Legal News

Schools and nurseries in England are subject to Ofsted (Office for Standards in Education, Children’s Services and Skills) inspections which ensure that organisations providing education, training, and care services do so to a high standard for children and students.

Ofsted inspectors use a grading scale when making judgements during inspections; these grades, along with a detailed report of findings are published and available for the public to view.

Many schools and nurseries wish to challenge the results of their inspection, particularly where there is doubt that correct procedures have been followed. Organisations are able to raise a complaint to Ofsted with a view to challenging the inspection report and/or outcome.

However, a chief concern is that issuing a complaint can trigger a full inspection, which can result in a previous positive result being downgraded. An example of this involves a nursery which was deemed ‘outstanding’ in the formal feedback but was later downgraded to ‘satisfactory’ after ‘quality-assurance’.

Another worry is that the media often obtain the results of an inspection before the organisation in question has the chance to appeal the decision or even comment, inevitably causing considerable concern amongst parents and guardians of the children attending the schools and even leading to some looking for alternative placements.

Solicitors are routinely finding that inspectors are not following Ofsted’s own published guidelines and that the complaints process is subject to severe delays, most likely on account of the large backlog of cases that have arisen.

Public law solicitor and specialist in education law at Duncan Lewis Solicitors, Angela Sandhal, comments on the situation;

“Schools and nurseries should not be afraid to challenge Ofsted outcomes where there are serious concerns about the procedure that has been followed. In many cases, Ofsted’s ‘internal review’ procedure can result in a satisfactory resolution; in other cases, a judicial review might be appropriate.”

Applications for judicial review have been successful for organisations unhappy with the outcome of an Ofsted inspection. A notable example involves an Islamic faith school which, in 2016, successfully brought a judicial review on the grounds that Ofsted had acted unlawfully in changing its position on segregation, without giving appropriate notice to the school.

The school, a voluntary aided faith school for children aged between four and sixteen, operated a policy of segregating boys and girls from the age of nine specifically for religious reasons. The policy was clearly set out on the school’s website and in their admission criteria.

Following the statutory inspection in June 2016, Ofsted produced its report and placed the school in special measures after identifying a number of leadership and management failings. Safeguarding concerns were also raised over offensive books in the school library, but the main issue raised was the segregation of the pupils.

The segregation of boys and girls was viewed as discriminatory by the Ofsted inspectors, noting that segregation by gender would;

“…reinforce notions of inferiority within the female gender.”

This conclusion came despite the fact that none of the previous three inspections had raised any concerns with the school’s segregation policy.

The school applied for an urgent injunction, barring Ofsted from publishing their report, claiming that it would have caused ‘widespread and irreparable damage.’ The school then brought its judicial review claiming that Ofsted had acted unlawful in changing its position on the policy.

The High Court found that the school was not unique in its segregation methods, noting that other Islamic schools segregate boys and girls as well as some Jewish and Christian schools. Furthermore, there was no evidence that segregated girls in faith schools received lower quality education than the boys, neither did the practice fall foul of the Equality Act 2020, as segregation alone cannot be viewed as discrimination.

Looking at this case as an example, Angela explains why Ofsted were indeed wrong to critique the school on its gender segregation policy;

“The case touches on an important legal point about whether gender segregation in schools can cause discrimination under the Equality Act 2010. The court essentially found that neither gender is treated “less favourably” than the other therefore there could be no discrimination under the legislation. However, it is important to recognise that the case is not about the merits of gender segregation more generally as that was not an issue before the court in this case”.



About Angela Sandhal

Angela Sandhal is a public law and judicial review solicitor at Duncan Lewis Solicitors, specialising in education law, equality law, children law, and mental capacity. She has in-depth knowledge and expertise in education law and is regularly instructed to handle complaints to the Office of the Independent Adjudicator. Her expertise extends to all aspects of education law and her clients include individuals, professional deputies and trustees, education and nursery establishments, and third sector organisations.

Contact Angela on 0113 487 3901 or at AngelaSa@duncanlewis.com




Duncan Lewis Education Law Solicitors
The education law specialists at Duncan Lewis Solicitors have in-depth knowledge and expertise concerning all aspects of education law, ranging from matters involving admissions and exclusions, special education needs, and complaints to the Office of the Independent Adjudicator, to discrimination claims, fitness to practise disputes, and claims and appeals to the First-tier Tribunal.

To contact a member of the education law team, call 033 3772 0409.




Duncan Lewis Public Law Solicitors
The Duncan Lewis Public Law department continues to be recommended by Legal 500 with the 2020 edition praising the department’s judicial review claims ‘challenging the treatment of vulnerable groups, with specialist expertise in representing migrants, asylum seekers, detainees, people with disabilities and LGBT prisoners.’

The Public law team has experience in all aspects of judicial review claimant work, including obtaining emergency orders and other interim relief to prevent breaches of human rights, following up judicial reviews with actions for damages in both the County and High Court and successfully pursuing judicial review matters to the Court of Appeal and Supreme Court.

To contact a member of the public law team, call 033 3772 0409.