The Interim Executive Board of X School v Chief Inspector of Education, Children's Services And Skills

This is a rolled-up application for judicial review of an Ofsted section 5 inspection report. The principal legal issue was whether the practice of sex segregation in a mixed voluntary aided faith school (separate streams for boys and girls from Year 5) amounted to unlawful sex discrimination under the Equality Act 2010, in particular sections 13, 23 and 85, or otherwise gave rise to a breach of the public sector equality duty in section 149. The court applied the statutory comparator/less‑favourable treatment framework derived from the Act and authorities such as Shamoon and JFS.

The judge held that although the school operated segregated provision and that such arrangements are capable in principle of amounting to a denial of a facility or a "detriment" within section 85(2), the correct legal analysis required identification of less favourable treatment of one sex compared with a materially comparable other. On a proper application of sections 13 and 23 the segregation at this mixed school produced equivalent effects for both boys and girls and therefore did not establish that one sex was treated less favourably than the other. Consequently the defendant's findings that the arrangements amounted to unlawful sex discrimination could not stand.

The claim was therefore allowed in part: the June 2016 report (including the amended August 2016 version) could not be published in its present form and the Chief Inspector was ordered to excise those parts of the report asserting a breach of the Equality Act 2010 by reason of sex segregation, to re-consider the judgments and to afford the school a fresh opportunity to comment under section 13(2)(b) of the Education Act 2005. The claim failed on the claimant's grounds alleging irrationality of the decision-maker and bias.

Background and parties: X School is a mixed voluntary aided faith school operating separate gender streams for pupils from Year 5. Following concerns about segregation raised after a visit by HMCI, Ofsted carried out an inspection on 14–15 June 2016 which was converted from a section 8 to a full section 5 inspection. The resulting June 2016 report (and a later amended version of 10 August 2016) criticised leadership and management, personal development and safeguarding, and included findings that the regime of sex segregation limited pupils' social development and amounted to a breach of equality obligations.

Nature of the application and relief sought: The Claimant (the interim executive board/responsible body) sought judicial review of the June 2016 report and related conduct. The Claimant relied on multiple grounds including irrationality/inconsistency with prior inspections, actual and apparent bias, error of law in treating segregation as unlawful sex discrimination, and reliance on a revised report containing additional reasoning. Relief sought included quashing or correction of the report and related orders.

Issues for decision:

1. Whether the practice of separating boys and girls in the mixed school amounted to less favourable treatment of one sex under the Equality Act 2010 (in particular sections 13, 23 and 85) and so unlawful discrimination;
2. whether the inspector and/or Ofsted acted irrationally or were biased in the inspection and report preparation;
3. whether the Defendant could rely on amendments to the report made after the inspection;
4. whether there was any failure to comply with the public sector equality duty or other procedural unfairness in the inspection process.

Court's reasoning and outcome on the issues: The court accepted that segregation is capable in principle of being a denial of a facility or a detriment within section 85(2), and that if segregation produced less favourable treatment of one sex compared to a materially comparable other that could constitute direct discrimination under section 13 read with section 23. However, the judge analysed the facts and statutory framework and concluded that the segregation in this school produced equivalent restrictions and opportunities for both sexes: the relevant comparison was between the two sexes as groups and the circumstances were not materially different. Because the treatment had equivalent effect on each group, it could not be characterised as one sex being treated less favourably than the other. The court therefore rejected the Defendant's legal analysis that segregation in this mixed school, absent a statutory exception, was necessarily unlawful sex discrimination.

The court also rejected the claimant's challenges alleging irrationality and bias. It held that Ofsted was entitled to change its analysis if earlier inspections had been legally or analytically defective, and that there was no real possibility of bias in the lead inspector's conduct sufficient to vitiate the inspection.

Remedy and ancillary orders: The claim was allowed on the central legal grounds (grounds 4 and 5) and dismissed on grounds 1 and 2. The Chief Inspector was ordered to re-examine the June 2016 report (including the amended version), to excise parts asserting a breach of the Equality Act 2010 by reason of sex segregation, to reconsider judgments and afford the Claimant an opportunity to comment under section 13(2)(b) of the Education Act 2005 prior to publication. The anonymity order already in place continued. The Defendant was ordered to pay 50% of the Claimant’s costs and was given permission to appeal; the Claimant was given permission to cross-appeal only on the dismissed grounds concerning irrationality and bias.

The claim was allowed in part and dismissed in part. The court held that segregation of boys and girls at the mixed faith school, as found in the inspections, did not amount to unlawful sex discrimination under sections 13, 23 and 85 of the Equality Act 2010 because the treatment produced equivalent effects for both sexes and no sex was shown to be treated less favourably than the other. Accordingly the June 2016 report (and its August 2016 amendment) could not be published in their present form: the Defendant was ordered to excise parts asserting a breach of the Equality Act 2010 on the basis of sex segregation, to re‑consider the judgments, and to give the Claimant an opportunity to comment under section 13(2)(b) of the Education Act 2005. The claimant’s complaints of irrationality and actual/apparent bias were dismissed. Costs and permission to appeal were dealt with as set out in the order.