[View without highlighting]
[Printable RTF version]
||Neutral Citation Number:  EWHC 1126 (Admin)
||Case No: CO/4879/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Birmingham Civil and Family Justice Centre
33 Bull Street, Birmingham, B4 6DS.
||23 May 2016
B e f o r e :
THE HON MR JUSTICE COULSON
|| The Old Co-Operative Day Nursery Ltd
||- and -
||Her Majesty's Chief Inspector of Education, Children's Services and Skills (Ofsted)
Mr Ramby de Mello (instructed by Anderson Partnership) for the Claimant
Ms Jennifer Thelen (instructed by Ofsted Legal Services) for the Defendant
Hearing date: 9 May 2016
HTML VERSION OF JUDGMENT
Crown Copyright ©
The Hon. Mr Justice Coulson :
- The claimant runs a nursery at 7-9 Wallace Street, Gotham, Nottinghamshire, NG11 0HJ ("the nursery"). It has been operating for 22 years and caters for children from the ages of a few months to 11 years old. It provides before and after school care. Amongst other things, the nursery is responsible for escorting some of the children to their primary school in the morning, and then back to the nursery at the end of the day.
- Following an incident on 29 April 2014, when a child in the claimant's care was "in the road", a complaint was made to the defendant and in consequence, on 6 May, the defendant carried out an inspection of the nursery. This application for judicial review arises out of that inspection and the documents produced and published as a result. In particular, the claimant complains about:
(a) The way in which the inspection was carried out;
(b) The content of the inspection report and the notice to improve that was sent with it;
(c) The genesis and publication of a separate document which, for the purposes of this Judgment, I shall call the 'Outcome Summary';
(d) The defendant's handling of the claimant's complaints.
- Judicial review proceedings were commenced on 14 October 2014. Leave was refused on the papers on 29 December. On 5 March 2015, at the renewal hearing, Cranston J granted permission, limited to three specific grounds which are explored in greater detail below. Permission was refused in respect of allegations of a conflict of interest on the part of the inspector; that the trainee inspector who attended so as to observe actually participated in the inspection; and that the inspection should have ceased when the nursery manager, Ms Harris, fell ill part way through the inspection.
- The structure of this Judgment is as follows. In Section 2 I set out the legal and statutory framework. In Section 3 I set out the background facts. Then, in Sections 4, 5 and 6, I analyse each of the three grounds in respect of which Cranston J granted permission. There is a short summary of my conclusions in Section 7. I am grateful to both counsel for the clarity of their oral submissions.
2. THE LEGAL AND STATUTORY FRAMEWORK
- The defendant's powers and obligations in respect of inspections and reports are set out in sections 49 and 50 of the Childcare Act 2006. They provide as follows:
(1) This section applies to early years provision in respect of which the early years provider is registered [in the early years register].
(2) The Chief Inspector—
(a) must at such intervals as may be prescribed inspect early years provision to which this section applies,
(b) must inspect early years provision to which this section applies at any time when the Secretary of State requires the Chief Inspector to secure its inspection, and
(c) may inspect early years provision to which this section applies at any other time when the Chief Inspector considers that it would be appropriate for it to be inspected.
(3) Regulations may provide that in prescribed circumstances the Chief Inspector is not required to inspect early years provision at an interval prescribed for the purposes of subsection (2)(a).
(4) Regulations may provide that the Chief Inspector is not required by subsection (2)(a) to inspect early years provision at an independent school [or an alternative provision Academy that is not an independent school] if the early years provision is inspected in prescribed circumstances by a body approved by the Secretary of State for the purposes of this subsection.
(5) A requirement made by the Secretary of State as mentioned in subsection (2)(b) may be imposed in relation to early years provision at particular premises or a class of premises.
(6) Regulations may make provision requiring the registered person to notify prescribed persons of the fact that early years provision is to be inspected under this section.
(7) If the Chief Inspector so elects in the case of an inspection falling within paragraph (b) or (c) of subsection (2), that inspection is to be treated as if it were an inspection falling within paragraph (a) of that subsection.
50. Report of inspections
(1) After conducting an inspection under section 49, the Chief Inspector must make a report in writing on—
(a) the contribution of the early years provision to the well-being of the children for whom it is provided,
(b) the quality and standards of the early years provision,
(c) how far the early years provision meets the needs of the range of children for whom it is provided, and
(d) the quality of leadership and management in connection with the early years provision.
(2) The Chief Inspector—
(a) may send a copy of the report to the Secretary of State and must do so without delay if the Secretary of State requests a copy,
(b) must ensure that a copy of the report is sent without delay to the registered person,
(c) must ensure that copies of the report, or such parts of it as he considers appropriate, are sent to such other persons as may be prescribed, and
(d) may arrange for the report (or parts of it) to be further published in any manner he considers appropriate.
(3) Regulations may make provision—
(a) requiring the registered person to make a copy of any report sent to him under subsection (2)(b) available for inspection by prescribed persons;
(b) requiring the registered person, except in prescribed cases, to provide a copy of the report to prescribed persons;
(c) authorising the registered person in prescribed cases to charge a fee for providing a copy of the report."
- The relevant Regulations are entitled Early Years Foundation State (Welfare Requirements) Regulations 2012. Throughout those Regulations there are references to "the Document" which is a reference to the 'Statutory Framework for the Early Years Foundation Stage' ("the Statutory Framework").
