A judge has ruled that Ofsted must ask chief inspector Amanda Spielman for the evidence behind a series of concerns about home education that she raised with MPs.
The ruling follows the chief inspector telling the Public Accounts Committee that Ofsted had “a lot of anecdotal evidence” to suggest parents are home educating children under duress to prevent exclusion.
It also comes amid widespread calls to introduce a home education register after plans for this were dropped in the ditched Schools Bill.
In a letter to the committee, Ms Spielman had written: “Often, these parents do not have the capacity to provide a good standard of education. In other cases, parents use home education as a guise to allow them to use illegal schools.”
In the same letter, Ms Spielman stressed the importance of commenting ”only on areas where we have evidence, rooted in inspection findings” in order not to “undermine Ofsted’s credibility”.
Jeremy Yallop, who is a trustee of the Home Educators’ Qualifications Association, submitted a freedom of information (FOI) request asking for the evidence of Ms Spielman’s concerns over home education, along with Ofsted’s record of it, to be disclosed.
He later launched a legal challenge after Ofsted said it could find no record of the evidence Ms Spielman was referring to as it was “anecdotal and unlikely to have been systematically recorded”.
Mr Yallop challenged Ofsted’s response with the Information Commissioner’s Office (ICO) - and then challenged the ICO’s decision at tribunal.
Now, in a decision dated 13 October but not yet published online, a first-tier tribunal has found in Mr Yallop’s favour.
It has told the ICO to order Ofsted to look again at the FOI request - and this time to ask Ms Spielman what evidence she was referring to.
The ruling from the tribunal, led by Judge Sophie Buckley, said: “The public authority shall undertake a further search for the requested information having regard to the tribunal’s reasons below, which should include making enquiries of chief Inspector, Amanda Spielman, and her private office or support staff.”
‘Greatest concern as chief inspector’
Ms Spielman’s letter had described the lack of information about where children who are removed from school rolls end up as “perhaps my greatest concern as chief inspector”. It gave her backing for plans to create a new register for children not in school.
The creation of such a register was going to be introduced in the Schools Bill last year before it was ditched, and the Department for Education has faced calls from the children’s commissioner and the Commons Education Select Committee to introduce it through new legislation.
The tribunal decision says the ICO had acknowledged there were circumstances where it might be necessary to ask an individual for information.
However, in this case, the commissioner did not consider this likely to elicit any information - as Ms Spielman’s letter was written four years ago and the chief inspector clearly informed the select committee her observations were anecdotal.
However, the tribunal was “not satisfied that the public authority carried out adequate searches in order to locate the request information”.
Its decision notice said: “It is possible that Ofsted thought that it only had to conduct a search using recorded information, and that it was not required to ask individuals for their recollections.”
Spielman ‘must be asked where the evidence is’
It added: “We find that if the requested information did exist in recorded form, the obvious place to begin the search was by asking Amanda Spielman and her private office/support staff.
“A public authority should conduct an appropriate and reasonable search for information. This should include, as a minimum, searching in the places where it is reasonable to expect that the public authority would find the information, if it existed”.
It also highlights how, in the same letter to MPs, Ms Spielman had written: “As chief inspector, I believe that it is important that I comment only on areas where we have evidence, rooted in inspection findings. To do otherwise, and to offer opinions on a wider range of policy matters, would only undermine Ofsted’s credibility.”
The tribunal adds: “Given this emphasis on supporting evidence, we find that it is likely that in October 2018 when HMCI said ‘we have a lot of anecdotal evidence’, HMCI, or at least her private office/support staff, would have been aware of the source of that anecdotal evidence.”
Reacting to the tribunal decision, Mr Yallop said: ”Although the chief inspector has claimed to Parliament that Ofsted has a lot of evidence that justifies introducing severe new laws, Ofsted has been unable to produce the evidence. I’m pleased with the tribunal’s decision that the chief inspector must be asked where the evidence is.”
An Ofsted spokesperson said: ”We will be conducting further searches as directed by the tribunal. When those are complete we will respond to the applicant’s request.”
The ICO declined to comment.
