Ofsted’s Complaints Process Explained …

In 2017, the High Court concluded: “that Ofsted’s complaints process implied that the decision-makers processes are always effective and therefore impeachable, thereby preventing an aggrieved party from pursuing a substantive challenge, is not a rational or fair process.” (Source: Browne Jacobsen, 2017)

It was ruled that until Ofsted amended the relevant section of its complaints procedure or successfully appealed the High Court’s ruling, any school placed in an ‘inadequate’ category has sufficient grounds for a challenge on the basis of an “unfair and flawed process”. Well, you can imagine what Ofsted has been doing behind the scenes between October 2017 until December 2018. (You can read the full legal case here.)

The Court of Appeal ruled that Ofsted’s complaints procedure is fair and proper. I know, I know! However, the High Court did agree that Ofsted’s complaints procedure did not allow for a substantive challenge to be made to the special measures judgement (neither fair nor rational).

The outcome?

As a result, the school which originally took Ofsted to the High Court had their inspection report quashed. Despite this ruling, Ofsted did not amend its complaints procedure. The Court of Appeal highlighted that to decide if the complaints procedure is fair, there needed to be a review of the overall process of inspection.

The High Court suggested that Ofsted’s internal quality assurance process and moderation of schools deemed ‘inadequate’ is not fair. However, and here is the critical conclusion: “the Court of Appeal’s view was that the review and checking carried out by Ofsted as part of the moderation exercise amounted to more than adequate protection.” (Source Browne Jacobsen, 2019)

It was cited that it did not matter if the complaints process was different for schools judged ‘outstanding’, ‘good’ or ‘requires improvement’. Ofsted is quite happy to differentiate schools for its complaints process but refuses to evaluate schools who are working in different contexts.

My contention remains: What if the methodology for grading schools is flawed? What if Ofsted grading schools tells us nothing about how to improve education? What if the judgements used actually widen social mobility and increase teacher attrition, rather than decrease it?

Procedural safeguards for schools

Schools have a right to complain about the judgement under the following procedure:

1. A step one complaint is to raise concerns during the actual inspection at the end of day one (and keep records).
2. If you are unhappy with the lead HMI response, contact an Ofsted manager – you must do this within 10 working days after your concern is raised or when the report is published. You will receive a written response within 30 days.
3. Comment on any element of the draft report for ‘factual accuracy’. For schools graded ‘inadequate’, this is your one opportunity to detail in writing why the school disagrees with the contents.
4. Only Ofsted can agree to delay publication. The best way to guarantee this happening is an official letter from a solicitor which outlines any ‘clear and serious’ issues. Get in touch if you would like a recommendation.
5. If you ask for an ‘internal review’ about your complaint, you must do this within 15 working days.
6. A step 2 complaint is to tackle where Ofsted inspectors have failed to follow due process. If your school has been graded ‘inadequate’, you can still submit a step 2 complaint.
7. During the extended period of quality assurance and moderation, the fact that if a complaint is made about the judgements before the report is finalised, that complaint will be referred to and considered by those carrying out the quality assurance and moderation exercise.
8. The ‘scrutiny committee’ has 30 working days to respond to your school.
9. If the ‘inadequate’ judgement (if withheld) requires authorisation by the Chief Inspector or a Regional Director on their behalf.
10. Given the amount of discretion Ofsted has when it comes to judgements, the reality is that a school is more likely to successfully challenge a report on matters of process or conduct (and not the outcome).

Brown Jacobsen solicitors write, “… the arguably more meaningful stage of extended quality assurance is ultimately an internal exercise with no facility for the school to respond or understand the reasoning involved.”

Why you (currently) cannot win …

On Ofsted’s complaints process website, “If you’re still unhappy, you can request an external review from the Independent Complaints Adjudication Service for Ofsted (ICASO) – you have 30 working days to do this after the ‘internal review’ response.

However, this won’t really get you anywhere.

Why? The Ombudsman does not handle complaints from public organisations such as state schools and worse, the ‘independent panel’ will consist of Ofsted’s leadership team and ICASO’s adjudicators, rather than an entirely independent panel with Ofsted being separate to the review. You can read more about their rules and dig into the details of past annual reports.

Amongst complaints that did fall within ICASO’s terms of reference, the following table (2018) shows the number of times each type of complaint was raised: ‘Inspector conduct’ and ‘complaint investigation’ are the greatest reasons.

So, dear reader, choose to work in a challenging school or fall foul of a subjective ‘inadequate’ inspection decision and the cards are stacked up against you. You can easily challenge the complaints process itself and argue about how poor the lead inspector behaved, but you’ve got NO chance of your decision being overturned – it’s the legislation that needs to be amended.

Is it any wonder we are losing headteachers …