Challenging an Ofsted inspection - what is the process?

Ofsted previously announced that, following a three-month consultation, it was to make changes to the post-inspection and complaints-handling process to ensure that concerns about inspections are dealt with quickly and robustly. This move followed widespread dissatisfaction with Ofsted among the childcare sector.

Those changes have now come into force, however for the time-being Ofsted have two processes for dealing with complaints, depending on the date of the event in question.

Process for inspections on or before 4 April 2024

If your inspection took place on or before 4 April 2024, the post-inspection process will remain the same. This means that:

1. There will be enhanced on-site professional dialogue to help address any issues.
   
   This was introduced in January 2024. Whilst inspectors were previously encouraged to check with providers throughout the inspection whether they have any queries or concerns, Ofsted formalised this by asking inspectors to check this at specific stages of the visit, including during the initial pre-inspection call, at the end of the day meetings, and at the final feedback session. This will be implemented from January 2024.
    
2. The opportunity to contact Ofsted the day after the inspection if a provider has any unresolved concerns.
    
3. The draft report will be sent within 18 working days after the inspection itself. Providers have five working days to submit factual accuracy comments; this can include concerns about the judgements reached and about conduct of the inspectors.
    
4. Once the factual accuracy comments have been considered, Ofsted will issue the final report. Providers then have five working days to submit a formal complaint. This complaint will be dealt with by someone outside of the inspection process itself, usually in a different region. Publication will be withheld during this time.
    
5. Upon receipt of the complaint response, a provider has the opportunity to submit an internal review to Ofsted. Any request for an internal review must be submitted within 15 working days. Publication will usually take place unless there are exceptional circumstances.
    
6. Once the internal review process has been completed, if a provider remains dissatisfied, they can complain to the Independent Complaints Adjudication Service for Ofsted (ICASO). Any complaint must be submitted within three months of the date of the internal review response letter.

Process for inspections after 4 April 2024

If your inspection took place after 4 April 2024, the post-inspection process will be as follows:

1. There will be enhanced on-site professional dialogue to help address any issues.
2. The opportunity to contact Ofsted the day after the inspection if a provider has any unresolved concerns.
3. The draft report will be sent within 18 working days after the inspection itself. Providers have five working days to submit either a minor factual accuracy comments, or, a formal complaint to Ofsted.
4. Any minor factual accuracy comments will be dealt with quickly so that the report can be published thereafter. If you choose this method, you cannot then submit a formal complaint.
5. If a formal complaint has been lodged, Ofsted will respond to the complaint within 30 working days. Your report will not be published during this period. 
6. If a provider remains dissatisfied, there will be no internal review process and any complaint will need to be made to ICASO. Any complaint must be submitted within three months of the date of the complaint response letter.

Are these welcome changes?

During the consultation process Ofsted reported that the majority of respondents were supportive of the changes, with many agreeing that professional dialogue with Ofsted during the inspection would help, along with the opportunity to highlight any concerns shortly after the inspection. Over 80% of respondents agreed that introducing ICASO at an earlier stage and removing the internal review step.

However, some did raise concern that Ofsted continue to have no independent body reviewing the inspection work, with Ofsted ‘marking their own homework’ and the external bodies (primarily ICASO) having a very limited remit (this being reviewing how the complaint was handled and making recommendations, rather than enforcing changes to the outcome of the inspection or the report itself). This appears to have been partially addressed with the introduction of an independent panel who will conduct an annual review of a sample of complaints, however it remains unclear how this will work and what outcomes could be reached as a result of such a review. 

Could these changes go further?

An issue that still remains is that the submission of factual accuracy comments will prevent a subsequent complaint being made, leaving Ofsted open to refusing to make factual accuracy changes to report and a provider with no way to challenge this further. Given that Ofsted have highlighted that the factual accuracy challenge is for minor changes only, any changes that a provider considers could be rejected by Ofsted should be submitted through the complaints process.

There also still continues to be widespread concern across the sector about the variability of Ofsted inspection findings that, arguably, requires greater overhaul of the overarching inspection process. It therefore could be said that the changes do not go far enough, particularly when considering that some responses highlighted the need for an independent review at an earlier stage (i.e. someone independent considering complaints raised).

Furthermore, there continues to be a lack of clarity around what information will be shared by Ofsted about the reasons for their inspection findings. Whilst Ofsted state that greater reasoning will be provided, no mention has been made of the evidence base and whether this will be shared with providers. This means that providers will continue to be raising concerns based on verbal information given to them during the inspection, rather than based on the evidence base gathered.

Overall, it is positive that changes are being made to ensure a simpler and fairer process. How these changes work in reality will need to be closely monitored over the coming months.

How can we help?

Our specialist Ofsted lawyers regularly assist providers in respect of factual accuracy challenges and complaints to Ofsted. Please visit our case studies page to find out more about how we’ve helped childcare providers, education providers and social care providers in England and Wales challenge Ofsted inspections.

If you would like assistance with a factual accuracy challenge or a complaint to Ofsted, it is imperative that you seek specialist legal advice as soon as possible given the timeframes involved. For a confidential discussion with a member of our team, please contact us on 0161 696 6250 or complete our online enquiry form.