R. (on the application of the Governing Body of X) v Ofsted [2020] EWCA Civ.594

May 14, 2020

By Brynmor Adams and Katherine Traynor

Introduction

In R. (on the application of the Governing Body of X) v Ofsted[1] the Court of Appeal considered the circumstances in which the Administrative Court will restrain the publication of a regulatory report on the application of a party that wishes to challenge the findings of that report in judicial review proceedings. The Court endorsed the principles established by a series of High Court decisions and reiterated that the circumstances in which such relief will be granted are very limited indeed.

The appeal stemmed from the dismissal by Mr Justice Julian Knowles in January this year of an application by a school (“the School”) for an interim injunction to prevent the publication of an inspection report (“the Report”) prepared by the Office for Standards in Education, Children’s Services and Skills (“Ofsted”). At the Court’s suggestion, it was agreed that the Court of Appeal would also sit as a Divisional Court and decide the application for permission to apply for judicial review – which had not previously been determined.

Judicial review proceedings are the supervisory jurisdiction by which the High Court reviews the lawfulness of decisions and actions of public bodies. In this case the challenge was to the lawfulness of the Report following Ofsted’s inspection of the School. The School sought to quash the Report and to obtain an order requiring Ofsted to undertake a new one. Judicial review proceedings involve a 2-stage process. First, anyone seeking to challenge a decision must obtain the Court’s permission to bring a judicial review claim. This is done in the first instance by a paper application, which if refused can be reconsidered at an oral hearing. In circumstances where permission is granted there is then a hearing of the substantive judicial review challenge.

The Court of Appeal dismissed the state-funded secondary school’s appeal against the order made, which had refused an application for interim relief in the form of an injunction prohibiting the publication of the Report. The Court of Appeal also refused the application for permission to apply for judicial review.

The Statutory Background 

Ofsted’s common inspection framework applies to its inspections of maintained schools, and academics under section 5 of the Education Act 2005 (‘the 2005 Act”). Section 5 provides:

Duty to inspect certain schools at prescribed intervals

  1. It is the duty of the Chief Inspector –

    a. to inspect under this section every school in England to which this section applies, at such intervals as may be prescribed, and
    b. when the inspection has been completed, to make a report of the inspection in writing.”[2]

In undertaking an inspection under section 5, the Chief Inspector pursuant to section 7 must have regard include any views expressed to him by the head teacher, the governing body or proprietor of the school, members of staff, registered pupils, and the registered parents.[3] A further duty to inspect is imposed by Section 8(1) of the 2005 Act –[4] in circumstances where the Secretary of State requests one – and, Section 8(2),[5] where not required to do so by Section 5 or 8(1).

By Section 11 of the 2005 Act, Ofsted may arrange for the publication of the report in such a manner as is considered appropriate.[6] In circumstances wherein a school is judged to require improvement or to be inadequate, conversely, will bear the consequence not only of more frequent full inspections, but of the report to that effect being in the public domain.

A further duty is imposed by Section 13 of the 2005 Act, which provides that if, following the inspection, Ofsted is of the opinion that either special measures or significant improvements are required, the Chief Inspector is under a duty to send a draft of the report to the governing body of the school, and consider any comments on the draft that are made within 5 workings before finalising the report.[7] Having done this, if Ofsted remain of the opinion that the school requires either special measures or significant improvement, then the Chief Inspector is under a duty to state his opinion in the report and to give notice of his decision in writing “without delay” to the Secretary of State and local authority.[8]

Ofsted are also under a duty to ensure a copy of the final report is sent “without delay” to the appropriate authority (i.e. the governing or executive body) for the school.[9] A duty then falls on the appropriate authority to take the steps specified in section 14(4), which provides:

  • “4. The appropriate authority must – [10]#

    a. make a copy of any report sent to the authority under subsection (1) available for inspection by members of the public at such times and at such place as may be reasonable,
    b. provide a copy of the report, free of charge or in prescribed cases on payment of such fee as they think fit (not exceeding the cost of supply), to any person who asks for one, and
    c. take such steps as are reasonably practicable to secure that every registered parent of a registered pupil at the school receives a copy of the report within such period following receipt of the report by the authority as may be prescribed.”[11]

The criteria for judging whether a school requires special measures or significant improvement are set out in section 44 of the 2005 Act:

  • Categories of schools causing concern
  1. For the purposes of this Part, special measures are required to be taken in relation to a school if—

    a. the school is failing to give its pupils an acceptable standard of education, and
    b. the persons responsible for leading, managing or governing the school are not demonstrating the capacity to secure the necessary improvement in the school.
    c. For the purposes of this Part, a school requires significant improvement if, although not falling within subsection (1), it is performing significantly less well than it might in all the circumstances reasonably be expected to perform.”[12]

The consequences of finding that a school requires special measures or significant improvement include that a school becomes eligible for intervention under Part 4 of the Education and Interventions Act 2006 and that an academy order, under section 4 of the Academies Act 2010, may be made.

