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OFSTED's complaints process deemed unlawful

Laura Penny
09/11/2017
In the recent decision of R (on the application of Durand Academy Trust) v OFSTED [2017] EWHC 2097 (Admin), the High Court decided that the current complaints process used by the regulator OFSTED was unlawful.

In the recent decision of R (on the application of Durand Academy Trust) v OFSTED [2017] EWHC 2097 (Admin), the High Court decided that the current complaints process used by the regulator OFSTED was unlawful.

 

Background

 

Durand Academy ("the School") is based in South London with a separate site for boarding in West Sussex. The School has significantly expanded in recent years and its OFSTED ratings have ranged from "outstanding" in 2008, to "good" in 2013. In 2015, the School's boarding provision was rated as "requires improvement" and it had had ongoing discussions with the Education and Skills Funding Agency regarding its future status and finances.

 

The School was inspected in late 2016 and the associated report ("the Report") was published in February 2017. OFSTED judged that the School was "inadequate" and it was placed into special measures.

 

The legal case

 

The School brought a judicial review against the decision on two grounds: the first was in relation to the inspection outcome itself, and the second to the complaints procedure that followed.

 

The School submitted that OFSTED was unreasonable in deeming that it was "inadequate" and that this was "so strikingly at odds with how the school performs" that it was unlawful. The School argued that the assessment contained factual errors and that the evaluations used by OFSTED were unfair and arbitrary. They argued that the Report accentuated the negative aspects of the School and overlooked the positive and for this reason they argued that it was Wednesbury unreasonable.

 

The second strand focussed on the fact that the procedure did not allow an effective opportunity to change or challenge the outcome of an inspection. OFSTED's complaints procedure included a formal complaints process, however this was not open to schools that had been found to have serious weaknesses or require special measures (as the School had here) on the basis that "all such judgements are subject to extended quality assurance procedures". The effect of this was that OFSTED internally moderated its decisions when a School was deemed inadequate without an opportunity for the School to comment on or challenge the result.

 

It is worthy of note that the School had been involved in an ongoing and protracted dispute with the Education Skills and Funding Agency (ESFA), in relation to its academy funding. It was one of the School's submissions that OFSTED's independence was clouded by this dispute (though this was firmly rejected by the court).

 

Findings

 

The judge found that the complaints process as it stood was not rational or fair because it did not permit a school to pursue a substantive challenge. This undermined the validity of the Report, and on this basis it was quashed. The judge did not comment specifically on the substantive conclusions reached in the Report but did suggest concerns that the School had been found to be "inadequate" rather than the lesser category of "requires improvement".

 

Significance

 

Whilst the judge was reluctant to comment on the substantive findings in the Report, the decision is an important demonstration of the court's willingness to tackle the issue of regulatory process, and the case highlights the importance of there being a fair opportunity to challenge a regulator's decisions internally without the need to resort to litigation.

 

Specifically, the judgment signifies a rare win for a school against OFSTED, and has wider significance for other schools (and indeed other regulated bodies) in deeming that OFSTED's complaints procedure is unlawful. Whilst OFSTED has indicated that it will be reviewing its complaints procedure, it has since sought permission to appeal this decision, suggesting that the matter is not yet settled.

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