Q&A:OFSTED COMPLAINTS

Andrew Manners of Morgan LaRoche discusses concerns about Ofsted’s inspection and complaints processes, and offers advice on challenging your judgement…

Could you tell us a bit about Morgan LaRoche?
AM: Morgan LaRoche was established in 2002 as a commercial practice by the nine founding partners, who had formerly been with a national law firm. Based in Swansea, South Wales, MLR combines its strong regional presence with a UKwide and international practice acting for a diverse client base, ranging from SMEs to multi-nationals and the public sector. The practice has an established track record in the healthcare and daycare sectors, and I lead the daycare work for MLR. We are a recommended firm in the leading client guides to the UK legal profession, and our work in this sector has been recognised in the Legal 500’s 2013 edition.

Why is there currently such widespread concern amongst nursery providers about Ofsted inspection judgements?
AM: Ofsted has changed the way it investigates complaints from investigation visits to full inspections. Figures released recently by Ofsted show that nearly a third of nurseries inspected following a complaint have seen their judgements downgraded. There have been many instances of ‘outstanding’ settings being judged ‘inadequate’. With the changes in September to government rules on funded nursery places, this means that such nurseries may not be financially viable. Even ‘satisfactory’, or the new ‘requires improvement’ grade, will cause financial uncertainty. There is particular concern by providers with the consistency of the quality of inspectors and inspection judgements. A lack of clarity in the new inspection guidance published in October by Ofsted has only exacerbated such concerns. There is a lack of transparency and partnership working with the sector. Ofsted keeps ‘moving the goal posts’, for example, it changed its guidance on concerns driven inspections in June by deleting references to the need for inspectors to concentrate on what they see on the day of an inspection.

How can a poor inspection judgement damage a nursery business?
AM: Reputation – it is everything for a nursery in such a competitive sector. To lose an ‘outstanding’ judgement is a huge blow and a competitive edge is lost. To receive an ‘inadequate’ will now mean that Local Authority funding will be withdrawn. ‘Satisfactory’, which will be replaced with ‘requires improvement’ as mentioned above, will have funding implications as well as reputational consequences.

A number of nurseries have decided to seek out professional help to challenge the results of their inspection – why do you think this is?
AM: Providers are often genuinely aggrieved and upset at downgrades, especially following a concerns driven inspection, which may have related to a historical concern going back a number of years. They are also confused by the Ofsted Complaint process, and often receive confusing ‘advice’ from Ofsted and/or Tribal/Prospects about when to lodge a complaint, and the strict time limits. It really is a ‘David and Goliath’ problem for them.

How can Morgan LaRoche support nursery owners who wish to make a complaint about their inspection?
AM: We can guide providers through the complaint process and prepare the Step 2 and Step 3 complaint letters. We can also provide advice on the merits of a Judicial Review (JR) application, which is the only legal challenge open to providers, and in appropriate cases, conduct the litigation. The complaint process is Ofsted investigating Ofsted or its contractors, and so providers need to be realistic as to the remote prospects of a successful outcome – a fact the recently disclosed data from Ofsted bears out. It is, however, possible to get better outcomes for providers, and if providers want to challenge what are very often seriously flawed inspections and complaint investigations, the complaints process and a JR application are the only options.

Is it an expensive process?
AM: What I have found works well for providers is to agree an initial cap on fees so there is certainty and flexibility. This cap usually covers all the work up to and including the Step 3 outcome and initial advice on the merits of a JR. Some insurance policies may include legal expenses cover, and providers should check with their brokers.

How can nurseries find out more?
AM: Both NDNA and the PLA have been actively engaged in discussions with Ofsted representing their members’ interests and the sector more widely. Both organisations have produced written guidance on challenging inspection judgements and the complaints process, for example, NDNA’s Fact Sheet is available to members at www.ndna.org.uk/advice-information/factsheets and the PLA guidance is available via email request at info@pre-school.org.uk. I am also happy
to talk to any provider for a no-cost, commitment-free initial telephone discussion.

Andrew Manners is a director at Morgan LaRoche. He can be contacted directly on 01792 776 720 or at amanners@morganlaroche.com