The Basic Facts

In 2010 the School had undergone a full inspection by Ofsted, pursuant to section 5 of the 2005 Act, wherein Ofsted graded its performance as Good. A further inspection pursuant to section 8 was carried out in 2016; the School continued to be graded as ‘Good’.

In October 2019, the School was the subject of an inspection by Ofsted, with which these proceedings were concerned.

The School was provided with a draft copy of the Report, which graded the School as ‘Inadequate’. The Report was critical of the standards of the school and the School was ‘surprised’ by the Grades assigned to it by Ofsted. Accordingly, the School submitted their concerns to the lead inspector, complaining that the inspection process had been unsatisfactory and contested the “inadequate” grade. Ofsted duly replied, and having considered the Schools comments, issued the final version of the report. The “Inadequate” grade remained.

The School brought judicial review proceedings against Ofsted on 10 December 2019, on the following basis:

  • Irrationality – alleging an absence of evidential basis for the findings in the report; and,
  • Procedural Unfairness – suggesting the Report was not the product of an independent, merits-based evaluation and was biased.

Accordingly, the School also applied for an interim injunction, asking the Court to prohibit publication of the Report, pending the final determination of is claim for judicial review.

At a hearing on 18 December 2019, Julian Knowles J, reserved judgment on the application, grating an interim anonymity order under CPR r.39.2(4), to protect the School’s identity until further order.

On 23 January 2020, Julian Knowles J., dismissed the application for an interim injunction on the basis that the School’s claim for judicial review did not disclose a strong enough case, and that the matters on which it relied in seeking an order to prevent the publication of the report did not, exceptionally, justify the granting of interim relief.

The Court sought permission to appeal to the Court of Appeal. Nicola Davies L.J. made an order prohibiting publication of the Report, and preserved the anonymity of the School, until the appeal had been determined. On 13 February 2020, the School was given permission to appeal against the judge’s order.

 

The Issues

In relation to the application to apply for judicial review, the CoA had to decide whether the School had a properly arguable case that:

  • Ofsted’s report was irrational because there was no reliable evidence to support the finding on which its conclusions were based (ground 1); and,
  • The inspection was procedurally unfair because it did not involve an independent “merits-based” evaluation (ground 2).

The appeal against the judge’s refusal of interim relief – which came second – saw two issue arises from the appellant’s notice, and one from the respondent’s notice. These issues were:

  • Whether the judge erred in concluding that the School’s claim for judicial review does not disclose “a strong prima facie case”;
  • Whether he was wrong to find the matters relied on by the School did not pass the threshold for interim relief; and,
  • Whether section 12(3) of the Human Rights Act 1998 applied in this case, so that the judge’s decision could be upheld on the additional basis that the grant of interim relief would affect the rights of members of the public – specifically pupils and parents – to receive information which Ofsted was under a statutory duty to publish.

 –

Court of Appeal Decision

Lord Justice Lindblom, with whom Lord Justice Henderson and Chancellor of the High Court, Lord Justice Vos agreed, refused the School permission to apply for judicial review.

Lord Justice Lindblom noted, that an allegation of irrationality was never easy to establish, stating:

“In the context of a school inspection, undertaken within a statutory framework by inspectors familiar with the task, and involving issues on which the exercise of evaluative judgment is an essential part of the process, it is likely to be particularly difficult” [43]

The Court of Appeal noted that challenges as to the weight a decision-maker has attached to a particular relevant consideration is not a sufficient basis for a judicial review claim:

“A central theme in these proceedings, reiterated in different forms with different examples, is the grievance that the inspectors placed too much or too little weight on certain evidence. That grievance, without more, has no traction in a claim for judicial review. The weight attached to a particular document – if available and relevant – was a matter for the inspectors, subject only to the traditional principles of public law. Disagreement on the appropriate weight is never, on its own, a proper basis for a public law challenge.” [44]

He also added, as had recently been held by the Court of Appeal in R. (on the application of Durand Academy Trust) v Office for Standards in Education, Children’s Services and Skills [2018] EWCA Civ 2813; [2019] E.L.R. 100, Ofsted’s inspection, evaluation and reporting process, and its procedure for handling complaints, were inherently procedurally fair.[13]

Accordingly, he held that the School had not shown it was arguable that the conclusions in the Report were irrational, nor had they demonstrated that the inspection itself was procedurally unfair.

On the issue of interim relief – which given the conclusion on the application for permission were purely academic – the Court of Appeal provided clarification of the applicable legal principles.

