59. Teachers in England are regulated by the Teaching Regulation Agency (TRA). Teachers and other workers in the education sector in Wales are registered and regulated by the Education Workforce Council (EWC), which is discussed in Part J.
60. The TRA has the power to prohibit a teacher who has engaged in serious misconduct from undertaking teaching work. It is an executive agency of the Department for Education and came into operation in April 2018, taking over from its predecessors: the National College for Teaching and Leadership (NCTL) (2013 to 2018); the Teaching Agency (2012 to 2013); and the General Teaching Council for England (GTCE) (2000 to 2012).[1]
61. The GTCE maintained a register of qualified teachers. GTCE registration was required to teach in maintained schools but not in independent schools. The GTCE had a range of sanctions for dealing with misconduct and incompetence, including prohibition, temporary suspension of registration and conditions upon teaching practice. The GTCE’s jurisdiction was limited to registered teachers.[2]
62. The TRA does not operate a registration system but keeps a database of qualified teachers and a list of those who have been prohibited from teaching. The TRA regulates all those engaged in ‘unsupervised teaching work’ in any schools in England, regardless of qualification status.[3] Online teaching or tutoring is not covered by the TRA.[4]
63. The definition of teaching work does not include teaching assistants, cover supervisors and other learning support staff who are under the direction and supervision of the classroom teacher, according to the chief executive of the TRA, Mr Alan Meyrick.[5] Lindsey Collett was not referred to the GTCE by the headteacher of Headlands School in 2008 because she was a cover supervisor and not deemed to be engaged in ‘teaching work’, although she was sometimes working alone and not directly supervised with RS-A301. However, the Inquiry encountered confusion within the Department for Education regarding the extent of the TRA’s jurisdiction. Nick Gibb MP, then Minister for School Standards, believed that the TRA would deal with serious misconduct by teaching assistants and learning support assistants in schools.[6] Some higher level teaching assistants may come under the misconduct jurisdiction of the TRA, depending on the nature of their responsibilities and whether their work is supervised.[7]
64. The TRA only hears allegations of serious misconduct which potentially merits lifetime prohibition. No other sanctions are available. Lesser forms of misconduct and incompetence are to be dealt with at local level by employers and governors.[8] The purpose of a prohibition order is “to protect pupils and to maintain public confidence in the profession” and should be imposed only where it is an “appropriate and proportionate measure”, not simply in order to be punitive.[9] The TRA may impose an interim prohibition order while the case is being investigated if it appears that there would be a serious risk to pupils and the public should the individual continue to teach unsupervised.[10]
65. In England, a ‘relevant employer’ (which includes local authorities in the case of maintained schools and proprietors of independent schools) has a legal duty to make a referral to the Secretary of State in respect of a teacher who has been dismissed as a result of serious misconduct or would have been dismissed had the teacher not resigned.[11]
66. The TRA categorises its cases by behaviour types. Safeguarding concerns are not a category recorded by the TRA. During the period April 2019 to March 2020, approximately 39 percent of the 300 cases referred to a professional conduct panel of the TRA related to “breach of boundaries/trust” and 11 percent related to “sexual misconduct”.[12] Child sexual abuse by a teacher and related misconduct would fall into these categories. However, sexual misconduct may not always involve a child, while breach of boundaries is a wide category of inappropriate behaviours which may not necessarily relate to potential child sexual abuse.
67. The current system relies on schools making a correct assessment of the threshold for referral. Mr Meyrick stated that the TRA has encountered referrals where the misconduct alleged was not serious enough for prohibition to be considered. It seems likely that some schools may incorrectly assess misconduct as being insufficiently serious to merit consideration by the TRA. Asked about reliance on local systems working correctly, Mr Meyrick said that he believed that “teachers who need to be prohibited are prohibited by the system”.[13]
68. It is the responsibility of schools to ensure that, where there are allegations of teacher misconduct which are not eligible for referral to the TRA, a disciplinary process takes place to establish whether the allegation can be substantiated on the evidence available. The resignation, retirement or lack of cooperation of the staff member will not prevent the disciplinary procedure from reaching a conclusion where there is evidence for it to do so.[14] The Inquiry heard of several cases where the school did not undertake any disciplinary process after a staff member resigned, despite the statutory guidance.[15] This is concerning because allegations which have been substantiated through a disciplinary process must be included on a reference.
