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Ofsted inspections – What should your school expect, and what legal recourse do you have?

As Ofsted prepares to embark on more inspections than ever, Katie Michelon looks at what schools ought to know ahead of their visit – and the options available if something doesn’t seem right…

Katie Michelon
by Katie Michelon
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Secondary

Ofsted’s inspection schedule is back in full swing.

Inspections of formerly exempt Outstanding schools are now well underway, and with the government having recently consulted on further intervention measures linked to Ofsted judgments, the stakes appear higher than ever.

Whilst Ofsted is keen to stress that it doesn’t expect teachers to be overloaded with preparatory work, there are some relatively straightforward steps all school can take to place themselves in a strong starting position.

Review, update, liaise

The school website will probably be the first piece of evidence an inspector considers, so review it to ensure that it’s compliant – there is DfE-issued guidance setting out the information schools and academies are required to publish online. A website that includes useful and accessible information will give a good first impression. 

As well as checking that the school has all required policies in place, consider the cycle and processes through which these are reviewed and updated. If, for example, Ofsted visit in September, will your school have already adopted an amended child protection policy, reflecting the new statutory guidance that takes effect from 1st September 2022?

Inspectors will always seek to meet governors during an inspection. Their report will include a specific paragraph on their effectiveness, which will in turn impact upon the report’s ‘leadership’ and ‘management judgement’ areas – but governor experiences of inspections can vary.

Some knowledge-sharing on the part they will play in the process can therefore instil confidence, ensuring that they have a clear understanding of their role, and are comfortable and consistent in talking about the school’s vision and ethos.

Time to defer?

Whilst the timing of an inspection is ultimately not within a school’s control, it’s worth noting that Ofsted ‘rebalanced’ its guidance on inspection deferrals in December 2021, in recognition of the impact of COVID-19.

The reality is that many schools are still grappling with the impact of the pandemic. If your school’s particular circumstances are likely to restrict the inspection process in some way, it may be worth asking Ofsted to consider a deferral of the inspection. According to Amanda Spielman, “The great majority of deferral requests were agreed” at the start of this calendar year.

Where a school is unhappy with an inspection, there are various ways in which to raise objections. Ofsted encourages schools to raise any concerns as early on as possible during the inspection process. We would also advise recording in writing the response given by the lead inspector or Ofsted’s central team.

Your school should also look to make full use of the opportunity it will have to comment on the draft report. Ofsted is required to consider these comments and respond to them on issuing the final version.

How to complain

Beyond step 2 of the complaints procedure, Ofsted will only continue to withhold publication of a report in exceptional circumstances. The only other way to prevent Ofsted publishing will be to seek an injunction from the Court.

Once the final report is received, there is the option of issuing a formal complaint under step 2 of Ofsted’s complaints procedure. As long as this formal complaint is submitted within five days of receiving the final report, Ofsted will not publish the report until the complaint has been investigated and responded to. The school does not therefore need to be immediately concerned about a contested report entering the public domain.

We usually advise exhausting Ofsted’s complaints procedure so far as possible before resorting to formal legal action against the regulator – both from a cost perspective, and because the Court will have expected you to do so.

Successful judicial review cases against Ofsted are quite rare, and particularly difficult where a school is looking to challenge the merit of a judgement alone. As such, whilst a school’s comments on a draft report or formal complaint aren’t legal documents, there is value in seeking legal advice at these stages to focus the arguments, understand the desired and possible outcomes, and the prospects of achieving them.

Katie Michelon is senior associate at the law firm Browne Jacobson; for more information, visit brownejacobson.com or follow @brownejacobson

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