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Lord Sutherland of Houndwood: In speaking to Amendment No. 49 in this group, I pray in aid the support of my absent colleague, the noble Lord, Lord Dearing, who would wish to make some points that I shall try to describe.

Amendment No. 49 follows others in this group in seeking a fair and clear appeals procedure and we support the thrust of them. This amendment takes on board the difficulty of encapsulating all that should be on the face of the Bill, so we seek a requirement to have regulations dealing with this matter, which may have to be altered from time to time as we learn through experience. One of the points of our amendment has already been made—the damage done to a school by a bad report can be considerable. As the chief inspector in post when the first school in England was declared by an HMI report to be failing, I do not flinch from speaking the truth, if that is the reality.

On the other hand—such points were made by the noble Lords, Lord Dearing, Lord Tombs, and others, in a debate about Ofsted in September last year—I am aware of the damage that a report can do. If that report is not wholly fair and accurate, the damage is almost infinite, because no retraction will receive the same publicity as the first negative report. Hence, our amendment reflects our keenness for a requirement that a report should not be published until any reasonable appeal or correction in terms of accuracy is received by the chief inspector. We are moderate in what we say thereafter, but it is vital that the chief inspector has total confidence in the report, which means giving a school the opportunity to point out errors in procedure.

Lord Roberts of Conwy: I shall speak to Amendments Nos. 84, 89 and 90, to which I have added my name, although they share the imperfections that my noble friend on the Front Bench attributed to the similar system of appeal that is proposed for England by my noble friends. Amendment No. 49, spoken to by the noble Lord, Lord Sutherland, may well be more appropriate, although I am not sure that even that achieves perfection.

The whole point of inspection is to appreciate what a school is doing right and to identify where it is performing inadequately and going wrong. The latter element may become hurtful, especially when the identified defects are obvious to outsiders, but not so obvious to those who become over-familiar with them
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and ignore them. Criticism of that kind is inevitable in any inspection report and so, arguably, is the hurt that goes with it, unless some special steps are taken to soften the tone of criticism.

I was reminded by the noble Baroness, Lady Sharp, that the NUT has referred to the punitive nature of past inspections. That punitive element is certainly present in any kind of critical inspection report. Our real concern is the possibility of gross error or misjudgement by inspectors. We are all human and mistakes can be made which appear in reports. That becomes more likely as inspections become shorter and sharper. When such mistakes occur, they can be grossly damaging to the reputation of schools.

Ideally, schools should have prior knowledge of the contents of inspectors' reports, and steps have been taken to ensure that schools are aware of the drafts. Whether they should actually approve of reports before their publication is a totally different matter. I think that it will be very difficult to secure such approval. But if there are serious errors in a report, schools should have some remedy. They should be able to remonstrate with the inspectors at an early stage and, if necessary, appeal to a higher authority.

The higher authority seems to be within, or related to, the inspectorate. As always in such circumstances, the question arises of quis custodiet custodes—who inspects the inspectors? The obvious answer is the chief inspector. So far as concerns Wales, there is to be provision to remove an inspector from the register and that is to be preserved for the time being in Wales.

However, so far as I understand it, the existing system does not provide the appropriate answer for a school which believes that it has been very wrongly represented in an inspector's report. I agree with the noble Baroness, Lady Sharp, that the chief inspector cannot be judge and jury in these matters and there must be an independent system of appeal of some kind. I do not suggest for a moment that in our amendments any of us have achieved such an independent system, but I am sure that the Minister has grasped the fact that such an independent system is required.

Baroness Howe of Idlicote: I rise briefly to support all the amendments. There is a really important point of principle here and, wider than that, of natural justice. Clearly the old procedure had flaws and I am sure that that is being investigated by the Government. Indeed, I am hopeful that we shall hear from the Minister a satisfactory answer to all the points raised. The three issues are: first, it is imperative that there should be a short period before the report is published; secondly, the effect on parents and others of the standards provided by the schools should be taken into account; and, thirdly, it is important that an inspector should be independent of Ofsted. I hope that the Minister will be able to answer all those points and that he will be able to satisfy all those who tabled the amendments.

Baroness Perry of Southwark: I also support all the amendments—particularly Amendment No. 49, which certainly comes closest to addressing the points
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about which I feel most concern in relation to the current procedure. Because the period of time over which the inspection and report are carried out will be fairly short, it will be all the more difficult for the report to be accurate factually.

We are addressing two separate issues: one is that of a school's complaint against the judgments made; and the second is that addressed by Amendment No. 49 where a simple factual error has occurred. The school must be given an opportunity to put that right—not only for its own sake but also for the sake of the reputation of the inspectorate. It is very easy for a school not to produce the evidence of an activity that it undertakes. I can think of examples where the inspectorate's report has said that it is unfortunate that very little effort is made on out-of-school activities. It may simply be that the school was not asked the question sharply enough or in a form that it understood and therefore it did not produce the evidence. Once the school sees that that is what the report says, it can produce a mass of evidence that it is doing all kinds of things.

