Jawaid (Al Huda Girls School)

v

THE SECRETARY OF STATE FOR EDUCATION
[2011] 1898.IS

DECISION

Panel			Judge Nancy Hillier
			Mr David Braybrook (Specialist Member)
			Mr Andrew Wilson (Specialist Member)

Hearing held in Birmingham on 24-27 May and 7 June 2012.
The school was represented by Miss Holly Stout of Counsel.
The Secretary of State was represented by Miss Galina Ward of Counsel
We heard the evidence of Mr and Mrs Jawaid, Mrs Schofield and Mr Terry Mackenzie on behalf of the school, and the evidence of Ms Penny Jones and Mr George Derby on behalf of the Respondent.
APPEAL
1.	Al Huda Girls’ School (Al Huda) appeals against the determination of the Respondent of 9 May 2011 to remove it from the register of independent schools under section 165(7)(c) of the Education Act 2002 (the Act).

PRELIMINARY ISSUES
2.	Both Mr Braybrook and Mr Wilson told the parties about their previous professional involvement with Mr Derby. Neither party made an application for the members to excuse themselves.
3.	Miss Stout and Miss Ward  had agreed that since the school’s scenes of work, examples of which occupied nearly half of the 5 lever arch files of evidence, were no longer in issue and it was agreed that they could be removed from our consideration.
4.	Miss Stout made an application at the commencement of the hearing for the panel to admit statements from Mr Paul Walsh and Mr Terry McKenzie. The applications had been made at a telephone hearing in the week preceding the hearing and were adjourned to be considered by the panel. The applications were opposed by Miss Ward on the basis that they were being made very late in the day without any real reason being given for the delay. 
5.	The panel applied the overriding objective and concluded that the evidence should be admitted in the interests of fairness and justice. The reasons for the decision were that the evidence was highly relevant, and that prejudice to the appellant would be significant if the evidence were excluded. It was the nature of the case that evidence was evolving as the school attempted to address the concerns and issues, and since the school faced closure it was fair to allow the evidence to be adduced. We considered the prejudice to the Respondent and concluded that there was adequate time for both Miss Ward and the witnesses to consider the evidence and respond to it. The balance therefore fell in favour of the Appellant.
6.	At the time of the telephone hearing it was not envisaged that Mr McKenzie would be available to attend to give evidence. The position changed and he had rearranged his diary to attend. Since Ms Ward had opportunity to prepare for his cross examination and Mr Derby had had full opportunity to consider Mr McKenzie’s report we agreed to amend the witness schedule to allow him to attend. Mr McKenzie’s evidence further narrowed the issues between the parties, because through his evidence the Appellant admitted that some of the standards in the March action plan were still unmet, therefore focussing the issues on whether in all the circumstances of the case removal from the register is appropriate.
THE LAW

