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Challenging Ofsted

Fri 01 Sep 2017

In a surprising twist to the long running saga‎ of Durand Academy the High Court ruled that the damning Ofsted report, following an inspection late last year, should be quashed.

In an application for judicial review, the Academy asked the Court to consider whether Ofsted's findings following inspection were so manifestly wrong and at odds with reality that they had been unreasonable in their findings. The Academy asserted that the inspectors had been improperly influenced by the ongoing disagreements with the ESFA and that their evaluations had been unfair and arbitrary. Whilst the Court could not judge the findings themselves, Mr Justice McKenna was persuaded that Ofsted's approach to complaints and any challenge to an inspection's findings was so flawed that it vitiated the report, commenting:

‎"To my mind, a complaints process which effectively says there is no need to permit an aggrieved party to pursue a substantive challenge... because the decision maker's processes are so effective that the decision will always in effect be unimpeachable is not a rational or fair process."

So far no appeal has been made against the judgement. There is little incentive on the part of Ofsted given the ESFA have confirmed that the notice to terminate Durand's funding agreement still stands, with the Academies run by the Trust expected to be rebokered as a consequence. But it begs the question what the impact of this judgement will be on other inspections and reports flowing from them. Surely all reports are now vulnerable and certainly open to challenge given ‎the flawed complaints process. We would expect Ofsted to review it's processes and undertake consultation on its approach to complaints and remedies. Ultimate reference to the Secretary of State may be an option but speaking from experience, this too can feel like an arbitrary and opaque process at times.

Schools can also take something from this judgement when considering their own processes for dealing with complaints. A complaints policy must contemplate the possibility (and the process by which it is achieved) that a decision could be overturned. Whilst schools will be used to handling parental complaints (though hopefully not too often!) and appeals against admissions and exclusions, we are seeing an increasing incidence of complaints from unexpected quarters, including disgruntled ex members of the governing body. Such complaints tend to be difficult to address and those complaining are quick to share grumbles with regulatory bodies before even the school has had chance to deal with it. This can have an impact on any growth plans and possibly lead to an earlier Ofsted inspection. Careful handling from the outset is crucial.

Those following the Durand saga might also be interested in the final comments made by the judge. Although he provided no official comment on Ofsted's findings, he did seem to have some sympathy for the view put forward that the Academy had "expanded too quickly, has been too ambitious and whose leadership and management systems have failed to keep up with the pace of change". A view which has been expressed of other academy trusts and arguably could be said of the academy programme as a whole.

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