Learndirect did not get ‘anywhere near’ winning legal battle against Ofsted, judge says

The country’s largest FE provider didn’t get “anywhere near” quashing its now infamous ‘inadequate’ rating during its legal fight with Ofsted, the judge from the case has said.

After a seven month wait the Manchester Administrative Court has finally published the detailed judgement following Learndirect’s failed judicial review in early August last year.

Mr Justice King’s damning verdict exposes just how far away the provider was from winning the case against the inspectorate – as the challenge was backed up with little evidence and a weak fight in court.

One of the counts that Learndirect challenged on was that the lead inspectors, namely Paul Cocker and Charles Searle, had a “predetermined” negative view of its apprenticeship provision which was “procedurally unfair”.

There was no evidence of that whatsoever

However, the judge ruled that there was “no evidence of that whatsoever”.

“One of the problems with the claimant’s submissions is its reliance on the written evidence of Mr Palmer and Ms Wood [Learndirect’s bosses] to support many of the propositions put forward, but the court has to set against this, the written evidence of Mr Cocker and indeed Mr Searle,” he said.

“There has been no application to cross-examine the defendant’s witnesses.

“In these circumstances, where there is a conflict between the respective evidence on matters of fact, as I have already explained, the court is bound to accept that of the defendant’s witnesses, in this case that of Mr Cocker.”

Grounds two and three that Learndirect challenged on revolved around complaints that Ofsted’s sample size of apprentices was not large enough to reflect the size of the company, and that the watchdog should have gone back in to the provider to do more inspecting.

Mr Justice King said that although no “expert evidence” was called on behalf of the claimant to “counter the evidence of the expert regulator”, Learndirect submitted figures which it claimed “speak for themselves”.

Learndirect boss Andy Palmer

For example, the claimant said there was only one scrutiny of a single apprentice at intermediate level in relation to some nearly 5,000 apprenticeships on health and social care.

“This was the equivalent, he suggested, of plucking just one child out of a school class for a year to determine overall educational progress in a given school,” the judge explained.

He said that the “simplicity” of this argument was “attractive” but he “cannot accept it”.

“In my judgment, none of these matters, not even the complaint as to sample size, go anywhere near to enabling this court to say that no rational decision maker could have made the decision it did on the evidence before it,” Mr Justice King added.

He then criticised Learndirect for claiming the sample size figures “speak for themselves”.

“Overall, I have no proper basis, in my judgment, upon which I could interfere with the expert judgment made by this expert regulator as to the sufficiency of the evidence base upon which the inspection’s findings and conclusions were based,” he said.

“The figures in my judgment, do not speak for themselves.”

The judge then concludes that all of Learndirect’s claims “must fail” based on the material presented before him.

The figures in my judgment, do not speak for themselves

“It is impossible for me to conclude on the material before me that no reasonable regulatory body would or could have been satisfied with the information before the defendant’s inspectors in this instance by the time of the writing of the report into the claimant activities.

“For all these reasons this claim must fail. The claim is dismissed.”

Learndirect’s battle against Ofsted has engrossed the sector ever since FE Week revealed the case in August after our lawyers successfully contested strict reporting restrictions.

The subsequent fallout led to the government singling the provider out for special treatment by allowing it to see through the end of their current contracts – instead of ending them within the usual three-month termination period.

It was then subject to investigations from the National Audit Office and Public Accounts Committee.

The PAC held a hearing on the saga in January, in which the NAO’s comptroller and auditor general, Sir Amyas Morse, told Learndirect boss Andy Palmer that the judicial review could be seen as a “hardnosed use of lawyers and quite hostile tactics to delay something for the purpose of improving your cashflow”.

“I do not approve of it, in fact I strongly disapprove of it,” he added.

Learndirect and Ofsted have been approached for comment.