- The Statutory Framework sets out, in Section 1, the learning and development requirements. In Section 2, it deals with assessment. Section 3 is concerned with the safeguarding and welfare requirements. This is the most detailed section of the Statutory Framework and ranges from the general and obvious ("3.2 Providers must take all necessary steps to keep children safe and well"), to points of detail ("3.24 at least one person who has a current paediatric first aid certificate must be on the premises at all times when children are present…").
- There are a welter of further guidance documents issued by the defendant in respect of what is referred to as the Early Years stage. Perhaps the most important is the 'Framework of the regulation of provision on the Early Years Register', dated November 2013. That deals with the regulation system, registration, inspection, compliance and enforcement, and the defendant's explanation as to how it carries out its regulatory work. In the section dealing with inspection, under a heading 'The inspection process' and a sub-heading 'Before the inspection', the defendant's guidance reads as follows:
"48. As part of their preparation for inspection, inspectors check any previous inspection reports and information held about the provider, including a risk assessment of any concerns received and progress with any actions or recommendations raised at the last inspection or visit. They will also review the self-evaluation form if this has been completed and submitted by the provider.
49. We seek the views of parents and carers about the quality of provision ahead of an inspection by asking providers to display a poster telling parents how to contact Ofsted. Inspectors check to see if we have received any information through this route."
- There is a second set of guidance from the defendant entitled 'Inspection guidance for inspecting provision on the Early Years Register following the risk assessment process'. This document is dated June 2013. There is a useful section on inspections that may have been triggered by the expression of a concern, running from paragraphs 11 to 17. I note in particular paragraphs 15, 16 and 17 which read as follows:
"15. There are two main types of concern. The first relates to a matter of fact which the provider does not dispute. In these cases, the provider may have notified us of an incident in accordance with regulations; or, where they have not, accept that the incident occurred. The second relates to a situation where a parent or other person alleges something happened and the provider denies it happened or denies it happened in the way the parent/other person has described.
16. In the first situation, the discussion with the provider/manager should focus on what happened, whether the incident was preventable and any lessons learned. For example, if the incident was an accident to a child, the discussion should cover the quality of the risk assessment in place at the time of the incident, how this has been reviewed and amended since the incident, and how any potential risks have been removed or reduced further. The inspector should supplement the discussion by checking the area of the premises and discussing risk assessment with staff.
17. In the second situation the inspector should not try and prove or disprove the concern. Where there is a clear difference of opinion, the inspector should focus on observations on the day of the inspection and whether these lead to any concerns about compliance. For example, if the concerns relate to excessive crying in the baby room, the inspector should make sure they visit the baby room during an introductory tour and note in their inspection plan they will spend particular time observing in this room. They may also want to check that the staff for that room present during the inspection are the 'normal' staff and talk to parents and carers of children in that room."
- Immediately after that section this guidance sets out details about 'making judgements' and 'inspection reports'.
- Thirdly, and also relevant to inspections following a concern being raised, there is another document produced by the defendant, dated August 2012, with the unwieldy title of 'The legal basis of our work and our options for insuring compliance: childminding, childcare and children's social care'. At paragraph 6 of this document, it says:
"We are not a complaints adjudicator. We have no legislative duty or power to investigate complaints against providers to determine whether complaints are upheld, partially upheld, or substantiated. Our role is to establish whether a registered person is meeting the "Statutory Framework…"
- Fourthly, there is an important document entitled 'Evaluation schedule for inspections of registered early years provision'. This document is dated October 2013. In it, the defendant identifies in detail what is required to justify each of the four possible outcomes on an inspection ('1 outstanding', '2 good', '3 requires improvement' and '4 inadequate'). The three different aspects of the provision which are each separately evaluated using this marking scheme are:
(a) 'How well the early years provision meets the needs of the range of children who attend';
(b) 'The contribution of the early years provision to children's well-being'; and
(c) 'The effectiveness of leadership and management of the early year's provision'.
I refer to these below as 'the three relevant criteria'. In each case, the evaluation must be evidence-based, with "the main evidence" coming from the inspector's direct observations and interviews with the relevant staff.
- Finally, there is the defendant's most recent guidance, published in April 2014, and entitled 'Conducting early years inspections'. This provides, amongst other things:
"16. The inspector must spend as much time as possible observing a wide range of activities and care routines, talking to practitioners and children about what they are doing and evaluating children's understanding and engagement in learning. In setting up the inspection the inspector should engage the provider in the inspection and explain how and where evidence will be gathered…
52. The evaluation schedule [see paragraph 11 above] sets out the judgements that the inspector must make and the aspects they should consider when doing so. The inspector must use professional judgement to weigh up the available evidence in each area and consider it against the descriptors to reach judgements that fairly and reliably reflect the quality of the early years provision.
53. The inspector must ensure that they take account of the history of the provision in making their judgements. Inspection is not just about what the inspector sees on the day; it is also about the inspector's knowledge about this setting, including any concerns that have arisen and whether they still impact on the setting's compliance with requirements, and the effectiveness of improvement plans over time."
- My attention was drawn to an authority with some similarities to the present case, Cambridge Associates in Management v Her Majesty's Inspector of Schools in England (Ofsted)  EWHC 1157 (Admin). In his judgment, James Goudie QC, sitting as a Deputy High Court Judge, made the following general observations about the inspection regime:
"7. Ofsted's function is to establish whether a registered provider is meeting the welfare requirements, and, if they find a failing in that respect, to consider what action, if any, to take. A complaint made to it may, as in this case, trigger an inspection, but it is not as such adjudicating upon a complaint.
