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.

Ofsted - Clarifying the State of Affairs

In 2005 the government completed a review (the Hampton Review) of inspection and regulation with the purpose of establishing and embedding in law best practice in regulators fulfilling their duties to:

- drive improvement

- protect against bad practice

- report to the government regarding the state of the organisations they regulate.

The Hampton Principles which were established from this review were embedded in law in the Legislative and Regulatory Reform Act (2006), the salient point of which is point 21 which legally obliges regulators to act in ways which are transparant, accountable, proportionate, consistent and targeted only at cases where action is needed. The Hampton Principles sit behind that law to provide explanations of the types of regulatory activity which meets these standards.

I have, for the last couple of years, been exploring why Ofsted uses methodologies which directly contradict best practice as defined by Hampton (see for example blogs her for August and September last year).  I was very shocked by the way in which those in authority refused point blank to engage in intelligent discussion about the component issues.  

In January this year I came to believe that Ofsted have in fact been obliged to these standards.   I knew that the last government had intended to get them under it as can clearly be seen in this document (see point 4.11 and onwards), I knew it made sense for them to be under it, I knew that public and private schools were under it (part 1A point 21) and Ofsted themselves had said it didn't feel it could/should run different systems for different types of school (point 4.8) and then I heard on the BBC TV news that Ofsted were subject to judicial review due to a judgement related to their behaviour at Furness Academy.  This couldn't be the case unless that academy was also covered by the Legislative and Regulatory Reform Act as without this law Ofsted remain unaccountable to everyone but themselves and the SoS for Education.  However it turned out that the BBC report was incorrect.

So while all other regulators are required to the principles of the Legislative and Regulatory Reform Act (shown in green above), Ofsted have a special exemption from it in the case of State Schools.

The main consequence of this exemption from the law is that it allows Ofsted to operate in ways which serve the interests of politicians and itself rather than requiring that it works to the benefit of society and the customers of the organisations it regulates.  The Legislative and Regulatory Reform Act (2006) was the mechanism by which organisations can hold their regulators accountable if they are failing to implement good practice in their own activities.  While all other organisations have the power to hold their regulator accountable, state schools do not.  They have no power at all.  This means that when the regulator behaves in ways which are clearly detrimental to education nobody can stop them.

The consequences of this on the ground are horrific.  When inappropriate regulatory behaviour occurs scapegoats have to be created in and around the school affected because everyone knows the regulator cannot be held to account.  For those of you who haven't seen what it's like when that happens and how good schools, teachers and high quality education are destroyed - all I can say is - lucky you.  Far too many people in education have experienced firsthand the extreme behaviour which is required to try to do everything possible avoid such a situation occurring and have direct experience of how ludicrous and counterproductive much of this behaviour is. 

This could be corrected so easily.  All that's needed is an order to the Legislative and Regulatory Reform Act which clearly makes Ofsted accountable to it for all its activities.  It could be done in just a few weeks.

Ofsted and those associated with them put forward many objections to them being obligated to the Legislative and Regulatory Reform Act.  They are all just smokescreen.  As soon a I get the time I will write a blog which lists them and counters each so that those who wish to pursue this issue can do so effectively and efficiently.

Notes to Tweet to Michael Gove.

In response to the invitation by the Education Select Committee to Tweet a question to Michael Gove, I have Tweeted the following (as @Cyberrhetoric).

Why is the SoS not fulfilling his duty to ensure Ofsted comply with the law it become obliged to on 10/11/09? #AskGove

These notes are provided to ensure the Secretary of State for Education can provide an appropriate answer to the question.

Legal Notes:

The Order to the Legislative and Regulatory Reform Act (2006) which came into law in 1st October 2009 (part 1A (17)) obliges Ofsted to the law created by the Legislative and Regulatory Reform Act (2006).

This Law prescribes that “regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent” and that “regulatory activities should be targeted only at cases in which action is needed”.
(http://www.legislation.gov.uk/ukpga/2006/51/section/21)

This Law was created to force regulators to implement the principles established by the Hampton Review (2005).
(http://webarchive.nationalarchives.gov.uk/+/http://www.bis.gov.uk/policies/better-regulation/improving-regulatory-delivery/assessing-our-regulatory-system)

Explanation of relevant aspects of the meaning of the law in practice:

In fulfilling their duties to protect against unacceptable practice, drive quality improvement and report to government on the state of the industries they regulate and the services provided, other UK regulators obliged to the same law have worked to ensure that:

1) they seek to establish and police the boundary between unacceptable and acceptable practice and to ensure that organisations are engaged in process of effective internal communication, detailed reporting or both a qualitative and an quantitative nature and professional cycles of quality improvement but they do not pre-define categories of quality as this has been show to suppress innovation, healthy diversity and professional freedom.

2) there is an expectation that when inspectors engage with organisations, inspectors will come to understand new practice with which they were not previously familiar so that they can properly report to government regarding new best practice so that they can accurately report to government regarding the quality of products and services provided.

3) regulators constantly strive to ensure that only inspectors who are highly respected professionals are used so that the purposes of inspection can be paramount at all times and so that inspectors who focus instead on process of inspection without being able to subordinate those processes to intelligent purpose focused discussion and are therefore likely to invoke disproportionate consequences are not employed.

Comments from the author of the question:

Having researched this issue extensively I have found significant evidence to suggest that Ofsted are seriously misrepresenting their legal obligations.
(http://mathseducationandallthat.blogspot.com/2011/08/ofsted-part-2-journey-to-heart-of.html)

Certainly it would not be in the personal interests of many currently in senior positions at Ofsted to see it enforced.

The actions the Secretary of State for Education has taken to reform Ofsted do not seem to understand this law. I therefore wonder if perhaps the Secretary of State for Education is unaware of his duties to enforce this law which will substantially improve the degree of appropriate professional freedom all schools are allowed?