City College Birmingham, R (on the application of) v Office for Standards in Education, Children Services and Skills [2009] EWHC 2373 (Admin)

Case No CO/6691/2009[2009] EWHC 2373 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 10 July 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE BURTON
Between
THE QUEEN ON THE APPLICATION OF CITY COLLEGE BIRMINGHAMClaimantv
Between
OFFICE FOR STANDARDS IN EDUCATION, CHILDREN SERVICES AND SKILLSDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MR J MCKENDRICK (instructed by EVERSHEDS) appeared for ClaimantMR P GREATOREX (instructed by TREASURY SOLICITORS) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE BURTON: This application for an injunction to be continued arises out of s125 of the Education and Inspections Act 2006, which governs Ofsted Inspections of Further and Higher Education Colleges. By that section, the Chief Inspector, who has the power to delegate under s9 of the Act, must inspect all institutions within the further education sector, and by subsection(2), those inspections are to be conducted at such intervals as may be specified by the Secretary of State, and, by subsection (3), there must be a written report on completion of an inspection.[2]The relevant section for consideration by me is subsection (4), which provides that the report(a) must state whether the Chief Inspector considers the education or training inspected to be of a quality adequate to meet the reasonable needs of those receiving it, and(b) may deal with such others matters as he considers relevant. By subsection (7), the Chief Inspector must arrange for the report to be published in such manner as he considers appropriate. There is, by s133, provision for a document to be published, described as a “framework”, of which a copy is before me, the Common Inspection Framework for Inspecting Education and Training. Additionally, there is a handbook which is published and generally available. That handbook is called the Handbook for Inspecting Colleges, and is generally referred to as the Guidance.[3]The claimant college, the City College Birmingham, was subject to an Inspection Report in 2007 which was not entirely satisfactory, and a further inspection was carried out in March of 2009. It took place over four days, between 2 and 6 March, when the Ofsted Inspection Team came in. The draft Ofsted Report was received for the claimant's comments in the middle of March, and the claimant sent in, on 25 March, a detailed letter of complaint in relation to that Report.[4]The Report is required, as I have earlier described with reference to the statute, to be published. There is, thus, a statutory duty to publish reports. The procedure under which Ofsted operates says that Ofsted will not normally delay a publication of an Inspection Report while a complaint is investigated, although it may decide to do so in exceptional circumstances. The norm, I am told, is for the publication of a Report within 7 weeks of the inspection. For whatever reason, and no doubt perfectly sensibly, the defendant did not publish the Report that was in draft at that stage, about which the detailed complaint had been sent, but carried out a detailed response to that complaint. That was under the supervision of a Miss Walters of Ofsted, and a detailed reply to the complaint was sent on 27 April 2009, which ran to more than 30 pages.[5]The claimant's solicitor requested a review of the complaint, and it was agreed between the claimant and Ofsted that Ofsted would not publish the Report until the review of the complaint was completed. The application for review was then put in, and that was carefully considered and a detailed reply was sent by a Mr Greenwood of Ofsted on 19 June 2009, dealing with, and so far as Ofsted was concerned, rejecting, all those complaints.[6]There was, it seems, some further discussion on 26 June between Mr Gibson of the claimant and a Miss Hunt of Ofsted, from which Mr Gibson was led to believe that there was to be a reconsideration of the matter that he raised, to which I will refer. But, in the event, there was not, and on 29 June these proceedings were issued. The parties agreed that the Report would not be published over until the hearing of the inter partes application for an injunction. which has come on before me.[7]The complaints to which I have referred were manifold, but none of them are suggested to amount, at any rate before me, not withstanding the length of the claim form, to an arguable case for a public law claim, except that which I will describe, and was indeed described in his oral submissions before me by Mr McKendrick as his bull point, which, I clarify, as meaning, in essence, his only point.[8]The Report, as is required and in accordance with the Framework and the Guidance, addressed a number of different topics and areas relating to the operation of the educational institution, and awarded grades with regards to each. The categories are as follows: Effectiveness of Provision, Capacity to Improve, Achievement and Standards, Quality Provision, Leadership and Management, and Equality of Opportunity. There are then eight sector subject areas, which relate to all the various subjects which are taught at or by the institution. There were, therefore, grades to be awarded in the six general areas, and grades to be awarded in the eight sector subject areas - eight as it turned out, seven as originally planned. I shall explain what I mean by that.[9]With regard to the six general areas, a Grade 3, satisfactory, was given for Capacity to Improve, Quality of Provision, Leadership and Management, and Equality of Opportunity; Grade 4, inadequate, was directed in respect of Effectiveness of Provision and Achievement and Standards. So far as Achievement and Standards are concerned, the Report recorded as follows in paragraph 12:
"Achievement and standards are inadequate, this is the same as the college's self assessment. The college's plans to improve success rates are beginning to have an impact, standards have improved since the last inspection ... At the time of this inspection success rates have not improved sufficiently to be judged satisfactory."
