School fighting academisation can’t demonstrate improvement because of Covid, High Court hears

A primary school fighting government plans to convert it into an academy has been unable to demonstrate improvement because Ofsted inspections were suspended during the Covid-19 pandemic, the High Court has heard.

Governors of Yew Tree Primary School in Sandwell have brought a judicial review of a decision by education secretary Gavin Williamson to refuse to revoke an academy order imposed on the school in 2019 after it was rated ‘inadequate’ by the watchdog.

The school is due to become an academy next month.

The Department for Education officially confirmed last year that academy orders can be revoked in “exceptional circumstances”, such as when they move up to a ‘good’ or better judgment upon reinspection.

Yew Tree improved to a ‘requires improvement’ grade in October 2019, ten months after it received its ‘inadequate’ rating, and governors and its local authority believe it would now be ‘good’ if visited by Ofsted again.

But full graded inspections have been suspended since last March as a result of the Covid-19 pandemic.

In the High Court on Thursday, Joanne Clement, acting for the claimant, said the school had improved “swiftly” with a new headteacher and reconstituted governing body, but had “no prospect of demonstrating that it has reached ‘good’ before the secretary of state will force its conversion”.

School rated ‘inadequate’ in January 2019

The school was given a grade 4 and deemed to require “significant improvement” in January 2019 after inspectors found its leadership and management, the personal development, behaviour and welfare of pupils, and its early years provision were ‘inadequate’. The report also warned that safeguarding was “not effective”.

The court heard the school was issued with an academy order in April 2019, and the Shine Academies Trust was identified as its potential new sponsor later that year.

But a subsequent inspection in October 2019 resulted in a ‘requires improvement’ grade, with the report noting that things were “improving quickly”, and that safeguarding arrangements were now “effective”.

Clement said all of the concerns identified by Ofsted had been addressed, but the suspension of inspections meant the school “cannot bring itself within the express terms of the secretary of state’s policy on revoking academy orders”.

She argued that the decision by the education secretary to refuse to revoke the academy order was “irrational”, that he had “fettered his discretion” and applied an “overly-rigid policy”.

Steps to improve ‘not disputed’

Galina Ward, representing the education secretary, said it was not “disputed” that steps had been taken in response to Ofsted’s concerns.

“The secretary of state doesn’t say that this is a school that hasn’t improved at all,” she said.

“You have evidence, and it’s not disputed evidence, from the local authority and the school that steps have been taken in responding to the recommendations that were made by Ofsted. What simply can’t be said as a matter of fact, because it hasn’t been done, is what Ofsted would conclude if it went in as to whether those steps being taken had had the desired effect.”

Ward also said it was “not the case that there necessarily would have been” a reinspection of the school had the pandemic not happened. Ofsted’s inspection handbook states RI-rated schools will be inspected again “usually within 30 months” of their previous inspection.

Deputy High Court judge Gavin Mansfield QC, presiding, said he would reserve judgment, meaning it will not immediately be handed down. In the meantime, he urged “constructive engagement” between the two parties.

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