Closure of the New School Butterstone: independent review report

The Deputy First Minister and Cabinet Secretary for Education and Skills commissioned this independent review, conducted by James Martin CBE, into the closure of the New School Butterstone to consider the procedures and circumstances which led to the closure.

Chapter 5: The School Closure

5.1 This Chapter covers decision making, roles and responsibilities and communications in the week of the School closure.

The last week

5.2 Two recommendations were made that the School should close. One was by Witherslack's Director responsible for Safeguarding in his Report on safeguarding of 10 November 2018, as mentioned earlier. The second recommendation for closure was made by Head of School B.

5.3 I am clear that the decision to close the School became inevitable because of the financial position it found itself in. To the extent that Witherslack's decision was impacted by the safeguarding incident described above is more difficult to say. I am certain that, of the issues weighed up by Witherslack in making their decision to withdraw, their doubts about Head of School B's leadership was an important factor. Witherslack assert that these doubts were confirmed by Head of School B's handling of this affair, and that judgement was one they were entitled to make.

5.4 On 18 November, the day before the Board met the Relevant Bodies to try to persuade them to provide support to allow the School to stay open, Head of School B wrote a long letter to the Chair of Board giving their analysis of events over the past year. This letter concluded:

"In conclusion, and given that my judgements have been correct on all occasions over the last 11 months, I have to recommend that the Board closes the school. [Head of School B's emphasis] The regulatory authorities do not wish us to exist and will do all that they can to undermine the important role that we play."

This extract from this letter to the Chair of the Board perhaps gives an insight to Head of School B's attitude to constructive criticism from the Care Inspectorate, HM Inspectors and Witherslack, and the inspection findings of the regulatory authorities, of Head of School B's management of the school. As stated previously, I have neither seen nor heard any evidence to suggest that there was any plan, or intention, on the part of any of the Relevant Bodies named in the Terms of Reference of this Review, to seek the closure of the School.

5.5 The Board convened a meeting on 16 November 2018 to discuss the implications of Witherslack's decision to withdraw on 23 November 2018. At that meeting the Board considered whether it would be possible to continue without Witherslack's support.

5.6 The Board noted that, with Witherslack's support, the conditions placed on the School by the Care Inspectorate were in the process of being met. However, this had been overtaken by Witherslack's decision to withdraw earlier than previously indicated, since Witherslack's presence at the school had been an essential assurance for the outside agencies that the School was in a position to make the improvements required. Although Witherslack had agreed to provide a member of staff to take on the role of Acting Head of School until the School closed, they had also made it clear to the Board that in their view the correct decision for the Board to take would be to close the School even sooner than 23 November 2018.

5.7 The Board considered whether there were any options open to them that would enable the School to continue to operate; but concluded that without another provider being found to take over immediately, the School was not financially viable. In addition, the early closure of the School may of itself make the financial position worse, particularly if there was a requirement to repay fees, which had already been paid in advance. There was also some doubt as to whether, without the financial backing of Witherslack, the School would be able to meet its liabilities, including redundancy and notice payments, given its projected cash flow position and the likelihood of a significant cash deficit for the year. There was also some discussion about the School's lease and the landlord's likely position, the landlord having been sympathetic in the past to the School's financial difficulties, given that Witherslack would no longer underpin the school's finances.

5.8 Having considered their options, the Board decided that the Charitable Trust should be wound up. But they also decided that they would in the meantime try to find an interim arrangement to allow the School to continue at least until the end of term. They intended to seek a solution at a Board Meeting on 19 November 2018, and agreed to invite Perth and Kinross Council, the Care Inspectorate and HM Inspectors to be present at that meeting.

5.9 There is a criticism made by Witherslack that the Board acted too slowly, indeed Witherslack use the term 'inaction', between their meeting with the Board on 6 November, where they informed the Trustees of their decision to withdraw from the Business Transfer Agreement, and the Board's closure decision on 16 November. Witherslack have also criticised the Board for the decision not to close the school immediately on receipt of their safeguarding Report and its recommendation for closure.

