Friday, 5 June 2015

Inspecting [in]equalities

About two months ago, we became aware of a school, considered to be Ofsted 'outstanding', which seemed to have:

1. No published equality information -  a legal requirement under the Equality Act 2010 (Specific Duties) Regulations 2011;

2. One published equality objective which concerned staff gaining knowledge. It was three years old. It set no outcomes and there was no evidence it had ever been reviewed or evaluated for impact;

3. No published medical needs policy - see the statutory duty under s 100 Children and Families Act and statutory guidance; and

4. A SEN policy which said that the school may ask parents/carers to accompany children in need of intensive 1:1 if they wanted to go on trips. 

There were other minor, but still tell-tale, annoyances or 'red flags'  e.g. policies which still refer to the long gone Disability Discrimination Act and letters to parents which spoke of 'mainstream children'. 

This concerned us. If inclusion doesn't exist in available school policies (the stuff that, frankly, should be easy to get right), will it realistically exist in practice? Maybe. But you would still expect to see evidence of basic compliance with the law (e.g. the equality duties) and evidence that Ofsted had considered the issue. Instead, in this case, the word 'inclusion' is not even mentioned in Ofsted's report and, of course, no comment is made of the absence or existence of equality information.

What are the equality duties?

Under the Equality Act 2010, there is a general equality duty (the Public Sector Equality Duty - PSED) and specific statutory duties. These duties are not optional: they are compulsory. Their aim is to compel public bodies to take action towards equality and to show what action they have taken.

General duty

The general duty under s. 149 of the Equality Act, has three elements. In carrying out all its functions, a public body, in this case a school, must have due regard for the need to: 
  1. Eliminate discrimination and other conduct that is prohibited by the Act;
  2. Advance equality of opportunity between people who share a protected characteristic (such as disability) and people who do not share it; and
  3. Foster good relations across all characteristics - between people who share a protected characteristic and people who do not share it.
The term 'due regard' has been defined in case law (Brown principles) as:
  • awareness – all staff know and understand what the law requires;
  • timeliness – implications are considered before policies/practices are implemented;
  • rigour – open-minded and rigorous analysis is undertaken, including parent/pupil voice;
  • non-delegation – the PSED cannot be delegated;
  • continuous – the duty is ongoing all academic year; and
  • record-keeping – schools should keep notes and records of decisions & meetings. These notes should be made at the time decisions are taken, not retrospectively.

 Specific Duties

There are additional specific duties set out in the Equality Act 2010 (Specific Duties) Regulations 2011. They are meant to help public bodies (e.g. schools) demonstrate how they are fulfilling their obligations under the general duty. The importance of transparency, accountability and self-evaluation is stressed. The specific duties that apply to schools in relation to their pupils are:
  1. To publish information annually to demonstrate how schools are complying with the PSED; and
  2. To prepare and publish equality objectives at least every four years.
Schools are free to choose the equality objectives that best suit their circumstances.

However, the duties are about action: about what you do, not what you say. So what happens when schools are not even 'saying' the things they should?

Inspecting [in]equalities

We are sure this is not an isolated case. The school we mention is one of many 'outstanding' mainstream schools in England. The gaps in information were identified by a cursory assessment of the school's website. Perhaps this information is available in other formats but there is no evidence from the report that this point has even been considered.

Of course, it is not our job to inspect equalities. Is it Ofsted's? Ofsted's published inspection briefing called 'inspecting equalities' suggests it is:

 "10. The emphasis is on transparency - making information available so that the school’s local community can see how the school is advancing equality in line with the PSED, and what objectives it is using to make this happen"

11. By 6 April 2012 the specific duties require schools to have published information showing compliance with the public sector equality duty, plus at least one equality objective. They will then need to update the published information at least annually and to publish objectives at least once every four years.Examples of possible objectives might be relating to closing the gap in attainment in English for different ‘groups’ of pupils that the school has identified as underachieving, or improving the attendance rates of pupils from a background where these may be low. These should be specific and measurable."

