National Association of Head Teachers & Anor, R (on the application of) v Ofsted & Anor

Mr Justice Saini : This judgment is in 12 main parts as follows: I. Overview: paras.[1]-[14]. II. Statutory Framework: paras.[15]-[20]. III. The Facts: paras.[21]-[60]. IV. Alleged predetermination: paras.[61]-[66]. V. Ground 1: consultation paras.[67]-[80]. VI. Ground 2: relevant considerations paras.[81]-[83]. VII. Ground 3: rationality paras.[84]-[85]. VIII. Ground 4: Tameside paras.[86]-[87]. IX. Ground 5: ECHR paras.[88]-[89]. X. Ground 6: PSED paras.[90]-[93]. XI. Interim Relief: paras.[94]-[110]. XII. Conclusion: paras.[111]-[115]. I. Overview

1. This is a case about the renewed education inspection framework to be implemented by the First Defendant, Ofsted, next week for, amongst other things, assessing schools during inspections. As is well-known, Ofsted used to grade schools as being Outstanding , Good , Requires Improvement or Inadequate . These so-called “one word” assessments were controversial. The circumstances surrounding the death of the headteacher, Ruth Perry, on 8 January 2023, following an inspection of her school, and the Coroner’s report into her death, prompted a review of Ofsted’s approach to reporting and inspection. That process has come to an end. From 10 November 2025, Ofsted proposes to introduce a new education inspection “report card” grading system in the form of a 5-point scale. Ofsted’s reports – one of the key outputs of an inspection – will also include a narrative description of the reasons for those assessments.

2. So, schools will receive individual 5-point evaluations under the following heads: (a) Inclusion; (b) Curriculum and Teaching; (c) Achievement; (d) Attendance and Behaviour; (e) Personal development and Wellbeing; (f) Early Years/Sixth Form (as appropriate); (g) Leadership and Governance; and (h) Safeguarding (Met/Not Met). This framework also contains various changes which Ofsted says have been designed to promote staff well-being and alleviate the workload implications of Ofsted inspections. The 5-point scale will run on a spectrum from exceptional to requiring urgent improvement . I will refer to this new regime as “the 2025 Framework” below.

3. The Claimants do not like the 5-point scale. The First Claimant is the largest trade union for headteachers and school leaders, and the Second Claimant is a headteacher at a primary school. They would prefer what they call a pure “narrative-only” approach as opposed to any form of grading. That is the system adopted in Northern Ireland and Wales. They seek permission to challenge by way of judicial review certain decisions said to underlie Ofsted’s adoption of the 2025 Framework. The Claimants advance 6 grounds which they argue establish the unlawfulness in public law of the decisions culminating in the 2025 Framework. At the core of their challenge is what they say was a failure by Ofsted to conduct a legally sufficient consultation in relation to the decision or to give any adequate consideration to the serious negative effects that the 2025 Framework, if implemented, will have on the well-being and mental health of school leaders and teachers.

4. I turn to the target decisions. In the Amended Statement of Facts and Grounds (“the ASFG”) the target decisions are described in the following terms (with my underlining): “ Decision dated 3 February 2025 contained within a consultation document concluding, among other matters, that Ofsted will conduct a consultation on the basis that it will use a 5-point scale to grade a wide range of areas of a school’s work, as confirmed in Ofsted’s decision to introduce such a scale, contained in its report on the consultation responses published on 9 September 2025. To the extent necessary, the decision dated 9 September 2025 is challenged as a separate decision”.

5. I will refer to these as Decision I (that said to be contained within the consultation document), and Decision II (the claimed confirmatory decision), respectively. I will now provide a broad overview of the factual background which I will describe in more detail in Section III (where I address the pre-consultation history which is of some significance in this claim).

6. On 3 February 2025, Ofsted launched the “ Improving the way Ofsted inspects education ” consultation (“the Consultation ”), seeking views on various proposals for reforming Ofsted’s education inspection and reporting processes. The Consultation invited responses by 28 April 2025. On 9 September 2025, Ofsted published the outcome of the Consultation, “ Improving the way Ofsted inspects education: report on the responses to the consultation ” (the “ Consultation Report ”), alongside an Independent Wellbeing Assessment and an updated equalities impact assessment. In the Consultation Report, Ofsted announced (amongst other things) its renewed education inspection framework, by which providers would be assessed on a 5‐point scale (supplemented by narrative descriptions) across a range of evaluation areas, as I have described above.

7. Before the Consultation Report had been published, the Claimants challenged by these proceedings issued on 2 May 2025 – and they continue to challenge – what they say was a decision made by Ofsted in the original Consultation document, that “ Ofsted will use a 5-point scale to grade different areas of a provider’s work and expand the number of areas to be graded ” (Original Claim Form). In its pleadings, Ofsted calls this “the Purported Decision” (because it says there was no such decision made) but I will use the less controversial shorthand, Decision I, as I have described it above (without prejudice to Ofsted’s threshold objection) .

8. The Claimants contend that Decision I was unlawful on 6 grounds which can broadly be summarised as follows: (i) it was made without adequate prior consultation; (ii) it failed to take account of a relevant consideration (well-being of professionals); (iii) it was unreasonable as having been reached without a consideration of well-being impacts; (iv) it was made in breach of a Tameside duty of inquiry requiring Ofsted to collect information about well-being impacts; (v) it was inconsistent with the ECHR Article 2 (the right to life); and (vi) it did not comply with the public sector equality duty (“ PSED ”). It will become apparent in due course that there is a substantial overlap between these complaints. Mr Southey KC for the Claimants properly accepted there was such an overlap. It is right that I emphasise at the outset that the Claimants do not suggest that a decision to adopt a grading/scaling system which has potential negative well-being effects on teachers, would in itself necessarily be irrational in public law terms or breach any ECHR rights. That is no part of the Claimants’ challenge before me.

9. As I have indicated above, Ofsted say that a final decision in the form alleged by the Claimants was not made before the Consultation began. They argue that the entirety of the original claim is based on the false premise that a decision to use a 5-point scale had been made by Ofsted at or before the commencement of the Consultation. Ofsted say that the Consultation merely identified the 5-point scale as one of the areas on which Ofsted sought the views of consultees albeit that it was a “preferred” option at that stage.

10. By a draft amendment, the Claimants seek to challenge Ofsted’s decision, made on 5 September 2025 and published on 9 September 2025, contained in the Consultation Report and accompanying documents (this is what I have called Decision II above ). Decision II adopts the 5-point scale. In the ASFG, the Claimants plead no further or distinct grounds of challenge to Decision II. Rather, they argue that Decision II “ perpetuates ” or “ confirm [s]” certain “ defects ” in Decision I. The Claimants continue to rely on the 6 grounds I have summarised above to challenge each decision.

11. On 16 September 2025, the Claimants issued an Application Notice seeking permission to amend the claim form on this basis to challenge Decision II. At this point, they also sought an interim injunction to restrain Ofsted from implementing the 2025 Framework until the determination of these proceedings or, in the alternative, an order for a “rolled-up” hearing before the end of October 2025. The Claimants asked that their Application Notice be considered without a hearing and they came before me as the Vacation Judge in that form on 26 September 2025.

12. Given the substantial public interest issues raised, and the fact that an interim injunction with potentially substantial consequences was being sought, I was not willing to make any orders without a hearing. I also did not consider, given the other pressures on the Administrative Court list, that there was justification for an immediate “rolled-up” hearing over 2 days of court time before the end of October 2025. I directed by an Order dated 26 September 2025 an urgent oral hearing of the permission and the injunction applications before a judge (not necessarily me) and made directions towards such a hearing. I also invited the Claimants to reflect on the actual decisions they sought to challenge (given that some of their complaints seemed to me, provisionally, to have been superseded by the Consultation Report). Given the other priorities in the Administrative Court list and the availability of Counsel, these applications were to be listed as soon as possible and in particular before the launch date of the 2025 Framework, 10 November 2025. The Claimants did not take up my invitation in my earlier order that they review their existing grounds given the developments and the target decisions and the grounds remain as I have summarised them above.

13. Following amendments to pleadings and service of substantial additional evidence, the applications came before me on Monday 3 November 2025 for the oral hearing. The parties served detailed written submissions and responsive submissions and I heard excellent and focussed oral submissions. At the conclusion of the hearing on Monday afternoon, and after a short period of reflection on the submissions, I indicated I proposed to refuse permission and gave in summary form my conclusions. Given the urgency of this case, and the indication by Mr Southey KC that his clients wish to take this matter to the Court of Appeal by renewing their applications, I have sought to provide these reasons as soon as practically possible. I should record that the parties referred to over 30 authorities, but I do not consider the material legal principles to be controversial. I will accordingly make minimal reference to the case law. I record that this judgment is certified as citable under Practice Direction (Citation of Authorities) [2001] 1 WLR 1001.

