Mr Peter Trythall: Professional conduct panel outcome Panel decision and reasons on behalf of the

Secretary of State for Education

July 2018

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Contents

A. Introduction 3

B. Allegations 4

C. Preliminary applications 6

D. Summary of evidence 22

Documents 22

Witnesses 24

E. Decision and reasons 24

Panel’s recommendation to the Secretary of State 46

Decision and reasons on behalf of the Secretary of State 49

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Professional conduct panel decision and recommendations, and decision on

behalf of the Secretary of State

Teacher: Mr Peter Trythall

TRA reference: 10078

Date of determination: 6 July 2018

Former employer: Stanbridge Earls School, Hampshire

A. Introduction

A professional conduct panel (“the panel”) of the Teaching Regulation Agency (“the

TRA”) convened on 4 June 2018 – 6 July 2018 at 53 to 55 Butts Road, Earlsdon Park,

Coventry CV1 3BH to consider the case of Mr Peter Trythall.

The panel members were Cllr Gail Goodman (teacher panellist – in the chair), Mr Chris

Rushton (lay panellist) and Ms Fiona Tankard (teacher panellist).

The legal advisor to the panel was Ms Patricia D’Souza of Eversheds Sutherland

(International) LLP.

The presenting officer for the TRA was Ms Hannah Eales of Kingsley Napley Solicitors.

Mr Trythall was present for most of the hearing and was represented throughout by Mr Andrew Faux of the Reflective Practice and Ms Sarah Linden, solicitor of the Association of School and College Leaders.

Teacher A was present for most of the hearing and was represented throughout by Ms Louise Price of Doughty Street Chambers and, at times, by Vanessa Wilson, solicitor of the National Education Union.

Mr Bailey was present for most of the hearing and was represented throughout by Mr Jonathan Storey of Cornwall Street Chambers.

The hearing was recorded and took place in private, save for the announcement on

findings of fact and findings relating to unacceptable professional conduct and/or conduct

which may bring the profession into disrepute, which was announced in public.

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B. Allegations

The panel considered the allegations set out in the Notice of Proceedings dated 3 May

2018 (as amended see below).

The panel will hear an allegation that you are guilty of unacceptable professional conduct

and/or conduct that may bring the profession into disrepute in that whilst employed as the

headteacher for Stanbridge Earls School, Hampshire between 2010 – 2013:

1. He did not ensure that SEN and/or safeguarding matters were regular agenda

items for the School’s senior management team.

2. He did not keep adequate records of safeguarding matters and/or effectively

delegate this task to another, appropriately qualified member of staff.

3. He inappropriately delegated to non-specialist staff member, the responsibility for

the provision of appropriate care for and/or behavioural management of pupils with

special educational needs.

4. He did not conduct adequate supervision of the School’s Special Educational

Needs Coordinator, in order to ensure that the school was effective in fulfilling its

statutory duties in respect of the pupils in the school roll.

5. He did not direct and/or adequately supervise the school and medical staff to

follow safe procedures in order to meet the needs of pupils with medical conditions

in that:

a. On or around 28 January 2011, there was an error in relation to the

administration of [a Pupil]’s medication; and/or

b. A drug error occurred in that the medical team was unable to establish

whether [a Pupil] and other pupils on “non-controlled” drugs had been

medicated on 8 February 2011:

6. He did not adequately supervise and/or direct the School’s deputy headteacher–

pastoral to draft the school’s safeguarding policies and/or annual safeguarding

reports in order to ensure that they were fit for purpose (and/or to ensure that the

school was effective in fulfilling its statutory duties in respect of the pupils on the

school roll).

7. He did not recognise and/or appropriately act upon safeguarding concerns relating

to any or all of the facts as set out at Schedule A to this allegation.

8. The facts of paragraphs 1 to 7 above constitute a failure to safeguard pupils’

wellbeing when considered:

a. individually; and/or

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b. together.

[Redacted Schedule]

At the start of the hearing, Mr Trythall’s representative confirmed that allegation 2 was partially admitted and the factual particulars set out in Schedule A at paragraphs 1– 3, 5 – 7, 9 – 11 and 13 – 18 were admitted. None of the other allegations were admitted. In her closing submissions, the presenting officer informed the panel that she wished to offer no evidence in relation to Schedule A paragraphs 4, 8 and 12. As not all of the allegations were admitted, this matter proceeded as a disputed case.

C. Preliminary applications

Observers

At the start of the hearing, the panel was advised by the presenting officer that the TRA wished to enable members of the Department of Education (“DfE”) to attend parts of this hearing to observe and obtain updates. It was submitted that DfE staff understood that this is a private hearing; however, they wished to obtain updates to assist with press updates. The presenting officer informed the panel that she would be put on notice as to when such observers might attend this hearing.

In response to the presenting officer’s submissions, Mr Trythall’s representative indicated that he had no objection to the attendance of DfE staff for training reasons; however, he submitted that he “struggled to understand” why information should be needed to update the press. This was a private hearing and the press should be left “in the dark” until the findings of the panel were published. Mr Trythall’s representative further submitted that the administrator for the relevant school only agreed to provide disclosure of relevant documents to the parties on the basis that these would not be disclosed further afield. Updates from DfE staff to members of the press would go against this.

When asked for her submissions, Teacher A’s representative submitted that all of the parties had to sign onerous confidentiality agreements with the administrator which set out the robust and narrow basis upon which he was willing to provide disclosure of documents relevant to the allegations. Teacher A’s representative submitted that to enable observers to attend the hearing to provide updates to the press could potentially breach that onerous agreement. Teacher A’s representative submitted that she would wish to reserve Teacher A’s position in order to return to the agreement to update the panel as to whether any action needed to be taken by Teacher A.

Finally, Mr Bailey’s representative did not object to the principle of DfE observers’ attendance at the hearing. However, he also submitted that there could be “confidentiality issues” if updates were reported to the press.

The legal advisor drew the panel’s attention to paragraph 4.4 of the Procedures which states that DfE officials may attend a hearing but will not participate in the making of the panel’s decision.

Shortly thereafter, the presenting officer notified the panel that she wished to withdraw the request that DfE observers attend the hearing room. She instead notified the panel that she had agreed with the TRA that she would provide any updates to the TRA regarding the stage of the proceedings. She also stated that she would confirm to the

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TRA that all that could be released to the media was the current stage of the proceedings and nothing more, given that this was a private hearing.

Severance Application

At the start of the hearing, Teacher A’s representative made an application to sever Teacher A’s case from that pursued by the TRA against Mr Trythall and Mr Bailey.

Teacher A’s representative submitted that the case before the panel today relating to Teacher A was very different and had been narrowed since these proceedings first started. It was suggested prejudice could occur in two forms. The first was a practical procedural prejudice issue, as a case against three teachers would take much longer than if the allegations against Teacher A were considered at a separate hearing. It was suggested that a hearing lasting one week would be sufficient. There was also a significant amount of documentation in this case which, it was submitted, did not relate to allegations against Teacher A. Teacher A’s representative further submitted that there would be substantive prejudice to Teacher A, as it was not suggested by the TRA that Teacher A was culpable for anything that happened before September 2012. It was submitted that anything the panel may hear which happened prior to September 2012, which was either negative about the school or any of the teachers, whether rightly or wrongly, could prejudice the panel’s deliberations relating to the allegations against Teacher A. It was submitted that it would be very difficult for the panel to put out of its mind any concerns it had about the other teachers’ conduct and it could cause unfairness and prejudice to Teacher A.

In the skeleton argument submitted to the panel on behalf of Teacher A it was argued:

it was no longer the case that each of Teacher A, Mr Trythall and Mr Bailey were each subject to the same broad allegations as the allegations against each teacher had substantially altered.

the allegations against Mr Trythall and Mr Bailey spanned a considerable period of time, and it was only the “last few months” of the period of the allegations that related to Teacher A. It was submitted in the skeleton argument that there was no overlap in the time period of the allegations against Mr Bailey (September 2009 to September 2012) and Teacher A (September 2012 to May 2013);

Teacher A was rarely cited in the TRA’s amended chronology (which related each entry in the chronology to an allegation pursued against a specific teacher);

Considerable material in the TRA’s bundle did not relate to Teacher A;

The parent witness to be called to give oral evidence (Parent B) was not relevant to the case against Teacher A;

No inconvenience would be suffered by either the Ofsted inspector to be called to give evidence or the TRA’s expert;

To associate Teacher A with the allegations against Mr Trythall and Mr Bailey which arose from the background which led to the relevant school’s receiving emergency Ofsted inspections caused real and identifiable prejudice to Teacher A.

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It was disproportionate to engage Teacher A in a far longer hearing than necessary.

The skeleton argument and oral arguments submitted by the presenting officer countered a number of the points raised by Teacher A. The presenting officer submitted that the panel, in its decision dated 16 December 2016, stated that there was some significant similarity in the allegations against all three teachers, and that particulars A.1 to A.6 in the Notice of Proceedings relating to Teacher A were also faced by Mr Trythall and Mr Bailey. The presenting officer further submitted, in her skeleton argument, that the expert report of Witness A and his addendum report, as well as the evidence of the Ofsted inspector, were relevant to the case against all three teachers. In addition, each of these witnesses would be inconvenienced in attending a separate hearing relating to just Teacher A.

The presenting officer further submitted that it remained the case that all three teachers should be present when the allegations and evidence were tested so that they could explore any weakness or discrepancies in the evidence relating to each of them. There was sufficient nexus between all three teachers as the allegations clearly related to the same school and the same related evidence and were based on evidence from the same witnesses in respect of the expert report and evidence from the Ofsted inspector. Teacher A’s representative submitted that the factual nexus was not the same between the teachers as the allegations against Teacher A were very specific and related to his actions and therefore it was not right to suggest that they were “sitting on top of all the facts”.

In addition, in her skeleton argument, the presenting officer submitted that the TRA would suffer additional cost and inconvenience at having to relist a separate hearing for Teacher A and it would mean that a further panel would have to read into the considerable documentary material which had been presented to the current panel. In her oral submissions, the presenting officer stated she was not confident that a separate hearing relating to Teacher A could be listed swiftly. She considered it would result in a lengthy delay as it could prove difficult to find availability for the Ofsted witness and expert to re-attend.

With regard to the evidence relating to [a Pupil], the presenting officer submitted that in order to avoid any prejudice the TRA’s opening note made clear which allegations against which teacher this related to. It was clear from the opening note that this evidence did not relate to allegations against Teacher A. The presenting officer therefore invited the panel to reject Teacher A’s application for severance.

The panel noted the provisions of paragraph 4.61 of the Procedures and was advised that it first needed to consider whether there was any risk of undue prejudice to the fairness of the proceedings if the allegations against Teacher A were considered at a joint hearing relating to Mr Trythall and Mr Bailey. The panel was advised that if it was satisfied there was no such risk, it should go on to consider the second question of whether the allegation against each teacher arose from the same circumstances and/or whether in the opinion of the panel, a joint hearing was necessary. Only if the answer to the second question was yes could the allegations against all three teachers continue to be considered at a joint hearing. The panel understood that the exercise of this power was a matter for its discretion.

As part of its consideration, the panel’s attention was drawn by the legal advisor to the case of R (On the application of O’Brien) v General Medical Council [2006] which stated

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that for a joint hearing there should be some nexus between the various defendants or the circumstances alleged.

The panel first considered whether there was any risk of undue prejudice if the case against Teacher A were heard together with the cases against Mr Trythall and Mr Bailey. The panel believed there could be a risk of prejudice to the fairness of the proceedings against each individual teacher if the cases were considered at a joined hearing. However, it considered that there was no risk of “undue” prejudice given the panel would keep the issues of fairness and relevance at the forefront of its mind throughout the hearing. It would therefore be able to put out of its mind matters irrelevant to the allegations against each teacher.

The panel also considered the circumstances that might arise if all three teachers gave oral evidence: since one teacher would have to go first, the other two would have had the benefit of hearing the preceding teacher’s or teachers’ evidence before giving their own evidence. However, the panel considered that this was always a possibility in any joint hearing. If any undue prejudice were created purely as a result of this, the consequence would be that there would never be any joint hearings.

The panel then considered whether the allegations against Teacher A arose from the same circumstances and determined that there was a common thread running through the cases since it was alleged that each of Mr Trythall, Mr Bailey and Teacher A was involved in devising the safeguarding strategies and procedures exercised by the relevant school (albeit Mr Bailey and Teacher A were alleged to have done so during time periods that did not overlap). Teacher A succeeded Mr Bailey as the deputy headteacher responsible for safeguarding issues. The panel considered that a joint hearing was necessary since the allegations against all three teachers would be based upon the safeguarding procedures and policies of the same school. The time period of the allegations against Mr Trythall, namely 2010 and 2013, overlap with those against Teacher A which related to September 2012 to May 2013.

