Ofsted complaints: a new, increased scope to challenge an adverse judgement?

One news story that we all watched closely over the summer was that of the legal challenge posed by Durand Academy Trust in London to Ofsted following a below par inspection rating. Luke Green, partner and head of schools and Joe Orme, associate at Hill Dickinson, combine their legal experience to give a breakdown of each side of the case – as well as the lessons all schools can take from it

In the case R (on the application of Durand Academy Trust) vs Ofsted, the academy trust brought a claim for judicial review following an ‘inadequate’ judgment being made against Durand Academy (‘the Academy’). Ofsted had recommended that the school be placed into special measures.
The Court found that Ofsted’s complaints process was defective because it did not permit a substantive challenge to the most serious criticisms – serious weaknesses or requiring special measures. Ofsted has since stated that it intends to appeal the decision.

‘The Academy’: making a case

Durand had ‘outstanding’ or ‘good’ ratings up until its first social care inspection in June 2015, when it was judged to be in the ‘requires improvement’ category. The inspection subject to the legal challenge was undertaken over two days in November/December 2016. In this inspection the school was judged to be ‘inadequate’ with a recommendation that it be placed in special measures.
A draft report was provided to the academy for a factual accuracy check and this subsequently went through Ofsted’s quality assurance procedures. The ‘inadequate’ judgement was maintained at this stage.
Durand then pursued a formal Stage 2 complaint. However, because the school had been judged to require special measures, it was expressly precluded from being dealt with at Stage 2. Durand then issued a claim seeking an interim injunction preventing publication of Ofsted’s report, along with permission for judicial review.
Durand academy argued against the rationality and fairness of Ofsted’s complaints procedure. It was asserted that, if there was to be an internal complaints process, as was the case with Ofsted, the complainant should be afforded the opportunity to make a substantive challenge with the possibility of having the decision changed, if appropriate. It was noted that the more serious the criticism made, the less chance a school had of challenging the inspection analysis.

Ofsted: a counter argument

Ofsted argued that there is an important public interest in ensuring that schools cannot seek to delay the publication of a report when it has found serious weaknesses. OFSTED also relied on its staged quality assurance procedures to moderate inspection judgements, along with its internal review process to consider if its complaints policy and procedures had been followed correctly.
The court found that the absence of any ability to effectively challenge the report rendered the complaints process unfair, and that the report, on substantive review, should be quashed.

Advice for schools

Subject to a successful appeal, Ofsted will need to reconsider its complaints procedure. This method of challenge is undoubtedly the most cost-effective for schools.
Issues during an inspection should be raised with inspectors at the earliest opportunity. If concerns are raised regarding non-compliance, these should be addressed before the end of the inspection, as far as possible, with evidence being brought to the attention of the lead inspector.
In the event of a questionable judgement the school must begin preparing the basis of its complaint and immediately detail down its account. This will assist when considering the factual accuracy of the draft report and will make the preparation of a robust formal complaint much easier.
Judicial review of an unsatisfactory decision is available, but costly. Schools need to be clear about the risks involved and how the litigation will be funded.
Relevant parties may need to provide their prior approval for public funds to be used for litigation. Civil litigation runs the risk of the losing party being liable for the costs of the action; this risk needs to be carefully assessed with legal input before proceeding with a claim. Senior leaders should also consider if any relevant insurers should be put on notice so as not to expose the school to any coverage issues later on.