Are inspectors aware of, and trained in, the inspection of these duties? Ofsted suggest they must be as the briefing continues:

"15. Inspectors discuss with each school how it is meeting statutory requirements and evaluate and report on the impact of the school’s actions. This might include a school’s accessibility plan as part of the evidence because the Equality Act specifically provides that a section 5 inspection may extend to the performance by the school of its functions in relation to the preparation, publication, review, revision and implementation of its accessibility plan. "

Ofsted further say that:

"26. An evaluation of how effectively the school actively advances equality of opportunity, tackles discrimination and fosters good relations will contribute to the key judgements".

Can you find evidence of this approach in recent Ofsted reports?

SEN and Disability: a culture of low expectations and a low priority

We are concerned that schools might be labelled 'outstanding', and thus escape future oversight and inspection, when they are not complying with the basic statutory duties which provide disabled pupils with equality rights. This should not happen.

We hear lots about 'coasting' schools (whatever 'coasting' means) or 'failing' schools that need to be saved by academisation but little about how schools are actually supporting inclusion and equality. 

Yet, nearly 20% of our school population is identified as having SEN and/or a disability. Further, there is ample evidence that some of these children and young people face multiple disadvantages. They are some of the most vulnerable in our school system: vulnerable to low expectations and poor outcomes. Statistically, pupils with SEN are disproportionately from disadvantaged backgrounds, and, despite the legal framework to protect their rights, they are much more likely to be absent or excluded from school, and they achieve less well than their peers, both in terms of their attainment at any given age and in terms of their progress over time

Of course, the term 'SEN' is a broad umbrella. The important point to note is that many categories of SEN may also be legally defined as disabilities under the Equality Act 2010 (EA). Indeed, Government Departments have frequently said that 'SEN' can be used a proxy measure for disability. Disability is a protected characteristic under the Equality Act. Thus, the Equality Act really matters.

In terms of Ofsted inspections, the Equality Act matters because it should, as Ofsted's briefing suggests, impact on the approach to inspections. But it also matters because it should enable us to hold Ofsted to account for its own work. Indeed, Ofsted's briefing confirms:

"1. Ofsted is bound by the public sector equality duty, its strategic plan and values to advance equality through its inspection of schools. Equality is integral to the inspection framework and the promotion of equality of opportunity for all pupils underpins the school inspection framework. School inspection acts in the interests of children, young people and their parents.  It encourages high-quality provision that meets diverse needs and promotes not just equality of opportunity but improving outcomes for all pupils regardless of background."

Is there some disconnect between these public pronouncements and the reality of the inspection regime on the ground? We wonder whether Ofsted inspectors are looking for, or are even aware of, the basic statutory duties which underpin a child's right to inclusion. How are they applying their own inspection guidance?  If Ofsted inspectors don't consider these issues, why should schools, so focussed on  doing what Ofsted wants, bother to make the effort?

This all stands in stark contrast to Ofsted's action and publicly stated concern for the needs of the 'gifted and talented'. For example, a recent report and public statements by Director of Schools, Sean Harford, assert:

"While inspectors found pockets of excellence, too many of these children are not being challenged sufficiently – and thousands of highly performing primary pupils are not realising their early promise when they move to secondary school.”

The promise was that Ofsted would "keep focusing sharply" on the progress of able pupils.

Is it not time that such concern is expressed and such promises made about ensuring compliance with the basic statutory rights of pupils with SEND?


We feel these issues need to be raised publicly and that a dialogue should be started with Ofsted about its role and its legal obligations.

We have started by asking Ofsted to set out how it is complying with the PSED. We have today written as follows:

"We would like to write to you in relation to Ofsted's national approach to inspecting the compliance of schools with basic statutory obligations. 

Before we ask specific questions about this, we would very much like Ofsted to clarify how it complies with the Public Sector Equality Duty (PSED), under s. 149 of the Equality Act. Ofsted's inspection briefing on the Equality Act confirms that Ofsted considers itself bound by the PSED and this is supported by ministerial statements in Parliament. However, it is not clear what action is taken to evidence compliance with this duty. For example, does Ofsted consider itself bound by the Equality Act 2010 (Specific Duties) Regulations 2011? Does it publish equality objectives and annual equality information?

If Ofsted does consider itself bound by these duties, could we please have a link to this information?

