Don’t take it lying down: challenging Ofsted

Posted: 18/09/2017

Two recent cases have highlighted the challenges education providers face when dealing with negative ratings from Ofsted.

In the first case, Durand Academy Trust was rated “inadequate” by Ofsted in a report which recommended that the trust be placed into special measures. The trust tried to challenge the report before its publication but Ofsted’s complaints procedure precluded any substantive challenge where the school had been judged to show serious weakness or require special measures. This meant that the trust did not have a chance to change the outcome of the inspection and the report was nonetheless published.

The judge held that the complaints process was not a rational or fair process as it effectively prevented aggrieved parties from pursuing substantive challenges to the conclusions of a report on the rationale that the decision maker’s processes were so effective as to be unimpeachable. Ruling in the trust’s favour, the court found that the lack of an effective complaints process vitiated the report.

In the second case, the education provider Learndirect was unsuccessful in its claim challenging an Ofsted report which rated it as “inadequate”. Despite having been successful in keeping the report out of the press while it brought judicial review proceedings, Learndirect failed in its arguments that (i) Ofsted’s decision to rate the organisation as inadequate was predetermined; and (ii) that the sample size of students that Ofsted engaged with was too small as to give a fair report. After the court concluded that there was no evidence to support Learndirect’s arguments, Ofsted’s report was published. The Department for Education subsequently announced that it would cease funding the provider’s programmes by July 2018.

While both cases involved Ofsted, the general principles are the same for different regulators. Ratings from regulators can be wrong, and, given this, complaints procedures ought to provide an effective mechanism to allow providers to make such challenges. It is expected that Ofsted will publish a revised complaints process in light of the findings in the first case, so watch this space.

If you have reasonable grounds to dispute the findings from a regulator, then you should keep good notes and make a challenge as early as possible, taking into account the rules in place for both complaints and appeals.  A challenge may not prevent the publication of a damaging educational oversight review, but this is something which should be considered on a case by case basis.  It may also help with representations to UKVI, if applicable.  Penningtons Manches’ team of education specialists is experienced in this process.

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