The crisis hit National College for HS2 has hired a team of lawyers to stop Ofsted publishing a highly critical report, FE Week can reveal.

The government-backed flagship college launched in 2017 but has struggled to recruit learners and this time last year received close to £5 million in a bailout deal to keep the doors open.

In November, inspectors visited the college – renamed last year as the National College for Advanced Transport and Infrastructure (NCATI) – for the first time and found the quality of provision to be so poor they were set to award the lowest grade possible, a grade four.

“The inspection and report are the subject of litigation”

Governors were quick to instruct lawyers to block the publication by filing for a judicial review at the High Court. They have also voted to stop publishing board minutes, as well as delayed signing off the accounts.

The Department for Education was initially cautious of commenting during the legal proceedings, but have since confirmed they placed they college in formal intervention on December 6. A notice to improve and a Further Education Commissioner report will be published shortly.

It is understood that a court date for the judicial review is yet to be set.

Despite being handed a financial notice to improve – and being in receipt of a £4.55 million government bailout to sign off its 2017/18 accounts – the college did not need permission to use public funds on legal proceedings.

The DfE said the college is not required to seek approval for legal expenses following formal intervention – because as independent organisations governing bodies are subject to their own fiduciary responsibilities.

Chair of the college board is Alison Munro, chief executive of HS2 Ltd from January 2009 to September 2014, and subsequently managing director of HS2 Phase 2 until her retirement in August 2017, when she was awarded a CBE.

A DfE spokesperson did add that the board must act in the best interests of the college, as a charity.

As spokesperson for Ofsted told FE Week “The inspection and report are the subject of litigation. The report has not been published. In the circumstances, we are not able to say more.”

The college also said it could not comment on the Ofsted result as “there is a legal process taking place”.

The influential Public Accounts Committee is set to be reformed next month, and FE Week understands that – subject to members agreeing – its first evidence hearing will be an update on HS2 on March 4, which will likely include questions on the national college.

This is the second judicial review to be launched by an FE provider following a grade four Ofsted judgement in recent years. The country’s former largest training provider, Learndirect, lost its High Court battle with the education watchdog in 2017.

It led to a National Audit Office inquiry, a Public Accounts Committee hearing, and, ultimately, the government terminating the provider’s £100 million funding contracts.

The Ofsted report is not the only thing NCATI is keeping hidden from the public, as it confessed to FE Week it has temporarily suspended the publication of board minutes as of last month.

The decision was taken because of “exceptional circumstances in which the college was currently operating” – namely “so as to not prejudice an independent review taking place into HS2”, a spokesperson said.

Learners and stakeholders interested in how the college is being run will have to make do with corporation board minutes on NCATI’s website. These go up only to December 2018 and February last year for the audit committee, and none have ever been published for its search, governance and remuneration committee.

Suspending publication means the records of meetings taken during NCATI’s transition from the National College for High Speed Rail (NCHSR) will not be published until at least July 2020.

NCATI has also failed to sign off its 2018/19 accounts, a situation the college said the ESFA is “aware of, as we are working with their team to be in a position to finalise the statements”.

The National College for High Speed Rail rebranded as NCATI in 2019 and announced plans to expand its provision to cover transport areas other than the high-speed rail industry, to which it had been dedicated ever since it was opened by then education secretary Justine Greening.

It denied that the name change was related to the troubled HS2 project.

The college currently advertises rail-related apprenticeships between levels 3 and 6, as well as higher national certificates and higher national diplomas, foundation degrees, and full-time courses at either level 3 or 4.

Hopes were initially high for the college, with the likely construction of a high-speed rail line connecting London with the midlands and north, HS2, near to their campuses at Birmingham and Doncaster. Moreover, it is being led by Clair Mowbray, a former employee of the line’s builders, HS2 Ltd.

Clair Mowbray

Yet according to a recently-published government review of National Colleges, delays in announcing HS2 contractors meant employers were unable to commit to the apprenticeship volumes they had originally anticipated at the college.

In addition to this, and other factors such as a high-speed rail apprenticeship being granted a lower-than-expected funding band, the government review found NCHSR did not meet its learner targets for 2018/19, along with two other National Colleges.

The HS2 college had already received £40 million in capital funding from the ESFA to construct buildings and purchase equipment.

A further £12 million was provided by the Sheffield City Region combined authority, and the Greater Birmingham & Solihull Local Enterprise Partnership.

HS2 Ltd also loaned NCHSR £2,906,000 in 2018 and £2,804,000 in 2017.

The college signed up just 96 students when it first opened, even though it aims to be taking on 1,200 a year by 2022.

NCATI said it is confident the prime minister’s decision this week to give the greenlight for the construction of HS2 provides “the certainty the college, our partners, industry and learners have been seeking”.

When he made his announcement in the Commons this week, the prime minister confirmed HS2 would be an opportunity to embed skills, saying the project “will drive jobs and apprenticeships for young people for a generation to come”.

An ‘inadequate’ for NCATI would be the worst handed to any of the four open National Colleges: National College for Digital Skills, which opened in 2016, achieved a grade two in 2018; while National College Creative Industries, which also opened in 2016 before dissolving this year, received a grade three last year and has now set up as a limited company.

The National College for Nuclear is split across two hubs at Bridgwater and Taunton College in Somerset and Lakes College in Cumbria, both of which are grade two.

A fifth National College, for onshore oil and gas, is on hold by its overseers – United Kingdom Onshore Oil and Gas (UKOOG) – while “greater clarity and progress by way of timing and the scale of production activities is ascertained”.