This is a simple issue, but it concerns the reputation of the inspection process and what it can achieve, the reputation of the inspectorate and, of course, the reputation of the school and the accuracy of the report. It is vital that there is an opportunity for such dialogue between the inspectorate—particularly the writer of the report—and the school so that the report is correct. The issue of an appeal against the judgments is far more substantial and difficult.

Lord Filkin: The amendments concern a very important set of issues and this has been a clear and focused debate. We very much accept that the quality and credibility of the complaints process and the ability to resolve disputes, which is ideally what the complaints process should be about, is integral to the development of the new system.

Perhaps I may give a little of the background before I go into the specifics of the amendments. We are not starting from a position that the process is a disaster. Clearly, in the vast majority of cases under the current system there is a high level of satisfaction with the inspection processes. When Ofsted carried out a post-inspection survey in 2002–03, of the 2,811 head teachers who responded to it, 90 per cent agreed that the inspection judgments relating to their schools were fair and accurate. I consider that to be a remarkably high satisfaction rate. Of course, that does not mean that there is total justice for everyone; it simply means that, from what head teachers are saying, there is at least a good sense that, by and large, what is being done is pretty impressive.

We hope that our proposals for inspection will bring greater consistency and reliability of judgment. Perhaps I may talk about the process for making the judgments before I deal with the process for handling complaints.

First, self-evaluation, which underpins the format, puts the school at the centre of the process and engages it in a meaningful and, it is hoped, professional dialogue with the inspectors about the school's performance. That
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participation should contribute to greater reliability. In other words, Ofsted is not going in and making 1,000 judgments; the school is making its appraisal and the inspector is then having dialogue and listening to testimony.

Secondly, increasingly both schools and inspectors will have access to more sophisticated data. Through the Bill, we are also seeking to make the chief inspector directly accountable and responsible for inspections and reports. That will provide a powerful incentive to ensure that he secures the highest possible standards in delivery.

The Bill also seeks to enable the chief inspector to make greater use of his professional HMI workforce in conducting inspections and assuring their quality. These changes will enable Ofsted to make important improvements to the quality assurance process itself. In addition, every draft report will be reviewed and signed off by an HMI managing inspector. Records will be maintained on the performance of each inspector—HMI included—and those will be used to inform the performance management process.

Furthermore, where the inspection team forms the view that a school is causing concern, the school will be given feedback, including that provisional judgment. This will trigger a process of moderation, involving senior members of HMI, to test and confirm that the evidence supports the judgment. All that will build even further on what we think is a good base of reliability and consistency of inspections and inspection judgments. That is the basic system.

I move on to the issue of complaints handling. Ofsted is now developing a new procedure for resolving concerns at the earliest possible opportunity. In many cases, this process will take place during or shortly after the inspection. Schools that have concerns about the way in which the inspection is heading, including the emerging findings, will in future have access to a helpline where they can discuss those concerns with a professional who is independent of the inspection team. Where necessary, it will be possible for an HMI managing inspector to visit the school during or shortly after the event as part of the process of seeking early resolution of the concerns of the school.

I shall talk later about the independent process but I emphasise that, in terms of achieving effective justice, the quality of the informal process is crucial. If we simply rely on formal processes, we are less likely to achieve justice than if we have a culture and a system in which an attempt is made to achieve early resolution within the system.

These improvements are possible because of the changes being introduced by the Bill, which will make the chief inspector directly responsible for all inspections and reports. Currently, registered inspectors are responsible for the reports that they produce. This makes it extremely difficult for the chief inspector to secure early resolution of concerns. In a situation where the chief inspector thought that an adjustment was necessary, he has very little power or locus should the registered inspector say, "No".
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Therefore, Ofsted will shortly be consulting teacher and governor associations on the informal process that I have outlined. In addition, there will be formal processes and the formal complaints process, which will be necessary only where the early resolution action does not satisfy the school. The formal complaint procedure will be rigorous, involving a number of different management tiers within Ofsted and will culminate where necessary with a final review—separate from Ofsted—by an independent adjudicator.

The adjudicator will look at complaints about aspects of the inspection or conduct of an inspector and at how Ofsted has managed complaints. She—it is a she—will look at complaints about inspections, the content of Ofsted and its staff and she may involve the conduct of inspections, the quality of reports, mistakes, delays or the response provided to complaints. If Ofsted do not accept her recommendations, it must publish the reasons. In direct answer to the question: essentially it is the same system as at present; but, on the independence issue, the independent complaints adjudicator is appointed by the Secretary of State and, therefore, is separate from Ofsted. Her independence is protected by that process.

The issue of whether the publication of reports should be delayed until complaints are resolved is sensitive and tricky. Where a school has a complaint, it is right that it has proper access to every stage of the complaints procedure, including external adjudication. A number of amendments have called for the chief inspector to delay publication of a report while a complaint is being considered. On occasion, delaying publication will be the right thing to do. That happened on one occasion during the trials.

While on the face of it delaying reports where a complaint is ongoing seems just, making that a feature of the inspection arrangements could be bound to encourage complaints to become more protracted. It could also provide an incentive to make a complaint, particularly if the school did not like the findings—regardless of the evidence—leading to an unnecessarily long and drawn out process. That would not be in the interests of parents or children because they would face substantial delays in getting reports which identified issues that needed to be addressed.