[10]Not least because it accorded with the self criticism by the college itself, no challenge is made to that failure recorded against the college in respect of Achievement and Standards. As far as Effectiveness of Provision are concerned, where, as I have indicated, there is also a failure - inadequate, Grade 4 - this, it appears to be common ground, is the central area for consideration by Ofsted of any institution. I have already read s125(4) of the Act, whereby the Chief Inspector must state whether he considers the Education or Training inspected to be of a quality adequate to meet the reasonable needs of those seeking it. In the Guidance, to which I referred, at paragraph 120, the following is stated by reference to what is required by the Act, still based on a previous Act, but there is no change by reference to the new one:[11]"The Act requires Inspectors 'to come to a judgment as to whether the education or training provided is of a quality adequate to meet the reasonable needs of those receiving it. The Inspection Team, at its final meeting, will make the judgment on adequacy. A college will be judged to be inadequate if it is awarded a Grade 4 for overall Effectiveness. A college which is at least satisfactory in its overall Effectiveness will not be judged to be inadequate overall'."[12]It is thus apparent that the Effectiveness of Provision category, in which this defendant failed, because it only received a Grade 4 grading, is indeed the central issue on an inspection.[13]So far as sector subject areas are concerned, there were satisfactory conclusions in relation to Health, Social Care and Early Years, Crafts, Creative Accounts and Design, Independent Living and Leisure, and Business Management; all of which obtained a satisfactory Grade 3. There was an inadequate marking, Grade 4, for Motor Vehicle Engineering, and Hairdressing and Beauty Therapy. In the penultimate form of the Report there was also an inadequate conclusion, Grade 4, in relation to English for Speakers of Other Languages (ESOL). This subject, looked at as a whole, in fact embraces about a third of the entire teaching of the school. The defendant was requested by the claimant to reconsider that grade by reference to a discussion, which bore fruit, of splitting out a part of the ESOL area into a separate marking. That is what occurred. ESOL itself was left with a satisfactory marking, Grade 3, and Literacy and Numeracy were stripped out of the main ESOL category and given an inadequate, Grade 4, marking.[14]The complaint before me which is said to amount to a public law complaint, is what follows from that relatively last minute change, at the instance of the claimant, in the defendant's Report. The claimant says that it is the most important aspect of the result that it came out with ‘satisfactory’ in relation to 75% of its subjects, and that, due to the splitting off of Literacy and Numeracy, 82% of the totality of the subject areas thus arrived at a satisfactory grade. It is only 18% of the whole, now including Literacy and Numeracy, which was thus graded at Grade 4.[15]The claimant asserts, through Mr McKendrick, that that ought to have had the consequence of a reconsideration of the inadequate Grade 4 marking for Effectiveness of Provision. If, instead of the whole of ESOL being marked unsatisfactory or inadequate, now the bulk of ESOL became satisfactory, then that very change ought to have required reconsideration of the conclusion with regard to Effectiveness of Provision. The claimant puts forward what effectively amounts to a Morton's fork; either there was no reconsideration of the Effectiveness of Provision category after the remarking of the ESOL subject area, which would have resulted in a Wednesbury unreasonable conclusion as to the inadequacy of Effectiveness of Provision, given the claimant's position that now 82 percent of the total subject areas was satisfactory, or, if there was a reconsideration and a refusal to reconsider, then that reconsideration or refusal to reconsider was done by only one person, and not by the totality of the Inspectors, who would inevitably have already had their meeting. The claimant asserts that the whole basis of the Handbook, on which it was entitled to rely, was that the decisions would be taken by the Inspection Team as a whole, on a collegiate basis. There are references by Mr Mckendrick to a number of passages in the Handbook, most significantly at paragraph 31:
"All key judgments, specifically judgments which are denoted by a grade ... are corporate judgments of the Inspection Team that will be determined at the final grading meeting."
