Successful challenge to OFSTED nursery inspection

June 1st, 2016 by Peter Oldham QC

There is a rare example of a successful challenge to an OFSTED nursery inspection in R ota Old Co-operative Day Nursery Ltd v OFSTED [2016] EWHC 1126, handed down last week, which can be found here.

In September 2013, the nursery received a glowing OFSTED report. Some months later, OFSTED received a complaint about a child at the nursery getting into the road, and it carried out what the nursery said was an investigation into the complaint, and an inspection.  OFSTED produced a very critical draft report, with a notice to improve. Some stipulations were held by the judge to be “so vague as to be meaningless” (though those in the field might not think that the one referred to in the judgment is very different from many they will have come across).  Further, OFSTED published on its website an “Outcome Summary”, which recorded that the investigation found that children’s safety had been compromised and that the provider had been sent a notice to improve.

A subsequent reinspection a few months later found that the provision at the nursery was outstanding across the board.

The judge found that:-

(1) OFSTED had indeed carried out an investigation into the complaint, which (as OFSTED conceded) it had no power to do under the Childcare Act 2006;

(2) there was in any event “no evidence” to support the investigation findings;

(3) the Outcome Summary was “thoroughly flawed” and its publication was unlawful;

(4) in producing the critical report, OFSTED acted in breach of its own guidance, which required it to look at inspection history.  The judge said at [73]:-

“73 A system of inspection which ignores previous inspections runs the risk of turning the whole process into a lottery. It would give the individual inspector on the particular day of the inspection an arbitrary power and influence. It would prevent systematic monitoring and consistency of approach. It is most definitely not to be encouraged.  

78 …  the fact that the claimant went from ‘grade 1 outstanding’ in all three categories to ‘grade 4 inadequate’ in all three categories in the space of seven months, before going back to ‘grade 1 outstanding’ in all three categories, just three months later, indicates that this was a rogue inspection and report. On analysis, I consider that this happened primarily because of: a) the unlawful investigation into and adjudication upon the complaint (and the unjustified findings reached to uphold that complaint); and b) the inspector’s failure to have regard to the previous report and the previous history of the nursery. … .”

A claim for damages for breach of Art 8 was rejected.

Perhaps understandably, the Courts have been wary of allowing judicial review claims against OFSTED.  Further, the rule in such cases as R ota City of Birmingham College v OFSTED [2009] ELR 500 makes it hard to get an interim injunction preventing publication of an OFSTED report pending the outcome of a judicial review claim, and publication can often render a claim somewhat pointless.  But this case is a reminder of the limits of OFSTED’s powers.  And perhaps the most important practical point is that it says OFSTED has to consider the findings of a particular day’s inspection in the light of the inspection history – whether good or bad.  Not an easy task for inspectors, but an important consideration for providers.

Peter Oldham QC

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