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‘School wasn’t gaming as it can do pretty much anything’

The head of a high-profile school embroiled in a high court battle with Ofsted could impose “pretty much” any disciplinary measure bar “corporal punishment” due to its special legal status, a judge has heard.

Thomas Telford School, in Shropshire, was downgraded to ‘good’ following an inspection it claims was mired by “a series of errors”, Birmingham Administrative Court heard last Friday.

The lead inspector initially suspected the city technical college (CTC) was “acting illegally” and “deliberately gaming” the system over how it recorded absences during a December 2022 inspection.

‘Power to do pretty much anything’

“Cooling off periods” for pupils were registered as a leave of absence, as opposed to suspensions.

While this would be breaking the law for most schools, CTCs are not bound by the same statutory guidance on exclusions. This meant when it comes to school discipline, their heads have the “power to do pretty much anything aside from corporal punishment”, the school’s counsel Russell Holland said.

CTCs were the forerunner of academies in the 1990s, where private companies were encouraged to invest and help set up schools. Just two remain.

“The whole purpose was to allow schools to do things differently,” Holland told the court.

The school had decided not to “suspend students in the traditional sense”, he added, using the “freedoms it was given for the express purpose of doing something different. And by doing something different it has been highly successful.”

At the time of inspection, at least 46 students given a ‘cooling off’ period were marked in the register as either present, absent using code B (off-site educational activity) or code C (leave of absence granted by the school).

“They were not marked under code E (excluded but no alternative provision made) and nor was there any way of telling from the register that they had been excluded for poor behaviour,” Toby Fisher, representing Ofsted, added in his written case outline. 

The register recorded 264 pupils with C codes for 2021-22 and “pupil feedback indicated being ‘sent home or ‘suspended’ was not an infrequent occurrence and complained that the intervention was applied inconsistently and sometimes unfairly”, Fisher stated in the case outline. 

‘Entirely erroneous understanding’

After the discovery, the lead inspector shared his “initial view” with the Ofsted duty desk that “he thought there was a possibility of deliberate ‘gaming’”, the court heard.

But the school flagged it did not follow the same rules as others. High court judge Stacey described it as an “entirely erroneous understanding” from Ofsted.

Sir Kevin Stachwell

The judge added the school’s head, Sir Kevin Satchwell, was “led to believe he was going to get an inadequate leadership and management conclusion”.

“Can you not understand the consternation and concern that would have caused the school from the lead inspector not understanding basic process about the governance of the school?” the judge added.

Ofsted said the misunderstandings were corrected during the inspection process and before provisional judgments were reached.

Fisher added: “It was entirely appropriate inspectors indicated that if gaming was established there would be an ‘inadequate’ judgment.”

However, Holland said this meant the “questions and evidence gathering [later in the inspection] was not done with the right questions in mind for behaviour and attitudes”.

But Fisher said what “took place after the erroneous application of the exclusion guidance was investigation of issues that needed to be inspected, pursuant to the school’s inspection handbook”.

School behaviour policy updated

Ofsted said the school’s behaviour policy failed to reflect the “range of interventions routinely applied in response to poor behaviour”. This included temporary exclusions and education in an inclusion unit at an alternative site, Madeley Academy. At the time of inspection, Ofsted noted four pupils had been referred to Madeley Academy in the last academic year and one in that academic year. One girl was sent there for three weeks. 

Fisher said the school’s behaviour policy has since been updated and now refers to the use of short exclusions and placements. This meant it was “quite clear the school understood the reasons for the judgments that were reached – that’s how they’ve responded so effectively to the recommendations”.

The school, last inspected in 2009, was rated ‘outstanding’ in every area following the 2022 inspection apart from leadership and management, which was rated ‘good’.

The report was published in July after the school failed to obtain an injunction banning its publication.

It noted “leaders have not ensured that staff use attendance codes consistently to record when pupils are sent home due to poor behaviour” and said governors lacked “a clear oversight of pupils’ behaviour and attendance”.

Stacey is due to hand down a reserved judgment at a later date. 

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