The Court of Appeal ruled in favour of Ofsted, allowing their appeal against a decision of the High Court in 2017, which ruled their complaints procedure was unfair for those schools judged to require special measures or have serious weaknesses. The Court of Appeal decided that the High Court was wrong to reach a conclusion that Ofsted’s complaints procedures were unfair and that it was wrong to quash the inspection report relating to Durand Academy Trust.
Background – the High Court decision
Durand Academy brought a judicial review claim against Ofsted in respect of an inspection that was carried out in November and December 2016 and the associated report, which was published in February 2017. This report set out that Ofsted had judged the academy as requiring special measures. This was disputed by Durand Academy, who brought the claim on the basis that the judgements set out in the inspection report were unreasonable and secondly, that Ofsted’s complaints procedure was unfair. Their second argument was raised on the basis that schools deemed to be inadequate or requiring special measures were unable to challenge the grade given by Ofsted under step two of its complaints procedure; a challenge which is open to schools who are graded as ‘outstanding’, ‘good’ or ‘requires improvement’.
The High Court ruled in favour of Durand Academy and found that Ofsted’s complaints procedure did not allow for a substantive challenge to be made to the report’s judgement of the academy requiring special measures and that this was neither fair nor rational. As a result, the High Court ruled that the inspection report was quashed. No ruling was made in respect of the first argument raised by the academy, relating to the unreasonableness of the judgement as a result.
The Court of Appeal decision
Ofsted subsequently appealed the High Court’s decision and a hearing took place on 5th December 2018. The full judgement can be found here.
The Court of Appeal determined that in order to assess whether Ofsted’s procedures are unfair, it is necessary to consider the entirety of the inspection, evaluation and reporting process, which includes but is not limited to the complaints procedures. Having carried out this assessment, the Court of Appeal ruled that overall the process is fair, regardless of the criticism made of step two of the complaints procedure. In particular, the Court of Appeal considered that Durand Academy had a number of opportunities provided at the inspection stage for issues of concern to be identified and addressed. Throughout the judgement these are referred to as “additional statutory and non-statutory procedural safeguards”.
Firstly, schools are encouraged to raise any concerns they may have at the inspection within step one of the complaints procedure itself. A further opportunity is provided during feedback with the senior HMI following the inspection.
Following the inspection, there are further opportunities to raise concerns, including the factual accuracy stage where schools are able to comment on the draft report. There is no limitation in this process to the type of comment or complaint that can be made and so schools can include substantive challenges to the conclusions reached. A judgement whereby a school is deemed to require special measures must also be authorised by the chief inspector or a regional director on their behalf.
Although a complaint under step two of Ofsted’s complaints procedure will not reconsider the judgements, if a challenge of the judgements is in fact made via Ofsted’s complaints procedure before finalisation of the report, then the complaint will be referred to those undertaking the quality assurance and moderation process. Following completion of a step two complaint, the school then has the ability to request a review of the process confirming the inspection judgements under step three of the complaints procedure.
In summary, the Court of Appeal determined that the High Court had erred in focusing exclusively on the complaints procedure and had not considered the overall fairness of the process of inspection, including evaluation and reporting processes. Lord Justice Hamblen’s notable statement from the judgement was that “fairness do not require equivalence”, when considering that the complaints procedure for schools judged as ‘outstanding’, ‘good’ and ‘requires improvement’ does allow for challenge under step two.
The Court of Appeal’s decision may not be one that sits well with schools. The key points to take away from the decision are that schools should be fully aware of all of their routes to challenge an inspection and/or inspection findings and should take full advantage of these processes where appropriate.
It is vital that schools raise any concerns as early as possible at the inspection itself if Ofsted indicate they are in the realms of a judgement of serious weaknesses and requiring special measures. Ideally these concerns should be followed up in writing the same day, so there is a contemporaneous written record. Additionally, schools should ensure that full and robust comments are provided upon receipt of the draft inspection report. This should contain challenges to findings and should not be limited to factual accuracy comments, wherever appropriate. Finally, schools should consider raising a formal complaint and following Ofsted’s complaints procedure if there are concerns about the processes followed or conduct of an inspector. A review of the process confirming the inspection judgements can be raised at step three, if appropriate.
It is also worth noting that the Court of Appeal did comment on the procedures set out within the complaints procedure document. The Court of Appeal indicated that it would welcome expansion in some areas of this document, setting out further detail on the processes followed in circumstances where a school is deemed as requiring special measures to ensure there is clarity as to the options open to them in these circumstances. It remains to be seen whether Ofsted will take on board the Court of Appeal’s comments in this respect.
At Stephensons, we have represented numerous providers in relation to challenging inspection findings and the complaints process. If you require any advice and assistance in relation to challenging Ofsted, please contact our specialist Ofsted lawyers now on 01616 966 229.