Judicial Review of Ofsted Decisions at the High Court

Judicial Review (JR) is a supervisory jurisdiction of the Administrative Court (a division of the High Court of Justice in England and Wales) through which individuals and organisations can challenge the lawfulness of decisions, actions and failures of public bodies. It is available as a route of challenge against Ofsted decisions and actions (including, in principle, inspection reports, enforcement decisions and decisions about registration) though it is a demanding, expensive and uncertain process that is not appropriate for every complaint about Ofsted.

It is important to understand at the outset what Judicial Review is and what it is not. JR does not review the merits of Ofsted’s decision – the court will not substitute its own view of whether the setting is good quality for Ofsted’s view. JR reviews the lawfulness of the decision: whether Ofsted followed the correct procedures, acted within its legal powers, applied the correct legal tests and treated the provider fairly. A JR is not a second inspection; it is a legal challenge to the process by which the decision was reached or to the legal basis on which it rests.

Grounds for Judicial Review

The grounds on which a JR can be brought against a public body fall into several recognised categories:

• Illegality: The decision-maker acted outside its legal powers (ultra vires), applied the wrong legal test, fettered its discretion by rigidly applying a policy without considering individual circumstances, or acted for an improper purpose
• Irrationality (Wednesbury unreasonableness): The decision was so unreasonable that no reasonable decision-maker properly directing itself in law could have reached it. This is a high threshold – courts do not interfere simply because they would have decided differently
• Procedural unfairness: The decision was reached through a procedure that was unfair – for example, because the provider was not given adequate notice of the allegations against it, was not given a proper opportunity to respond or was not provided with the reasons for the decision
• Breach of legitimate expectation: Ofsted made a clear and unambiguous representation (through policy, guidance or a specific promise) on which the provider relied, and has then acted inconsistently with that representation without adequate justification
• Breach of Convention rights: Under the Human Rights Act 1998, public bodies must act consistently with the rights guaranteed by the European Convention on Human Rights. In the childcare context, Article 8 (right to respect for private and family life and home) may be engaged where the business is operated from the provider’s home, and Article 1 Protocol 1 (protection of property) may be relevant where cancellation of registration destroys a business

The Pre-action Protocol and the Permission Stage

Before commencing JR proceedings, the claimant must follow the Pre-Action Protocol for Judicial Review. This requires the claimant to write a pre-action letter to Ofsted setting out the proposed claim, the grounds and the remedy sought, and giving Ofsted 14 days to respond (or 7 days where urgency is claimed). Ofsted must respond, explaining whether it will reconsider the decision, settle the claim or defend the proceedings. This pre-action phase is mandatory and failure to comply can result in adverse costs orders.

If the dispute is not resolved through the pre-action process, the claimant can issue a claim for JR in the Administrative Court. The claim must be filed promptly and in any event within three months of the decision or act being challenged (the time limit is shorter in certain cases). The first stage of the process is the permission stage:

• a Judge considers the papers without an oral hearing and decides whether the claim is arguable –
• that is, whether there is a realistic prospect of the claim succeeding. Many JR claims fail at the permission stage
• obtaining permission is not a formality

Relevant Case Law

JR claims against Ofsted have succeeded in a number of important cases. In R (Durand Academy Trust) v Ofsted [2018] EWCA Civ 2813, the Court of Appeal considered the adequacy of Ofsted’s inspection process and the standard of reasons required in inspection reports. Cases such as R (Lord) v Ofsted have addressed the fairness of the pre-inspection process and the handling of evidence. The Upper Tribunal (in its Education Chamber jurisdiction) has also considered cases raising issues about the adequacy of evidence relied upon in inspection reports.

The SEND Tribunal (First-tier) has jurisdiction over certain Ofsted regulatory decisions (as described in the preceding article on First-tier Tribunal challenges), and there is an important distinction between those decisions and the inspection outcomes and enforcement actions that are the province of JR. Providers should ensure they are pursuing the correct route for the specific type of challenge they wish to bring.

Costs, Risks and Practical Considerations

Judicial Review is expensive. Legal costs for a contested JR proceeding in the Administrative Court (including counsel, solicitor time and disbursements) typically run to tens of thousands of pounds. If the claim fails, the claimant may be ordered to pay Ofsted’s costs as well as their own. The financial risk is, therefore, very significant and should not be underestimated. Legal aid is not generally available for commercial JR claims of this type, though it may be available in cases involving human rights where the provider is of limited means.

The decision to bring a JR should be made only after receiving specific legal advice from a solicitor or barrister with experience in public law and Ofsted-related litigation. The pre-action process itself may be sufficient to achieve a resolution without full proceedings (Ofsted does sometimes reconsider decisions in response to a well-argued pre-action letter) and any competent legal adviser will explore this possibility first. JR is a last resort for cases where Ofsted has made a serious procedural or legal error that cannot be corrected through any other route, and where the stakes justify the cost and risk of proceedings.

For related guidance, see also our articles on the EYFS statutory framework, safeguarding responsibilities, the legal basis for Ofsted regulation and understanding Ofsted ratings.