8. When Ofsted considers that there has been a failure to meet the welfare requirements, then it operates an escalating tariff of statutory and non-statutory actions. It does so in accordance with the overriding principle of seeking to ensure the welfare and protection of children. Its enforcement powers include serving a statutory welfare requirements notice. Breach of such a notice is a criminal offence. Ofsted did not do that in this case, or exercise any of its draconian powers.
9. Lesser action is a common regulatory tool. That is what this case is primarily about. It is described as non-statutory action. That simply means that it is not one of the specific actions expressly mandated or authorised by statute, but is something more light touch done pursuant to any statutory body's general and subsidiary powers.
10. At the material time, Ofsted Inspectors wrote an Outcome Summary. Where Ofsted had to take action to ensure that the provider complied with its legal requirements, the Outcome Summary was published on Ofsted's website, for the benefit of parents, to enable them to make informed choices."
- In that case there was a complaint that, on a particular day, there was inadequate supervision of at least eight pre-school children for a period of about five minutes. There was no serious dispute as to the facts and Ofsted concluded that those eight or so children were inadequately supervised. The learned judge rejected the complaint about Ofsted's decision to issue a notice to improve, on the basis that the incident had undoubtedly occurred and Ofsted were entitled to conclude that, although the period of inadequate supervision was short, it was nevertheless significant.
- In addition, the deputy judge rejected the complaint that the defendant had been wrong to publish a summary of the report on their website. He called it an Outcome Summary. He said that publication of the Outcome Summary was neither unnecessary nor disproportionate, and that it represented a reasonable and proportionate use of the powers conferred on the defendant by Parliament. "It strikes a fair balance between the interests of parents and the interests of providers" (see paragraph 59).
3. THE BACKGROUND FACTS
- The nursery was inspected by the defendant on 17 September 2013. It was rated as outstanding under each of the three relevant criteria noted in paragraph 12 above. A grade 1 was recorded for each criteria, and for the service provision overall.
- On 30 April 2014, the defendant received a complaint from a member of the public arising out of an incident on the morning of the day before. The complainant said that she had been driving very slowly (five miles per hour) along a road close to the primary school and had to put her brakes on because a child from the nursery "was not walking in a straight line and stepped into the road". The complaint went on to note that there were "around three members of staff" supervising the children.
- In consequence of this complaint, on 6 May, the nursery was inspected on behalf of the defendant. The inspector was Ms Joanne Gray who was employed by Prospects, a company to whom the defendant apparently sub-contracts some of its inspection obligations. Ms Gray made her notes (on what I assume was a laptop) as the inspection progressed, producing what is called the "evidence base". This was of course not seen by the claimant at any time until disclosure in these proceedings.
- The relevant passages of the evidence base are as follows:
"Previous report – action/recommendations to follow up = continue to monitor and embed new systems to track and record children's progress, to ensure that assessments continue to be sharply focused and children continue to maintain the very highest levels of achievements…
It was undisputed that this incident had happened and a child had stepped out into the path of an oncoming car on the walk to school. This had happened because two children were 'messing' around and one of them was pushed into the road by the other. As a result of the incident the provider has completed an incident report. However, this incident report did not examine the incident in detail or contain information about what action would be taken as a result. It did not even contain the number of children or staff on the walk to school, in fact the preschool supervisor hadn't even looked at the register to find out until I asked her. When questioned about how many children were walking to school on the 29th she said 'it was quieter than today less children' she was very surprised that her register showed there were 29 on the walk. When I questioned the owner about the incident report and lack of action she thought she had carried out a review, I told her it was inadequate and didn't address the issues, reminding her that they didn't even review number of children and staff…
I was given mixed messages about what had happened since the incident with regard to staff on the walk to school. The owner said there are always 3 staff on walk to school but could offer no explanation why there were only 2 on the day of the incident. [ ] told me that there were sometime 2 or 3. [ ] (the third MOS on school walk today) didn't know where to get her high visibility vest from and there wasn't one for her to wear. It seemed that she had not done this before and I got the impression that she was going because of the inspection (dis). The supervisor [ ] told me she had spoken to [ ] (deputy and other MOS on walk to school) and the owner since the incident about what they could do differently. However she said 'you can't wrap them up in bubble wrap', they already wear high visibility vest and walk in pairs.
[On the day of the inspection] the line of children was very long, staff positioned themselves in front, in the middle and behind. It was evident that 2 MOS and 29 children (8 in early years) is not adequate to ensure the safety of children, it was only just adequate today with 3 MOS and 25 children. Today's supervision was adequate and children were reminded to stay in pairs and staff talked to them about checking for cars before crossing the road…
It was found that the provider had compromised children's safety and a child had been pushed into the road during the walk to school. This was because the provider did not provide adequate numbers of staff to safely supervise children…" (my emphasis).
- It is quite clear that the claimant regarded the inspection as unsatisfactory because, on 12 May, two months before they received even the draft report, the claimant made a formal complaint to the defendant about the inspection. The complaint was lengthy, running to seven pages. It was responded to over a month later, on 19 June 2014, when Prospects rejected all of the criticisms that had been made.
- It was not until 10 July, over two months after the inspection, that the claimant received the defendant's report. This was provided in draft because, in accordance with its usual practice, the defendant invited the claimant to correct any factual errors. The version of the report sent on 10 July evaluated each of the three relevant criteria as inadequate, so a grade of 4 was awarded for each of them, and for the service provision overall.
- In addition to the provision of the draft report, three other documents were produced on 10 July 2014, each of which was extremely critical of the claimant. First, Prospects' covering letter sending the draft report was blunt:
"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."
