The Durand case
Durand Academy is a large
school in Lambeth, serving a diverse community that has a high percentage of
Durand has attracted controversy because of its entrepreneurial business model, with media comment focusing on its high profile former Head and Chair of Governors, Sir Greg Martin.
The school has been academically successful, producing notably good exam results, and receiving outstanding or good ratings in successive Ofsted inspections.
Thus, when the school was rated as inadequate and recommended for special measures after an Ofsted inspection in late 2016, the school challenged the assessment via Ofsted’s internal complaints procedure. That being ineffective, Ofsted successfully challenged the Ofsted report in the Administrative Court: R (Durand Academy) v Ofsted  EWHC 2097 (Admin).
Ofsted has applied for permission to appeal, bringing in James Eadie QC to draft its grounds. Thus far the Court of Appeal has not ruled on the application for permission.
A Court victory for a school against Ofsted is a rarity. Few schools have the resources to mount such challenges, and Ofsted has become a regulator that shows signs of regarding itself as unchallengeable, at least on its reports.
The first ground of challenge in Durand, and the one that succeeded, was to the fairness of Ofsted’s complaints procedure. The second ground, not determined by the Court but recognised as arguable and the subject of some sympathetic comments from HHJ McKenna, was a straightforward Wednesbury challenge, arguing in summary that the finding of inadequate did not reflect the evidence base.
The procedural challenge was legally the more significant of the grounds, and the Court’s decision, if it stands, may influence Ofsted cases and have some bearing on regulatory challenges more widely.
Education lawyers familiar with Ofsted will be familiar with the frustrations experienced by clients arising from the speed of response that Ofsted requires to adverse reports, the bureaucratic and limited complaints process, and Ofsted’s insistence on publishing a report before it can be challenged by judicial review.
The authorities on whether regulators should publish reports before they are challenged are summarised in R (X) v Ofsted  EWHC 2004 (Admin) (the Islamic gender segregated school case at the interim injunction stage).
Publish and be damned appears to be a die in the ditch point for Ofsted. In Durand, after the Court initially restrained publication of the report on an urgent application made by the school, Ofsted consented to that restrain continuing pending the challenge, but later applied for the restraint to be set aside, contending that the school was not co-operating with safeguarding authorities. That application was hotly contested and failed. Ofsted spent part of the substantive hearing re arguing the failed application, but to no avail. After judgment, Ofsted was anxious to obtain reassurance from the judge that its general publish before challenge policy could stand.
Such a policy would be unobjectionable, on the authorities at least, if Ofsted could also offer a fair complaints procedure, but many schools find the process to be anything but fair. On one key point at least, the Court has found that the procedure is sufficiently unfair as to invalidate a report.
The procedure provides for three steps. Step 1 involves raising concerns with inspectors. Step 2 is the formal complaint process. Step 3 is an internal review process.
The procedure as it was when challenged included the following (emphasis added):-
14. If your complaint is about an inspection at which a school is judged to have serious weaknesses or to require special measures, these judgements will not be reconsidered under Step 2 of this policy. This is because all such judgements are subject to extended quality assurance procedures prior to authorisation of the judgement 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 judgements and 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 2 of this policy. Schools can request a review of the process of confirming the inspection judgements under Step 3 of this policy after completion of the Step 2 complaint investigation.
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 judgements will be carried out under Step 3 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.
Accordingly, there could be no substantive challenge under the complaints procedure to a report that resulted in special measures. There could only be a limited challenge to process.
Thus, the school argued that the complaints procedure was unfair and unreasonable. It was not fair or reasonable for a report that had the most serious consequences for a school not to be subject to the full complaints process whereas a less damning report would be subject to such process.
The position was (and remains) that the more serious and negative Ofsted’s conclusions about a school are, the less chance the school has to challenge those conclusions through internal process.
Note that it is possible to complain about Ofsted’s handling of a complaint to the Independent Complaints Adjudication Service for Ofsted, but that body has no power to change the outcome of an inspection of overturn any Ofsted decision, and so does not provide an effective alternative remedy.
In public law, there is no viable alternative remedy unless such remedy is effective and suitable to determine the issue in question. See for example R (C) v Financial Services Authority  EWHC 1417 (Admin) at 89.
HHJ McKenna was attracted by these arguments:-
46. To my mind, a complaints process which 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 is not a rational or fair process and of course it is fair to observe that in the case of The Old Co-operative Day Nursery Ltd v OFSTED  EWHC 1126 (Admin), a decision of Coulson J, there is an example of an OFSTED inspector who was held to have come to an irrational conclusion as a result of her failure to have any regard to the history of the nursery in question and the previous reports in reaching her evaluative judgements, criticisms which are squarely levelled at the inspection team in the present case.
