An action by the Scottish Government’s Education Department has, at a stroke, created what looks like a legally binding precedent allowing local authorities to close small rural schools – and indeed most rural schools, with neither let nor hindrance.
This leaves a piece of legislation designed to shelter the particular nature and community role of rural schools acting instead as their blind executioner – or rendered unusable.
It preempts, or redirects in medias res, the work of the Commission on the Delivery of Rural Education which the Education Secretary established in 2011 to examine the utility of the 2010 Schools Act. The Commission began work on 1st August 2011 and is to report by August 2012.
It raises questions about the competence and engagement of the regime at the Scottish Government’s Education Department under which this situation has come about. It is inconceivable that the precedent set in letters by a senior civil servant – simultaneously closing four schools on behalf of Scottish Ministers – was not signed off by the Education Secretary.
Finally, there is the issue of the immediate injustice to a school with a strong case for retention that has been closed under this distortion of the purpose of the Act.
The legislation governing school closures, the Schools (Consultation) (Scotland) Act 2010 – or the Schools Act 2010 – has what the statutory guidance to the Act describes as ‘a presumption against the closure of rural schools’.
This statutory guidance also declares that: ‘The Act reflects the Scottish Government’s view that the educational benefits should be at the heart of any proposal (Ed: our emphasis) to make a significant change to schools’.
The guidance makes it plain that: ‘Consequently, the Act specifies that the local authority must (Ed: our emphases), for all consultations, prepare an educational benefits statement (EBS) and publish it within the proposal paper’.
The ‘presumption against the closure of rural schools’ is supposed to operate, again according to the statutory guidance, ‘by ensuring that a decision to consult on a rural school closure proposal is not made until (Ed: our emphasis) the local authority has had regard to all viable alternatives and assessed the likely implications of closure’.
But supposing that an options appraisal model (or template), which would drive the required prior consideration of viable alternatives, had been formally accepted also as an educational benefits statement by a senior civil servant acting on behalf of Scottish Ministers; had also been formally endorsed by him in unequivocal and unconditional terms as acceptable in this role; and had also been used as the declared lynchpin of the decision to close four schools?
Such an action would confer a primary authority upon a single template over the two key statutory levers of the Act in the case of rural schools – one of which it had not even been designed to address.
And supposing that this two-way model or template was a mathematical spreadsheet heavily weighted towards the greater value of a large new school – and producing a situation where:
- a small rural school of 19 or fewer pupils could never, in any circumstances, score enough to defend itself against a closure proposal
- a larger rural school of 47 or fewer would face the most severe difficulty in surviving a closure proposal?
This scenario would see the ‘presumption against the closure of rural schools’ never brought into play as the Act designed it to be. It was to be the key criterion which would singly prevent proposals to close rural schools going forward into consultation, providing that the prior consideration of viable alternatives left the matter in or near balance.
A single options appraisal model, with the weightings emphasis described, would inevitably propel proposals to close small rural schools through the required pre-consultation considerations.
Then when the consultation process itself was begun, the very same model, producing the very same results but running in different colours as an educational benefits statement, would ensure that schools like these could almost never be defended from closure.
Supposing that, despite any proven excellence in the results of the small school’s teaching and learning, these matters were evaluated under the officially accepted model simply on weighted scores heavily favouring bigger school rolls?
Supposing that this weighting made it impossible for small rural schools of the rolls noted above – 19 or fewer and 47 or fewer – to score more than a single point for teaching, co-operative learning, music groups, drama, extra curricular activities etc? Most of these are, of course, the areas where small schools and more individual teaching produce measurably better results.
And supposing this weighting was producing judgments of such questionable stability that the addition of a single pupil to the roll of a school of 19 pupils were enough to raise its performance score by a factor of 3?
Supposing then that the weightings of the formally endorsed model left an already refurbished rural school of 145 pupils unable, ever, to better the score of the worst possible new school of 399 pupils?
This scenario sees a single precedent-setting action by the Scottish Government’s Education Department strip the 2010 Schools Act of the much vaunted protection it was designed to offer rural schools and the communities whose sustainability is normally tied to them.
It sees those charged with overseeing the proper implementation of a key piece of legislation as themselves subverting it.
This entire scenario would convert the 2010 Schools Act, with its ‘presumption against the closure of rural schools’, in to a charter to close virtually any rural school; or render it unusable in virtually all proposals to close rural schools.
Unfortunately this scenario is indeed the current position of the 2010 Schools Act.
In either case, this situation:
- has prevailed from the moment the precedent was set by the Scottish Government’s Education Department’s action on 20th February 2012 in formally accepting an options appraisal model as additionally providing a valid educational benefits statement;
- has executed this conferred authority, in the field it was not designed to serve, by closing four schools, one against stout and evidenced defence – on the basis of the performance scores the strategically weighted model produced.
