The King on the application of X Ltd v Chief Inspector of Education, Children's Services and Skills
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham,Garnham J |
| Judgment Date | 13 July 2023 |
| Neutral Citation | [2023] EWHC 1803 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1191/2023 |
[2023] EWHC 1803 (Admin)
Mr Justice Garnham
Case No: CO/1191/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT (BIRMINGHAM DISTRICT REGISTRY)
33 Bull Street,
Birmingham, B4 6DS
Peter Oldham KC (instructed by Evershed Southerland (International) LLP) for the Claimant
Fiona Scolding KC (instructed by Ofsted Legal Services) for the First Defendant
Jack Anderson (instructed by GLD) for the Second Defendant
Hearing dates: 12 July 2023
Approved Judgment
This judgment was handed down at 10.30am on 12 July 2023 in court and by release to the National Archives.
Introduction
The applicant, X Ltd, seeks to challenge the decision dated 24 February 2023 by HMCI of education, children services and skills (hereafter HMCI) to rate X Ltd's training provision as inadequate.
Yesterday, I heard argument in support of X Ltd's application that the public and private law claims be consolidated or at least heard together, for permission to further amend its grounds and to rely on an additional witness statement, for permission to apply for judicial review against both defendants and for interim relief against both defendants.
Submissions in support of those applications were made by Peter Oldham KC. In response I heard submissions from Fiona Scolding KC for HMCI and from Jack Anderson for the Secretary of State. I'm grateful to counsel and to those who instruct them for their assistance.
Those arguments lasted a full day, at the end of which I indicated I would give my ruling this morning. This short judgement contains the rulings on those applications.
I indicated during the course of argument that in the light of the absence of opposition I would allow X Ltd's application further to amend its grounds. I agreed to consider the additional witness statement de bene esse. Having done so I now give permission to X Ltd to rely on the 3rd and 4th statement of Mr Phipson if at the end of this judgment they chose to do so.
I will return, after I have given judgment on the other matters, to the application that the public and private law claims be consolidated or at least heard together. It seems to me best that that matter is determined against the background of my other rulings.
The points of substance remaining are the applications against both defendants for permission to apply for judicial review and the application for interim relief. I deal with each point in turn.
The application for JR against HMCI.
I remind myself that the test for the grant of permission to apply for judicial review is arguability. That is a relatively low hurdle to surmount. The question is whether the claimants have a case that is properly arguable, that is, one in response to which the defendants cannot deliver a knockout blow.
The claimant advances 6 grounds.
First, they submit that the conclusions of HMCI are irrational because X Ltd has been assessed against the standards for a general education provider rather than as a provider of apprenticeship training. That is said to be contrary to OFSTED's own policy as outlined in the education inspection framework and handbook which it is said the D failed to follow. The response from HMCI is that the claimant misunderstands the nature of an OFSTED inspection. It is not solely concerned with the delivery of courses leading to qualifications. Instead it considers the provision of education as a whole. In that context the conclusions reached about X Ltd were clear and evidenced. What the claimants seek to advance, argues the First D, is a merit challenge.
Second, the claimants contend that Ofsted conclusions as to curriculum and course content are irrational or unevidenced, for example in criticising the delivery of subjects in simultaneous rather than sequential modules, failing to take account of different mathematical ability of students and failing to provide relevant materials for welding students. In response, HMCI say that the criticisms were all valid. Students were hampered by being unable to consolidate knowledge before moving on. Whether they had attained qualifications is irrelevant in assessing whether they achieved the best possible results. Mathematics is very important for engineering and so is rightly a focus for Ofsted. X Ltd failed to provide a course that was tailored to the students existing ability. Again whether or not sufficient material was provided for passing the exam, it failed to provide overall a good education.
Third, it is said by the Claimants that Ofsted has reached conclusions in relation to safeguarding, notably in relation to misogynistic behaviour, unsupported by any evidence, or supported only by unrepresentative samples. Further Ofsted has failed to take into account evidence offered by X Ltd to counter some of the adverse findings made in the original report. In response, HMSI submit that the failure to treat any allegations of misogynistic behaviour seriously is of particular concern because it results in under reporting and because there is a dearth of female representation in engineering so that a properly led education provider would be proactive and would ensure that such behaviour did not take place.
Fourth, it is alleged that Ofsted made other irrational or unevidenced criticism, for example, that the progress of students has been delayed by a lack of qualified staff, when in fact all X Ltd staff have appropriate qualifications; that there was a failure to ensure a linkage between on and off the job training, when any insufficiency was adequately explained by the difficulty in ensuring employers always attended meetings, and failing to teach Fundamental British Values when no reference is made to some of those values and when the nature of X Ltd's course is such that students spend most of their time in environments over which X Ltd has no control.
In response, it is said that this again amounts to a merits challenge. The criticism of the lack of qualified staff was not about the existence of qualified staff but about the failure of X Ltd to ensure that qualified staff were present to provide the training. It is said that whilst it is correct that employers may not attend meetings, X Ltd did not demonstrate engagements with them to encourage them to do so. It is said that the teaching of fundamental values reflects the fact that X Ltd regards itself as an apprenticeship only body and Ofsted's focus is on overall education.
Fifth, it is said that Ofsted has reached its conclusions based on insufficient sample sizes. In response HMCI say sample sizes were proportionate and more particularly that HMCI were not conducting a survey. They were instead seeking views of students across the range of different courses as part of wide assessment of the adequacy of those courses.
Sixth, the claimants say that Ofsted was irrational or unreasonable in the way it operated its complaint system which it itself has recognised was inadequate. In response, HMCI say that the fact that Ofsted has sought to improve it's complaint processes says nothing about whether the way they operated in this case, in response to X Ltd's criticisms, was fair.
The JR v the Secretary of State
As against the Secretary of State the claimant asserts that it would be unlawful in public law for ESFA to take action under its contract that is detrimental to X Ltd. It advances 5 grounds of challenge.
First, it is said it would be Wednesbury unreasonable for ESFA to take what has been called “Detrimental Action” at least pending the current challenge to the Report, given, in particular, the very serious harm that such a step could cause X Ltd and others; the substantial nature of the grounds of claim against OFSTED as set out above; the lack of evidence of any need for ESFA to take Detrimental Action to protect any person or the public interest; and the interests of good administration and the rule of law.
Second, it is submitted that were ESFA to take Detrimental Action, and OFSTED subsequently withdrew (or materially changed) the Report, or the Court subsequently quashed it, ESFA would have acted on the basis of mistaken facts.
Third it is said that ESFA's decision would be based on a failure to rely on adequate information or ask itself the right questions
Fourth, it is said that ESFA's decision was based on unlawful act of OFSTED
Fifth, it is said that any decision to act based on this report would be irrational given that the secretary state has continued to fund X Ltd after the report and in the light of the age of the report.
In response to all those grounds the Secretary of State's essential answer is that he has as yet taken no action, he has not said or indicated that he is going to take any action, and there is no reasonable basis for believing he will act in any unlawful manner.
The Contractual Claims
In addition to these public law challenges X Ltd alleges that under its funding contracts with ESFA, ESFA could take detrimental action against it following publication of an Ofsted report to the effect that X Ltd management is inadequate. That action could include the cessation of funding. Accordingly, it seeks an interim injunction to prevent such publication or such detrimental action.
Discussion – Applications for PTA for JR
In my judgement, X Ltd has established a properly arguable case in public law against HMCI. It...
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