The Durand Academy Trust school recently challenged an Ofsted report  which assessed it as inadequate, because it was ‘so vitiated by’ (among other things) a ‘relentless accentuation of the negative and elimination of the positive as to be Wednesbury unreasonable’.

But was the school’s complaint sustainable? That was effectively what His Honour Judge McKenna (sitting as a High Court judge) had to decide on 11 August in R (Durand Academy Trust) v the Office for Standards In Education, Children’s Services and Skills and the Secretary of State for Education [2017] EWHC 2097 (Admin).

Background

Pursuant to powers and duties in the Education Act 2005, there is provision for the inspection of schools by Ofsted and its most senior officer (HM’s chief inspector) at intervals prescribed by regulations (section 5), and for other inspections at the request of the secretary of state or at the discretion of the chief inspector of schools (section 8).

Under section 44(1) of the 2005 act special measures are required to be taken if the school is failing to give pupils an acceptable standard of education and ‘the persons responsible for leading, managing or governing the school are not demonstrating the capacity to secure the necessary improvement in the school’.

As the court noted, there is a three-stage complaints procedure concerning reports. ‘In summary, step one allows for an informal resolution of complaints. Step two is a formal complaints procedure and step three provides for a means of reviewing complaints handling.’

Where a school is judged to have serious weaknesses or to require special measures, ‘requests for a review of the process of confirming the inspection judgments will be carried out under step three’. Under this, the ‘review outcome will be a final decision on whether or not your original complaint was investigated fairly and properly in line with our published policy’.

The school (which had undergone significant expansion in recent years, adding key stages as well as a new site and boarding provision) was adjudged outstanding in 2008 and 2011, and good in 2013. However, following an inspection which took place over two days at the end of 2016 (described by the court as ‘a fraught affair’), the school was found to be inadequate. This was because of (among other things): defects in safeguarding priority and practice; failure to fulfil responsibilities to ensure pupils’ welfare; weak leadership and governance; and variable teaching resulting in inconsistent achievement. However, some strengths were also identified, including year-six test achievements that were consistently well above expectations, good pupil behaviour and strong arrangements to promote boarders’ health.

School challenge

In the school’s view, Ofsted’s assessment of it as inadequate was so strikingly at odds with the reality of how the school performs, and so vitiated by unfair and arbitrary evaluations, factual errors and a relentless accentuation of the negative and elimination of the positive as to be Wednesbury unreasonable. There was also a second, freestanding challenge to the fairness of the complaints procedures.

Ofsted, however, contended that the school’s position ‘is wholly without merit and amounts to a bare and unarguable Wednesbury challenge to the report’s findings, a flimsy critique of the inspection and an attempt to impugn the integrity of the complaint procedures’.

Regarding the complaints procedure, the school argued that ‘while fairness does not necessarily require an external appeal process, if there is, as with Ofsted, to be an internal process, it ought to be a fair and robust process that permits a substantive challenge and which gives the complaining party the possibility, in appropriate cases, of having the decision changed’. However, this is something that the complaints procedures ‘simply do not permit’.

In the school’s view: ‘The more serious and negative Ofsted’s criticisms about a school are, the less chance the school has to challenge its analysis through the complaints procedures. This is because where the complaint is about an inspection at which a school is adjudged to have serious weaknesses or to require special measures, the complaints procedures specifically preclude a substantive challenge to a report. The result in this case, therefore… is that the school never had an effective chance to change the outcome of the inspection by using Ofsted’s internal procedure.’

Ofsted, however, argued (among other things) that when following a rigorous and independent inspection by Ofsted inspectors a school has been found to have serious weaknesses it should not be able, readily, to delay the publication of the outcome. Instead Ofsted relies on its quality assurance processes involving ‘three quality assurance reads’.

Court decision

First, as to the reasonableness of the conclusions in Ofsted’s report, the judge said he could see ‘some considerable force in the argument put forward on Ofsted’s behalf that the picture painted by the various inspections since 2013 is one of a school that has perhaps expanded too quickly, has been too ambitious, and whose leadership and management systems have failed to keep up with the pace of change’.

Nevertheless, he did ‘have significant concerns as to whether, on a fair analysis of the evidence base in general… the material does really lead to a conclusion that the school was inadequate and in need of being placed into special measures rather than the lesser category of requires improvement’.

However, the court’s key conclusion was that ‘a complaints process which effectively says there is no need to permit an aggrieved party to pursue a substantive challenge to the conclusions of a report it considers to be defective because the decision-maker’s processes are so effective that the decision will always in effect be unimpeachable is not a rational or fair process’.

Judge McKenna decided that the ‘absence of any ability effectively to challenge the report renders the complaints procedures unfair and… vitiates the report’. Therefore, consent having been given to proceed with the judicial review, the Ofsted report was quashed. However, this may not be the last word since Ofsted has apparently sought permission to appeal.

Comment

It is settled law that public authorities have a duty to act fairly. However, what is fair will vary depending on the nature of the relevant statute and all the facts and circumstances in question. It is therefore worth recalling the ‘classic statement’ by Lord Mustill in R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, namely that:

  1. Where an act of parliament confers an administrative power, there is a presumption that it will be exercised in a manner which is fair in all the circumstances.
  2. The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type.
  3. The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.
  4. An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.
  5. Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on their own behalf either before the decision is taken… or after it is taken, with a view to procuring its modification; or both.
  6. Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against their interests, fairness will very often require that they are informed of the gist of the case which they have to answer.

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