Briefing

Putting the brakes on a potential reputation-wrecker

Posted by: Ben Longworth | Date posted : 22/11/2016

Imagine the scenario: your school has been struggling but has worked its way out of special measures. You think your rocky patch is over, but a no-notice inspection results in an "inadequate" grading and a draft report that condemns your school for long-standing practices that weren't mentioned in previous reports. What do you do?

An Islamic voluntary aided school that found itself in this situation successfully persuaded the Court to put a temporary block on the publication of a damning draft Ofsted report that, amongst other things, identified safeguarding issues and criticised the school's practice of segregating pupils by sex for many activities, even though the evidence showed that there was no difference in the curriculum, teaching or pastoral care offered to pupils when they were segregated.

The inspection that led to the disputed draft report was prompted by a visit to the school by Chief Inspector, Sir Michael Wilshaw, in June 2016. This was part of a wider series of school visits, apparently intended to allow the Chief Inspector to see "Trojan Horse" schools, though the school in this case was not one of those schools. The meeting went badly: the Chief Inspector made it clear that he was opposed to segregation and announced that he was going to order a no-notice inspection. The inspection went ahead less than a week later, with a team that included individuals who were involved in the inspections that took place while the school was in special measures.

The draft inspection report concluded that the school was inadequate, stated (amongst other things) that its leaders were failing to keep pupils safe from extreme views and were failing to have due regard to the need to achieve equality of opportunity, criticised the school's use of segregation and found safeguarding weaknesses. None of the three Ofsted reports published while the school was in special measures commented adversely on the school's use of segregation or found that it had problems with safeguarding or discrimination.

Ofsted's plan was to publish the report on the last day of the school's 2016 summer term.

The school applied to have the Court quash the report on various grounds, including (1) that its inconsistency with previous reports and the absence of evidence for the findings in it indicated irrationality, and (2) that it was the product of bias rather than an independent, merits-based evaluation. While waiting for the main judicial review hearing, the school also applied for an interim restraining order to stop the report from being published. The Court made this order; Ofsted applied to have it set aside.

The Court refused. Although there is a general principle that courts will not prevent the publication of opinion or the dissemination of information, the discrepancy between the draft report and the previous Ofsted reports was extraordinary.  Whilst the Court could not draw any conclusions about the school's allegations, there was an arguable case that the process leading to the production of the draft report was "infected by a pre-determined mindset or prejudice that would be quite alien to the proper and independent inspection process".

Publication would "be likely to generate a media storm" and cause significant reputational damage to the school. Furthermore, the court said, "in the febrile atmosphere that has prevailed since the Trojan Horse school problem arose, publication of the report has the capacity to affect social and community cohesion". By contrast, if the school's judicial review claim failed, the delay in publication would merely be a temporary inconvenience for Ofsted. The Court rejected Ofsted's argument that the report should be published to inform the parents of pupils (and prospective pupils) of the school's latest inspection grade: given that the report was scheduled for publication on the last day of summer term, parents would have difficulty making alternative arrangements for their children and the school would struggle to formulate and communicate a response to the report.

The school's judicial review application has now been heard and judgment was handed down on 8 November 2016. The Court found that the school's use of segregation of the sexes was not discriminatory. However, it ordered that the publication of the rest of the inspection report, which placed the school into special measures, should be allowed on the grounds that Ofsted had a number of other legitimate concerns about the school, including the presence of books in the school library that gave tacit approval to domestic violence. Given the public importance of the segregation issue the judge gave both parties permission to appeal to the Court of Appeal and it seems likely that Ofsted will appeal. In the meantime, the judge continued the anonymity order which will prevent any of the report being published.

Situations such as those faced by this particular school are likely to be rare. However, whilst it is clear that the threshold for restraining the publication of an inspection report is high, this case shows that it is possible – at least temporarily.

If you require further information on anything covered in this briefing please contact Ben Longworth (ben.longworth@farrer.co.uk; 020 3375 7195), or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Schools page on our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2016