The Queen (on the application of the Interim Executive Board of X) v Ofsted
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stuart-Smith |
| Judgment Date | 01 August 2016 |
| Neutral Citation | [2016] EWHC 2004 (Admin) |
| Docket Number | Case No: CO/3674/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 August 2016 |
[2016] EWHC 2004 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stuart-Smith
Case No: CO/3674/2016
Mr Peter Oldham QC (instructed by X Council Legal Services) for the Claimant
Ms Helen Mountfield QC and Ms Sarah Hannett (instructed by Ofsted Legal Services) for the Defendant
Hearing date: 27 July 2016
Anonymity Order
Pursuant to CPR 39.2(4), no report of or relating to this claim and in whatever form shall, until further order, name, or refer to in such a way that they can be identified, any individual referred to in the materials in the case or mentioned in court or the school that is the subject of these proceedings.
Introduction
On 21 July 2016 Wyn Williams J made an interim order restraining the publication of an Ofsted report on a school ["the School"]. On the same day, the Claimant issued Judicial Review proceedings claiming the interim remedy granted by Wyn Williams J and, as a final remedy, that the report be quashed and Ofsted be prevented from publishing it, along with all necessary declarations and other ancillary relief. The Claimant also applied for an anonymity order.
The Claimant applies to quash the report and prevent its publication on the following specified grounds:
i) Alleged irrationality and inconsistency with previous inspection reports;
ii) Alleged irrationality because of an absence of evidential basis for the findings in the report;
iii) The report is alleged not to be the product of an independent, merits-based evaluation, and bias;
iv) The treatment of the School is alleged to be inconsistent with treatment of other schools and therefore irrational; and
v) The powers of inspection are alleged not to have been used for statutory purposes and are therefore alleged to be ultra vires.
On 27 July 2016 Ofsted applied to set aside Wyn Williams J's interim order. At the start of the hearing I made an interim anonymity order until further order. This is my ruling on the application to set aside the interim order of Wyn Williams J.
It should be emphasised at the outset that no Acknowledgement of Service has yet been served and the Defendant has not yet fully developed its opposition to the proceedings either by formulating its case or by the submission of evidence. Both sides have put in evidence for the purposes of the present hearing; but the Court is not in a position to form a reliable view on the merits of contested facts. Although there are certain facts that are not contentious, it is clear that there are others that will be significantly in dispute.
The Factual Background
The School is a voluntary aided school for boys and girls of ages 4–16. It has an Islamic religious ethos. As a result of Ofsted inspections and reports, it was put into special measures in 2014 because of concerns about Leadership, Governance, Teaching and Learning, and Financial Management. An Interim Executive Board ["the IEB"] was appointed in place of the previous school governing body in about May 2014. A new executive head teacher was appointed. Evidence from the executive headteacher and the chair of the IEB (and others) indicates that they are people of experience, quality and some distinction in their field. On the evidence before the Court the appointment of the IEB at first met with very considerable opposition from the local community; but a combination of improved educational results and other changes made by the IEB and the head teacher has led to a greatly improved situation where the School and those who run it have the confidence of at least the majority of the parents and community.
One of the characteristics of the School at all material times from well before it went into special measures was that children are segregated from an early age for many activities. There are times of overlap and the evidence before the Court is that there is no difference, distinction or discrimination between the curriculum, teaching or pastoral care provided to boys and girls. The policy of separation is and has been advertised as part of the School's admissions policy and is and has been known to all, including parents and Ofsted. Until very recently it has not been the subject of any comment from Ofsted. According to the evidence before the Court it is a feature that at least some parents regard as a beneficial aspect of the School's organisation.
The history of the Ofsted inspections and reports from the time that the School went into special measures is agreed by the parties to be of relevance, both as an indicator of the progress made by the School between mid-2014 and early 2016 and as something to be taken into account by subsequent Ofsted inspectors. Three such reports are before the Court, namely those for December 2014, March 2015 and December 2015.
The inspection for the report in December 2014 was the third monitoring inspection since the School had become subject to special measures. It was carried out by a team of three, including HM Inspector Mr James McNeillie – of whom more later. The covering letter from the lead inspector stated that "the school is making reasonable progress towards the removal of special measures." Under the heading of behaviour and safety the report identified the need to develop strategies for tackling bullying and poor behaviour. The executive headmaster and senior leaders were described as "a cohesive team" with a shared vision and no illusions about the enormity of the task facing them in ensuring that the School was removed from special measures in the allocated timetable. "Their approach to school improvement is characterised by determination, energy and optimism. They have an accurate view of the strengths and weaknesses of the school." It was said that the local authority "continues to tackle the range of complex and sensitive issues surrounding this school. A school improvement officer is providing effective support to the primary phase. The executive headteacher, brokered by the local authority, is providing clear leadership."
The inspection for the March 2015 report was carried out by the same inspector with two different colleagues. The covering letter again said that "the school is making reasonable progress towards the removal of special measures." The same recommendation was made in respect of behaviour and safety as in the December 2014 report, but it was recorded that behaviour continued to improve. It was said that "leaders have established a calm and purposeful environment where expectations of behaviour are clear and are based on mutual respect." On the subject of leadership, the report noted that "the executive headteacher and associate headteacher continue to provide clear, decisive and determined leadership to the school", though with several key leadership positions being held on a temporary basis by staff from another school the report stated that "as a result, the long-term stability of the school leadership, while improving, remains fragile." Despite substantial progress, "there is much ground to cover if the school is to be removed from special measures within the allotted timescale." On the issue of equality of opportunity, the report stated that "leaders ensure equality of opportunity for all pupils, including those with disabilities and special educational needs, and discrimination of any kind is not tolerated. However, the schools' (sic) current policy for equal opportunities does not reflect this practice and does not comply with current regulations." It was said that members of the IEB were knowledgeable about the issues facing the School and were working diligently to provide leaders with a high level of support and challenge. In addition it was said that they were working efficiently with the local authority and were proactive in contacting other agencies. The local authority "continue[d] to provide a high level of effective support."
The inspection for the December 2015 Report was carried out by a team of four, who were different from those who had carried out the December 2014 and March 2015 inspections. The information provided about the inspection included that there had been visits to the library to look at the range and suitability of books available for pupils. The report listed particular strengths of the School including that "the safety of pupils is given a very high priority. Safeguarding procedures are highly effective in creating a safe culture in the school" and that "governance is highly effective through the knowledgeable and experienced [IEB], led exceptionally well by the Chair, who has a clear vision for how to improve the school." The section identifying what needed to be done to improve further said nothing about either safeguarding or discrimination. On the contrary, the report stated that "the arrangements for safeguarding are highly effective in creating a safe culture in the school." Effectiveness of leadership and management was said to require improvement because the team was new; but the governance of the School was said to be highly effective, with the "very experienced and knowledgeable IEB" being "led exceptionally well by the Chair who has a clear vision of how to improve the standard of education for pupils at the school" and "through the IEB, had been instrumental in driving improvements in the school so far". Personal development, behaviour and welfare were said to require improvement, but the School's work to promote pupils' personal development and welfare was said to be good. "Safety of pupils is given a very high priority. Pupils know this and confirmed that they feel safe in school and know how to keep themselves safe such as when using the...
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