- Secondly, the letter of 10 July 2014 enclosed a notice to improve. This identified nine different actions which the claimant was required to take. The dates by which those actions were to be carried out had already passed, because they ranged from 11 May to 1 July 2014. Whilst some of the requirements in the notice were reasonably clear, others might be regarded as so vague as to be meaningless. One example of this latter type was a requirement to "ensure the assessment process is robust enough to clearly identify children's next steps and plan challenging experiences for each child".
- Thirdly, also on 10 July, there was published on the defendant's website a document which, in the papers, both parties had called a 'Summary of Complaint', because that was what it was headed. However, it was plainly not a summary of the complaint that had been made because it dealt with both the subsequent inspection and the result of that inspection, at least insofar as it related to the complaint of 30 April. On analysis, it is very similar to what the Deputy Judge in Cambridge Associates called the Outcome Summary. I note that, in its draft form (to which I refer at paragraph 42 below) this document is indeed called an Outcome Summary. Both counsel agreed that that is what it purported to be, so that is what I shall call it.
- The Outcome Summary was in these terms:
"On 30 April 2014, we received a concern that a child being taken to school by the provider had stepped into the road in front of a car almost causing a road traffic accident. As a result of the complaint we carried out an inspection and looked into this incident, to see whether the provider was meeting the Early Years Foundation Stage requirements for Risk Assessment and Ratios. In particular the requirement that providers must keep children safe whilst on outings must consider adult to child ratios. It was found that the provider had compromised children's safety and the child had been pushed into the road during the walk to school. This was because the provider did not provide adequate numbers of staff to safely supervise children. In addition the provider had not adequately investigated the incident or reviewed the risk assessment for outings in order to take appropriate action so as to ensure it could not happen again. We sent the provider a notice to improve which asked them to ensure risk assessments are in place and are regularly reviewed to maintain the safety of children on the walk to school."
- This Outcome Summary was dated 1 May 2014. The defendant could not explain why it was given that date. It remained on the defendant's website from 10 July 2014 until 11 September 2014, when it was apparently taken down.
- On 15 July 2014, the claimant responded to the defendant's invitation to record factual errors in the draft report. Because of its ongoing concerns with the whole process, the claimant requested the defendant not to publish the report on its website. However, that very same day, having made just one change to the text prompted by the claimant's response, the defendant published a first version of the report. It appears that the claimant did not become aware of this until 30 July.
- On behalf of the defendant, Prospects did not respond to the letter of 15 July until 8 September 2014. Again the complaints and other points made by the claimant were largely rejected. However they accepted that some changes to the report needed to be made as a result of the claimant's letter. It was not explained why, in those circumstances, the defendant had ignored the claimant's request not to publish the first version of the report.
- Things then went from bad to worse. A second version of the report was published on the defendant's website, but it was very different to the first published version in ways that the defendant did not intend. The defendant accepts that this second version should never have been published, and has blamed Prospects for 'an administrative error', but has offered no explanation for how a report marked 'not accepted for publication' was published on the internet. It was removed from the defendant's website and a third version of the report was subsequently published. This made some changes in accordance with the claimant's letter of 15 July.
- Meanwhile, showing a speed and efficiency which its paper processes lacked, the defendant inspected the nursery again on 6 August 2014. To the claimant's surprise, that inspection concluded that all the elements in the notice to improve had been closed out by 6 August 2014, even though the claimant had not been able to understand some of the requirements, and had only become aware of the publication of the first report a few days before. The note of the inspection went on:
"Having considered all the evidence, the inspector is of the opinion that the setting has taken prompt and effective action to address the points for improvement."
This was confirmed by a re-inspection on 14 October 2014. The defendant evaluated the claimant as 'outstanding' under each of the three relevant criteria, awarding a grade 1 for each, and a grade 1 for the service provision overall.
- Accordingly, one of the issues which arises in the present case concerns the reliability or rationality of an inspection regime which rated the claimant as 'grade 1 outstanding' under each of the three relevant criteria and overall in the autumn of 2013; rated it as 'grade 4 inadequate' under each of the three relevant criteria and overall in July 2014; and rated it as 'grade 1 outstanding' under each of the three relevant criteria and overall in the autumn of 2014. I am told that it was on this issue that Cranston J expressed his concern when giving the claimant limited permission to make this application. I share that concern.
4. GROUND 3: THE CHILD IN THE ROAD
- The Issue
- It is common ground between the parties that the defendant was not entitled to investigate and/or adjudicate upon the complaint of 30 April 2014. The basis for that agreed position can be seen in the references in the defendant's guidance at paragraphs 9 and 11 above ("we have no legislative duty or power to investigate complaints'). The principal issue between the parties, therefore, was whether the defendant did or did not investigate and/or adjudicate upon the complaint. If it did, it is said that that was plainly an unlawful act in breach of its powers. There is also a secondary dispute as to whether, if the defendant did investigate or adjudicate upon the complaint, its findings could be justified. Although this was really a matter that arose within the ambit of Ground 5, (Section 5 below), it seems to me convenient to deal with it here.
- The Outcome Summary
- The Outcome Summary is set out at paragraph 26 above. In my judgment, there can be no doubt that this document reflects an investigation into, and an adjudication upon, the complaint of 30 April 2014. There are a number of reasons for that conclusion.
- First, the Outcome Summary makes plain that the defendant was investigating the complaint ("we carried out an inspection and looked into this incident").
