Teaching Ofsted a lesson

There has been much alarm over the prospect of parents suing failing schools. But what if the inspectors get it wrong - could they end up in court instead? By Tim Kaye
Schools have hardly been out of the media spotlight recently. So many changes have been introduced into the education system by successive Conservative governments since 1979 that it is tempting to say, perhaps, that this is nothing new. Parental choice, the National Curriculum, regular testing of pupils and national schools league tables have all provoked strong opinions. Indeed, in the past few years, hardly a day has gone by without someone repeating the allegation that the education system is in crisis.

But the debate has lately taken a fresh twist as two new factors have come to the fore. The first of these is the readiness of present or former pupils who allegedly suffer bullying at school or poor quality teaching to seek a remedy in the law courts.

The second factor is the importance now attached to the reports of the Office for Standards in Education (Ofsted). Moreover, such importance seems to be granted no matter which precise role Ofsted is seen to be playing. Thus it may be called in to propose some sort of immediate "action plan" for a school apparently bordering on collapse (such as occurred at the Ridings School in Halifax). Alternatively it may simply be discharging its routine function of monitoring general teaching standards and practices (as appears to have happened in the case of the two former pupils seeking to sue over alleged poor quality teaching.) Either way, the reports of Ofsted's inspectors are now accorded far greater weight than was ever the case with Her Majesty's Inspectors of Schools (who preceded Ofsted).

Some commentators are now warning that if these two factors are combined to allow pupils to sue their school (or the local authority responsible for it) when an Ofsted report finds the school to be failing (or to have failed) in some way, the educational system could be plunged into another crisis. The shadow Education Secretary, David Blunkett, has warned that if such cases are allowed to go ahead then money will be diverted from educating today's pupils towards compensating the unfortunates among yesterday's.

It is difficult to follow this line of argument. After all, if a school or education authority knows of the risks of being sued, it is surely more likely to divert resources into education as its best defence against any future legal action. The conflict in resources would not be between the generations of pupils, but between education and other areas of potential spending such as highways and welfare.

But a flood of successful legal suits against schools on the basis of an adverse Ofsted report is hardly a realistic prospect. The fact that an Ofsted report might damn a school in general is very different from its saying that one particular child's education was so flawed that it caused him or her to fail to get a good job or to get into university.

Many competent teachers are to be found in even the worst schools, as Ofsted itself has acknowledged. And jobs do not depend solely on academic achievement: personal skills developed outside the classroom as much as within it are vital for success at any interview.

Indeed, the apparently widely-held assumption that such cases are nevertheless very likely to succeed is not so much an argument for prohibiting the taking of legal action in such circumstances but is, rather, the latest manifestation of fundamental public unease about the general quality of education which our children are receiving.

But is it not odd that we are so ready to believe that schools are failing while at the same time we exhibit a naive trust in the Ofsted inspectors to get it right every time? After all, someone must have educated and trained them. And would many of us who are not schoolteachers really be happy to have our work judged on a two- or three-day visit by outsiders with no first-hand knowledge of our employer, our colleagues or (as we are now supposed to see pupils) our clients and customers?

Why is there so much focus on the possibility of suing schools when, in principle at least, there must be at least as much chance of the Ofsted inspectors making a howler?

Universities have experienced many such assessments in the past five years or so and most academics can recite stories of assessors' reports having to be re-written many times because of elementary factual errors. And, since the interpretation of the information gleaned must still be rather doubtful as it is based on such a short visit, the academic world still takes the final published reports with rather more than a pinch of salt.

By contrast, Ofsted reports are produced much more swiftly and can therefore hardly go through the same process of review and correction. The potential for serious errors and omissions therefore seems all the greater; and the stress of attempting to comply with a public demand of the Secretary of State to produce an immediate "action plan" for an allegedly dreadful school is likely to compound the problem still further.

Any such errors or omissions contained in Ofsted reports may blight the careers of innocent teachers, or cause them psychological harm in much the same way as a school bully. Local authorities may be forced into unnecessary expenditure, or into diverting cash from other important projects. Pupils may lose self-confidence upon the publication of an unjustifiably critical report and thus fare less well in their examinations. Or upon leaving school they may find that employers are less willing to take them on because of the school they have attended.

Moreover, Ofsted would not be able to extricate itself from this problem by publishing only reports of a more anodyne nature. Any pupils who could be said to have been lulled into a false sense of security by an inaccurately positive report which dissuaded them and their parents from seeking better education elsewhere must also have a potential basis for launching legal action.

Some may complain that it is unacceptable to expose Ofsted to such risks of legal action. But when so many people's lives may depend to a greater or lesser extent on the findings in its reports, it is difficult to see why the assessors should not themselves to open to some sort of proper, thorough, public assessment.

Everyone is agreed that a good education is vital. Everyone also agrees that standards must constantly be monitored. So it is surely axiomatic that we should be able to trust the verdict of those doing the monitoring - and to be able to hold them publicly to account when they get things wrong.

Mr Blunkett's reaction therefore seems somewhat ill-conceived. Far from undermining teachers and schools, the prospect of legal action on the back of an Ofsted report may actually cause Ofsted itself to come under greater public scrutiny. Then we will be able to see whether our touching confidence in the accuracy of its reports really is justified.

Dr Kaye is a lecturer in law at the University of Birmingham.