ESFA seeks legal advice in face of unpublished Ofsted reports

The Education and Skills Funding Agency is taking legal advice on whether it can intervene at new providers before Ofsted publishes their inspection reports.

The watchdog paused the publication of all further education and skills reports on March 20 owing to the coronavirus pandemic, but later said it would release them sooner if requested by individual providers.

Ofsted previously told FE Week it was sitting on around 50 reports for providers that had been visited before the Covid-19 outbreak. It published 12 of them at the time of going to press this week – all of which showed positive results.

This newspaper understands that a number of the unpublished FE and skills inspection reports were early monitoring visits of new providers that resulted in ‘insufficient progress’ judgments and would normally result in them being suspended from new starts, in line with ESFA rules.

The agency’s policy states: “When Ofsted publish a monitoring visit report that finds that ‘insufficient progress’ has been made under one or more of the themes assessed, then unless an exceptional extenuating circumstance is identified, we will take a range of actions as outlined in contracts and funding agreements.”

When asked about whether it could take action against providers found making ‘insufficient progress’ in monitoring visits if the report has not been published, the ESFA would only say that it is working with Ofsted and its legal team to understand the ramifications of Ofsted’s pause of publications and to decide the best course of action to minimise disruption to apprentices and providers.

It means that there is likely to be a number of new providers that have been judged ‘insufficient’ by Ofsted but can still recruit new learners and apprentices.

An Ofsted spokesperson said the organisation would not comment on unpublished reports, but told FE Week the DfE and the ESFA are “regularly made aware of provisional outcomes of inspections and monitoring visits”.

“Where a report has been finalised it is sent to the DfE/ESFA at the same time as it is sent to the provider, in line with our statutory duties,” he added.

The decision to pause the publication of inspection reports was revealed by Paul Joyce, Ofsted’s deputy director for FE and skills, during an FE Week webcast in March.

He said they had taken the decision because they are “well aware providers have enough to deal with” during the current pandemic.