A change in direction for Ofsted complaints?

Following Durand Academy’s successful High Court challenge against its Ofsted report, which would have placed the school in special measures if upheld, Luke Green and Joe Orme from law firm Hill Dickinson consider what powers a school has to challenge Ofsted judgements and what should be taken into consideration

In Durand Academy Trust v Ofsted, the academy trust brought a claim for Judicial Review following an ‘inadequate’ judgment being made against it. With a grade 4 judgement being issued, Ofsted recommended that the school be placed into special measures.

Upon application for Judicial Review, the High Court found that Ofsted’s complaints process was defective because it did not permit a substantive challenge to the most serious criticisms, namely, when a school was found to have serious weaknesses or requiring special measures. Ofsted has sought permission to appeal. At the time of writing, it is not yet known how this matter will conclude.

The Academy had ‘outstanding’ or ‘good’ ratings up until its first social care inspection in June 2015, where it was judged to be ‘requires improvement’ (grade 3). The inspection subject to challenge was undertaken over two days in November/December 2016. The Academy was judged to be ‘inadequate’ with a recommendation that it be placed into special measures.

The draft report was provided to the Academy for a factual accuracy check on 6 January and subsequently went through Ofsted’s quality assurance procedures. The judgement was maintained. The Academy pursued a formal Stage 2 complaint. However, because the school had been judged to require special measures, it was expressly precluded from being dealt with at Stage 2. This carve out in Ofsted’s complaint’s procedure prevents those school’s given the most serious criticisms from challenging the determinations of the inspection team.

The Academy proceeded to issue a claim seeking an interim injunction preventing publication of Ofsted’s report along with permission for Judicial Review. The Academy argued against the rationality and fairness of the complaints procedure. It was asserted that if there was to be an internal complaints process, as was the case with Ofsted, the complainant should be afforded the opportunity to make a substantive challenge with the possibility of having the decision changed, if appropriate. It was noted that the more serious the criticism made about a school, the less chance it had of challenging the inspection analysis. The Academy also argued against the inspectors’ assessment of it being inadequate, claiming that the decision was unreasonable.

Ofsted argued that there is an important public interest in ensuring that schools cannot seek to delay the publication of a report when it has found serious weaknesses. Ofsted also relied on its staged quality assurance procedures to moderate inspection judgements, along with its internal review process to consider if its complaints policy and procedures had been followed correctly. The Court found that the absence of any ability to effectively challenge the report rendered the complaints process unfair, and that the report, on substantive review, should be quashed. The Court therefore did not go on to determine the Academy’s second argument.

Challenging an Ofsted Judgment can take the form of a complaint or litigation through the Courts. A complaint through Ofsted’s own procedures is certainly the most cost effective route of challenge. Durand Academy Trust reportedly spent £300,000 in order to pursue its challenge through the Courts. Whilst it is arguable that the matter could have been pursued for much less, the reality is that litigation is a very costly exercise, with the risk that the losing party will be exposed to pay the legal costs of the successful party.

Senior leaders should take the period before an inspection to perform a rigorous self‑evaluation. Evidence at the inspector’s finger tips in a self-evaluation file makes it much easier for schools to assert that they were able to demonstrate compliance. An objective set of eyes often highlights areas of weakness not initially identified by the internal team. If highlighted before an inspection, steps can be taken to secure compliance. It is also good practice to annually self-audit compliance to be in the best possible position should an unannounced inspection take place.
Robust systems can help maintain compliance, but a thorough and critical check at least once each academic year will keep schools sharp.

It is recommended that schools get to know the Ofsted inspection handbooks. This knowledge will allow senior leaders to question inspectors and raise concerns over inconsistencies during the inspection, rather than after the event. On inspection day(s), issues should be raised with inspectors at the earliest opportunity. All those involved with the inspection should keep notes as to how the inspection unfolds, including any conversations held with the inspection team, evidence asked for and when it was supplied. If there are concerns raised regarding non‑compliance by the inspectors, these should be addressed before the end of the inspection as far as possible, with evidence being brought to the attention of the lead inspector. In the event of a questionable judgement, the school must begin preparing the basis of its complaint and immediately detail down its collective account.

Judicial Review of an Ofsted Judgment is possible, but as Durand Academy Trust’s challenge illustrates, it can be very costly. Schools need to be clear on the risks involved and how the litigation will be funded. If governing bodies or proprietors are determined to challenge an unfair Ofsted judgement, they should be clear on what grounds they seek to challenge. Relevant parties may need to provide their prior written approval to use public funds in this way. From the outset of any claim for Judicial Review, the Court will need to be convinced that there are legitimate grounds to allow the claim to proceed.

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