Therefore, we need to strike a balance between the importance of schools being able to make complaints and challenging inspection findings when they think that they are wrong in fact or wrong in judgment and the right of parents and pupils to proper, timely information. The chief inspector will publish reports only when he is satisfied that they meet his quality requirements. The Bill provides him with flexibility to do that. Therefore, he will delay when he deems that is necessary, but delay must not become the norm.

I appreciate the feelings behind this group of amendments. We want our schools to have confidence that the inspection team is skilled, but there is an opportunity for the school to make representations about fact, process and judgment before matters are finalised.

Ofsted already is committed to a complaints procedure that I have covered in detail. In short, the chief inspector, under the new system, will ensure that no
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report is published until the school has had the opportunity to comment and provide additional evidence where appropriate. The introduction of new informal processes focused on early resolution and a rigorous formal process developed through consultation with key stakeholders has to be the right way forward. I stress that the informal process followed by the formal process of Ofsted is in addition to the independent process to the independent complaints adjudicator.

On Wales, I shall speak first to Amendment No. 86, tabled by the noble Baronesses, Lady Walmsley and Lady Sharp. It would add a power by regulation to appoint an independent adjudicator, who would be required to consider complaints lodged against the conduct of a school inspection. That could include complaints that an inspection had been conducted in a manner inconsistent with legal requirements.

In such circumstances, the chief inspector would be required to act in accordance with the findings of the adjudicator. It is quite right that there should be clear and readily available avenues for redress for those who wish to lodge complaints about both the conduct of a school inspection and the findings in an inspection report. That is why Estyn has detailed and transparent procedures for the handling of such complaints.

The procedures are published and made widely available. They provide for complaints to be lodged initially with the lead inspector. If not satisfied with the response, the complainant may require the issues identified to be considered by senior HMI and ultimately by the chief inspector. Those dissatisfied with the conduct of an inspection can approach the Welsh Administration ombudsman.

Initial consideration has been given to the appointment of an independent adjudicator in Wales akin to the post put in place by Ofsted in partnership with the Adult Learning Inspectorate. However, given the relatively small number of complaints received each year alongside the ready access to the Welsh Administration ombudsman, we do not believe that such an appointment would improve current procedures or provide value for money. So we do not propose any action in Wales at present, although we shall keep the matter under review.

Amendment No. 84 would require any complaint made by a school to be resolved before the inspection report was published. The noble Lord, Lord Roberts of Conwy, had a twinkle in his eye when he recognised what that implied. I would love to be in negotiation with a party whereby nothing could move forward until I was satisfied. Of course, that is a power of veto. I recognise that that is not what was intended, but it illustrates the difficulty of legislating in that form.

It is quite right that an inspection report should not be published without the prior knowledge of a school. Current procedures already provide for that. I have sought to illustrate how we shall go into that further in terms of ensuring very active participation with the school about the report and its draft findings. There must be opportunities throughout the inspection to discuss the inspection findings.
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There must also be opportunities for formal challenge to both the professional judgments and opinions expressed. Again, Estyn has such procedures which are published and made widely available. Ultimately, the professional opinion of the inspectorate has to be recognised and accepted. In a sense, the power of the ombudsman in that respect and of the independent adjudicator is foursquare with the power of ombudsmen elsewhere: they can make findings, but they cannot overturn the decision, otherwise the independence of the inspectorate is compromised. However, when a complaint has been made, it is an unwise body that does not listen seriously.

With regard to the processes and procedures followed during an inspection, it is right that schools should have access to further and independent avenues for redress. Those dissatisfied with the conduct of an inspection or with how Estyn has managed the complaint can approach the Welsh Administration ombudsman, as I have said.

I have covered the point about delay and not publishing until there is agreement.

Amendments Nos. 89 and 90 brought forward by the noble Lords, Lord Hanningfield and Lord Roberts of Conwy, and the noble Baroness, Lady Morris of Bolton, would establish procedures by which maintained schools and non-maintained schools would not be required to make an inspection report available or take reasonable steps to ensure parents receive a copy until any appeals by the school have been finalised. That links with Amendment No. 84 to Clause 27, which would require a complaint to be resolved.

I can only emphasise that it cannot be right that an inspection report should not be distributed to parents and others simply because the school disagrees with the report. As I have already indicated, there must, of course, be opportunities for schools throughout the process to be able to challenge findings of fact and judgment. There is a flaw in saying that the report cannot be published until the school is happy, as I have already pointed out.

I have spoken at length. This is an important debate. I believe that I have fully answered the points raised—but this is not the first time that I have said that. I was invited by the noble Baroness, Lady Morris, to draft my own amendment. I thought one of the purposes of being in government was that one did not have to draft one's own amendments. Nevertheless, I understand what she says. I shall read what has been said to see whether anything further is needed. At this point I am unpersuaded that we have not put on the record an adequate set of responses, but, as ever, we shall reflect on the situation. I invite the noble Baroness to withdraw the amendment.

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