Having read each of the parties’ bundles of documentary evidence in full, the panel was aware that the evidence submitted on behalf of each party was relevant to and may impact on the allegations against each teacher. The panel considered there was a sufficient nexus amongst the allegations, given that there were some broad allegations which were pursued against all three teachers, which rendered it necessary and in the public interest for the allegations against Teacher A to be considered at the same hearing. It was also possible that the context of the evidence against the other two teachers might prove advantageous to Teacher A’s defence.

The panel also considered there could be inconsistency in decision making if the evidence submitted on behalf of Teacher A were considered at a different hearing. Therefore, the panel considered it would be disproportionate for the case against Teacher A to be severed from that of Mr Trythall and Mr Bailey.

Amendment of Allegations

In the course of the hearing, the presenting officer applied to amend the allegations against Mr Trythall. The factual particular at Schedule A point 11 stated: “In July 2011, [a Pupil] reported that she had been raped by [a Pupil].” The presenting officer requested this be amended to: “In July 2011, [a Parent] reported to the School that [a Pupil] said she had had sexual intercourse with [a Pupil].” The presenting officer submitted that this amendment was consistent with [a Parent]’s statement which was included in the TRA

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bundle. The presenting officer also applied to amend the factual particular of Schedule A point 11 against Mr Bailey to be amended in the same manner.

The amendment to Schedule A point 11 was not opposed by any of the teachers. Mr Trythall’s representative confirmed to the panel this amendment had been requested by Mr Trythall as far back as 2016 and was sought on behalf of Mr Trythall to clarify the exact information that was reported to him at the relevant time. The panel was content to amend Schedule A point 11 as suggested by the presenting officer as it considered it would not cause unfairness or prejudice as it did not change the nature/scope of the allegations against Mr Trythall, and it did not change the factual basis upon which point 11 of Schedule A was founded.

Proceeding with the hearing in Mr Trythall’s absence

At various points during the oral evidence stage of the substantive hearing Mr Trythall’s representative sought permission for the hearing to proceed in Mr Tythall’s absence due to either health issues and/or journey time. Mr Tythall’s legal representatives (both Mr Faux and Ms Linden were present throughout this period).

The legal advisor highlighted to the panel paragraph 4.27 of the Procedures which states “Where a teacher against whom an allegation is made does not attend and is not represented at a panel hearing, the chair will: check the notice requirements for the hearing...” The panel noted that the wording of paragraph 4.27 makes clear that it is necessary to check the notice requirements and enquire if a teacher has provided reasons for absence, if the teacher is both absent and there is no representative present for the teacher. The panel considered that it was not necessary to hear formal advice on proceeding in absence as the particular circumstances outlined in paragraph 4.27 were not engaged as Mr Trythall’s representative was present. The panel took the same approach when each of Mr Bailey, Mr Trythall and Teacher A was absent from other periods of the private hearing when each of their representatives were present.

Proceeding with the hearing in Teacher A’s absence at the public hearing

Teacher A’s representative notified the panel earlier on in the hearing that Teacher A would not be present on 5 July 2018 due to personal reasons. The panel also noted that Teacher A’s representative was not present. The panel considered whether this hearing should continue in the absence of Teacher A.

The panel determined to exercise its discretion under paragraph 4.29 of the Procedures to proceed with the hearing in the absence of Teacher A.

The panel understood that its discretion to continue a hearing in the absence of a teacher had to be exercised with the utmost care and caution, and that its discretion was a severely constrained one.

In making its decision, the panel noted that a teacher may waive his right to participate in the hearing. The panel took account of the various factors drawn to its attention from the case of R v Jones [2003] 1 AC1. The panel therefore considered that Teacher A had waived his right to be present at the hearing in the knowledge of when and where the hearing was taking place.

The panel had regard to the requirement that it was only in rare and exceptional circumstances that a decision should be taken in favour of the hearing’s taking place.

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There was no indication that an adjournment might result in Teacher A’s attending the hearing.

The panel had regard to the extent of the disadvantage to Teacher A in not being present for the public announcement of the findings in this case. The panel had had, in the course of this hearing, representations made by Teacher A relating to his defence and mitigation.

The panel had regard to the seriousness of this case, and the potential consequences for Teacher A and accepted that fairness to Teacher A was of prime importance. However, the panel considered that Teacher A had waived his right to appear. Therefore, taking account of the inconvenience an adjournment would cause to the other teachers in this case, the panel decided to proceed with the hearing in Teacher A’s absence.

Expert witness attending as an observer

The presenting officer submitted to the panel that there was no objection from any of the parties that the expert witness be present in the room whilst Parent B gave oral evidence. This was confirmed by all the teachers’ representatives. The legal advisor advised the panel that the Procedures make no provision for how an expert witness may give evidence at a hearing. However, paragraph 4.66 of the Procedures states that “Witnesses may not be an observer at the hearing until they have completed giving evidence and been formally released by the chair, unless decided otherwise by the panel.” The legal advisor also advised that other regulatory bodies permit expert witnesses to attend and observe prior witnesses’ evidence before giving oral evidence themselves. Because there were no objections raised by any of the parties, the panel determined that it was content for Witness A to attend the hearing room to hear the oral evidence of Parent B prior to giving oral evidence himself.

Admissibility of Witness A’s evidence

The panel heard oral evidence from Witness A, the expert witness, from 7 June 2018. Whilst waiting in a room outside the hearing room to be collected by the legal advisor, during an adjournment, and whilst he was still under oath as a witness, Witness A telephoned the British Psychological Society to request advice about whether he was able to comment in a hearing on a report prepared by another professional. Witness A’s oral evidence to the panel on this issue, on 7 June 2018 was that he did not discuss the detail of the case against Mr Trythall, Mr Bailey or Teacher A in any way and asked a question “in principle”.

It was therefore necessary for the panel to hear submissions from the parties’ representatives as to whether Witness A’s evidence was admissible or not.

The presenting officer submitted to the panel that Witness A had contacted a professional regulator to ask a generic question to comment on another psychologist’s report. It was submitted that Witness A did not appear to discuss the case and therefore it could be said that this conduct, although inadvisable, did not go against the panel’s direction not to discuss the case with anyone. The presenting officer submitted that the panel had limited powers as to the appropriate action to take and it was a matter for the panel to conduct the proceedings as they saw fit.

Mr Trythall’s representative submitted that Witness A had raised a “hypothetical” question with the British Psychological Society and he did not accept the panel had limited powers

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as to the appropriate action to take. It was submitted by Mr Trythall’s representative that Witness A was not a lay witness, he was called as an expert witness and he held himself out as someone who was experienced in preparing reports, attending court and giving evidence. It was further submitted that Witness A sought advice whilst giving evidence about how to give evidence in this case. Paragraph 4.49 of the Procedures states that the procedure at the hearing will be determined by the chair. Therefore, in Mr Trythall’s representative’s view, the panel had powers to make any directions it considered appropriate with regard to Witness A.

Teacher A’s representative expressed her view on the gravity of the incident and it was submitted that Witness A’s actions were sufficient to cause the panel to reject his evidence as it was not fair to admit it within these proceedings.

Mr Bailey’s representative supported the submissions of Teacher A’s and Mr Trythall’s representatives. In addition, Mr Bailey’s representative submitted that although there was no express power in the Procedures relating to expert witness evidence, the panel was not precluded from taking appropriate action to assess fairness.

The legal advisor advised the panel that it would need to determine whether Witness A’s oral evidence and/or his report and addendum report were still admissible in these proceedings. Paragraph 4.18 of the Procedures states that the panel may admit any evidence, where it is fair to do so, which may reasonably be considered to be relevant to the case. Therefore, the panel would need to determine whether it was fair to admit Witness A’s oral and/or written evidence on the basis that it was reasonably considered to be relevant to the case. The legal advisor further advised the panel that it may wish to consider whether it was appropriate to grant directions relating to this issue. The panel was advised to consider whether it wished to permit Witness A to be further cross-examined by any of the teachers in this case or whether it was appropriate to discharge Witness A from his oath and direct the parties that his oral evidence and written evidence would no longer be admitted within these proceedings.

In its deliberations on this issue, the panel considered it was appropriate for the panel members and legal advisor to listen to a portion of the audio recording of the hearing on 7 June 2018. The panel heard Witness A state to the panel that he had contacted the British Psychological Society to find out “in principle” if he was permitted to comment on another report prepared by an educational psychologist. Although the panel considered it did have the power to dismiss a witness before completing his/her oral evidence, it did not consider this was proportionate.

The panel considered that although Witness A was not permitted to speak to another in relation to the case whilst he was on oath, this did not sufficiently taint either his oral or written evidence to such a degree that it was no longer fair to admit his evidence. The panel considered Witness A’s evidence may still reasonably be considered to be relevant to the case as it was important for the panel to hear Witness A’s responses to the cross examination of each of the teacher’s representatives as to the case presented by the presenting officer. The panel was not content to dismiss Witness A’s evidence as it did not consider this was in the interests of justice or fairness to the proceedings. The panel would provide a formal admonishment to Witness A when he was recalled to give oral evidence.

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Clarification of the status of Witness A’s report

In the course of the hearing, the presenting officer was asked to clarify the basis upon which Witness A had been instructed to provide an expert report. Teacher A’s representative submitted that there was confusion around this issue, and Witness A appeared, from his oral evidence, to be unclear about the basis upon which he had been instructed. He had stated in oral evidence that he believed he had been instructed not on the basis of his experience as an educational psychologist but as a former assistant director of a local authority with responsibility for children with special educational needs. He also stated in oral evidence that he believed that he had been instructed as an independent joint expert on behalf of all the parties and that he dealt with Kingsley Napley solicitors (who represent the TRA) simply as the lead contact on behalf of all the parties. Teacher A’s representative indicated that this issue needed to be clarified before Teacher A’s cross examination of Witness A took place.

Mr Bailey’s representative submitted that he shared the concerns raised by Teacher A’s representative; however, in addition, he submitted that Witness A’s report may have started as an advisory report and then appeared, from Witness A’s oral evidence, to be edited and put back together by Kingsley Napley solicitors. There were no submissions from Mr Trythall’s representative in relation to this issue.

The presenting officer drew the panel’s attention to the statement of truth signed by Witness A at the end of his statement. She further submitted that the TRA had put his report forward as an independent expert report which was based on all of his expertise as an educational psychologist, teacher and assistant director of a local authority and on his responsibility for children with special educational needs.

The legal advisor provided general advice to the panel in relation to expert reports. The legal advisor stated that expert reports in civil and criminal courts had to contain a statement that an expert understood and complied with his or her duty to the court, namely to help the court on matters within their expertise, with the duty to the court overriding any obligation to the person from whom the person has received instructions or by whom they are paid. A report had to state the substance of all material instructions. The expert had to provide objective, unbiased opinions on matters within his or her expertise and had to make it clear when a question fell outside that expertise, or when he or she was unable to express an opinion because there was insufficient information. The expert’s qualifications had to be provided. Where there was a range of opinion, the expert was required to summarise the range of opinion and give reasons for the expert’s own opinion.

Upon taking all the submissions of the parties into account, and the legal advice provided, the panel determined that it was content to accept Witness A’s oral evidence, his report and addendum report as independent expert evidence in this case.

Further issue relating to admissibility of Witness A’s evidence

The panel previously determined on 8 June 2018, that Witness A’s oral evidence, written report and addendum report were admissible in these proceedings as it considered they were fair and relevant to the case. However, there had been a change in circumstances. Witness A, due to health issues, was no longer able to attend these proceedings to give oral evidence and be cross-examined by Teacher A or Mr Bailey. He had completed his evidence in chief and had been cross-examined but only by Mr Trythall’s representative. Further, the panel took note of Mr Trythall’s representative’s submission that he left part

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of the cross examination he would have put forward for other teachers’ representatives to undertake. The panel was therefore advised that it was appropriate for the panel to reconsider whether it was content to continue to admit Witness A’s oral evidence and/or written evidence at all.

The panel was aware that it had also not had the opportunity to question Witness A about this evidence.