He made a number of other references, which I do not need to spell out in this judgment.[16]So, says Mr McKendrick, there is a public law claim which would entitle the court, if persuaded by it, to quash the Report in relation to Ofsted's conclusion in relation to this central matter. It was Wednesbury unreasonable of them to conclude that the overall position of Effectiveness of Provision was inadequate. Alternatively, there was a breach of the reasonable expectations of the claimant.[17]This claim is one which is asserted in judicial review proceedings for which permission has not yet been granted. Several answers are put forward by the defendant to the claim. The first, and probably the major one, is that there in fact no material difference occurred when Ofsted agreed to the revamp of the sector subject areas, which was entirely presentational. There was no fundamental change to the overall picture, submits Mr Greatorex, for the defendant, although without at this stage the benefit of any evidence for the defendant, taking into account that it was only the Literacy and Numeracy parts of the ESOL sector subject area which were inadequate. That was why there was an agreement so to re-present the position. But such regrading would have no effect on the conclusion in relation to Effectiveness of Provision.[18]Secondly, Mr Greatorex points out that, by virtue of the very primacy of the Effectiveness of Provision in question, the Inspectors did not depend for their conclusion upon the precise conclusions in relation to sector subject areas. There is reference by him to the Ofsted response to the review application of 27 April 2009, where, indeed, it was recorded that a Grade 4 for Achievement and Standards, which is not a grading which is challenged by the claimant, as I have described, normally resulted in a Grade 4 for overall effectiveness.[19]Thirdly, in so far as the collegiate matter is relied upon, there is the fact that paragraph 63 of the Handbook refers to the fact that all grades determined by the Inspection Team at the final grading meeting are provisional, and remain so until the report is published. The fact that there was an agreed, post-final meeting, revamp of the grading of one of the subject areas, without any change in judgment as to the underlying factors, and at the request of the claimant, did not mean that there needed to be any different view taken as to the grading for Effectiveness of Provision.[20]Plainly, there is a peg on which the claimant can hang a claim justiciable in judicial review, by reference to the legal descriptions, Wednesbury unreasonableness/breach of legitimate expectation. It is noteworthy that this complaint, which certainly featured in the very recent conversations between Mr Gibson and Miss Hunt of Ofsted, to which I have referred, did not feature at all among the immediate and detailed complaints which the claimant put forward to the Report on 25 March. If it is, as Mr McKendrick submits, a bull point, a matter of real complaint, it is surprising that it did not feature in a lengthy list of complaints, none of which are now pursued as giving any legal basis for a claim. There was a very brief mention of the ESOL position in the second detailed complaint that was sent in on 7 May in a solicitor's letter; such letter was 15 pages in length, and almost exactly half way through, at the bottom of the page, the following statement is made:
"Neither the Interim Principal nor the Nominee were informed about the likelihood of a Grade 4 rating for overall effectiveness until a very late stage. Had they been informed of this, they would have found this a surprising conclusion, given that the majority of the College's provision had been judged to be satisfactory as currently offered."
[21]That shows that they already knew, and had discussed, the fact that the bulk of the ESOL subject area must have been regarded as satisfactory, because otherwise it would not generate the statement and the large majority of the College's provision had been judged to be satisfactory. The letter then continues:
"And the fact that leadership and management and capacity to improve had also been judged to be satisfactory, and that the ESOL provision was regraded as satisfactory on Friday afternoon."