14. The test I have applied in deciding whether to grant permission is that described in the Administrative Court Guide (2025) at [9.1.3]. I have asked whether in the light of the evidence and arguments arguable grounds for seeking judicial review exist - these are grounds which would merit fuller investigation at a further oral hearing and which the Defendants have not been able to show the court will definitely fail. In practical application, that requires the Claimants to show that there is an arguable ground of review which has a realistic prospect of success: see White Book Vol 1 (2025) at [55.4.2]. The Claimants did not meet that modest test in respect of any of their grounds. As I set out more briefly in Section X below, had arguable grounds been established, I would have refused interim relief under the balance of convenience. II. Statutory Framework

15. Ofsted is a non-ministerial department of His Majesty’s Government, reporting to Parliament. In summary, Ofsted’s role is to (i) inspect services providing education and skills for learners of all ages; and (ii) regulate registered early years settings and children’s social care. The Education and Inspections Act 2006 (“the 2006 Act”) is the principal legislative provision governing Ofsted’s functions and powers. Section 112 of the 2006 Act establishes Ofsted. Section 113 of the 2006 Act establishes the role of His Majesty's Chief Inspector (“HMCI”), the Second Defendant. HMCI holds overarching responsibility for the inspection and regulatory work, and he is supported by Ofsted in the exercise of his functions. Since 1 January 2024, Sir Martyn Oliver has served as HMCI. He was the relevant decision-maker for the purposes of these proceedings.

16. Paragraph 4 of Schedule 13 to the 2006 Act imposes a duty on HMCI to prepare a programme of inspections, and a framework for inspecting and reporting, from time to time, or as specified by the Secretary of State in an order. HMCI must prepare an inspection programme setting out what inspections he proposes to carry out and an inspection framework setting out the manner in which he proposes to carry out his functions of inspecting and reporting. Before preparing that programme or framework, HMCI must consult with the Secretary of State, HM Chief Inspector of Prisons, HM Inspectors of Constabulary, HM Chief Inspector of the Crown Prosecution Service, HM Inspectorate of Probation for England and Wales, and the Care Quality Commission.

17. Section 133 of the 2006 Act provides that HMCI must devise a common set of principles applicable to all inspections under Chapter 3 of Part 2, or two or more sets of principles each of which is applicable to a particular description of such inspections. HMCI must publish this framework, which he may revise; where there is more than one such framework, together the frameworks must cover all inspections under this Chapter. Section 118 of the 2006 Act sets out HMCI’s functions, including a general duty to keep the Secretary of State informed about: the quality of activities within his remit and (where appropriate) the standards achieved by those for whose benefit such activities are carried on; improvements in the quality of such activities and in any such standards; the extent to which such activities are being carried on as user-focused activities; and the efficient and effective use of resources in the carrying on of such activities and services.

18. As described in the witness statement of Lee Owston (“Mr Owston”), Ofsted’s National Director, Education, HMCI’s (and thus Ofsted’s), remit is wide. As National Director, Mr Owston was the Senior Responsible Officer for the Inspection Improvement Programme that worked on the development and introduction of the renewed 2025 Framework, which Ofsted intends will take effect from 10 November 2025.

19. The role of Ofsted is not confined to schools nor inspections of schools. In fact, the schools that Ofsted is required to inspect make up only around a quarter of the total providers that Ofsted inspects. There are a total of 23,110 schools (state-funded and independent), compared to 62,407 early years and 2,023 further education providers which are also within its remit. The Ofsted’s Annual Report and Accounts for 2023-24 and 2024-2025 (in evidence before me) show in broad terms (and with my rounding) that in a typical year Ofsted carries out around: 6,500 graded and ungraded state-funded school inspections; 500 independent school inspections; 850 inspections of further education and skills providers; around 10,000 Early Years inspections; and 70 inspections of initial teacher education providers.

20. I refer to these points because the 2025 Framework will apply to schools (state funded and independent), early years settings, and further education and skills providers. Accordingly, the constituency to be subject to the new regime is substantially wider than those represented by the Claimants. Any interim relief will potentially affect this substantially wider group of institutions. III. The Facts

21. My narrative in this section takes into account the witness statements submitted on behalf of all parties but is based principally on the contemporaneous published documents which I use as the definitive source. The correspondence in the electronic bundle shows there have been extended disputes about admission of further evidence and claims and counterclaims in this regard. As I indicated at the start of the hearing, I did not wish to be distracted in the time for oral submissions by these disputes. I read all of the evidence in my pre-reading. I gave permission for all of the controversial additional statements on behalf of the Claimants to be admitted. I also give permission for the ASFG and the Amended Summary Grounds of Defence to be relied on.

22. For the Claimants the evidence was from: (1) Mr Paul Whiteman (“Mr Whiteman”), the General Secretary of the NAHT (who provided 4 witness statements); (2) Barbara Middleton (“Ms Middleton” - the Second Claimant), who is headteacher of Shiremoor Primary School in North Tyneside; (3) Daniel Kebede (“Mr Kebede”), the General Secretary of the National Education Union; and (4) Mr Pepe Di’lasio (“Mr Di’lasio”) who is the General Secretary of the Association of School and College Leaders. Mr Whitehead describes NAHT’s engagement with Ofsted and gives evidence in support of the injunction application. Ms Middleton gives evidence of her experiences of a recent Ofsted inspection of her school which was subsequently published in a report dated 22 April 2024. She provides more detailed evidence which I will not set out in this judgment about the impacts which is sensitive. Given her experience she has very real concerns about Ofsted’s proposal to introduce the 5-point scale which is the subject of this claim. Mr Kebede’s evidence is that his union supports the claim. He says they oppose the new grading system because it ensures the system remains “...high stakes and perpetuates the reductive, cliff edge judgement approach that has been shown to be so harmful under previous frameworks”. Mr Di’lasio explains that his union also support this claim, and it has real concerns about any model involving grading. He says the union’s biggest concern is the move from the previous four-point grading scale to a five-point grading scale, and far from addressing the concerns about school and college leaders’ well-being, this is likely to introduce even greater anxiety. His union prefers a binary met/not met model and he says that they did not believe Ofsted was open to considering narrative reports.

23. I accept the Claimants’ evidence that the historic system of inspection and reporting has had negative mental health and well-being impacts on leaders and teachers and that they have strong and genuinely held views that the 2025 Framework involving grading/scales may, if implemented, have similar impacts. But it seems to me that those impacts on leaders will flow from any system which involves schools being “marked” by a grade/scale relating to a school’s performance. Mr Southey KC described this as the “knife-edge” or “high-stakes” nature of such an approach but as I have recorded above, he disavows any case that such an approach would in itself be unlawful on grounds of irrationality or otherwise.

24. The Defendants submitted evidence from Mr Owston, the Ofsted National Director, Education, as to the chronology of events by reference to the published documents, but his statement is principally concerned with the interim injunction application. I turn to the principal events and the chronology.

25. On 8 January 2023, Ruth Perry, a headteacher at Caversham Primary School, took her own life following an Ofsted inspection. The inquest into her death concluded on 7 December 2023. In her Prevention of Future Deaths Report (“the Coroner’s Report”) published on 12 December 2023, the Senior Coroner for Berkshire identified concerns in relation to Ofsted’s reporting and inspection practices.

26. Under the statutory regime I have summarised above, Ofsted cannot carry out inspections without applying a published framework. The current Education Inspection Framework was first published in 2019 (“ the 2019 Framework ”). This sets out the principles that apply to inspection, and the main judgements that inspectors should make when carrying out inspections. The 2019 Framework was the framework in place during the inspection of Caversham Primary School prior to the death of Ruth Perry. The Coroner’s Report stated, amongst other things, that the 2019 Framework, “... which allows for the single word judgment of ‘inadequate’ to be applied equally to a school rated otherwise good, but with issues that could be remedied by the time the report was published, as to a school which is dreadful in all respects ”, formed part of the reasons why the Ofsted inspection at Caversham Primary School made a more than minimal contribution to Ruth Perry’s death. Ofsted accepted the concerns stated in the Coroner’s Report.

27. In 2024 the Parliamentary Education Select Committee made various recommendations, as part of a report prepared in light of Ruth Perry’s death. Recommendation 14 was “ The Department and Ofsted should work together as a priority to develop an alternative to the current single-word overall judgment that better captures the complex nature of a school’s performance ”. As such, the then Secretary of State for Education decided that school inspections (from September 2024) and ultimately in all remits (from September 2025) should move away from the “ single word judgments ” of the 2019 Framework.

