| SPOTLIGHT |
The Court of Appeal has ruled that a judge was wrong to conclude that Ofsted’s complaints procedures were unfair in serious weakness/special measures cases, and that it was wrong to quash an inspection report.
In Ofsted v The Secretary of State for Education [2018] EWCA Civ the respondent academy trust ran the Durand Academy School with two sites in Stockwell, London, and a boarding site in Midhurst, West Sussex.
Following an inspection carried out on 30 November and 1 December 2016, Ofsted produced a report dated 1 February 2017 which adjudged the school to be "inadequate" with a recommendation made under section 44(1) of the Education Act 2005 ("EA 2005") that it be placed into "special measures".
The Trust brought a claim for judicial review seeking an order that the report be quashed on the grounds that Ofsted's assessment of the school was Wednesbury unreasonable and/or that Ofsted's complaints procedures were procedurally unfair.
The judge, HHJ McKenna sitting as a judge of the High Court, found that the absence of any ability effectively to challenge the report rendered the complaints procedures unfair and that this vitiated the report which was accordingly quashed. In those circumstances it was not necessary for the judge to rule on the rationality challenge and he did not do so.
Ofsted appealed against Judge McKenna’s decision, permission to appeal having been granted by McCombe LJ on 25 May 2018.
Lord Justice Hamblen noted how the judge's finding that Ofsted's complaints procedures were unfair had serious implications for other cases and impacted on Ofsted's ongoing work and, in particular, the manner in which it dealt with schools which had been graded inadequate.
Since the judgment below, following the termination of the Trust's funding agreement by the Secretary of State for Education, the Van Gogh Academy under the direction of a different academy trust, namely the Dunraven Academy Trust, operates from the same site. The Durand Academy Trust still existed as a charity and it remained appropriate to address the wider issues raised by the appeal, Lord Justice Hamblen said.
The Court of Appeal found in favour of Ofsted. Lord Justice Hamblen said: “In particular, I consider that the Judge erred in focusing exclusively on the Complaints Procedures and not considering the overall fairness of the process of inspection, evaluation and reporting.”
The Master of the Rolls, Sir Terence Etherton, added: “The short answer to the issue of law and principle is that, looked at overall, Ofsted's procedure for evaluation and reporting is a fair and reasonable one for schools which are provisionally judged to have serious weaknesses or to require special measures because, although such schools cannot challenge substantive judgements through the CP [Ofsted’s 2015 Complaints Policy] once the report has been finalised, additional safeguards have been provided for them at the stage prior to finalisation of the report.”
He added that those additional safeguards were a combination of statutory and non-statutory procedures.
A spokesperson for Ofsted said: “We have always maintained that our complaints process, especially for inadequate schools, is fair and rigorous. Naturally we are delighted that the Court of Appeal has unanimously endorsed that assessment.
“All judgements of inadequate are subject to additional scrutiny and an extended quality assurance process before being finalised. Schools are engaged in this process and have the opportunity to challenge the inspection findings. We are very pleased that [this] judgment has confirmed that these procedures are fair and reasonable for schools, and that the judge was wrong to quash the report.”