In addressing the issue of interim relief, Lord Justice Lindblom said:

“Unsurprisingly, and in my view correctly, the case law at first instance has been consistent in emphasizing the need for a suitably demanding approach to applications for an interim injunction to prevent the publication of an Ofsted report. It is important to recognize the scope of Ofsted’s functions under sections 5, 13 and 14 of the 2005 Act, including their powers and duties to secure the timely publication and dissemination of their inspection reports. The inherent purpose of this part of the statutory regime is to promote the public interest in parents, pupils and local communities knowing, without delay, the results of school inspections, and to uphold the rights of those entitled to receive that information. The considerations that would warrant impeding these functions would have to be very powerful.”

The Court of Appeal concluded that there was indeed a “high hurdle” for an application to cross in order to secure interim relief in a public law such as this.  However, the existence of a strong prima facie case or exceptional circumstances were not “gateways”, which must be satisfied in all cases. Rather they were factors to consider as part of the Court’s assessment of the balance of convenience. Viewed in the round, however, a “very powerful” case would be required to justify the grant of an interim injunction.

The Court of Appeal reminded itself that the grant of interim relief in an exercise of discretion with which the appeal Court should not lightly interfere. An appeal court would only interfere with the lower court’s conclusions if they are irrational, or otherwise plainly incorrect in law. The exercise of discretion by a judge should be afforded appropriate deference by the appellate court [80].

Lord Justice Lindblom, held that Julian Knowles J’s approach to the application for interim relief in this case “was, in substance, fully consistent with the principles acknowledged by Chamberlain J. in R. (on the application of Barking and Dagenham College) v Office for Students [2019] EWHC 2667 (Admin) and was correct.” [85]

The Lord Justice added: “In determining the application for interim relief, the judge took into account the strength of the claim, not as a ‘gateway’ test, but as a factor legitimately to be weighed in the balance of considerations. This is plain from his statement (in paragraph 87 of his judgment) that he had not been persuaded that ‘the merits of [the school’s] case’ were ‘sufficiently strong to weigh in favour of granting the relief sought” [88].

“His conclusion overall was clearly one of balance. In his view, however strong the school’s case might be, there were ‘not … any sufficiently compelling reasons to restrain publication’ of the report (paragraph 92). That conclusion was, I think, amply well founded.” [88]

Summary

Although subject to extensive High Court authority, the applicable test for interim relief restraining a publication by a regulator had not previously been considered by the Court of Appeal. The Court took this opportunity to affirm and clarify the principles developed by the High Court over a number of years.

Ultimately the Administrative Court is tasked with applying the familiar American Cyanamid principles to an application for interim relief. In judicial review proceedings the critical question will usually be the balance of convenience. Where a claimant seeks to prohibit publication of a report by a regulator, “very powerful” reasons will be required to tip the balance of conveyance in favour of the grant of an injunction.

Cases where a school or education provider is able to obtain an injunction restricting the publication of an Ofsted report are likely to be extremely rare. One such exceptional case was R. (on the application of the Interim Executive Board of X) v Ofsted[14], where the Court of Appeal endorsed Chamberlain J’s characterisation of the facts as involving “a constellation of unusual factors”. Unless such truly exceptional circumstances exist, relief is likely to be refused. Reputational damage to the school, its staff or pupils alone will not suffice.

Of course, even if interim relief is not available, it will still be open to an aggrieved school to challenge a report by way of a claim for judicial review. Schools will however need to remember that such a challenge is likely to happen in full public view, which may increase the publicity that the adverse report receives. This case moreover highlights the limited scope for a successful judicial review challenge to the substance of an Ofsted report. The Court will not substitute its judgment for that of expert inspectors however strongly a school’s leadership and teachers might disagree with that assessment. In order for a claim for judicial review to have any prospect of success, a school would have to identify a truly irrationality conclusion, ignorance of a relevance consideration, bias or another clear public law error.

Brynmor Adams of Exchange Chambers acted for Ofsted in the Administrative Court and, led by Sir James Eadie Q.C. in the Court of Appeal. Tom Longstaff of Exchange Chambers acted for the School in the Administrative Court and was led by Mark Cawson Q.C. of Exchange Chambers in the Court of Appeal.

[1] [2020] EWCA (Civ) 594.

[2] Section 5, the Education Act 2005

[3] Section 7, the Education Act 2005.

[4] Section 8(1), the Education Act 2005.

[5] Section 8(2), the Education Act 2005.

[6] Section 11, the Education Act 2005.

[7] The period prescribed by regulation 5 of the Education (School Inspection) (England) Regulations 2005.

[8] Section 13(3), the Education Act 2005.

[9] Section 14(1) and (2), the Education Act 2005.

[10] Section 14(4), the Education Act 2005.

[11] The period prescribed under subsection (4)(c) is five working days (regulation 6 of the Education (School Inspection) (England) Regulations 2005).

[12] Section 44, the Education Act 2005.

[13] [2018] EWCA Civ 2813; [2019] E.L.R. 100 [63], as cited at [43].

[14] [2016] EWHC 2004 (Admin)