Ofsted v The Secretary of State for Education

Procedural fairness is assessed by considering the decision-making process as a whole. An individual stage need not provide every form of challenge where other stages supply adequate safeguards.

A complaints procedure may therefore treat the most seriously affected persons differently where additional protections apply before the decision is finalised. Fairness does not require equivalent procedures for every category. The restricted scope of judicial review of the substantive decision does not alter the separate assessment of procedural fairness.

Ofsted inspected an academy school and reported that it was inadequate and required special measures under section 44(1) of the Education Act 2005. The academy trust sought judicial review, alleging irrationality and procedural unfairness.

The Administrative Court, in [2017] EWHC 2097 (Admin), held that Ofsted's complaints procedure was unfair because it provided no effective means of challenging the report's substantive conclusions. It quashed the report without deciding the irrationality challenge.

Ofsted appealed. The central issue was whether the restriction on reconsidering inspection judgments at the second stage of the complaints procedure made the overall inspection, evaluation and reporting process unfair.

1. Appeal allowed. The Administrative Court had erred by concentrating exclusively on the complaints procedure. Procedural fairness had to be assessed by examining the entire inspection, evaluation and reporting process. The overall process for schools provisionally judged to have serious weaknesses or to require special measures was fair: per Hamblen LJ, with whom Green LJ and the Master of the Rolls agreed.

2. The process contained safeguards at successive stages. Concerns could be raised during the inspection and at final feedback. A school could make unrestricted comments, including substantive challenges to judgments, on the draft report. Serious cases received extended quality assurance, evidence-based review by inspectors independent of the inspection team, senior sign-off and confirmation by the Chief Inspector or a regional director.

3. Section 13(1) and (2) of the Education Act 2005 required the Chief Inspector to form the relevant opinion and to consider timely comments on the draft report. These statutory protections operated with the additional procedures in Ofsted's handbook. Challenges submitted before finalisation were considered through moderation even though the second-stage complaints process did not reconsider the inspection judgments.

4. The difference between the procedure for serious cases and that for other schools did not establish unfairness. The most serious cases received stronger protections before finalisation, whereas the broader second-stage process available in other cases generally operated after publication. Fairness does not require equivalence.

5. The availability and scope of a substantive irrationality challenge on judicial review were immaterial to whether the administrative procedure itself was fair. The two questions were legally distinct.

6. The statutory framework did not exclude supplementary common-law or non-statutory safeguards. It was neither detailed nor self-contained. The authorities concerning judicial supplementation of prescribed statutory procedures were distinguishable.

7. The Master of the Rolls agreed that the combination of statutory and non-statutory safeguards justified the different treatment. He regarded the third-stage review and arguments about delay in publication as unnecessary to the result. The report had therefore been wrongly quashed. Consequential questions concerning publication and remission remained to be addressed.

1. Court of Appeal (Civil Division): In [2018] EWCA Civ 2813 , unanimously allowed Ofsted's appeal and held that the overall inspection, evaluation and reporting process was procedurally fair.
2. Administrative Court: In [2017] EWHC 2097 (Admin) , held that the absence of an effective substantive challenge under Ofsted's complaints procedure rendered that procedure unfair, and quashed the inspection report. The court did not determine the irrationality challenge.