7.	Section 157 of the Act makes provision for the Secretary of State for Education to prescribe standards for independent schools and these are set out in the Education (Independent School Standards) (England) Regulations 2010 (the Regs). A register of schools is maintained pursuant to s.158 and it is a criminal offence for a person to run an unregistered school.
8.	Under section 162A the Respondent can arrange for inspections of schools, including inspections by Ofsted. If an inspection reveals that a school is not meeting the relevant standards the Respondent has the power to make a determination to remove a school from the register under s 165(7)(c). In order to do so the Respondent must be satisfied, as a result of an Ofsted inspection or otherwise, that “any one or more of the independent school standards is or are not being met in relation to the school” (s 165(1)). The Respondent then serves a notice on the proprietor of the school which identifies the standard or standards in question and requires the proprietor to submit an action plan within a specified time period.
9.	An action plan is defined in s 165(4) as a plan specifying the steps that will be taken to meet a standard or standards; and the time by which each step will be taken. The Respondent must then consider any action plan submitted in accordance with section 165(3) and may either reject it; or  approve it, with or without modifications under section165(5).
10.	Where an action plan has been approved under section 165(5), but any step specified in the plan has not been taken by the date specified in the plan, the Respondent may extend the time for taking any step in the plan, make an order under section 165(8) requiring the proprietor to cease using any part of the school premises for all purposes or purposes specified in the order, close any part of the school’s operation or cease to admit any new pupils, or new pupils of a description specified in the order or under section 165(7)(c) may determine that the school is to be removed from the register on such date (after the appeal period) as he may determine 
11.	A proprietor of a school has a right of appeal against the decision to the Tribunal under section 166(1)(b) and the powers on appeal are provided in s 167. The Tribunal may uphold the determination (s 167(3)(a)) and may specify a date on which the Respondent shall remove the school from the register, or may revoke the determination (s 167(3)(b)).  If the determination is revoked the tribunal can make an order under section 167(5) restricting the operation of the school in a manner similar to the restrictions which can be imposed by the Respondent under section 165(8). 
12.	The parties are agreed that on appeal the panel is not simply reviewing the determination, but is conducting a “full merits” appeal. The burden of proof is on the Respondent to demonstrate on a balance of probabilities that removal from the register is appropriate in the circumstances of the case. In this regard it was agreed that the panel should consider whether there is any realistic prospect in the foreseeable future of the school addressing the current failure to meet the minimum standards.
13.	 A further legal matter to be considered by the panel is the effect of the requirement imposed on the Respondent under section 149 of the Equality Act 2010 to have due regard to certain equality matters,  and the effect, if any, of the alleged failure to have such regard either before or following the determination on this appeal. 
14.	Section 149 provides:-

(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) tackle prejudice, and
(b) promote understanding.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7) The relevant protected characteristics are—age;disability;gender reassignment;pregnancy and maternity;race;religion or belief;sex;sexual orientation.
15.	The parties agreed that the public sector equality duty applies to the decision taken by the Respondent in this case. 

BACKGROUND
16.	Al Huda is an independent Muslim girls’ school in north-east Birmingham. The school currently has 83 pupils on roll, and the girls are aged from 11-16. The teaching consists of a mix of Islamic and secular teaching. The School’s aim is to ‘promote equality of opportunity for young British Muslim girls, enabling them to understand and become integrated members of British society’.
17.	The school was founded in 1992 by Asif Jawaid and his wife, Samina Jawaid, to provide education to girls of the Muslim faith whose parents wish them to have a single sex education.  It is not selective, and charges £1500 per annum in fees, the remainder being subsidised by Mr Jawaid and his family.  Samina Jawaid has been the Head teacher from the outset.
18.	Single-sex education for Muslim girls in Birmingham is limited. There is only one state (voluntary-aided) Muslim school, Al Hijrah School, where boys and girls are taught in separate classes. There are three other independent Muslim girls’ schools, Birchfield Independent Girls’ School,  Al-Burhan Grammar School and Woodstock Girls’ School. There are a small number of places available between these schools (less than 500).
19.	Since January 2006 the school has not been able to satisfy Ofsted that it is meeting all of the requirements of the Education (Independent School Standards) (England) Regulations 2010 (the Standards).  The unmet standards have varied over time.
20.	The School has submitted (in accordance with the procedure laid down in sections 165(3), (4) and (5) of the EA 2002), and had approved by the Respondent (save for one in August 2009 which was rejected),  six versions of an Action Plan setting out the steps that it needs to take to meet the Standards. Those plans cover the periods May-July 2006, September-Oct 2007, February-May 2008, April-May 2009, August 2009 and finally March 2010. This latter plan is referred to as “the March plan.”
21.	Following the March plan there were two Ofsted progress monitoring inspections on 22 October 2010 and 28 January 2011. The first being on a staff training day therefore no lessons were observed. The inspectors concluded that the school was still failing to meet all of the Standards.  On 9 May 2011the Respondent notified the school that a decision had been taken that the School should be removed from the register of independent schools under s 165(7)(c) of the Act
22.	Al Huda appealed that decision on 6th June 2011.  A further inspection of the school in October 2011 concluded that the School had still not met all the Standards.
23.	The final hearing was originally listed for 6 to 9 February 2012 but was postponed because the Respondent had not addressed the relevant equalities duties under s 149 of the Equality Act 2010 and wished to take time to consider them. A further Ofsted inspection was undertaken on 28 March 2012 which found 10 standards were still not met. It was common ground at the hearing that 9 standards were still not met.  Of those, 7 remained unmet from the March plan.
THE ISSUES
24.	Since it was conceded that some of the standards in the March action plan remained unmet (thus maintaining the jurisdiction to determine whether the school should be removed from the list) the panel identified three main issues for determination. Firstly, the extent of the current failure to meet the standards; secondly whether the school has capacity to meet the standards in the reasonably foreseeable future and thirdly the effect, if any, of the alleged failure to address the relevant equalities duties under s 49 of the Equality Act 2010.
EVIDENCE
The extent of the current failure to meet the standards.
25.	We heard evidence from Mr Terry McKenzie who is an education consultant working regularly as a freelance inspector leading inspections for Ofsted in independent and state schools. He told us that he has considerable experience of working with independent schools to improve standards and bringing schools out of ‘cause for concern’. His statement gave several examples of independent schools which he had helped to meet the regulations from positions where “The quality of the curriculum, teaching and assessment and students’ spiritual, moral, social and cultural education were inadequate.” to “satisfactory with some good teaching and assessment… with all regulations met”.

