The Office for Standards in Education, Children's Services and Skills (“Ofsted”) v The Secretary of State for Education
| Jurisdiction | England & Wales |
| Judge | Lord Justice Green,Lord Justice Hamblen,Sir Terence Etherton MR |
| Judgment Date | 21 December 2018 |
| Neutral Citation | [2018] EWCA Civ 2813 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2017/2506 |
| Date | 21 December 2018 |
[2018] EWCA Civ 2813
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
HIS HONOUR JUDGE MCKENNA
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Lord Justice Hamblen
and
Lord Justice Green
Case No: C1/2017/2506
Sir James Eadie QC and Shane Sibbel (instructed by OFSTED Legal Services) for the Appellant
Gemma White QC and Gurprit Mattu (instructed by Lee Bolton Monier-Williams Solicitors) for the Respondent
Hearing date: 5 December 2018
Judgment Approved
Introduction
The appellant (“Ofsted”) is a non-ministerial Government Department with responsibility for inspecting and reporting on schools.
The respondent is an academy trust (“the Trust”) which at the material time ran the Durand Academy School (“the 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 (“the Inspection”), Ofsted produced a report dated 1 February 2017 (“the Report”) 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 are 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 renders the Complaints Procedures unfair” [47] and that this “vitiates” 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 appeals against the Judge's decision, permission to appeal having been granted by McCombe LJ on 25 May 2018.
The Judge's finding that Ofsted's Complaints Procedures are unfair has serious implications for other cases and impacts on Ofsted's ongoing work and, in particular, the manner in which it deals with schools which have 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 Trust still exists as a charity and it remains appropriate to address the wider issues raised by the appeal.
The facts in outline
The factual background is set out in the judgment at [19] to [40]. In the light of the fact that the appeal does not concern the rationality challenge, the relevant facts can be shortly stated.
As set out in the judgment:
“19. The School serves a diverse community in Lambeth. The majority of pupils are of Black African or Black Caribbean heritage and the proportion of pupils who speak English as an additional language is higher than the national average.
20. The School has two sites in Stockwell and a boarding site in Midhurst, West Sussex. The two London sites provide education for Early Years to Year 9, divided between the Mostyn site (Early Years and Years 1 to 3) and the Hackford site (Years 4 to 9). The site in Midhurst has boarding and education provision for Years 10 and 11.
21. The School became an academy under the Academies Act 2010 and established its boarding facility in 2014. It had at the time of the Inspection 1,064 pupils on the school roll and 70 boarders.
22. It is fair to say that the School has undergone significant expansion in recent years, adding key stages as well as a new site and boarding provision.
23. In January 2008 following an inspection under section 5 of the 2005 Act, at a time when it was a primary school catering for pupils aged 3 to 11 with 860 pupils on its roll, the School was adjudged overall as outstanding. In April 2011 that outstanding categorisation was confirmed following an interim assessment.
24. In December 2013 the School was again inspected pursuant to section 5 of the 2005 Act, the conclusion of which was that it merited the characterisation of good. At this time the age range of pupils was 3 to 13 and the number of pupils on the roll was 1,116. The School operated from the two London sites.
25. In April 2015 the School underwent an inspection under section 8 of the 2005 Act. At this stage, the School catered for an age range of 3 to 14 and had established a weekly boarding provision in Midhurst, West Sussex for year nine pupils. There were plans to continue expanding its provision year on year. As this was a section 8 inspection no judgments as to grading were made.
26. In June 2015 the School received its first social care inspection. The judgment at this inspection, which was of the School's boarding provision, was “requires improvement” for all aspects. At that time the boarding provision was for pupils in the age range thirteen to fourteen and there were a total of 37 boarders on the school roll.
27. Thereafter OFSTED initially proposed to carry out a further section 5 inspection of the School in the summer of 2017, towards the end of the inspection window of July 2016 to July 2017. OFSTED considered a section 5 inspection rather than a short inspection was appropriate as a result of the addition by the School of a Key Stage in the intervening period and the age range of pupils was now 3 to 18.
28. In late September 2016 OFSTED decided to bring forward this inspection and at the same time delayed a social care inspection, which had previously been scheduled within the inspection window, for 11 October 2016 so as to be able to carry out what has been described as an “integrated” inspection. This was ultimately carried out on 30 November until 1 December 2016 and is the Inspection.”
Following the Inspection Ofsted's Report was prepared and a draft of the Report was provided to the School on 6 January 2017, with comments invited to be made within five working days. The draft Report found the School to be “inadequate” under virtually every Inspection judgment heading and in overall effectiveness.
On 13 January 2017, the Trust submitted a document headed “Factual Accuracy Check” which disputed the conclusions reached and commented critically on each Inspection judgment made. The document ran to 31 pages.
On 20 January 2017, the Trust submitted a complaint to Ofsted's Complaints Team (“the Complaint”). It was said that the findings of the draft Report were irrational and had no foundation in fact and that there had been numerous breaches of protocol and procedure.
On 23 January 2017, Ofsted replied by email stating that the Complaint had been forwarded to the region completing the quality assurance of the draft Report, and that, while this assurance was being completed, it would not investigate any concerns under its complaints policy.
On 30 January 2017, Ofsted wrote to the School stating that “the judgement that your school requires special measures has been moderated and confirmed”. As foreshadowed in the 23 January 2017 email, the Complaint was considered as part of the moderation process. It was the evidence of Mr Michael Sheridan, one of Her Majesty's Inspectors (“HMIs) and Ofsted's Regional Director for the London region, that this is standard procedure where a complaint is submitted prior to the completion of that process.
At the same time Ofsted provided a detailed response to the School's “Factual Accuracy Check” document. This set out each of the main comments made by the School together with the lead inspectors' response. The response ran to 26 pages and resulted in some minor amendments to the draft Report.
On 1 February 2017, a copy of the finalised Report was sent to the Department of Education, the Education Funding Agency and the local education authority.
The Report stated that the School was found to be “inadequate” under all except one Inspection judgment heading and in overall effectiveness, provided a summary of eight key findings as to why the School was inadequate, but also identified four strengths of the School.
It was Ofsted's intention to publish the Report on its website five working days after 1 February 2017, in accordance with its usual policy. The Trust's judicial review proceedings were, however, issued on 7 February 2017. This was accompanied by an application for an interim injunction against publication, which was granted by Holman J on 8 February 2017. That injunction was later continued until the hearing before the Judge by order of McGowan J on 10 May 2017.
Meanwhile, on 15 March 2017, Ms Emma Ing of Ofsted, Senior Operational lead and Senior HMI, responded to the Complaint. In summary, she was unable to uphold ten elements of the Complaint; was unable to make a judgment about two elements; upheld one element and found two instances where the Report should be changed in response to the Complaint. It was noted that “I have no mandate to consider the inspection judgments as these have been considered when the inspection judgments were moderated”.
On 4 April 2017, the School requested an internal review of Ofsted's response to the Complaint. This was responded to by a letter of 19 May 2017 from Mr John Young, a Senior HMI. He stated that “this review is an examination of whether or not Ofsted's policy and procedures on handling complaints were followed correctly to address your concerns”. He addressed the original complaint investigation; the original complaint investigation...
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