Ofsted is leaving itself open to legal challenge by failing to check whether schools are flouting equality legislation, human rights lawyers have told TES.
They are concerned that schools are being awarded “outstanding” status by the watchdog despite having admissions policies that potentially discriminate against children with special educational needs.
Lawyer Debbie Sayers, co-founder of the Educational Rights Alliance (ERA), which advocates for children with SEND, believes that Ofsted is “fudging” its responsibilities under the Equality Act to check that schools perform “basic legal duties”, such as publishing equality objectives and accessibility plans.
Another lawyer, John Halford, a partner at human rights firm Bindmans LLP, warned that schools and Ofsted could be leaving themselves open to legal challenge. Schools would be breaking the law if there was no written evidence that they had complied with equalities legislation and could show that they had discussed it, he said. Ofsted could be challenged if it failed to demand the evidence.
Ofsted director Sean Harford confirmed in a letter to Ms Sayers that inspectors “will not necessarily report against each and every item” that schools are supposed to publish.
They may instead “cite examples of areas where the school’s leadership is failing to meet its statutory duties”.
The letter adds that inspections are “focused on outcomes for pupils”. Therefore, “marking a school down for not publishing information where it is evident that, in practice, the school is doing well for all groups of pupils could be seen as unfair and disproportionate.”
But Ms Sayers argues that inspectors should ask schools for their annually published equality information, along with a copy of their objectives. Mr Halford said that for Ofsted to discharge its statutory role under the Act, it should ask schools for written policies on admissions, recruitment and harassment and bullying. He did not believe that schools were widely or deliberately flouting the law, but said that outcomes could “easily mask unintended unlawful indirect discrimination”.
Mr Halford worked on a successful case against the Jewish Free School, found guilty by the Supreme Court in 2009 of race discrimination after refusing a place to pupils that it did not consider to be ethnically Jewish.
“There’s a compelling argument that when you’re in the process of inspecting, you need to be focused on the way those you’re inspecting are themselves discharging their own obligations to think through the equalities consequences of their policies,” he said.
Little focus on inclusion
The issue came to light when the ERA questioned Ofsted’s practices after noticing that several “outstanding” schools had not published any information on their websites relating to their equality duties.
One school it came across had an SEND policy allowing the school to ask parents or carers to accompany children in need of intensive one-to-one support if they wanted to go on trips. Its policies also referred to “mainstream children” and referred to the now defunct Disability Discrimination Act.
The ERA argues that there has been significant focus by Ofsted on coasting and failing schools but little on how schools are supporting inclusion and equality.
Sarah Woosey, a solicitor at Irwin Mitchell LLP, said that the issues raised by the ERA suggested “shortcomings” in the way that Ofsted had carried out its role in accordance with general public law principles, including acting fairly, rationally and in good faith. “There seem to be some important concerns raised here that would need thorough investigation,” she said.
Leora Cruddas, director of policy at the Association of School and College Leaders, said that schools took their Equality Act responsibilities seriously. Any evidence that schools are discriminating against children with special educational needs “needs to be taken up with the relevant governing body as a matter of urgency”, she added.
An Ofsted spokesman confirmed that the watchdog did “not routinely check specific policies to ensure their compliance with various acts or statutory guidance”. Nor did inspectors routinely check that schools record, in writing, that their policies comply with the Equality Act, he said. But they did request reports and analysis of any bullying, discriminatory and prejudicial behaviour, he added.
What the Equality Act says
Under the Equality Act 2010, schools are required to have due regard for the need to:
eliminate discrimination, harassment and victimisation.
advance equality of opportunity and foster good relations between people who share a relevant protected characteristic and people who do not share it.
remove or minimise disadvantages suffered by people who share a relevant protected characteristic when such disadvantages are connected to that characteristic.
take steps to meet the needs of people who share a relevant protected characteristic that are different from the needs of persons who do not share it.
encourage people who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low
The relevant protected characteristics are:
pregnancy and maternity
religion or belief