26.	Mr McKenzie was contacted by The Education Improvement Company in mid April 2012 and he agreed to visit Al Huda. He met with Mr Jawaid and was aware that Al Huda had consistently failed to meet some of the regulations for an independent school. Mr Jawaid had asked him to consider whether any progress had been made in meeting the regulations since the previous Ofsted visit, to provide some guidance on how the school should continue the progress towards meeting the regulations and to write a report in a very specific format addressing the specific regulations that were giving cause for concern. 

27.	Mr McKenzie visited Al Huda on 1 April 2012 and checked the ten regulations that had been identified by Ofsted as non-complaint in March 2012. He reported as follows: 
-	Regulation 2(1) “Ensure that there are full schemes of work for all subjects taught and that these are implemented effectively” is not yet likely to be considered met, noting that this regulation cannot be met until all others in part 2 are complied with. 
-	Regulation 2(2)(a) “Provide students of all ages with experience in the technological areas of learning” is not yet met but with help the school could be met quickly through the implementation of properly planned work in fabrics and food technology
-	Regulation 2(2)(i) “Provide opportunities for all students to learn and make progress” is not likely to yet be considered as met but progress towards meeting the standard had been made as evidenced by small improvements in students learning and the quality of teaching
-	Regulation 2(2)(j) “Adequately prepare students for the opportunities, responsibilities and experiences of adult life” is not likely to yet be considered as met. Progress towards the standard could be seen through recent small improvements to students’ learning opportunities including improving teaching and developing curriculum. 
-	Regulation 3(a) “Ensure that teaching enables students to acquire new knowledge and make progress according to their ability so that they increase their understanding and develop their skills in the subjects taught” is not likely to yet be considered as met. Progress towards meeting the standard was evidenced by recent improvements in the way that teachers plan lessons to account for the different needs of the students in their classes
-	Regulation 3(b) “Ensure that teaching encourages students to apply intellectual, physical or creative effort and to show interest in their work and to think and learn for themselves” is not likely to yet be considered as met, however since March 2012 teachers are more alert to the need for differentiation. He states that “lessons are sometimes barely satisfactory and the methodologies required to raise standards in the classroom are not yet fully embedded. Nevertheless, all lessons seen during my visit were likely to be judged as at least satisfactory with one as good”
-	Regulation 3(c) “Ensure that lessons are well planned and that staff use effective teaching methods, suitable activities and appropriately manage class time” is not likely to yet be considered as met. In Mr McKenzie’s opinion he saw the best indicator of improvement in the quality of education because Al Huda teachers are beginning to embed some of their new learning.
-	 Regulation 3(d) “Ensure teachers show a good understanding of the aptitudes, needs and prior attainments of the students, and ensure these are taken into account in the planning of lessons” is not likely to yet be considered as met because the new systems for assessment are not yet embedded, but he felt that progress towards the standard could be seen by the school’s use of data from previous schools and their own teachers’ assessments. 
-	Regulation 3(g) “Ensure there is a framework in place to assess students' work regularly and thoroughly, and that information from such assessment is utilized to plan teaching so that students can make progress” is not likely to yet be considered as met. Al Huda had made progress by recent improvements including the development of a spreadsheet designed to handle assessment information.

