England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/08/2017

His Honour Judge McKenna :

Introduction

1. In this claim the claimant, Durand Academy Trust ("the School") applies for judicial review of a report dated 8 February 2017 ("the Report") prepared by the defendant, the Office for Standards in Education and Children's Services and Skills ("OFSTED") in which OFSTED adjudged the School to be "inadequate" with a recommendation pursuant to section 44(1) of the Education Act 2005 that it be placed into "special measures".
2. The Report, the OFSTED inspection which preceded it ("the Inspection") and an aspect of OFSTED's complaints procedure ("the Complaints Procedures") are the subject of this claim.
3. In summary, the School asserts that OFSTED's assessment of it as inadequate is so strikingly at odds with the reality of how the School performs and so vitiated by unfair and arbitrary evaluations, factual errors and what is described as a relentless accentuation of the negative and elimination of the positive as to be Wednesbury unreasonable. There is also a second free standing challenge to the fairness of the Complaints Procedures.
4. OFSTED's position in response to the Claim as set out in its Summary Grounds of Defence is that it is wholly without merit and amounts to a bare and unarguable Wednesbury challenge to the Report's findings, a flimsy critique of the Inspection and an attempt to impugn the integrity of the Complaint Procedures – all as a means of preventing publication of and ultimately setting aside the Report which OFSTED maintain should be upheld so that it can be published without any further delay. It is also said that the challenge to the Complaints Procedures is both without merit and in any event academic.
5. For the sake of completeness, I should record that OFSTED agreed to the continuation of an interim injunction (initially granted by Holman J on 8 February 2017) restraining publication of the Report pending the determination of the Claim before, in April 2017, applying to lift the injunction. That application came before McGowan J in May 2017.
6. Having heard argument from both parties over one day and having received assurances from the School that it would cooperate with statutory agencies, McGowan J declined to lift the interim injunction and, rather than determining the issue of permission to apply for judicial review, she ordered that the matter be listed by way of a "rolled up" hearing at the earliest opportunity. This is that rolled up hearing.
7. During the course of this litigation, the parties have filed a substantial volume of evidence. The School relies on: three statements from Mark McLaughlin, the executive head teacher of the School; a statement from Sir Greg Martin, the chairman of governors and formerly the headmaster of the School; statements from the Reverend Cannon David Whittington and John Sargeant, both of the Claimant's solicitors; from Tolu Stedford, a parent governor at the School; from Grant Taylor, a consultant head teacher at the School; and from John Wentworth, a consultant head teacher.
8. OFSTED for its part has filed witness statements from: Michael Sheridan, its regional director for the London region; Brian Oppenheim HMI, the lead inspector for the Inspection; Janet Hunnam, the lead social care inspector; and Alan Taylor-Bennett, the education inspector at the boarding provision.

Legislative Framework

9. OFSTED is a non-ministerial Government Department established by section 112 of the Education and Inspections Act 2006 ("EIA 2006").
10. Her Majesty's Chief Inspector ("HMCI") is OFSTED's most senior officer and has various powers and duties in relation to the inspection of maintained schools and academies under sections 5 and 8 of the Education Act 2005 ( "the 2005 Act"). Anything authorised or required by or under any enactment to be done by HCMI may be done by OFSTED and by an additional inspector who is authorised generally or specifically for the purpose by HMCI (see para. 9 of schedule 12 to EIA 2006).
11. Section 5 of the 2005 Act provides for the inspection of schools at intervals prescribed by regulations. Section 8 provides for other inspections, at the request of the Secretary of State or at the discretion of the Chief Inspector of Schools.
12. Under the Education (School Inspection) (England) Regulations 2005, the prescribed interval for the purposes of the section 5 inspection is no more than five years beginning with the end of the school year in which the latest section 5 or section 8 inspection was carried out.
13. Subsections 5(5A) and (5B) provide:

"(5A) The Chief Inspector's report under subsection (5) must in particular cover-

(a) the achievement of pupils at the school;

(b) the quality of teaching at the school;

(c) the quality of the leadership in and management of the school;

(d) the behaviour and safety of pupils in the school.

(5B) In reporting under subsection (5) the Chief Inspector must consider-

(a) the spiritual, moral, social and cultural development of pupils at the school …"

14. Section 44(1) of the 2005 Act is in these terms:

"(1) For the purposes of this Part special measures are required to be taken in relation to a school if –

(a) the school is failing to give its pupils an acceptable standard of education, and

(b) the persons responsible for leading, managing or governing the school are not demonstrating the capacity to secure the necessary improvement in the school."