5.10 However, over that period, the Board had: suspended the Head of School; arranged for an Acting Head from Witherslack to take over Head of School duties; and initiated an investigation of the School's handling of the child protection issue set out in the section above. They had also accepted the recommendations in the Witherslack report and authorised their implementation. The Board had also participated in a meeting with the Care Inspectorate, HM Inspectors and Perth and Kinross Council, where neither the Care Inspectorate, nor HM Inspectors, nor indeed Witherslack had argued that the School was not in a position to ensure the safety of the young people in its care, but where there was some indication that, with Witherslack's support, the School was making progress towards making the improvements required by the Care Inspectorate. Furthermore, while Witherslack has said that in their view, for safety reasons, the School should have closed prior to 23 November, nonetheless they were over that period still prepared to support the School, and to have a member of their team act as the School's Head Teacher until that date.

5.11 It cannot be argued therefore that the Board were not engaged or active in the ten days between the announcement of Witherslack's withdrawal and the decision to close the School. It can be argued that the Board did not decide to act to close the School immediately, but the Witherslack Report's recommendation was not for the School to close immediately. The Report's recommendation was that the School "be closed as quickly as is achievable, in an orderly manner in order to ensure the safety of the young people without unnecessary disruption."

5.12 Had the Board acted only on the recommendation of the Witherslack Report, without testing whether the recommendation stood up to scrutiny and without testing whether any other practical courses of action were open to them, and weighing up their options, they would have been remiss. For Witherslack to believe that their recommendation was the only course the Board should have considered was to ignore the governance responsibilities of the Trustees.

5.13 It was therefore not only a reasonable course of action for the Board to take, but incumbent on the Board that they consider and weigh all the information they had available to them before reaching such a serious decision as closing the School, taking account of all of the ramifications such a decision would have for the young people in their care and their families, and the staff whom they employed. Just as it was Witherslack's responsibility as they saw it to offer advice to the Board, equally it was the responsibility of the Board to test that advice and to consider that advice in the round. By 16 November 2018 only Witherslack had come forward to say that the School needed to be closed almost immediately, although on 18 November, but for different reasons, Head of School B was to advocate a similar decision. Neither the Care Inspectorate, nor HM Inspectors, had offered an assessment that the School should be closed. Equally, despite the difficult relationship between Perth and Kinross Council officials and the School, Perth and Kinross Council had not advocated for the closure of the School.

5.14 However, it would in my view have been prudent had the Board, and Witherslack, who were still contracted to administer the School on behalf of the Board until 24 December though they actually withdrew on 23 November, begun to plan for the practicalities of a possible closure as soon as possible after their meeting of 6 November. Closure was, from that date, the likely outcome. This work could have been undertaken confidentially so as to avoid the possibility of closure becoming public knowledge and affecting the School, or Witherslack, commercially. The consequence of not doing so was that the closure arrangements in the last week of the School were poorly managed, and that poor management unnecessarily increased stress and pressure, particularly for the young people for whom the School was such a large part of their lives. It is not sufficient for Witherslack to accuse the Board of inaction.

5.15 While it is true that from 6 November, the Board was aware that the financial support from Witherslack on which the future of the School depended would be withdrawn, at that point all indications pointed to the withdrawal of support, and therefore the closure of the School, on 24 December, seven weeks later. If no closure plan was put in place beforehand, then when a decision to close was taken, it would have been essential and good governance for the Board, or subset of the Board, to work with the School's management, whether Witherslack, or the existing management team of the School, to begin to plan for closure as soon as it was clear to them that no other solution was viable. I am clear that that position was not reached until 19 November, four days after Witherslack changed the date of their withdrawal of management support. The Trustees in my view, acted reasonably in examining all their options to try to secure the School's continuing existence, before moving to close the School. But, a consequence of this was that immediately following the Board meeting, the process of closure rapidly began without a plan in place. One very significant omission was a plan for how to communicate with the School's young people and their families.

5.16 The Board reconvened on 19 November at the School, with representatives of Perth and Kinross Council, the Care Inspectorate and HM Inspectors in attendance. After setting out the serious position facing the School, the Board asked the Perth and Kinross Council representative, whether, given that around half of the pupils placed at the School were from that local authority, the Council would be in a position to offer support to the School. The support requested was similar, the Board said, to putting the School into 'special measures', that is, by providing staff and management resources to enable the School to continue after the withdrawal of Witherslack. The Perth and Kinross Council representative made it very clear that they could not commit the senior staff that would be required to manage the School, but did commit to working with the School, families and staff to ensure as smooth a transition to new arrangements as possible.