Whether the school has capacity to meet the standards in the reasonably foreseeable future
28.	Mr George Derby, an Ofsted Inspector and a Senior Managing Inspector and Remit Lead for Independent Schools employed by Serco Inspections Limited gave evidence on behalf of the Respondent. Serco Inspections Limited is one of a number of external companies instructed by Ofsted to carry out its various regulatory inspections. He had considered the recent evidence and the report of Mr McKenzie but had concluded that the timescales for improvement given by Mr McKenzie were over optimistic and that given the school’s history it was unlikely that the standards would be met.

29.	 Mr Derby acknowledged that Al Huda had undertaken a great deal of work to ensure that plans and schemes of work and other documents have been put in place which were not available or were unsatisfactory at the time of the inspection. He put this down to recent use of consultants but commented that the work of other consultants prior to the October 2011 inspection appears to have had less impact. He commented that it was too early to judge implementation of the recent plans because they were so new. Similarly, although new teachers had been appointed the school had not made it clear what support, guidance or monitoring such staff would have.

30.	He assessed the School’s updated action plan 2011-2012 which was part of the evidence as “weak” because in his view it fails to address the regulatory failures in detail or break down the actions into clear achievable steps, especially about the quality of teaching and the lack of progress in mathematics and science. Mr Derby stated “Given the School’s context, any current improvements are fragile. The School needs the support of external consultants to move forward and is clearly ‘not ready to stand on its own two feet’. The School’s capacity to improve is inadequate.” and “So far, leaders and managers have been ineffective in tackling important endemic weaknesses. Although the School has submitted a considerable amount of documentation, it will not be possible to see the impact of this as yet. The School’s track record does not provide confidence that it can move forward with sufficient pace and rigour to address the weaknesses.”

31.	Mr Derby had the opportunity for a short discussion with Mr McKenzie. He told us that their main area of disagreement was as to the school’s capacity for change and the timescales for change. He said that the school had been insular and had only recently “got it”. In his view the senior managers lacked capacity for change and lacked the ability to learn from consultants. He said “To be blunt, I wouldn’t give them the time, no”

32.	Penny Jones, Deputy Director Independent Education and School Governance at the Department of Education gave evidence and explained that the decision to remove the School from the Register was taken by the Secretary of State following a recommendation from the Independent Education and Boarding Team. She was closely involved in preparing the recommendation he considered.
 
33.	Ms Jones stated that she had had regard to: 

•	The results of the Ofsted inspections in May 2009, November 2009, October 2010 and January 2011;
•	The fact that despite these inspections and the various action plans submitted the school had failed to make satisfactory progress;
•	The fact that despite being given ample opportunity to make the necessary improvements, further deterioration had occurred;
•	There was no evidence that led the Department to believe that the school would ever have the capacity to put things right.

34.	She explained that the Department had considered whether or not a direction could have been made under section 165(8) limiting the operation of the School by closing only part of it, ceasing to use part of the school premises, or ceasing to admit new pupils and whether or not it should issue a further notice under section 165(a) and give the school further time to improve. The view taken was that such action was not appropriate because Al Huda had not taken sufficient steps to address the failings over a sustained period, and there was no evidence in her view that a further extension of time would bring about the necessary improvements fast enough. Ms Jones stated “The Respondent’s role is to ensure that registered independent schools continue to meet the required standards, and to encourage schools to improve, wherever possible. However, it cannot allow inadequate schools to operate indefinitely: we have a duty to ensure that pupils are receiving a satisfactory education in a safe and secure environment. In most cases where a Notice is served, a school will quickly address its failings. However, in a typical year there will be no more than five or six very poor schools where progress to improve is inadequate, or not sustained, and the Department has used its powers to remove the School from the register. This is only the ninth school we have sought to remove since 2005, with potential for another two or three cases in the near future”.

