Friday, 23 October 2015

Inspecting [in]equalities Part 2: Ofsted, schools and the law

For the past few months we have been engaged in an email conversation with Ofsted about the issue of inspection and compliance with the Equality Act.

This conversation began some months ago after we noticed that several schools, recently graded 'outstanding' by Ofsted, did not appear (at first glance) to be complying with some of the statutory duties set out by the Equality Act and its accompanying Regulations. For example, they had no equality information on their websites and seemed to have published no equality objectives. Further we were concerned to find that, in some cases, there was no evidence of the existence of the statutorily required medical needs policies. The Ofsted reports for these schools did not reference this information and there was no evidence that the issues had been discussed with the schools in question or formed any part of the Ofsted inspection. 

The statutory duties in the Equality Act are important because they do not just require policies: they require action and records of action. They require target-setting, and publication and information and engagement. They require disabled pupils to be considered when all school functions are exercised and all decisions made. They are a key protection against disadvantage. Thus, they are not to be dismissed lightly, least of all because it is unlawful to do so. Consequently, we blogged about this in some detail here.

We are not trying to police schools on this. We believe schools do not always understand their duties and that more work should be undertaken to support schools and address this. However, we believe that these fundamental legal protections should be 'mainstreamed' by education inspectors to ensure that lawful practice is promoted.

Our concern is simple: should Ofsted be grading schools as 'good' or 'outstanding' if they have not checked that schools are meeting all their basic statutory duties? 

Common Inspection Framework

There is no doubt that this question is within Ofsted's remit. The new Common Inspection Framework does not mention inclusion but it does confirm:

"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."

With this in mind, we have continued to raise questions with Ofsted about:

(i) whether inspectors have the training and expertise to make such determinations;

(ii)what form this inspection will take in practice;

(iii) what the consequences are for schools not complying with the law (i.e. will this prevent them being graded 'good' or 'outstanding'); and

(iv) whether there is any mechanism for reporting concerns about the failure of Ofsted reports to consider such issues.

Sean Harford, National Director, Education at Ofsted, and his staff, have been extremely helpful in attempting to answer these questions but concerns remain. Ofsted has confirmed it is happy for us to share the letter below.

Sean Harford's letter

First, Sean wrote back to us in July with this letter. It confirms:

(i) "all inspectors undertake training on inspecting equalities and its impact. Part of this will include face to face sessions and e-learning to reinforce this aspect of inspection";

(ii) "When considering the effectiveness of leadership and management, inspectors consider ‘how leaders promote all forms of equality and foster greater understanding of and respect for people of all faiths (and those of no faith), races, genders, ages, disability and sexual orientations (and other groups with protected characteristics), through their words, actions and influence within the school and more widely in the community.";

(iii) "An inspector will report on whether a school is fulfilling its statutory duties" (my note: this is in reference to a question on the Equality Act 2010 (Specific Duties) Regulations 2011);

(iv) "All evidence gathered during inspection is used to compile the inspection report"; 

(v) " Any failure to comply with statutory arrangements would be detailed in the inspection report"; and

(vi) "During inspection, inspectors will engage where possible with parents and pupils from different faiths (and those of no faith), races, genders, ages, disability and sexual orientations (and other groups with protected characteristics), but do not purposefully seek out select groups of people to talk to. "

The letter also confirms that Ofsted considers itself bound by the Equality Act and "as such publishes a report on our workforce picture in terms of equality and general objectives". The Equality Act seems largely something Ofsted considers in relation to its workforce; it sets no objectives in other areas, for example.


From this, we would suggest the following conclusions could be drawn:

(i) Ofsted has committed itself to inspecting compliance with the Equality Act and its Regulations;

(ii) evidence of this compliance (including compliance with the publication duties under the Regulations) should be sought during inspections;

(iii) this evidence should be referenced on the face of the report; 

(iv) Ofsted will undertake this assessment without necessarily talking to anyone with a protected characteristic (or any parent) to check if what is documented is occuring or to obtain their views; and

(v) Ofsted has not confirmed what the outcome will be if schools are not found to be complying with the law. Thus, we don't presently know whether statutory non-compliance will prevent schools being graded 'good' or 'outstanding'. The evidence to date suggests it will not.