[22]No point was made as to the question, now said to be the matter of public law claim, that the consequence of the regrading of the ESOL provision was unlawfully handled by the defendant.[23]I was invited by the claimant to decide whether permission should be granted today. I did not consider that question until after I had resolved the issue as to whether there should be an injunction, because that could have effected the degree of urgency with which this case must be considered. The claimant was ready to give up, by reason of having permission dealt with today, the opportunity of a second bite of the cherry, which a paper application followed by an oral renewal can give to a claimant, although always of course this can have costs implications. However, the defendant had not been given notice of an intention that this application would be dealt with as a permission application; a draft order was put before the court with the request for an ex parte injunction which, although not necessary because of the arrangement between the parties, was in fact granted by King J over today, and no such order was made. Nor was any notice, until a skeleton argument delivered last night, given to the defendant that the intention would be today to ask for this court to grant permission. Consequently, I do not consider that it is appropriate for me, in the absence of any acknowledgement of service setting out in due form, the defendant's case, to consider the question of permission.[24]Suffice it to say that I have indicated that I have considered the strength of the defendant's defences, even as they stand at present, but I can equally see as at today that there is an arguable case, at least so far as the law is concerned. But what is sought today is an injunction to restrain publication of the Report, as to which there is a statutory duty upon Ofsted to which I have already referred. There is no suggestion here of any claim for defamation or interference with privacy, unlawful interference with economic relations, or breach of contract, or procurement of breach of contract, or any other kind of cause of action which might found an injunction; it is a straightforward public law claim, that which I have described. It is a public law claim which seeks to interfere with the statutory duty of the defendant, and with the rights both of the defendant and of the public under Article 10 of the Human Rights Convention with regards to freedom of speech.[25]There is a clear and identifiable line of authority in relation to the grant of injunctions to restrain public bodies from publishing decisions or reports, which makes it clear that there are separate public law questions which fall to be considered alongside the ordinary principles of private law injunctions. So far as private law injunctions are concerned, the ordinary test, by reference to American Cyanamid, is whether there is an arguable case for the claimant, and if so, where the balance of convenience lies. In defamation cases, injunctions will rarely be given because of the obligations of freedom of speech, but certainly so where the defendant asserts that he or she intends to justify the truth of what it asserts. However, in the public law field there are additional considerations, as is clear from the authorities which have been put before me. The central authorities are, first of all R (Matthias Rath BV) v Advertising Standards Authority Limited [2001] HRLR 22, a decision of Turner J which chose to follow the earlier decision of Laws J in R v Advertising Standards Authority ex p Vernons Organisation Ltd [1992] 1 WLR 1289, rather than an earlier decision of Popplewell J in R v Advertising Standards Authority ex p Direct Line Financial Services Ltd [1997]. Turner J pointed out that Popplewell J had approached the matter as if the dispute between the parties existed in private law, whereas Laws J, experienced as he is in public law, had considered the matter properly in the area of public law.[26]The issue in Rath related, as is clear from the nature of defendant, to the publication of a decision of the Advertising Standards Authority. Then there is the case of R (London Borough of Ealing) V Audit Commission [2002] EWHC 2852 Admin, 11 December 2002, per Stanley Burnton J, which related to the publication of a report by the Audit Commission, making complaints about the financial position and administration of Ealing Council. Finally, R (Debt Free Direct Ltd) v Advertising Standards Authority Ltd, once again relating to a decision of the ASA [2007] EWHC 1337 Admin.[27]Different words are used by the judges in differentiating the more difficult hurdles which must be achieved by a claimant in a public law injunction case such as I have described from the ordinary, run of the mill, private law injunction case to which I have referred. There were pointed out by the various judges distinctions, some of which apply to this case: one in particular, namely that in a public law situation, such as here, it is usually the case that individuals are not seeking to salvage their reputation or avoid personal loss, and therefore there is, in addition, the impact of the Derbyshire County Council case in the House of Lords ([1953] AC 534) to be filtered in. Secondly, and almost duplicatively, the courts will, for that reason among others, have less readiness to grant an injunction in favour of one public body against another.[28]The real issue is one in respect of which, once again, this case is a fortiori because of the statutory duty to publish, and is the interest of the public in there being publication by the body which is required to prepare the Report. In the Rath case Turner J said that the defendant should only be prevented from publishing its opinions in a manner and time that was appropriate on "pressing grounds". In the London Borough of Ealing case, Stanley Burnton J said that the public has a right to receive the information contained in the Audit Commission report, "unless there are exceptionally strong grounds for preventing them from doing so". In the Debt Free Direct Ltd decision, Sullivan J said that he, like Turner J, unhesitatingly preferred the approach of Laws J to that of Popplewell J, and stated (in paragraph 21) “if restraint of the expression of private opinions is justified only in exceptional circumstances, then the grounds for restraining the publication of an adjudication by a public body exercising a quasi-judicial function must be all the more compelling if they are to succeed”. He said, in paragraph 24, that there would have, in his judgment, to be "the most compelling reasons to prohibit a public body which is embarked on a quasi-judicial task … from publishing its decision".