Wednesday, 20 June 2012

Ofsted - Clearing the Fog

This post provides specific detail relevant to my previous blog: Ofsted - Clarifying the State of Affairs.

It seems that whenever the issue of improving Ofsted is raised, a substantial volume of points are raised to confuse the issue.  The purpose of this blog is to list points most commonly raised and appropriate responses to them to help to 'clear the fog' of confusion.  If anyone hears of any other points being made which create the impression that it would be unwise for Ofsted to be obligated to the Legislative and Regulatory Reform Act (2006) please do post them in the comments to this blog so that they can be discussed.

Point 1 - That the Legislative and Regulatory Reform Act conflicts with Ofsted's prior statutes.

The Legislative and Regulatory Reform Act was created to oblige regulators to apply best practice when fulfilling their duties to:
- drive improvement
- protect against bad practice and
- report to the government regarding the state of the organisations they regulate.
It challenged regulators to improve the quality of their practice as they fulfill these duties which are, of course, Ofsted's duties.
Ofsted's previous statutes allowed them to behave in ways which are now recognised and accepted as being bad practice.  Their obligation to the Legislative and Regulatory Reform Act (2006) should clearly override any previous legal obligations which contradict this law.  

Point 2 - The Hampton principles include references to economic progress and are therefore not suitable for the state sector

While the Hampton principles contain references to economic progress, the Legislative and Regulatory Reform Act (2006) does not, it only obliges regulators to act in ways which are transparent, accountable, proportionate, consistent and targeted only at cases where action is needed.  The Hampton principles sit behind this law in that they provide explanations of what good practice is which regulators can use to defend their actions but the law has been written with no reference to economic progress so that it can apply to all organisations. 

Point 3 - That obligating Ofsted to the Legislative and Regulatory Reform Act (2006) will lead to an avalanche of legal cases with which our legal system will not be able to cope.

This was a point made with great energy and conviction on a discussion forum (see comment by Ricky Tarr 07/06/12 7:29pm).  I'm not sure why the poster feels this will happen.  Private schools, public schools and (virtually?) all other regulated organisations already have the protection of this law.  Is it currently leading to lots of spurious claims?  

Applying for a Judicial Review (which is what you do if you're using this law - you are saying that the regulator is behaving illegally and their conduct needs to be challenged) is an expensive process and schools would need to be accountable to their governing bodies and other stakeholders for hat expenditure so I can't see it happening unless there is a clear breach of the law by the regulator, in which case surely it should be happening?

If the regulator is behaving consistently outside the law and several Judicial Reviews are granted, the legal system is configured to cope with this situation because instead of running several separate Judicial Reviews it convenes an 'Independent Commission' which investigates the behaviour of the regulator and examines the interpretation of the law by others who are obliged to it in order to rule definitively regarding what is and isn't legal behaviour for the regulator.  And then the issue should be concluded - unless the regulator continues to defy the law which is not a circumstance I would expect.

Point 4 - This has been previously consulted and the conclusion was that Ofsted should not be obligated to this law

This appears to be untrue.  This document shows that it was the clear conclusion of the last government that Ofsted should be obligated to this law for all its activities (see point 4.11).  Graham Stuart (Conservative MP and Chair of the Education Select Committee) recommended that the Ofsted directorate meet with me to discuss the salient points of my concerns during their consultations regarding their activities last year however despite agreeing readily in public, I was told firmly and absolutely that my concerns would not be discussed by Richard Brooks (Ofsted Director of Strategy).  I can't find any indication that there has been a consultation which has concluded that Ofsted should not be obliged to the Legislative and Regulatory Reform  Act (2006) for all its activities.

Point 5 - We don't need to obligate Ofsted to this law because they are already following it.
No they aren't.  Under this law the areas in which a school is behaving in an unacceptable way must be clearly and specifically identified and any action taken must be proportionate to and specific to the issue identified.  This is not what is happening at present. 

The phrase 'satisfactory is the new unsatisfactory' is deeply at odd with Hampton.  Satisfactory means there is no issue to be addressed.  Unsatisfactory means there is an issue to be addressed.  You can't say that 'satisfactory' is 'unsatisfactory'.  

There's plenty more I could write - please do feel free to get in touch or ask questions through the comments to this blog.  Thank you for reading this.

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