Ofsted Complaints Procedure Decision

When a High Court judge said in relation to a case against Ofsted ‘To my mind, a complaints procedure which effectively says there is no need to permit an aggrieved person to pursue a substantive challenge to the conclusions of a report it considers defective because the decision maker’s processes are so effective that the decision will always be unimpeachable is not a rational or a fair process’, it may have raised a muffled cheer in many quarters. If so the Court of Appeal, ruling at the end of last year in the case of Ofsted v Durand Academy has silenced those cheers.

The case arose from the judgement by Ofsted that Durand was ‘inadequate’ and recommended for special measures. Durand’s response was to to submit to Ofsted a Factual Accuracy Check 31 pages long; to submit a complaint which included allegations of ‘government interference’, institutional racism’ and lack of evidence to support the criticisms in the draft report’; and to initiate court proceedings for judicial review on the grounds that no reasonable inspector could have produced that report and its conclusions and that the process was unfair.

The argument centred around the fact that Ofsted’s procedures for dealing with complaints are different when a complaint is from a school judged inadequate. In other cases the complaint is examined by an independent person, defined as ‘someone not involved in the issue of concern or inspection’. Complaints from schools judged inadequate, however, are considered as part of the quality assurance process which the report is automatically subject to in these cases. The judge at first instance found this unfair.

The Appeal Court, however, did not. They took the view that it was important to consider the process of dealing with a report on a school judged inadequate in its entirety. They identified a range of ‘safeguards’. These included:

• The opportunity for a school to identify concerns during the inspection including meetings with the head and feedback from observations
• The requirement for the lead inspector to consult with a senior HMI on Day 1 of an inspection if a judgment of ‘inadequate’ appears possible
• The opportunity for a school to comment on the draft report
• The extended timescale for dealing with the report
• The consideration of complaints as part of the quality assurance process
• Final authorisation having to be given to the publication of a report of ‘inadequacy’ by HMCI herself or a Regional Director.

In the view of the Appeal Court these constituted ‘sufficient protections to ensure that the overall procedure is fair in the more serious cases’. Although the procedure was not equivalent to that in less serious cases ‘fairness does not require equivalence.’

Whether the case will go further to the Supreme Court is uncertain but at present the situation is that Ofsted can continue to operate its present procedures. Some may still think that the process constitutes ‘marking you own homework’; but for the moment, at least, the matter is settled and schools know where they are.