Shoesmith, R (on the application of) v OFSTED & Ors

Procedural fairness is contextual, but urgency and public concern do not remove an office-holder’s right to answer allegations that may lead to removal. Accountability entails an obligation to explain; its corollary is a proper opportunity to do so.

A court may withhold relief for procedural unfairness only where the decision would inevitably have been the same. Judicial review remains available for dismissal from a statutorily underpinned public office when an employment remedy is not equally convenient and effective. A public authority cannot safely rely on an earlier executive act after being clearly warned, on undisputed facts, that it is unlawful.

Following the death of a child for whom Haringey had provided child-protection services, the Secretary of State requested an urgent joint area review under the Children Act 2004. OFSTED reported serious systemic and managerial failings. The Secretary of State then directed Haringey to appoint replacement Directors of Children’s Services, without first permitting the incumbent director to answer personal allegations. Haringey summarily dismissed her without notice or compensation.

Foskett J dismissed the judicial-review claims in [2010] EWHC 852 (Admin). He held that OFSTED and the Secretary of State had satisfied the applicable requirements of fairness. Although Haringey’s decision was amenable to judicial review, he deferred to proceedings in the Employment Tribunal.

The appeal concerned the fairness and statutory validity of OFSTED’s review, the Secretary of State’s directions and Haringey’s dismissal process, together with the adequacy of the employment remedy and the effect on Haringey of the directions’ unlawfulness.

1. Disposition. The appeal against OFSTED was dismissed. The appeals against the Secretary of State and Haringey were allowed. The court declared the directions unlawful insofar as they purported to remove the appellant from statutory office and held her dismissal unlawful. Further relief, including compensation, was remitted to the Administrative Court following a six-week stay for negotiation or mediation.
2. OFSTED. The urgent inspection was a review under section 20(1)(b) of the Children Act 2004, although the published five-month arrangements were adapted. Section 20(5) required compliance with arrangements, not necessarily the published arrangements in their entirety. The consultation among the participating inspectorates satisfied section 20(6). The review examined systems rather than individual culpability. Common-law fairness required a bona fide and open-minded investigation and disclosure of the gist of material concerns, but not a formal opportunity to answer personalised charges. OFSTED met that standard.
3. Secretary of State. The directions under section 497A(4B) of the Education Act 1996 were procedurally unfair. The protection of vulnerable children and a degree of urgency affected the content of fairness, but did not justify denying the statutory office-holder an opportunity to answer allegations about her personal responsibility. The Secretary of State relied on personalised criticisms which had never been put to her. Ultimate accountability did not displace elementary fairness: accountability required an explanation, and therefore a proper opportunity to provide one. Nor was it inevitable that a fair procedure would have produced the same decision.
4. Haringey. The office of Director of Children’s Services was created, required and defined by statute. Its dismissal therefore possessed sufficient public-law character to be amenable to judicial review. The Employment Tribunal was not an equally convenient and effective remedy, particularly because it could not provide the full public-law and financial relief claimed and because the challenges to the three authorities were closely connected.
5. Haringey’s process displayed apparent predetermination that the appellant should be dismissed summarily without compensation. It proceeded with unnecessary haste, inadequately particularised its case and did not cure the initial defects on appeal. The dismissal was therefore procedurally unfair.
6. Effect of the unlawful direction. Maurice Kay LJ considered that Haringey could initially act in good faith on the direction’s apparent validity. The Master of the Rolls and Stanley Burnton LJ held, however, that the dismissal was also unlawful and void because Haringey proceeded after receiving a clear, legally advised challenge to the direction on the ground ultimately upheld. There was no genuine urgency, and Haringey could have required a prompt challenge or protected itself by contractual notice.

1. Court of Appeal (Civil Division): In [2011] EWCA Civ 642, dismissed the appeal concerning OFSTED, allowed the appeals concerning the Secretary of State and Haringey, granted declaratory relief and remitted the question of further relief.
2. Administrative Court: Foskett J dismissed all the judicial-review applications in [2010] EWHC 852 (Admin). He held that OFSTED and the Secretary of State had acted lawfully. He found Haringey’s dismissal amenable to judicial review but deferred to the alternative remedy in the Employment Tribunal.