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Ofsted not immune to challenge

In two recent cases Ofsted has been the subject of successful judicial review action.

First, The Interim Executive Board of X School [2016] EWHC 2813 (Admin) related to a school which segregates girls and boys from the age of 9.  Ofsted concluded that this practice amounted to unlawful sex discrimination under the Equality Act 2010. This conclusion was one of the reasons why the school was rated as “inadequate” overall following an inspection.

The school initially secured an injunction preventing the report from being published and has been backed by its local authority in bringing its judicial review claim.

Whilst the overall rating of “inadequate” has not been altered, Ofsted has now been ordered to amend the report to remove its conclusions relating to unlawful sex discrimination. The judge found that Ofsted inspectors wrongly assumed that separation of pupils on the basis of sex meant or implied unequal treatment, and that although the school segregated pupils, this did not result in the pupils being educated differently or treated less favourably.

Second, in The Old Co-Operative Day Nursery Ltd [2016] EWHC 1126 (Admin)a nursery in Nottinghamshire successfully challenged Ofsted where it had exceeded its powers.

Ofsted received a complaint from a member of the public about an incident in which a child had stepped into the road whilst being escorted from the nursery to the local primary school. This complaint triggered an investigation, carried out by one of Ofsted’s subcontractors, following which an unfavourable draft report was produced and the nursery was issued with notice to improve, despite being graded “outstanding” at in an inspection only 8 months before the incident.  Ofsted also published an “Outcome Summary” on its website confirming that the nursery had been sent the notice to improve. Just three months later, the nursery was re-inspected and graded as “outstanding” across the board.

The judge made the following findings:

  1. Ofsted exceeded its powers by carrying out an investigation into the complaint;
  2. There was no evidence to support the findings of that investigation;
  3. The “Outcome Summary” was flawed and its publication was unlawful; and
  4. Ofsted should have had regard to previous inspection history and in not doing so it was in breach of its own guidance.

Both of these cases demonstrate that Ofsted is not immune to challenge where education providers believe that they have been subject to an unfair or irregular inspection or report.

Schofield Sweeney’s education team advises schools on day to day legal issues that can arise including governance, employment and commercial matters.  In addition we support schools through the Academy process, Multi Academy Trust conversions and through subscription to our Just Teach package.

We also enjoy the support of our litigation team who have considerable experience of judicial review and seeking injunctive relief.  Alistair Kennedy (assisted by Nigel Brook) has previously prevented the publication of an Ofsted report on the basis of procedural flaws with the relevant inspection, securing a re-inspection of the school in question.

For more information please contact Helen Hirst in the education team on 01274 377 366.