28. On 19 January 2024, Ofsted published its response to the Coroner’s Report. This publication set out the action Ofsted intended to take in response to the Coroner’s findings. One such action was to undertake a “comprehensive listening exercise”, allowing Ofsted to “explore what further steps can be taken in the future”. Ofsted indicated it intended to implement substantial changes.

29. On 8 March 2024, Ofsted launched The Big Listen , the largest consultation in Ofsted’s history. The Big Listen explored four key areas: reporting (that is, how Ofsted reports on its education and regulatory inspections); inspection practice; culture and purpose; and impact (the consequences of Ofsted’s inspections for children, professionals, institutions and parents’ choices). The Big Listen ran for 3 months until 31 May 2024. It received over 30,000 responses, from parents, carers, children, learners and professionals working in education, skills and children’s social care. As explained by Mr Whiteman, NAHT was critical of the methodology used in this survey. However, this survey and evidence gathering is an important part of the context against which the legality of the Consultation falls to be considered.

30. Alongside The Big Listen , Ofsted commissioned independent research from the National Centre for Social Research and IFF Research. Ofsted also commissioned Dame Christine Gilbert to conduct an independent learning review into its response to Ms Perry’s death and I was taken to parts of her review during submissions. The review, and Ofsted’s response to the recommendations made, were published on 3 September 2024.

31. On 3 September 2024, Ofsted also published its response to The Big Listen . Based on the responses received, Ofsted identified two relevant Objectives which were: “...resetting our relationship with those we regulate and inspect, working collaboratively with them to put children and learners first”; and it stated “...we will foster a culture of integrity in which we always treat people with professionalism, courtesy, empathy and respect”.

32. On 25 October 2024 and 14 November 2024, what are called “social partnership meetings” were held (attended by unions, Department for Education officials and Ofsted officials). Ian Hartwright was the NAHT representative in both meetings. In the first meeting, Ofsted presented its ideas about expanding the number of areas that would be graded during an inspection. In the meeting on 14 November 2024, Ofsted presented a “slide deck” to the group. The slide deck included a slide with the title “ we propose consulting on a 5-point scale to replace our 4 judgement areas. ” This slide presented a colour-coded 5-point evaluation scale ranging from ‘causing concern’ to ‘exemplary’. Mr Whiteman says it was clear that this was the “preferred model” that Ofsted was proposing while NAHT’s position was that everyone needed to start again from first principles of design, rather than just discussing merits of a single model. Mr Whiteman complains that at no point did Ofsted discuss the potential impact of such a model on school leader mental health and wellbeing. NAHT also indicated that its preferred approach was a system of narrative reporting as used in Northern Ireland and Wales.

33. The high point of the Claimants’ case on predetermination under Ground 1 is Mr Whiteman’s evidence in his first witness statement. I will set out the central parts of this evidence in a bit of detail, given the importance attached to it by Mr Southey KC in his oral submissions. Mr Whiteman says that it became very clear over the course of the meetings I have referred to at [31] above that Ofsted was “…determined to press ahead with the 5-point scale and the expansion of the number of areas being graded”. He says that NAHT “…was told that our preferred model of a largely narrative approach to reporting, akin to the model used in Northern Ireland and Wales was not an option they would be prepared to consider.” Mr Southey KC submitted that this evidence had not been contradicted and shows predetermination. Mr Whiteman did not in his evidence identify the person within Ofsted who is said to have made this representation.

34. As part of its response to The Big Listen , Ofsted launched the Consultation on 3 February 2025, publishing the “ Improving the way Ofsted inspects education ” Consultation Paper (the “Consultation Paper”), alongside an initial equalities impact assessment (“the Initial EIA”). Ofsted sought responses to the Consultation between 3 February 2025 and 28 April 2025. I attach a hyperlink here to the Consultation Paper for those who wish to read it in detail. I will provide a summary below and will seek to avoid detailed quotation.

35. The Consultation Paper set out five proposals, covering (i) report cards; (ii) education inspection toolkits; (iii) inspection methodology; (iv) full and monitoring inspections; and (v) identifying state-funded schools causing concern. Under what it called “Proposal 1”, Ofsted said it proposed “using a 5-point scale to grade different areas of a provider’s work, such as ‘curriculum’ and ‘leadership’. Alongside grades, we will have short descriptions summarising our findings. These evaluations will make up our new education inspection report cards”.

36. As part of Proposal 1, Ofsted described: (1) an evaluation scale with 5 gradations, covering ‘causing concern’, ‘attention needed’, ‘secure’, ‘strong’, and ‘exemplary’; and (2) a set of evaluation areas for each category of provider it inspects, each of which would be assessed against the 5-point scale.

37. Ofsted also identified five “other options considered” in the preparation of Proposal 1: (i) a binary met/not met scale; (ii) a 3-point scale; (iii) a 4-point scale; (iv) a 4-point scale, but with “narrative text to capture exemplary practice”; and (iv) a 7‐point scale. Ofsted explained why, at this stage, it considered that those alternatives would be less effective than the 5-point scale. It further explained why its current proposal included both elements of narrative and single-word judgement: it said that “...[during] The Big Listen we heard different views on what we should include in a new report card. Parents and carers favoured clear assessment of a wider set of categories; professionals leaned towards narrative descriptions of performance. Our proposals aim to bring both preferences together.”

38. Ofsted then asked the following six consultation questions on Proposal 1 in the Consultation Paper: (1) Q1: “What do you think about the layout of our new report cards?” (2) Q2: “What do you think about our evaluation areas?” (3) Q3: “What do you think of our proposed 5-point scale for reporting our inspection findings?” (4) Q4: “What do you think about our approach to ‘exemplary’ practice?” (5) Q5: “What do you think about the other evaluation scales we have considered?” (6) Q6: “Do you have any other ideas we could consider?”

39. In the closing section of the Consultation Paper entitled “Additional questions”, Ofsted noted: “Over the next few months, we will be assessing the impact of our proposed reforms on leaders’, practitioners’ and inspectors’ workloads, mental health and well-being, through visits to providers and external review”. Ofsted stated that, “[i]n the meantime”, it wished to consult on views about the “likely implications of our proposals”, and asked three further consultation questions: (1) Q19: “What do you consider are the likely workload and well-being implications of these proposals?” (2) Q20: “What could we do to help reduce or manage any unintended consequences?” (3) Q21: “Is there anything else about the changes to inspection that you would like to tell us?”

40. As regards the PSED, the Consultation Paper set out the statutory considerations, and explained that Ofsted had conducted an initial EIA published alongside the Consultation Paper, but would publish an updated EIA after the Consultation. Ofsted posed a final consultation question: Q22: “Please tell us how you think our proposals may or may not impact equality”.

41. The First Claimant, the NAHT, responded to the Consultation on 23 April 2025. In summary: (1) On Proposal 1, NAHT responded to each of Q1 to Q6 in some detail. NAHT explained that it “ strongly disagrees ” with Proposal 1, and, in response to Q5 and Q6, detailed its alternative proposal, for “ narrative reporting ”. (2) On the additional questions, NAHT expressed its view on the implications of Ofsted’s proposals. Under Q19, it recorded its view that “ these proposals will increase the risks to the health and well-being of school leaders and their staff ”. Under Q20 and Q21, NAHT accused Ofsted of “ gaslighting an entire profession ” and reiterated its wholesale disagreement to the proposals “ in the strongest possible terms ”. (3) NAHT did not respond to Q22, on PSED.

42. Shiremoor Primary School (the school of which the Second Claimant is headteacher) responded to the Consultation on 23 February 2025. The school responded to Q1 to Q6, and Q19 to Q21. It did not respond to Q22.

43. Between 3 February and 28 April 2025, Ofsted received more than 6,500 responses to the Consultation, across every education sector it inspects, from education professionals, parents/carers, inspectors, academics, policy experts, and the general public. Following the close of the consultation window on 28 April 2025, Ofsted considered the responses and undertook further inquiries into the matters set out in the Consultation Paper, including through focus-group discussions, opinion polling and test visits.

44. The intended publication of the response to the Consultation was delayed from the initial internal timetable (which envisaged publication in July 2025) to ensure that those individuals within Ofsted involved in the Consultation could consider the responses, to ensure that there was sufficient time to consider what Ofsted heard in the Consultation and to amend the proposals as necessary, before putting final proposals to HMCI as the decision maker.

45. I pause here to record that the Claimants issued the claim challenging the Consultation on 2 May 2025.

46. On 9 September 2025, Ofsted published (each again hyperlinked): (1) The Consultation Report . (2) An updated Equalities Impact Assessment (“ the Updated EIA ”). (3) The independent wellbeing impact assessment of the revised Ofsted framework commissioned from Ms Sinéad McBrearty, dated July 2025 (“ the Independent Wellbeing Assessment ”); and (4) The education inspection framework material for use from November 2025 (including toolkits, operating guides and inspection information documents).