The panel had regard to a joint skeleton argument on behalf of all the teachers in this case submitted at the start of the hearing on 14 June 2018. In the skeleton argument, it was submitted, on behalf of the teachers, that in accordance with paragraph 4.18 of the Procedures, it was agreed that Witness A’s expert evidence “may reasonably be considered to be relevant to the case”. However, the issue was whether, given the curtailment of cross examination, it was fair to continue to admit such evidence.

The teachers’ joint skeleton argument and the advice from the legal advisor referred to the leading authority in the context of professional disciplinary proceedings on the admission of hearsay R (Bonhoeffer) v General Medical Council [2011] EWHC 1585 (Admin). In this case the Court determined that “in the absence of a problem in the witness giving evidence in person or by video link, or some other exceptional circumstance, fairness requires that in disciplinary proceedings a person facing serious charges, especially if they amount to criminal offences which if proved are likely to have grave adverse effects on his or her reputation and career, should in principle be entitled by cross examination to test the evidence of his accuser(s) where that evidence is the sole or decisive evidence relied on against him.” The panel considered that the unavoidable absence of Witness A did represent “a problem in the witness giving evidence in person or by video link”. Various propositions from paragraph 109 of the Bonhoeffer case were drawn to the panel’s attention in the teachers’ joint skeleton argument:

1. Even in criminal proceedings the right conferred by Article 6(3)(d) to cross-examine is not absolute. It is subject to exceptions referable to the absence of the witness sought to be cross-examined, whether by reason of death, absence abroad or the impracticability of securing his attendance. The legal advisor advised the panel, that it may wish to consider the extent to which efforts have been made to secure the further attendance of Witness A. It appeared to the panel the issue of the “impracticability of securing…attendance” was relevant here.

2. In criminal proceedings there is no “sole or decisive” rule prohibiting in all circumstances the admissibility of hearsay evidence where the evidence sought to be admitted is the sole or decisive evidence relied on against the defendant. Teacher A’s representative submitted that Witness A’s report was the sole or decisive evidence relating to some of the allegations against Teacher A.

3. In proceedings other than criminal proceedings there is no absolute entitlement to the right to cross-examine pursuant to Article 6(3)(d).

4. However, disciplinary proceedings against a professional…although not classified as criminal, may still bring into play significant elements of the requirements of a

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fair trial…including in particular the right to cross-examine witnesses whose evidence is relied on against them.

5. The issue of what is entailed by the requirement of a fair trial in disciplinary proceedings is one that must be considered in the round having regard to all relevant factors.

6. Relevant factors to which particular weight should be attached in the ordinary course include the seriousness and nature of the allegations and the gravity of the adverse consequences to the accused party in the event of the allegations being found to be true. The principal driver of the reach of the rights which Article 6 confers is the gravity of the issue in the case rather than the case’s classification as civil or criminal.

7. The ultimate question is what protections are required for a fair trial. Broadly speaking, the more serious the allegation or charge, the more astute should the courts be to ensure that the trial process is a fair one.

8. In disciplinary proceedings which raise serious charges amounting in effect to criminal offences which, if proved, are likely to have grave adverse effects on the career and reputation of the accused party, if reliance is sought to be placed on the evidence of an accuser between whom and the accused party there is an important conflict of evidence as to whether the misconduct alleged took place, there would, if that evidence constituted a critical part of the evidence against the accused party and if there were no problems associated with securing the attendance of the accuser, need to be compelling reasons why the requirement of fairness and the right to a fair hearing did not entitle the accused party to cross-examine the accuser.

Mr Trythall’s representative submitted that paragraph 8 above was not relevant to the panel’s consideration as it more largely related to the specific facts of the Bonhoeffer case. This was contradicted by the presenting officer who submitted that the general principle in paragraph 8 was relevant to the panel’s consideration.

In addition, the legal advisor further advised the panel that affording fair and proper procedural safeguards was necessary in these proceedings. Therefore the extent of safeguards in place to protect the teachers would be a relevant consideration. The legal advisor further advised the panel that in the present case, some protections are available, for example the provision of a hearsay warning before the panel made a determination on facts, including the weight to be attached to any hearsay evidence. The panel was also advised to take into account the lower standard of proof in these proceedings as compared with the criminal standard of proof which is “beyond reasonable doubt”.

The joint skeleton argument on behalf of the teachers submitted that as Witness A was not able to re-attend the hearing for cross examination by Teacher A’s and Mr Bailey’s representatives, they were hampered in defending their cases. They were unable to test the quality and content of Witness A’s report and addendum report or the evidential assumptions upon which it and his conclusions were based. It was also submitted that there was a necessity to further explore Witness A’s misunderstanding of his instructions

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and whether the fact that the report was not jointly instructed would have altered his conclusions in any way. This, it was submitted, undermined the “fundamental” fairness of the proceedings and therefore it was submitted that Witness A’s report and addendum report should be removed from the panel’s bundle and his evidence dismissed. Both Teacher A’s and Mr Bailey’s representatives submitted that they had not had the opportunity to put to Witness A specific points, many of which they summarised for the panel. They argued that Witness A might have changed his conclusions if they were based on incorrect or erroneous assumptions. Teacher A’s representative submitted it was highly unusual and in fact exceptional to admit an expert report as hearsay evidence in a situation where a teacher had not had the opportunity to cross examine Witness A on his report, particularly as he was not instructed as a joint expert. It was further submitted that admitting his evidence on the basis that limited or no weight be placed upon it was insufficient to remedy the unfairness against Teacher A. To permit Witness A’s evidence to remain in the bundle, when it had not been tested by two of the teachers would, in Teacher A’s representative’s view be “difficult”. It was therefore suggested that the fair and reasonable course would be to exclude this evidence. Mr Bailey’s representative submitted that Mr Bailey was at a disadvantage at not having had the opportunity to cross examine Witness A on the substance of his written evidence. It was submitted that if the panel continue to admit the evidence in its current form, it would cause each of the teachers considerable “harm” as the outcome of these proceedings may be that they would not be able to continue in their chosen profession. It was suggested that to admit unchallenged evidence, which formed a central part of the TRA’s case, and place any weight on that evidence at all was deeply unfair. By not being able to cross examine Witness A, Mr Bailey had not been able to ask Witness A about his report, the documentation he had seen, the information he had not seen and the basis for his assumptions and conclusions. Therefore, there had been no opportunity to ask Witness A whether he stood by all aspects of his report and whether he had effectively become an advocate for the TRA’s position. Mr Bailey’s representative further submitted that it was not possible to ask Witness A more about his views on safeguarding practice and it was unclear if he made any conclusions based on his experience as an educational psychologist (despite his indication during the hearing that he had not been instructed on the basis of this expertise). Mr Bailey’s representative further submitted that Mr Bailey had not been able to take Witness A through another expert report included within Mr Bailey’s bundle to determine whether he agreed with any of its content. Both Mr Bailey’s and Teacher A’s representatives submitted that they each had several hours of cross-examination prepared in relation to Witness A. In response to the submissions received from the teachers’ representatives, the presenting officer invited the panel not to confuse the issue of admissibility, with credibility or weakness in the evidence provided by Witness A. It was the presenting officer’s view that if the teachers wished to argue that Witness A’s evidence was tenuous or weak that was an issue to be dealt with by way of later submissions. It was further submitted by the presenting officer that Bonhoeffer is normally raised in the context of hearsay evidence on behalf of witnesses whose statements have not already been submitted. The presenting officer clarified for the parties that the TRA accepts that in relation to some allegations, Witness A’s evidence is the sole evidence. However, she submitted that was not the case for all allegations. It was submitted that there were exceptional circumstances in this matter as Witness A was unwell and it was not the case that the TRA had not chosen to call him and this was an issue that the panel should take

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in the round having regard to all the relevant factors. It was further submitted that there were compelling reasons why Witness A could not continue to give oral evidence. The requirement of fairness and the right to a fair hearing did not entitle the accused party to cross-examine the accuser. It was the presenting officer’s view that fairness to the proceedings could be addressed by attaching whatever weight the panel considered appropriate. Even though Witness A’s evidence was the only evidence relating to certain allegations, this did not warrant the removal of the entirety of his evidence. Upon further questioning by the panel, the presenting officer confirmed that the TRA did not wish to seek an adjournment. There had already been delay in this case and there was no suggestion that the TRA wished to request an adjournment as the TRA had closed its case. The legal advisor advised that the options the panel may wish to consider were as follows:

1. allow Witness A’s oral evidence given to date and allow his report and addendum report to remain within the bundle, but have due regard when considering the weight to attach to that evidence that Teacher A and Mr Bailey’s representatives have not had the opportunity to cross-examine him;

2. disregard Witness A’s oral evidence, but allow the report and addendum report to remain within the bundle as hearsay evidence;

3. disregard Witness A’s oral evidence and direct the removal of his report and addendum report from the bundle, so as not to be taken into account by the panel;

4. adjourn the case, until such time as Witness A would be well enough to attend. Before making any decision to adjourn, the parties have to have a reasonable opportunity to make representations.

The legal advisor confirmed to the panel that her advice was not binding on the panel and the panel took this into account in the round in addition to all of the submissions made by the parties’ representatives.

Each of the parties submitted to the panel that they did not agree that there were more than two options available to the panel. Each of the parties considered that the only options available, were either to admit Witness A’s oral evidence and written evidence to be considered in relation to each teacher, and take into account submissions on the appropriate weight to place on that evidence, or to admit none of the written or oral evidence. All of the parties agreed that it was not appropriate for the panel to exercise a power under paragraph 4.54 of the Procedures to adjourn the case.

The panel was mindful of the fact that although these proceedings were not criminal in nature, each of the teachers faced serious allegations concerning safeguarding, which the TRA had and would pursue as amounting to unacceptable professional conduct and/or conduct which may bring the profession into disrepute. If there was such a finding in this case against any of the teachers, there was a possibility that the panel may recommend to the Secretary of State that a prohibition order be granted against them. In his submissions, Mr Trythall’s representative submitted on behalf of all the teachers that these proceedings engaged each teacher’s civil rights to practise within the teaching profession and, as a result, there were grave consequences for each teacher.

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The panel considered that Bonhoeffer made clear that there was no absolute entitlement to the right to be cross-examined under Article (6)(3)(d) of the ECHR and it was subject to exceptions referable to the absence of Witness A due to the impracticability of securing his further attendance. The panel was conscious that there was no “sole or decisive” rule prohibiting the admissibility of hearsay evidence within these proceedings that would render it necessary for the panel to remove or dismiss all of Witness A’s evidence. Although the requirements of fairness under Article 6 were engaged within these proceedings, the panel considered that taking all the issues in the round, on balance, the fairness to these proceedings would be preserved by the continued admission of both the oral evidence and written evidence of Witness A in these proceedings. The panel was aware that the outcome of these proceedings could have very serious consequences for each of the teachers, yet it was the panel’s belief that it was appropriate to admit all the evidence of Witness A and receive submissions on the respective weight each of the parties considered should be placed on such evidence, at the appropriate stage of these proceedings. Although the panel considered the Procedures indicated that the panel had the power to adjourn to seek the further attendance of Witness A, the panel had to accept the presenting officer’s argument that the TRA had closed its case and would not be seeking to secure the further attendance of Witness A. Therefore, the problems with securing the attendance formed the compelling reason as to why the requirement of fairness and the right to a fair hearing did not, in the panel’s view, render his oral and written evidence to date inadmissible. The panel wished to reassure the parties that all submissions on the weight to be placed on Witness A’s oral and written evidence would be carefully considered in due course.

Application for witness to provide telephone evidence

At the conclusion of Teacher A’s oral evidence, Teacher A’s representative informed the panel that Witness D would provide evidence via telephone. Teacher A’s representative indicated to the panel that this issue had been discussed and agreed by all the parties. However, the legal advisor advised the panel she was not aware that Teacher A wished to call Witness D to give evidence by telephone.

The panel noted that pursuant to paragraph 4.18 of the Procedures, the panel may admit any evidence where it is fair to do so, which may reasonably be considered to be relevant to the case. The panel therefore considered it had a discretion as to whether to allow Witness D to give evidence by telephone given that she was not available on 19 June 2018 due to teaching commitments. In exercising that discretion, the panel balanced its obligation to ensure that Teacher A was not put at an unfair disadvantage, against the panel’s duty in the public interest to investigate the allegations in so far as possible consistent with fairness to Teacher A. The panel also took into account that subtleties of tone might be lost via the medium of telephone and that the panel would not have the benefit of observing the body language of the witness.