If Ofsted does not, could we please have an explanation of why it considers itself bound by s 149 but not by the duty to publish information to demonstrate its compliance with the s 149 duty?"

While we await answers, if you want to help, perhaps you could have a look at 'outstanding' schools in your area and see what their Ofsted reports say. Is equality or inclusion mentioned?


Mr Harford kindly responded to our query with this letter. It confirms that:

"Ofsted is bound by the Act and as such we do publish a report on our workforce picture in terms of equality and general objectives, as found on our website".

The letter is accompanied by a report on Equality in Ofsted. This report is limited only to Ofsted's workforce and does not address or set objectives for any Ofsted function beyond that of employer.

On this point, Mr Harford states:

"In terms of carrying out this duty beyond Ofsted’s role as an employer, this is carried out throughout our inspection work and underpins all our policy work. Our Common Inspection Framework which was published yesterday explains that inspectors will assess the extent to which the school or provider prevents any form of prejudice and does not directly or indirectly discriminate by avoiding or omitting reference to inclusion of any protected groups in all aspects of their work. Schools and providers must comply with the duties as they are applied to them in the Act."

The word inclusion is not mentioned at all in Common Inspection Framework (CIF) but the CIF does say this about the Equality Act:

"15. Inspectors will assess the extent to which the school or provider complies with relevant legal duties as set out in the Equality Act 2010 and the Human Rights Act 1998, promotes equality of opportunity and takes positive steps to prevent any form of discrimination either direct or indirect against those with protected characteristics in all aspects of their work."

The explicit recognition that Ofsted inspectors will assess compliance with the Equality Act (and presumbably its associated publication regulations) and the Human Rights Act is welcome. But it is not clear how inspectors will be trained to undertake this assessment. Additionally, what form will this assessment take and how we will know that inpsectors are, in practice, undertaking assessments? For example, will there be explicit reference in inspection reports to compliance with the Equality Act?

Perhaps most importantly, it is not clear what happens if a school is not complying with the Equality Act. Should this prevent it from being labelled 'outstanding'? Details of the school referred to at the beginning of this piece were sent to Mr Harford some months ago to no avail. How real is this commitment to inspecting equality?

In June, we wrote back to Ofsted as follows:

"Thank you for your very prompt response.

I am sorry to trouble you further but part of our question related specifically to the Equality Act 2010 (Specific Duties) Regulations 2011. This imposes two specific statutory duties on public bodies bound by the PSED, namely:

1. to publish information annually to demonstrate how they are complying with the PSED. The PSED covers all the functions of an organisation and not just equal opportunities in the employment of staff.  Does Ofsted publish anything demonstrating how it complies with the PSED more generally, and specifically in its core function, i.e. inspection? If not, please confirm whether Ofsted believes this single document on employment discharges its statutory obligations under the Regulations. 

2. to prepare and publish equality objectives at least every four years. What are Ofsted's published equality objectives?"

We have yet to receive a response to this. Today, we have also emailed asking:

"Further to our previous email in this matter, we would also like to request some further specific information on the duty to inspect compliance with the Equality Act as mandated by para. 15 of the Common Inspection Framework. Our questions are as follows:
  1. How will inspectors be trained to undertake this assessment?
  2. What form will this assessment take?
  3. Will the assessment include the legal duties imposed on schools by the Equality Act 2010 (Specific Duties) Regulations 2011?
  4. Has Ofsted taken legal advice on this issue?
  5. Will the assessment be referred to in inspection reports?
  6. Will Ofsted inspectors engage specifically with those with protected characteristics under the Equality Act (e.g. parents and pupils) when undertaking an assessment of compliance? If not, why not.
  7. What happens if a school is not complying with the Equality Act? "
We think Ofsted has real power to promote inclusion and to push equality higher up the agenda in our schools. There is a legal imperative for Ofsted to consider equality in the undertaking of all of its functions. There is now a need for transparency about how it intends to do this, how it will hold itself to account and whether it is compiling data and setting realistic objectives for itself in this regard, whetehr it is engaging with people with protected characteristics when setting objectives etc. It's what the Act expects, it's what Ofsted should be looking for when inspecting schools and what are children and young people are entitled to.

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