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Nothing to do with proportionality

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A key principle inherent in the practice of Administrative Law is that of ‘proportionality’, i.e. that any actions taken are in some way related in scale to the flaw, weakness of misdemeanour they are intended to address.

In the case of TNS, the enforcement action taken by the Care Inspectorate and John Swinney caused the closure of a school, destroyed the educational prospects for 24 pupils (and more), placed them in unsafe situations, caused lasting trauma, and also resulted in the loss of 50 jobs.

So, what can possibly justify such extreme action and such a high human cost?

At the very worst, the Head of Care and Head of School could be accused of failing to recognise that there may have been child protection concerns raised in a note intended to alert school managers to the possibility that others may misinterpret the actions of 2 members of the care team.

In other words, whilst they were correct in understanding what the staff member was saying when she wrote that note (and this has been proven by two independent investigations) they might also have considred that although there were no concerns for the welfare of the pupils, poor practice could reach the threshold level for it to become a child protection matter.

However, when a ‘disclosure is made’ there is a duty on those concerned to gather the basic facts before reporting it to the authorities. The key questions are; ‘where’, ‘when’, ‘who’, and, ‘was anyone else there at the time’.

The note did not specify which members of staff had, for example, “placed their hands on the shoulders of a pupil in class”, nor who else was present to witness such a brutal act of child abuse.

So, even if school managers had deliberately misinterpreted what the note was meaning and judged it to be about child protection, there was nothing that they or anyone else could do in the time they had available because the basic information was not there to undertake even that pre-investigative information gathering. There was no delay in addressing the matter. The staff member was off sick when the school returned from the October break.

By 30th October, it was already known that there were no child protection concerns and that the events described had not happened, and just 2 days later, the school was cleared of all wrongdoing. Sandra Wright of the inspectorate made it clear in her email to Angie on that day that this was no longer a child protection matter, so even the Care Inspectorate accepted the findings of the investigation.

In other words, nothing had happened at the school. Nothing at all.

That very day, the Care Inspectorate informed the school that they were going to take enforcement action, reported to the Registrar of Independent Schools that there had been a failing, and caused the Witherslack Group to announce that they were withdrawing from a takeover agreement as a result.

The Head of School was then suspended and just days later, the Governors announced that they were being forced to close the school because of, “intolerable pressure from the regulators”.

So proportionality does not come into it.

You cannot justify such brutal and destructive action which has caused so much human misery on the basis of something that has not happened. It defies logic and common sense.

It was not a case of over-reacting to a small matter. It was a case of reacting to nothing at all. A vacuum. A gaping void. An infinite expanse of deep space.

The Black Hole in the logic applied by the regulators will be brutally exposed in any investigation or in court and it will leave any objective observers scratching their heads thinking, “Why did they do this? Why would a national regulator act in this way and cause so much human misery. What did they intend to achieve?”

And at that point, what we have all known for many months will become clear to others.

Perth & Kinross Council and the Care Inspectorate, together with Education Scotland, targeted the school for closure and attempted to apply the coup de gras over a fake concern when the Head of School was not presernt to defend himself or to demand that intelligence and logic should prevail.

As things stand, TNS has the dubious distinction of being the first school forced to close as a result of something that didn’t happen. And was clearly known not to have happened.

In the long and chequered history of residential care in Scotland, the TNS case stands out as being the most disturbing and bizarre of all.

Bill Colley