National Association of Head Teachers & Anor, R (on the application of) v Ofsted & Anor

A public authority may consult on a preferred option, provided it retains an open mind and genuinely considers consultees’ responses. A consultation is unlawful only where the process is so unfair that something has gone clearly and radically wrong. The authority need not consult on every possible alternative, particularly where the consultation invites views on alternatives and other ideas. Relevant considerations, including well-being impacts, may be considered through the consultation process and subsequent inquiries. The court does not substitute its view for an expert public authority’s lawful policy choice or system design. The public sector equality duty is a duty of process, not outcome, and does not require particular weight to be given to one equality concern.

The claimants, a teachers’ trade union and a headteacher, sought permission to bring judicial review proceedings against Ofsted and HMCI concerning the adoption of a renewed education inspection framework. The framework introduced five-point grading scales supplemented by narrative explanations. The claimants alleged that Ofsted had predetermined the outcome before consulting, failed to consider the well-being and mental-health effects of grading, failed to make sufficient inquiry, breached Convention obligations and failed to comply with the public sector equality duty.

They challenged an alleged decision said to have been made in the consultation paper and a later decision announced in the consultation report. The central questions were whether there were arguable public-law errors and, if so, whether interim relief should restrain implementation.

1. Permission refused. None of the six grounds disclosed an arguable ground with a realistic prospect of success. Interim relief would also have been refused.
2. The consultation paper recorded a preferred proposal, not a final decision. Ofsted had invited views on the five-point scale, alternative scales and any other ideas. It therefore retained an open mind. A predisposition towards a proposal is lawful; closed-minded predetermination is not.
3. The Gunning requirements, endorsed in R (Moseley) v Haringey LBC [2014] 1 WLR 3947 (SC), were satisfied. The consultation gave sufficient information for intelligent responses, including on well-being. There was no duty to re-consult on the later independent well-being assessment or amended proposals, since there was no fundamental change in the matters consulted upon.
4. Ofsted had taken well-being into account as a relevant consideration. The consultation responses, independent assessment, equality assessments, test visits and earlier work following the death of Ruth Perry were all material. The same conclusion defeated the irrationality and Tameside grounds.
5. The Convention arguments added nothing distinct. The choice of inspection model did not itself engage the State’s preventative or operational duties under articles 2, 3 or 8 of the ECHR. The alleged failure to consider well-being therefore failed for the same reasons.
6. The public sector equality duty under section 149 of the Equality Act 2010 was a duty of process, not outcome. Ofsted’s initial and updated equality assessments addressed the statutory considerations, including possible impacts on staff with mental-health disabilities. The duty did not require particular weight or focus to be given to the claimants’ preferred concern.
7. Had interim relief been considered, the balance of convenience would have decisively favoured Ofsted. Preventing implementation would risk disruption to statutory inspection, prolong reliance on the criticised former framework and affect a substantially wider group of providers.

The claimants’ true complaint concerned the merits of a policy choice which was for Ofsted and HMCI, not the court, to make.