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Durand Academy v Ofsted: the implications

14 September 2017

In July 2017, the High Court heard Durand Academy Trust’s case against Ofsted relating to the 2016 Ofsted inspection of Durand Academy (the academy). The High Court’s judgment has attracted much attention, largely due to His Honour Judge McKenna’s determinations regarding Ofsted’s complaints process and as the case represents a rare victory for an education institution prepared to take on Ofsted. This briefing note goes behind the recent media reports and considers the case and its potential implications for our clients.

What is the background to the case?

Durand Academy Trust (Durand) has been in the headlines rather frequently over the last 12 months or so. Many readers will be aware of its battle with what is now the Education Skills and Funding Agency (ESFA) culminating most recently with the Secretary of State giving notice to terminate the academy’s funding agreement amid financial concerns. However, this judicial review case focused on the section 5 inspection of the academy in late 2016 and the associated report dated February 2017. Ofsted judged the academy to be “inadequate”, placing it in special measures. Durand disputed the inspection outcome asserting that the judgement itself was unreasonable and “so strikingly at odds with how the school performs” that it was unlawful. Durand also challenged the fairness of Ofsted’s complaints procedure, specifically that the internal moderation process undertaken by Ofsted when a school is deemed to be inadequate ought to be capable of substantive challenge. This line of argument picked up on the fact that step 2 of Ofsted’s current complaints procedure states:

If your complaint is about the inspection of a school that was judged to have serious weaknesses or to require special measures, the judgements made will not be reconsidered under step 2 of this policy. This is because all such judgements are subject to extended quality assurance procedures…”

Durand argued that as a result of this approach, it never had an effective chance to change the outcome of the inspection using Ofsted’s internal procedure.

What were the court’s findings?

The judge accepted Durand’s position in relation to the complaints process. He concluded that a complaints process which implies that decision-makers processes are always effective and therefore impeachable, thereby preventing an aggrieved party from pursuing a substantive challenge, is “not a rational or fair process”. The judge ruled that the report should be quashed on this basis alone.

On the point of the reasonableness of Ofsted’s judgements within the report, importantly the judge did not make a final determination but he did offer some interesting comments. For example, he acknowledged that the academy had perhaps expanded too quickly and speculated that the management team had been distracted by its ongoing conflict with the ESFA. Equally however, he made clear that he had “significant concerns” as to whether an overall finding of special measures did represent a fair analysis of the evidence, suggesting that there was merit in the argument that weaknesses associated with the boarding provision (the academy has a separate boarding site) perhaps permeated the overall assessment and even going as far as to tentatively suggest that a judgement of “requires improvement” would have been a better fit.

Why is the ruling significant?

The case is an important one for the education sector for a number of reasons.

Firstly, the judge reached the unambiguous conclusion that Ofsted’s current complaints procedure is unlawful. That is not something Ofsted will be able to ignore lightly and indeed Ofsted has already commented that it will be reviewing its procedure, although there is no commitment to any particular change at present. The judge’s criticism of the complaints procedure was not wholesale, it related purely to the section which covers the ability to challenge an inadequate judgement only at stage 2. As such, the principles are really only directly relevant to schools placed in an inadequate category. Nonetheless, as Browne Jacobson has previously commented, Ofsted’s complaints process has historically been a source of frustration for many schools and so a review of even one aspect of it is welcome.

The decision is also significant simply in that it represents a victory for a school against Ofsted. Only weeks before this hearing, the TES reported that no school has managed to change or quash an inspection report following a legal challenge in the last three years. The associated statistics were no doubt disheartening for many schools but this case reiterates the point that 'success' is not impossible where there is a focused and fair complaint, particularly one which goes to the heart of Ofsted’s process or conduct. It’s also worth noting that the statistics in the TES report will only have related to matters which are challenged in court, we are aware, through our own work, that schools have persuaded OFSTED to revisit inspections or change reports outside of litigation.