The panel was not satisfied on the evidence that there had been sufficient explanation as to how Witness D’s work commitments would be a barrier to her attending in person. The panel considered that the parties should be given the opportunity to ask questions of this witness in relation to any documents within each of the parties’ respective bundles, which are extensive. The panel was also concerned that this witness only had a copy of

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Teacher A’s bundle and her own witness statement and did not currently have access to the other parties’ up-to-date bundles. The public interest was in favour of the witness’ giving oral evidence in person. The panel therefore determined it was appropriate to hear oral evidence from Witness D in person. Teacher A’s representative confirmed that Witness D was available to attend the hearing in person on 20 June 2018.

Joint decision/separate decisions

The panel invited the parties to provide representations about whether the outcome of these proceedings should lead to one or three decisions by the panel. The presenting officer submitted that the view of the TRA was that there should be one final decision produced and within that decision the panel should record three separate outcomes relating to the allegations against each teacher. The presenting officer’s view was that this was a joint hearing and there should be one decision and there could be issues over inconsistency if the panel produced three separate decisions. When questioned further by the panel, the presenting officer stated that as this matter had been heard as a joint hearing it was a “point of law” that one final singular decision would be appropriate. However, the presenting officer withdrew the suggestion that this was a “point of law” but added this was “legal common sense”.

Mr Trythall’s representative submitted to the panel that the panel saw good reasons to hold this matter as a joint hearing as the allegations against each teacher arose from the same circumstances. The panel wished to hear from the witnesses in relation to the allegations against each teacher. Mr Trythall’s representative also submitted to the panel that he agreed with the presenting officer’s submission that the panel should publish one decision as it did not prevent the panel making findings against one teacher or another. The recommendations could be different per teacher and this would not be negated by a joint decision.

It was also submitted that a public observer should know from one singular judgment the outcome in relation to the allegations against each teacher rather than have to review three separate decisions to piece together the “jigsaw”. One joint decision would enable the findings to be understood.

Teacher A’s representative submitted that in any decision produced there should be some reference to the background information relating to this case and she was concerned about any factual inconsistencies if three decisions were produced. Upon further questioning by the panel, Teacher A’s representative stated that if there were no factual findings for example, against one individual teacher, that teacher could request that those findings were not published and removed from the joint decision document.

When this issue was raised, the presenting officer confirmed that the TRA had instructed her that the factual elements of the background could remain in the joint decision. However, any allegations not found against a teacher could be removed from the published version of the panel’s joint decision.

Mr Bailey’s representative supported the submissions of Teacher A’s and Mr Trythall’s representatives. He further stated that it should be a single decision document with different outcomes for each teacher and there was a potential for confusion if there were three separate decisions.

The legal advisor reminded the panel that paragraph 4.61 of the Procedures states that a joint hearing may be listed if the panel determined that there was no risk of undue

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prejudice to the fairness of the proceedings. This was the power considered by the panel when it determined a joint hearing was appropriate in this case. The legal advisor further advised the panel that there is nothing within the Procedures which indicates whether a single joint decision or separate decisions should be published following a joint hearing.

Taking all the submissions and the legal advice into account, the panel determined that it wished to reserve its position on this issue until such time as it commenced its private deliberations following the closing submissions from each of the parties.

Once the panel commenced its private deliberations, it determined that it would be appropriate to prepare three separate decisions in this case.

Public announcement on findings

On 24 August 2017, the panel made a decision which confirmed that it considered it was in the interests of justice to hold the substantive hearing in this matter in private as it would facilitate the disclosure process given the administrator’s concerns about sensitive information. The record of that decision indicated that the panel considered whether there were any steps short of excluding the public that would serve the purpose of protecting the sensitive material relating to each pupil referred to in the allegations. However, the panel considered that the incidents relating to the pupils were so pervasive to the allegations in this case, that it would not be practicable to exclude the public from parts of the hearing only. In addition, the panel was concerned that pupils would still be identified from the surrounding evidence if this hearing were held in public.

The panel’s decision of 24 August 2017 went on further to state that the panel was required to announce its decisions in public as to whether the facts have been proven and whether those facts amounted to unacceptable professional conduct and/or conduct that may bring the profession into disrepute in respect of the allegations pursued against Mr Trythall, Teacher A and Mr Bailey. The panel considered that the public interest would be satisfied by these public announcements. Those public announcements, the panel determined, would ensure that public confidence in these proceedings and in the standards of the profession were maintained.

However, the panel wished to invite representations from the parties regarding the public announcement of its findings so that it could determine the procedure on this issue.

The legal advisor advised the panel to note that paragraph 4.59 of the Procedures indicates, where a panel holds a hearing in private, the panel will announce in public its decision (on Stage 1) regarding whether the facts have been proven and on (Stage 2) whether those facts amount to unacceptable professional conduct and/ or conduct that may bring the profession into disrepute. In the event, that the case went on beyond Stage 2, the Secretary of State’s decision would also still be made public.

Mr Trythall’s representative submitted that the request for the substantive hearing to be heard in private was applied for because of the concerns of the administrator. Mr Trythall’s representative suggested that the panel distribute its full decision in draft form to the parties and the administrator to enable the administrator to request any appropriate redactions. The panel was told that this was a standard practice in legal proceedings.

Teacher A’s representative initially reserved Teacher A’s position until she had heard the panel’s decision. The panel queried whether the administrator would be available before the end of 6 July 2018 to be able to review and or request any appropriate redactions to

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the draft decision. It was suggested by Teacher A’s representative that the administrator’s lawyers would comment on the draft decision on the administrator’s behalf, to check that the assurance given to the administrator was respected.

Each of the teacher’s representatives submitted that they would not, if they were provided with an advance copy of the decision, seek to change the panel’s findings in any way as this was outside the remit of their professional roles. However, they may provide comment on any factual inaccuracies.

The presenting officer submitted further that case law indicated that if a hearing had been heard in private, for example to protect the interests of children, the general requirements for findings to be announced in public should not undermine that protection. It was further submitted that Article 6 of the European Convention of Human Rights required the panel to undertake a fair decision making process and it should focus on a fair outcome of the issue. Therefore, the obligation to provide a public announcement could be viewed “flexibly”.

The presenting officer was supportive of the suggestion that a draft decision be provided to the parties and the administrator to see in advance, so that the panel may be alerted to any appropriate redactions prior to its public announcement. The presenting officer also suggested that the panel could deliver a decision in full in private session and the panel could then produce a redacted version for public announcement. The presenting officer also confirmed that any published Secretary of State decision in this case would be subject to the same possible need for redaction.

The legal advisor advised the panel it may wish to consider whether it was appropriate to announce its full reasoning in private with the parties present. The panel may also wish to consider whether it wished to make a further announcement in public which fulfilled the functions of paragraph 4.59 in a way which was consistent with the reasons for which the panel previously determined that this matter should be heard in private. In addition, the legal advisor drew the panel’s attention to Practice Direction 40E of the Civil Procedure Rules relating to Reserved Judgments which the legal advisor made clear was not binding on the panel. The panel, however, considered its judgment would not constitute a reserved judgment as it would be their final judgment, albeit subject to possible redactions due to the nature of the confidentiality agreements signed by various other parties with the administrator.

The panel therefore granted the following directions on 20 June 2018:

1. The panel wished to announce its decision in full on the findings in this case in private in the week commencing 2 July 2018;

2. Following this announcement, a copy of the decision will be given by the legal advisor on the panel’s behalf to the parties’ representatives and the presenting officer shall provide the same to the administrator’s lawyers.

3. The decision will only be disclosed to the parties and administrator on a strictly confidential basis. It must be clear that as part of their professional duties and obligations each of the parties and administrator must abide by this confidentiality;

4. The administrator will have approximately 24 hours to request any redactions he considers appropriate and the parties will have the same period within which to request amendments to any factual errors only.

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5. It would be for the panel to determine whether it wished to accept such requests for redactions or factual amendments;

6. The panel would then announce its findings in public.

The panel considered this was the appropriate way to comply with paragraph 4.59 of the Procedures.

In order to ensure that this hearing completed by 6 July 2018, on 4 July 2018, the panel provided the parties with a brief verbal summary of its findings in private session. The panel subsequently permitted the legal advisor to provide the parties with a written copy of its findings in an un-redacted format. The panel also permitted the legal advisor to provide the parties with a separate copy of its findings in a redacted format, which would form the basis of its public announcement. The panel requested the presenting officer forward the redacted versions of the panel’s decisions to the administrator in order that he may confirm whether he had any further redactions to propose.

D. Summary of evidence

Documents

In advance of the hearing, the panel received a bundle of documents which included:

TRA documents

Opening Note of the TRA – dated 4 June 2018 - pages 1 to 40

Appendix 1 – pages 1 to 14

Appendix 2 – Safeguarding children and safer recruitment – pages 1 to 146

Appendix 3 – Residential Special Schools standards dated 1 April 2015 – pages 1 to 27

Section 1: Chronology and anonymised pupil list – pages A1 to A30

Section 2: Notice of Proceedings and Response – pages B1 to B26

Section 3: TRA witness statements – pages C1 to C115

Section 4: TRA documents – pages D1 to D2807

Section 5: Typed Notes index – pages 1 to 165

Teacher documents

Section 6: Mr Trythall’s documents – pages 1 to 501

Section 7: Teacher A’s documents - pages A1 to A842

Section 8: Section A of Mr Bailey’s bundle 1 to 784

Section 9: Section B of Mr Bailey’s bundle – pages 1 to 115

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In addition, the panel agreed to accept the following documents during the preliminary application stage of the hearing:

[a Parent]’s revised statement – replacement pages C35 to C44

Preliminary Issues Bundle

Section A: Teacher A’s skeleton argument regarding severance – pages 1 to 6;

Section B: The TRA’s skeleton argument in response to the severance application – pages 1 to 6

Section C: Addendum report from Witness A – pages 1 to 16 (and a replacement page 14 which was the signature page).

The panel also agreed to accept the following documents in the course of the hearing:

Replacement signed statements for Teacher A and Witness C.

Replacement final page of Mr Bailey’s statement which included his signature.

Replacement redacted pages D2217 and D2218 in the TRA bundle.

Exhibits 220 and 221 – which are typed versions of handwritten notes included in the TRA bundle currently at page D2216.

A clean copy of an Educational Psychologist’s report dated 20 June 2014 – which the panel paginated and included in Section A of Mr Bailey’s bundle at pages 785 to 830.

An email from Mr Bailey to Mr Trythall relating to a child protection matter – pages 831 to 832 of Section A of Mr Bailey’s bundle.

An email from Mr Bailey’s representative to the presenting officer dated 25 June 2018 – pages 833 to 834 of Section A of Mr Bailey’s bundle.

Appendix A at the back of Teacher A’s bundle – Pupil Placement Plan – pages 1 to 26.

Correspondence with Expert’s bundle and joint skeleton argument on behalf of the teachers relating to admissibility – pages 1 to 61.

Guidance for the instruction of experts – civil justice council – paragraphs 1 to 92

British Psychological Society’s – Psychologists as Expert Witnesses Guidelines and Procedures – dated April 2015 – pages 1 to 18

R (Bonhoeffer) v General Medical Council [2011] EWHC 1585 (Admin) - pages 1 to 45

On 26 June 2018, the panel received written closing submissions from each of the parties which were also admitted into evidence.

Closing submissions on behalf of the TRA – pages 1 to 34

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Outline submissions of behalf of Mr Trythall – pages 1 to 6

Closing submissions on behalf of Teacher A – pages 1 to 28

Speaking note on behalf of Mr Bailey – pages 1 to 4

On 4 July 2018 the panel accepted the following additional mitigation evidence:

Mr Trythall’s Mitigation bundle – pages 1 to 20

Mr Bailey’s Additional Mitigation bundle – pages 1 to 10

A letter from the administrator’s lawyers – pages D2787 – D2788

Wallace v Secretary of State for Education [2017] EWHC 109 (Admin)

The panel confirmed it had read all of the documents provided in advance of the start of the oral evidence stage of this hearing when they were provided. Any further documents admitted in the course of the hearing were read by the panel once provided.

Witnesses

The following witnesses gave oral evidence on behalf of the TRA:

[a Parent];

Witness A, Chartered Psychologist

Witness B, former Ofsted inspector

Mr Trythall and Mr Bailey also gave oral evidence.

Teacher A gave oral evidence and the panel also heard oral evidence from the following on behalf of Teacher A:

Witness C, a family member who was a former employee of the relevant school;

Witness D, another former colleague from the relevant school.

E. Decision and reasons

The panel announced its decision and reasons as follows:

The panel announced its decision and reasons as follows:

The panel carefully considered the case before it and reached a decision.

