The Old Co-Operative Day Nursery Ltd v HM Chief Inspector of Education, Children's Services and Skills (Ofsted)

An inspection regulator may investigate whether statutory requirements are being met, but cannot investigate or adjudicate upon the merits of a complaint where it has no such statutory power. Findings must be supported by the evidence and inspectors must comply with their own material guidance, including the requirement to consider the provider’s history. A failure to do so may render an inspection irrational. Where unlawful reasoning infects only part of a wider report, the court may grant proportionate relief directed to the affected report or document. A claim for reputational damages under Article 8 requires proof of harm and sufficient seriousness.

The claimant nursery sought judicial review of an Ofsted inspection following a complaint that a child had entered the road while being escorted to school. It challenged the inspection process, the resulting inadequate rating, a notice to improve, an Outcome Summary published online, and the handling of its complaints. Permission was granted on limited grounds concerning the investigation and adjudication of the complaint, fairness and rationality, and damages arising from publication.

The central issues were whether Ofsted had acted beyond its powers, whether the inspection and report were irrational or procedurally unfair, and whether the claimant could recover reputational damages under Article 8.

1. Investigation and adjudication. The Outcome Summary showed that Ofsted had investigated and adjudicated upon the complaint, finding that the claimant had compromised children’s safety. The parties accepted that Ofsted had no legislative power or duty to determine whether the complaint was proved. The Outcome Summary was therefore unlawful and should never have been produced or published.
2. Unsupported findings. The findings that the child had been pushed into the road and that only two staff members had accompanied the children were not open to the inspector. The evidence supported neither conclusion. The inspector had disregarded contemporaneous records and the claimant’s account in favour of an inadequate inference based principally on the number of high-visibility vests.
3. History of the provision. Ofsted’s guidance required inspectors to take account of the history of the provision. The inspector considered only earlier recommendations and ignored the previous inspection and wider history when making the critical judgements. That failure was fundamental. The extreme sequence of ratings, together with deficiencies identified in Ofsted’s own review, rendered the report irrational.
4. Extent of unlawfulness and relief. The unlawful investigation infected the Outcome Summary and parts of the report, but not every finding in the wider report. The court ordered that the Outcome Summary and the third published report be removed from the website and not republished. No order was made concerning the notice to improve because it had been complied with and caused no continuing adverse consequences.
5. Article 8 damages. The claim for reputational damages was refused. There was no evidence of reputational harm, no reasonable expectation of damages in light of section 151 of the Education and Inspections Act 2006, and the publication did not reach the required level of seriousness identified in Axel Springer AG v Germany [2012] EMLR 15.

First-instance judicial review proceedings. Permission was initially refused on the papers, but Cranston J granted limited permission at a renewal hearing on 5 March 2015. The High Court subsequently upheld parts of the claim and granted relief concerning the Outcome Summary and published report.