More widely, some say that the outcome of the case calls for more than a review of Ofsted’s complaints process and should, in fact, trigger an independent review and conversation around Ofsted’s purpose generally. The fact that Ofsted has previously confidently been able to rely on its “rigorous quality assurance processes” instead of offering a fair means of challenging the most severe of all judgements is, for some, representative of the misguided view that Ofsted has of its role and position.

Why has it taken this long for a Court to find that Ofsted’s complaints process is unlawful?

Many will wonder why it is only now that Ofsted’s complaints process has been successfully challenged in this way. Certainly, one answer to that is money. The reality is that the costs associated with launching a judicial review claim on a point which Ofsted was clearly prepared to defend are prohibitive for many schools. Durand’s legal fees were reported as being in the region of £300,000 and, in any judicial review case, a claimant has to be aware that it risks also being responsible for at least part of the defendant’s legal fees. In this case, it is reported that the losing party will be liable for legal fees of up to £500,000 – an extremely sobering prospect for any publicly funded body working to a tight budget which is paid for the benefit of its pupils’ education.

Legal fees aside, we know through our own interactions with OFSTED that they are canny litigators. They tend to not defend decisions which they consider to be vulnerable and so (as mentioned above) few cases proceed to court and those that do tend to be cases which OFSTED are confident they will successfully defend, and which indeed they do tend to be able to successfully defend. 

Finally, few schools will have the time, resources or inclination to undergo a full-on legal dispute at a time when they have just been placed into a category and arguably at their most vulnerable.

What does the decision mean for other schools and academies graded inadequate by Ofsted?

There has been various comments made about the impact of this case on schools already in a category and schools who are placed in a category from this point onwards, as well as on where the decision leaves the whole of the Government’s forced academisation programme.

The first point to note is that the decision does not automatically mean that any grade 4 (inadequate) judgement made by Ofsted is now 'wrong'. There may be a plethora of evidence to support the judgement in line with the framework and the school may not even wish to dispute it. However, if a school is now, or has very recently, been graded inadequate by Ofsted and it does not agree with the judgement then, to the extent that Ofsted has not amended its complaints procedure in light of the Durand decision (or successfully appealed Judge McKenna’s decision, which it may yet do), the school will have extremely strongly grounds to challenge the fairness of the process on this point alone.

For schools graded inadequate some time ago, the ability to challenge their Ofsted category in light of the Durand decision will be more limited. This is because it would amount to applying the ruling retrospectively and the limitation periods for both making a complaint to Ofsted (10 days) and bringing a judicial review claim (three months) are likely to have expired. There may be some exceptional circumstances however which, in the interests of fairness, offer a route to legal challenge. In such cases, we would advise schools to speak further to Browne Jacobson to receive specific advice.

In terms of where this leaves the government’s academies programme, the link, of course, is that, in accordance with the Education and Adoption Act which came into force last year, an inadequate Ofsted grade now results in the Secretary of State issuing an academy order automatically. Until Ofsted amends its complaints procedure or successfully challenges the High Court’s decision, any inadequate judgement may be called into question and the Secretary of State would be leaving herself vulnerable to challenge if she attempted to force through academy conversions where the school was seeking redress via the complaints procedure.

What key messages should schools take away from this case?

The judge did not ultimately rule on the merits of the special measures judgement itself and whether Ofsted had acted rationally in designating that grade. This is important as many schools seek to contest Ofsted reports on this basis but proving irrationality in the public law sense is challenging. This case does not change that fact.

However, until Ofsted amends the relevant section of its complaints procedure or successfully appeals the High Court’s ruling, any school placed in an inadequate category this academic year has fertile grounds for challenge on the basis of an unfair and flawed process. In an environment of forced academisation and re-brokerage, the stakes are high for these schools and we expect them to take full advantage of that route of challenge.

Katie Michelon

Katie Michelon

Senior Associate

Katie advises schools and academies on a broad range of education law matters and regularly advises on exclusions, governance, safeguarding, admissions and parental complaints.

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Laura Hughes

Laura Hughes

Partner and Head of IPR

Laura Hughes specialises in planning and environmental law for public and corporate sector bodies; experienced in judicial reviews, planning, land use and right of way matters.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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