Process, Substance and the Influence of Judicial Review on Public Administration: Ofsted v Secretary of State for Education [2018] EWCA Civ 2813

I found the decision of the Court of Appeal of England and Wales in Ofsted v Secretary of State for Education [2018] EWCA Civ 2813 to be a nice illustration of two important phenomena: first, the extent to which administrators internalize the norms generated by judicial development of the principles of judicial review of administrative action; second, the difficulty of distinguishing, in judicial review cases, between process and substance.

Ofsted is a government department with responsibility for reporting on schools in the United Kingdom. The underlying issue was a decision to recommend that a school be sent into special measures, a power created by s. 44(1) of the Education Act 1998, triggered in this case by an Ofsted report rating the school as “inadequate”. Special measures is, from the perspective of a school, a dreadful outcome of an Ofsted inspection, carrying significant social stigma. At first instance, the school was successful in convincing the High Court to quash the decision to send it into special measures, on the ground that Ofsted had acted unfairly as it had not provided the School with any means of contesting the report. The Court of Appeal allowed Ofsted’s appeal.

The general framework for Ofsted inspections and the recommendations Ofsted may make is set out in legislation and delegated legislation (see paras. 22-31). But Ofsted has supplemented the legislation and regulations with a “Handbook” for the conduct of inspections and a “Complaints Policy”. Hamblen LJ outlined (at para. 34) those features of the Handbook which aim to secure the fairness of the inspection process:

(1) Regular meetings between the lead inspector and the head teacher should take place throughout the inspection in order: (i) to provide an update on emerging issues and findings, in order to enable further evidence to be provided; (ii) to allow the headteacher to raise concerns, including those related to the conduct of the inspection or of individual inspectors, and (iii) to alert the headteacher to any serious concerns (para. 87 [of the Handbook]).

(2) During the process of inspection, inspectors must offer feedback to teachers after lesson observations (paras. 67-68). The lead inspector and the headteacher should also take part in joint lesson observations and discuss their views about the strengths and weaknesses of the teaching thereafter (paras. 69-70).

(3) The Handbook also sets out a process by which inspectors will seek the views of registered parents and other stakeholders (paras. 51-56). This is in accordance with the statutory duty imposed under section 5 EA 2005. Parents are formally notified of an inspection and an online system (“Parent View”) is made available in order to facilitate the gathering of evidence and views from parents. Where parents raise serious issues, inspectors should follow these up with the school and record its response (para. 55).

(4) At the end of the inspection there is a final feedback meeting, by which the school is orally informed of (amongst other things) the provisional grades in advance of quality assurance procedures and moderation (paras. 92-93)

Further safeguards apply to the drafting of the report (at para. 35) and where a finding of inadequacy is in contemplation (at para. 38).

The Complaints Policy sets out a three-step approach for resolving complaints. The first step is designed to occur during the inspection. The second step relates to post-report complaints. The third step is an internal review. The second step is as follows (at para. 45; paras. 16-17 of the Complaints Policy:

When carrying out the investigation, the investigating officer will consider the information that you have submitted and the issues that you have raised. In the case of complaints about inspections, this will include, as appropriate, a review of the inspection evidence and responses from the inspection team to the concerns raised. Additional concerns or documentation received after the submission of your complaint will not normally be considered.

Written responses will be provided for all complaints investigated. The response you receive will provide a conclusion on whether or not each main aspect of the complaint has been upheld and may link together similar issues for conciseness and clarity. On occasions, it may not be possible to reach a firm conclusion whether there are conflicting accounts and it is not possible to independently verify either of them. For an account to be considered independent, this must be from someone not involved in the issue of concern or inspection. In these cases, the outcome will be recorded as ‘no decision could be reached’ and the reasons for not reaching a conclusion will be explained.

The Handbook and Complaints Policy thus set out processes for the conduct of inspections and the treatment of complaints which are very meaty compared to the skeletal statutory provisions. The processes probably go beyond what is required by strict law. School inspections are important to those concerned, but they are not the sort of governmental action liable to lead to the loss of life, liberty or property which attract heightened procedural protections. The Handbook and Complaints Policy might thus be viewed as examples of administrators — here, Ofsted — internalizing the norms of administrative law: recognizing the importance of treating individuals subject to administrative discretion with concern and respect, Ofsted has laid out detailed provisions to ensure that those involved in and affected by school inspections receive appropriate treatment. These are norms (or principles, purposes or values, if you prefer) which underpin the doctrinal rules which courts enforce.

Indeed, one might even make a link between this sort of internalization of administrative law norms and the revival of judicial review of administrative action in the mid-20th century and its expansion into domains such as immigration, prisons and social welfare, where previously administrative discretion had reigned supreme. Those areas are now regulated by detailed rules, something which would have been unthinkable a few generations ago. That the rules are sometimes drawn — depending on your perspective — too tightly or too loosely should not deflect attention from the influence of soft law, such as Handbooks and Policies, in regulating administrative discretion.*

The second interesting phenomenon is the process/substance divide. The crux of the issue in the instant case was that the second step of the Complaints Policy does not apply where a school has been found to require special measures. This is because

…all such judgements are subject to extended quality assurance procedures prior to authorisation of the judgement on behalf of Her Majesty’s Chief Inspector. The school contributes to this process and may comment on the inspection findings prior to publication of the report. The scrutiny of the judgments and consideration of any comments received from the school is undertaken by Her Majesty’s Inspectors who are independent of the inspection (at para. 14 of the Complaints Policy)

The school argued that this was procedurally unfair. But as Hamblen LJ observed, “Fairness does not require equivalence” (at para. 65). It was possible to treat the school fairly without giving it the benefit of step two, because there were “sufficient protections” within Ofsted’s process for a school at risk of being sent into special measures (at para. 64).

It strikes me, however, that the school’s complaint was not one of procedural fairness. After all, it seems to have been fully involved throughout the process and had ample opportunity to influence the outcomes, respond to any misgivings and correct any misapprehensions. Really, the gravamen of the school’s complaint was that it was irrational to provide for a step two process when the stakes are relatively low (as with a negative Ofsted report) but not when the stakes are very high (as with a school being sent into special measures). Whilst the additional processes involved in a special measures case satisfy the requirements of procedural fairness, it is less clear to me that depriving a school of an avenue of protest against a decision with serious adverse consequences is rational. At the very least, in my view, it calls for some other justification than “the process is, on the whole, perfectly fair”. That may well be, but the response does not necessarily justify the differential treatment. On balance, this seems to be a matter of substance, not procedure (see also Etherton MR’s comments at paras. 81-82), although one must acknowledge that the line between process and substance is difficult to draw.

• On the general theme of institutions internalizing norms of administrative law, see also here (Corrections Service of Canada failing to follow its own very detailed rules: note that this occurred in the prison context, an area long left to the absolute discretion of those wielding the batons).

This content has been updated on September 10, 2019 at 15:14.