Employment - Local government - Social welfare - Children’s services

R (on the application of Sharon Shoesmith) v Ofsted and Ors: CA (Civ Div): (Lord Neuberger of Abbotsbury MR, Lord Justices Kay, Burnton): 27 May 2011

The appellant (S) appealed against a decision ([2010] EWHC 852 (Admin), (2010) 154(17) SJLB 27) dismissing her application for judicial review of decisions surrounding her summary dismissal as director of children’s services (DCS) of the third respondent local authority.

A mother and others had been convicted of causing or allowing the death of a child who had been known to the local authority because of concerns about neglect and abuse.

Following the criminal trial, the second respondent secretary of state requested the first respondent Ofsted, under section 20 of the Children Act 2004, to produce an urgent report into child safeguarding arrangements within the local authority.

The report was very critical.

Following the report, the secretary of state made a direction under section 497A(4B) of the Education Act 1996 appointing another person to S’s post.

The local authority dismissed S on the grounds of the direction and a fundamental breach of confidence.

The judge found that Ofsted had discharged its obligation to carry out an inspection and report accordingly; the secretary of state had not been engaged in a true disciplinary process, so the requirement for procedural safeguards was lower and had been satisfied, and even if S had made representations to the secretary of state, the outcome would have been no different; and although the local authority’s decisions were amenable to judicial review, an alternative remedy was available in the employment tribunal.

S argued that:

(1) Ofsted’s report had failed to comply with the statutory requirements in failing to comply with its published arrangements for such reports, and its investigation had been procedurally unfair;

(2) the secretary of state had allowed no procedural safeguards and the judge had erred in finding that the outcome would have been the same regardless of procedural fairness;

(3) the judge had erred in not granting judicial review against her dismissal by the local authority.

Held: (Lord Justice Kay dissenting in part) (1) Although there had been a review under section 20(1)(b) of the 2004 act, it had not been governed by the published arrangements in their entirety. Section 20(5) simply required compliance with ‘arrangements’; the published arrangements were a starting point but had to be adapted to the urgency of the situation.

The adapted arrangements fulfilled the requirement of consultation under section 20(6) by a consultation with the bodies to whom the section 20(1)(b) request had been addressed.

The judge had also been justified in finding that, in the circumstances, it had been sufficient for Ofsted to disclose to S the gist of their concerns during the inspection (see paragraphs 27-38 of judgment).

(2) The procedure leading to the direction had been intrinsically unfair.

Although there had been urgency, it had not been such as to necessitate such a truncation of the requirements of fairness.

Only modest delay would have been caused by allowing S to answer the charge.

The fact that a DCS was accountable for children’s services did not deny her the protections to be accorded to office-holders.

Nor did the fact that the secretary of state had not been S’s employer relieve him of the obligation to be fair.

Further, the case was not so clear that representations made by S would have made no difference (paragraphs 61-67, 73-74).

(3) The judge had been correct to find that the dismissal was amenable to judicial review.

The position of DCS had been created, required and defined by statute. If a local authority were to dismiss a DCS disregarding the rules of natural justice, whatever alternative remedy might be available, the dismissal would be amenable to judicial review, Ridge v Baldwin [1964] AC 40 HL followed and R v East Berkshire HA Ex p Walsh [1985] QB 152 CA (Civ Div) applied.

However, the judge had been wrong on alternative remedy.

S had claimed a quashing of the dismissal and had claimed contractual pay and benefits: success would be more valuable in financial and reputational terms than any tribunal decision, given the cap in compensation there.

There was also benefit in keeping all claims within one set of proceedings, which could only be the judicial review proceedings (paragraphs 91, 97-99).

It followed from the unlawfulness of the secretary of state's direction that S’s dismissal by the local authority was also unlawful and void.

S had contended before the local authority that the direction was unlawful, so it had been aware of that contention; there had been no need for particularly urgent action on the local authority’s part; it could have required S to begin proceedings against the secretary of state or allow disciplinary proceedings to continue on the basis that the direction was lawful, and the consequences of holding the direction invalid should not have caused any prejudice to the local authority (paragraphs 136-149).

(4) S was entitled to a declaration that the direction and her dismissal had been unlawful, and compensation from the local authority, although it would be appropriate for the local authority to seek a voluntary contribution from the secretary of state (paragraphs 128-132).

Appeal allowed in part.

James Maurici, David Blundell (instructed by Beachcroft) for the appellant; Tim Ward, Ben Lask (instructed by Treasury Solicitor) for the first respondent: James Eadie QC, Clive Sheldon (instructed by Treasury Solicitor) for the second respondent; Ingrid Simler QC, Akash Nawbatt (instructed by the in-house solicitor) for the third respondent.