Nursery gains landmark high court ruling against Ofsted

A ‘rogue’ Ofsted report which downgraded an Outstanding nursery to ‘inadequate’ has been ruled unlawful and ordered to be deleted by a high court judge.

In what is believed to be the first judicial review win by an early years setting, the court heard about a catalogue of blunders by the watchdog, which inspected the nursery – Old Co-operative Day Nursery in Gotham, Nottinghamshire – after receiving a complaint from a member of the public.

Mr Justice Peter Coulson found the inspector, Joanne Gray, had acted beyond her powers by conducting an investigation into the complaint, which alleged that a child was momentarily in the road during a staff-supervised walk.

Under the Childcare Act 2006, the regulator has no power to carry out investigations.

The judge also said Ofsted had 'doubtless' tampered with one version of the report when it realised it contained evidence of the error.

In addition, Ms Gray, who was sent to inspect the nursery by subcontractor Prospects in May 2014, ‘deliberately’ ignored the glowing rating awarded to the setting just eight months earlier.

Ofsted guidance states that complaint-triggered inspections should consider the setting in the round and not adjudicate on complaints, particularly when the facts are in dispute, as was the case with the Old Co-operative.

The judge said that otherwise the inspections process runs the risk of being turned into a ‘lottery’.

Judge Coulson added, ‘It would give the individual inspector on the particular day of the inspection an arbitrary power and influence.’

This inspector also reached ‘irrational conclusions’ about the incident based on evidence she did not have, the judge ruled.

Ms Gray claimed there were only two staff supervising, with implications for safeguarding, when the evidence strongly indicated there were three employees on the walk.

She also wrongly concluded that the child had been ‘pushed’.

The inspector ‘disregarded the terms of the complaint, the contemporaneous written evidence and what she was told by the owner, all in favour of her own view’ of what had happened.

In his damning judgement, Judge Coulson highlighted how the inspectorate was fully aware of a highly critical internal review of the inspection, but maintained a ‘dismissive’ approach to setting owner and manager Charlotte Harris’s concerns throughout.

Five months after Ms Gray’s inspection, a further report was published which restored the nursery’s rating to Outstanding.

However, the damaging report remained on Ofsted’s website until it was ordered to be removed by the judge.

Ms Harris paid for the court action from private funds after feeling let down by Ofsted’s complaints procedure, which consistently upheld the flawed inspection report despite the evidence supporting the owner’s concerns.

The nursery, which has a 64-place capacity, said it took a long-lasting knock to business following the publication of the report, and lost five members of staff. According to the setting, Ofsted has not apologised.

The nursery’s solicitor, Stephen Savage of Anderson Partnership in nearby Chesterfield, described Ofsted’s attitude as ‘defensive and protective’, and called for more transparency. ‘There wasn’t a cards on the table approach at any stage,’ said Mr Savage.

He added, ‘[Ofsted are] charged with assessing and monitoring nursery facilities and if they keep to themselves criticisms when there’s a complaint ongoing, I don’t see how they can expect good facilities.’

He continued, ‘We argued they went beyond the power they did have, they undertook an investigation and made findings.

‘Some of those findings we couldn’t understand how they arrived at because they flew in the face of the available evidence.’

The solicitor called for better training of inspectors to get the best out of the system.

‘Hopefully they’ll train the inspectors to keep within the limits of their powers,’ said Mr Savage.

‘[The inspector] overstepped her powers and duties and then in continuing a general inspection she made mistakes there as well.

‘They were legion, we said, and led to the discrediting of the entire report, so that it was ordered to be removed.’

He added, ‘My client has succeeded. It may encourage others to think it’s not impossible, if they have a strong grievance, it may encourage them to look more deeply into whether they can challenge them or not.

‘It’s not cheap either in terms of money or commitment.

‘Whether they have the resolve to go forward – my client very certainly did, because they felt they’d been treated unfairly.

‘I’m told that parents would look on the internet for reviews and so on – if they see [a nursery has] been judged inadequate, parents aren’t going to particularly send their children there. My client reports that it had a significant effect on them and on staff.

‘As in everyday life, if someone has a go at you, it’s not nice, particularly if it’s your regulatory body, who are meant to monitor you. It can affect your business.’

Ms Gray declined to comment on the case but said, ‘I don’t work for Prospects any more.’

She works as a consultant and is also company director of Granby Nurseries, which runs three nurseries in South Yorkshire and Nottinghamshire.