- Secondly, the defendant adjudicated upon the complaint ("it was found that the provider had compromised children's safety and a child had been pushed into the road during the walk to school").
- Thirdly, the conclusion of the investigation was that the complaint had been proved, and was due to the claimant's default ("this was because the provider did not provide adequate numbers of staff to safely supervise children").
- Fourthly, the entirety of the Outcome Summary document concerns the complaint, the investigation, the findings, the culpability on the part of the claimant, and the sending of a notice to improve, all of which arose out of the incident of the child in the road. There is nothing in the Outcome Summary to indicate that the inspection or the outcome of that inspection was concerned with anything other than the complaint of 30 April.
- On behalf of the defendant, Ms Thelen said that the inspection may have been triggered by the complaint, but that it dealt with a much wider range of issues. That may be true of the inspection and the subsequent report (in any of its published guises), but it is patently not the case in respect of this Outcome Summary.
- Ms Thelen's second argument was that there was no error because it was not disputed that a child had been in the road. Accordingly, by reference to the guidance set out in paragraph 9 above, she said that the complaint itself was not in dispute, so that it was in the first category noted there, not the second. She said that the focus of the inspection was therefore on whether the incident was preventable and any lessons learnt.
- In my view, that submission is unrealistic. Whilst there was no doubt that the child was in the road for a moment, the circumstances in which that had arisen, and whether or not there were adequate numbers of members of staff to prevent it, was very much in dispute. Any reading of the evidence base (paragraph 20 above) makes it crystal clear that Ms Gray was focussing and then ruling on a matter that she knew to be in dispute, namely how many members of staff were accompanying the children. This was therefore not a situation in which the relevant facts were agreed.
- Finally on this point, there was in the disclosure a draft Outcome Summary (page 889 of the bundle). This stated "as a result of the complaint we carried out an inspection and looked into this incident". These words were subsequently deleted, doubtless because someone at the defendant was concerned that they made plain that they had done precisely what they should not have done. Yet the defendant's own reply to the letter before action dated 4 September 2014 gives the same game away by talking about when "the inspector began her investigation of the incident". Both these documents only confirm my view that the defendant acted unlawfully in investigating and ruling on an incident which it was not empowered to do.
- For all these reasons, I consider that the Outcome Summary document was the result of an investigation into and adjudication upon the complaint of 30 April 2014. Since it was agreed that the defendant was not entitled to undertake any such investigation/adjudication, it follows that the Outcome Summary should never have been produced, let alone published on the defendant's website.
- The Basis of the Findings
- The basis of the findings in the Outcome Summary can be seen in Ms Gray's evidence base. Indeed, the key passage in the Outcome Summary is taken verbatim from the evidence base (the italicised passage at the end of paragraph 20 above). That itself suggests a rather slapdash approach, where a damning document is published on the defendant's website two months after the inspection, but comprises just a verbatim quote from a running record being prepared by an inspector during the course of her inspection, without any subsequent modification at all.
- There are two key elements of that finding. One is that the child was "pushed into the road". The other is that there were only two members of staff on duty that day. I accept the claimant's submission that, on analysis, neither of these findings were open to the inspector.
- As to how the child was in the road, the complaint made clear that the child had "stepped" into the road. That was broadly consistent with the claimant's incident log which said that Child A pretended to walk into the telegraph pole and bounced himself backwards which meant that he knocked into Child B who knocked into Child C, who went into the road.
- Nobody but Ms Gray had ever used the expression "pushed into the road". A push suggests a deliberate action and has more serious connotations than a simple accident. There was no evidence at any time that Child C was "pushed". There was therefore no basis on which Ms Gray could or should have used that word in her evidence base, and no basis for the defendant to use that word in their Outcome Summary.
- The position in respect of the number of members of staff is more complicated but, on a proper analysis, produces the same conclusion. It was always the claimant's case that there were three members of staff. The complaint referred to three members of staff. The contemporaneous records were completed by three different members of staff, each saying that they were escorting the children on the morning in question. Ms Gray's evidence base also makes plain that "the owner said there were always three staff on walk to school."
- The evidence base document demonstrates that Ms Gray 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 that there can only have been two staff because she could only find two high visibility vests. The evidence base identifies no other reason for the conclusion that there were only two members of staff on the walk to school. That was not a proper basis on which to ignore all the contemporaneous evidence that demonstrated that there were three.
- The defendant's position on this question has been undermined still further by other matters. First, the letter of 19 June (paragraph 21 above) from Prospects refers to the staff giving 'inconsistent accounts' on this topic. They did not, and the evidence base does not suggest that they did any such thing. Secondly, the first witness statement from Ms Gray makes assertions that are contrary to her own contemporaneous record. She says that Ms Harris "agreed initially with me that only two members of staff had been present with the children when the incident occurred". To the extent that it matters, I reject that evidence: it is contrary to what Ms Harris has always maintained; it is contrary to the evidence base; and it was not asserted in the letter of 19 June, although it is clear on its face that the letter had been prepared following a discussion with Ms Gray. There is no suggestion anywhere that Ms Harris ever agreed that there were only two members of staff on duty on 29 April.
- Also in her witness statement, Ms Gray suggests that, if there were 29 children, then even three members of staff were not enough. I reject that as an ex post facto justification of the kind discouraged by the courts (see R (Macrae v County of Hertfordshire DC  EWCA Civ 457, albeit a case in a different area of law). There is no mention of that potential criticism in the evidence base. There is likewise no mention of it in the draft report or any of the three versions of the published report.
