The loophole means the new National Care Standards Commission is spending pound;250,000 a year inspecting boarding schools but cannot publish its findings.
New standards have been introduced to protect boarders from abuse and bullying, and to protect their health and welfare. All boarding schools are to be inspected by the commission on a three-yearly cycle. But mistakes in drafting the rules mean schools could hide a critical report as they are under no obligation to publish it and the commission cannot do so.
Roger Morgan, the children's rights director for the commission, has complained to the Department of Health, which is consulting lawyers. There may be problems, though, getting parliamentary time to amend the law.
The new boarding standards, published under the Care Standards Act 2000, have been used by the commission since it took over responsibility for welfare inspections in boarding schools in April last year. They are intended to safeguard and promote the welfare of boarders and contain vital rules. For example, all staff must be trained in how to respond to suspicions or allegations of abuse.
Other subjects covered include appropriate punishment, saying the school must ensure that "no unacceptable, excessive or idiosyncratic punishments are used by boarders or staff", and health and safety.
The Boarding Schools' Association, which represents 550 UK schools, is pressing for amendments to the legislation that would allow reports to be made public.
Adrian Underwood, its director, said: "Our schools are quite used to the publication of reports as they are inspected every six years by the Independent Schools Inspectorate, whose reports are published."
However, some non-BSA schools may be less confident. In recent years the Office for Standards in Education has exposed fire doors held open with string, holes in floors and walls, untrained staff and risk of vermin in some boarding schools.