R (on the application of the Governing Body of X) v Office for Standards in Education, Children's Services and Skills
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice Henderson |
| Judgment Date | 07 May 2020 |
| Neutral Citation | [2020] EWCA Civ 594 |
| Date | 07 May 2020 |
| Docket Number | Case No: C1/2020/0146 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 594
The Chancellor of the High Court
Lord Justice Lindblom
and
Lord Justice Henderson
Case No: C1/2020/0146
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE JULIAN KNOWLES
[2020] EWHC 69 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Mark Cawson Q.C. and Mr Tom Longstaff (instructed by Stephensons Solicitors) for the Appellant
Sir James Eadie Q.C. and Mr Brynmor Adams (instructed by Ofsted Legal Services) for the First Respondent
The Second Respondent did not appear and was not represented.
Hearing dates: 17 and 18 March 2020
Judgment Approved by the court for handing down
(subject to editorial corrections)
Introduction
This case came before us as an appeal against the refusal of an application by a school for an interim injunction to prevent the publication of an inspection report prepared by the Office for Standards in Education, Children's Services and Skills (“Ofsted”) until the determination of judicial review proceedings challenging that report. At the hearing, it was agreed at our suggestion that we should not only decide that appeal but also, sitting as the Divisional Court, the application for permission to apply for judicial review, which had not been determined in the court below.
The appeal is against an order made by Julian Knowles J. on 23 January 2020, refusing an application for interim relief in the form of an injunction. The school is a state-funded secondary school in the north of England. The appellant is its governing body. The first respondent is Ofsted, which is a non-ministerial department of the Government, responsible for inspecting various educational institutions, including state-funded secondary schools. The second respondent is the Department for Education. On 10 December 2019, the school made a claim for judicial review of a report prepared by Ofsted under section 5 of the Education Act 2005, following an inspection of the school in October 2019. The report, which was sent to the school in final form on 5 December 2019, graded the school as “Inadequate”. The school strongly disagrees with that assessment. In its claim it seeks an order to quash the report, on the grounds of irrationality and procedural unfairness. It also applied for an interim injunction under section 37 of the Senior Courts Act 1981 and CPR r.25(1)(a) to restrain Ofsted from publishing the report, or any similar report, before the determination of the claim. This was the application that Julian Knowles J. refused.
With the “overriding objective” in mind, it seemed sensible that we should not merely decide the appeal against the refusal of interim relief, but also re-constitute this court as the Divisional Court, under sections 9 and 66 of the 1981 Act, to determine the application for permission to apply for judicial review. This avoids the possibility of the school being denied an appeal to the Court of Appeal against a refusal of permission (see R. (on the application of MD (Afghanistan)) v Secretary of State for the Home Department [2012] EWCA Civ 194; [2012] 1 W.L.R. 2422, at paragraph 20). If we sit as the Divisional Court on the application for permission, the school can seek to appeal a decision to refuse permission to the Court of Appeal in the usual way (section 16(1) of the 1981 Act, and CPR r.52.8). Nor do we then have to resolve whether a decision to grant or refuse permission to apply for judicial review can properly be said to be either “incidental to” an appeal against the refusal of interim relief (section 15(3) of the 1981 Act) or “[in] relation to” that appeal (CPR r.52.20(1)).
The basic facts
The school last underwent a full inspection by Ofsted under section 5 of the 2005 Act in 2010, when it was graded overall as “Good”. An inspection under section 8 was carried out on 23 February 2016. The report on that inspection, published on 16 March 2016, also graded the school as “Good”.
On 9 and 10 October 2019, Ofsted carried out the inspection with which these proceedings are concerned. The inspection began as an inspection under section 8, but was converted after the first day into a full section 5 inspection in the light of concerns raised about safeguarding. On 23 October 2019, the school sent Ofsted a formal letter of complaint setting out a number of concerns regarding the conduct of the inspection team. A draft report of the inspection, which graded the school as “Inadequate”, was sent to the school on 4 November 2019. The school submitted comments on the draft report to Ofsted on 11 November 2019, complaining that the inspection process had been unsatisfactory and contesting the “Inadequate” grade. On 26 November 2019, the lead inspector responded to the school's comments on the draft report. On 3 December 2019, having considered those comments, Ofsted wrote to the school, saying it was exhibiting serious weaknesses, and adhering to the grade of “Inadequate”. On the same day, the school responded to the comments of the lead inspector. On 5 December 2019, the final version of the report was issued. The “Inadequate” grade remained.
At a hearing on 11 December 2019, the day after the claim for judicial review had been issued, Julian Knowles J. ordered that the application for interim relief be listed for hearing on 18 December 2019. On 13 December 2019, the school's solicitors wrote to Ofsted asking it to disclose all draft reports and communications relating to the inspection. On the same day, Ofsted's legal department declined that request, saying that no further documents were necessary to resolve the issues in the application for interim relief.
At the hearing on 18 December 2019, Julian Knowles J. reserved judgment on the application. He granted an interim anonymity order under CPR r.39.2(4), to protect the school's identity until further order.
On the same day, the school received a letter from the Regional Schools Commissioner on behalf of the Department for Education, which noted Ofsted's conclusion in its report and pointed out that the school was therefore eligible for intervention under sections 61 and 62 of the Education and Inspections Act 2006. With the letter, the Regional Schools Commissioner sent an academy order, under section 4 of the Academies Act 2010.
Julian Knowles J.'s decision, on 23 January 2020, to dismiss the application for an interim injunction was on the basis that the school's claim for judicial review did not disclose a strong enough case, and that the matters on which it relied in seeking an order to prevent the publication of the report did not, exceptionally, justify the granting of relief. He refused the school's application for permission to appeal.
On 24 January 2020, Nicola Davies L.J. made an order prohibiting publication of the report and preserving the anonymity of the school in the proceedings until determination of this appeal, or further order.
On 13 February 2020, permission to appeal against the judge's order was granted by Asplin L.J. She directed an expedited hearing of the appeal, and ordered that the interim relief should continue until the appeal had been determined. She also made a direction that the Department for Education be added as a party. However, in a letter to the court dated 3 March 2020, the Department for Education said it would not take part in the proceedings and would take no further action on the academy order until this appeal had been determined.
The issues
The application for permission to apply for judicial review comes first. We must decide whether the school has a properly arguable case that Ofsted's report was irrational because there was no reliable evidence to support the findings on which its conclusions were based (ground 1); and that the inspection was procedurally unfair because it did not involve an independent, “merits-based” evaluation (ground 2).
The appeal against the judge's refusal of interim relief comes second. Two issues arise from the appellant's notice, and another from the respondent's notice – for which we gave permission out of time at the hearing. These are: first, whether the judge erred in concluding that the school's claim for judicial review does not disclose “a strong prima facie case”; second, whether he was wrong to find the matters relied on by the school do not pass the threshold for interim relief; and third, whether section 12(3) of the Human Rights Act 1998 applies in this case, so that the judge's decision can be upheld on the additional basis that the grant of interim relief would affect the rights of members of the public – specifically pupils and parents – to receive information which Ofsted is under a statutory duty to publish.
The statutory provisions
School inspections by Ofsted take place within the statutory regime created by the 2005 Act. Section 5 provides the duty to inspect schools and produce a report in writing. It states:
“Duty to inspect certain schools at prescribed intervals
(1) It is the duty of the Chief Inspector –
(a) to inspect under this section every school in England to which this section applies, at such intervals as may be prescribed, and
(b) when the inspection has been completed, to make a report of the inspection in writing.”
In undertaking an inspection under section 5, the Chief Inspector is required by section 7 to have regard to any views expressed...
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