The panel confirmed it had read all of the documents provided in advance of the start of the oral evidence stage of this hearing when they were provided. Any further documents admitted in the course of the hearing were read by the panel once provided.

Stanbridge Earls School (“the School”) was an independent co-educational day and boarding school for children and adults from the ages of 10 to 19. The School specialised

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in teaching pupils with specific learning difficulties and children with special educational needs and/or disabilities, in addition to pupils who had been diagnosed with dyslexia, dyspraxia, dyscalculia or children who were out of School by reason of illness or other reasons such as bullying.

Mr Bailey commenced employment at the School in September 1991 as head of sport and activities and as a resident assistant houseparent. He was promoted to senior housemaster in 2002 then to deputy headteacher–pastoral in 2004. He remained in this role until 2012, whereupon he left the School for a new role elsewhere.

Mr Trythall commenced employment at the School in September 2010 as the headteacher until he resigned in April 2013.

Teacher A commenced employment at the School in January 2004 as director of sport. He was then appointed as a housemaster in September 2005. He was later appointed as deputy headteacher–pastoral and the designated person for safeguarding.

On 7 October 2011 a pupil was excluded from the School. This was the subject of legal proceedings. Following this, from 28 to 30 January 2013 Ofsted undertook an emergency inspection of the School which found a failure in remedial action to improve safeguarding procedures. Teacher A left his role as designated senior person at the School on or around April 2013 but remained at the school to assist with the administration process relating to the School. From 30 April to 3 May 2013, the Independent Schools Inspectorate (“ISI”) conducted an inspection and found the School lacked understanding of safeguarding. A further Ofsted inspection took place in June 2013 which highlighted ongoing concerns regarding safeguarding. The School was closed in September 2013.

Findings of fact

The panel’s findings of fact are as follows:

Whilst employed as the Headmaster for Stanbridge Earls School, Hampshire

between 2010 – 2013:

1. You did not ensure that SEN and/or safeguarding matters were regular

agenda items for the School’s senior management team.

Background

In her written opening submissions, the presenting officer drew the panel’s attention to the School’s ‘Statement of Purpose’ dated May 2011 which indicated that the School “developed an international reputation for educating pupils with a range of difficulties including Dyslexia, Dyscalculia, Dyspraxia and mild Asperger’s Syndrome….The School can also help some pupils with a diagnosis of Attention Deficit Disorder (ADD) and Attention Deficit Hyperactivity Disorder (ADHD) where it is professionally believed that the School can help without the education of others being adversely affected. The School’s Admissions Policy places a clear emphasis on thorough investigation of all documentation (Educational Psychologist’s reports etc.), which will highlight a pupil’s difficulties prior to a place being offered. The School will also, occasionally, accept pupils with medical problems, physical disabilities, or those who are fragile and vulnerable and who require considerable support and encouragement in a nurturing environment…”

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Each of the teachers confirmed in oral evidence that the School was managed by a senior management team (“SMT”). This was corroborated by the Statement of Purpose which stated that the SMT comprised “the Headmaster, Deputy Headmaster–Pastoral who is Head of Care and is also the Designated Person for Child Protection, Deputy Headmaster-Curriculum, Special Educational Needs Coordinator (SENCO), Bursar and Facilities Manager. The SMT meet on a weekly basis.”

The Statement of Purpose went on to state that “Pastoral care is the prime responsibility of the Deputy Headmaster–Pastoral, who is ‘Head of Care’. The School operates a multi-layered pastoral system that supports and nurtures the pupils in its care…Housemaster/mistresses, the Head of Girls Boarding and one of the medical staff meet with the Deputy Headmaster–Pastoral on a fortnightly basis.”

The panel noted from the presenting officer’s written opening submissions and the witness statements of Teacher A and Mr Bailey, that Mr Bailey held the role of deputy headteacher–pastoral during the period 2004 to August 2012 and Teacher A held this role from September 2012.

Teacher A left his role as designated senior person at the School on or around April 2013 but remained at the school to assist with the administration process relating to the School.

It was the TRA’s case that each of the teachers in this case was accountable for statutory duties in accordance with section 3(5) of the Children Act 1989, “to do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare.”

After the School closed in late 2013 it went into administration. All data and records held by the School were stored in hard copy and/or on computer servers and the parties in this case corresponded with the administrator to retrieve records. The School’s administrator confirmed to the panel at a previous hearing that all documents requested by the parties had been provided to the extent they were available but some items requested could not be located.

Weight to Witness A’s evidence

The panel carefully considered the respective parties’ closing submissions relating to the weight to be placed on the documentary and oral evidence provided by Witness A, particularly as he was only cross-examined by Mr Trythall’s representative and not by Teacher A’s and Mr Bailey’s representatives. The parties had previously raised in the hearing that Witness A was confused about his role in these proceedings as he had erroneously believed that he was instructed as a joint expert. Mr Trythall’s representative stated in closing submissions that it was clear Witness A had not read all the defence material in this case. It was also submitted that Witness A misunderstood the nature of the needs of the pupils at the school as he described them as “severe”. This was refuted by Teacher A’s and Mr Bailey’s oral evidence as the pupils’ needs were below this category.

All the teachers’ representatives submitted that the panel should disregard and therefore place no weight on Witness A’s oral and written evidence. The presenting officer invited the panel to place some weight on this evidence, as Witness A recognised his duty to the panel in both his report and oral evidence, albeit, the presenting officer submitted that the panel may wish to place more weight on his evidence in relation to Mr Trythall as his representative had the opportunity to cross-examine him.

The panel had regard to the Guidance for the instruction of experts – civil justice council (“civil justice guide”) and the British Psychological Society’s: Psychologists as Expert

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Witnesses: Guidelines and Procedures (“BPS guide”) - referred to in Teacher A’s representative’s closing submissions. Paragraph 57 of the civil justice guide states: “When addressing questions of fact and opinion, experts should keep the two separate. Experts must state those facts (whether assumed or otherwise) upon which their opinions are based, experts should have primary regard to their instructions. Experts must distinguish clearly between those facts that they know to be true and those facts which they assume.”

The panel was persuaded by the teachers’ arguments that, at times, in both his report and addendum report, Witness A failed to make clear what information he relied upon in forming his opinion and at times, it was difficult to determine that he had made clear those facts which he knew to be true and those which he assumed. In addition, the panel considered that Witness A had not complied with the BPS guide as he failed to make clear whether he considered a “range of reasonable professional opinion” in his conclusions and therefore did not explain why such a range of opinion may exist. As the panel considered that Witness A had not complied with the civil justice guide or the BPS guide, it placed limited weight on Witness A’s oral and written evidence and only briefly commented on his evidence in its findings where appropriate. No finding of the panel was based solely on the evidence of Witness A.

Stem of the allegations against Mr Trythall

Mr Trythall’s statement indicated that he was appointed headteacher in 2010 and he held this role until 2013. The panel found the overarching stem of the allegations against Mr Trythall proven.

The panel noted that throughout the bundles relating to this case, the designated member of the senior leadership team with responsibility for safeguarding was referred to as either designated safeguarding lead (“DSL”) or the designated senior person (“DSP”). For consistency, the panel decided to refer to DSP as the acronym for either DSL or DSP.

Allegation 1

All three teachers in this case gave oral evidence that special educational needs and/or safeguarding matters were regular agenda items for the School’s SMT. The panel had before it, within Mr Bailey’s bundle, copies of agendas from SMT meetings in September 2010 and October 2010 which indicated that SEN and pastoral issues were recurring agenda items. The panel also noted from SMT minutes in Mr Bailey’s bundle that Mr Trythall chaired SMT meetings and SEN and pastoral issues were discussed, which included safeguarding issues, albeit, this evidence did not necessarily prove that Mr Trythall ensured such matters were regular agenda items for the SMT.

The presenting officer acknowledged in her written closing submissions, that SEN may have been an item listed on the agenda; however, she submitted that under the heading “SEN” it was often stated “nothing to report” which suggested that SEN matters were not regularly addressed.

Further, in her closing submissions, the presenting officer relied upon an evidence summary report provided by Witness B in which he stated that following an interview with Mr Trythall on 28 January 2013, Mr Trythall described a “fortnightly safeguarding/child protection meeting but acknowledges that meetings have not been minuted and no action plans developed.”

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The panel had sight of a September 2012 and October 2012 agenda in Teacher A’s bundle from when he was deputy headteacher–pastoral and DSP which clearly indicated SEN was an agenda item, as was health and safety. The panel noted from the presenting officer’s opening submissions that Witness A stated that, in his opinion, Mr Trythall as headteacher would have had overarching responsibility for pupils on the School’s roll and he considered that Mr Trythall “would wish” to keep safeguarding agenda items under “close review” via regular communication with his senior managers. In addition, Witness A stated that the progress of pupils with statements of SEN was likely to be a regular agenda item for senior management team meetings in any school and particularly a school making specialist provision for such pupils – and this would provide the headteacher with frequent opportunities to identify evidence that staff were communicating frequently and effectively.

The panel also noted from Mr Tythall’s witness statement that special educational needs also had a scheduled item on the agenda. The School’s special educational needs co-ordinator led on this item.

In particular, the panel noted in an email from Mr Bailey to a member of staff when discussing SMT minutes that Mr Bailey stated, “We ought not to include student names when discussing child protection issues on minutes that are published”. This, in the panel’s view, was evidence that specific child protection or safeguarding issues were discussed at SMT meetings.

Even though the panel accepted that the copies of the minutes of SMT meetings provided in Mr Bailey’s bundle referred to SEN and no detail was provided in them, the panel considered that the presenting officer had not proved on the balance of probabilities that Mr Trythall failed to ensure that SEN and/or safeguarding matters were regular agenda items for the School’s SMT. It appeared from the wording of the agendas viewed by the panel that SEN and safeguarding matters were regularly listed as items for discussion amongst the SMT. It is unclear whether detailed discussion did or did not take place; however, based on the specific wording of this allegation, the panel found this allegation not proven.

2. You did not keep adequate records of safeguarding matters and/or

effectively delegate this task to another, appropriately qualified member of

staff.

Keeping records of safeguarding matters

The panel noted from Witness A’s report that behavioural incidents should usually be logged in an “incident book” or electronic system that would be monitored by a head of year or member of the senior management team and these would usually be discussed with the headteacher.

In addition, the panel noted from the presenting officer’s written closing submissions that Mr Bailey admitted this factual particular of the allegations on the basis that “the school’s safeguarding records during his tenure as Deputy Head Pastoral and DSL were not all stored in a single centralised location and did not generally include detailed chronologies, formal risk assessments or individualised planning documents”. Mr Bailey also stated in his statement, “The school relied upon the diligence and professionalism of each member of staff to communicate issues appropriately and upon reflection, I accept that this issue was a weakness in the system that created ‘pockets of information’ that could too easily go unchallenged.” He further described in this statement “not having a full understanding of the extent to which relevant incidents were occurring and relevant records were not consequently being made, circulated and retained.” He went further within his statement

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which stated, “as formalised as it should have been…information was stored within many different modules within the PASS system and was therefore difficult to view as a single document….I am also clear that the school’s rather inconsistently applied reporting and record keeping system, using a mixture of emails, incident forms, and handwritten reports, had weaknesses… we should have introduced a child protection concern reporting template, introduced a specific individualised planning document for each pupil, and been better on the use of the chronologies and the recording of senior staff awareness and action planning such that all the relevant information in relation to a particular child was reliably in one place rather than potentially across emails and other records in PASS or separate reports in a central child protection file. At the time all the feedback we were receiving was that we were making appropriate progress, and we certainly were making improvements almost constantly, but I can see now that some of the school’s difficulties were attributable to inadequacies in its record-keeping and recording arrangements and practices.”

In his statement, Teacher A stated that prior to January 2013 all safeguarding records were kept as custom and practice primarily in an email based system. This had previously been found to be in the “outstanding” category by Ofsted in three separate previous inspections.

The system used was a database where each email relating to a pupil was stored in a file that was held in his or her name. The panel considered that Teacher A’s evidence was that he had not perceived there was any need to implement any changes to how safeguarding records were produced or delegated to other members of staff until the Ofsted emergency inspection in January 2013.

In his witness statement, Mr Trythall stated that he accepted that the School’s safeguarding files or records would not have contained all of the relevant information that should have been on them. He further stated that he dealt with a number of the incidents which he did not record as safeguarding matters at the time. However, he knew now that these should have been considered and recorded as such. Based on Mr Trythall’s admission, the panel found Mr Trythall did not keep adequate records of safeguarding matters.

