Court of Appeal puts education regulators in the spotlight: two recent challenges of regulatory decisions made by Ofsted and the OfS

Posted: 05/10/2020

Two recent decisions of the Court of Appeal have put the decisions and powers of education regulators in the spotlight. These cases will be of interest to education providers as well as regulators and give insight into the difficulties and potential gains of seeking to challenge a regulatory decision via judicial review.

Ofsted

Firstly in R (on the application of the Governing Body of X) v Office for Standards In Education, Children’s Services and Skills & Anor [2020] EWCA Civ 594, the Court of Appeal considered an application for an interim injunction and for permission to apply for judicial review in respect of a report from the regulator (Ofsted) finding the applicant school to be inadequate.

The report was prepared by Ofsted under section 5 of the Education Act 2005, following an inspection of the school in October 2019. The school sought to quash the report, on the grounds of irrationality and procedural unfairness. It also applied for an interim injunction to prevent Ofsted from publishing the report until the claim was concluded. With the ‘overriding objective’ in mind, the Court of Appeal determined that it should not merely decide the appeal against the first instance decision to refuse interim relief, but re-constitute the court as the Divisional Court to determine the application for permission to apply for judicial review as well.

This application for permission was ultimately denied. In making this decision the judgment noted that: “an allegation of irrationality is never easy to establish. 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.” The judgment stated that grievances about whether the Ofsted inspectors placed too much or too little weight on certain evidence have “no traction in a claim for judicial review. […] Disagreement on the appropriate weight is never, on its own, a proper basis for a public law challenge.”

The judgment also restated the finding of a previous case, that “Ofsted’s inspection, evaluation and reporting process, and its procedure for handling complaints, are inherently procedurally fair.”

Having determined that permission should be denied, the decision in relation to the interim injunction became academic; however, the judgment took time to rehearse and re-state the law in relation to the grant of interim relief against decisions of public bodies. The judgment noted that: “Particular stress should be placed upon the importance of upholding the law of the land, in the public interest, bearing in mind the need for stability in our society, and the duty placed upon certain authorities to enforce the law in the public interest.” Ultimately, the Court of Appeal concluded that the considerations that would justify the curtailment of Ofsted’s statutory functions would have to be "very powerful".  In this case, the court found that while “the inspection report contains conclusions that could have severe reputational consequences for the school, this point has another side. It may fairly be said that the greater the possible reputational damage, the greater the public interest in parents, pupils and the local community being made aware swiftly of Ofsted’s concerns”. 

OfS

R (on the application of Bloomsbury Institute Limited) v Office for Students [2020] EWCA Civ 1074 was an appeal from a first instance decision that the Office for Students (OfS) was entitled to refuse Bloomsbury’s application to become a registered provider. Bloomsbury was founded in 2002 as a private education provider, with profits reinvested in the college. The judgment notes that many of its students are from disadvantaged backgrounds. Bloomsbury’s courses had previously been designated by the Secretary of State and had received both positive appraisals and “improvement notices” in relation to the continuation rates of its students (the percentage who proceed from year one of their courses to year two). Following the creation of the OfS by the Higher Education and Research Act 2017, responsibility for designation was transferred from the Department for Education to the OfS. Bloomsbury applied and was refused registration on the basis of Condition B3 - “securing successful outcomes for all its students”. The OfS stated that Bloomsbury had not performed sufficiently well in relation to two “indicators” relevant to Condition B3, continuation rates and rates of progression to professional employment or post-graduate study. As a result of the impact on its business, the first instance judge noted that, “in all probability, Bloomsbury will have to close”.

When considering applications, the OfS used an internal document - referred to as its ‘Decision-Making Guidance’ - which had been prepared either by or under the supervision of the Director of Competition and Registration with the stated purpose to set out the framework that the OfS would use to make registration decisions. This guidance and the baseline figures included in it had not been published at the time and it had not been consulted on.

Bloomsbury argued that the director did not have sufficient authority under the OfS Scheme of Delegation to make the choices set out in the guidance, that the OfS was wrong not to publish the guidance and that it had failed to consult adequately on the guidance.

Of particular relevance to the case was the allowance that was made for demographic factors in the guidance. The guidance made allowances by reducing the baselines or thresholds generally and making a further reduction of 15% in the case of part-time courses, but it did not make a further reduction for courses where students had never taken A-Levels and started with a foundation year.

The Court of Appeal upheld Bloomsbury’s appeal. Whilst operational matters were delegated, the judgment found that decisions in relation to allowance for demographic factors set out above “fall well on the policy side of the line and could not by any stretch of the imagination be described as merely operational.” Therefore, it was found that the power to make that decision had not been delegated.

In addition, in relation to publication and consultation the judgment states that: “the foundation year course policy decision cannot properly be described as a matter of granular detail; and that the failure even to publish it, still less to consult on it when it was at the formative stage, constituted clear unfairness in the treatment of Bloomsbury.”

Therefore the OfS decision refusing Bloomsbury’s application for registration was quashed.

Conclusion

The first case shows how difficult it is challenge a decision of a public body on the basis of ‘irrationality’ – even if the decision is one the challenger profoundly disagrees with. It is also a useful reminder of how difficult it will be for an applicant to succeed in obtaining an injunction that prevents a public body from exercising its statutory duty.

However, the second case shows the potential benefits of challenging a regulator using judicial review. Regulators should take note of the judgment and in particular its guidance on delegation, publication and consultation in order to ‘proof’ their decisions from challenge in the future.

Return to news headlines