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Education briefing - Challenging times for the new Ofsted inspection regime

  • United Kingdom
  • Education - Briefings

09-01-2020

The new regime

One of the most significant changes to the academies and further education sectors in 2019 was the introduction of the Education Inspection Framework (EIF) which Ofsted implemented in September 2019.

The stated aim of this change was to shift the focus of inspections away from data -particularly internal progress data - and to put more emphasis on the quality of education and care as a whole. To put the curriculum at the heart of the new framework and, said Ofsted, to reach judgements which are underpinned by consistent researched criteria.

It’s early days for this new framework. Thus far reports written under the new regime appear to put a strong focus on curriculum, ethos and quality of education – as Ofsted said was its intention in introducing the EIF. There is also however some anecdotal evidence that the “streamlined” approach which Ofsted seeks under this new regime is translating into reports which contain very limited detail or examples to explain the conclusions and judgments which the inspectors have reached.

The number of reports which have so far emerged is limited. We can expect 2020 to be the year when the impact of the new inspection regime becomes real for a lot of institutions.

What remains the same however, is the critical implications for any institution of the inspection report and gradings awarded. Adverse judgements can have a significant impact on hard won reputations as well damaging relations with funding bodies and regulators.

The new regime - and the way in which it is playing out in practice - also therefore begs the question as to the options for academies and further education providers if they are unhappy with the outcome of an inspection process.

Here’s a reminder of 5 key points about those options:

1. First complain

The first port of call for any institution, which is dissatisfied with the process, is the Ofsted complaints procedure. The complaints procedure should be followed before other routes to legal challenge are actively explored.

Institutions which want to complain about the way an inspection has been conducted must do so via an online process within 10 working days of either raising a concern or (if later) publication of the inspection report. Usually, however, if an institution is considering bringing a complaint, it should pursue that at the earliest opportunity. It will have prior warning of the outcome following the grading meeting which will be confirmed in the draft report. The institution will be invited by Ofsted to comment on the factual accuracy of the draft report, which offers an initial opportunity to raise concerns about the drafting of the report and the judgments reached.

If the school or college is concerned about the reputational damage which could follow the publication of unfavourable findings, it will be prudent to make an early complaint to try and prompt a re-think by Ofsted before the report gets into the public domain. Ofsted’s complaints procedure makes it clear that a complaint will not, save in unspecified exceptional circumstances, lead to any delay in publication so institutions will need to be mindful to the timescales for publication if it wants to make a more formal challenge.

As we explain below its not easy to stop Ofsted publishing an adverse report no matter how vigorous the complaint or challenge. Whatever else though, waiting until publication before the academy or college initiates the complaints process will definitely mean the horse has bolted before its gets a chance to set the record straight.

2. Then challenge (but don’t leave it too late)

If all else fails though - and in circumstances where the implications of the inspection findings warrant it - the institution will also have the option to consider challenging Ofsted’s conclusions by means of judicial review. Any judicial review must be brought “promptly” and in any event within 3 months of the date of the Ofsted decision in question.

Those time constraints often mean that there is a practical dilemma as to whether to await the outcome of the complaints procedure before deciding whether judicial review is an option which the institution wants to pursue.

That was an issue which was considered in the case of St George’s University of London v Mazz Rafique-Aldawery [2018] EWCA Civ 252- albeit in the different, but analogous, circumstances of a complaint to the Office of the Independent Adjudicator. The issue which arose in that case was whether a challenger could wait beyond the 3 month deadline to learn the outcome of a complaints process before initiating judicial review proceedings. In the St George’s case the Court of Appeal expressed the view that it was open to a challenger (in that case a student) to write to the decision maker setting out the potential grounds for judicial review challenge if the complaints process did not achieve its desired outcome. The decision maker could then be invited to agree that it would not take a point on delay if those judicial review proceedings were deferred until the outcome of the complaints process was known.

Given the obvious parallels, the St George’s case ought to provide a basis to defer the commencement of judicial review proceeding until the Ofsted complaints procedure is exhausted provided the reason for the delay has been appropriately explained and agreed in correspondence.

Having said that, given the very serious consequences of being found to have failed to commence proceedings within the appropriate timescales, the safest course of action will almost always be to avoid the debate and simply issue proceedings within the time limit. It may then be possible to agree with Ofsted (and the court) that the proceedings should be put on hold pending the outcome of the complaints process.