Further questions 

We have not published this letter before because we have been engaged in further discussions with Ofsted to clarify some of these points.

Concerns about Ofsted reports: Ofsted has confirmed that if anyone comes across a report which they feel does not address these issues appropriately, they should contact the Schools Policy team -  - referencing the school details and relevant inspection. 

Ofsted guidance to schools: Despite having said in its Framework document and further correspondence that Ofsted inspectors will be looking at compliance with the Equality Act and its Regulations, Ofsted has not produced any guidance for schools on how it will undertake this assessment. Ofsted appears happy to write and blog about other issues concerning inspection (here for example) so we would suggest it provides equally clear guidance on this important issue.

Consequences of non-compliance: it is still not clear whether there are any consequences to breaking the law. Should a school really be graded 'good' or  'outstanding' if it is not complying with its statutory duties? Schools cannot get to pick and choose which laws they obey and Ofsted should have a clearly stated and consistent policy to address this.

Recently published Ofsted reports

Our concern is that there will be, in practice, no attempt to consider compliance with the Equality Act or its Regulations. 

This is particularly disappointing when the Regulations are so easy to assess as they are publication duties. Either a school has been publishing the required information or it has not. If it has not, it is breaking the law and the chances of it having complied with the other duties set out in the Act are, it could be suggested, minimal.

Ofsted considers whether schools have other statutorily required documents (see this) yet it appears to have done little in this area. Recently published Ofsted reports appear to confirm this.

Try this: go to Ofsted's inspection page  and look at the most recent reports. In these reports, there may be some comment on schools working to ensure there is no discrimination but it is likely that the Equality Act and its Regulations (or inclusion) are not mentioned. If the Act is mentioned, there is likely to be no evidence that compliance with it has been assessed. Further,  if you cross-reference the report to the school's website, you can very quickly see if they have published equality objectives, annual equality information, or whether there is a medical needs policy etc. If these documents are not online, we believe further inquiries should have been raised to ensure the law is being complied with. 

Where are we now? Ofsted and Care Quality Commission inspecting Local Areas

Research already undertaken indicates poor levels of compliance by some schools with the Specific Duties Regulations and therefore with the Equality Act. This is no doubt assisted by a lack of oversight or enforcement.  

Further research is clearly required but it is worrying that Ofsted is committing itself to an assessment of compliance via inspection when a cursory glance at inspection reports on Ofsted's site reveals no evidence that any such assessment is taking place in schools. If Ofsted reports are not providing evidence that an assessment of compliance with equality duties has taken place, are inspectors really discharging the requirements of their own Framework document?

Ofsted and the Care Quality Commission has recently published a consultation document about inspecting local area special educational need provision. This has been cautiously welcomed but if Ofsted cannot engage effectively and get fundamental issues of equality right with schools, how is it going to have the expertise, training and capacity to assess effectively the practice of battle-hardened LAs and NHS Trusts?

Three simple questions

We think Ofsted has a duty to assist schools, parents and pupils by answering three straightforward questions:

1. How will inspectors discharge the requirements of the Common Inspection Framework by inspecting compliance with the Equality Act and its Regulations?

2. How will we know this has been done?

3. Will Ofsted continue to grade schools as 'good' or 'outstanding' if there is evidence they are not complying with the Equality Act and its Regulations (e.g. if they are not publishing objectives and/or equality information)?

We have now written again to Ofsted on this. Read our letter here.

Ofsted's response

Ofsted's response to our letter can be found here. You can read for yourself whether you find it is a sufficient.

The salient point is that schools will not necessarily be downgraded for breaking the law if Ofsted feel pupil outcomes are ok. It's not clear how Ofsted can ascertain this from a single day's inspection. In any event, the law's requirements are specific and are not the same thing as pupil outcomes.

Of course this all depends on Ofsted actually inspecting compliance in the first place. In reality, from Ofsted reports, we feel there is little evidence this issue is even being considered by inspectors despite the Framework commitment.


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