Durand Academy Trust’s surprise High Court victory against Ofsted could have serious consequences for the government’s academies programme, according to a senior lawyer.

And a heads’ union is expecting scores of schools to take legal advice as a result of last week’s ruling, when a judge quashed an inspection report that would have placed south-London based Durand Academy Trust into special measures.

Judge Martin McKenna based his decision on Ofsted’s complaints procedure, which does not allow any “inadequate” schools’ judgement to be changed. 

Since the Education and Adoption Act was passed last year, all schools that are rated “inadequate” must legally be turned into academies. Michael Brotherton, a partner at law firm Stone King, believes the court ruling “opens up a window of opportunity” for schools that have been subjected to an academy order but are yet to be converted.

“When those schools that have been inspected and put in special measures and then the department has relied upon that to make an academy order, I would query whether that gives them grounds for challenge,” he added.

For schools that have already been converted on the back of an Ofsted report, he believes it is too late. But Brotherton said the judgment gave schools that had an unpublished “inadequate” report “fertile grounds” to challenge the inspectorate.

The big barrier for most schools taking legal action will be the expense. Durand said that legal costs for its dispute with Ofsted amounted to £300,000.

Brotherton believes that it could be done for less, but still estimates a minimum bill of £20,000 for schools that want to challenge their reports.

‘A very significant moment’

Geoff Barton, general secretary of the Association of School and College Leaders, had his own run-in with Ofsted after Hardwick Middle School in Bury St Edmunds was rated “inadequate” while he was executive headteacher.

He described the court ruling as “a very significant moment”. He said: “If I was at Ofsted, I would be very hastily looking at what the implications could be.

“It might be that we find in September a whole range of schools that say: ‘If it applies to Durand, it applies to us as well.’

“I suspect that if this was not the holiday period we would have had 40 phone calls from schools asking our lawyers about this.”

Ofsted said it was “too soon to know what the implications are for other providers” but that it would keep the situation under “close review”.

It is seeking to overturn Judge McKenna’s ruling. A spokesman said: “We will continue to carry out school inspections as scheduled regardless of the decision on our application for leave of appeal.”

The inspectorate also said it needed “proper time” to review whether its complaints procedures require what it terms any “clarification”, without elaborating on whether this would lead to rewriting the actual policy.

The Department for Education was contacted for comment.

This is an edited version of an article in the 18 August edition of Tes. Subscribers can read the full article here. To subscribe, click here. This week’s Tes magazine is available at all good newsagents. To download the digital edition, Android users can click here and iOS users can click here

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