Hillhead School and the copied Educational Benefits Statement
Hillhead Primary School in Wick in north east Caithness was included in a decision by Highland Council to close four primary schools in and near the town. The two southern schools were to close and transfer together to accommodation on a joint campus at the much needed new Wick Academy, a project which is in train.
The two northern schools – Hillhead and Wick North – were to close and transfer their pupils to a separate new school on that side of the town.
Hillhead school is 81% full. It has a markedly good educational record. It has been given a Category B (Satisfactory) score for both its physical condition and its suitability for teaching and learning. It plays a very important role in its deprived community, with older children looking out for younger ones in the world outside the school. It bonds the community. The parents and children do not want the school to close.
Wick North school is notably less well found and its parents want a new school.
The Highland Council proposal, nevertheless, was to close and combine both.
We do not propose to go into the detail here of the strong case for retention made by a spirited Hillhead campaign. The summary account above establishes the essential outline.
However, in the process of research and of testing the legal validity of the process followed and claims made by Highland Council in this dual closure proposal, lead campaigner Dr Ewen Pearson made a key discovery.
He found that the Educational Benefits Statement for the proposal had been copied and pasted from one used by Angus Council in its own proposal to close two primary schools in Arbroath, Timmergreens and Muirfield; and to transfer their combined pupils to a single new build school.
Arbroath is a major town with just under 23,000 people, over three times the size of Wick, with just under 7,500. Arbroath is 12 miles on the busy main road running through a populous area to the City of Dundee, with a population of just over 144,000. Wick is 16 miles away on slow roads across an empty landscape from the nearest town of Thurso, on the north coast, with a population just under 8,750.
Yet Highland Council had simply taken an Educational Benefits Statement from the large southern business townscape and applied it to a depressed small town in one of the most remote parts of rural Scotland.
Moreover, most of the points in the copied Educational Business Statement are inaccurate when applied to the Hillhead school – since the model on which the new north Wick school was costed did not contain sufficient room for most of the features described in the statement copied from the Angus proposal.
Dr Pearson’s discovery of Highland’s wholesale lifting of the statutorily key Educational Benefits Statement from what was in every way a wholly inappropriate comparative source, made the headlines locally and nationally.
The Scottish Government ‘called-in’ the closure decisions for all four schools, since all featured the Educational Benefits Statement copied from Angus. Calling-in means Scottish Ministers taking upon themselves the responsibility for the retention or closure of the affected schools. The call-ins in this case were largely made on the grounds of the copied Educational Benefits Statement .
Nevertheless, on 20th February 2012, Jonathan Moore. Head of the Schools Infrastructure Unit at the Scottish Government’s Education Department, wrote to inform Highland Council that Scottish Ministers had decided to consent to the closure of all four schools, including the soundly contested Hillhead school.
The given reasons for closing Hillhead
In his letter to Hugh Fraser, Education Director at Highland Council, Jonathan Moore noted first: ‘… Ministers are of the view that using wording from an educational benefits statement prepared for another local authority was unhelpful’.
It is immediately noticeable that the wholesale lifting of an Educational Benefits Statement from another place has been rendered gently as ‘using wording from …’; and that the view of such an action was that it was ‘unhelpful’.
University students who fail their degrees for plagiarism would envy such tolerance.
However, Mr Moore’s helpfulness did not stop there.
He goes on immediately to say:
‘However, they (Ed: Scottish Ministers) note this (Ed: the copied educational benefits statement) was prepared as a summary and following further investigation are satisfied that a detailed Educational Benefits Statement was written specifically for the schools in question. This is contained in the option appraisal report which is referred to in paragraoph (Ed: sic) 2.2 of the Proposal Paper which was available to the public throughout the consultation process.’As a result, Ministers are content that the Council has fulfilled its statutory duties in this regard.’
The immediate problems with this statement
There are serious enough issues raised at once in this statement by Mr Moore.
Why would an unchallenged Educational Benefits Statement prepared by one local authority for a closure proposal in its bailiwick be reduced to the status of a ‘summary’ when copied and pasted into another and unfitting proposal by a different council?
What is described as ‘… a detailed Educational Benefits Statement’ represents accurately the reality of the single such statement presented to serve in respect of the two schools of Hillhead and North Wick and of the two schools in south Wick.
The statutory guidance to the 2010 Schools Act – whose primary purpose is to guide local authorities in their understanding of the obligations of the Act – says: ‘Consequently, the Act specifies that the local authority must, for all consultations, prepare an educational benefits statement (EBS) and publish it within the proposal paper.’ (Ed: our emphases.)
