Learn Direct Ltd v Ofsted

Judicial review of an expert regulator’s inspection will succeed only where the decision was legally irrational, procedurally unfair, or affected by apparent pre-determination. Apparent pre-determination requires a fair-minded and informed observer to conclude that there was a real possibility that the decision-maker had closed its mind. A prior view, without evidence of a closed mind, is insufficient.

In assessing whether an inspection had a sufficient evidential foundation, the court asks whether the regulator took reasonable steps to inform itself. The regulator, not the court, determines the manner and intensity of its enquiries. Greater deference is owed where the decision involves the professional judgment of an expert regulator.

Learn Direct Ltd sought judicial review of an Ofsted report following a four-day inspection of its further education, traineeship and apprenticeship provision. The report rated the provider’s overall effectiveness as inadequate and its apprenticeship provision and learner outcomes as inadequate.

The claim challenged the inspection on three grounds: apparent pre-determination by the lead apprenticeship inspector; an insufficient evidential base and failure to consider relevant material; and refusal to undertake further inspection under Ofsted’s Incomplete Inspection Protocol. The central issues were whether the inspection process was procedurally unfair and whether the evidence was sufficient to support the regulator’s conclusions.

1. The claim was dismissed. The claimant failed to establish apparent pre-determination, irrationality, failure to take relevant considerations into account, or an unreasonable refusal to apply the Incomplete Inspection Protocol.
2. Apparent pre-determination requires a two-stage assessment. The court must first identify with precision all the circumstances bearing on the allegation. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the decision-maker had pre-determined the matter. The threshold is high. A decision-maker’s prior view is not, by itself, evidence of a closed mind. Evidence from the decision-maker is relevant, although it is not determinative.
3. The allegation concerned the lead apprenticeship inspector, but the claimant also had to show that any apparent pre-determination had tainted the inspection team’s decision as a whole. The evidence showed that concerns were communicated as emerging findings, that the claimant was invited to provide further material, and that the conclusions were reviewed by senior inspectors. The claimant had not sought cross-examination of the defendant’s witnesses, so conflicting factual evidence was accepted in accordance with the defendant’s written evidence.
4. The duty of enquiry required the defendant to take reasonable steps to acquaint itself with relevant information. The court was not entitled to substitute its view for that of the regulator or to intervene merely because further enquiries might have been desirable. The question was whether a rational decision-maker, in the statutory context, could have reached the decision on the information and sample available.
5. The inspection involved multiple forms of evidence, including observations, interviews, portfolio scrutiny, progress records, data and evidence from managers and employers. The evidence base was subject to quality assurance during and after the inspection. Given Ofsted’s expertise, the rationality threshold was particularly high. The figures concerning sample size did not speak for themselves and did not show that no reasonable regulator could have been satisfied with the evidence.

The report was therefore not quashed and the claim was dismissed.