Ofsted v The Secretary of State for Education

Factual and Procedural Background

The appellant ("Ofsted") is a non-ministerial Government Department responsible for inspecting and reporting on schools. The respondent is an academy trust ("the Trust") which operated the Durand Academy School ("the School") with two sites in Stockwell, London, and a boarding site in Midhurst, West Sussex.

Following an inspection conducted on 30 November and 1 December 2016 ("the Inspection"), Ofsted produced a report dated 1 February 2017 ("the Report") rating the School as "inadequate" and recommending, under section 44(1) of the Education Act 2005, that it be placed into "special measures".

The Trust brought a claim for judicial review seeking to quash the Report, alleging that Ofsted's assessment was Wednesbury unreasonable and/or that Ofsted's Complaints Procedures were procedurally unfair.

The High Court Judge found that the Complaints Procedures were unfair due to the absence of any effective mechanism to challenge the Report, which vitiated the Report and led to its quashing. The Judge did not rule on the rationality challenge as it was unnecessary.

Ofsted appealed the decision, with permission granted on 25 May 2018. The Judge's finding on unfairness had serious implications for other cases and Ofsted's ongoing work, especially concerning schools graded inadequate.

Since the judgment, the Trust's funding agreement was terminated and a different academy trust now operates the school site, but the Trust remains a charity, making the wider issues raised by the appeal still relevant.

The School served a diverse community in Lambeth, with a majority of pupils of Black African or Black Caribbean heritage and a higher than average proportion of pupils speaking English as an additional language. The School expanded significantly over recent years, including the addition of boarding provision and extension of age ranges served.

Previous inspections had rated the School as outstanding in 2008 and 2011, good in 2013, and "requires improvement" for its boarding provision in 2015. The 2016 Inspection was brought forward and integrated with a delayed social care inspection.

After the Inspection, Ofsted provided a draft report to the School on 6 January 2017, which found the School inadequate across nearly all judgment areas. The Trust submitted a detailed "Factual Accuracy Check" challenging the findings and later filed a formal complaint. Ofsted responded that complaints would be considered as part of the moderation process and provided detailed responses to the Trust's factual accuracy challenges, resulting in minor amendments to the draft report.

The final Report was sent to relevant authorities on 1 February 2017, with plans to publish it on the website five working days later. The Trust initiated judicial review proceedings on 7 February 2017, accompanied by an interim injunction preventing publication, which was continued until the hearing.

Ofsted investigated the complaint and issued responses, upholding some elements and amending the Report in limited respects. The Trust requested an internal review of the complaint handling, which concluded that Ofsted's policies and procedures were properly followed.

Legal Issues Presented

1. Whether Ofsted's Complaints Procedures are procedurally fair, particularly in relation to schools judged to have serious weaknesses or requiring special measures.
2. Whether the absence of an effective mechanism to substantively challenge Ofsted's inspection judgments renders the Complaints Procedures unfair and vitiates the inspection report.
3. Whether the statutory and procedural safeguards surrounding the inspection and reporting process provide sufficient procedural fairness.

Arguments of the Parties

Appellant's Arguments (Ofsted)

• Ofsted's procedures are fair even without the Complaints Procedures, due to numerous safeguards during the inspection and report drafting stages.
• The statutory scheme under section 13 EA 2005, requiring draft reports to be sent to schools and consideration of comments by the Chief Inspector, militates strongly against adding further procedural layers.
• There is a strong public interest in the prompt publication of inspection reports, which further supports limiting procedural delays.
• The Judge erred in linking the limited scope of Wednesbury irrationality review to procedural fairness; these are distinct legal questions.
• Even if the Complaints Procedures had deficiencies, they do not undermine the overall fairness of the inspection and reporting process.
• The overall process, including extended quality assurance and moderation by independent inspectors, provides sufficient procedural protection for schools judged to require special measures.

Respondent's Arguments (The Trust)

• The Judge was correct to find the Complaints Procedures unfair because they exclude schools judged to have serious weaknesses or requiring special measures from making substantive challenges under Step 2 complaint procedures.
• The safeguards relied upon by Ofsted fail to remedy this unfairness, as Step 2 complaints in other cases allow substantive challenges and involve independent evidence-based reviews with written responses, whereas Step 2 complaints in serious cases do not reconsider judgments and involve internal processes without written reasoning.
• The written responses to comments on draft reports are limited to factual accuracy and are produced by the lead inspector, not an independent party.
• On their face, the Complaints Procedures are irrational and unfair, providing fewer procedural rights to the most seriously affected schools.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a holistic review of the entire inspection, evaluation, and reporting process, including but not limited to the Complaints Procedures. It identified multiple safeguards during the inspection stage, such as regular meetings between the lead inspector and headteacher, feedback after lesson observations, joint lesson observations, and a final feedback meeting where provisional grades are shared.

Schools are encouraged to raise concerns early under Step 1 of the Complaints Procedures, which seeks to resolve issues before inspection completion. Additional protections apply where a school may be judged inadequate, including communication with senior inspectors and extended quality assurance and moderation processes.

The Court noted that the School had the opportunity to comment extensively on the draft report, including substantive challenges, which were considered in detail by the lead inspector and through a rigorous quality assurance process involving multiple independent inspectors and senior officials, culminating in authorisation by the Chief Inspector or her delegate.

Although Step 2 complaints for schools judged to have serious weaknesses or require special measures do not reconsider substantive judgments, the Court found this limitation justified and balanced by the extensive statutory and non-statutory safeguards prior to report finalisation.

The Court rejected the Judge's focus solely on the Complaints Procedures, holding that procedural fairness must be assessed by reference to the entire process. It held that the statutory framework is minimalist and does not exclude the common law, but the additional procedural layers provided by Ofsted are appropriate and fair.

The Court also distinguished the procedural fairness issue from the scope of judicial review on irrationality grounds, holding that the limited scope of Wednesbury review is irrelevant to the fairness of the process itself.

In sum, the Court concluded that the overall procedures are fair and that the Judge erred in quashing the Report on grounds of procedural unfairness.

Holding and Implications

The Court ALLOWED THE APPEAL, overturning the High Court's decision to quash the inspection Report.

The direct effect is that the Report stands and the Complaints Procedures of Ofsted, as applied to schools judged to have serious weaknesses or requiring special measures, are not procedurally unfair. The decision clarifies that procedural fairness must be assessed in the context of the entire inspection and reporting process, not solely on the Complaints Procedures.

No new precedent regarding the scope of judicial review or the statutory inspection regime was established beyond the clarification of procedural fairness in this context.