15. The 2005 Act makes provision for publication and dissemination of reports as follows:-

"11. The Chief Inspector may arrange for any report of an inspection carried out by him under any provision of this Chapter… to be published in such a manner as he considers appropriate

[…]

13. Duties of Chief Inspector where school causes or has caused concern

(1) If, on completion of a section 5 inspection of a school the Chief Inspector is of the opinion –

(a) that special measures are required to be taken in relation to the school, or

(b) that the school requires significant improvement,

he must comply with subsections (2) and (3).

(2) the Chief Inspector must –

(a) send a draft of the report of the inspection-

(i) in the case of a maintained school, to the governing body, and

(ii) in the case of any other school, to the proprietor of the school, and

(b) consider any comments that are on the draft that are made to him within the prescribed period by the governing body or proprietor, as the case may be.

(3) If after complying with subsection (2), the Chief Inspector is of the opinion that the case falls within paragraphs (a) and (b) of subsection (1) –

(a) he must without delay give a notice in writing, stating that the case falls within paragraph (a) or (b) of subsection (1) –

(i) to the Secretary of State,

(ii) in the case of a maintained school to the local authority, and

(iii) in the case of any other school to the proprietor of the school; and

(b) he must state his opinion on the report of the inspection.

14. Destinations of reports: Maintained Schools

(1) The Chief Inspector must ensure that a copy of the report of any section 5 inspection of a maintained school is sent without delay to the appropriate authority for the school.

(2) The Chief Inspector must ensure that copies of the report are sent-

(a) to the head teacher of the school,

(b) to whichever of the (local authority) and the governing body are not the appropriate authority.

(4) The appropriate authority must –

(a) make a copy of any report sent to the authority under subsection (1) available for inspection by members of the public at such time and at such place as may be reasonable,

(b) provide a copy of the report, free of charge or in prescribed cases on payment of such fee as they think fit (not exceeding the cost of supply), to any person who asks for one, and

(c) take such steps as are reasonably practical to secure that every registered parent of a registered pupil at the school receives a copy of the report within such period following receipt of the report by the authority as may be prescribed."

16. The Complaints Procedures provide for three steps. In summary, Step One allows for an informal resolution of complaints. Step Two is a formal complaints procedure and Step Three provides for a means of reviewing complaints handling.
17. Where a school is judged to have a serious weakness or to require special measures, the Complaints Procedures provide as follows:-

"13. We do not normally withhold publication of an inspection report or withdraw a published inspection report while we investigate a complaint, unless there are exceptional circumstances. This is because in most inspection remits Her Majesty's Chief Inspector has a duty to report the findings of an inspection or investigation on its completion. There is a public interest in the prompt publication of reports as it is important for users or prospective users of the inspected provision, who are aware that an inspection has taken place, to be informed about the findings of the inspection within our published timescale. A challenge to the inspection process or disagreement with the inspection findings alone would not normally be considered an exceptional circumstance.

14. If your complaint is about an inspection at which a school is judged to have serious weaknesses or to require special measures, these judgments will not be reconsidered under step two of this policy. This is because all such judgments are subject to extended quality assurance procedures prior to authorisation of the judgment on behalf of Her Majesty's Chief Inspector. The school contributes to this process and may comment on the inspection findings prior to publication of the report. The scrutiny of the judgments and the consideration of any comments received from the school is undertaken by Her Majesty's Inspectors who are independent of the inspection. However, once the report has been finalised, any complaints about inspector conduct or the inspection process can be considered under step two of this policy. Schools can request a review of the process confirming the inspection judgments under step three of this policy and completion of the step two complaint investigation."

18. In respect of Step Three the Complaints Procedures provide as follows:-

"24. If your complaint is about an inspection of a school judged to have serious weaknesses or to require special measures, requests for a review of the process of confirming the inspection judgments will be carried out under step three of this policy.

25. The review outcome will be a final decision on whether or not your original complaint was investigated fairly and properly in line with our published policy."

The Facts

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.
29. The School for its part has queried the timing of the Inspection. The decision making process has been explained by Mr Sheridan in his witness evidence where he maintains that the decision to carry out an integrated inspection was in line with OFSTED's published procedures. The Inspection was within the inspection window and this was a matter which OFSTED clarified in its letter to the School's representatives in these terms:-

"The inspection of education was required to take place between July 2016 and July 2017. It can take place at any point during that period. The inspection had been preliminarily scheduled to take place in 2017. The inspection was then brought forward in order to co-ordinate with the boarding provision inspection and undertake an integrated inspection. This is evidenced by the enclosed mail correspondence. This is in accordance with part 1, paragraph 6 of the published OFSTED section 5 inspection handbooks. Indeed as you will note, this boarding inspection was also varied from the preliminary dates, in order to allow one whole school inspection to take place, therefore limiting the disruption to staff and pupils. As stated above, such amendments to inspector diaries and preliminary timetables are common to meet business need."

