OFSTED complaints procedure found to be unfair – what does it mean?

On 8 February 2017, an OFSTED report found that Durand Academy was inadequate and should be placed in special measures. Durand Academy made a claim for judicial review to strike out the report. There were two key grounds to the claim:

• that the report was “so strikingly at odds with the reality of how the School performs and so vitiated by unfair and arbitrary evaluations, factual errors and what is described as a relentless accentuation of the negative and elimination of the positive” so as to make it unlawful. 
• a challenge in respect of the complaints procedure.

In respect of the complaints process, the Judge concluded that the complaints process was not rational because OFSTED’s process “effectively says there is no need to permit an aggrieved party to pursue a substantive challenge to the conclusions of a report…because the decision maker’s processes are so effective that the decision will always in effect be unimpeachable.”  Having reached this conclusion, the Judge quashed the report and did not need to address the other arguments.

Effectively, this means that because of the complaints process alone, any OFSTED report may be vulnerable to a judicial review challenge. While OFSTED have announced that they intend to appeal the decision, should any appeal not succeed, OFSTED will need to rapidly amend their complaints process which will have to allow some opportunity to substantively challenge the conclusions of any report.

If you would like more information on this topic, please contact our specialist Education Law team.