35.	Ms Jones explained to us that most schools realise when they have to prepare an action plan that the situation is serious and they take advice from professionals. She thought that Al Huda was unusual because the situation had gone on for so long. The school had been registered despite not meeting all the standards at the time because at the time there were only 3 unmet standards. Then, in 2009, there had been complaints about the school and inspections painted a full picture of deterioration leading to the decision to remove. She was particularly concerned about the girls’ maths results and felt that the school were overoptimistic about the potential 2012 results. In her view the girls would be better off at another school because some of the results were so poor, and she felt that the equality arguments were of limited value because “no group should have to have a lower standard of education”. Ms Stout suggested to Ms Jones that the situation was very different now the school had Mr McKenzie and Mrs Schofield. Ms Jones said that the school had used consultants in the past and she was not reassured that Mr McKenzie and Mrs Schofield would succeed where others had not.

36.	Ms Jones concluded that “The overriding pattern is one of a school that does not have a secure grip of the regulatory requirements.  When failings are identified it puts them right, but does not tackle the root cause which is poor systems and inattention to the procedures associated with running a school. The School has been given many opportunities to put right its safeguarding procedures but has consistently failed to do so in a sustained manner. Looking at past performance, and in the absence of substantial change in the management arrangements, I have no confidence that it will ever reach the point where safeguarding and welfare matters are consistently operating as they should. This could lead the School to hire someone unsuitable to work with children, to fail to report a serious incident to the statutory authorities, and/or to have a potentially unsafe situation in school unmitigated by appropriate strategies.”