This is reinforced by the Explanatory Notes to the 2010 Schools Act which say, under Paragraph 12 of section 3 on the Educational Benefits Statement: ‘Where a local authority decides to consult on more than one proposal at the same time they would be able to package them together into one proposal paper (section 4(3)). However they would have to produce a separate educational benefits statement for each proposal.’ (Angus Council’s proposal, from which Highland’s educational benefits statement was lifted, correctly presented one such statement for each of the two schools concerned.)
In this case, a single lifted Educational Benefits Statement was applied to cover four, presumably individually distinct schools from four individually distinct communities.
Scottish Ministers in giving neither mention nor weight to this clear breach of statutory obligations by Highland Council, did not uphold the authority of the 2010 Schools Act in the decision to close the four Wick schools, transmitted to Highland Council by Mr Moore.
This sets a precedent that the statutory obligation to prepare and present one Educational Benefits Statement for each school to be closed is rendered of no account, without the benefit of preparatory revision to the Act.
Mr Moore’s statement is copied verbatim in the parallel letter of consent to Highland to close the two primary schools in south Wick – Pulteneytown and Wick South. This precedent has therefore been used to close four schools, two covered in each letter. The fact that three schools appear willing to close where one, emphatically, is not, is irrelevant to the legal chaos these grounds for closure have created.
The shape-changing precedent set
The crunch precedent in this statement of Mr Moore’s is that he has voluntarily assigned the identity of an ‘Educational Benefits Statement’ to material: ‘… contained in the option appraisal report which is referred to in paragraoph (Ed: sic) 2.2 of the Proposal Paper which was available to the public throughout the consultation process.’
The text to which Mr Moore refers, paragraph 2.2 of Highland Council’s closure proposal paper, says:
’2.2 This proposal was informed by an extensive consultation process and option appraisal methodology undertaken in accordance with current Scottish Government guidelines. The option appraisal report, which was produced by Caledonian Economics Limited (CEL) the Highland Council’s contracted partner for the SSER, can be accessed at the Highland Council web-site.’
This paragraph on Highland’s proposal paper, given the authority by Mr Moore for his description of the material to which it refers as an ‘Educational Benefits Statement’, does not describe it as he suggests. It refers only to an ‘options appraisal methodology’.
The document carrying the material from this exercise is itself entitled: Wick Primary Schools, Options Appraisal, Hillhead Primary School and North Primary School. (Options Appraisal)
Searching the Highland Council website for other references to this ‘options appraisal methodology’ finds nothing other than its description in exactly these terms, referring to a model developed for Highland by Caledonian Economics Ltd for use in revisions of the school estate.
On what precise basis did Mr Moore feel able to accept this as something it does not claim to be and to pronounce, on behalf of Scottish Ministers, the crucial precedent of being unconditionally ‘satisfied’ with it as an ‘Educational Benefits Statement’?
In a system supposed to be fair-minded, what drove him to be proactive in going looking for something in which Scottish Ministers might purport to see an Educational Benefits Statement to support a decision to close these four schools?
It gets worse.
After saying that Scottish ministers were ‘satisfied’ that ‘a detailed Educational Benefits Statement’ (referred to by all other sources as an ‘options appraisal’) was ‘written specifically for the schools in question’, Mr Moore immediately goes on:
‘As a result, Ministers are content that the Council has fulfilled its statutory duties in this regard.’ (Ed: our emphases)
So here is the precedent that is toxic for the 2010 Schools Act.
Mr Moore has committed the Scottish Government to being ‘satisfied‘ and ‘content‘ that this specific Caledonian Economics ‘options appraisal‘ is in fact also an ‘Educational Benefits Statement‘ which, for Highland Council ‘… fulfilled its statutory duties in this regard‘.
This is the options appraisal described in The Scenario section above as having its scoring system so heavily weighted in favour of large schools that:
- a rural school with 19 or fewer pupils can never defend itself from a closure proposal;
- a rural school of 47 or fewer pupils will find it all but impossible to escape closure;
- an already refurbished rural school of 145 pupils will be unable, ever, to better the score of the worst possible new school of 399 pupils.
How many of the rural schools in Argyll and the Isles fit one of these three categories? Yours? Gird up for a last ditch defence. The share price of the ‘presumption against the closure of rural schools’ is through the floor.
The precedent in practice
Mr Moore’s letter sets the clear precedent that this single Caledonian Economics device is now formally accepted as both an options appraisal to be used in pre-consultation evaluations; and as the crucial Educational Benefits Statement during consultation and in final decision taking on closure.
