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NAHT legal challenge: Ofsted forced to confirm 'visits' are inspections

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A message from NAHT general secretary Paul Whiteman to members

NAHT launches a judicial review against Ofsted. 

Ofsted is forced to confirm that 'visits' are in fact inspections as a result of NAHT legal challenge.  

Important clarifications and reassurances won on behalf of members.  

NAHT will support members whose experience of Ofsted’s 'light-touch inspections' falls short of the conduct promised.  

Please read the whole of this email. Important information and advice are below.

 As I hope you will have seen, in recent months, we have been robustly challenging Ofsted on its proposals for autumn term ‘visits’ to schools. 

From the outset, we were very clear that we did not support the approach Ofsted was proposing. Given the unprecedented day-to-day challenges that schools are facing, we argued that participation in Ofsted visits should be voluntary. We were concerned that the intent to produce a parental letter following the visit that detailed inspector findings would change the nature of discussion and make these visits feel like a form of inspection by other means. 

On 14 September, Her Majesty’s Chief Inspector wrote to NAHT, ASCL and NGA. In that letter, HMCI explained that Ofsted would conduct 'visits' using statutory powers, but invited us to “…provide assistance in telling schools unequivocally that these are not inspections; schools should not prepare for visits or be concerned by them”.  

Telling us, in writing, that these were not inspections was a significant step to take, and it had a range of potential consequences for NAHT members. By confirming that these were not inspections, we believed that Ofsted’s powers of entry, granted under inspection legislation, would not apply. It appeared to us that clear confirmation from the Chief Inspector that these were ‘unequivocally… not inspections’ could allow schools to decline to participate, should timing or circumstances not make this acceptable to the school. However, the inspectorate remained determined to rely on statutory powers of compulsion rather than accept offers of professional cooperation.  

Given the significance of this, NAHT decided to begin a legal challenge by judicial review to seek absolute clarity as to whether or not these visits constituted inspections. In doing so, we have maintained the coalition with ASCL and the NGA who will be communicating separately with their members. 

Yesterday, in the formal response to our challenge, Ofsted had conceded that inter alia: 

‘‘the use of the word ‘visits’ in preference to ‘inspections’ in certain Ofsted documents does not in any way detract from the fact that the visits nevertheless fall within the broad concept of inspections.’’ 

While Ofsted has sought to play down the nature of these visits publicly, this statement makes it clear that they are indeed a form of inspection and should therefore be approached as such.  

The advice of our legal representatives is clear that Ofsted’s reply confirms our assessment that the 'visits' are inspections conducted under statutory powers. Therefore, schools must not frustrate the efforts of the inspectorate. We think a more accurate description of this activity would be ‘light-touch inspection’. 

However, within its response, Ofsted has repeated and extended reassurances about how it intends to conduct the 'visits'. It is important that these were obtained in this format as members tell us that they do not feel confident relying on previous statements made by Ofsted. Comments made on social media or in blogs do not carry the same weight as a legal letter. 

Importantly, Ofsted has said the following in that letter: 

  • The visits enable leaders to identify their successes and challenges through objective discussion with inspectors
  • The visits will not result in any evaluation or graded judgement of a school or change a school’s current Ofsted inspection grade
  • The visits will not provide any evidence or lines of enquiry for later inspection events, once routine inspection resumes. 

This final bullet point is particularly important. 

We believe that this confirms that any visits should feel genuinely collaborative and a visiting HMI should conduct them on that basis. 

If Ofsted notifies you that you have been scheduled a visit, and yet current local circumstances are such that this has potential to cause significant disruption and hinder your ability to manage the day-to-day operation of the school, we urge you to request a deferral. Given that Ofsted has stated that it is sympathetic to the pressures on school leaders during the pandemic, we would hope and expect Ofsted to look favourably on such requests because to do otherwise would be perverse. Where not, we would urge you to contact us on 0300 30 30 333 (and select option 1). 

If during these visits, you become concerned that inspectors are going beyond acceptable parameters of questioning or investigation, we urge you to follow the complaints procedure and seek support from us on the above number.

Over the coming days, we will be providing further guidance for members and answering more of the questions we have received. 

Instigating a judicial review is a significant step for NAHT to have taken as a union, and starting the process was not a decision that was taken lightly. I do, however, hope it reassures you that your union is prepared to use the avenues available to it and take the necessary action to protect and support you. Accountability flows both ways, and on this occasion, it has fallen to us to hold the inspectorate to account – something we will not shy away from doing again in the future should that become necessary.

However, the important clarifications and assurances contained in that response give significant weight to any complaint necessary for any failure of the inspectorate to conduct itself as promised.  

NAHT stands ready to defend its members accordingly. 

I know from your emails and messages that you are just as concerned about Ofsted’s current plans for the spring term. I want to reassure you that we are fully aware of the strength of feeling among our membership on this issue too.

First published 02 October 2020