Ofsted has been forced to confirm that its new visits to schools are inspections, as result of a legal challenge, a headteachers' union has revealed.
The union said it sought a judicial review after the chief inspector, Amanda Spielman, told it in writing that the visits were “unequivocally not inspections”.
Ofsted is visiting more than 1,000 schools this term in visits that will not be graded – and that the watchdog had said are not inspections.
However, NAHT school leaders' union general secretary Paul Whiteman said that if the visits were not inspections then Ofsted’s power on entry would not apply and schools could decline to take part.
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In a letter to union members seen by Tes, Mr Whiteman said: “Given the significance of this, NAHT decided to begin a legal challenge by judicial review to seek absolute clarity as to whether or not these visits constituted inspections.
"In doing so, we have maintained the coalition with ASCL [the Association of School and College Leaders) and the NGA [National Governance Association], who will be communicating separately with their members.
Ofsted: School visits 'entirely different from inspections'
“Yesterday, in the formal response to our challenge, Ofsted had conceded that inter alia: 'the use of the word ‘visits’ in preference to ‘inspections’ in certain Ofsted documents does not in any way detract from the fact that the visits nevertheless fall within the broad concept of inspections.’
“While Ofsted has sought to play down the nature of these visits publicly, this statement makes it clear that they are, indeed, a form of inspection and should therefore be approached as such.”
The letter follows criticism of the planned visits from the NAHT, the ASCL and the NGA, which have already said the visits will feel like "inspection by another name" and urged Ofsted to rethink plans to publish a letter at the end of each visit.
An Ofsted spokesperson said today that the legal basis of the visits was not a secret and that it was disappointing that the NAHT's message could raise anxiety among its members.
The inspectorate is carrying out visits this term to check on how pupils are being supported to return to full-time education following the disruption caused by Covid-19.
Mr Whiteman's letter to members says that on 14 September Ms Spielman wrote to the NAHT, the ASCL and the NGA to explain that Ofsted would conduct "visits" using statutory powers, but invited the organisations to "provide assistance in telling schools unequivocally that these are not inspections; schools should not prepare for visits or be concerned by them”.
His letter adds: "Telling us, in writing, that these were not inspections was a significant step to take, and it had a range of potential consequences for NAHT members.
"By confirming that these were not inspections, we believed that Ofsted’s powers of entry, granted under inspection legislation, would not apply.
"It appeared to us that clear confirmation from the chief inspector that these were ‘unequivocally… not inspections’ could allow schools to decline to participate, should timing or circumstances not make this acceptable to the school.
"However, the inspectorate remained determined to rely on statutory powers of compulsion rather than accept offers of professional cooperation."
Mr Whiteman told Tes: "This Ofsted admission shows that these visits do fall within inspection activity.”
An Ofsted spokesperson said: “The legal basis for this term’s visits is no secret – it’s clearly set out on our website – but we have also made it abundantly clear that the visits are entirely different from our normal work.
"They are based on simple conversations with leaders about how the school is getting back on track, and there are no judgements at all. The feedback from the visits has been wholly positive, with leaders describing them as 'constructive and collaborative' and even 'cathartic'.
"We would ask school leaders to read the comments on social media and the personal reflections previously published in Tes. It’s very disappointing that the NAHT’s message could raise anxiety among its membership without any need.”