47. The absence of any ability effectively to challenge the Report renders the Complaints Procedures unfair and in my judgment vitiates the Report. Nor can it, in my judgment properly be said that this aspect of the challenge is in any way academic not least because of the very limited nature of the basis of any public law Wednesbury challenge before this court.
The Court appears to have been unimpressed by Ofsted’s boot strapping arguments that because it takes special care over adverse reports, there need be little internal review thereof.
Ofsted’s proposed appeal contends, in summary, that the process of preparing the report was so fair that no complaints process was needed.
Fairness in decision making is a fundamental principle of public law (see Ridge v Baldwin  AC 40 and innumerable public law cases since then). Fairness does not, however, always compel a decision maker to adopt a judicial procedure, and a decision maker is not always required to have an internal appeal or complaints process. Having said that, modern good practice recognises that a complaints process is a good idea, and most regulators and other public bodies have complaints procedures, whether or not this is mandated by the statute or other instrument that empowers such a body.
Once a decision maker has a complaints procedure, it should be a fair one, much as in the context of civil judicial process under article 6 ECHR, a state does not have to have an appeal system, but if it does the system must be fair.
Where a decision has serious consequences, the degree of procedural fairness accorded to the party affected by it ought to be commensurate with the gravity of the consequences: Secretary of State v MB  UKHL 46  AC 440 at 24.
Various regulators adopt various internal and external complaints and appeal processes. At their most formal, these involve quasi-judicial tribunals with hearings. Others adopt internal and paper based systems. It appears that only Ofsted and the Care Quality Commission adopt the very limited model that the Court found defective in the Durand case. As to this, see further discussion below.
Will Ofsted change its position? Its parent department, the DfE, is inviting tenders for a body to replace the current Adjudication Service (which is not really an adjudication service at all), but it is not clear whether the remit of the new body will be widened to permit substantive challenge to adverse reports.
The lead author of this article has recently succeeded in delaying publication of an Ofsted report on a private childcare provider, relying on Durand, so for the time being any school faced with a damning report could be well advised to insist on a delay in publication opening an effective challenge to the report.
How Ofsted’s internal complaints system compares to other regulators
Regulators in other sectors tend either to operate robust internal complaints procedures that can change decisions, or are subject to external substantive review by or appeal to specialist tribunals and appeal bodies. As noted above, the Care Quality Commission adopts the (inadequate) Ofsted model, but this seems an unusual approach.
Time does not permit a review of all regulators and all sectors, but for comparison two major regulators are considered below.
Financial Conduct Authority
The FCA provides an example of a robust internal system. The regulated entity will have the opportunity to make representations which can change the decision of the regulator.
For example, when a Warning Notice is issued, the party affected has the right to make representations to the Regulatory Decisions Committee (RDC) which, in the light of those representations, will decide whether to issue a decision notice.
Where the FCA issues a First Supervisory Notice the party affected can make oral and written representations before taking the matter to a tribunal.
The RDC is an FCA Board Committee that is operationally separate from the rest of the FCA. The FCA Board appoints the RDC Chair and members, who are drawn from business, consumer and industry backgrounds.
The RDC has a team of support staff and its own legal advisers, which ensures separation from those recommending the action. This helps to ensure that decisions to issue statutory notices are made fairly. The RDC process is administrative, not judicial. It is not an appeal body; it is the final stage of decision-making for the FCA.
The FCA acknowledges that it should exercise its functions as transparently as possible; provide appropriate information on regulatory decisions, and be accessible to the regulated community and the general public.
Food Standards Agency
The FSA carries out inspections of food establishments, for example restaurants, butchers, and supermarkets. The FSA use a rating 0-5, where 0 means urgent improvement needed and 5 means very good.
A decision following a hygiene inspection can be appealed before an adverse rating is published.
The appeal is reviewed by the Lead Officer for food or his/her designated deputy, or the Lead Officer or his/her designated deputy in another authority that is also operating the FHRS. The officer that gave the rating will not consider the appeal. In some circumstances, a further visit to the premises may be made.
The FSA also carries out audits of abattoirs and other establishments. Adverse findings can be appealed internally with an external appeal as the backstop.
Thus, both regulators operate internal systems that allow for substantive review, and are open to challenge via external bodies, and not just via judicial review.
Ofsted would not need to devise a system as elaborate as that used by, for example, the FCA, but the present system lacks robustness and is overly focused on process.
 Ofsted is frequently challenged in Tribunals on registration issues and on freedom of information issues.
 Delcourt v Belgium ECtHR 1970
 The RDC is a Committee of the FCA board which decides whether the FCA should give certain statutory notices described as within its scope by the FCA’s Handbook.