5.17 It has been suggested to me by some of the previous staff members that this decision by Perth and Kinross Council effectively closed the School. It did not. This was, on the Board's part, a last throw of the dice. Perth and Kinross Council's representative was doing just that, representing the Council's view. Responsibility for the continuance and management of the School lay with the Board, not with Perth and Kinross Council. It was entirely a matter for the Council, as a public body, to decide whether it had the resources available that could be released immediately from other commitments and responsibilities to comply with the Board's request. That the Council decided that it could not undertake the management of the School, however disappointing for the School, was a legitimate and reasonable decision for the Council to take. It did not cause the closure of the School.

The closure of the School

5.18 Much of the Board meeting of 19 November was taken up with discussing the arrangements for the closure of the School. It is important here to remember the time pressures at play. After this meeting, the School was due to close on the afternoon of Friday 23 November, four and a half days later. Although there were discussions at the Board meeting about arrangements for closure, these were high level discussions. There was no closure plan in place for management and staff to work with. The School's young people, their families and carers, most of the placing authorities, and importantly the School's staff, were unaware until that Monday afternoon that the School would be closed by Friday.

5.19 The word most commonly used when people have been talking to me of their experience of the School's last week is 'chaotic'. I have received a large amount of evidence from individuals and organisations over the period of this Review about what took place in the last week of the School. There have been diametrically differing views expressed to me about how decisions were made, who took them and why. These include accusations of mismanagement, poor relationships, incoherent record keeping, cancellation of school events and a lack of clarity and settled plans for young people leaving the School.

5.20 However, there is universal agreement from all concerned that for the young people who attended the School, whether as day pupils or as boarders, this was a very traumatic and extremely difficult experience. I have had many representations from young people and their families, and concerns have also been raised with me on behalf of the young people by Scotland's Children and Young People's Commissioner.

5.21 Through no fault of their own, a major foundation upon which their lives were built was removed from under them with little or no warning. It is important to recognise the part played by the School in these young people's lives. For many, the School was their first positive educational experience and a place where they could develop as individuals; a place where they were happy. This should not be lost sight of or underestimated. Equally, the distress and concern caused to the young people's parents and carers should not be forgotten. This closure decision impacted on many people's lives and is still impacting on many of them today. Not many parents, carers or young people would agree that the admonition in the Witherslack Safeguarding Report that the School should close, 'in an orderly manner', was met.

5.22 The most important decisions that should have been made that week were how best each of these young people, and their families, could be guided through this traumatic and unexpected school closure. This did not happen. The manner in which the closure of the school was managed, in my view, added to that trauma and made what for many of the young people and their families was an already difficult week immeasurably worse. While nominally adopting a child centred approach, the management of the closure of the school to achieve minimum external fuss and reputational damage seems to have become the primary focus of those making decisions.

5.23 To a large extent, the ability to manage an orderly closure of the school was severely constrained by the timescale set. It was also not helped by the lack of any plan for the School's closure, or any clear definition of roles and responsibilities in the School's last week. The Board agreed at its 19 November meeting to the suggestion that Perth and Kinross Council should locate a team within the School; that there would be collaboration between Witherslack, Perth and Kinross Council and the regulators; and that Witherslack's Acting Head of School, along with other Witherslack staff, would take the lead in supporting the transition of the School's students.

5.24 It is important to take a moment to remember the context in which that last week of the School was played out. Already in November: the Care Inspectorate had served an Improvement Notice, with the threat of possible further enforcement action, on the School; two members of staff had been suspended to allow child protection allegations to be investigated; and the Trustees had recently suspended Head of School B. The School was therefore understaffed, and morale among staff in the School was already under serious strain before the closure announcement was made.

