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Education briefing - When the inspector calls – what to expect from the Ofsted inspection regime

  • United Kingdom
  • Education - Briefings

30-11-2021

On 16 November 2021, Ofsted announced that it had been asked by the Government to accelerate inspections of all schools and further education (FE) providers by summer 2025 and will receive almost £24 million in funding to do so, for the stated purpose of assessing the recovery of education following the COVID-19 pandemic.

The announcement raises the prospect of schools and FE providers who may not have been inspected for many years facing close and rapid scrutiny from Ofsted.

The renewed prospect of inspections also means that schools and FE providers face the challenge of juggling preparations for a potential inspection with the ongoing impacts of the pandemic in the sector. It is therefore an apt time for those institutions to remind themselves of the framework for the current inspection regime, including what they can expect from an inspection and the options available if they are unhappy with the outcome of an inspection process.

Education Inspection Framework

As schools and FE providers will be well aware, Ofsted’s Education Inspection Framework, read in conjunction with its handbooks, sets out the process by which it inspects education providers within its remit, the principles that apply to inspections and the criteria against which inspectors will make graded judgements.

In its announcement, Ofsted foreshadowed updates being made to the Education Inspection Framework and handbooks to confirm additional details about the accelerated inspections. Institutions will want to ensure that they are familiar with these updates and what they might mean in practice ahead of an inspection by Ofsted.

What can I expect from an inspection?

Expect the unexpected - with very little notice!

As many institutions have learnt, Ofsted gives very limited notice of its inspections: for schools, notice is generally given on the school day prior to the inspection and for FE providers, notice is generally given up to 2 working days prior to the inspection. Whilst this is the norm, Ofsted retains a right to conduct unannounced inspections.

Following notification of an impending inspection, a school or FE provider is required to take a number of preparatory steps concerning the collation and provision to Ofsted of relevant evidence and notification to, and engagement with, key stakeholders.

Since schools and FE providers need to be prepared to demonstrate their performance against the criteria in the Education Inspection Framework at any point from now on, ensuring documentation is up to date and readily retrievable will be important for any institution seeking to achieve a successful inspection outcome. So too is ensuring that staff are comfortable with the inspection process

Expect a deep dive

It goes without saying that every school and FE provider should expect rigorous scrutiny irrespective of their current grading during this process. Whether through direct observations of teaching, discussions with staff or scrutiny of student work and records, the spotlight is likely to shine brightly on all of the institution’s activities.

By way of reminder, during the on-site inspection, inspectors’ will collect first-hand evidence via a range of inspection activities including but certainly not limited to:

• direct observations of teaching, training and assessment;

• meetings and discussions with teachers, trainers and other staff;

• formal or informal interviews and discussions with students;

• reviewing and scrutinising students’ work;

• reviewing and evaluating learning materials; and

• analysing records of the school, including in relation to student progress.

At the end of the inspection, the lead inspector will meet with relevant managers and/or leaders to provide feedback and communicate (among other things) the provisional grades awarded for each judgment, which may be subject to change through moderation and quality assurance processes.

Expect a rapid outcome – and be prepared to take big decisions quickly

Schools and FE providers will be provided with a draft report, which sets out judgments made in relation to quality of education, behaviour and attitudes, personal development and leadership and management within 18 working days after the end of the inspection. The draft report should be consistent with feedback provided at the on-site inspection.

Whilst the draft report is restricted and confidential to personnel determined by the institution, Ofsted is entitled to share the draft findings with relevant regulators including the Department for Education, the Further Education Commissioner, the Education and Skills Funding Agency, Ofqual and the Office for Students. This raises the obvious prospect that, if the inspection outcome is adverse, an institution’s regulators and funders are likely to be made aware of that outcome very promptly and in a timeframe outside of the institution’s control.

Following receipt of the draft report, a school or FE provider is given 5 working days to provide Ofsted with comments on the draft report, inspection process and findings.

 Ofsted is then required to provide the final report to the school or FE provider, together with Ofsted’s response to the institution’s comments, within 30 working days after the inspection.

If the school or FE provider does not make a complaint in relation to the inspection or report, Ofsted will publish the report on its website within 8 working days of the final report being provided to the institution.

 What are my options if I am not happy with the outcome of an inspection?

Given the serious potential implications, including reputational impacts, which may arise from an adverse judgment by Ofsted, schools and FE providers will want to understand their options if they are dissatisfied with an inspection process or outcome. If an adverse outcome is in prospect, the first consideration should be whether there are justified grounds for complaint.

