Ofsted's Inspection Practice Changes
On 12 June, Ofsted provided more detail around their hailed changes to their inspection practices. The changes, while not altogether seismic or particularly detailed at this stage, at least provide some insight into what lies ahead.
In this article, we detail some of the changes and provide some practical commentary, noting the Schools Causing Concern Guidance published on 11 July 2023 which goes someway to joining up thinking on the impact of inspection on intervention.
Inspecting Safeguarding
Where a full section 5 inspection results in the only failing being safeguarding - resulting in the school being graded overall inadequate - Ofsted will return to re-inspect safeguarding within three months of the inspection report publication. On the inspectors' return, if the safeguarding concerns are resolved, a school provider is likely to see its overall grade improve.
Alongside this, Ofsted say that they will assist schools by offering greater clarity about the threshold for effective versus ineffective safeguarding through the inspection handbook, as well as regular blogs and webinars. Given the paramount importance of safeguarding, this is likely to become essential reading and viewing for school leaders, DSLs and their deputies, as well as Trustees and Governors.
Inspection reports will also describe ineffective safeguarding more clearly in inspection reports, so that concerned parents and school leaders have clearer insight as to how Ofsted has arrived at the judgement. This level of detail should also assist schools in putting together a rigorous action plan for improvement in the aftermath of the inspection.
Ofsted Complaints
On the same date, Ofsted also published a consultation on revisions to its current complaints procedure which is open until 15 September. The consultation document summarises the four headline changes as:
1. Enhance on-site professional dialogue during inspections to help address any issues before the end of the inspection visit
Ofsted propose formalising a procedure whereby inspectors check in with leaders at various intervals where appropriate, specifically:
- during the pre-inspection notification call or when an inspector arrives on site
- at end-of-day meetings
- at the final feedback session
This will mean that schools will need to be pro-active and forthcoming for their concerns to be considered while the inspectors are on-site.
2. Introduce a new opportunity for providers to contact Ofsted the day after an inspection if they have any unresolved concerns
Ofsted explains that this can include:
- raising informal concerns about the inspection process and its likely outcome
- queries about what happens next
- highlighting information that they feel was not fully considered during the inspection
These calls will be directed to inspectors who were not involved in the inspection with the aim of resolving concerns at the earliest opportunity.
3. Introduce new arrangements for finalising reports and considering formal challenges to inspection outcomes
Ofsted propose two options for providers:
i) Factual Accuracy and Clarity
Ofsted expects that any minor points of clarity or factual accuracy will be highlighted and considered promptly so that they can finalise the report for publication. If providers choose this route, Ofsted states that providers will not normally have a later opportunity to raise a formal complaint or challenge. The proposed complaints procedure explains that if providers want to seek a review of the inspection findings and judgements, they can submit a formal complaint.
This will in theory shorten the current Step 1 and Step 2 complaints processes which must be concluded sequentially, but it will also mean that the provider needs to be very focused on what they want to do.
ii) Formal Complaint
If a complaint is submitted, a member of Ofsted staff independent of the inspection will be selected to investigate the challenge. Ofsted proposes that this investigation include a telephone call to the provider to explore their concerns fully and, where possible, resolve issues quickly. This will allow providers to highlight any information that they feel was not fully considered as part of the inspection process. The outcome of an investigation could result in:
- no change to a report
- changes only to the report’s text
- changes to a grade, including the overall effectiveness grade
- the inspection being deemed to be incomplete and confirmation that there will be a further visit to gather additional evidence
The complaint outcome letters issued at the end of this process will be "clearer for providers about the reasons for decisions made" and will be sent to providers with their final report, before publication.
4. Replace our current internal review process with a direct escalation to the Independent Complaints Adjudication Service for Ofsted and add a new periodic review of closed complaints, using external representatives from the sectors we inspect.
Under this proposal, Ofsted has removed the current step 3 internal review in their complaints process. This is a review by Ofsted staff of how it handled the original complaint. It does not include a further investigation of the issues raised. Under the current process, complainants need to conclude this step before they can contact the Independent Complaints Adjudication Service for Ofsted (ICASO) to ask for an independent review of how their complaint was handled.
Now, Ofsted propose instead that if complainants are concerned that the complaints-handling process has not been handled properly, they can raise it directly with ICASO. This is not the same as a review of the substantive complaint outcome. Ofsted envisages that this will reduce the burden on providers and that it will enable Ofsted to consider any formal complaints once, and thoroughly.
Ofsted plans also to introduce periodic reviews of how they handled complaints by setting up a panel of external reviewers. The panel will include external representatives from the sectors it inspects.
Our Comments
If the above complaints procedure is finalised, it will mean that providers will need to be very pro-active in marshalling and articulating their concerns during the inspection; in the call the day after the inspection; and then subsequently, by opting for either an informal or formal complaint. It is inherent also in the proposed procedure that inspection reports will be published more expediently because the procedure is less onerous.
On 11 July 2023, updated Schools Causing Concern Guidance was issued with the intention of dovetailing the Guidance and the changes to Ofsted's inspection processes noted above.
The Guidance confirms the general principle that where a maintained school is judged inadequate, the Secretary of State has a duty to issue an academy order. For academies judged inadequate, the Regional Director (on behalf of the Secretary of State) ('RD') has the power to terminate the academy's funding agreement and move the academy to a new academy trust. This is a power rather than a duty, meaning the RD may decide, where appropriate, to implement other measures to improve the academy, rather than terminate its funding agreement to bring about a change of academy trust.
Where an inadequate judgement is made solely due to ineffective safeguarding (but the school remains good or outstanding in other areas), the Guidance provides that timeframe for implementation of an academy order for a maintained school will allow for reinspection. If an academy order has been issued for a maintained school and, on re-inspection, Ofsted is satisfied that safeguarding is effective and the school will be regraded, the governing body of the school may apply to the Secretary of State (likely through the relevant RD) to revoke the academy order.
The Guidance does not make clear that the same applies to an existing academy and so if the RD exercises the power to terminate an academy's funding agreement and the academy is subsequently regraded, it is not clear whether the board of trustees can apply to the RD to have the termination notice withdrawn.
How We Can Help
Should you require any advice in relation to complaints against Ofsted, safeguarding or intervention by the DfE, please do not hesitate to contact one of our education lawyers.