5.25 Following the Board meeting on 19 November, where arrangements for the last week had been briefly discussed, a meeting was quickly held to inform staff of the closure of the School. It should be remembered that this was a normal school day, and, given their on-going responsibilities, not all staff members could attend this meeting. In their submissions to me, and in filmed interviews I have seen with staff members, many left that meeting unclear about what was to happen over the next week and who was in charge. However, in his communications with Witherslack through their acting Head of School, and in his communications with the Care Inspectorate, the Chair of the Board made clear that the acting Head of School remained in charge during that week.

5.26 The commonly held staff view up to that point, that is before staff were told of the closure immediately after the Board meeting had concluded, was that two of their colleagues and Head of School B had been suspended on the insistence of the Care Inspectorate and that this was the culmination of a campaign waged against the School by Perth and Kinross Council. Indeed, during the closure week, some parents received an anonymous letter, clearly written by a school insider, telling them that this was the case. This view is still perpetuated today in a campaigning website set up after the School's closure.

5.27 As I have set out earlier in this Review, the relationship between the senior management team and some Perth and Kinross Council officials had broken down over the previous two years, with a lack of trust and professional respect that appears, at some points, to have strayed into personal bitterness. I have seen no evidence that Perth and Kinross Council officials actively campaigned for the School's closure, but I am certain this is what many staff believed at the time, and still believe, and was a critical lens through which the Council's representatives' actions in the week's unfolding events have been seen.

5.28 There is also a commonly held view among the School staff and others, that it was the Care Inspectorate who insisted upon and forced the suspensions of two members of staff, and Head of School B. This is simply not the case. The Board, as well as taking their own legal advice, did receive advice from Witherslack and the Care Inspectorate on processes to follow in investigating child protection allegations, but they, and they alone, were entirely responsible for taking the decision to suspend the members of staff named in the child protection allegations and the suspension of Head of School B. Indeed, had the Board not acted as they did, in my view they would have left themselves open to serious criticism. They acted properly.

5.29 There was little or no information given by the Board to staff about their own situation, about for example, notice periods or redundancy payments at the meeting on 19 November. Naturally, as well as concerns for the School's young people, staff members were worried and concerned about what the closure decision would mean for themselves and their own families. In the discussions I have had with many of those involved with the School at this time, I do not think that the impact of the closure decision on staff members was fully appreciated, or given sufficient weight. Staff were asked to work as normal over the School's last days, to manage the impact that the decision had on the young people in their care, while coming to terms with the impact on themselves of the closure decision. That feelings were running high in the staff group is understandable.

5.30 There was certainly, therefore, a difficult atmosphere at the beginning of the week between some staff and the outside bodies and with the management team from Witherslack. The attendance of the Perth and Kinross Council officials and members of the Care Inspectorate and HM Inspector teams at the School in the last week proved to be controversial and led to the belief, still held by some, that in effect the management of the School, in its last week, had been handed over to the outside bodies. As the week progressed, and some decisions made by school staff about how the young people would spend the last week were amended, or simply overturned, the atmosphere deteriorated and staff suspicions and anger grew. It is not my intention to go through all of these adjudicating on each. What is clear to me is that there is still a high level of animosity and attempts to allocate blame between many of those involved, from almost all directions.

5.31 The Board had asked Perth and Kinross Council to be at the School to fulfil two functions, firstly to plan for the transition of the young people, and secondly to liaise with other local authorities who had young people placed at the School. The Board had agreed that a team of people from the Council would attend the School that week. They had also asked the Care Inspectorate and HM Inspectors to visit the School to help ensure a smooth transition. However, the role of the officials from these outside bodies was never clearly defined nor communicated to the staff at the School. Witherslack have also suggested to me that the Board had not made them aware of these decisions.

5.32 I have found that the management of the last week was unplanned, lacked coherence and structure, and that mixed and inconsistent signals were sent to staff about management roles, staff responsibilities and who in the final analysis was determining where the best interests of the young people at the School lay. It is clear to me that, in some cases, personal relationships, particularly between some staff members and some representatives of Perth and Kinross Council, were not good and this hampered the effective management of the School's rundown to closure.

5.33 I am unclear why, having been given responsibility to manage the School and to co-ordinate the input of the outside bodies invited in to help the School, the Witherslack staff did not take firmer control of the decision making process. If Witherslack staff were unclear as to what their role was to be, then I would have expected them to have sought clarity from the Board.

