If the shoe fits
Labour & European Law Review Weekly Issue 229 04 August 2011
Decisions made by public bodies are open to scrutiny by the courts in certain circumstances under a process known as judicial review (JR). In R (on the application of) Sharon Shoesmith v Ofsted and ors, the Court of Appeal said that Ms Shoesmith was entitled to a JR of the decision by Haringey Council to dismiss her summarily from her post as director of children’s services (DCS).
In November 2008 the mother of a child known as Baby P was convicted of causing his death the previous year, along with her boyfriend and his brother.
The day after the trial ended, the then Secretary of State for Children Schools and Family requested Ofsted (Office for Standards in Education, Children's Services and Skills) to produce an urgent report into child safeguarding arrangements within Haringey. The draft report, which was submitted on the evening of 30 November, identified a number of serious concerns.
The next morning, the Secretary of State used his power under section 497A (4B) of the 1996 Education Act to direct Haringey to remove Ms Shoesmith from office and appoint someone to replace her on an interim basis. (Her position as DCS was a statutory job created by the Children Act 2004, though Ms Shoesmith was employed by Haringey).
He also said at a press conference that afternoon that Haringey should consider its employment relationship with her, making reference to a petition in The Sun calling for her to be sacked.
After she was summarily dismissed on 8 December, she brought a JR application against Ofsted, the Secretary of State and Haringey. She claimed that:
(1) the Ofsted report had failed to comply with the relevant procedural arrangements, and that its investigation had been procedurally unfair
(2) the Secretary of State's directions under section 497A (4B) were unlawful because they were not procedurally fair and because he had had regard to The Sun's petition
(3) her dismissal by Haringey was unlawful because it was based on the unlawful directions of the Secretary of State and/or was procedurally unfair.
High Court decision
The judge dismissed her claims saying that Ofsted just had to carry out an open-minded and bona fide inspection into what they found and report accordingly.
The case against the Secretary of State failed because her right to a fair hearing had to take a “lower profile” than would usually be the case, and even if she had made representations to him, the outcome would have been the same.
In the case of Haringey, the court said that although its decision was open to judicial review she had the option of pursuing an alternative remedy in a Tribunal.
Court of Appeal decision
The Court of Appeal said that given "the unique nature of the inspection", the High Court judge was right to conclude that Ofsted was just required under the law to comply with “arrangements” which were nothing more than a starting point and could be adapted, depending on the situation.
However, it said that the Secretary of State's direction to remove Ms Shoesmith from her post was unlawful. Although there was some urgency in dealing with the situation, there would not have been much of a delay in giving Ms Shoesmith a chance to answer the charges against her which would have ensured sufficient time for fairness to be observed.
The judge was right to conclude that Haringey's decision to dismiss for gross misconduct was open to judicial review but, although she had the option of pursuing a Tribunal case, she was still entitled to a decision on the merits of her case against Haringey. The relief she sought was quashing the dismissal decision which was far more valuable than a Tribunal finding of unfair dismissal where the compensation would be capped. The court also said that a Tribunal claim was not “equally convenient and effective” as her application for JR.
The Court therefore granted a declaration that her dismissal by Haringey was unlawful and void. It also said she was entitled to compensation from her former employer, although it would be “entirely appropriate for Haringey to seek a voluntary contribution from the Secretary of State whose unlawful directions gave rise to the problems”.