­mies. Matthew Brother­ton, a part­ner at Stone King law firm, be­lieves “it opens up a win­dow of op­por­tu­nity” for schools that have been sub­jected to an acad­emy or­der but are yet to be con­verted.

“When those schools that have been in­spected and put in spe­cial mea­sures and then the depart­ment has re­lied upon that to make an acad­emy or­der, I would query whether that gives them grounds for chal­lenge,” he adds.

For schools that have al­ready been con­verted on the back of an Of­sted re­port, he be­lieves it is too late. But Brother­ton says the judge­ment does give schools who have an un­pub­lished “in­ad­e­quate” re­port “fer­tile grounds” to chal­lenge the in­spec­torate.

The big bar­rier for most schools tak­ing le­gal ac­tion will be the ex­pense. Du­rand said that le­gal costs for its dis­pute with Of­sted amounted to £300,000.

Brother­ton be­lieves that it could be done for less, but still es­ti­mates a min­i­mum bill of

£20,000 for schools that want to chal­lenge their re­ports.

Of­sted says that “it is too soon to know what the im­pli­ca­tions are for other providers” but it says it will keep it un­der “close re­view”.

It is seek­ing to over­turn Mckenna’s rul­ing. A spokesman says: “We will con­tinue to carry out school in­spec­tions as sched­uled re­gard­less of the de­ci­sion on our ap­pli­ca­tion for leave of ap­peal.”

The in­spec­torate also says it needs “proper time” to re­view whether its com­plaints pro­ce­dures re­quire what its terms any “clar­i­fi­ca­tion”, with­out elab­o­rat­ing on whether this would lead to rewrit­ing the ac­tual pol­icy.

Ge­off Bar­ton fa­mously had his own run-in with Of­sted af­ter Hard­wick Mid­dle School in Bury St Edmunds was rated “in­ad­e­quate” while he was ex­ec­u­tive head­teacher.

Ina Tes ar­ti­cle cited in Du­rand’s le­gal ar­gu­ments, he wrote that “the Of­sted com­plaints pro­ce­dure too of­ten seems con­structed around a deep and du­ti­ful need for self-pro­tec­tion”.

Now gen­eral sec­re­tary of the As­so­ci­a­tion of School and Col­lege Lead­ers, Bar­ton de­scribes the court rul­ing as “a very sig­nif­i­cant mo­ment”.

“If I was at Of­sted, I would be very hastily look­ing at what the im­pli­ca­tions could be,” he says. “It might be that we find in Septem­ber a whole range of schools that say: ‘If it ap­plies to Du­rand, it ap­plies to us as well.

“I sus­pect that if this was not the hol­i­day pe­riod we would have had 40 phone calls from schools ask­ing our lawyers about this.”

The DFE was con­tacted for com­ment.

COURTING CON­TRO­VERSY: Sir Greg Martin, once the head of Du­rand, is now its chair of gover­nors

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