3. Challenge can take a number of forms

The judicial review process is the means by which the exercise of public law decision making powers are supervised by the courts. Meaning in this case that the lawfulness of Ofsted’s decisions about the inspection process - and the grade it awards - can be reviewed and if necessary overturned. The most common grounds for such a challenge are likely to centre on one or more of the following issues:

• In exercising it regulatory functions, Ofsted must not stray beyond the scope of the legal powers and statutory framework conferred upon it. In the very political landscape in which Ofsted also operates, however, exactly where those boundaries lie can sometime be unclear.

• So too must it ensure it makes decisions which are consistent with wider legal powers, policies and principles. For instance the Inspection Handbooks which have been published setting out Ofsted’s approach for each category of institution covered by the new regime. Likewise legislation relating to equality and diversity and safeguarding policies.

• Like any other body exercising public law functions, Ofsted must act in a way which is consistent with the broader legal principles of fairness, transparency and consistency.

• In reaching decisions it must act “rationally”- which means taking into account all relevant matters and not factoring in irrelevant considerations. Where the focus of challenge relates to the judgments which Ofsted has reached on the basis of the school’s/college’s data and other evidence, “rationality” is likely to become a very fact sensitive and complex issue, involving a detailed analysis of what has and has not been taken into account - and given what weight.

• These principles of following process and procedure and acting fairly, transparently and consistently also apply to the process Ofsted follows in reaching its decisions; as well as the substantive decisions which it makes.

Whichever grounds are pursued, judicial review proceedings involve a 2 stage process. Anyone challenging a decision must first obtain the court’s permission to bring a judicial review claim; either by a paper application or, if unsuccessful (and the case is not deemed to be totally without merit), at an oral hearing. Provided permission is granted there is then a hearing of the substantive judicial review challenge.

4. But be clear (and careful) what you wish for

Any institution considering challenging the decisions of Ofsted should also pause for thought as to the outcome it can hope to achieve by legal challenge. If the argument is that Ofsted has strayed beyond the scope of its legal powers then, logically, a successful outcome should overturn that decision. In circumstances of a very poor grading, that could be a critical outcome.

If the challenge centres on process, however, then a successful challenge would, at most, require Ofsted to go back and correct those mistakes. It does not therefore remove the possibility that, having done so, Ofsted could come to precisely the same conclusion. Albeit that the challenge process itself may have enabled an institution to get broader messages across which result in Ofsted perceiving matters differently second time around.

Before embarking on expensive judicial review proceedings any institution would be well advised to consider what outcome is ultimately achievable in the particular circumstances and whether that supports its broader strategic objectives.

5. It’s hard - but not impossible - to avoid the spotlight of publicity in the meantime

One of the practical considerations for an institution considering legal challenge is the fact that Ofsted is likely to want to publish the adverse finding immediately and notwithstanding that its decision is being litigated. The issue of whether or not it should be able to do that, despite pending judicial review proceedings has been tested on a number of occasions.

As a matter of first principle, the courts have decided that Ofsted should usually be able to publish. The thinking being that, as regulator, its first duty is to be transparent about the conclusions it has come to. If subsequently it is decided those decisions were wrong then the decision to overturn will also be a matter of public record.

That principle is, however, not without its exceptions. The courts have been willing to grant an injunction against publication if something very serious can be shown - at the very outset of proceedings - to have gone wrong. So for instance in the case of R (Interim Executive Board of X School) v Ofsted [2017] EMLR 5 the court ordered an injunction against publication pending the judicial review challenge because of what it described as “a constellation of unusual factors” including significant discrepancies between the challenged report and previous inspections and what the court described as “clear evidence of antagonistic behaviour by inspectors”. These factors led the court to conclude that the inspection had become ”infected by a pre-determined mindset or prejudice that would be quite alien to the proper and independent inspection process upon which the education system and the public at large rightly depends”.

Similarly if there is a particular feature of an academy or college’s case which renders the implications of publication unusually detrimental that might also be a reason to persuade a court to prevent publication until the judicial review case has been heard.

In 2020 we can expect the practical impact of the new Ofsted regime to gather momentum as the new inspection framework is applied to an increasing number of institutions. As always there will be challenges and opportunity in equal measure.

The priority of any institution will always be to seek to achieve the right outcome through dialogue with Ofsted. If all else fails however it is worth remembering that, in the world of regulation, Ofsted is not the only party which has the right to challenge.

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