...and/or effectively delegate this task to another, appropriately qualified member of staff

The panel noted from the presenting officer’s written opening submissions that there were six boarding houses on the School’s campus, which included one girls’ boarding house known as Goulds. Person B was the houseparent for Goulds and the head of girls’ boarding. [The houseparent] was not called by any of the parties to provide oral evidence at the hearing.

Included in the TRA bundle was [the houseparent]’s witness statement prepared in relation to other proceedings which stated that in the Goulds house, two diaries were kept. One of them recorded, “unfolding events during the course of the day and would enable any member of the pastoral staff to see what had been happening that day if need be. The other diary is a record of telephone calls.”

Mr Bailey stated in oral evidence that he handed out one diary to each head of a boarding house at the start of the academic year and he believed that [the houseparent]’s understanding of the intended use for house diaries was possibly from a practice that she exercised when at a previous school. If Mr Bailey had known she would use the diary to record safeguarding issues relating to pupils in her care then he would have told her not to do so. In his statement, Mr Bailey stated that he was “unaware that pastoral staff within this house were…recording incidents in the diary that should also have been

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communicated to key staff…including safeguarding concerns that should have been raised with senior staff.”

It was Mr Bailey’s oral evidence that in his role as deputy headteacher-pastoral he would not have used the house diaries as a point of information across the School. If there was something that needed to be reported to him as the DSP, staff would raise the issue by telephone, email or in person. This would be followed up by a written report, if necessary.

It was Witness C’s oral evidence that Mr Bailey introduced the house diaries for boarding house staff to record appointments and messages for others. For example, Witness C, the assistant houseparent, and a matron, used the diary to remind the boys in their boarding house as to whether they had extra lessons. When cross-examined by the presenting officer, Witness C further stated that she would not have recorded confidential information in the house diary as it was an open book that was in the office. It was intended for notes to help organise the house and it was not intended to record safeguarding issues. Witness C would not have recorded the information she was shown in the house diary recorded by [the houseparent].

The presenting officer’s closing submissions stated it was clear that [the houseparent] was using the diaries to record safeguarding matters although the panel could not be certain they were not also recorded or reported elsewhere. The panel considered that the majority of evidence it had heard indicated that the house diaries were not part of the safeguarding practice at the school to record SEN or safeguarding incidents.

Despite Mr Trythall’s admission within his witness statement regarding the inadequacies of the records of safeguarding matters, the panel was not persuaded [the houseparent] had been authorised by Mr Trythall to use the house diaries to record safeguarding matters. As a result, the panel did not agree that Mr Trythall had not effectively delegated the task of keeping adequate safeguarding records to another appropriately qualified staff member, whether that Mr Bailey, Teacher A or [the houseparent]. Therefore, the panel did not find the second limb of allegation 2 proven.

However, as the panel found that Mr Trythall had not kept adequate records of safeguarding matters, allegation 2 was proven.

3. You inappropriately delegated to non-specialist staff member, the

responsibility for the provision of appropriate care for and/or behavioural

management of pupils with special educational needs.

The panel noted from Mr Trythall’s oral evidence that he considered that [the houseparent] provided appropriate care for pupils with special educational needs. He thought she worked extremely hard and following a previous emergency inspection relating to the care provided by the School in which her own care of pupils was scrutinised, the School maintained its “outstanding” Ofsted grade. Although, Mr Trythall was not her line manager, he thought she performed well as she was responsible to him as headteacher and the SMT as a whole.

It was Mr Bailey’s oral evidence that [the houseparent] was an approachable and trustworthy individual who was a hard worker. Mr Bailey was the line manager for [the houseparent] in relation to her role as a houseparent and he stated to the panel that he had no concerns about her performance.

Mr Bailey further stated in oral evidence that the second DSP role was created because his workload was heavy and the focus of his role was changing as he became heavily involved in a project relating to assisted technology for learning. As a result, following an Ofsted inspector’s initiating the idea and this being supported by the School’s governors,

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the School decided to appoint a female member of staff as a deputy DSP. His further oral evidence was that as her performance in her role as head of girls’ boarding was strong and she was a senior member of staff within the School, it was decided that [the houseparent] was the appropriate candidate. Mr Bailey told the panel that she was only appointed to the role after she had undertaken level 3 training in safeguarding procedures.

The teachers in this case were asked to comment in oral evidence on a page in the typed notes bundle before the panel which set out details of a meeting between Teacher A and [the houseparent] on 3 December 2012, in which [the houseparent] appeared to request more child protection and safeguarding training. The panel noted from the chronology included in the TRA bundle that on or around that time [the houseparent] was involved in legal proceedings. When questioned by his representative, Mr Trythall’s oral evidence was that [the houseparent] “did not have a happy” time during those proceedings. Therefore, Mr Trythall considered her request for more training came out of this.

The closing submissions of the presenting officer, made clear that it was the TRA’s case that the delegation to [the houseparent] of the responsibility for providing appropriate care for and/or behavioural management of pupils with SEN was inappropriate given the lack of formal reporting described by Mr Bailey and Witness A’s opinion that the delegation ‘did not offer the best possible protection for its students’ with reference to the incidents set out in Schedule A of the allegations.

Whilst there were differing views expressed in the bundle and by those who gave oral evidence at this hearing as to whether she performed well in her role, the panel found that the evidence before it suggested that she was an appropriately qualified specialist staff member albeit not a teacher. All three teachers spoke very highly of [the houseparent]’s attitude, work ethic and ability whilst they worked with her.

The panel decided to place no weight on the opinion of Witness A with regard to his not being able to find records of [the houseparent]’s annual safeguarding training as it was unclear specifically which documents and information he had reviewed. Given that she was a senior member of staff, was head of the girls’ boarding house and had had level 3 safeguarding training, the panel was not persuaded that [the houseparent] was a non-specialist member of staff. The panel considered it was appropriate for Mr Trythall to delegate to her the responsibility for the provision of appropriate care for and/or behavioural management of pupils within the girls’ boarding house.

Therefore, this allegation was not proven.

4. You did not conduct adequate supervision of the School’s Special

Educational Needs Coordinator, , in order to ensure that the school was

effective in fulfilling its statutory duties in respect of the pupils in the school

roll.

Witness A’s report within the TRA bundle states, “The school’s Special Educational Needs Coordinator (SENCO) has a position of responsibility that involves being the point of contact for the Authorities who provide formal statements and a conduit to ensure that teachers are apprised of the pupil’s specific needs.”

The presenting officer’s closing submissions stated further that Mr Bailey and Teacher A stated in evidence that it was Mr Trythall’s responsibility to supervise the SENCO. She further stated that the job description of the SENCO, within Mr Bailey’s bundle, stated that the SENCO was responsible to both the headteacher and the SMT. The panel noted

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the job description did state this. It was further submitted that in not conducting adequate supervision of the SENCO in order to ensure the school was effective in fulfilling its statutory duties, the teachers’ conduct constituted a failure to safeguard pupils.

Mr Trythall’s oral evidence was that he had overall responsibility for leading the SMT and it was his role to ensure that through regular appraisal all senior managers were capable and had the capacity to perform their roles to the best of their ability. Mr Trythall acknowledged, in his oral evidence, that when he joined the School in September 2010 he did not have an extensive background in SEN issues and he was, “led by the SENCO and he took advice from her”. He received good reports from internal staff and those with whom she had interacted. He further stated that on his appointment the Governors assured him that the SENCO had 30 years’ experience of special educational needs provision in local schools before she joined the School in 2009. He also ensured that she attended further training days, delivered by experts in their field. Sometimes, he went with her. The SENCO was a senior staff member and attended SMT meetings and he stated that they were very positive in their feedback about her professionalism, knowledge and enthusiasm for change.

The presenting officer submitted in her closing submissions that Mr Trythall’s acceptance, when cross-examined, that he did not have a background in special educational needs and was led by the SENCO, was a failure to supervise the SENCO properly. Under cross-examination, Mr Trythall was asked how he could conduct adequate supervision of the SENCO if he was led by her. The presenting officer suggested his response was confused and inconsistent, as he stated that he would question her at the same time as asking her advice and that whilst he could not comment on the “science” of what she was doing, he could see “she was doing what she should.”

The panel accepted Mr Trythall’s oral evidence that pupils entered the school with a variety of SEN diagnoses including autistic spectrum disorders, dyslexia, dyspraxia and dyscalculia which had not been adequately addressed at other schools. They also accepted his oral evidence and the oral evidence of Teacher A and Witness C that at the School, pupils were given specific provision for their needs within specialist units offering tailored support, which resulted in outstanding progress for many pupils who would not necessarily have achieved elsewhere.

The panel heard evidence from all of the teachers in this case, including Witness C and Witness D that many children achieved excellent results. This was not disputed by the evidence of Witness A or documentation from Ofsted included in the bundle. Accordingly, there was no evidence that Mr Trythall failed to conduct adequate supervision of the SENCO. As the result, there was no evidence before the panel to establish on the balance of probabilities that Mr Trythall failed to ensure that the school was effective in fulfilling its statutory duties in respect of the pupils in the school roll. This allegation was therefore found not proven.

5. You did not direct and/or adequately supervise the school and medical staff

to follow safe procedures in order to meet the needs of pupils with medical

conditions in that:

a. On or around 28 January 2011, there was an error in relation to the

administration of [a Pupil]’s medication; and/or

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b. A drug error occurred in that the medical team was unable to establish

whether [a Pupil] and other pupils on “non-controlled” drugs had been

medicated on 8 February 2011.

Allegation 5.a.

In her opening submissions the presenting officer submitted that [a Pupil] had autistic spectrum disorder (ASD), specific learning difficulties and a speech and language disorder. This was corroborated by [a Parent]’s witness statement. The presenting officer further submitted that during a School trip over the weekend 28-30 January 2011, there was an error in relation to the administration of [a Pupil]’s medication [a Pupil] was given one tablet in the evening rather than two. The presenting officer further submitted that at this time Mr Bailey was the SMT link with the medical centre and line manager to the medical department.

In his witness statement Mr Bailey stated that at the start of his tenure as deputy headteacher–pastoral the school’s medical department comprised a head nurse and three other nurses. At the time, the line manager for the medical staff was the then headteacher. The headteacher was not a medical professional and the nurses’ professional support was provided by the school’s doctor who worked at a local surgery in the area. Mr Bailey further indicated in his statement, he was asked by Mr Trythall, when he became headteacher, to undertake the role of supporting medical staff in place of the headteacher. He therefore became the medical centre’s SMT link.

In his witness statement, Mr Trythall stated that the medical centre was the responsibility of the deputy headteacher–pastoral but on his appointment as head he visited frequently and talked to the staff and met the GP who attended the school. He met with the head nurse in charge of the medical centre on a regular basis which allowed her to bypass the deputy headteacher if she wanted to. He understood that the nurses had support from the Royal College of Nursing, were regulated by their own professional body, the Nursing and Midwifery Council, had a great deal of experience and were often working in the NHS at the same time as the School, which kept them fully up to date with the latest directives and guidance.

The panel had regard to emails in the TRA bundle dated 1 February 2011 in which it was stated that one of the nurses reported on 28 January 2011 that medication had not yet been prepared and set out for pupils who were leaving to go on a school trip. It was noticed a few days later that the controlled drug had not been signed out in the Book which was the normal practice when giving controlled medication to anyone.

In his statement, Mr Trythall stated that at the end of January 2011 some pupils went on a School trip and an error occurred regarding [a Pupil]’s medication dosage. [a Pupil]’s parent contacted the School nurse to ask about this. Instead of two tablets she was given one in the evening. He first found out about this issue from a nurse and he realised the seriousness of this error and replied to [a Pupil]’s parent straight away. He also stated that he immediately asked Mr Bailey to investigate what had gone wrong. Following the investigation it was reported by Mr Bailey to him that it was the head of nursing’s error. She had written up the list inaccurately and at the last minute she had not spotted her own error as she left her colleague to prepare the medication. She had not abided by the double-checking procedure.

In his oral evidence, Mr Bailey did not dispute there was a medication error. Upon investigating the matter, Mr Bailey found a “weakness in the procedure”: the medical

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team had not complied with the double checking procedure that was in place. In his statement, Mr Bailey indicated that he agreed a new protocol with medical staff.

The panel noted from Mr Trythall’s representative’s closing submissions that Mr Trythall acknowledged that a mistake was made – a failure to follow the system of double checking - however, he further submitted that this did not prove a failure to supervise. The panel agreed.