The rules of Ofsted inspection

When it comes to Ofsted inspections, the Education Inspection Framework and handbooks are fundamental to the process. However, they are not the rules which Ofsted must abide by. It must also conduct an inspection according to public law principles. What that requires in practice will depend upon the circumstances of each case, but the kind of principles which are likely to be relevant here are:

Conclusions must be supported by a sound, evidential basis

Ofsted has considerable discretion as to the sort and extent of evidence it seeks out during the course of its inspection. Nevertheless, its decisions could be open to challenge if it could be said that: 

• conclusions have been based upon fundamental factual misunderstandings;

• relevant evidence has not been sought out and considered - particularly if the availability of that evidence has been made known to Ofsted;

• the inspection outcome is based upon evidence which has never been put to the institution;

• the inspection outcome is wholly disproportionate to the evidence which Ofsted says it has relied upon to reach its grading decisions.

The process must be fair and transparent

An element of surprise is an intrinsic component of the inspection process, since it appears that the Government considers that approach to be the best way for Inspectors to obtain a realistic perspective on the workings of institutions. Nevertheless, schools and FE providers are entitled to expect Ofsted to conduct inspections in a way which is consistent with the principles of fairness and transparency – for example:

• if specific allegations are made which are likely to shape the inspection outcome, institutions should be given an opportunity to consider and respond to those allegations;

• inspectors should identify themselves as such during the course of the inspection and explain the process which is underway to those they interview;

• the process of considering and responding to comments on the draft report as set out in the handbooks should be followed.

If I am not happy with the inspection outcome, what can I do next?

First respond to the draft report

The first step in seeking to resolve a grievance or dissatisfaction with the inspection process or inspection outcome is via the process of responding to the draft report issued by Ofsted following the inspection.

During that process, the school or FE provider should act promptly to respond to the draft report within the timeframes set out in the relevant handbook and, in order to persuade Ofsted that the final report should differ from the draft report, the response should be fulsome, robust and clearly focussed on evidence. Ofsted requires that a school’s or FE provider’s comments on the draft report are at least responded to at the time of issuing the final report.

It should be noted that, however strong the basis for challenge of Ofsted’s process or decision, this step cannot be circumvented.

Then complain!

If a school or FE provider is aggrieved or dissatisfied with the inspection process or an inspection outcome following receipt of a final report from Ofsted, a formal complaint can be made within 5 working days via Ofsted’s complaints procedure. In these circumstances, Ofsted will withhold publication of the final report while the complaint is being considered and determined.

The final option - a judicial review challenge

If all else has failed, a school or FE provider aggrieved or dissatisfied with the inspection process or an inspection outcome may consider challenging Ofsted’s conclusions by way of judicial review. Such a challenge must be brought expediently – in particular, a claim for judicial review must be brought ‘promptly’ and in any event within 3 months of the date of Ofsted’s decisions.

Judicial review is a two-step process by which the lawfulness of a decision made by a public authority (or body exercising public authority) is tested – first, by obtaining the court’s permission to bring a claim for judicial review and, second, by hearing of the substantive judicial review challenge.

In order for a claim for judicial review to be brought, a ground for such a challenge must exist. Whether that is the case, and what the precise grounds of review are, will differ from case to case but the kind of arguments which usually form the basis of a judicial review challenge are:

• whether Ofsted has strayed beyond the scope of its legal powers;

• whether Ofsted has failed to act in a manner consistent with broader principles of fairness, transparency and consistency;

• whether Ofsted has failed to act ‘rationally’, including by taking into account all relevant matters and not factoring in irrelevant considerations;

• whether Ofsted has failed to follow the prescribed process and procedure in reaching its decision.

Prior to commencing a claim for judicial review, an institution should also give consideration as to whether such a claim is capable of achieving a desirable outcome which is consistent with its broader strategic objectives.

What can I do now?

In preparation for Ofsted’s accelerated inspections, schools and FE providers should consider taking steps to:

• re-familiarise themselves and their staff members with the Education Inspection Framework and relevant handbook;

• ensure that its documentation (particularly, that which pertains to teaching and learning over the course of the pandemic) is up to date and readily retrievable; and

• ensure that it has appropriate arrangements in place, including governance arrangements, to make key decisions at each stage of Ofsted’s inspection process.