Healthcare Business: Does Ofsted lack transparency and accountability? Mar 2014, Caroline Barker

Topics covered: Ridouts professional advice

At Ridouts we have seen an increasingly aggressive Ofsted and more and more clients are concerned about inspectors’ conduct and in turn the judgements reached at inspection visits.

Ofsted give providers 5 working days after receiving the draft inspection report to make factual accuracy comments before an inspection report is published.  However, Ofsted are adamant that factual accuracy comments do not include comments on either judgements made or the conduct of inspectors.

We experienced this attitude with CQC following its inception – an inability to understand that the conduct of inspectors and interpretation of facts impacts on judgements reached.  For example, in one case a child at a children’s home described how a restraint had been conducted.  Whilst it may have been factually correct that the child said this, it did not in itself demonstrate that a restraint either took place, or in the manner described.  The inspector took what the child said at face value without triangulating the evidence with, for instance, documentation and was not prepared to review this as part of the factual accuracy process.

Such an attitude risks placing inaccurate information into the public domain as well as providing commissioners with inaccurate information. Ofsted state that matters such as an inspectors’ conduct and judgments made should be made in the form of a complaint however, making a complaint will not delay the publication of the inspection report unless there are exceptional circumstances.

It is unclear what those exceptional circumstances will be especially as I have been involved in cases where there have been serious concerns about Ofsted conduct.  For example, Ofsted visited an establishment and in feedback the Overall Effectiveness was judged to be Good.  Four weeks later a further inspection was carried out on the basis that a report could not be produced by the inspector due to illness. At the subsequent inspection the Overall Effectiveness was judged to be Inadequate.    There were serious concerns not only about the inspector’s conduct at this second inspection but also the marked difference in findings only a month apart.  However, Ofsted were unwilling to withhold publication whilst the matter was looked into, despite the significant difference in judgements made.  It preferred to wrap up this concern into its complaints procedure.  Ofsted’s complaints procedure can take 30 working days and quite often longer, to conclude.  In the meantime, inaccurate information is available on Ofsted’s website and to commissioners.

Ofsted have assured me during case work that draft reports have been subject to its standard quality assurance processes as well as a full evidence-based review by senior Ofsted officers and it has assured itself that the evidence is secure and the judgements appropriate – which calls into question whether Ofsted are pre-empting any complaint made.  However, I have had recent successes via the Ofsted complaints process.  In one case the outcomes were upgraded from Adequate to Good and in another case the inspection report was withdrawn from publication altogether as it was accepted that the inspector had not gathered sufficient evidence to make the judgments they had.  Ofsted can, and do, sometimes get it wrong.  If this does not tell Ofsted it should be reviewing its policies and procedures on how factual accuracy comments should be reviewed encompassing all aspects of a provider’s concern, what will?

For Ofsted to compartmentalise such issues as above is both naïve and an unsophisticated way of regulating.  Failure to take a holistic approach risks placing incorrect and damaging information into the public domain.  Despite Ofsted stating that it is under a statutory duty to publish the report it cannot be right that potentially inaccurate information is placed into the public domain at the expense of properly investigating the concerns of a non-vexatious provider.

Whilst dealing with inspection reports I have requested the evidence Ofsted has sought to rely on to form its judgements.  This request has been denied either on the basis Ofsted would only have to disclose this information as part of court proceedings or as the information relates to a children’s home they have no obligation to disclose it under the Freedom of Information Act 2000 (“FOIA”).

Schedule 1 of the FOIA lists the public bodies that are subject to FOIA requests. 1A of that Schedule states that “The Office for Standards in Education, Children’s Services and Skills, in respect of information held for purposes other than those of the functions exercisable by Her Majesty’s Chief Inspector of Education, Children’s Services and Skills by virtue of section 5(1)(a)(iii) of the Care Standards Act 2000” are amenable to FOIA requests.

This essentially means that Ofsted are excluded from being subject to FOIA requests in relation to its function as the regulator of children’s services. This is obviously a very broad provision and provides them with a great “whitewash” excuse not to engage with people asking them any kind of question about how they operate.

However, a request by a provider about the information Ofsted holds on it as a provider is not a request by a member of the public under the FOIA.

Ofsted could refuse to disclose information where that information may be used to bring criminal or civil action against a party (for example, through an investigation).  This is a “qualified” exemption under the FOIA. However, if information falls within a qualified exemption, it is also subject to a public interest test. A decision on the application of a qualified exemption operates in two stages. First, a public authority must determine whether or not information is covered by an exemption and then, even if it is covered, the authority must disclose the information unless the application of a public interest test indicated that the public interest favours non-disclosure.  Whilst I understand that the private interests of an individual provider is different to a wider public interest there is a public interest in transparency and accountability and in good decision-making by public bodies and it is unclear why Ofsted would refuse to provide information it holds on a provider to a provider as a matter of course, if only to justify its actions – especially if it has assured itself that the evidence is secure? CQC provides inspection notes – why wouldn’t Ofsted?

It cannot be right for Ofsted to hide behind the FOIA exemptions in all cases.  To do so suggests secrecy and that Ofsted are beyond the realms of being questioned, especially by those it regulates.

So where does this leave providers?   At Ridouts we’ve seen that change at CQC on similar issues but this will only happen if enough providers are prepared to push Ofsted on the points above.  This area is ripe for challenge but it will take a brave and monied provider who is prepared to fight Ofsted at the highest level to achieve the sea change required. Recent discussions surrounding the leadership of Ofsted and the removal of Baroness Morgan as Chair have questioned whether a fresh perspective is needed and certainly in respect of Ofsted’s transparency – especially with those it regulates – I suggest the change is long overdue.


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