69. The Inquiry asked Mr Meyrick to comment on some previously decided cases of teacher misconduct arising from incidents of child sexual abuse in the schools examined in this investigation, and in particular to comment upon how similar cases would be dealt with under the current teacher misconduct process.
70. The former headteacher of Hillside First School, Mr Christopher Hood, failed to refer safeguarding concerns about Nigel Leat to the local authority.[16] After Leat’s conviction for a number of sexual offences against girls in his class, Mr Hood was referred to the NCTL for gross incompetence in respect of these safeguarding failures. During the course of the case, the NCTL was replaced by the TRA. The TRA continued with the case and, after hearing evidence, made a prohibition order.
71. Mr Meyrick said that a case such as Mr Hood’s would still be heard by the TRA because the incompetence was so serious as to amount to serious misconduct.[17]
72. When asked whether there was a risk that serious professional incompetence is not referred to the TRA, Mr Meyrick said that he did not believe there was cause for concern because the referral guidance is clear.[18] The TRA guidance Teacher misconduct: the prohibition of teachers states that one of the “key features” of the regulatory system is that only serious misconduct meriting prohibition should be referred to the TRA and that “Other matters, including all cases of incompetence, should be dealt with locally”.[19] The guidance has been updated since the Phase 2 hearings to include a failure to act on evidence that a child’s welfare may have been at risk and failure in their duty of care towards a child as examples of behaviour so serious as to potentially merit prohibition.[20] However, the guidance continues to state in its introduction that all incompetence is to be dealt with locally, which would deter referrals by schools.[21]
73. The case of RS-F71, referred to above, was decided by the Teacher Misconduct Unit of the Department for Education and Skills in 2004 as a List 99 case. At that point, the GTCE was responsible for allegations of misconduct by registered teachers. RS-F71 was registered as he had previously taught at a state school. It is not clear why the Department for Education and Skills did not refer the case to the GTCE.
74. Mr Meyrick said that if the same case were referred now, it was “almost certain” that the TRA would consider the case to be sufficiently serious as to be placed before a professional conduct panel for a hearing.[22] At the hearing, the professional conduct panel would decide whether the accepted conduct in having sexual intercourse with a pupil amounted to unacceptable professional conduct, and the representations of the teacher would be considered. Mr Meyrick accepted that the mitigating features advanced by RS-F71 did not bear analysis.[23]
75. Mark Moore resigned as headteacher of Clifton College at the end of 2015. The school had a number of concerns regarding Mr Moore’s handling of safeguarding issues relating to Jonathan Thomson-Glover, a housemaster who was convicted of child sexual abuse. Clifton College did not conduct any disciplinary proceedings in relation to Mr Moore but referred these concerns to the NCTL in August 2017.[24] Upon receipt of the referral, the NCTL invited Mr Moore to submit his representations. The determination panel of the NCTL decided that there was no case to answer and so the case did not proceed to a professional conduct panel to hear all the evidence and make a decision on prohibition.[25]
76. It was unclear whether the NCTL determination panel considered that there was insufficient evidence to support the allegations against Mr Moore or that the allegations taken at their highest were not sufficiently serious to merit prohibition.[26] Mr Meyrick considered that the determination panel “probably gave too much weight” to Mr Moore’s account of events when those matters should properly have been left to be determined by a professional conduct panel.[27] Mr Meyrick said that determination panels now operate differently and that decision-makers have more training, so that he was “confident” that under the new process a similar case would proceed to a professional conduct panel to hear all the evidence and reach a decision on the appropriate action to take.[28]