High Court finds OFSTED’s complaints procedure “unfair”

Polly Kerr, Senior Associate at Cambridge-based law firm Tees, takes a look at the latest developments with OFSTED’s complaints processes.

The thought of OFSTED pulling into the school car park on a cold winter’s morning is enough to send shivers down the spines of even the calmest teachers, at the most well-performing schools. Preparation for an impending OFSTED inspection is arduous at best and anything less than a fair and rational inspection and subsequent outcome is unthinkable.

Inevitably, of course, there may be occasions when a school does not feel that the process has gone as smoothly as it would have liked, or indeed, finds that the result was not as expected and for one reason or another, wishes to make a complaint. 

A decision in the High Court last month (July 2017), shining a spotlight on OFSTED’s own Complaints Procedures, has held that the Complaints Procedures are unfair to schools, in particular those judged inadequate or subject to a recommendation to be placed into special measures because they do not allow for a fair and robust challenge of an OFSTED report.

Factual Background

Durand Academy Trust (the School) is split over three sites in Stockwell in London and Midhurst in West Sussex, where it maintains a boarding facility for up to 70 boarders. In 2008, the School was held to be “outstanding” by OFSTED. This rating was maintained during an interim inspection 2011. The School’s rating slipped to “good” following an inspection in 2013 and in June 2015, slipped again to “requires improvement.”

On 30 November 2016 and 1 December 2016 the School underwent a Section 5 inspection. The inspection was difficult (both sides held the other to be at fault for this) and the School was held to be “inadequate”. OFSTED’s inspectors recommended that the School be placed into special measures. 

The School sought to complain to OFSTED and challenge the content of the report.

The Complaints Procedure

OFSTED’s Complaints Procedure provides for a three step process. Step one allows informal resolution. Step two is a more formal means of resolution and finally, step three provides for a means of reviewing complaints handling. 

If a School is judged to have a serious weakness or is subject to a recommendation that it be placed in special measures, the Complaints Procedures states:

“14. If your complaint is about an inspection at which a school is judged to have serious weaknesses or to require special measure, 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.”

In respect of step three of the Complaints Procedure it states:

“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 School’s Challenge

The School challenged OFSTED’s Complaints Procedure on the basis that if an organisation, such as OFSTED, has an internal Complaints Procedure 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” (although it was accepted that ‘fairness’ does not necessarily require an external appeals process). 

The School said that OFSTED’s Complaints Procedure simply did not permit this and that the more serious and negative OFSTED’s criticisms were of a school, the less opportunity available to the school to challenge through the Complaints Procedure. This is because the Complaints Procedure expressly precludes a school with alleged serious weaknesses or recommendation for special measures to substantively challenge that decision.  

OFSTED’s position

OFSTED maintained that its Complaints Procedure was rational. However it sought to justify its refusal to include a substantive challenge to its reports in the Complaints Procedure specifically for schools deemed inadequate or in need of special measures because schools may well feel aggrieved about the outcome and seek to challenge the report in order to delay publication. OFSTED maintained that instead of a robust challenge through a Complaints Procedure, it relied upon its quality assurance processes which, in London, included 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 processes are, OFSTED maintained, in line with its own quality assurance guidelines. 

In addition OFSTED stated that step three of its internal review process considered whether policy and procedures on handling complaints had been followed correctly, including a final panel scrutiny. 

OFSTED finally asserted that the challenge in respect of fairness of the Complaints Procedure was academic because of the inherent weakness of the School’s criticism of the report and because the report had not yet been published.

The Court’s Findings

His Honour Judge McKenna disagreed with OFSTED on this point. He said that the process set out in its Complaints Procedures was neither fair nor rational because it “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.” The Judge highlighted the case of The Old Co-operative Day Nursery Ltd v OFSTED [2016] EWHC 1126 (Admin) in which Coulson J, held that an OFSTED inspector’s conclusion had been irrational because she failed to have regard to the history of the nursery or previous reports in reaching her decision. 

McKenna J went on to say that the School’s challenge in respect of the Complaints Procedure was not academic because of the “very limited nature of the basis of any public law Wednesbury challenge” and that the inability to effectively challenge the report, vitiated it. 

Comment

This is an interesting case because, by its own position as set out in the judgment, it seems OFSTED consciously intended to limit opportunity for schools held to be inadequate or subject to a recommendation that they be placed into special measures to challenge OFSTED’s decision and to challenge the content of the report.  

As a result of this High Court decision, however, it appears that OFSTED will have to make provision for such challenge and we now wait to see what changes will be made to OFSTED’s Complaints Procedures in order to ensure a fair and rational process going forward. It remains to be seen, therefore, whether OFSTED’s concerns about an increase in challenges of findings and in delays for publishing reports will be realised. 

But for schools affected, this decision is certainly a positive step forward. 

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