Ofsted returned to a full programme of school inspections in September 2021. At the same time, following a change to legislation, it picked up the inspection of “outstanding” schools that were formerly exempt.

Perhaps unsurprisingly, this has led to a notable increase in enquiries from schools seeking legal advice on challenging inspection processes and outcomes.

Part of this is simply because inspections have returned but also because the inspection of schools previously exempt has resulted in some unexpected and controversial judgements.

Why challenges are rising

Within this, there have also been concerns around how fair inspection teams have been in allowing for the effect of the pandemic, with plenty of accounts of Ofsted “talking the talk but not walking the walk” when it comes to the real-life impact on schools.

Unsurprisingly, the schools that seek legal advice are typically those that have received a more extreme grade change.

With a judgement of “inadequate”, the stakes are high for all schools, but, in the current landscape, maintained schools and single academy trusts feel particularly vulnerable.

Interestingly, many schools seeking advice have often been found to have ineffective safeguarding arrangements in a report, with Ofsted highlighting areas such as poor record-keeping, lack of referrals, poor governor oversight of safeguarding and insufficient staff awareness of areas such as peer-on-peer abuse.

We have also seen a number of examples of inspections running into difficulties because of apparent conflict between local requirements, statutory requirements and Ofsted’s expectations in relation to safeguarding.

For example, where a local authority’s advice around DBS checks does not reflect the guidance set out in Keeping Children Safe in Education (the statutory safeguarding guidance) or where inspectors’ expectations around the involvement of other agencies are below the local referral threshold.

When you can challenge

For schools, the options to challenge reports and inspections actually begins during the inspection process itself, as Ofsted’s complaints procedure encourages concerns to be brought up as they arise and directly with inspectors involved in a visit.

While it can seem counterintuitive to “bite the hand that feeds you”, failing to politely and respectfully, but firmly, raise an issue early on can lead to it escalating unnecessarily. It can also weaken the strength of a more formal complaint later down the line.

Concerns should ideally be channelled through the headteacher, and it is useful to record the concern raised, the time you did so and the action taken by the inspector.

In reality, though, many schools are tempted to raise a formal complaint as soon as the inspection finishes.

Pulling together your own notes of the inspection concerns and speaking to your legal advisors can be a good idea at this stage.

Take your time

However, we would advise holding off on making a formal complaint for a number of reasons.

Inevitably, after an inspection, particularly one you are not happy with, emotions will be running high.

The old adage to “sleep on it” has value here. It also makes sense to see Ofsted’s conclusions in black and white, as it is not uncommon for schools to be surprised by the content of the report when it arrives.

While the judgements themselves should be as expected, the narrative and focus of the report may affect how you wish to angle any formal challenge.

Additionally, Ofsted do not normally accept or act on formal complaint submissions before they have sent the school the final version of the report.

All schools now have the opportunity to comment fully on the draft report and have five working days to do so.

These comments can include points of factual accuracy but are not limited to those. Have in mind that it will be the lead inspector who reviews those comments and will respond to them (in our experience, with varying levels of detail).

Raising the stakes

If, having received the final report, a school is minded to complain, a formal (“step 2”) complaint must be submitted using Ofsted’s online complaints form within five working days of receiving the final version of the report.

Although the various sections of the online form have word limits, there is the ability to add additional documents to the complaint.

For example, a copy of relevant correspondence, a formal statement from a member of staff about their dialogue with the inspector, or additional content for the main body of the complaint.

The officer investigating the complaint won’t usually reach out to speak to the school as part of the investigation, so it is important to include all relevant information within the online submission. Having said that, the complaint should be as focused as possible.

The temptation may be to “throw the kitchen sink at it” but actually, that often doesn’t result in a meaningful complaint response, particularly as Ofsted’s own procedure allows it to “link together similar issues for conciseness and clarity”.

As such, it is worth taking the time to identify the fundamental areas of your complaint, particularly in the context of the outcome you are ultimately seeking.

While a step 2 complaint is being investigated by Ofsted, the report itself will not usually be published.

However, once the step 2 complaint has been responded to, assuming Ofsted have not withdrawn the report or agreed to re-inspect, the report will then be published unless they are convinced of “exceptional circumstances”.

Consider action carefully 

It is at this stage that legal action may need to be explored. Without Ofsted’s agreement, the school would need to secure an injunction from the court to prevent publication and this would need to be sought on an urgent basis.

The reality is that there are limited examples of cases where judges have granted injunctions and the actual quashing of inspection decisions is even rarer.

This is partly due to practical reasons - the time and cost involved in this type of action is often prohibitive for schools. Sometimes the matters of dispute are settled at pre-action stage, for example through Ofsted agreeing to partial re-inspection or agreement to early next inspection.

However, it is also partly due to the law itself as, even where an inspection outcome appears grossly unfair, in a judicial review case, there are high legal thresholds to satisfy, as well as additional hurdles to overcome to secure an injunction.

As such, judges are reluctant to interfere with the discretion granted to Ofsted by parliament.

Given all this, schools need to think carefully about how they want to proceed with any legal action against any Ofsted inspection and the likelihood of success.

Katie Michelon is a senior associate in the education team at the law firm Browne Jacobson