- Accordingly, I find that there was no evidence to support the finding that Child C was "pushed" into the road, and no evidence to support the finding that there were only two members of staff on duty on the walk to school. Thus, not only did the defendant exceed its powers by investigating and adjudicating upon the complaint, but in doing so, it reached conclusions that were not open to it.
- The Effect on the Report
- For this purpose, I will use the third and final published version of the report. That is different to the Outcome Summary, because it deals with so much more than just the walk to school, either on 29 April or generally. If we take the five key findings set out on the first page of the report, it can be seen how far removed many of them are from the incident on 29 April. Thus:
"? Rigorous recruitment, induction and supervision procedures are not in place to ensure all staff working with the children are suitable to do so.
- Children's safety is at risk because they are not adequately supervised by staff on the walk to school, during outdoor playtimes and during meals in the baby room. Furthermore, suitable risk assessments are not in place, resources are not always suitable for children to access and reviews about significant incidents are ineffective. (My emphasis).
- The out of school club does not keep an accurate record of the names of children looked after on the premises and their hours of attendance, to ensure children's safety.
- The assessment process is not consistently followed by staff; this means that children's next steps are not always accurately planned and activities sometimes lack challenge. Also the progress check at age two does not contain a written summary of children's strengths or identify and emerging concerns. Therefore, not all children make sufficient progress in their learning and development.
It is only the second bullet point, which I have highlighted, that is directly affected by the unlawful investigation/adjudication, and the unjustified findings. Throughout the rest of the report, there are a number of criticisms and comments on things that need to be improved, which include some references to "the walk to school", but which also refer to numerous other elements of the nursery's activities.
- Staff do not obtain information about children's starting points from their parents or consistently carry out their own observations of what children know and can do when they start at the nursery. This means that they cannot demonstrate the progress children make over time."
The only other part of the report to which my attention was drawn by Mr de Mello was the section set out below:
"The leadership and management of the nursery is inadequate. The nursery is not meeting some of the requirements of the Statutory Framework for the Early Years Foundation Stage. As a result, a number of legal requirements relating to the Early Years Register and both parts of the Childcare Register are breached. This impacts overall on children's safety, well-being and learning. This inspection was prioritised by Ofsted as a result of concerns being raised. Staffing arrangements during walks to school are not suitable to ensure children's safety and registers of children's attendance are not maintained. Furthermore, children's safety is compromised because recruitment processes are not rigorous enough to make sure that all staff are suitable to work with children."
That passage is also directly affected by the investigation/adjudication into the complaint. Incidentally, it is also wrong to refer to "concerns"; there was only ever one.
Whilst that is the extent of the direct effect of the investigation/adjudication upon the report, it is clear that other passages in the report were or may have been indirectly affected by Ms Gray's negative view of the circumstances surrounding the incident on 29 April. So, when considering the final report in the round, I conclude that the complaint of 30 April (and the investigation and adjudication of that complaint) comprised an important element of that report. It is equally plain that the report covered a much wider range of issues and involved findings by the inspector that were not directly or indirectly linked to that complaint. So whilst I agree with Mr de Mello that the wrongful investigation and adjudication of the complaint (and the unjustified findings reached) infected the report, it cannot be said that it infected all of it.
For the reasons set out above, I consider that the Outcome Summary was a thoroughly flawed document. It was the product of an unlawful investigation and adjudication upon the complaint of 30 April 2014. It was based on findings which were not open to the inspector. Perhaps worst of all, it was not a proper Outcome Summary at all, because it was only a summary of one aspect of the report that was eventually published by the defendant.
As to the report itself, I find that parts were directly and indirectly infected by the unlawful investigation/adjudication upon the complaint, and parts were not. If I take the five bullet points set out at paragraph 53 above as a summary of the report as a whole, then it is only the second bullet point that is directly infected. Thus Ground 3 is made out, but only in part. I shall consider the relevant remedy after considering Ground 5 below.
5. GROUND 5: UNFAIRNESS/IRRATIONALITY
There were a whole host of reasons why, in its original Summary of Grounds, the claimant complained about the inspection and the report. But some of those comprised an attempt to try and reargue the merits, which is not permissible on an application of this kind. In addition, permission has been refused to raise some of the other complaints by two different judges. It is therefore important to identify at the outset those matters which I consider to be irrelevant to any consideration of the fairness/rationality issues.
Originally the Summary of Grounds complained that Ms Gray was biased because she had a conflict of interest (Ground 1); that the trainee inspector had participated in the inspection (Ground 2); and that the inspection should have been discontinued when Ms Harris fell ill part way through the day (Ground 4). Permission was refused to allow these matters to be argued so they do not arise for my consideration.
In addition, complaints were made in Mr de Mello's skeleton that Ms Gray was demeaning to staff and to the Deputy Manager after Ms Harris had been taken away by ambulance; that she behaved autocratically and unreasonably; and that she failed to put her concerns to Ms Harris before reaching conclusions. None of these allegations was supported by the evidence. Even if they had been, I consider that they go nowhere: it will very often be the case that teachers at a school being inspected will regard the inspectors in a less than favourable light. But the issue is whether the inspector's conduct led to any particular unfairness, and none has been established on the evidence.
It is not for an inspector to put every point to the manager of the school being inspected (in this case Ms Harris) in order to obtain a response. It is a matter of degree and judgment. It is plain that there was considerable dialogue between Ms Gray and Ms Harris: the evidence base makes that clear. In essence, this complaint is just another way of saying that the claimant does not like the findings made by Ms Gray. That may be so, but that is not a legitimate matter for judicial review.
