Durand Academy Trust, R (on the application of) v The Office for Standards In Education, Children's Services and Skills & Anor

An inspection complaints procedure must provide a rational and fair opportunity for an effective substantive challenge to a defective inspection report. Quality-assurance procedures do not justify treating the decision as effectively unimpeachable. Where the procedure prevents any substantive challenge to the conclusions of a report, its unfairness may vitiate the report itself. The existence of a public interest in prompt publication does not make the challenge academic, particularly where judicial review affords only a limited basis for challenging evaluative conclusions.

The claimant sought judicial review of an OFSTED report which judged the school inadequate and recommended special measures under section 44(1) of the Education Act 2005. The claim challenged both the inspection and OFSTED’s complaints procedures. The procedures permitted informal and procedural complaints but excluded substantive reconsideration of judgments that a school had serious weaknesses or required special measures. An interim injunction had prevented publication of the report pending a rolled-up hearing. The central issues were whether the complaints procedure was fair and whether that unfairness affected the validity of the report.

1. Claim allowed and report quashed. The challenge to the complaints procedure was not academic. The report had not been published, and the limited scope of a public-law challenge made an effective internal process materially important.
2. A complaints procedure which denies an aggrieved party any effective substantive challenge to conclusions considered defective, on the assumption that the decision-maker’s own processes make error impossible, is not rational or fair. The existence of quality-assurance checks before publication did not cure that defect.
3. The exclusion from substantive review of judgments that a school had serious weaknesses or required special measures was particularly significant. The seriousness of the judgment could not rationally justify reducing the opportunity to challenge its substance.
4. The court relied on The Old Co-operative Day Nursery Ltd v OFSTED [2016] EWHC 1126 (Admin) as an example of an OFSTED inspector reaching an irrational conclusion after failing to take relevant history and previous reports into account. That example reinforced the need for a fair means of challenging inspection conclusions.
5. There was no need to determine whether the report’s evaluative conclusions were themselves unreasonable. The court expressed concern that the evidence might not justify an inadequate or special-measures judgment, but reached no concluded view on that issue. The report was quashed because the complaints procedure was unfair.

This was a first-instance judicial review. An interim injunction initially granted by Holman J restrained publication of the report. McGowan J later declined to lift the injunction and directed a rolled-up hearing, which resulted in the present judgment.