30. It is right to record that the challenge to the Report occurs against a background of a protracted dispute between the School, along with Durand Education Trust, which owns land that the School uses, and the Education Funding Agency ("EFA") which is a part of the Department of Education.
31. The School has asserted that the EFA has placed illegitimate pressure on the School and has been seeking, unfairly and unlawfully, to change the management of the School. The EFA's current position is that in June 2017 it gave notice to terminate the academy funding agreement made with the School. That notice takes effect in a year's time, that's to say at the end of the academic year 2017/18. It is understood that if the School is placed into special measures or requires significant improvement, the funding agreement can be terminated forthwith.
32. OFSTED for its part maintains that it is an independent body but the School remains concerned, it says for sensible and non-paranoid reasons, that OFSTED may have allowed its independent judgement to be clouded and asserts that the unusually high degree of scrutiny of the School's management over recent years, with several reports and inquiries, may have created a climate which is unfavourable to the School or an expectation that something must be amiss with it. From my part I entirely reject any suggestion that OFSTED or its inspectors have allowed their professional judgment to be clouded in the way feared by the school.
33. As I have recorded the Inspection took place over two days at the end of November and the beginning of December 2016. It is fair to say that it was a fraught affair for which the witness evidence filed by both parties seeks to lay the blame firmly at the door of the other.
34. There are stark differences between the School and OFSTED as to what the Inspectors found. For its part the School asserts that the Inspection was conducted in a manner that experienced staff at the School found to be confrontational and cursory, allegations which are refuted by the inspectors themselves. The School challenges many of the facts asserted in the Report which it says are simply wrong. The School also questions the number of Inspectors deployed which it asserts was surprisingly large.
35. OFSTED for its part maintains that there was nothing in the way in which the Inspection was organised and implemented that was unlawful. The deployment of inspectors was in keeping with the size of the School, the fact that it was on three sites and that it was an integrated inspection. The deployment of a quality assurance SHMI (Ms Anwar) was to provide an additional level of assurance as to the conduct of the Inspection and the addition of an extra inspector on the second day was purely as a result of difficulties experienced on the first day of the Inspection. I have no hesitation in accepting the thrust of the evidence filed on OFSTED's behalf as to the reasons for the deployment of the number of inspectors in fact deployed.
36. The key findings of the Report are as follows:

"This is an inadequate school

Senior leaders and governors do not ensure that safeguarding is at the top of their priorities. They do not translate policies into effective practice.

Leaders are not fulfilling their responsibilities to ensure pupils' welfare. They cannot account for the whereabouts of all pupils or ensure an appropriate education for everyone.

Senior leaders and governors do not have detailed enough overview of the school's performance. Systems to check quality lack rigour and precision.

Weak leadership and governance do not have the capacity to challenge deficiencies and drive the necessary improvements.

Teaching across the school is too variable. This means that pupils' achievements are inconsistent. The rapid progress made in key stage 2 is not replicated in the early years or in key stages 1, 3 or 4.

Achievement in writing across the school requires improvement. Many pupils do well especially in the Year 6 tests. Others, including the most able and disadvantaged pupils, underachieve significantly.

Provision and outcomes for Years 10 and 11 are poor. Weak teaching and a narrow curriculum limit pupils' learning.

The national minimum standards for boarding schools are not met. Safeguarding weaknesses have not been tackled effectively, including the early years, because there is too little oversight by senior leaders and governors.

The school has the following strengths

Pupils' achievements in the Year 6 tests are consistently well above expectations. Results in reading, writing and mathematics are in the top 10% of all schools in England.

Pupils' behaviour around the building is good especially moving to and from classrooms. This is because pupils understand what is expected and the routines are well established.

Strong teaching in key stage 2 has a very positive impact on pupils' achievements. They make rapid progress from the beginning of Year 3 to the end of Year 6.

Arrangements to promote boarders' health are strong. Meals are of good quality and detailed health plans are monitored well.

Compliance with national minimum standards for boarding school

The school must take action to meet the requirements of the schedule to the Education (Independent School Standards) Regulations 2014, the national minimum standards for boarding and associated requirements. The details are listed in the full report."