An Ofsted spokesperson said, 'We are committed to continually improving how we inspect, and always consider the outcome of cases like this and review our policies and processes accordingly.

'This particular inspection took place in 2014, under a framework we replaced in 2015.

'A "priority inspection" is one which is prompted by one or more concerns reported to us. In 2015, we introduced an early years inspection handbook, which provides inspectors with clear guidance on how to conduct a priority inspection. This handbook makes It clear that a priority inspection is conducted in exactly the same way as a scheduled inspection but will normally be carried out with no notice.

'To be clear, we do not discuss the details of individual cases.'

THE SETTING'S VIEW

Ms Harris told Nursery World, ‘The report was eventually removed, but the loss of potential clients and the adverse effect on staff morale was inevitable.

‘Despite requests for information, there were several examples of Prospects and Ofsted withholding information, some of which was only to come to light on disclosure for the court case.

‘Not least of which was the content of the complaint identified by the inspector.

‘The prevarication of Ofsted became clearly identifiable as delaying tactics.

‘The nursery was concerned that any recourse to the law would “run out of time”.
‘Although aware that the court might not be able to address all the complaints and misgivings, or would not consider them within their brief, an application was made for judicial review.

‘We welcomed the outcome of the judicial review, and wish to thank those people who have been so supportive of us during this time.

‘We now go forward with our confirmed Outstanding status and in anticipation of maintaining our high standard and commitment to our children and parents.’

To prevent similar injustices, Ms Harris called for changes to the system, including:

• Establishment of a truly independent legal service for investigating complaints against Ofsted.
• Clarity in the current complaints procedure.
• Transparency regarding spending on defending complaints by Ofsted.
• Closer scrutiny of inspectors and training.
• Ad hoc and independent monitoring of inspections.

TIMELINE

The nursery was inspected on 17 September 2013 and rated Outstanding.

On 29 April 2014, a member of the public passing nearby allegedly had to stop her car because a child under the supervision of the nursery ‘was not walking in a straight line and stepped into the road’.

The following day, the motorist complained to Ofsted and on 6 May, Ms Gray arrived to inspect the setting.

On 12 May, before receiving the draft report, manager Ms Harris complained to Ofsted about the inspection, criticising the conduct of the inspector.

Prospects responded on 19 June, rejecting all the criticisms.

A draft report confirming the ‘inadequate’ rating was sent to the setting on 10 July, apparently to give the opportunity for Ms Harris to correct any factual errors.

Along with this document, there was a covering letter from Prospects which stated, ‘The quality of your provision is not acceptable. You are not meeting the safeguarding and welfare requirements and learning and development requirements of the Early Years Foundation Stage.’

There was also a ‘Notice to improve’ containing nine actions (some of which the judge later said were ‘so vague as to be meaningless’).

On the same day, a ‘summary of complaint’, also referred to as an ‘outcome summary’, was wrongly published on Ofsted’s website, which the judge said were the findings of the inspector’s wrongful investigation.

The nursery had no idea that this had been uploaded, and continued to engage with the draft report’s contents, asking Ofsted not to publish anything.

Ofsted ignored this request and went ahead and published the entire report with a slight amendment.

‘Things then went from bad to worse’, said the judge, with a second version marked ‘not accepted for publication’ making its way online.

On 6 August that year, the nursery was inspected again, and Ofsted concluded it had complied with the notice to improve.

Two months later on 14 October, the nursery received another Outstanding rating.

After going through the unsatisfactory complaints process, Ms Harris sought legal advice, and was granted permission for a judicial review on 5 March last year.

During the hearing in Birmingham on 9 May this year, Ofsted claimed the alleged 'investigation' was in fact a complaint-triggered inspection. Ofsted's lawyer claimed that the inspection was focused on 'whether the incident was preventable and any lessons learnt'.

The judge described that suggestion as 'unrealistic'. He added that Ofsted had even deleted incriminating evidence from the outcome summary it had published, 'doutbless because someone at the defendant was concerned that they made plain that they had done precisely what they should not have done'.

But Ofsted 'gave the game away' in case correspondence, said the judge, 'by talking about when "the inspector began her investigation of the incident".' 

The judge ruled the claim had been successful on specific grounds, ordered the report to be removed, and made an order for Ofsted to pay the setting’s costs.

The setting was not successful in its claim for damages.

• Read the full judgment here, which includes the judge's summary of Ofsted’s own guidance at the time.