There are complaints that Ms Gray made mistakes. Two of those (the "pushed" child and the number of members of staff on duty) I have dealt with above. Others, such as the location of the Certificate of Insurance and a point about whether a particular person had been recruited because he was the son of a friend of Ms Harris, seem to me to be unsubstantiated and of marginal relevance in any event. Again I consider that they amount to no more than an attempt to reargue the merits. None of these matters suggest an unfair or unreasonable process.
Finally, there was an attempt to criticise Ms Gray's bona fides by reference to her Facebook entries. In my view, such an attack was wholly unwarranted. There was nothing in the Facebook pages, which in any event postdate these incidents, to give rise to any criticisms of Ms Gray. The fact that subsequently she became friendly with the trainee who was there at the inspection on 6 May seems to me to be entirely unexceptionable. I regret the fact that the claimant thought it needed to bolster its case by raising this sort of material.
Accordingly, save for the important issue dealt with in Section 5.3 below, I reject all of the criticisms put forward on behalf of the claimant under the heading of unfairness/irrationality.
The one point of real substance within Ground 5 was the criticism that Ms Gray failed to have regard to any of the history of, or previous reports on the nursery, including the glowing report of September 2013. It was said that, by failing to do that, she was in breach of the defendant's own guidance, set out at paragraphs 8 and 13 above ("the inspector must ensure that they take into account the history of the provision in making their judgements").
I find as a fact that Ms Gray had looked at the previous report of September 2013. That can be seen in the evidence base. But the same document strongly suggests that all she looked at was the action/recommendations in that report: that is all that is referred to in the evidence base.
I also find as a fact that Ms Gray did not take into account any elements of the history, or the previous report of September 2013, when she made her judgements in the report following the incident on 29 April. There is no part of the report produced as a result of Ms Gray's inspection which makes any reference whatsoever to the earlier report or the history of the provision, and no such consideration can be inferred from the evidence base or the report.
Moreover, I consider that this conclusion is consistent with:
(a) Ms Gray's comment on the day of the inspection to Ms Harris, which is not challenged, that previous history did not matter because this was "a different day [and] a different inspector."
In my view, the guidance at paragraphs 8 and 13 is clear. When making the critical judgements set out in the evaluation schedule, the inspector "must ensure that they take into account the history of the provision." The rationale for that, is that: "inspection is not just about what the inspector sees on the day; it is also about the inspector's knowledge about this setting…"
(b) Ms Gray's witness statement, at paragraph 17, which stresses that she made her judgement's "based on my observations and the evidence gathered on the day of the inspection…I am not required to speculate as to the reasons for any change in judgement from a previous inspection."
On the evidence, I find that Ms Gray completely ignored this guidance. She made judgements that deliberately did not take into account the history of the claimant ("a different inspector, a different day"). There is nothing to suggest that, beyond what the previous report said about future action, Ms Gray had any regard to the history at all. She was therefore in breach of the defendant's guidance.
This is not nit-picking. On the contrary, I consider this aspect of the defendant's guidance to be of fundamental importance. Inspections of schools (and the subsequent reports) are a vital tool in the defendant's armoury so as to ensure that all schools strive to and maintain a proper standard. But it is of critical importance to ensure that such inspections are not random, one-off events in which absolutely everything turns on what happens on the day of the inspection. Instead, inspections must be carried out on a consistent basis, ensuring that each one is part of a continuum, building towards improvement or the maintaining of excellence.
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.
I am fortified in these views by two other parts of the evidence. First, there is the evidence of Ms Gasson, the defendant's Principal Officer, Early Years. She makes clear that, including the claimant, twelve providers experienced a grade change from 'grade 1 outstanding' to 'grade 4 inadequate' and back to 'grade 1 outstanding' within three consecutive inspections. But although she apparently thought that evidence helped the defendant, in my view it patently does not.
First, those figures relate to a period of ten years. So excluding this case, this extreme grading change happens about once a year, across the country. It is therefore very rare. Secondly, the number of schools or Early Years services providers to which those figures relate will run into the many hundreds if not thousands. Exhibit DG1 alone has 840 different entries. That also demonstrates how rare it is. Thirdly, Ms Gasson does not say if any of the other eleven instances saw this change within the space of just one year: the claimant's situation could therefore be unique. All of that suggests that something very unusual happened in this case; that this inspection probably went wrong.
The second element of the evidence which confirms my view that something did indeed go wrong in this inspection/report is a document called 'Evidence Based Review', prepared by the defendant on 21 August 2014, and again not seen by the claimant until disclosure in these proceedings. This comments on the report in highly critical terms, and observes that the evidence set out there had not been 'sufficiently evaluated'. Other criticisms are that 'evidence is not sourced appropriately' and 'lacks clear lines of enquiry'.
This review document also fatally undermines Ms Thelen's submission that the court should not intervene because this complaint raises questions of professional judgment which have already been the subject of a quality assurance exercise by the defendant, by way of its responses to the first and second complaints. This suggests that, far from being happy with the report, the defendant was very worried about it. Turning the defendant's argument around, it is a major concern that its internal review is so critical of the report, when the open responses to the complaints were so dismissive of the claimant's (very similar) criticisms.
Accordingly, I conclude that, in the round, the report reaches irrational conclusions. In particular, just like Cranston J, I consider that 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. This second failure alone meant that the report (and the evaluation of 'grade 4 inadequate') was irrational.