37.	Mr McKenzie set out a plan of work which he would undertake with the school to assist them in reaching meeting the regulations. He envisaged that the school would require 6 working months of his support to ensure compliance with all of the regulations and to bring the overall quality of education to be consistently at least satisfactory
38.	Mr McKenzie gave evidence that he believes  Al Huda School “is well worth saving” and stated: 
	“It is my opinion that Al Huda provides a service that is mainly valued by the parents and students who willingly buy its services…. the quality of education is currently no worse than some other schools that have survived and subsequently improved to meet all regulations and demonstrate a quality of education that is at least satisfactory…(and)… the school has already improved to the extent that it now meets most of the regulations.” 
39.	 Mrs Schofield, a very experienced teacher, told the panel about her recent involvement at Al Huda. She described the staff as really keen to learn although some are young and inexperienced. She said that she relished the challenge and had promised the school more of her time in the next year. She said that Al Huda has real potential in her view, that she had seen improvements and that she feels the school supports the community. She had joined the school in February and had recently become involved in a senior role. In her view Mrs Jawaid had taken on too much and was not clear about inspections. Mrs Schofield had experienced Ofsted inspections and understood the importance of proper preparation to avoid the panic which had followed previous inspections. Miss Ward pointed out to her that there had been 11 Ofsted inspections so the school really should have been aware of the requirements. Mrs Schofield replied that the priority had been about the girls and the Islamic aspects of the school. She said: ”They are more switched on now.” Mrs Schofield is a mathematics teacher and she had seen improvements in this area with an emphasis on the linear (rather than modular) assessment, new books and some new ICT equipment.
40.	Mr Jawaid told the panel that the school had come about through his wife providing home tuition for their girls and others asking if she could help with their children. He said “We never thought we would have so many girls”  He explained that he and his wife had always respected the regulations and tried to find out what must be done, but he felt in hindsight that Mrs Jawaid was doing too much, including cleaning the School. He explained that the pressures grew as they enrolled more girls and that he now realised that she needed a team around her to assist. He admitted that they never expected the Secretary of State would take the school off the register, despite the clear warning letters. He said “We thought it would be all right but in May 2011 I realised that that was a real problem”.
41.	Mr Jawaid said that he realised that that had made mistakes in relation to consultants. The consultants they had engaged had in the main been identified through the community and were really more than more or less volunteers. Sue McHale was a professional who he got in touch with through a friend of a friend's but when she qualified as an inspector she decided to move on meaning her involvement was cut short. 
42.	Since May 2011 Mr Jawaid said that he had got his two sons into the family business and he had come to work full time in the school. He had advertised for new teachers and although it was very expensive to employ agency teachers he had done so because he realised that experienced teachers were necessary to improve standards. He described Mrs Schofield as very motivated and helpful and said that she had really encouraged staff. In his view Mrs Schofield's maturity and in-depth knowledge of her subjects will be invaluable and he said the girls are now very happy in Mathematics. Mr Jawaid told the panel that from September Mrs Schofield will be spending more time at the school and having more responsibility. He said he was still worried about mathematics but with the help of Linda Schofield and Keith Curry he hoped that the deficiencies could be addressed.
43.	Mr Jawaid said that he had only recently contacted Mr McKenzie. He had been searching for an educational consultancy company because he realised that he needed an evaluation of the school's progress. Mr McKenzie had told him that he believes that Al Huda could achieve satisfactory standards and Mr Jawaid was happy that Mr McKenzie was willing to work with the school. He said he was committed to employing Mr McKenzie if the school remained open.
44.	The panel asked Mr Jawaid what he would do if Mr McKenzie suggested that Mrs Jawaid should step down. He said that his wife was a very educated woman and her teaching in English is good as demonstrated by the higher standards in English. He said that if Mr McKenzie suggested that she should step down she would because neither of them wanted to lose the20 years of the time and money that they had invested in Al Huda.
45.	Mrs Jawaid gave evidence to the panel and said that she had attended state schools as a girl and had been made to wear skirts because at that time trousers were not acceptable. She had obtained a place in a grammar school but couldn’t go because of the cultural problems. She had been asked embarrassing questions and inappropriate questions at school like whether her parents were too strict with her. She wanted her girls to feel comfortable in their education.
46.	Mrs Jawaid explained that she had got married when she was young. She studied English language and literature with the Open University and later transferred to Birmingham University where she completed a PGCE. As the school grew she had her own children and was also managing the school.  She said that in her view the low fees charged by Al Huda are very important because many of the carers of the girls are on benefits: some are widows and some have suffered after the breakdown of her marriage. She explained that the turnover of staff had been mainly due to younger staff leaving to have a family and said that those who were more mature or had achieved PGCE level tended to settle.
47.	Mrs Jawaid said that she had learnt from the consultants. In the past she felt that she had not delegated responsibility sufficiently and that now the school are working on that. She said she was looking forward to working with Mr McKenzie that recently there had been a real effort in the school to meet the standards, although she had been trying her best for a long time.
TRIBUNAL’S CONCLUSIONS WITH REASONS
48.	 The panel took into account the written and oral evidence presented to us and the written and oral submissions made by both Counsel. 