37. Before being finalised and being sent to the School on 1 February, the Report was subject to OFSTED's quality assurance process and factual accuracy checks. In particular:-

i) the Report was provided in draft form to the School on 6 January 2017 and the School was given five working days to provide comments on the draft;

ii) the School's factual accuracy comments were provided on 13 January; and

iii) a formal Step Two complaint was submitted by the School on 20 January.

38. Thereafter and following OFSTED's quality assurance process, its judgement that the School requires special measures was moderated and confirmed and OFSTED's response to the School's factual accuracy comments was sent to the School on 31 January 2017, in which the lead inspector, Mr Oppenheim, responded to the criticisms set out by the School of his Report and some minor amendments were made.
39. On 1 February 2017 a copy of the Report was sent to the Department of Education, the EFA and the local education authority. It was OFSTED's intention then to publish the Report on its website five working days after 1 February. However, in the event, the Claim was issued on 7 February coupled with an application for an interim injunction against publication, which was granted.
40. Finally, I should record, for the sake of completeness, that it is a matter of regret that the Report was in fact published in error on OFSTED's website on the evening of 1 February 2017 before being taken down early on the 2 February.

Grounds of Challenge

41. The first ground raised by the School relates to the Complaints Procedures. What is said on behalf of the School is that whilst fairness does not necessarily require an external appeal process, if there is, as with OFSTED, to be an internal process, it ought to be a fair and robust process that permits a substantive challenge and which gives the complaining party the possibility, in appropriate cases, of having the decision changed. This is something which the Complaints Procedures simply do not permit. In effect the more serious and negative OFSTED's criticisms about a school are, the less chance the school has to challenge its analysis through the Complaints Procedures. This is because where the complaint is about an inspection at which a school is adjudged to have serious weaknesses or to require special measures the Complaints Procedures specifically preclude a substantive challenge to a report. The result in this case, therefore, it is said, is that the School never had an effective chance to change the outcome of the Inspection by using OFSTED's internal procedure.
42. OFSTED for its part accepts that if it does provide a complaints procedure it must be rational and fair but asserts that the restrictions in its Complaints Procedures are indeed rational and fair. Its justification for its refusal to include a substantive challenge to its reports is that schools assessed as being inadequate may well feel aggrieved by this outcome and will attempt to challenge and delay publication of a report. Moreover, there is an important public interest that schools which, following what OFSTED says is a rigorous and independent inspection by its inspectors, have been found to have serious weaknesses, should not be able, readily, to delay the publication of the outcome. Instead of a robust complaints process OFSTED relies in part on its quality assurances processes. In London this involves three quality assurance reads, two by an HMI including an evidence based review and a review of the factual accuracy check response by the lead inspector, a sign off by a senior HMI and the final sign off by the regional director before proof reading. These quality assurance processes are, it is said, undertaken in line with quality assurance guidance published by OFSTED internally.
43. On the issue of the public interest in publication, reliance is placed on the judgment of Burton J in R (City College Birmingham) v OFSTED [2009] EWHC 2373 (Admin) where he refused to grant injunctive relief to restrain publication of an inspection report pending a judicial review challenge and in doing so emphasised the public interest in publication and the absence of the most compelling reasons or exceptional circumstances justifying the granting of injunctive relief.
44. In addition OFSTED also places reliance on its step Three internal review process which is designed to consider whether its policy and procedures on handling complaints have been followed correctly. This process involves a final panel scrutiny of the Step Three review and response, which includes a senior education practitioner not involved in carrying out OFSTED inspections. However, the review is based on available information from the original investigation (paragraph 23).
45. Finally, OFSTED also asserts that in any event this aspect of the challenge is now academic because of a combination of factors namely what is said to be the inherent weakness of the School's criticism of the Report and the fact that the School is in any event before this court in circumstances where the Report is yet to be published.
46. To my mind, a complaints process which effectively says there is no need to permit an aggrieved party to pursue a substantive challenge to the conclusions of a report it considers to be defective because the decision maker's processes are so effective that the decision will always in effect be unimpeachable is not a rational or fair process and of course it is fair to observe that in the case of The Old Co-operative Day Nursery Ltd v OFSTED [2016] EWHC 1126 (Admin), a decision of Coulson J, there is an example of an OFSTED inspector who was held to have come to an irrational conclusion as a result of her failure to have any regard to the history of the nursery in question and the previous reports in reaching her evaluative judgements, criticisms which are squarely levelled at the inspection team in the present case.
47. The absence of any ability effectively to challenge the Report renders the Complaints Procedures unfair and in my judgment vitiates the Report. Nor can it, in my judgment properly be said that this aspect of the challenge is in any way academic, not least because of the very limited nature of the basis of any public law Wednesbury challenge before this court.
48. It follows in my judgment that permission should be granted on this ground and, on substantive review, the Report should be quashed.
49. In the circumstances there is no need for me to go on to consider the reasonableness of the conclusions reached in the Report and I do not propose to do so in any detail, save to make the following observations. To my mind the School's characterisation of itself as a school which, in the space of three short years and with no changes of management or leadership, has gone from holding a rating of outstanding to one which was judged to be inadequate on the basis of the Report is somewhat simplistic.
50. I can see some considerable force in the argument put forward on OFSTED's behalf that the picture painted by the various inspections since 2013 is one of a school that has perhaps expanded too quickly, has been too ambitious and whose leadership and management systems have failed to keep up with the pace of change. By way of example, as it seems to me, although there is much in the way of positive comment, the section 8 inspection report should have acted as a wake-up call to the senior management team. It included the following prescient observations:

"This monitoring inspection was conducted under section 8 of the Education Act 2005 and in accordance with Ofsted's published procedures for inspecting schools with no formal designation. The inspection was carried out because the Chief Inspector was concerned about aspects of the quality of leadership, management and governance at the academy.

[…]

Leaders and governors have not acted swiftly enough to strengthen the academy's development plan. This was a specific area for further improvement identified at the last inspection in December 2013. The existing plan, dated 2013-2014, is used as a working document on which academy leaders record progress and make notes of actions to take in the current academic year. It does not include clear timescales or identify those responsible for monitoring or evaluating the impact of actions taken or how resources are being aligned to specific objectives. This limits the strategic effectiveness of leaders and managers.

[…]

All staff interviewed during the inspection knew who to report safeguarding concerns to. However, governors recognise that they have not been robust enough in ensuring that policies relating to safeguarding are discussed and ratified promptly. The safeguarding policy has not been reviewed and updated by governors on an annual basis. The policy provided to all staff in September 2014 was not aligned to the statutory guidance, "Keeping Children Safe in Education" … Other policies relating to safeguarding, for example those relating to e-safety and to the protection of children from extremism and radicalisation, are in place but are not comprehensive enough. Some teaching staff were not aware of, and had not been trained in, the government's 'Prevent' strategy, despite the academy being located in a 'Prevent' priority area.

The academy's checks to ensure the suitability of adults to work with children meet requirements. However, the single central record, where this information is stored, showed a lack of attention to detail … Nevertheless, the inspection found several areas of the academy's work around safeguarding and child protection that do not demonstrate good "practice". However, during the inspection, academy leaders were unable to provide inspectors with information regarding the Key Stage 3 curriculum. In addition, they were unable to demonstrate how this information is shared with parents of secondary-aged pupils. Following the inspection, further evidence was sent to Ofsted by the academy, but this still did not provide an overview of the curriculum offered to Year 9 pupils. This demonstrates a weakness in this aspect of leadership and management, as information is not readily available for parents or other interested parties about the education offered at Key Stage 3, either in paper form or on the academy website."

Priorities for improvement

Improve leadership and management by:

- ensuring that the academy's development plan includes tight timescales, specific responsibilities and milestones by which leaders and governors can monitor and evaluate progress towards the academy's goals and the impact of its work.

- ensuring that safeguarding policies and practices are always up to date, including the implementation of current statutory guidance.

- ensuring that sufficient information is provided and is accessible to parents about the Key Stage 3 curriculum."

51. It may well be that the School's ongoing conflict with the EFA and the strong sense of injustice thereby engendered, whether justifiably or not, led to the management team taking its collective eye off what should have been the main ball.
52. That said, I do have significant concerns as to whether, on a fair analysis of the evidence base in general and the Final Summary Evaluation in particular, the material does really lead to a conclusion that the School was inadequate and in need of being placed into special measures rather than the lesser category of requires improvement. Perhaps, as counsel for the School sought to persuade me, the undoubted weaknesses in the boarding school in Midhurst have permeated the whole assessment. However, in the light of my conclusions on the first ground there is no need for me to, and I do not, express a concluded view on the rationality of the Report.
53. I trust that the parties will be able to agree the form of an order that reflects the substance of this judgment.
54. Finally, I would like to thank counsel on both sides for their considerable assistance in this case.