47. This decision to adopt grading scales and a narrative in the Consultation Report is Decision II. In respect of Proposal 1, the Consultation Report summarised the feedback Ofsted had received during the Consultation and Ofsted’s core conclusions: “We have extensively tested views on the report card and the grading scale. The feedback from parents was clear – the polling shows that they comprehensively welcomed our proposed changes. However, we also heard many concerns in the consultation about the proposed grading scale from education professionals, especially in schools. We wanted to give parents the scale they wanted while giving confidence to professionals and providers”.

48. The Consultation Report identified the following headline reforms to the report card system: (1) “We will grade all evaluation areas on a 5-point scale”; (2) “We are bringing together the most popular preferences of parents and professionals by combining separate grades, rating scales and short summaries into new report cards”; (3) “We will adopt a combined approach using both a 5-point scale and a narrative explanation for each grade across all evaluation areas” (except for safeguarding); and (4) “We have changed the names of grades in response to feedback”.

49. The Consultation Report addressed the merits of the “narrative-only” proposal, which NAHT and others had strongly advocated in their consultation responses. Ofsted explained why it considered this proposal (which it said had received mixed responses from other consultees) would be less effective than a grading model: “In the responses to the consultation, there were some calls for us to move to narrative reports only (the second favourite option among providers in The Big Listen research, and third favourite option among individual education professionals). This was also a particularly strong view of some representative organisations in the schools sector. However, views across other sectors were mixed. A major representative in the early years sector said a 5-point scale would provide more nuance and detail, and more meaningful feedback to improve on their practice than our previous approach. We think a combined approach works best. The narrative gives a detailed picture of performance while the 5-point scale offers the clarity and simplicity that parents asked for. We believe this approach is a fairer way of holding providers accountable for their performance and showing a clear and accurate picture of that performance. We have heard that the ability to compare providers ‘at a glance’ is an important and useful feature of our reporting. A narrative on its own would not have the same level of clarity as the combined approach or be as easy for parents to use.”

50. The Consultation Report also addressed why Ofsted considered the 5-point scale preferable to the other point scales. In this regard, it is significant that Ofsted explained that it had also considered the risks posed by any points scale (i.e. in contrast to a narrative-only approach): “We have also considered the risk that points scales (whether a binary met/not met scale, a 5-point scale, or any other points scale) introduce ‘cliff edges’ into the assessment. We consider that a 5-point scale, applied across 6 core evaluation areas, reduces this concern as it is spread out. Each grade will be published alongside a narrative explaining inspectors’ justification for each grade ; this will be particularly important in instances when the provider falls close to the borderline of a grade.” (Emphasis as in original text)

51. The well-being and workload implications of Ofsted’s reforms were the subject of two sections in the Consultation Report: one setting out headline actions under the heading “ Well-being and workload ” (page 17); and a second, dedicated section, entitled “ The workload and well-being implications of our inspection reforms for the education workforce ” (page 44).

52. The latter began by setting out the principles underpinning Ofsted’s reform process: “[R]educing workload and promoting well-being remain central to our approach. We will maintain our focus on raising standards and holding providers to account. But we also believe giving education professionals time and space to receive support allows them to do their best to raise standards and protect children. We accept we have a challenge. To change our approach, we have to change. [...] We are doing what we can to alleviate the pressures of that change on professionals, while being true to our duties to children and learners, and our responsibilities to parents and carers to offer them the nuanced information they have called for.”

53. Ofsted referred to the Independent Wellbeing Assessment which had been commissioned to review the impact of the inspection reforms on workload and wellbeing of the education workforce. Ofsted explained in some detail how they took into account the review’s recommendations including risks from stress, and the need to minimise stress for leaders.

54. The Consultation Report noted that Ofsted had heard concerns about the additional workload that some feared would follow from the revised framework and the well-being implications on the professionals that would be inspected. It stated: “We have taken this concern extremely seriously and have taken action to address it”. It identified a number of actions that Ofsted had taken in light of those concerns. These included the following: (1) ensuring that the standards within the framework do not add to workload because they mirror existing requirements, standards and professional expectations; (2) increased inspection capacity and a requirement for reasonable inspection timeframes in order to ensure that lead inspectors have more time to focus on engaging with school leaders in order to reduce pressure on leaders through the inspection process. It was said: “The extra inspector will enable lead inspectors and leaders to really collaborate across the inspection, and should ease any anxiety for leaders by acting as a regular point of contact, while allowing the wider inspection team the time to gather evidence to inform their evaluations”; (3) inviting providers to nominate an individual to support planning, communication and ongoing engagement throughout the inspection, helping to streamline workload; (4) re-design of the inspection methodology, specifically “with a clear view to reducing workload for the education workforce”; (5) reducing the number of evaluation areas in response to consultees’ feedback, clarifying the distinction between grades and changing the approach to ‘exceptional’, all for the purpose of “eas[ing] concerns about any workload and well-being implications”; (6) updated policies on pausing inspections and other reasonable adjustments; (7) a dedicated team for addressing well-being concerns that arise during the inspection process; and (8) mental health training for inspectors.

55. The Consultation Report explained these actions were developed and refined based on consultation feedback, as well as through what was called an “iterative” process of test visits and feedback through March to July 2025. The Consultation Report also addressed the well-being implications of the new report cards, including by comparison with the alternative reporting methodologies considered. I will give an example: “Our revised grading is more nuanced, fair and informative, and we believe it better supports well-being than the previous model or the alternatives considered. [...] We are introducing a more detailed report card with a 5-point grading scale. This recognises providers’ strengths and areas for improvement. It offers a more nuanced form of reporting and replaces the previous ‘overall effectiveness’ grade that we know from the Big Listen caused much anxiety across the education workforce. We also believe that we can reduce anxiety by ensuring consistency in grading...”

56. Finally, the Updated EIA considered the equalities impacts of the new framework’s well‐being implications in a dedicated section which addressed the potential impact on “provider staff with certain disabilities, such as those relating to mental health”, and summarised the reforms adopted to meet those concerns. In particular, the Updated EIA addressed the potential equalities impacts associated with the well-being and workload implications of the 5-point scale: “Some respondents suggested that the use of a 5-point scale may lead to increased workload demands. In the consultation response, we considered the relative merits of different grading systems. For the reasons set out there, we have concluded that a 5-point scale, supplemented by narrative summaries, will ensure fair and consistent accountability for providers. We have also taken a range of actions to alleviate potential well-being and workload concerns, including in setting the standards, communicating the new processes, providing support throughout inspections, and reforming inspectors’ practice.”

57. It is not in issue that in adopting the 2025 Framework, Ofsted took into account the Government’s policy (as is its legal duty, pursuant section 117 of the 2006 Act) which specifically provided that the Government wanted to introduce a new report card system telling parents clearly how schools are performing. The Government stated that the purpose of the ‘report card system’ should be to “ [give] parents the information they need ”. Ofsted therefore commissioned YouGov to carry out independent research on the views of parents on the proposed report cards. That research found: (a) Two thirds (66%) of parents of school-age children independently polled by YouGov in a nationally representative sample said that they wanted Ofsted to continue to grade schools using a scale, regardless of whether it was a 4- or 5-point scale (only 10% said they were opposed to this). (b) Two thirds (64%) of parents they agreed with the addition of an ‘exemplary’ grade (9% disagreed) – the fifth point on the 5-point scale. 87% of those surveyed said they would find a 5-point scale useful. (c) Two thirds (67%) of parents said they prefer the new report card to the way Ofsted currently report (15% said they preferred current reports. This was also reflected by a More In Common poll commissioned by Schools Week, 65% of parents preferred the proposed new reporting system (16% preferred the current system). (d) The More In Common poll also found 71% of parents said they felt that the new grading system is fairer on teachers (17% said the current system is fairer).

58. Ofsted’s evidence, which I accept, is that it adopted the 5-point scale in the 2025 Framework for a number of reasons, which I summarise as follows. First, it brings together the most popular preferences of parents and professionals by combining separate grades, rating scales and short summaries into new report cards. Second, the proposed 5-point scale was based on The Big Listen findings. I note that in the independent research that Ofsted commissioned as part of The Big Listen , parents ranked ‘separate judgements for each inspection area’ highest (76% in favour) and a ‘rating scale of 0 to 5’ second highest (61%). Third, individual education professionals ranked ‘separate judgements’ as second highest (59%) and education professionals representing providers ranked it third highest (53% in favour) with about a third of both groups favouring rating scales. Fourth, Ofsted adopted what Mr Owston called “ a combined approach ” using both a 5-point scale and a narrative explanation for each grade across all evaluation areas, except for ‘safeguarding’. He explains that this gives parents, carers and learners that clear snapshot of information and allows them to compare providers. It also offers a detailed narrative explanation for how the grade was reached.