Allegation 5.b.

The panel had regard to a minor incident report included in the TRA bundle which stated that at approximately 9.20pm it was reported to [the houseparent] by Child A that [a Pupil] had given [a Pupil] a bite out of an Anadin Extra tablet because [another Pupil] had told [a Pupil] that she had a headache.

In his statement, Mr Trythall stated that on the evening of 8 February 2011 he was called by [the houseparent] to notify him that there had been an incident in which [a Pupil] had received part of an anadin tablet from another pupil. Mr Bailey emailed Mr Trythall the next day, and said that the head of department failed to sign off medication record sheets the day before, so as a result, the School could not be sure that medication had been dispensed.

Mr Trythall went on to state, in his statement, that he called an urgent meeting with the head of department, who stated that she did not have time to complete her duties and realised she was not coping with her role. The head of nursing then announced that she wished to take redundancy. In addition, he stated that after June 2011, as a result of a parent complaint about medication handling, the school received a thorough Ofsted inspection which focused on the correct process for medication to be issued. He stated that Ofsted was satisfied with the system and training that the School had in place. Consequently, the School kept its “outstanding” Ofsted category.

The panel was not persuaded that Mr Trythall did not direct or adequately supervise the school and medical staff to follow safe procedures in order to meet the needs of the pupils with medical conditions, including the dispensing of medication. The panel considered that Mr Trythall acted appropriately to the medication issues once raised, by requesting an investigation, and took appropriate action to prevent a recurrence of this issue. Therefore, the panel found allegations 5.a. and 5.b. not proven.

6. You did not adequately supervise and/or direct the School’s deputy head

teacher–pastoral to draft the school’s safeguarding policies and/or annual

safeguarding reports in order to ensure that they were fit for purpose (and/or

to ensure that the school was effective in fulfilling its statutory duties in

respect of the pupils on the school roll).

Safeguarding policy

The presenting officer provided the panel with a copy of the former Department for children, schools and families, Safeguarding children and safer recruitment in education (“Safeguarding guidance”). The panel noted that this was statutory guidance for both maintained and independent schools. This stated that independent schools must draw up and implement a written policy to safeguard and promote the welfare of children who are pupils at their schools.

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In his statement, Mr Bailey stated that he drafted the child protection policy and updated this annually. Mr Bailey also accepted that during his time in post, no recommendation for improvement was made with respect to the school’s safeguarding policies. He accepted that in hindsight, the heightened vulnerability of pupils with SEN and/or living away from home was a matter that should have been emphasised within the school’s safeguarding policies.

Further, in his oral evidence, Mr Bailey said that the School’s safeguarding policies did not emphasise the heightened vulnerability of pupils with SEN or living away from home. Mr Bailey believed that he was too close to the situation as he knew that all the pupils at the School had SEN issues and were living away from home as it was a boarding school. Mr Bailey wished the panel to understand that there was no deliberate omission. However, he accepted it should have been included. Mr Bailey’s oral evidence was that the School had been given no reason after inspection or review by the ISI, various local authorities and/or CReSTeD – The Council for the Registration of Schools Teaching Dyslexic Pupils – to consider the policies were deficient in any way as a result of this issue’s not being explicitly raised.

When cross-examined by the presenting officer, Teacher A accepted that he inherited the responsibility for the safeguarding policies of the School. He also accepted it was within his job description to update school policies and practices where required. In his statement, Teacher A stated that he did not draft the safeguarding policies and over the summer vacation of 2012, prior to officially starting the deputy headteacher role, he spent time reviewing all of the School’s policies that were in place and updating factual items such as positions of responsibility, dates and phone numbers.

He further stated in oral evidence that he did not draft the School’s safeguarding policies that were in force, he simply added his name and contact details to the policy documents. The panel had regard to a copy of a child protection policy in the TRA bundle which included Teacher A’s contact details and name at the end, dated July 2012. The panel considered that Teacher A had not drafted the School’s safeguarding policies but had merely accepted this in 2012.

Mr Trythall’s representative’s written closing submissions stated that the TRA’s case could not “in reality” seek to hold Mr Trythall to an exacting standard. The School had previously passed Ofsted inspections despite having safeguarding policies that did not explicitly remind staff that the School was a special school and its pupils had particular vulnerabilities.

The panel found that Mr Bailey did not draft an adequate safeguarding policy because it considered the heightened vulnerability of pupils with SEN and/or living away from home should be stated explicitly in the child protection policy to ensure that staff knew how to cater for the needs of the pupils. It was therefore inadequate that the child protection policy did not refer to this issue given the boarding environment of the School. It therefore followed as the headteacher and line manager for the deputy headteacher–pastoral that Mr Trythall did not adequately supervise or direct either Mr Bailey or Teacher A, when in post as the deputy headteacher–pastoral, to draft a safeguarding policy that was fit for purpose. In this regard, the first limb of allegation 6 was found proven.

The panel paid close regard to the Safeguarding guidance. However, it was not persuaded that the presenting officer had established that there had been a specific failure by Mr Trythall to ensure that the school was effective in fulfilling its statutory duties in respect of the pupils on the school roll in relation to his supervision of the drafting of the safeguarding policy.

Annual safeguarding report

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The panel had regard to the annual safeguarding reports dated November 2010 and November 2011 (produced by Mr Bailey) and the annual safeguarding report dated November 2012 (produced by Teacher A).

In his oral evidence, Mr Bailey stated that he devised the structure of the annual safeguarding report following receipt of feedback from Ofsted after an inspection. The content was designed to cover the national minimum standards for boarding schools. Over time, the annual safeguarding report became a self-evaluation form – and it addressed every national minimum standard that the School had to meet. It included a set of assertions which were based on staff responses to probing questions from Mr Bailey as to what each of the staff members did in relation to safeguarding. In his witness statement he also stated that the aim was to provide an all-encompassing report that addressed each of the Ofsted inspection criteria.

His further oral evidence was that he started writing these reports for the governors in 2006, which was an academic year in which a serious child protection incident occurred. Mr Bailey further stated that he had included detail relating to this incident and how it was dealt with in the 2006 annual safeguarding report. However, the headteacher in post at the time, asked him to take this information out of the report as it would be published.

It was Mr Bailey’s evidence that the annual safeguarding report was never designed by the School to provide child protection updates about specific children to the School’s governors.

The panel noted that Witness B stated in his evidence summary report, that the annual safeguarding report was formulaic and there was an absence of critical challenge. This was because a reference was made to three child protection incidents without any detail or evaluation of how the referrals occurred or were handled. Teacher A’s oral evidence was that the annual safeguarding report was not designed to cover the things that Witness B expected it to cover. Teacher A said that he based his November 2012 annual safeguarding report on the way in which Mr Bailey completed his. In his oral evidence, Mr Trythall accepted that there was no detail or evaluation in these reports relating to the School’s handling of safeguarding incidents and therefore he accepted there was an absence of critical challenge in these reports.

The panel noted from Witness A’s report that he stated that as headteacher, Mr Trythall had the ultimate responsibility of ensuring that the School had in place and implemented efficiently clear policies, strategies and procedures for both safeguarding the children in his care and meeting the needs of all those pupils who had special educational needs.

The panel took into account the presenting officer’s submission that Mr Trythall as headteacher was ultimately responsible for supervising and directing the School’s deputy headteacher–pastoral to draft annual safeguarding reports which were fit for purpose and/or to ensure that the school was effective in fulfilling its statutory duties in respect of the pupils on the School roll.

The panel found Mr Bailey’s evidence credible. As the annual safeguarding report was designed to be “public facing”, it would not have been appropriate for details relating to child protection referrals to be included in such a document. Therefore, the panel was not satisfied on the balance of probabilities that Mr Trythall did not adequately supervise or direct Mr Bailey and/or Teacher A to draft the annual safeguarding reports. The panel considered they were fit for purpose and had no reason to consider that they did not ensure the School was effective in fulfilling its statutory duties in respect of pupils on the school roll. In fact, the panel regarded the annual safeguarding reports to be

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comprehensive and thorough. Therefore, the second limb of allegation 6 was found not proven.

However, as the panel found that Mr Trythall did not adequately supervise or direct either Mr Bailey or Teacher A to draft a safeguarding policy the first limb of allegation 6 was found proven.

7. You did not recognise and/or appropriately act upon safeguarding concerns

relating to any or all of the facts as set out at Schedule A to this allegation.

The panel found the factual sub-particulars of Schedule A and the stem of allegation 7 proven in relation to paragraphs 6, 14, 15, 16 and 17 on the basis that they were all examples of Mr Trythall’s not recognising and/or acting appropriately in relation to safeguarding concerns.

The panel found the factual sub-particulars of paragraphs 1, 3, 5, 7, 10, 11, 13, and 18 were proven but the panel was not persuaded that these were examples of Mr Trythall’s not recognising and/or acting appropriately in relation to safeguarding concerns. Therefore the stem of allegation 7 was not proven in relation to these factual sub-particulars.

In the course of the hearing, the presenting officer notified the panel that she wished to offer no evidence in relation to the factual sub-particulars set out at Schedule A paragraphs 4, 8 and 12. Therefore these factual sub-particulars were found not proven. In addition, the panel also found the factual sub-particulars at paragraphs 2 and 9 not proven.

8. The facts of paragraphs 1 to 7 above constitute a failure to safeguard pupils’

wellbeing when considered:

a. individually; and/or

b. together.

The panel only took into account the allegations it had found proven, namely allegations 2, 6 and 7 (in relation Schedule A paragraphs 6, 14, 15, 16 and 17).

In relation to allegation 2, the panel found that Mr Trythall did not keep adequate safeguarding records and in relation to allegation 6, the panel found Mr Trythall did not adequately direct or supervise Mr Bailey or Teacher A in drafting the School’s safeguarding policy. The panel considered this constituted a failure by Mr Trythall to safeguard pupils’ wellbeing.

The panel also considered that Mr Trythall failed to safeguard pupils’ wellbeing in relation to allegation 7 Schedule A, paragraphs 6, 14, 15, 16 and 17.

[Redacted]

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Findings as to unacceptable professional conduct and/or conduct that may bring the profession into disrepute

Having found allegations 2, 6, 7 and 8, to have been proven, the panel has gone on to consider whether the facts of those proven allegations amount to unacceptable professional conduct and/or conduct that may bring the profession into disrepute.

In doing so, the panel has had regard to the document Teacher Misconduct: The Prohibition of Teachers, which the panel refers to as “the Advice”.

The panel is satisfied that the conduct of Mr Trythall in relation to the facts found proven, involved breaches of the Teachers’ Standards. The panel considers that by reference to Part Two, Mr Trythall is in breach of the following standards:

Teachers uphold public trust in the profession and maintain high standards of ethics and behaviour, within and outside school, by

o having regard for the need to safeguard pupils’ well-being, in accordance with statutory provisions;

Teachers must have an understanding of, and always act within, the statutory frameworks which set out their professional duties and responsibilities.

The panel was satisfied that the conduct of Mr Trythall fell significantly short of the standards expected of the profession based on the serious breaches of the Teachers’ Standards in relation to safeguarding. The panel noted that Mr Trythall admitted that his conduct amounted to unacceptable professional conduct throughout these proceedings.

The panel also considered whether Mr Trythall’s conduct displayed behaviours associated with any of the offences listed on pages 8 and 9 of the Advice. The panel found that none of these offences was relevant.

Nevertheless, the panel was satisfied that Mr Trythall was guilty of unacceptable professional conduct. His representative advised the panel that he admitted he was guilty of unacceptable professional conduct.

The panel has taken into account how the teaching profession is viewed by others and considered the influence that teachers may have on pupils, parents and others in the community. The panel has taken account of the uniquely influential role that teachers can hold in pupils’ lives and that pupils must be able to view teachers as role models in the way they behave. It was the panel’s view, Mr Trythall as headteacher should have picked up on the need to co-operate with and seek guidance from appropriate external agencies for the protection of children when necessary.

The panel found that Mr Trythall’s actions constituted conduct that may bring the profession into disrepute because the general public expect teachers to safeguard pupils.

Having found the facts of allegations 2, 6, 7 and 8 proved, the panel further found that Mr Trythall’s conduct amounted to both unacceptable professional conduct and conduct that may bring the profession into disrepute.

Panel’s recommendation to the Secretary of State

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Given the panel’s findings in respect of unacceptable professional conduct and conduct that may bring the profession into disrepute, it was necessary for the panel to go on to consider whether it would be appropriate to recommend the imposition of a prohibition order by the Secretary of State.

