"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."

So concluded Mr Justice Coulson when finding that an OFSTED inspection had been unlawful in the case of The Old Co-Operative Day Nursery Ltd v OFSTED.

In this case the nursery had been found to be outstanding in September 2013, but then following a complaint was found to be inadequate just 7 months later. A notice to improve was given and the report published on the website. The judicial review was successful on the basis of a flawed investigation including not properly following OFSTED guidance. However damages for a loss of reputation were not awarded.

While this case was specifically about a nursery, the general principles apply to how OFSTED does any inspection. Any school concerned about an inspection should consider obtaining legal advice to ensure that OFSTED has acted lawfully. Considerations may be whether there has been a fair process, whether the Inspector has followed guidance and whether the Inspector has acted rationally overall. As Mr Justice Coulson also said

"Inspections of schools…are a vital tool in the [OFSTED'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."