59. The Consultation Report stated Ofsted’s intention to introduce the 2025 Framework from November 2025. On 16 September 2025 the Claimants issued their application to amend their grounds to challenge Decision II (on the same grounds as Decision I) and applied for an interim injunction, as I have described above.

60. With effect from 1 September 2025, following consultation with the trade unions and Ofsted, HMCI was authorised by the Secretary of State to implement a short “pause” to routine inspection activity across schools and further education and skills providers The pause is time-limited: it operates from 1 September 2025 to 10 November 2025 and was brought into effect for the specific purpose of allowing education providers more time to prepare for the coming into effect of the 2025 Framework. IV . Was there a decision made (or some form of predetermination) before the Consultation began?

61. Before I turn to the 6 grounds, it is appropriate to stand back from the evidence and consider what was actually decided by Ofsted and when. Some of what I say in this section, will indicate why I consider the main grounds of challenge to be without merit (I will also separately address each ground in due course but at the risk of repetition).

62. The Claimants’ original challenge issued on 2 May 2025 (to Decision I in the Consultation Paper, prior to Decision II) rested on a false premise. Under various overlapping Grounds, the Claimants challenged an alleged “ final decision ” (to adopt the 5-point scale) at the outset of the Consultation: SFG [3] and [35(b)]. That was said to follow from the wording of the Consultation Paper itself, which disclosed (so it was said) a “ firm conclusion ” before the consultation process was conducted.

63. There was however plainly no decision of this kind when the facts are fairly assessed: (1) The Consultation Paper did not disclose a pre-determination in favour of the 5-point scale. It set out instead a range of views and proposals on which it was consulting with a preferred option – in short, it was a consultation not a decision. As Mr Owston correctly explains “[t]he only ‘decision’ that had been taken was to engage in a consultation process”. That is wholly consistent with the documentary materials I have summarised above. (2) The Consultation Paper noted the views of participants in the earlier round of consultation, The Big Listen . It observed that an approach based on “ separate judgements for each inspection area ” had been ranked highest by parents and had been the third most popular option with professionals. It also noted that the second most popular option amongst professionals was “ narrative descriptions .” (3) The Consultation Paper set out Ofsted’s proposals in light of those views: “Taking this feedback into account we propose …”. It offered five different options, explained why one was preferred and expressly asked: “Do you have any other ideas we could consider?” As I note above, NAHT itself responded to that question. It set out its preference for a narrative-only reporting process (with no grading at all), as well as its strong views in relation to the well-being consequences of the proposals. (4) The Consultation Paper explained why, in Ofsted’s view, its primary proposal combined the benefits of both grading (clear evaluations for parents and schools) and narrative summaries (preferred by professionals). (5) The purpose of the Consultation was to identify whether consultees agreed with that assessment and, if not, why not.

64. In my judgment, the core submission for the Claimants that Ofsted had already reached a final decision “ prior to the start of the consultation ” (ASFG §35(b)) and pursued in the responsive recent skeleton for the Claimants is unarguable. I was wholly unpersuaded by the approach in the Claimants’ original and responsive skeletons which quotes selectively from the Consultation Paper in order to seek to create the impression of a closed-minded predetermination (I will give some examples when I address Ground 1 below). That is not a fair reading of the Consultation Paper, read as a whole. I also do not accept what is in effect a case that the consultation process was a form of “sham” in which, despite inviting any proposals and receiving many thousands of responses, Ofsted had in fact already decided to adopt the 5-point scale irrespective of any representations and was merely “going through the motions”. Mr Southey KC did not agree that he was suggesting that the process was a “sham”. He preferred to put his case in terms that Ofsted had “narrowed” the options before the Consultation but this is essentially the same.

65. Unlike Mr Whiteman’s evidence (see [33] above). Mr Owston’s evidence is wholly consistent with the contemporaneous documentary materials and I accept his evidence for that reason. He says that the decision as to the future content of the 2025 Framework was ultimately a question for HMCI, who has the sole authority to adopt an education inspection framework. Mr Owston says that he is not aware of there being any basis to suggest that HMCI had already reached a decision as to the final form of the 2025 Framework when the Consultation was launched in February 2025. When the documentary material is considered, he is plainly correct to say that the only ‘decision’ that had been taken was to engage in a consultation process. The language of the Consultation Paper repeatedly uses the language of “proposal”. It is also significant that the intended publication of the response to the Consultation was delayed from the initial internal timetable (which envisaged publication in July 2025) to ensure that those individuals within Ofsted involved in the Consultation could consider the responses, to ensure that there was sufficient time to consider what Ofsted heard in the Consultation and to amend the proposals as necessary, before putting final proposals to HMCI as the decision maker. It would make little sense to delay the response to the Consultation by this substantial period, and to receive and consider 6,500 submissions, if in fact Ofsted had already made a decision.

66. I now turn to the discrete grounds. Sir James Eadie KC and Tim Johnston for the Defendants were right to submit that although these are presented as 6 complaints a number of them are essentially the same basic complaint (related to well-being impacts) but repackaged under a number of public law grounds. V. Ground 1: consultation

67. The Claimants’ first complaint is that the Consultation failed to meet the first, second and fourth requirements of the familiar “ Gunning requirements” endorsed in R (Moseley) v Haringey LBC [2014] 1 WLR 3947 (SC) at [25]: “First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response... fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals”.

68. Mr Southey KC submitted that the Consultation did not take place at a time when the decision to move to a new grading system, rather than a narrative only approach, was at a formative stage. Alternatively, he argued that the decision was “pre-determined” or, at the very least, gave rise to an “appearance” of pre-determination. Mr Southey KC relied upon a number of factual matters in this regard, including Mr Whiteman’s evidence [31] which I have addressed above. Aside from relying on the interactions between Ofsted and NAHT, Mr Southey KC argued that the language used in the Consultation Document indicated that Ofsted had reached a firm conclusion as to the adoption of the 5-point scale and had rejected the other 4 specified options, stating (for example) that “[o]ption one… would not give parents and carers much information, and none of the nuance they told us they wanted in the Big Listen. It would also not give enough information about the sector overall, so that the government can make any necessary improvements” and that “[o]ption three” was not favoured because “[w]e think… we need to break down the current grade of ‘good’ into more parts”. Mr Southey KC underlined what he termed an “absence” from the Consultation Document of any reference being given to a narrative only scheme for school reports.

69. As to the second of the Gunning requirements, Mr Southey KC submitted that the Consultation fell short in two particular respects. First, Ofsted did not provide “an outline of the of the realistic alternatives” to its preferred option and did not say enough about them “to enable the consultees to make an intelligent response in respect of the scheme on which their views are sought” (relying on Moseley , [39] and [41]). Second, Ofsted withheld disclosure of the Wellbeing Assessment until after the conclusion of the Consultation. He argued that disclosure of that Assessment was necessary to render the Consultation fair, applying the 4 factors set out in R (Law Society) v Lord Chancellor [2019] 1 WLR 1649 (“ the Law Society case”) at [73]. Alternatively, Mr Southey KC argued that once Ofsted became aware of the contents of the Assessment, it was obliged as a matter of fairness to give consultees the opportunity to comment on it. Mr Southey KC’s skeleton quoted the Assessment in some detail in relation to how the proposed framework would have negative consequences.

70. Finally, he argued in relation to the fourth Gunning requirement that the Consultation Report and further EIA failed to consider the impact on the well-being of professionals of the move to a 5-point grading scheme, as opposed to the adoption of a narrative only scheme. He relied on the fact that this issue was squarely raised by the NAHT and other respondents but was not addressed in Ofsted’s response to the Consultation.

71. I was not persuaded that these submissions overcome the modest arguability threshold for permission to apply for judicial review. I will begin with the relevant legal principles.

72. In considering whether the Gunning requirements have been satisfied, the relevant question for me is whether the consultation process was “ so unfair as to be unlawful ”, because “ something has gone clearly and radically wrong ”: see R (Bloomsbury Institute Ltd) v Office for Students [2020] ELR 653 at [65]-[69], and De Smith’s Judicial Review (9th Edition, 2024) at [9-068]. To state the obvious, the application of the Gunning requirements is context and fact-specific and in this case the Consultation was only part of a process which began much earlier, as I have described above. The first requirement requires the decision-maker to have an open mind about the matter under consultation, and not to have pre-determined the matter. However, as a matter of principle it does not prevent the decision-maker from being pre-disposed to a given proposal and directing the consultation to gaining a better understanding of that proposal in particular. See Electronic Collar Manufacturers Association v Environment Secretary [2020] LLR 46 (QBD) per Morris J at [139], and R (Transport Action Network Ltd) v Transport Secretary [2025] EWHC 1273 (Admin) per Lieven J at [47]. In this regard, the case law recognises the commonsense point that th ere is a difference between actual pre-determination on the part of the decision-maker and the decision-maker having a “pre-disposition” towards a proposal. The latter is plainly permissible and Mr Southey KC rightly did not dispute that as a matter of law.