This is why and how the 2010 Schools Act has become a charter for closing rural school since 20th February 2012, the date of Mr Moore’s letter to Highland Council. (Jonathan Moore to Hugh Fraser)
Any local authority is now entitled to use the Caledonian Economics options appraisal model in both of its formally accepted roles and with its adversely weighted scoring system – as the instrument of certain closure of a rural school. They simply have to cite the authority of the Moore letters to Highland Council in respect of the four Wick schools.
As an options appraisal, this model will precipitate rural closure proposals into consultation with no need to pay attention to the statutory ‘presumption against closure of rural schools’.
As an Educational Benefits Statement, applying the same adversely weighted scoring system and producing the same results, it will then serve to flag up the inevitably superior scores of the proposed alternative school.
Should a local authority following this precedent have its closure decision called in and rejected, it is hard to conceive of any judge turning down their appeal at Judicial Review, given the unconditional nature of the Moore endorsement.
And should there be any attempt to remove or overset this precedent in future closure proposals, where would that leave the validity of the closure of Hillhead school?
Rock and hard place?
Conequences of the legal dilemma
This legal dilemma, in our view, makes the 2010 Schools Act no longer a usable piece of legislation.
It must be suspended until it can be replaced as the legislation to govern the judicious closing of schools; and the wrong done to Hillhead School, whose hard fought case demonstrated its viable retention, must, in all honour, somehow, be redressed.
A situation fast becoming anarchic
Shetland Isles Council, despite the moratorium on new closure proposals agreed to run for the duration of the work of the now displaced Commission on the Delivery of Rural Education, has just announced proposals to close 5 Junior Secondaries and 7 Primary schools.
One of these – Burravoe – very recently reprieved by Scottish Ministers from a closure decision, is on that list. Some of these schools have now been under virtually constant consultation for six years.
Minard School in Mid Argyll, another small and a highly successful rural school, has received disturbing intimations of the intent of Argyll and Bute Council to pursue them yet again, after two recent successive and failed closure attempts.
In terms of the country sports activity that best describes the hunting of Burravoe and Minard schools, this is no less than the persistent stalking of fleet but tiring deer by incompetent guns.
Parents and teachers are exhausted in what is a licensed continual predation. It has to stop.
Is anyone on watch at the Scottish Government’s Education Department?
Two letters simultaneously sent to Highland Council and signed by a senior civil servant, Jonathan Moore, Head of the Schools Infrastructure Unit at the Scottish Government’s Education Department, have closed four schools in Wick. They have done so by setting a precedent that has fatally undermined the utility of the 2010 Schools Act.
The precedent was the conferring of the additional and unsought status of Educational Benefits Statement upon a model designed as an options appraisal methodology – which no one, including its authors and commissioners, had previously claimed to be anything other than that.
These letters were sent on behalf of Scottish Ministers with the precedent setting judgment presumably devised in support of what was perceived as the interests or the determination of Scottish Ministers in this matter.
There are questions to be asked that could not be more serious in respect of responsibility for the legally and educationally chaotic consequences of this action.
- Were Jonahan Moore’s letters to Highland signed off by the Education Secretary or was this senior civil servant going off piste on a solo excursion?
- Was the Education Secretary aware of the nature, operation and outcomes of the device upon which the status of Educational Benefits Statement was conferred to justify this closure decision?
- If he was not aware, did he make enquiries about this, having read what was clearly an unusual judgment, before he signed off on it?
- If he enquired, what was he told that allowed him to feel comfortable with signing off on an unfamiliar virgin strategy?
- Had the Education Secretary considered the precedent-setting authority of this action?
- If he had, why did he knowingly subvert the 2010 Schools Act it is his responsibility to implement according to its stated intentions, including the statutory ‘presumption against the closure of rural schools’?
- Where does this situation leave the work of the Commission on the Delivery of Rural Education?
- What is the status of the moratorium on new school closure proposals while the Commission is at work, given Shetland Council’s clear departure from it?
The overall picture is one of a key department whose work affects children, families, teachers and communities across Scotland and which appears, on this evidence, to be dysfunctional.
This is not a situation that can continue.
NOTE 1: For thinking and perspectives most of us would recognise as what we would expect to inform an ‘Educational Benefits Statement’, we cannot recommend more highly the submission made to the Commission on the Delivery of Rural Education by Children in Scotland: CommissiononRuralEducationCiSresponse-1
NOTE 2: There is very much more detailed evidence that we have seen from authoritative analysts on the inherent instability of the Caledonian Economics options appraisal model in its application to rural schools. We cannot use it because it is not our work and it would be inappropriate to ask for permission to do so.
NOTE 3: There is very much more documented evidence available on the soundness of the case for retention of Hillhead School which has suffered serious injustice in its closure by Education Scotland’s precedent-setting excursion – but the rehearsal of such evidence is beyond the scope of this article.