49.	We agreed with Ms Jones and Mr Derby that the inspection history of the school was poor, but accepted that Mrs Jawaid had done her best over time to meet regulatory standards with little assistance or guidance. Whilst it is correct that the letters from the Department do get stronger in tone over the years, we are satisfied that Mr and Mrs Jawaid believed that because they are a charitable small faith school and were doing their best all would be well. The letter in May 2011 informing them that the school would be closed clearly came as a great shock and we find that since that time they have started to realise the full impact of failing to meet all the standards. They had had some consultancy input which had assisted in the past but was not sustained and was rather piecemeal in our assessment.
50.	We agreed with Miss Ward that there has been a history of the school meeting standards only to either fall back or to fail to meet others. Normally this would be a clear indicator of the future likelihood of further failures, but in this case we find that there are real indicators that if the school carry out the plan to invest in Mr McKenzie’s help and to take advantage of the experience of teachers like Mrs Schofield then there is a realistic prospect that standards will be met and that improvements will be embedded so that they are met consistently. We rejected Ms Ward’s submission that Mr and Mrs Jawaid’s evidence that the teaching is adequate demonstrated a fundamental misunderstanding which it was too late to address. In our view they were defending a school that they are passionate about and felt that Mr McKenzie’s observations supported their view, and that they had shown recognition of substandard teaching by replacing teachers who had been assessed as unsatisfactory with more experienced and capable staff.
51.	The school examination profile, which shows a markedly lower success rate for Al Huda girls compared to their peers in other schools, is of great concern to us. We were not greatly assisted by time spent examining the provisional results for 2012, because provisional results are by their nature subject to change and speculation as to whether they would be maintained following further examinations or external examination would not be appropriate. We placed weight on the most recent assessment by Mr McKenzie who in our view gave balanced evidence which was cogent, honest and persuasive. He did not try to underestimate the schools failings – he was clear that the 9 standards were not met, but he gave reasoned analysis as to how they could be met and what was needed.  We find that there has been a tangible improvement and that although Mr McKenzie did not spend as long in the school as Mr Derby he identified real progress and potential. 
52.	We carefully considered the views of Mr Derby and Mr McKenzie as to timescales. We concluded that at least 6 working months with intensive work by the school assisted by Mrs Schofield and Mr McKenzie will be needed to ensure all standards are met and for the new improvements to embed. In our view it is impossible to quantify “reasonably foreseeable future” in a number of months. Given the close proximity to the end of this academic year we have decided that in this case common sense would dictate an expectation that reasonably foreseeable would in this case equate to during the next academic year, with early efforts being targeted to ensure that the girls in their final year of GCSE’s – a large cohort who would undoubtedly be seriously affected by disruption to their education were the school to close at the end of this year – are taught to a better standard than they have been this year. Having considered all the evidence we find that on balance there is sufficient evidence to demonstrate that the school can meet the standards within that time. 
53.	We took into account the views of Ms Jones that no group should receive an unacceptably low standard of education because of their faith or ethnicity and the submissions of Miss Ward that since failure in teaching standards goes to the very heart of a school’s provision that closure of Al Huda is the only realistic and safe outcome for the girls. We also gave weight to Mr Derby’s opinion that the staff lack capacity to change and that the school should be given no further time. We balanced those views against the clear evidence from Mr McKenzie, Mrs Schofield and Mr and Mrs Jawaid that closure of the school would seriously disrupt the education of the girls and that their parents would struggle to obtain a single sex faith school placement for them. We were impressed by the fact that this school has produced girls whose families have gained confidence to promote them following tertiary education, and by the fact that there is currently a real commitment by the staff to improvement and a willingness to learn. Several of the staff are highly educated and we find on balance that they have capacity to learn and change if given appropriate guidance and training. 
54.	We paid regard to the fact that although the hearing is not a review of his decision, we should give appropriate weight to the Secretary of State’s decision. In this case however there has been a delay and the situation has changed considerably. We have to make the decision on the evidence before us at the date of the hearing. Having taken all factors into account we decided that the Secretary of State had not demonstrated on the balance of probabilities that it was more likely than not that the school would not meet the standards within the  reasonably foreseeable future and agreed with Mr McKenzie that on a fine balance the school is a school worth saving. We therefore concluded that we would allow the appeal.
55.	We would make the following observations. We are aware from Ms Jones’ evidence that it is possible to request a female inspector for faith schools and we were surprised that Mr Derby had been chosen to undertake the most recent inspections. He told us that not all staff and students covered their faces in his presence and that he did not believe communication was inhibited where some had veiled: “communication wasn’t an issue.” We respectfully disagree with Mr Derby. In our view communication is at the heart of teaching and if it is inhibited in the already stressful situation of an inspection it may very well have distorted performance. We would recommend that female assessors are use in any future inspections of the school.
56.	In the light of our findings it has not been necessary for us to consider the effect of the failure to pay due regard to the equalities aspects of the case under s 49 of the Equality Act 2010. In our view this should have been considered from the outset and the Secretary of State should have had the full benefit of information about the problems these girls would face if the school were to close. We were unimpressed by the attempts at a retrospective consideration of the duties. It goes without saying that Muslim girls should not have substandard education because of their faith, but in the exercise of his discretion under the Education Act a Secretary of State should have the fullest information possible. We are not satisfied that he did and we hope steps will be taken to ensure that future cases do not have to consider this omission. 

ORDER:
APPEAL ALLOWED
Judge Nancy Hillier
Lead Judge Care Standards and Primary Health lists
25 June 2012