73. As helpfully explained in Judicial Review: Supperstone, Goudie and Walker (7th Edition, 2024) at [10.35], the first and fourth Gunning requirements are interrelated. In practical terms, there must be some specific proposal on which to consult, otherwise there would be no focus for the representations from the consultees. That presupposes that the public body will have formed at least a tentative view as to what it wants to do. Accordingly, a public body may properly consult on a ‘preferred option’. But there is a red line: it must not have closed its mind to any changes otherwise there could be no scope genuinely to consider the representations made.

74. As I have summarised above, Ground 1 alleges that (i) the Consultation Paper contained a decision that the 5-point scale would be adopted; (ii) that Ofsted was under a duty of consultation in respect of that decision (i.e. a duty to consult in advance of the launch of the Consultation); and (iii) that this consultation was not undertaken. However, on the evidence before me as I have summarised it in Section III above, Ofsted had not made any such decision at or before the commencement of the Consultation. The Consultation Paper simply sets out matters on which views were sought from consultees. It evidenced no such decision. I note that Ofsted met with DfE, NAHT and other unions whilst developing the Consultation Paper. It is also significant that the Consultation Paper sought representations not merely on the 5-point scale, but also on alternative scales with varying numbers of points (under Q5); and on “ any other ideas we could consider ” (under Q6). The purpose of the Consultation was to receive consultees’ views on the models under consultation and on potential alternatives. Consultees could reasonably be expected to indicate their position on the 5-point scale and other reporting approaches in response to these questions. I note that these questions on alternative approaches were inserted specifically at the request of the NAHT and other unions. In my judgment, these matters are plainly and squarely inconsistent with any final decision to adopt any particular solution in advance of the launch of the Consultation.

75. I would add that it is evident that that is how consultees (correctly) understood what was being consulted upon. In particular, they appear to have understood that the Consultation envisaged a range of options, and that it was open to them to comment both on the perceived merits and demerits of the 5-point scale, and to advance wholesale alternatives to the 5-point scale. In this regard, I note the following: (1) The National Institute of Teaching made submissions on the 5-point scale, as well as the proposed “ separate judgement ” on exemplary practice, and on “ various alternative evaluation scales ”; (2) the response from the Association of School and College Leaders set out two alternative approaches: one which “ evaluates schools against a range of statutory standards ”, and “ a ‘3+ point scale’ [...] with a narrative description of excellent practice in particular areas ”; and (3) NAHT itself made submissions in response to Q5 and Q6 about its preferred, alternative approach (rightly not believing such an approach was closed off by some pre-existing final determination by Ofsted).

76. In the ASFG and in their recent reply skeleton the Claimants contend that “ a number of alternatives had been expressly rejected ”. In my judgment, as its express request for views on alternative proposals shows, Ofsted had plainly not expressly rejected any proposals, including NAHT’s. I would add that the Consultation Paper was not akin to a “ minded to refuse ” letter containing a provisional decision. It was a consultation paper in common form, seeking representations at the policy formulation stage, including on (but not limited to) particular models identified by Ofsted as preferred. There was no unfairness in inviting the Claimants’ and other consultees’ representations on those models at this stage. As I read it, the final Consultation Report reiterated that open-minded approach. It expressly referred to and addressed responses received from consultees on the narrative-only approach (both positive and negative).

77. In any event, there is no duty to consult on the possible or actual subject matters that may be included, or, more accurately, expressly referred to, in a consultation paper. There was no promise, practice, legitimate expectation, or other public law duty that would require Ofsted to do so. Indeed, none is identified by the Claimants.

78. The Claimants’ further challenges to the Consultation process are not arguable. As to the first argument (that Ofsted should have given consultees the opportunity to address the contents of the Independent Wellbeing Assessment prior to any final decision), there was in my judgment no unfairness in Ofsted’s approach. The Independent Wellbeing Assessment was not information akin to the essential modelling that underpinned the proposal that was the subject of consultation in the Law Society case . Rather, Ofsted commissioned this Assessment as part of the Consultation, not before, such that it would form a part of the feedback on the proposals. Unlike the Law Society case, it was not information that went to the justification for the proposal under consultation. The Consultation Paper already expressly invited responses on the well-being implications of Ofsted’s proposed reforms, at Q19-Q21, as I have indicated. There was no duty on Ofsted to re-consult on the Independent Wellbeing Assessment, or on amended proposals adopted as a result, as these did not constitute a “ change of circumstance ” giving rise to a “ fundamental difference ” in the matters already consulted on: R (Nettleship) v NHS South Tyneside Clinical Commissioning Group [2020] PTSR 928 (CA) at [43] per Nicola Davies LJ, and R (Hoareau) v Foreign Secretary [2019] 1 WLR 4105 (DC) at [319], per Singh LJ and Carr J. The Claimants plead no such change or difference.

79. As to the Claimants’ argument that the Consultation Report and/or the Updated EIA did not “conscientiously” take into account consultees’ responses on the well-being implications of the 5‐point scale, or else addressed only the impacts of the inspection “ process ” but not of inspection “ outcome [s]” (ASFG [5A(d)-(f)], this is factually wrong. In producing the Consultation Report, Ofsted expressly considered (i) the relative merits of the narrative-only approach and other grading schemes; and (ii) the well-being and workload implications of the 5‐point scale report cards, including by comparison with these alternatives. It arrived at a balance between what parents/carers favoured and the mental health and well-being concerns being legitimately advanced by the unions.

80. Drawing my conclusions together: (1) there was no unlawful predetermination (the alleged breach of the first Gunning principle); (2) consultees were not prevented from responding intelligently and coherently: they could and did advocate for a narrative-only approach, including the NAHT itself (the alleged breach of the second Gunning principle); (3) the subsequent publication of the Independent Wellbeing Assessment did not render the Consultation unfair (the further alleged breach of the second Gunning principle); (4) the Consultation Report gave appropriate, sufficient and rational consideration to the wellbeing implications of the new grading scheme (the alleged breach of the fourth Gunning principle); and (5) overall, there was no unfairness let alone unfairness of an extent which rendered the consultation process unlawful in public law terms. VI. Ground 2: failure to take into account a relevant consideration

81. Under Ground 2, Mr Southey KC argued that the well-being of professionals was plainly a relevant consideration in the context of Ofsted’s decision to adopt the grading scale and reject the narrative only approach. He said that well-being in the context of the proposed new grading system had two relevant aspects: workload elements and the “cliff edge”/“knife-edge” problem which grading poses for teachers and their mental health. Mr Southey KC argued that despite this prime relevance, no account was taken of relevant well-being considerations either: (a) at the point at which Ofsted identified the 5-point scale as its concluded or preferred approach (prior to the start of the Consultation), or (b) at the time that Ofsted announced it had decided on that approach (that is, in the Consultation Report). In relation to the first point in time, he argued that it was Ofsted’s position in the Consultation Document that assessment of well-being impacts would take place only at a later stage but he said that even after the conclusion of the Consultation, Ofsted failed to give consideration to the well-being impacts of the decision.

82. I do not consider this ground to be arguable. First, there had not been any decision of the kind alleged at or before the commencement of the Consultation, for the reasons already given. Second, the Consultation Paper expressly sought consultees’ views on well-being, at Q19. Ofsted had this matter firmly in mind. I note that in response to the Consultation, NAHT made detailed representations on well-being. The Claimants’ case fails to engage with this basic problem with Ground 2. Ofsted plainly took those points into account as part of its overall assessment of well-being, in addition to the Independent Wellbeing Assessment which was specifically aimed at mental health impacts of the change. Wellbeing in material respects was taken into account as a relevant consideration and in a rational way.