5.34 It was put to me in evidence from members of staff, that all major decisions in the School's final week appeared to have to be approved by the outside bodies. On the one hand, I am told by Witherslack, Perth and Kinross Council, the Care Inspectorate and HM Inspectors, that this was not the case. Yet, I was told by a representative of one of the outside bodies that they had felt so strongly that no-one appeared willing to take important decisions, that they felt compelled to step in to make the decisions for the School themselves, 'to fill the void'. In evidence I received from Witherslack, I was also told of a controversial decision to ask Police Scotland to be in attendance at the School because parents, young people and media might be planning to stand at the school gates. The telephone call made to Police Scotland, on behalf of the School, was made by a representative of an outside agency. Risk assessments on school activities planned for the young people were certainly seen, assessed and on occasion approved or disapproved by, outside representatives.

5.35 The outside bodies, despite their different roles and responsibilities, appear to have operated as a single unit, working together from a separate room in the School. The Registrar, HM Inspectors, the Care Inspectorate and Perth and Kinross Council were co-ordinating their activities and nightly updates, co-ordinated by the Registrar of Independent Schools, were provided to the Deputy First Minister and senior civil servants. It is not difficult to see how the impression was formed by staff in the School that an alternative management structure was in place. As the week progressed, so it appears more interventions were made.

5.36 I give these as examples simply to illustrate that, in the absence of a clear management plan and strong management from the Board, the decision making process in the final week appears to have been fluid and to have evolved incoherently. I am of the view that important decisions about what the young people would do in the School's last week, and how the young people would leave the School, were taken by the outside bodies acting collectively.

5.37 The School was still functioning as an entity. The management of the School, and the responsibility for the care and education of the young people attending the School, was still the responsibility of the Board and their management team, led by the Acting Head of School supplied by Witherslack. The role of the outside bodies was to help with transition and give support. I have found that, by influencing and taking part in management decisions during that critical week, the representatives of the Care Inspectorate, HM Inspectors and Perth and Kinross Council, strayed beyond that remit.

5.38 There is a learning point here for Perth and Kinross Council, the Care Inspectorate and HM Inspectors about the need to maintain clarity around their purpose and roles in this and any future similar situations. The respective roles of the bodies in their day-to-day functions are clear. The impression I have been left with by the evidence I have received, and the interviews I have had with them, suggests to me that a degree of 'mission creep' set in among them. While I have no doubt that there was a real sense of frustration among this group as to the situation and lack of direction and leadership from the Board and senior management team of the School, it was not their responsibility to manage the closure of the School. The young people were the responsibility of the Board and the School management until the School closed. They were still liable for what happened in the School. The outside bodies were not. The School staff were the ones who worked most closely with each of the young people, who understood their personalities and needs and who had most contact with their families, and were best placed to decide how to guide them through the difficult week of the School's closure.

5.39 The School's staff formed a strong impression that the room used by the outside bodies was a decision making hub. Each of the outside bodies have told me that this was neither their intention, nor is it in their view a true reflection of their activities. Whether or not that is so, the impact of the way in which interventions were managed did have a detrimental effect on the staff of the School. I readily accept that relationships between some of the representatives of the outside bodies and some of the staff were strained prior to the closure decision, and that this may well have influenced some staff reactions, but in my view insufficient care was taken to take account of this important consideration by the outside bodies. They had not been invited into the School to assist with managing the School, but to assist with the transitional arrangements for the young people.

5.40 It seems evident to me that the outside bodies lacked confidence in the School staff, including the staff provided by Witherslack, to manage the School in its last week, which led to them acting in the way that they did.

5.41 The Board of Trustees are a non-executive team. It would not be reasonable to expect them to take on an operational management role. However, it was their role to ensure that management responsibilities were clear. It was then the responsibility of the School's management team to deliver on the Boards strategic direction for the closure of the School. The lack of clarity coming from the relatively brief discussion at the Board meeting on 19 November, just a few hours before the closure announcement was made, left too many questions unanswered and, perhaps, too many questions unasked.

