Ofsted Defeated in High Court Challenge with Complaints Procedure Deemed ‘Unfair’
Natalie Ruane explains the recent High Court judgement against Ofsted, in which their complaints procedure was deemed ‘unfair’.
In 2013-14, 475 complaints were made against Ofsted inspections of which only 3 were successful. The following year over 400 complaints were again made, resulting in only 2 successful outcomes. However in 2015-16 none of the almost 200 complaints were successful.
The complaints procedure has been described as ‘virtually impossible’ by the Times Educational Supplement (TES) and has resulted in a 58% decrease in complaints made since 2013-14.
Durand Academy Trust has suffered from falling Ofsted ratings since being rated as ‘outstanding’ in 2008, to ‘requiring improvement’ in 2015. In 2016 the school underwent an inspection by Ofsted and was given an ‘inadequate’ rating with a recommendation for being placed into special measures. In the same academic year, the school achieved exemplary exam results placing them in the top 2.1% of primary schools.
The school complained to Ofsted to challenge the result of their report and later took legal action over the arduous complaints procedure.
The school argued that Ofsted are required to provide a procedure which allowed for substantive challenges to be made in a fair and robust way, with the possibility of having decisions changed. Currently, Ofsted’s complaints procedure does not enable this and, more concerning, the procedure provides less opportunity for challenge by a school against Ofsted’s most serious findings.
Ofsted defended the claim, stating that the complaints procedure was fair and rational as their reports are subject to quality assurance guidelines. This involves the reports undergoing two evidence based checks by separate Her Majesty Inspectorates (HMIs) and one factual based check by the lead investigator before being signed off by a Senior HMI and finally a Regional Director. Ofsted purported that their adherence to this strict guideline would result in no possibility of change to their reports.
Ofsted further justified the lesser opportunities to challenge a report finding serious weaknesses or making a recommendation for special measures, stating that schools would utilise the complaints procedure in order to merely delay publication of the report.
The High Court held that Ofsted’s complaints procedure was not fair or rational. The effect of their procedure was to make their decisions unimpeachable by stating their decision making process was faultless. In practice, this denied the school of a chance to successfully challenge a decision thereby invalidating the procedure.
Durand Academy Trust is said to have incurred costs of approximately £300,000 in pursuit of their claim. The willingness to fund this claim highlights enthusiasm in the sector for creating a fairer complaints procedure.
Ofsted will now be required to make amendments to the complaints procedure in order to facilitate successful challenges to their decisions.
Since their defeat the Department of Education has launched a tender for an independent organisation to review complaints made against Ofsted. However, they state this is as a result of their previous contract coming to an end, rather than the court’s decision. Regardless of their motive for the tender, the number of complaints against Ofsted is expected to rise.
If you would like to discuss any potential action against Ofsted in relation to their reports please contact a member of the Education Department on 01768 800855.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.