Ofsted’s Updated Protocol for Handling Incomplete Inspections: Ensuring Accuracy and Reliability

Over recent months, we have seen a marked increase in the dissatisfaction from providers about the quality and accuracy of the contents of their Ofsted inspection reports across the broad spectrum of Ofsted-regulated provision. As providers will likely already be aware, one of the mechanisms that can be used within the inspection process to ensure that the regulator has considered all of the available evidence, is the incomplete inspection protocol. As of 15 September 2023, Ofsted has published an updated version of the protocol.

What constitutes an ‘incomplete’ inspection?

An inspection is classified as “incomplete” when the inspection report has not yet been published, and Ofsted requires additional evidence to secure the inspection evidence base. Broadly, this may apply in circumstances where Ofsted deems that it requires additional evidence, or where a provider considers that Ofsted should be provided with additional evidence to secure the inspection evidence base.

 More specific examples of when an inspection may be incomplete, include:

1. Key judgments lacking substantiation from the pre-existing gathered evidence;
2. Inspection conduct affecting the reliability of gathered evidence;
3. Insufficient evidence or evidence of inadequate quality to form an accurate view of the provider;
4. Receipt of relevant information after the inspection, necessitating a review of previously gathered evidence;
5. Inability to complete on-site evidence-gathering activities due to uncontrollable factors.

When the protocol does not apply?

The protocol for handling incomplete inspections does not apply when an inspection report has already been published. Furthermore, it is not applicable in situations where an inspection may be deemed unreliable for reasons other than an insecure evidence base. These reasons may include the use of incorrect statutory powers or assessments that fall outside of Ofsted’s jurisdiction.

Delaying publication for consideration of concerns

We have previously written about the mechanisms available to providers to challenge draft inspection reports, such as the factual accuracy and formal complaints processes. Ofsted has established processes to ensure the quality and finalisation of inspection reports and to address concerns and comments raised by providers. Providers have an opportunity to review and comment on draft inspection reports by way of factual accuracy and can formally complain on receipt of the final version of the report.

Ofsted will not publish an inspection report on its website while a formal complaint is under consideration, provided the complaint is submitted within the specified timeframe outlined in the complaints procedure.

However, in exceptional cases, when concerns are raised by a provider or during Ofsted’s internal quality assurance processes, elements of the evidence base may be identified as insufficiently secure. In such instances, Ofsted may deem the inspection incomplete, prompting further action. In our experience, satisfying Ofsted that the evidence base is insecure at the factual accuracy stage is a high threshold to meet and so therefore utilising the incomplete inspection protocol at the earliest opportunity in the inspection process is important for increasing the likelihood of success.

Completing an incomplete inspection

When an inspection is considered incomplete by Ofsted, steps are taken to secure the evidence base. Ofsted or the provider can seek to engage the incomplete inspection process.

The Ofsted decision-maker typically communicates the following to the provider:

1. Explanation of the reasons for deeming the inspection incomplete;
2. Apology if deemed appropriate;
3. Request for further evidence or arrangements for a follow-up conversation with the inspector if necessary;
4. Confirmation of a potential further visit to gather necessary evidence and complete the inspection, with a focus on promptness.

To complete an inspection, Ofsted may focus on securing the evidence base, particularly addressing insecure elements.  In some instances, the Ofsted decision-maker may deem it necessary for the inspector or inspection team to revisit all elements of the evidence base to ensure reliable judgments.

Ofsted may secure the evidence base by requesting specified evidence from the provider without requiring a further visit.  When a further visit is deemed necessary, Ofsted communicates the date, inspector’s identity, and any additional information required as soon as practicable.

Notably from the updated policy, Ofsted reserves the right to carry out further visits, without prior notice, in cases of immediate concern for child or learner safety.

The inspection report will not be published on Ofsted’s website until the inspection judgments are deemed secure, by Ofsted, and the report’s narrative text is appropriately supported by evidence, in Ofsted’s view.

Once any necessary further inspection activity is completed, an amended draft inspection report is sent to the provider for comments. Following this, Ofsted finalises and publishes the amended report in accordance with its standard procedures.

Conclusion

While incomplete inspections are infrequent, their importance cannot be understated as it is an opportunity for a provider to do all that is reasonably practicable to ensure Ofsted has all the available evidence before it when coming to a grading on a service. Notwithstanding the fact that provider’s often remain concerned with the accuracy of a rating after the incomplete inspection protocol, the provider is able to rely on the information it provided to Ofsted during the incomplete inspection protocol in its factual accuracy submissions.

Ofsted has stated that effective communication with providers and “rigorous” quality assurance processes are key elements of this updated protocol.  Ofsted state that this is emphasising its dedication, in theory, to its core principles of transparency, fairness, and excellence in education and childcare regulation. Whether the theory translates to practical application is open to interpretation.

As Ofsted may carry out a further visit to a provider, without notice, to gather additional evidence to complete the inspection, providers need to be aware of this and be mindful of the incomplete inspection process, which may occur without notice. We strongly encourage providers to make contact with us at alice.straight@la-law.com or 01202 786353 if they are unhappy with their inspection, at the earliest opportunity, so that we can assess what steps can be taken to protect the service and consider whether the incomplete inspection protocol should be invoked as soon as possible.