5.42 While the overall responsibility for the School undoubtedly lay with the Board, the primary responsibility for recognising that this was a problem that needed to be nipped in the bud, lay with the school management, that is the Acting Head of School and the Witherslack team who were responsible to the Board for the efficient administration of the School in its last week. Witherslack's representatives in their evidence to me and in my discussions directly with them, failed to convince me that they were in control of the situation. The lack of firm management enabled lines to become blurred and confusion over roles to go unchecked. There is also a power imbalance to consider here. The Care Inspectorate and HM Inspectors had effectively, in non-technical terms, placed the School on a last warning. They were effectively holding the School to account. It is not difficult to imagine that school staff might be reticent about challenging these outside bodies in these circumstances.

5.43 I am satisfied that, during this period, management was weak. There was no overall plan for managing the young people's last week at the School, nor was there a consistent plan for the young people as individuals, each with their own needs. It seems to me that decisions and plans were subject to constant scrutiny and change, often with little warning, and that on occasions during the last week of the School officers of Perth and Kinross Council, HM Inspectors and the Care Inspectorate, effectively took part in, or influenced, some management decision making. While I understand the view expressed to me that there was a perceived void in the decision making process, the School and the children's care was still the responsibility of the Board and their nominated management team from Witherslack and their own staff. The Council representatives, HM Inspectors, and the Care Inspectorate strayed beyond their remit.

Parents and carers in the closure week

5.44 An announcement that the School was to close was officially sent to parents and carers by an email from the Board on Monday 19 November in the late afternoon. By that time some students, many of them distressed, had already called home with the news. In the course of the afternoon and evening parents and carers tried to contact the School for clarification and information about how the announcement would affect their children. Many have told me that they could not get through to the School and that calls went unreturned.

5.45 Effectively, therefore, parents and carers were the last to know about the closure of the School. The School had no coherent communication plan at any point in the School's last week.

5.46 Over the next two or three days, various local authorities contacted the families of students at the School to discuss their young person's transition arrangements. Parents wanted to know why the School was closing and why it was closing so abruptly. The Board's email cited financial difficulties. However, it is clear that the message being given to some parents by some local authorities who engaged with them at that time was that the School was being closed because it was unsafe, or because of child protection issues. The rumour mill, fuelled by the anonymous letter to some parents, went into overdrive. Parents have expressed to me that the immediate impact of the School's closure was exacerbated by a lack of meaningful information and confusion about how the School intended to operate in its last week and by a similar lack of information and confusion about the next steps in their young person's care and education.

5.47 Many of the School's young people find coping with uncertainty in their lives difficult at the best of times. Some young people chose to leave the School immediately, and some did not return to school for the rest of the week. Extra care needed to be taken to ensure that each young person's needs were considered and individual plans put in place to support them and their parents and carers. I have seen little evidence that this was the case.

5.48 My findings indicate that the parents and carers of the young people were not given sufficient consideration in this week. I have been told of parents who were instructed not to pick up their children from the School, but to collect them from the car park of an adventure playground centre in Perth instead. This meant that, for one family, they had to pass the School to pick up their young person and add a thirty mile round trip to an already lengthy journey, with no reasonable explanation given. Another parent told me, movingly, of the great distress caused to one young person who boarded at the School who was asked to clear their room and leave the School with an adult social worker whom they had not met before.

5.49 Some young people had their departure times from the School changed at short notice. Events planned for the last week by the School's staff were amended or cancelled, often after the young people and their parents and carers had been informed of them, without explanation. As set out in paragraph 5.34, Police Scotland was called to patrol around the entrance to the School because it was believed that on the School's last day some parents, young people and media might gather there. I have not been shown any evidence that it could be reasonably expected that anything untoward was being planned, indeed, many parents have expressed their anger that anyone at the School at that time could believe they would do anything to upset or harm their own young people or their friends and fellow students.

5.50 While I accept that the Board was searching to find ways to ensure the School was safe and to keep it open, and that that option would have been best for the young people, it was clear to them from 6 November that the almost inevitable outcome would be the closure of the School in a matter of weeks. More notice of the School's difficulties could have been given to the parents, carers and placing authorities and of the likelihood of closure. However, I accept that Witherslack's decision to bring forward the date of their withdrawal from the School severely constrained the Board's ability to do so.



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