For the reasons set out above, I reject all of the claimant's other complaints about unfairness and irrationality, save in respect of the inspector's failure to have any regard to the history and the previous report of September 2013. I consider that this failure was significant. It was a failure to follow the defendant's own guidance, as set out in paragraphs 8 and 13 above. It led to an irrational and unjustified conclusion which was wholly out of step with both the previous and the subsequent reports.
6. GROUND 6: THE CLAIM FOR DAMAGES
This is not a separate Ground but a separate claim arising out of the publication of the Outcome Summary. The claimant claims damages as a result of the alleged damage to its reputation following the publication of the Outcome Summary for the two months between 10 July 2014 and 11 September 2014.
For the reasons set out in Section 4 above, I consider that, on the facts of this case, the publication of the Outcome Summary was unlawful. It was itself the result of an unlawful investigation of/adjudication upon the complaint of 30 April. In any event, there was no basis for its findings. Still further, it was not a proper Outcome Summary at all because it bore so little resemblance to the report itself.
In those circumstances, it is not necessary for me to decide whether or not the defendant ought to have given the claimant the opportunity to respond before it was published (R v Home Secretary ex parte Doody  1 AC 531) because its publication was unlawful in any event. Of course, if such an opportunity had been given to the claimant, then the points that I have set out in Section 4 above could have been made in response.
Ms Thelen took the point that, in Cambridge Associates, the deputy judge had concluded that the publication of the Outcome Summary was reasonable and justified. She therefore said that was also a complete answer to this claim. But it is not clear that the points argued before me ever arose in Cambridge Associates. Moreover, the facts are very different. My findings that there was no basis for the content of the Outcome Summary and that it was, in any event, not a proper Outcome Summary at all, plainly did not arise in Cambridge Associates. That authority is no answer at all to the particular facts which arise here.
The next issue is whether a company can claim damages in consequence of damage to its reputation pursuant to Article 8. Ms Thelen is right to say that there is no case law clearly in support of such a proposition. However, it is unnecessary for me to decide the point because, even if I was prepared to assume that a company could make such a claim, I have no doubt, for the three separate reasons set out in Section 6.4 below, that no such claim is available in the present case.
Reasons Why There Can Be No Claim For Damages
There are three separate reasons why, on the facts of the present case, there can be no claim for damages pursuant to Article 8. I take them briefly in turn.
First, there is no evidence of any damage to the claimant's reputation as a result of the fact that, between 10 July 2014 and 11 September 2014, the Outcome Summary was published on the defendant's website. Claims of this sort require evidence. In the absence of such evidence, the court cannot conclude that there has been any damage. That applies to both claims for special damages and claims for general damages. If damage to the claimant's reputation has not been shown, then the claim fails at the first hurdle.
Secondly, I do not consider that the claimant can have had any reasonable expectation of being able to make a claim for damages consequent upon damage to reputation in this sort of situation. Section 151 of the Education and Inspections Act 2006 provides that reports of this kind are privileged unless its publication can be shown to have been made with malice. There can therefore be no claim for reputational damage in the absence of malice. There is no malice in the present case. Accordingly, the claimant would have known that reports of this kind do not give rise to claims for damages as a result of alleged loss of reputation.
In some ways, Section 151 presupposes the existence of just the sort of debate that there has occurred in this case. Parliament expected that there would be times when, such as here, reports were found to have been unjustified. But Parliament acted to ensure that no claims could follow in consequence, doubtless to ensure that inspectors were not cowed into producing bland reports which would not upset the schools in question.
Thirdly, the well-known case of Axel Springer AG v Germany  EMLR 15 is authority for the proposition that, in order for Article 8 to come into play, an attack on a person's reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see paragraph 83 of the judgment). In the present case, I find that the fact that the Outcome Summary was available for two months, in circumstances where there is no evidence of any harm to the claimant's reputation at all, mean that the appropriate level of seriousness has plainly not been reached.
For all; those reasons, the claim under Article 8 is refused.
For the reasons set out in Section 4, I consider that the defendant wrongfully investigated and adjudicated upon the complaint about the child in the road. The unlawfulness of that investigation and adjudication was compounded by the making of findings which were not open to the inspector. The Outcome Summary was an illegitimate document. This infected at least some parts of the published report, although not other parts.
For the reasons set out in Section 5.2 above, I reject all but one of the complaints about fairness or irrationality. For the reasons set out in Section 5.3 above, I uphold the complaint that the inspector reached an irrational conclusion as a result of her failure to have any regard to the history of the nursery and the previous report, in reaching her evaluative judgements.
For the reasons set out in Section 6 above, I reject the claim for damages under Article 8.
There are three documents which are the product of this flawed process. The Outcome Summary was unlawful and unjustified. I order that, on no account, is it ever to be republished by the defendant.
Whilst the notice to improve was in some respects a flawed document (the dates had already passed and some of the requirements were unworkably vague) it does not seem to me that I should make any order about it. The inspection in August 2014 found that the notice had been complied with in full. To put the point another way, no adverse consequences to the claimant flow from the notice.
That leaves the published report which, after the various versions issued by the defendant, rests on the third published version which remains on the defendant's website. That report was infected by the unlawfulness of the investigation into and adjudication upon the complaint, and further infected by the inspector's irrational failure to have regard to the history and the previous inspection report. Whilst it may be said that some parts of the report may escape even that second failure, it seems to me that the fairest and most proportionate course is to order that the entirety of that report should be removed from the defendant's website and should not be republished in any form.
I will deal with all consequential matters at a separate hearing if they cannot be agreed between the parties.
Copyright Policy |
Donate to BAILII