| SPOTLIGHT |
A High Court judge has quashed an Ofsted report that judged a school to be ‘inadequate’ and recommended that it be placed in special measures.
The claim in Durand Academy Trust, R (on the application of) v The Office for Standards In Education, Children's Services and Skills & Anor [2017] EWHC 2097 related to a report dated 8 February 2017, the inspection which preceded it and an aspect of Ofsted’s complaints procedure.
The Durand Academy Trust asserted before His Honour Judge Mckenna that 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 what is described as a relentless accentuation of the negative and elimination of the positive as to be Wednesbury unreasonable”.
There was also a second free standing challenge to the fairness of Ofsted’s complaints procedures.
Ofsted's position in response to the claim was that it was wholly without merit and amounted 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 – “all as a means of preventing publication of and ultimately setting aside the report which Ofsted maintain should be upheld so that it can be published without any further delay”.
The defendant also said that the challenge to the complaints procedures was both without merit and in any event academic.
The first ground raised before the judge by the school related to the complaints procedures.
The Durand Academy Trust argued that whilst fairness did 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 permitted a substantive challenge and which gave the complaining party the possibility, in appropriate cases, of having the decision changed.
This was something which the complaints procedures simply did not permit. Durand suggested that in effect the more serious and negative Ofsted's criticisms about a school were, the less chance the school had to challenge its analysis through the complaints procedures. The school argued that it never had an effective chance to change the outcome of the inspection by using Ofsted's internal procedure.
Ofsted accepted that if it does provide a complaints procedure it must be rational and fair but asserted that the restrictions in its complaints procedures were indeed rational and fair. Its justification for its refusal to include a substantive challenge to its reports was that schools assessed as being inadequate might well feel aggrieved by this outcome and would attempt to challenge and delay publication of a report.
It added that there was an important public interest that schools which, following what Ofsted said was a rigorous and independent inspection by its inspectors, had been found to have serious weaknesses, should not be able, readily, to delay the publication of the outcome.
Instead of a robust complaints process Ofsted relied in part on its quality assurances processes. In London this involved three quality assurance reads, two by an HMI including an evidence based review and a review of the factual accuracy check response by the lead inspector, a sign off by a senior HMI and the final sign off by the regional director before proof reading. These quality assurance processes were, it was said, undertaken in line with quality assurance guidance published by Ofsted internally.
In addition Ofsted also placed reliance on its step Three internal review process which was designed to consider whether its policy and procedures on handling complaints have been followed correctly. This process involves a final panel scrutiny of the Step Three review and response, which includes a senior education practitioner not involved in carrying out Ofsted inspections. However, the review is based on available information from the original investigation.
Ofsted also asserted that in any event this aspect of the challenge was now academic because of a combination of factors namely what was said to be the inherent weakness of the school's criticism of the report and the fact that the school was in any event before the court in circumstances where the report was yet to be published.
HHJ McKenna upheld the school’s challenge. He said: “To my mind, 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 and of course it is fair to observe that in the case of The Old Co-operative Day Nursery Ltd v OFSTED [2016] EWHC 1126 (Admin), a decision of Coulson J, there is an example of an Ofsted inspector who was held to have come to an irrational conclusion as a result of her failure to have any regard to the history of the nursery in question and the previous reports in reaching her evaluative judgements, criticisms which are squarely levelled at the inspection team in the present case.
“The absence of any ability effectively to challenge the report renders the complaints procedures unfair and in my judgment vitiates the report. Nor can it, in my judgment properly be said that this aspect of the challenge is in any way academic, not least because of the very limited nature of the basis of any public law Wednesbury challenge before this court.”
The judge said it followed that permission should be granted on this ground and, on substantive review, the report should be quashed.
He added that in the circumstances there was no need for him to go on to consider the reasonableness of the conclusions reached in the report and he did not propose to do so in any detail, save to make certain observations.
“To my mind the school's characterisation of itself as a school which, in the space of three short years and with no changes of management or leadership, has gone from holding a rating of outstanding to one which was judged to be inadequate on the basis of the report is somewhat simplistic,” the judge said.
“I can 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. By way of example, as it seems to me, although there is much in the way of positive comment, the section 8 inspection report should have acted as a wake-up call to the senior management team.”
HHJ McKenna said it might well be that the school's ongoing conflict with the Education Funding Agency and the strong sense of injustice thereby engendered, whether justifiably or not, led to the management team "taking its collective eye off what should have been the main ball".
“That said, I do have significant concerns as to whether, on a fair analysis of the evidence base in general and the Final Summary Evaluation in particular, 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,” he added.
“Perhaps, as counsel for the school sought to persuade me, the undoubted weaknesses in the boarding school in Midhurst have permeated the whole assessment. However, in the light of my conclusions on the first ground there is no need for me to, and I do not, express a concluded view on the rationality of the report.”
In a statement Ofsted said: “We are clearly disappointed in this ruling and have sought permission to appeal.
“Notwithstanding the overall judgment, we are pleased that the court recognised the impartiality and professionalism of the inspectors undertaking the inspection.
“Our complaints process is longstanding and has previously been commended by the Independent Adjudicator. However, as an organisation we always keep policies and practices under review and regardless of the outcome of the appeal application will consider whether any clarification of our complaints procedure may be required.”
