R (Shoesmith) v Ofsted and Others

The Court of Appeal held that OFSTED's rapid Joint Area Review (JAR) of Haringey was, in substance, a JAR under section 20 of the Children Act 2004 and that OFSTED's inspection and report did not breach the common law rules of procedural fairness in the particular urgent and public context. The court found, however, that the Secretary of State's directions under section 497A(4B) of the Education Act 1996 were vitiated by procedural unfairness because personalised criticisms communicated orally to the Secretary of State were not put to Ms Shoesmith and the truncated process denied her an adequate opportunity to answer allegations which would have catastrophic employment consequences.

Further, Haringey's summary dismissal of Ms Shoesmith was unlawful: the local authority exercised its employment powers in a manner giving rise to a public law challenge (amenable to judicial review) and the dismissal process was tainted by appearance of predetermination and lack of adequate investigation and particularisation; accordingly the dismissal was unlawful and void. The court remitted the question of appropriate further relief to the Administrative Court.

This was an appeal from the Administrative Court (Foskett J) following judicial review proceedings brought by Sharon Shoesmith, the former Director of Children’s Services (DCS) for the London Borough of Haringey, after the death of Peter Connolly (“Baby P”). The Secretary of State requested an urgent Joint Area Review (JAR) under section 20 of the Children Act 2004. OFSTED produced a sharply critical report. The Secretary of State then issued directions under section 497A(4B) of the Education Act 1996 removing the DCS statutory responsibilities and Haringey suspended and shortly afterwards summarily dismissed Ms Shoesmith. She sought judicial review of OFSTED, the Secretary of State and Haringey.

Nature of the claim / relief sought: judicial review challenging (i) OFSTED’s compliance with statutory arrangements and common law fairness in conducting the JAR, (ii) the lawfulness of the Secretary of State’s directions under s497A(4B), and (iii) the lawfulness of Haringey’s summary dismissal.

Procedural posture: Foskett J dismissed the applications but granted permission to appeal in relation to the Secretary of State and Haringey (refused as to OFSTED; permission on OFSTED later granted by Stanley Burnton LJ). The appeal proceeded to the Court of Appeal.

Issues framed by the court:

• Whether the JAR was carried out in accordance with the statutory arrangements under section 20 of the Children Act 2004 and whether OFSTED breached the rules of procedural fairness.
• Whether the Secretary of State lawfully exercised powers under s497A(4B) of the Education Act 1996 given the absence of prior opportunity for Ms Shoesmith to answer personalised criticisms, and whether the Secretary of State impermissibly relied upon publicity or The Sun’s petition.
• Whether Haringey’s dismissal of Ms Shoesmith was amenable to judicial review, whether the Employment Tribunal provided an adequate alternative remedy, and whether Haringey’s dismissal was procedurally unfair or otherwise unlawful.

Reasoning and disposition: The court reasoned that the urgent character and public interest in safeguarding children reduced the procedural requirements applicable to OFSTED as an inspecting body; OFSTED’s methodology was adapted in consultation with the other inspectorates and the absence of the usual feedback/draft-report stages did not render the JAR unlawful or unfair in the circumstances. By contrast, the Secretary of State had relied upon personalised criticisms communicated to him and announced the removal of statutory responsibilities publicly without giving Ms Shoesmith a proper opportunity to answer those personalised allegations; the truncated process and public announcement rendered the Secretary of State’s directions procedurally unfair and vitiated. On Haringey, the Court held that the dismissal was amenable to judicial review, the Employment Tribunal remedy was not an equally convenient and effective alternative in the circumstances, and Haringey’s handling of dismissal evidenced an appearance of unfair predetermination and insufficient particularisation; the dismissal was therefore unlawful and void. The Court dismissed the appeal against OFSTED but allowed the appeals in respect of the Secretary of State and Haringey and remitted the question of appropriate relief (including remedies for loss) to the Administrative Court.

This was an appeal allowed in part. The Court of Appeal dismissed the challenge to OFSTED, concluding that in the urgent, high-profile context the JAR and OFSTED’s conduct did not breach statutory requirement or common law fairness. The court allowed the appeal against the Secretary of State: his directions under section 497A(4B) were vitiated by procedural unfairness because important personalised criticisms were not put to Ms Shoesmith and she was not given an adequate opportunity to answer. The court also allowed the appeal against Haringey: the council’s summary dismissal was amenable to judicial review, was tainted by appearance of predetermination and other procedural defects, and was therefore unlawful and void. The case was remitted to the Administrative Court to determine appropriate relief, with a stay to permit negotiation/mediation.

Appeal from the Administrative Court (Foskett J) ([2010] EWHC 852 (Admin)). Foskett J dismissed all of the claimant’s applications but granted permission to appeal in respect of the Secretary of State and Haringey; permission in respect of OFSTED was later granted by Stanley Burnton LJ on consideration of the papers. The Court of Appeal heard the appeal and delivered judgment on 27 May 2011 ([2011] EWCA Civ 642).