The education secretary’s refusal to revoke an academy order for a primary school in the West Midlands has been ruled “irrational” and quashed by the High Court.
Governors of Yew Tree Primary School in Sandwell brought a judicial review of a decision by education secretary Gavin Williamson to refuse to revoke the order imposed on the school in 2019 after it was rated ‘inadequate’ by Ofsted.
Revocation is not an indulgence, but a power to be exercised in the best interest of students at the school in question
The school was due to become an academy next month, but argued in court that it had been unable to demonstrate improvement because Ofsted inspections were suspended during the Covid-19 pandemic.
It had asked government to revoke the academy order, which the government says can happen in “exceptional circumstances”, but Williamson refused on December 15 last year.
Today, deputy high court judge Gavin Mansfield ruled that decision was irrational, and said he would make an order to quash it after warning that “several aspects of the decision” caused him “grave concern”.
The court also refused an application from the education secretary for permission to appeal, and ordered him to pay the school costs of £75,000.
The DfE said it was “considering the next steps” in relation to the academy order, which “may include appealing the court’s decision or assessing a new application from Yew Tree to set aside their academy order”.
In his judgment, Mansfield said there was “clear evidence before the defendant, from the school and the local authority, of both continued efforts to improve and success in achieving those improvements”. He also said Williamson’s concern must be with the “the substance of the performance of the school, not with whether there has been a formal grading by Ofsted”.
‘Incumbent’ on Williamson to evaluate school’s performance
Mansfield acknowledged Williamson “cannot be blamed” for suspending Ofsted inspections during the pandemic.
But where no reinspection could be carried out and no regrading achieved, it was “incumbent” on the education secretary to “carry out a close evaluation of the available evidence as to whether the school is performing at a level that is ‘good’ or above”.
He said revocation was “not an indulgence, but a power to be exercised in the best interest of students at the school in question”.
“If the defendant fails closely to evaluate the available evidence, then he risks failing to revoke an order where it would have been in the interests of students for him to do so.”
The defence had argued that the Covid-19 crisis did not count as “exceptional circumstances” because the academy order preceded the pandemic.
But judge Mansfield said this point was “misconceived”, saying it was “irrelevant” that the order was made pre-pandemic.
“The claimant was not saying that the pandemic was the reason for the failings at the school that led to the ‘inadequate’ grading.
“The relevance of the pandemic was that the suspension of inspections meant that the school could not be reinspected and therefore had to rely on other forms of evidence as to its improvement. The defendant misconstrued the claimant’s point, and therefore failed to have regard to it.”
‘Strong impression’ Williamson had not ‘engaged’ with evidence
Mansfield also said he had a “strong impression that the defendant had not engaged with the representations and evidence showing the progress that the school had made since January 2019, and in particular in the 14 months since October 2019”, when the school was upgraded to ‘requires improvement’.
I have the strong impression that the defendant had not engaged with the representations and evidence showing the progress that the school had made
He said the treatment of evidence from the school’s local authority was “highly unsatisfactory”.
The DfE had argued that the LA’s support to the school was offered “within a wider context of the LA overall not being supportive of academisation”, and it had “therefore applied less weight to this additional information in comparison to the other evidence available”.
Mansfield described this as “troubling”, and said “no evidence was provided at the time in support of the proposition that the local authority was not supportive of academisation”.
“I am driven to the conclusion that the defendant’s view of the local authority’s opposition to academisation is entirely without evidential basis. It was wrong of the defendant to treat it as a fact to which he had regard.”
Decision ‘irrational’ due to ‘flaws’ in Williamson’s reasoning
He said proving irrationality was a “high hurdle in any case”.
“However, on the basis of the flaws in the defendant’s reasoning I have set out above, I am driven to the conclusion that in the particular circumstances of this case the defendant’s evaluation of the evidence of the school’s improvement, and of its focussed and sustained efforts to make further improvement was irrational.
“The refusal to revoke the academy order on 15 December 2020 was irrational.”
Mansfield said he would make an order “quashing that decision”, and would “deal with argument as to the appropriate form of order, and any consequential matters, at the hearing for hand down of judgment”.
Yew Tree headteacher Jamie Barry said he was “pleased that the High Court have recognised the incredible efforts of the team and the support that we continue to receive from our local authority”.
“Yew Tree have been on an incredible journey over the past two years and the improvements, due to the dedication and talent of everyone at the school, have been truly remarkable.”
A DfE spokesperson said: “We direct underperforming schools with an inadequate Ofsted rating to become academies because we know the support of a strong academy trust is the best way to secure sustained improvement in the best interests of pupils and the school community.
“We are now considering the next steps in relation to Yew Tree Primary’s academy order following today’s High Court judgement, which may include appealing the court’s decision or assessing a new application from Yew Tree to set aside their academy order.”