Ofsted has won a legal battle with a school it rated ‘inadequate’, with a judge declaring the High Court is “not a proper forum for policy disagreements” about the inspectorate.
All Saints Academy Dunstable, in Bedfordshire, took legal action over Ofsted’s alleged refusal to provide sufficient evidence, explanations or reasons for the report published in July last year.
The school launched the judicial review after it was inspected twice, due to issues with the evidence base the first time, and inspectors came to different conclusions.
But in a judgment handed down this morning, Mr Justice Cavanagh ruled: “The school was provided with sufficient reasons, explanation or evidence to enable it fairly to contest the findings the defendants proposed to make in the final version of the report.”
He said “it would be an impossible job to require the inspectors to provide all the sources of information which fed into a particular judgment”.
Responding to the verdict, Ofsted said it was always confident its inspection process was “procedurally fair”.
All Saints said it was “disappointed” but that it tried to establish how two teams of inspectors arrived “at seemingly different conclusions, whilst following the same framework”.
Process caused ‘inevitable upset’ to school
A two-day inspection of the school in November 2022 failed Ofsted’s quality assurance and moderation processes, prompting a “gathering additional evidence” visit in January 2023.
During the first visit, Ofsted indicated the provisional gradings would be ‘good’ for quality of education, sixth form, personal development and leadership and management; but ‘requires improvement’ for behaviour and attitudes, and RI overall.
But in the final report, the school was rated ‘inadequate’ overall after being given the lowest grade for leadership and management and behaviour and attitudes.
The second visit was triggered by concerns the provisional judgments did “not appear to correlate with the experience of staff, pupils and parents”, the judge said.
The second team of inspectors was “selected for their experience and reputations for fairness, objectivity and integrity… because Ofsted recognised the delicacy of the situation”, he added.
The judge noted the “inevitable upset caused by an adverse Ofsted report was inevitably exacerbated because the feedback at the end of the first inspection was significantly more positive than at the end of the second inspection and the final report”.
But he said this does not mean Ofsted “were under any obligation, as a matter of procedural fairness, to provide the school with a detailed comparison between the provisional judgments of the first inspection team and the draft conclusions of the second team”.
In July 2023, All Saints failed to obtain an injunction to stop Ofsted publishing the report while it pursued legal action
‘Not a challenge to systemic fairness of Ofsted inspections’
In April, barrister Paul Greatorex, for the school, said Ofsted reports changed lives and “trigger statutory power to have schools taken over, closed down”.
They can also cause people to “lose their jobs” and “in the tragic case of Ruth Perry, their lives”, accusing the inspectorate of “losing its way”.
But Cavanagh today stressed proceedings were “not concerned with a challenge to systematic unfairness in Ofsted inspections”.
“This court is not a proper forum for policy disagreements about the way in which Ofsted functions,” he added.
In April, Greatorex claimed Ofsted reports only provided an “executive summary” and “it might be immensely helpful for the school to have more detail”. But Toby Fisher, for Ofsted, accused him of “inviting the court to stray into a policy or political argument”.
Fisher argued: “The draft report alone was sufficient to enable cogent representation on the adverse findings and judgments.”
Cavanagh concluded the school’s argument amounted to a “root-and-branch challenge to Ofsted’s practices, rather than a challenge to the reasons given in this particular inspection”.
He rejected the submission and said there is nothing in the statutory framework which required a more detailed report format.
‘Unavoidable degree of subjectivity involved’
The judge also said there was a “practical limit to the time and resources that can be allocated to any one inspection”.
He warned that if schools that receive adverse feedback are allowed to make lengthy, detailed submissions before a report is finalised, and if inspectors are required to provide the full evidence base pre-publication, “the whole system will grind to a halt”.
But there is “nothing to stop” a school communicating to parents and pupils its criticisms of an Ofsted report, he added.
Another criticism levelled by the school was that the draft report contained “subjective” judgments which are hard to quantify.
But the judge said this is “an inevitable consequence of the inspection process, and does not invalidate it”, stressing that inspectors were experienced professionals
“There is an unavoidable degree of subjectivity involved. The conclusions cannot be reduced to independently verifiable and objective criteria.”
A spokesperson for the school said: “To be given permission for a judicial review is a rare event and we are proud of the challenge we have levelled at Ofsted.”
It comes after Thomas Telford School, in Shropshire, also lost a High Court showdown with Ofsted in April.
Another school wasting money it doesn’t have for frivolous reasons. It’s absurd and there should be accountability for what is no doubt a 5 figure, if not 6, bill for taking a case to this point.
In which we see one part of the establishment protect another, by simply stating that the fantasies writfen on paper – that inspectors are professional, following a procedure that is inherently well-structured – is by definition fit for purpose, irrespective of the realities we see with our own eyes. A judge says so, and thus it cannot ever be challenged… because a judge says it is so. Considering how concerned the court was not to “stray into a policy or political argument,” it seems positively eager to stray gleefully into sophistry and gaslighting. The judge tells us that it would be “impossible” for Ofsted inspectors to provide a school with all of the information upon which they based their decisions… and yet schools are expected to devote months to creating tomes of folders and data, and undergo mock interviews, attempting to predict and satisfy the impossible demands of the inspectors. Fortunately for the barristers and the judge, who all get paid handsomely by the hour for every document they must read or prepare, they can avoid all that with a bit of rhetorical sleight of hand, and suddenly only the heavy burdens of inspectors count, whilst those of their victims are ignored. The judge also declares that inspections being a subjective opinion is an “inevitable consequence”… and then declaring that that subjective opinion has the legal weight of an objective opinion. Utter fatuous sophistry. So, can teachers and schools also give our subjective opinions, with the force of law? Why, no, says the esteemed court – but because there is “nothing to stop” a school from communicating its criticisms to parents, the judge somehow declares that this is functionally equivalent to a legally-binding inspection decision anyway! The judge declares that such mattees are not the concern of a court of law. You have to wonder, then, with a dash of sophistry myself, what exactly are this court and its judge good for?
Now it is proven that the people appointed to leadership within a school are not capable of undertaking the role, is it not now time to replace them with someone who can… Enough money and time has been wasted, not counting the lost educations of multiple students.. now is the time for change !