Shoesmith, R (on the application of) v Ofsted & Ors (Includes Ruling and Submissions)

Procedural fairness is context-dependent. In an urgent administrative intervention concerning the safeguarding of vulnerable children, the Secretary of State was not required to conduct a disciplinary hearing before replacing a statutory Director of Children’s Services. It was sufficient that the inspection was bona fide and open-minded, and that the affected officer had an opportunity to address the gist of the developing concerns. The inspection was not itself a disciplinary inquiry, although its findings could later be used for employment purposes. A local authority employee holding a statutory office may in principle challenge dismissal by judicial review where no unfair-dismissal remedy exists. Where an Employment Tribunal remedy is available, however, judicial review should ordinarily be a remedy of last resort.

The claimant was Director of Children and Young People’s Services for Haringey and also chaired its Local Safeguarding Children Board. Following the death of Peter Connelly, the Secretary of State requested an urgent inspection of safeguarding services under section 20 of the Children Act 2004. Ofsted reported that safeguarding arrangements were inadequate. The Secretary of State directed Haringey to replace the claimant as Director of Children’s Services and later directed the appointment of a permanent replacement. Haringey suspended and summarily dismissed her, and upheld that decision on appeal.

The claimant sought judicial review of the Ofsted inspection and report, the Secretary of State’s directions, and Haringey’s employment decisions. The central questions were whether the processes were unfair, whether irrelevant matters influenced the Secretary of State, and whether the employment challenge belonged in judicial review or before an Employment Tribunal.

1. Secretary of State’s intervention. The Secretary of State had power under section 497A of the Education Act 1996, as applied by the Children Act 2004, to direct replacement of the statutory post-holder where satisfied that the authority was not performing relevant functions to an adequate standard. The national and local urgency created by serious safeguarding concerns justified an accelerated process.
2. Fairness. The requirements of procedural fairness depend on context. The process was not a disciplinary inquiry into the claimant’s personal conduct. Ofsted’s task was to conduct a bona fide and open-minded inspection of the operation of safeguarding services and to report its findings. It was sufficient that the claimant and other Haringey personnel had opportunities to address the gist of most material concerns. The omission of adequate discussion of one concern concerning compliance with the Victoria Climbié recommendations did not materially alter the conclusion.
3. The Secretary of State was not required to receive further representations before making the directions. Even if a greater opportunity to make representations had been required, the court was certain that it would not have changed the outcome, given the report’s conclusion that Haringey’s safeguarding arrangements were inadequate and subject to systemic management failures.
4. The evidence did not establish that the Secretary of State’s decision was dictated by party-political considerations or by The Sun petition. However, he should have avoided expressing views about the claimant’s employment consequences and should not have publicly repeated criticisms not contained in the report without giving her an opportunity to respond.
5. Haringey’s employment decision. The claimant’s statutory office and employment relationship gave the case a sufficient public element for judicial review jurisdiction to exist, particularly where no unfair-dismissal remedy was available. Since the claimant could pursue an unfair-dismissal claim, the Employment Tribunal was the appropriate forum and judicial review should be a remedy of last resort. The claim against Haringey was therefore dismissed without determining the merits of the employment dispute. The court indicated that, if judicial review had been the appropriate route, the disciplinary and appeal procedures appeared procedurally vulnerable because of haste, apparent pre-determination, non-disclosure and the participation of a councillor associated with statements about dismissal without compensation.
6. Outcome. The claims against Ofsted and the Secretary of State failed. The claimant’s employment challenge was left to the Employment Tribunal.

Permission to apply for judicial review was granted by Mr David Holgate QC, sitting as a Deputy High Court Judge, on 1 May 2009, with an extension of time confirmed on 5 June 2009. The judgment records no appeal.