School fails in Court of Appeal bid to have Ofsted report quashed

The Court of Appeal has dismissed a bid by a state-funded secondary school in the north of England to have an adverse Ofsted report quashed.

The case of X, R (on the application of) v Office for Standards In Education, Children's Services and Skills & Anor [2020] EWCA Civ 594 came before the court as an appeal against an order made by Mr Justice Knowles in January this year, refusing an application for interim relief in the form of an injunction preventing publication of the report.

In December 2019 the school made a claim for a judicial review of the Ofsted report, which had graded it as “inadequate” amid concerns over safeguarding and pupil behaviour.

In its claim the school sought an order to quash the report, on the grounds of irrationality and procedural unfairness.

It was agreed at the Court of Appeal’s hearing that it should not only decide the appeal against Mr Justice Knowles’ order but also, sitting as the Divisional Court, the application for permission to apply for judicial review, which had not been determined in the court below.

In 2010 the school had undergone a full inspection by Ofsted under s.5 of the Education Act 2005, when it was graded overall as “good”. An inspection under s.8 was carried out in February 2016, with the school again being graded as “good”.

In October 2019 Ofsted carried out the inspection which subsequently led to the proceedings.

In relation to the application for permission to apply for judicial review, Lord Justice Lindblom said the Court of Appeal had to decide whether the school had a properly arguable case that:

1. Ofsted's report was irrational because there was no reliable evidence to support the findings on which its conclusions were based; and that
2. the inspection was procedurally unfair because it did not involve an independent, "merits-based" evaluation.

The appeal against the judge's refusal of interim relief, which was dealt with second, saw two issues arise from the appellant's notice, and another from the respondent's notice. These were:

1. whether the judge erred in concluding that the school's claim for judicial review did not disclose "a strong prima facie case";
2. whether he was wrong to find the matters relied on by the school did not pass the threshold for interim relief; and
3. whether section 12(3) of the Human Rights Act 1998 applied in this case, so that the judge's decision could be upheld on the additional basis that the grant of interim relief would affect the rights of members of the public – specifically pupils and parents – to receive information which Ofsted was under a statutory duty to publish.

Lord Justice Lindblom, with whom Lord Justice Henderson and Chancellor of the High Court Lord Justice Vos agreed, refused the appellant governing body permission to appeal.

He said the school had not shown it was arguable that the conclusions in the inspection were irrational or that the inspection itself was procedurally unfair.

Lord Justice Lindblom noted that an allegation of irrationality was never easy to establish. “In the context of a school inspection, undertaken within a statutory framework by inspectors familiar with the task, and involving issues on which the exercise of evaluative judgment is an essential part of the process, it is likely to be particularly difficult.”

He added that, as had recently been held by the Court of Appeal in R. (on the application of Durand Academy Trust) v Office for Standards in Education, Children's Services and Skills [2018] EWCA Civ 2813; [2019] E.L.R. 100, Ofsted's inspection, evaluation and reporting process, and its procedure for handling complaints, were inherently procedurally fair.

On the issue of interim relief, Lord Justice Lindblom said: “Unsurprisingly, and in my view correctly, the case law at first instance has been consistent in emphasizing the need for a suitably demanding approach to applications for an interim injunction to prevent the publication of an Ofsted report.

“It is important to recognize the scope of Ofsted's functions under sections 5, 13 and 14 of the 2005 Act, including their powers and duties to secure the timely publication and dissemination of their inspection reports. The inherent purpose of this part of the statutory regime is to promote the public interest in parents, pupils and local communities knowing, without delay, the results of school inspections, and to uphold the rights of those entitled to receive that information.”

The Court of Appeal judge added that the considerations that would warrant impeding these functions “would have to be very powerful”.

Lord Justice Lindblom said Julian Knowles J.'s approach to the application for interim relief in this case “was, in substance, fully consistent with the principles acknowledged by Chamberlain J. in R. (on the application of Barking and Dagenham College) v Office for Students [2019] EWHC 2667 (Admin) and was correct.

“In my view, the judge was clearly entitled, for the reasons he gave, to conclude that in this case the considerations supporting the grant of an injunction to restrain publication of the inspection report did not outbalance the very strong factors against.”

The Court of Appeal judge added: “In determining the application for interim relief, the judge took into account the strength of the claim, not as a ‘gateway’ test, but as a factor legitimately to be weighed in the balance of considerations. This is plain from his statement (in paragraph 87 of his judgment) that he had not been persuaded that ‘the merits of [the school's] case’ were ‘sufficiently strong to weigh in favour of granting the relief sought’.

“His conclusion overall was clearly one of balance. In his view, however strong the school's case might be, there were ‘not … any sufficiently compelling reasons to restrain publication’ of the report (paragraph 92). That conclusion was, I think, amply well founded.”