Increasingly, providers are looking to challenge the findings of inspections and the content of inspection reports. Ofsted’s procedures for challenging inspections and inspection reports are limited and it is important that providers use these processes robustly.
Following an inspection by Ofsted, the provider will receive a draft inspection report and will be given an opportunity to make any factual accuracy comments. For early years providers, this is normally only a 24 hour period. The draft inspection report will be amended if necessary and if no factual accuracy comments are made, reports will normally be published within 10 working days of the provider receiving the draft report.
In terms of challenging the content, findings and findings outlined in the report, the only route for providers to do so is by following Ofsted’s complaints procedure. This provides that complaints should be submitted within 10 working days of publication of the report. Where a provider has concerns about or disagrees with the judgements or findings in an inspection report, they will usually want to prevent the report from proceeding to publication. Representations can be made to Ofsted to request that the publication of the report is withheld until their complaint has been considered. However, Ofsted’s complaints procedure sets a high bar for withholding publication; they will only do so in exceptional circumstances and a challenge to the inspection process or disagreement with the inspection findings alone are not normally considered to be exceptional circumstances.
‘Stage 1’ – Informal Complaint
Ofsted recommends that providers should raise concerns as soon as they arise and directly with the individuals involved. This is known as an informal complaint and falls under ‘Stage 1’ of the complaints process. Where there are concerns about an inspection or inspector, providers are recommended to raise concerns with the lead inspector during the inspection visit. Clearly, providers may not always feel comfortable raising their concerns during the inspection in case this negatively impacts on the outcome of the inspection, or because they are concerned with the inspector’s conduct. Whilst this recommendation appears reasonable on paper, it is not always practical advice in reality. Quite often providers will have a team meeting after the inspection or the following day and it may only be upon discussions with staff that further concerns are raised.
‘Stage 2’ – Formal Complaint
Submitting a formal complaint to Ofsted falls under ‘Stage 2’ of the complaints policy. This must be within 10 working days of the concern, or where it relates to an inspection report, within 10 working days of publication. However, it may be in a provider’s best interests to submit a complaint prior to publication and even prior to receipt of the draft report, in some circumstances. Providers should consider this carefully, as the complaints procedure provides that Ofsted will not normally consider any additional concerns or documentation they receive once a complaint has been received.
A ’Stage 2’ a formal complaint should be submitted using the online form on Ofsted’s website. This form splits the complaint into three sections: process; conduct; and judgement. The form only allows for 10,000 characters per each of the three sections. As such, it is vital the complaint is drafted concisely to ensure it is within the limit, but still captures all of the concerns to be investigated. You are asked to provide a summary of your complaint initially and at the end of the form you are asked to outline the outcome you are hoping to achieve. You are also able to upload any supporting documentation with your complaint. This is key to any complaint where the findings in a report and findings are being challenged, to evidence that the inspector’s findings are wrong or misleading.
Once the complaint has been submitted, Ofsted will allocate an independent investigator to consider your complaint, the inspector’s response to the complaint and the evidence gathered as a part of the inspection. This is normally an inspector in a different region to the setting, who has had no prior involvement in the inspection process. The investigating officer will contact the individual who made the complaint shortly after it has been submitted. This is supposed to be a discussion to see whether all or some aspects of the complaint can be resolved quickly and to confirm the agreed main aspects of the complaint that will be subject to investigation. In our experience, this can sometimes be an attempt to limit the scope of the response to the complaint, by grouping aspects of the complaint together. This results in a response that is generalised and does not provide a specific response to each issue. There will be a general confirmation in Ofsted’s response which states that whilst they have not responded to each and every issue, the matters have been investigated and looked into. Providers should refrain from agreeing to grouped responses or agreeing ‘main’ concerns, so that the investigation is not limited.
Ofsted will have 30 working days to investigate and respond to the complaint.
‘Stage 3’ – Request for an Internal Review
Stage 3 is a request for an internal review and the request must be submitted within 15 working days of the date of Ofsted’s response at Stage 2.
It is important to note that this is a request based on a provider being dissatisfied with the way in which the complaint has been handled. This will not be a re-investigation of the issues raised in the original complaint; it is merely a consideration of how the complaint was handled. As such, it is important that providers ensure the formal complaint at Stage 2 covers all issues effectively, as this is the only opportunity for an in depth investigation into their complaint. Ofsted will not consider new concerns or new evidence as a part of this review.
Independent Complaints Adjudication Service for Ofsted (‘ICASO’)
In the event that you are not satisfied with the outcome at Stage 3, you can request an external review of the handling of the complaint from ICASO. You will have three months from the date of the internal review response letter to submit your complaint to ICASO. As with Stage 3, this is not a re-investigation of the original complaint and is instead a review of the way in which the complaint was dealt with. ICASO cannot overturn inspection findings or decisions and it is therefore limited to concerns about the process followed in considering the complaint. ICASO feedback to and advise Ofsted about improvements they can make to their complaints process.
Providers are often reluctant to raise complaints against Ofsted and this is understandable given the ongoing relationship they must maintain with their regulator. However, Ofsted are not immune to getting things wrong. Where providers have concerns with the process, conduct or findings following an inspection it is important they consider their right to raise a complaint and seek legal advice as soon as possible following the inspection.
At Stephensons, we have represented numerous providers in relation to the complaints process. We have achieved success at persuading Ofsted to amend and even remove parts of an inspection report prior to publication, as well as persuading Ofsted to carry out an early re-inspection. If you require any advice and assistance in relation to challenging Ofsted, please contact our specialist Ofsted lawyers now on 0333 323 3949.