Childcare Counsel: Ofsted complaints consultation, anything new?

As it stands, providers can challenge Ofsted inspection reports via their complaint’s procedure. The complaint’s procedure adopts a three-stage process when dealing with complaints from providers in relation to inspection reports.  

• Stage 1 is the informal step, where providers are encouraged to raise concerns about inspections with inspectors during the inspection.  
• Stage 2 is the formal process where providers are required to make a formal complaint against Ofsted, in writing within 5 working days of receiving the final report. Ofsted will consider your complaint and issue a decision within 30 working days.  
• Stage 3 allows providers to ask for an internal review if they are unhappy with the way this complaint was handled. Again, a decision will be issued within 30 working days.  

If the complaint is not upheld at Step 3, a provider can make a complaint to the Independent Complaints Adjudication Service for Ofsted (ICASO) and/or the Parliamentary and Health Services Ombudsman. In both cases their remit is limited, as neither have the power to change Ofsted decisions.  

The last resort is Judicial Review litigation, but permission is required from the High Court to proceed with a claim, and it is a high test to meet. There are strict time limits and legal advice should be sought as soon as possible following the inspection.   

In January 2023, Ofsted announced that its current complaint procedure was not working. This reality was reinforced by the devasting death of headteacher Ruth Perry who took her own life after an Ofsted Investigation.  

On 9 June 2023, the National Day Nursery Association hosted their annual conference, where Ofsted were scheduled to provide a review of their complaints procedure and any policy changes following the spring budget. There was a clear consensus among providers regarding the unfairness of the complaints process and the detrimental impact the subjective and inconsistent views of inspectors was having on early years providers. 

The Ofsted representatives recognised that “things weren’t good” but instead of using this as an opportune moment to introduce the consultation with providers and take on board key insights, they refused to disclose to providers that the consultation would be launched on Monday 12 June 2023.  

This Consultation essentially sets out proposed changes to the post-inspection procedure, including how Ofsted handle complaints. The consultation invites representations until 15 September 2023.  

Our view is that this is a watered-down version of an already ineffectual and unfair process. It proposes “enhancing” on-site “professional dialogue” i.e., talking to the inspectors during an inspection; “introduce a new opportunity” for providers to contact Ofsted after an inspection, i.e. the “Step 1” that was always available; “introduce new arrangements” for considering challenges to inspection outcomes, i.e. a formal complaints process and; “direct escalation to ICASO”. This is the most troubling aspect, in that Ofsted proposes to abolish the current Step 3 stage (internal review), which in our experience, was the only time when complaints were upheld, and replace it with a referral to ICASO, which, unless its remit also changes is meaningless.   

• If you are a provider seeking to challenge an Ofsted Inspection, please get in touch with Andrew Manners of Morgan LaRoche on 01792 776 776 or by email on amanners@morganlaroche.com.