[29]It is not simply, therefore, that there are all these additional words: "exceptional circumstances", "most compelling reasons", "pressing grounds", "exceptionally strong grounds", which require to be satisfied, but such that it will not be in every circumstance - far from it, that a good arguable case is entitled to be protected by an injunction.[30]Sullivan J gave examples of where there might be extreme circumstances - as he put it, in paragraph 24, "most compelling reasons to prohibit a the public body": if for example the public body had engaged in a vendetta against the person the subject of the adjudication or if the adjudication was prompted by a deliberate desire to inflict damage on the reputation of the person criticised. One can think of other examples involving fraud or corruption, or perhaps involving the intention to proceed with a Report which is, and can be shown to be, as on a justification injunction, manifestly untrue or riddled with error. It is never helpful to come up with examples, except suffice it to say that the test of the judge's thermometer, in terms of response to an injunction, will be set and calibrated several degrees higher, so far as looking at the arguability of a case, than it is in this case.[31]Assuming, as I do for the purpose of the injunction, that there is an arguable case on the part of the claimant, and even filtering in the damage which the claimant says it will suffer, which is no different from, and perhaps less serious than, that suffered by the victims of other alleged statements which they seek to restrain, I am entirely satisfied that there are not, in this case "most compelling reasons", "exceptional circumstances", "pressing grounds", or "extreme circumstances", which justify the grant of an injunction.[32]There may be a complaint which the claimant can pursue, and one of the further defences which will be adumbrated by Mr Greatorex refers to this, by way of an alternative remedy. There is specifically a system in the Ofsted complaints procedure which allows, by paragraph 16, an adjudicator, once a formal complaint has been received, to investigate complaints about, inter alia, maladministration.[33]Mr Greatorex submits that the existence of that alternative remedy is a ground for denying permission. But, quite apart from that, it is an available route for this claimant. What is not an available route for this claimant is to prevent the publication of the Report.[34]I would conclude in this case that, although such very approach has rendered the defendant vulnerable to the kind of argument that Mr McKendrick has put forward - that there must have been some implicit acceptance by the defendant that there were special or exceptional circumstances (to quote their own procedure), to justify what is described here as a delay - nevertheless the defendant has bent over backwards to answer all the complaints made by the claimant. It has not answered the complaint now made, at least prior to the issue of proceedings, not least because it was never generated, in any kind of comprehensive form, or raised, before proceedings. If there is any such substance to it, then no doubt consideration can be given within or without proceedings, and there is still time for publication by the defendant, as the claimant points out, of a preemptive defence to the criticisms that will be made in the Report, but not a remedy in these courts.[35]The application is therefore dismissed.[36]MR GREATOREX: My Lord I am very grateful for your Lordship giving such a comprehensive judgment so quickly. The only outstanding matter is costs, which I am happy to say is agreed in all respects; therefore I ask for an order that the claimant pay the defendant’s costs of this application, summarily assessed in the sum of £5000.

MR JUSTICE BURTON: Thank you.

[38]MR MCKENDRICK: I am obliged. Thank you my Lord.[39]MR JUSTICE BURTON: Yes. So you are now, subject to whether you hold your hand -- what do you want me to order about? I will certainly direct that the acknowledgement of service should be filed in 7 days, whereafter the paper application will be considered for permission, but that is what I would order unless either of you are going for a stay?[40]MR GREATOREX: I certainly was not going to ask for that, my Lord. What I was going to ask was that the acknowledgement of service is due on 20 July in any event, which is in 10 days, so ordering it in 7 makes very little difference. The reason I would ask your Lordship not to direct that is because it will give, and I think this is agreed, it will give just a few days for the claimant to reflect on the position before notifying us whether or not they want to pursue the claim. If they do not, then we do not need to waste any time and money.

MR JUSTICE BURTON: Yes.

[42]MR GREATOREX: So, I would ask your Lordship to leave the timetable.[43]MR JUSTICE BURTON: I shall just make no order, but it is obviously essential that the -- what I shall say is that the paper application will not be considered prior to the time for expiry of acknowledgement of service. It is always a problem, but sometimes paper applications float around and float up to judges, so the permission will now be considered on paper but not until either service of the acknowledgement of the service, or, I suppose, notification by the claimant, is that a sensible course?[44]MR MCKENDRICK: Entirely, my Lord, yes. And the additional time by way of those three extra days is useful to permit the claimant additional time to consider how to take matters forward, if at all.[45]MR JUSTICE BURTON: Yes. Plainly, if it is going to go ahead, one can understand your desire for it to be done quickly, but of course you could decide to go beyond it now, it is a matter for you. So, what shall I make by way of order? I will make no order in relation to acknowledgement of service as it stands, I think what I will say is to be considered further by way of a paper application after 31 July, unless the court is notified to the contrary by the claimant.[46]MR MCKENDRICK: I am obliged. Thank you, my Lord. Thank you for the additional time.

Cited in 6 later judgments