83. Further, I would add that Ofsted had already considered well-being issues before the Consultation Paper. Indeed, following Ruth Perry’s death, the entire process including the substantial pre-consultation engagement was concerned with how well-being would be addressed while ensuring effective inspection and reporting. The second “core message” from The Big Listen was: “We heard that inspectors should have more care and concern for the well-being of the leaders and staff we inspect. We have taken this on board. We will put it into practice through all the changes we are setting out here, from improving inspector training (including mental-health training) to reforming how we inspect.” Ofsted also indicated that it intended to establish 7 external reference groups, including one dedicated to “well-being of leaders and staff”. This group was appointed in September 2024 and meets three times a year. Ofsted made clear in the Consultation Paper that it intended to continue to consult and inquire on well-being implications in parallel to reviewing the Consultation responses. VII. Ground 3: irrationality

84. Under this Ground, Mr Southey KC argued that in opting for a grading system for reports and dismissing a narrative only approach, without having considered the consequences of that decision for the well-being of leaders and teachers, Ofsted’s decision-making was vitiated by what he called a “ logical error or critical gap ” which undermined the “ process rationality ” of its approach, relying on R (KP) v Secretary of State for the Foreign and Commonwealth Office [2025] EWHC 370 (Admin) per Chamberlain J at [56]. He submitted that it is plain that Ofsted had not considered those factors when the Consultation was announced, by which time, on his case, the decision had been made (or, on Ofsted’s case, it had reached a “ preferred ” position). Mr Southey KC’s case was that at that point, the decision or preference was reached without an examination of the well-being issues which, on Ofsted’s own case, would occur only after the Consultation had begun. So, even if the relevant decision was not made until the conclusion of the Consultation, Ofsted had still not “applied its mind” to the question of the well-being effects of that decision by that stage.

85. This is the same complaint as that made under Ground 2. It fails for the same reasons. In short, wellbeing was taken into account. VIII. Ground 4: Tameside

86. Mr Southey KC argued that the “failings” identified under Grounds 2 and 3 also represent a breach of the principle established in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, 1065B which imposes a duty of inquiry. He submitted that it was plainly relevant for Ofsted to ask itself how the introduction of a 5-point grading scale and the rejection of a narrative only scheme would affect the well-being of leaders and teachers, and to collect information to enable Ofsted to answer this question correctly. However, he argued, this did not occur when Ofsted adopted its decision, or preference, for that scheme, prior to the Consultation. Nor did it take place following the conclusion of the Consultation (by which time, on the Claimants’ case, the decision had already been taken).

87. This ground is not arguable. I repeat, there had been no such decision at or before the commencement of the Consultation. Moreover, it is clear on the evidence that the manner in which Ofsted considered matters leading up to the Consultation was rational. Finally, the Consultation itself plainly represents a wide-ranging set of inquiries on the subject of well-being. That satisfies any Tameside duty of inquiry. IX. Ground 5: ECHR

88. I confess that, as I indicated to Mr Southey KC at the hearing, I found it hard to follow this ground as a distinct complaint. The starting point is that in the ASFG it was pleaded at [49] “ The First Claimant does not directly rely on the Human Rights Act 1998. Instead it relies on the requirement imposed by domestic public law that consideration must be given to mandatory relevant factors ”. Mr Southey KC and Mr Silverstone argued in their written submissions that there is what they called the “systems duty” under Article 2 ECHR (the right to life) gives rise to obligations “ in the context of any activity, whether public or not, in which the right to life may be at stake … to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life ” and will “ reduce risk to a reasonable minimum ” (relying on R (Rennie) v Secretary of State for the Home Department [2023] EWHC 1794 (Admin), per Stacey J at [138]-[140]). They also argued that public authorities are subject to positive obligations to put in place a legislative and regulatory system for protection of ECHR rights under Articles 3 and 8. In light of those obligations, it was said that Ofsted was duty-bound to have regard to the risks of its new grading system for inspection to the mental health, well-being and right to life of education professionals. It was argued that Ofsted has not directed its mind to the serious risks to professionals’ mental health, and potentially to their right to life, of being subjected to the grading system which is integral to Ofsted’s renewed framework .

89. This is an interesting submission but as I have noted, the Claimants (rightly) do not argue that any of the target decisions in fact breach the State’s positive duties under Article 2, 3 and 8 ECHR. That would have been a hopeless argument: a choice about which model to emphasise in a Consultation Paper plainly does not engage either the State’s preventative or operational duties. Instead, as I understand his case Mr Southey KC says that as a consequence of the potential for rights infringement by any decision Ofsted might make, the well-being implications of the decision were a mandatory relevant consideration. But this is essentially the same complaint as that made under Ground 2 (alleging a failure to consider the well-being implications of the 5-point scale) and I understood Mr Southey KC to in effect accept that. It fails for the same reasons. The well-being implications have been considered. X. Ground 6: PSED

90. Finally, under Ground 6, Mr Southey KC relied on section 149 of the Equality Act 2010 in support of a submission that Ofsted was required, in the exercise of its functions, to have “ due regard ” to the need to meet a number of specific equalities aims. He relied on the well-known case Bracking v Secretary of State for Work and Pensions [2014] Eq LR 60 per McCombe LJ at [25], and submitted that neither the initial nor the updated EIA met the test in section 149. He argued that the initial EIA contained no assessment at all of the equalities impacts of the renewed framework in relation to leaders and staff. Ofsted therefore disregarded the obviously differential impact of that approach on staff members with the protected characteristic of disability (including those with mental health difficulties), given the evidence of the stress and anxiety caused by the use of grading systems in report cards.

91. I do not consider this makeweight complaint to be arguable. In respect of publishing the Consultation Paper, Ofsted complied with the PSED by publishing the Initial EIA alongside it. This assessment addressed each of the statutory considerations to which the decision-maker was required to have due regard, in a clear and structured way. I note in particular that under “advancing equality of opportunity”, the Initial EIA addressed in detail the potential equalities impacts of the report cards proposals on learners, parents and carers. The Initial EIA then identified the potential impacts (including well-being concerns) on teachers specifically: “ So far, we have discussed the potential impact of our proposals on equality, inclusion and diversity for learners. We are also considering their impact on leaders and staff of settings we inspect, and on our inspector workforce. This is particularly important considering the greater nuance in our reporting. We want our more collaborative and supportive inspection methodology to have a positive impact on the workload and well-being of those we inspect. To check this, we will use piloting and further consultation and review .”

92. Insofar as the Claimants argue that the consideration of well-being was limited only to the implications of inspections, and not of reporting, Ofsted plainly had due regard to the equality impact of both its reporting and inspection proposals, in particular in respect of workload and well-being.

93. The PSED is directed only at the statutory considerations. It is a duty “ of process and not outcome ”: R (Bridges) v Chief Constable of South Wales [2020] 1 WLR 5037 (CA) at [176]. It is a matter for the decision-maker how much weight to give any particular equalities consideration: Hotak v Southwark LBC [2016] AC 811 (SC) at [75]. In consequence, having given due regard to the equalities impacts of Proposal 1 on a range of cohorts (including teachers), Ofsted was not obliged to give any particular focus to the matters raised by the Claimants (such as the particular equalities implications of the 5-point scale). XI . Interim relief

94. Although I have refused permission on all grounds, had I considered any of them arguable I would have refused interim relief. Given that this point was addressed by Counsel in some detail in written and oral submissions (and was the subject of 3 detailed witness statements from Mr Whiteman), I will provide some brief reasons for that conclusion.

95. Section 37(1) of the Senior Courts Act 1981 provides that the question on an interim relief application is whether “it appears to the court to be just and convenient” to grant the relief sought. Under American Cyanamid v Ethicon Ltd [1975] AC 396, the court has to consider the following: first, to assess whether there is a “serious issue to be tried”; and second, if so, to determine where the “balance of convenience” lies.

96. This injunction application fails at the “serious issue to be tried” hurdle (there being no arguable grounds for judicial review). But it would also have failed on “the balance of convenience” and by some margin. As to this latter point, it is well-established in the case law that the fundamental principle is that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’. That standard is modified in important respects in the public law context because the balance of convenience will ordinarily lean in favour of refusing relief where a public authority proposes to act conscientiously in the exercise of its powers. See R (FTDI Holding Ltd) v Chancellor of the Duchy of Lancaster [2025] EWHC 241 (Admin) at [15] and [17], per Singh LJ and Chamberlain J.

97. In short, the special feature of public law cases is that, other things being equal, it is likely to be in the public interest to allow a defendant public authority to exercise powers in what it considers to be a lawful manner. The weight to be accorded to this public interest will naturally vary from context to context, but may be considerable. In many cases, the claimant would need to point to something very compelling to outweigh it. In deciding whether a claimant has done so, the court will consider both the prima facie strength of the claim and the gravity of the consequences that would follow if interim relief were not granted.

98. By the interim injunction application of 16 September 2025, the Claimants seek to prevent Ofsted from introducing the 2025 Framework pending determination of their claim. They suggest a determination in a 2 day hearing to be held before the end of the current Term, December 2025. I have to assess the justice of making such an order for such a period on the factual position as it appears today, when the 2025 Framework is to come into force in a matter of days.