In determining whether to recommend to the Secretary of State that a prohibition order should be made, the panel had to consider whether it would be an appropriate and proportionate measure, and whether it would be in the public interest to do so. Prohibition orders should not be given in order to be punitive, or to show that blame has been apportioned, although they are likely to have punitive effect.

The panel had regard to the particular public interest considerations set out in the Advice and having done so found a number of them to be relevant in this case, namely: the protection of pupils, the maintenance of public confidence in the profession or declaring and upholding proper standards of conduct and the interest of retaining the teacher in the profession.

There was a potential public interest consideration in respect of the protection of pupils given the panel finding that Mr Trythall had not recognised and/or acted appropriately in relation to safeguarding concerns in relation to five factual sub-particulars of Schedule A under allegation 7.

Similarly, the panel considered that public confidence in the profession could potentially be weakened if conduct such as that found against Mr Trythall were not treated with seriousness when regulating the conduct of the profession.

The panel was aware that a public interest consideration in declaring proper standards of conduct in the profession was potentially present.

However, the panel considered that there was a strong public interest consideration in respect of retaining Mr Trythall in the profession, since no doubt had been cast upon his abilities as an educator and he was clearly able to make a valuable contribution to the profession. Mr Bailey’s oral evidence was that Mr Trythall was the most caring headteacher he had ever worked with. The panel noted Mr Trythall’s further oral evidence that he wished to contribute to a school and be involved in a whole school environment including outdoor education. In his oral evidence, he stated that, due to difficulty in obtaining employment, he had trained in Teaching English to Speakers of Other Languages (“TESOL”) which he thoroughly enjoyed. He had developed this into a regular summer course for international students, who undertook language lessons in the morning and activities in the afternoon which drew upon his other skills.

Notwithstanding the public interest considerations that were present, the panel considered carefully whether or not it would be proportionate to impose a prohibition order taking into account the effect that this would have on Mr Trythall.

In carrying out the balancing exercise the panel had regard to the public interest considerations both in favour of and against prohibition as well as the interests of Mr Trythall. The panel took further account of the Advice, which suggests that a prohibition order may be appropriate if certain behaviours of a teacher have been proven. In the list of such behaviours, those that were potentially relevant in this case were:

serious departure from the personal and professional conduct elements of the

Teachers’ Standards;

misconduct seriously affecting the education and/or well-being of pupils,…;

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Even though there were behaviours that could potentially point to the appropriateness of a prohibition order, the panel went on to consider whether or not there were sufficient mitigating factors to militate against the appropriateness and proportionality of a prohibition order, particularly taking into account the nature and severity of the behaviour in this case. In light of the panel’s findings, there was no evidence that Mr Trythall’s actions were not deliberate; however, the panel did not consider that Mr Trythall sought to deliberately ignore safeguarding concerns. There was also no evidence to suggest that Mr Trythall was acting under duress. The panel noted from Mr Bailey’s representative’s submissions relating to mitigation that Mr Bailey regarded Mr Trythall to be a relatively new headteacher who was not as experienced in SEN matters as other staff and he relied upon those around him to assist him with dealing with issues that arose. It was Mr Bailey’s view that Mr Trythall worked hard to respond to issues whilst ensuring that the wellbeing of pupils was maintained.

The panel accepted that Mr Trythall was of previous good history as there was significant evidence to support this, as set out below. The presenting officer confirmed to the panel that there were no previous disciplinary orders in place and the panel saw no evidence that Mr Trythall was previously subject to disciplinary proceedings or warnings.

The panel was provided with a number of character statements in Mr Trythall’s bundle. The panel had regard to a character statement from a former colleague which stated that Mr Trythall enjoyed “clear and empathetic relationships with parents and he deployed the staff (assistants, tutors, matrons and cleaners) constructively and in a way that enhanced “esprit de corps” and a sense of team spirit.” The panel also had regard to another statement from a former colleague which stated that Mr Trythall demonstrated the “ability to communicate with parents and when a challenging situation developed the parents appreciated his speedy and efficient response”.

Another testimonial provided by a parent indicated that Mr Trythall was a passionate and thoughtful headmaster whose “absolute priority was to provide a caring and safe environment for the children and young adults at the School…he had a firm but fair approach…with clear boundaries; this is a really vital skill that many headmasters struggle with but this is so important when dealing with teenagers.” This parent felt that Mr Trythall “got the headmaster/pupil relationship absolutely right” and found him to be a “deeply honourable and compassionate man” in being responsible for the care and wellbeing of children.

Another former colleague from the School stated, “Whereas previously heads had been reluctant or refused to confront the issues, Mr Trythall clearly drew a line in the sand, put forward clear reasoning why the line had been drawn,” and this member of staff fully supported him in any disciplinary procedures that ensued. This former colleague went on to state that as a result of Mr Trythall’s efforts the School achieved an “excellent rating in the Ofsted (academic) report” when the School was inspected. He further commented that Mr Trythall had always been a “driven person”, prepared to go beyond what might be reasonably expected, and Mr Trythall achieved much at the School, in the short time he worked there, which was impressive.

In accordance with advice received from the legal advisor, the panel first considered whether it would be proportionate to conclude this case with no recommendation of prohibition, considering whether the publication of the findings made by the panel would be sufficient.

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The panel was of the view that applying the standard of the ordinary intelligent citizen recommending no prohibition order would be a proportionate and appropriate response. The panel was particularly mindful that Mr Trythall had been notified some five years ago that these proceedings would be pursued against him and that this oral evidence stage of the substantive hearing had commenced some five to eight years after the alleged events set out in the allegations. It was also plain to the panel that as early as 1 November 2016 Mr Trythall admitted that his conduct, as alleged by the TRA, amounted to unacceptable professional conduct. The panel had regard to the presenting officer’s acknowledgement that delay was an acceptable factor to take into account as mitigation in relation to appropriate sanction. However, she submitted that it was not mandatory for the panel to do so. Nonetheless, the panel considered that delay was a significant factor in this case.

In addition, the panel noted from Mr Trythall’s oral evidence that the emotional build up, in his words “at least twice a year” to when these proceedings would reach a final hearing, had had a significantly detrimental impact on him. The panel considered that Mr Trythall’s inability to gain permanent employment as a teacher whilst these proceedings have been ongoing impacted on their decision as to whether it would be appropriate to recommend a prohibition order in his case.

The panel considered that Mr Trythall demonstrated to the panel that he had not ignored the safeguarding issues he encountered at the School, just that in some cases he had not recognised them sufficiently and therefore had not acted appropriately. The panel therefore considered that the publication of the adverse findings it had made would be sufficient to send an appropriate message to Mr Trythall, as to the standards of behaviour that are not acceptable. This, the panel considered balanced the public interest requirements of declaring proper standards of the profession and seeking to retain Mr Trythall as a teacher. Therefore, in light of the mitigating factors that were present in this case, the panel determined that a recommendation for a prohibition order would not be proportionate or appropriate in this case.

The panel considered that Mr Trythall took these proceedings very seriously and he expressed sincere insight when questioned by the panel. The panel found credible Mr Bailey’s and Mr Trythall’s evidence that government guidance on or around 2009-2012 was more focused on the threat that adults may pose to children’s wellbeing as opposed to peer on peer issues.

The panel noted from Mr Trythall’s oral evidence that he recognised with hindsight that failing to seek advice from external services was a failure to recognise a safeguarding concern particularly in relation to pupils having inappropriate material on their phones or sexual relationships. The panel considered that, through these proceedings, Mr Trythall had come to terms with the fact that he sought initially to deal with potential safeguarding matters as disciplinary issues. He acknowledged numerous times within his statement and oral evidence that he would now know that he had to seek external support first. The panel noted that if a peer on peer issue arose now, Mr Trythall would have no hesitation in seeking external advice from appropriate agencies regarding any potential safeguarding concerns. Therefore, the panel considered it highly unlikely that the conduct found proven against Mr Trythall would be repeated.

Accordingly, the panel determined it was appropriate to recommend to the Secretary of State that no prohibition order be imposed in relation to Mr Trythall’s conduct. The panel considered the alternative sanction of a finding of unacceptable professional conduct and conduct which may bring the profession into disrepute was sufficient in this case.

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Decision and reasons on behalf of the Secretary of State

I have given very careful consideration to this case and to the recommendation of the

panel in respect of sanction.

In considering this case, I have also given very careful attention to the advice that is

published by the Secretary of State concerning the prohibition of teachers.

In this case, the panel has found some of the allegations proven and found that some of

those proven facts amount to unacceptable professional conduct and conduct that may

bring the profession into disrepute. In this case a number of allegations were not proven

and some of the facts found proven did not amount to unacceptable professional

conduct. I have been very careful to put all of these matters entirely from my mind when

considering this case.

The panel has made a recommendation to the Secretary of State that Mr Trythall should

not be made the subject of a prohibition order, but that the findings of unacceptable

professional conduct and conduct that may bring the profession into disrepute should be

published.

In particular the panel has found that Mr Trythall is in breach of the following standards:

Teachers uphold public trust in the profession and maintain high standards of ethics and behaviour, within and outside school, by

o having regard for the need to safeguard pupils’ well-being, in accordance with statutory provisions;

Teachers must have an understanding of, and always act within, the statutory frameworks which set out their professional duties and responsibilities.

The panel was satisfied that the conduct of Mr Trythall fell significantly short of the standards expected of the profession based on the serious breaches of the Teachers’ Standards in relation to safeguarding. The panel noted that Mr Trythall admitted that his conduct amounted to unacceptable professional conduct throughout these proceedings.

I have to determine whether the imposition of a prohibition order is proportionate and in

the public interest. In considering that for this case I have considered the overall aim of a

prohibition order which is to protect pupils and to maintain public confidence in the

profession. I have considered the extent to which a prohibition order in this case would

achieve that aim taking into account the impact that it will have on the individual teacher.

I have also asked myself whether or not a less intrusive measure, such as the published

finding of unacceptable professional conduct and conduct that may bring the profession

into disrepute, would itself be sufficient to achieve the overall aim. I have to consider

whether the consequences of such a publication are themselves sufficient. I have

considered therefore whether or not prohibiting Mr Trythall, and the impact that will have

on him, is proportionate.

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In this case I have considered the extent to which a prohibition order would protect

children. The panel has observed that these were “serious breaches of the Teachers’

Standards in relation to safeguarding.” A prohibition order would therefore prevent such a

risk from being present in the future. The panel has commented that Mr Trythall showed “

sincere insight when questioned by the panel”. I have also taken into account the panel’s

further comments on insight and remorse which the panel sets out as follows, “the panel

considered it highly unlikely that the conduct found proven against Mr Trythall would be

repeated.” In my judgement this demonstration of insight is an important factor in

considering this case. I have therefore given this element considerable weight in reaching

my decision.

I have gone on to consider the extent to which a prohibition order would maintain public confidence in the profession. The panel observe, “as headteacher should have picked up on the need to co-operate with and seek guidance from appropriate external agencies for the protection of children when necessary.”

I have had to consider that the public has a high expectation of professional standards of

all teachers and that failure to impose a prohibition order might be regarded by the public

as a failure to uphold those high standards. In weighing these considerations I have had

to consider the matter from the point of view of an “ordinary intelligent and well-informed

citizen.”

I have considered whether the publication of a finding of unacceptable professional

conduct, in the absence of a prohibition order, can itself be regarded by such a person as

being a proportionate response to the misconduct that has been found proven in this

case.

I have also considered the impact of a prohibition order on Mr Trythall himself. I have

taken into account the testimonials considered by the panel and the comments made

such as, “deeply honourable and compassionate man” in being responsible for the care

and wellbeing of children.

A prohibition order would prevent Mr Trythall from teaching and also clearly deprive the

public of his contribution to the profession for the period that it is in force.

I have given considerable weight in my consideration of sanction to the consistent

testimony provided on behalf of Mr Trythall as well as the fact that throughout these

proceedings Mr Trythall has admitted unacceptable professional conduct. A published

finding of unacceptable professional conduct and conduct likely to bring the profession

into disrepute is a proportionate response to this case and it will maintain public

confidence in the profession.

For all of these reasons I have concluded that a prohibition order is not proportionate and

is not in the public interest in order to achieve the aims which a prohibition order is

intended to achieve.

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Publication of findings is a serious matter and indicates to both the individual and the

profession that the found conduct was unacceptable.

Decision maker: Alan Meyrick

Date: 11 July 2018

This decision is taken by the decision maker named above on behalf of the Secretary of

State.