Nurseries turn to legal help for complaints about inspections

As Nursery World reported in May, there has been a rise in the number of early years providers complaining about the conduct of inspectors and inconsistencies with the inspections process.New comments on our Linkedin discussion group on the topic continue to appear.

Solicitor Andrew Manners, (pictured), a director at Morgan LaRoche, is acting for a number of nursery owners who are pursuing complaints against their inspection grades in cases where both Tribal and Prospects inspectors are involved, as well as Ofsted.

He said there had been 'a spike' recently in the number of cases related to Ofsted inspections, in particular involving concerns-driven inspections.

Mr Manners is currently acting on behalf of nurseries across the country from the North of England to the South West and South East assisting providers with their complaints as well as advising in relation to potential litigation against Ofsted.

A number of the cases he is dealing with are related to historic complaints or concerns about nurseries, which were dealt with by Ofsted at the time and some of which were made several years ago. He attributed the rise in dissatisfaction about inspections to the changes in the way that Ofsted investigates complaints about settings.

Any concern or complaint received by Ofsted about a nursery can now trigger a full inspection, where previously Ofsted would carry out investigation visits. Following those investigation visits, settings may have been issued with improvement action notices if Ofsted felt that any remedial action was necessary.

Mr Manners also said that a worrying trend was developing in the cases he was dealing with involving concerns-driven inspections where inspectors were not awarding anything higher than a satisfactory grade because of the previous concern.

'There has even been a case where the setting was told by inspectors during the formal feedback session that it was "outstanding" and following "quality assurance" the judgment was downgraded to "satisfactory".

'In every case I have, I'm arguing that the inspection is flawed because inspectors have not followed Ofsted's own published guidance and the evaluation schedule.'

Mr Manners said that increasingly there are delays in the complaint outcomes at the different stages for inspection complaints, which he suspected was because Ofsted or its contractors were dealing with a backlog of complaints from providers.

Purnima Tanuku, chief executive of the National Day Nurseries Association (NDNA), said the organisation had noticed a rise in the number of calls it was receiving from nurseries worried about Ofsted inspections.

She said that NDNA has arranged a meeting with Ofsted to discuss a way forward. NDNA has produced a factsheet for members, which gives help and advice on the inspection process. It also gives advice on what to do if early years settings have concerns.

Ms Tanuku said, 'We are becoming increasingly concerned about the issue of inconsistent inspections being raised by our members, particularly complaint-driven inspections.

'As Ofsted's role has grown so has the necessity for the sector to have confidence in robust, consistent inspection of the highest standard but what we are hearing from some of our members is this is not the case.'

The NDNA has organised a special workshop, also open to non-members, on 12 September at the Institute of Education.

Ms Tanuku added, 'We cannot stress enough how important an accurate inspection process is. The grading a nursery receives can make or break the business so it is crucial it is a fair and accurate assessment.'

Nursery World asked Ofsted for figures about the number of complaints that had been made since April and a comment on whether there had been a rise in complaints but Ofsted said it did not hold these statistics.

An Ofsted spokesperson said, 'Children deserve the very best childcare - so when concerns are raised about a nursery we will swiftly inspect it.

'Early years inspectors are trained to judge the quality of provision and children's progress. Providers should be assured that only those inspectors who show a full understanding of the inspection framework will undertake Ofsted inspections.

'If providers are not happy about a judgment then they can go through the complaints procedure.'

• Places at the NDNA workshop are available on a 'buy one, get one free' basis. For more information visit www.ndna.org.uk.

OFSTED COMPLAINTS PROCESS - A HANDY GUIDE FOR EARLY YEARS SETTINGS

In April Ofsted changed the way that it handles complaints. There are now three 'steps'.

Step 1

If you are unhappy with the way the inspection was carried out and/or the resulting grade contact Tribal or Prospects, depending on who carried out your inspection, so that they can start dealing with the complaint. You should then be sent a draft inspection report. Ofsted aims for 14 days but this is getting drawn out due to backlogs. Following this, if you are unhappy with the report you have ten working days from publication of the report to submit a step two complaint.

Step 2

Prospects or Tribal have 30 working days to investigate a Step 2 complaint and write to the provider with the outcome. If you are still unhappy with the outcome you have 15 working days to lodge a Step 3 complaint with Ofsted.

Step 3

At this stage Ofsted will carry out an internal review and will look into the Step 2 investigation. Ofsted will then write to you, normally within 30 working days with its decision.

If you are still unsatisfied at this point the only step left in this process is to refer the complaint to the Independent Complaints Adjudication Service for Ofsted. This service has a limited remit in that it effectively only looks at the conduct of the inspectors and is unable to reverse earlier decision making by Tribal, Prospects or Ofsted.

It is possible to bring a court case against Ofsted before the High Court which is a Judicial Review action.

Judicial Review is the means by which the High Court examines the acts and/or omissions of a public body. It is not a process of appeal and therefore, the Court will not substitute its own view on the matter in question. Rather, it is a review of the legality of the act or decision in question.

CASE STUDY: A NURSERY THAT IS CURRENTLY AT STEP 2 OF THE COMPLAINTS PROCESS

'We were graded good in our previous Ofsted in 2012. Earlier this year, a child had an accident when playing outside and we took him to hospital and reported this to Ofsted. We were told by Ofsted that because the child was not hospitalised overnight this did not fall within its category of reportable incidents because it was not serious enough.

'The next day, the parents called and said that the child would need to be treated at a second hospital for specialist stitches. We reported this to Ofsted but were again told that this didn't fall into any of its categories. We had a meeting with the parents and said that we would look into what we could do to prevent a similar incident happening. We gave a copy of the report to the parents.

'The parents told us they weren't sure what to do so had also reported the incident to Ofsted. A few weeks later an inspector turned up and we were told this was due to the parents contacting Ofsted to report the incident and that this was a concerns-based inspection.

'During the feedback session the inspector, who looked very uncomfortable, told us that she had been in contact with her superiors and had been told that she was not allowed to give us anything more than a satisfactory. She told us that everything she had seen warranted at least a good with outstanding features, but that she was unable to give us a grade that reflected that because it was a concerns-based inspection.

'The inspection report acknowledges the incident and adds that the nursery has taken action to ensure the outdoor equipment and area are regularly checked for safety. If you read the report without the judgment it reads better than last year's when we were graded a good.'