99. My starting point is that Ofsted (and HMCI) is the public authority entrusted by Parliament to inspect education providers in England. Ofsted and/or HMCI do so pursuant to statutory duties which I have summarised in Section II . It is plainly in the public interest that Ofsted and HMCI be permitted to carry out their statutory functions, and to exercise their powers, in what they consider to be the appropriate manner. They have been appointed to devise and implement a framework for inspections that they conscientiously consider to be in the best interests and welfare of children, schools, professionals and parents. Under the principles I have summarised above, the Claimants must show a particularly compelling reason for frustrating that evaluation. I also refer to the observations of Lindblom LJ at [78] in R (X) v Office for Standards in Education [2020] EMLR 434. That case concerned an attempt to restrain publication of an Ofsted report and these observations as to the importance of the public interest apply with even greater force when there is an attempt, as in the case before me, to restrain Ofsted in the exercise of its statutory function relating to inspection and reporting.

100. As matters stand, and as I have explained above at [60], routine inspection activity has been briefly paused since 1 September 2025 (with the authorisation of the Secretary of State) for the specific purpose of allowing providers time to prepare for the new 2025 Framework. Ofsted intends to commence inspections under the renewed framework next week from 10 November 2025. If interim relief were granted, Ofsted would be compelled to adopt one of the following two unattractive approaches in the interim.

101. First, Ofsted could continue the current 2-month pause to routine inspection activity past 10 November 2025, for the period of time (which may be 2 months or indeed longer depending on other court priorities) required to determine the claim. This approach will put the safety and well-being of the over 15 million children and young people at risk, by allowing potential harms to go unnoticed and uninspected. The clear and consistent oversight of education is of vital public importance. A continued pause would also have broader consequences for the education sector. It would cause a substantial backlog in Ofsted’s tight inspection calendar. I note that following the 5-month pause to school inspections occasioned by the COVID-19 pandemic, Ofsted took nearly 5 years to ‘catch up’ while maintaining its scheduled inspection activity in parallel. A pause would also delay providers’ applications for funding dependent on inspections. The Claimants have properly disavowed this “pausing” approach in Mr Whiteman’s recent evidence.

102. Second, Ofsted could restart inspection activity under the pre-existing framework 2019 Framework, as updated. In Mr Whiteman’s evidence the Claimants suggest that “ Ofsted would suffer little if any prejudice ” under this approach, because the Court “ would simply be maintaining the status quo during the currency of these proceedings ”. I do not accept this and prefer the evidence before me from Mr Owston. I will not refer to every point made by Mr Owston as to why interim relief would cause prejudice but will seek to provide a summary of the principal points which to my mind tell strongly against any interim order.

103. An order requiring Ofsted to revert to conducting inspection activity under the 2019 Framework would have severe effects on the education sector. The Consultation was prompted by well-being risks posed by the 2019 Framework, which contributed to the death of Ruth Perry, in January 2023. Although the 2019 Framework has been progressively amended in the intervening years, the conclusions set out in the Consultation Paper reflect Ofsted’s expert assessment (on the basis of more than 6,500 responses and other evidence) of the reforms necessary to address the serious criticisms and concerns raised in relation to the 2019 Framework, including by the Claimants. It is not an attractive proposition that a court order would require a continuation of this even for a relatively short time.

104. Further, concrete consequences of not implementing the new framework would include the following: (a) state-funded schools would continue to undergo ungraded inspections, requiring them to maintain outdated grades (potentially for many years); (b) as for early years and further education and skills providers, Ofsted would be required to continue awarding a single-word grade in both settings. The single-word grade was a key criticism of the 2019 Framework, and has already been abrogated in state-funded schools. The same reform, undertaken independently of the new framework in relation to early years and further education and skills providers, would take a significant period of time to implement (aside from cost implications).

105. It appears to me that the practical reality is that if interim relief was granted single word grades would continue to be applied to a considerably greater number of providers than those represented by the Claimants (62,407 early years providers and 2,023 further education providers, as opposed to 23,110 schools). Continuing a two-tier system (with different frameworks being applied to different sectors pending judgment on a claim) would be highly unattractive and unfair. Early years providers would not be inspected under the new toolkit, which implements several internal learning reviews in response to several cases of deaths relating to children (again, I refer here, without detailed quotation, to Mr Owston’s witness statement ) . I note that Ofsted places a particular premium on bringing the 2025 Framework into force in that context. The overall feedback from providers, who have been the subject of pilot inspections, has been positive. This has reinforced Ofsted’s confidence in the suitability of the framework and the readiness of the sector to adopt it.

106. I also accept Ofsted’s evidence that the time, process and financial cost of reverting to the 2019 Framework would be substantial. Ofsted has put in place all the new systems and processes required to implement the 2025 Framework. I note by way of example that 190 schools have already volunteered to be inspected under that framework in November 2025, and have been preparing on that basis and Ofsted has also expended large amounts of time and cost in preparing the industry for the renewed framework, including by modules for inspectors, pilots, coaching from leaders, and quality assurance. These efforts will have been wasted if Ofsted cannot implement the 2025 Framework in November 2025, and is instead required to revert to the unattractive 2019 Framework until the conclusion of this claim.

107. Balanced against these matters, the Claimants rely upon what Mr Whiteman describes as “ huge amount of upheaval and stress for teachers and providers ” that they say would be caused by implementing the 2025 Framework in circumstances where it may ultimately be quashed. I pause here to note that even if the 2025 Framework were to be quashed, that would be on procedural grounds. It was rightly not suggested by Mr Southey KC that the renewed framework could not lawfully be adopted as a rational judgement made by Ofsted. So, there can be no assumption that, even if the Claimants succeeded in this claim, the 2025 Framework would not be adopted after any required correction of process mandated by a court.

108. In my judgment, the Defendants are right to submit that the claimed upheaval and stress is exaggerated. Ofsted’s assessment is that the education sector is well-placed to respond to the enactment and implementation of the 2025 Framework, and indeed would face greater disruption if the reforms were now reversed just a few days before they were due to come into effect and delayed for an indeterminate period.

109. In their written submissions, the Claimants go further and suggest that the coming into force of the renewed framework will “ cause potentially serious and irreversible prejudice and disruption to leaders and teachers who would have to navigate to an entirely new inspection system which poses significant risks to the well-being and mental health of those undergoing inspection ”. I found this a surprising submission when it is appreciated that the 2025 Framework does not involve the single-word judgments (assessing the entirety of a school’s performance) that were identified as a matter of concern following the death of Ruth Perry. The 2025 Framework contains a considerably more nuanced 5-point scale, which is published in association with a narrative framework. Ofsted’s evidence, which I accept, is that the 2025 Framework, as planned, will have positive and clear well-being benefits over the 2019 Framework, from the perspective of teaching professionals.

110. For these reasons, had the issue arisen, I would have held the balance of convenience was clearly in favour of refusing interim relief and would have exercised my discretion accordingly. XII. Conclusion

111. Although this claim wears the clothes of a procedural challenge to a consultation process, in substance NAHT's real complaint is about the policy design decision made by Ofsted to the effect that some form of grading is necessary. That is a matter of high educational policy and the Claimants’ case is built on a wholesale opposition to any form of grading while at the same time disavowing any case that adoption of a grading system is irrational or otherwise unlawful in itself.

112. The evidence satisfies me that Ofsted's conclusion, that a grading plus narrative approach best balances the different interests at play, was reached after a detailed consultation conducted in a procedurally lawful way. It involved a careful assessment of the various views expressed to it, including consideration of well-being issues which had been at the forefront since Ruth Parry’s tragic death. In particular, sight must not be lost of the fact that strong voices, including from the parent and carers community, preferred some form of grading or scaling system in the form ultimately adopted, as opposed to the pure narrative approach which the Claimants favour. The Claimants’ case does not recognise the parent and carer position as expressed in the Consultation. As Ofsted said in the Consultation Report, the new framework with its grading system has the “overwhelming backing” of the parent community, while recognising substantial opposition from the teacher and headteacher unions. While all agreed a renewed framework for inspection and reporting was necessary, there was no single solution favoured by interested parties. The power of choice lay with Ofsted and HMCI. They were best placed to balance the need for some form of graded assessment with the potential for such evaluations to have negative well-being impacts on teachers and leaders and how to address that important concern. As I have said earlier, any form of grading may have an adverse mental health impact on those assessed, but Ofsted’s role was to balance that consideration against the views of the many others in the Consultation in forming a view as to how best to fulfil its statutory duties.

113. Ultimately, the merits of Ofsted's report card grading system with accompanying narrative, including its approach to the well-being issues raised, are not matters for this court. A judicial review court must ensure a public body acts in accordance with the standards of procedural fairness the law requires, including taking into account relevant considerations, not prejudging the outcome before consultation and making due inquiry. There was no arguable error on these matters.

114. I return to the point that the true complaint in this case concerns matters of policy choice and system design. These were matters of expert judgment for Ofsted and HMCI and they lawfully took into account the risks to well-being of leaders and teaching staff.

115. Permission to apply for judicial review is refused.