The High Court has quashed an Ofsted report that would have put embattled Durand Academy in special measures.
In his ruling, Judge McKenna described a key aspect of the inspectorate’s complaints procedure as “not a rational or fair process”.
In a two-day High Court hearing last month, Gerard Clarke, representing Durand, highlighted what he called Ofsted’s “Alice in Wonderland” appeals process.
He cited the inspectorate’s guidance about making a formal complaint, which says that if the complaint is about the school being judged to have serious weakness or to require special measures, the judgement would not be reconsidered “because all such judgements are subject to extended quality assurance procedures”.
Deok Joo Rhee, for Ofsted, described the complaints process as “fair and rational”, and added: “There are rigorous quality assurance processes in place that make sure that errors are picked up and addressed”.
However, Judge McKenna wrote: "To my mind, a complaints process which effectively says there is no need to permit an aggreived party to pursue a substantive challenge to the conclusions of a report it considers to be defective because the decision maker's processes are so effective that the decision will always in effect be unimpeachable is not a rational or fair process."
He added: "The absence of any ability effectively to challenge the report renders the complaints procedures unfair and in my judgment vitiates the report."
He said there was therefore no need to consider Durand’s arguments about the findings of the report, although he did comment on them briefly.
He said he could see "some considerable force" in Ofsted’s argument that inspections since 2013 has shown “a school that has perhaps expanded too quickly, has been too ambitious and whose leadership and management systems have failed to keep up with the pace of change”.
He added that the school’s long-running dispute with the Education Funding Agency, which recently announced it would terminate its funding next year, may have "led to the management team taking its collective eye off what should have been the main ball".
However, the judge raised “significant concerns” about whether the evidence should have led to a decision that the schools was inadequate, rather than requiring improvement.
He suggested the “undoubted weaknesses” of the boarding school may have permeated the whole assessment, but said "I do not express a concluded view on the rationality of the report".
Seeking permission to appeal
A spokesman for Ofsted said: “We are clearly disappointed in this ruling and have sought permission to appeal.
“Notwithstanding the overall judgment, we are pleased that the court recognised the impartiality and professionalism of the inspectors undertaking the inspection.
“Our complaints process is longstanding and has previously been commended by the Independent Adjudicator. However, as an organisation we always keep policies and practices under review and regardless of the outcome of the appeal application will consider whether any clarification of our complaints procedure may be required.”
£500,000 in legal fees
Update 14 August, 09:30: In a written statement, Sir Greg Martin said: "This report would have destroyed this school when it should have been held up as a beacon for what other inner city schools should be.”
“It has taken us six months and around £300,000 to fight this unfair school report through the courts, and when you include Ofsted’s legal bill the amount of money wasted on this action is in excess of £500,000.
"The money to pay for the legal action has come from revenue from the school and thankfully because we have won the case we should be able to claw back a large proportion of our legal costs.”
Kate Hoey, MP for Vauxhall, called for a full enquiry into how the Ofsted report came about, and said she would raise this with education secretary Justine Greening.