Headteachers cannot legally oppose Ofsted’s school report card plans, experts have warned, despite widespread resistance to the watchdog’s proposals.
Ofsted is proposing to inspect schools across 11 different areas on a new five-point grading scale when it launches its school report cards later this year.
But last week, the NAHT school leaders’ union filed a legal claim against the watchdog’s consultation.
Although the inspectorate dismissed the NAHT’s claim as “untenable”, the court action reflects widespread concern over Ofsted’s plans.
However, legal experts have told Tes that headteachers will be effectively powerless to oppose report card inspections, regardless of the outcome.
Right to enter premises
Section 10 of the Education Act 2005 grants the chief inspector and the inspectors they delegate the right to enter school premises at “all reasonable times” for the purpose of inspections.
And even if the NAHT’s claim succeeds, the legal duty of inspection will remain, said Katie Michelon, partner and education lawyer at legal firm Browne Jacobson, which works with the NAHT on a non-commercial basis.
It is an offence to intentionally obstruct an inspector who has come to inspect the school, which is defined in the act as wilfully making an inspector’s work more difficult.
This issue came to the fore in 2023 when there were calls to boycott Ofsted following the death of headteacher Ruth Perry, who took her own life after her school was downgraded in an inspection. A coroner later ruled that the inspection had contributed to her death.
In March 2023, a Berkshire headteacher vowed to deny Ofsted inspectors entry to her school, but this inspection did go ahead after talks with the local council.
Law limits intentional disruption to inspection
The law does not simply limit a physical obstruction of inspections, but covers any intentional disruption of the inspection process, according to by the education legal services organisation Edapt.
This could include actions such as only complying with certain aspects of the inspection, like 51 requirements, but refusing other elements, such as teaching and learning. It also bans leaders from refusing to engage with meetings and declining to hand over data.
Edapt also warned that a headteacher refusing to comply with inspection could be in breach of contract or viewed as gross misconduct - and, ultimately, result in suspension or dismissal.
More “minor” obstructions may not result in an offence, Ms Michelon added. However, the school could “end up compromising its inspection outcome”, or Ofsted could elect to pause or extend the inspection, she said.
Teachers ‘have to partake’
Ms Michelon said: “There are routes available to school leaders in certain circumstances, such as deferral, pausing, complaining about an inspection and seeking that it be set aside. But in terms of being subject to inspection generally, teachers have to partake.”
For school leaders who feel under pressure or disagree strongly with the process, Alistair Wood, CEO of Edapt, recommended that they “engage with the inspection professionally while keeping detailed records and seeking advice if needed”.
“Legal and political routes, such as the Ofsted complaints procedure, judicial review or lobbying for reform, are the appropriate and lawful ways to raise concerns,” Mr Wood added.
The NAHT legal action
Ofsted’s consultation closed on 28 April, and the watchdog is yet to respond or launch the final version of its school report cards.
The NAHT’s legal action is against the process of Ofsted’s consultation, which it does not believe is “adequate”.
The union has argued that “adequate consultation has not been conducted regarding the plan for a new five-point scale to grade schools”, which the NAHT says was presented as “final” in the watchdog’s consultation.
It said that other possible options were “rejected with no reference to wellbeing, despite Ofsted recognising that wellbeing is an important instigator for the changes it is making”.
Tes understands that the NAHT sent the pre-action protocol letter to Ofsted on 15 April and issued its claim for a judicial review to the High Court on 2 May.
Yogi Amin, partner at Irwin Mitchell, said that the school watchdog will now have to respond to the claim and make a choice whether to continue with the legal action or consider extending or redoing the consultation.
Could legal action halt the rollout of report cards?
Judicial reviews tend to be “quite procedural”, said Mr Amin, meaning that courts will consider the “robustness of a consultation process”.
Ms Michelon clarified that Ofsted has not yet taken a decision on the final outcome of its consultation.
“As the legal challenge is about the lawfulness of the consultation, if a judge agrees with the NAHT’s claim and rules that the process was not lawful, Ofsted would need to carry out a fresh consultation exercise,” she said.
Mr Amin said that it could also result in the inspectorate having to extend its report card consultation.
Ms Michelon agreed that a successful legal challenge of this nature “could certainly delay implementation of a new inspection system”, a view that Mr Amin echoed.
However, Mr Wood is sceptical about the case succeeding.
He said: “Although Ofsted’s consultation has closed, it hasn’t yet published a response or finalised the framework, so the judicial review may be seen as premature.”
And added that courts are “generally cautious” about intervening before a decision is made, and the legal bar is high.
“Ofsted may also be able to demonstrate that it conducted an adequate consultation, given the range of engagement activities, which were arguably more extensive than in previous reforms,” Mr Wood said.
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