| SPOTLIGHT |
The High Court has rejected a legal challenge brought by a school over an inspection report issued by Ofsted following two separate inspections.
All Saints Academy Dunstable, in Bedfordshire, alleged that the watchdog failed to provide “sufficient evidence, explanations or reasons” in the final report published in July last year.
However, in All Saints Academy, Dunstable, R (On the Application Of) v Office for Standards in Education, Children's Services and Skills (Ofsted) & Anor [2024], Mr Justice Cavanagh rejected the school’s claim on both grounds.
He concluded: “In my judgment, the school was provided with sufficient reasons, explanation or evidence to enable it fairly to contest the findings about it which the Defendants proposed to make in the final version of the report.”
Inspectors visited All Saint’s Academy on 22 and 23 November, 2022.
The secondary school was advised it would be graded ‘requires improvement’, despite being ‘good’ in four out of the five inspection areas.
However, a second set of inspectors undertook a shorter gathering additional evidence inspection on 24 January 2023, and came to different conclusions.
On 9 March 2022, a draft report was sent to the school, which was invited to provide any comments it wished to make.
The school was not provided with the evidence base upon which the report was based. On 16 March 2023, the school provided detailed comments, running to approximately 21 pages, in which the school challenged the findings of the draft report.
Mr Justice Cavanagh said: “The school criticised differences and discrepancies between the first and second draft reports; highlighted what it said were factual inaccuracies; complained about the way in which the second inspection had been conducted; and made submissions as to why the various grading assessments should have been higher. The school said that there was insufficient evidence to make the assertions that had been made in the draft report.”
The school's comments were considered by the lead inspector. Some changes were made where they were considered to be warranted by the evidence, but they were not material.
The proposed gradings were not altered, said the judge.
On 30 March 2023, the school lodged a detailed complaint about the inspection and inspection process. This involved criticisms of the second inspection team and of the processes that had been followed.
On 16 May 2023, Ofsted wrote to the school to provide it with its final report, and Ofsted said that it intended to publish the report on 23 May.
The school asked the watchdog to delay publication whilst it considered and then responded to the final report, and then whilst the school prepared an application to the Court. Ofsted declined to do so.
On 22 May 2023, the school issued proceedings in the Administrative Court, and applied for interim relief to restrain publication of the report, the judge noted.
Morris J gave directions for a hearing to deal both with the school's application for permission to apply for judicial review, and with its application for interim relief.
Ofsted agreed not to publish the final report pending a further hearing.
The matter came back to the Court, before Linden J, on 22 June 2023. The school relied upon 10 grounds in support of its application for judicial review. However, Linden J gave leave on only the following two:
Discussing the first ground, the judge said: “There is no dispute that in the present case the School was provided with the report in draft and was given an opportunity to comment upon it. Nor is there any dispute that the inspectors considered the comments received from the School: some changes were made in light of the comments, albeit minor. Therefore, there is no issue as to whether the Defendants were in breach of their statutory duty in relation to Ground 1. They were not.
“The real issue, in relation to Ground 1, is whether the Defendants were in breach of their common law obligation of procedural fairness by failing to provide the School with sufficient reasons, explanation, and evidence for the contents of the draft report to enable the School to provide a cogent set of comments. It follows that the legal context for Ground 1 is different from Ground 2, which is more of a classic 'reasons' challenge.”
Applying the legal principles to the facts of the case, Mr Justice Cavanagh concluded that the school was provided with “sufficient” reasons, explanation or evidence to enable it fairly to contest the findings about it which Ofsted proposed to make in the final version of the report.
He noted that “in accordance with its normal practice”, Ofsted did not provide the school with written materials containing the evidence base that the inspectors relied upon to produce the draft report.
Counsel for the school challenged the fairness of the procedure because the defendants (Ofsted and His Majesty's Chief Inspector of Education, Children's Services and Skills) did not explain to the school, in detail, why it was that the conclusions in the draft report differed from the provisional opinions that were expressed to the School at the end of the first inspection visit in November 2022.
The judge did not accept this criticism.
He said: “It was made clear to the school that the view had been taken that the provisional conclusions of the first inspection team at the end of the first inspection visit were not secure, and that this had triggered the GAE protocol. It was not necessary for the Defendants to go any further than that.”
The judge concluded: “It is entirely understandable that the school should be disappointed and upset that the second inspection team reached different and somewhat more unfavourable judgments as compared to the provisional views expressed by the first inspection team at the end of the first inspective visit. This made the draft conclusions all the more painful to read.
“However, this does not mean that the Defendants were under any obligation, as a matter of procedural fairness, to provide the School with a detailed comparison between the provisional judgments of the first inspection team and the draft conclusions of the second team.”
Ground 1 was dismissed.
Outlining the nature of the challenge on Ground 2, Mr Justice Cavanagh said: “The question for Ground 2 is whether the Final Report complied with the statutory duties impose on the Defendants in relation to a final report, taken together with the overarching public law obligations to provide adequate reasons for decisions.”
The judge noted that Ground 2 could be broken into four parts.
He said: “The first is whether the Final Report contained sufficient reasons, explanation or evidence to enable the school to understand the adverse findings and what they are based on. In my judgment, the answer is "yes". As will be seen from the draft report, […] it was clear to the school from the text of the Final Report what the inspectors thought in relation to the four criteria and the overall assessment and why.”
He continued: “The second part of the challenge in Ground 2 is whether the Final Report contained sufficient reasons, explanation, or evidence to enable any other reader to understand the adverse findings, and what they are based upon. In my judgment, it is clear that the Final Report meets this threshold. The points I have made in relation to Ground 1 apply equally here.”
The judge noted that the third part of the challenge in Ground 2 was whether the final report provided sufficient reasons, explanation or evidence to enable the school to understand what it has to do to correct the adverse findings.
He said: “Once again, I do not accept that the Final Report is defective in this regard. The school and its leaders might not like the criticisms, but they are clearly set out and there is a section of the Final Report which deals with "What does the school need to do to improve (information for the school and the appropriate authority)". As the heading suggests, this section of the Final Report makes some specific recommendations and targeted criticisms which make clear what the school should do to improve.”
Finally, he said: “The final part to the challenge in Ground 2 is whether the Final Report has given sufficient reasons, explanation or evidence to enable the school or any other reader to understand the change in judgment between the original inspection and the second, GAE, inspection.”
He concluded: “In my view, this part of the school's argument is based upon a misconception of what is required by way of reasons in this context. The requirement is that the school and others are given sufficient information and explanations to understand what the conclusions are, the reasons for them, and what the School can do to improve. The fact that one set of inspectors reached some different provisional views, by way of a process that did not pass the quality assurance standard, is not relevant to this, and there is no legal obligation to address this in the Final Reasons.”
Ground 2 was also dismissed.
All Saints Academy Dunstable has been approached for comment.
Lottie Winson
