Ofsted pulled out of its high-profile judicial review with Make UK at the 11th hour after an undeclared conflict of interest came to light, FE Week has learned.
The manufacturing giant claimed victory over the watchdog this month after it turned a proposed ‘inadequate’ judgment into a ‘good’ following a costly, year-long legal battle.
Make UK claimed its original inspection, conducted in January, was “fatally flawed” and led by an “inept and inexperienced” team that came to a “fundamentally inaccurate” grade. Its leaders have, however, maintained they were unaware of the true reason why Ofsted surrendered before the dispute could go to trial and decided to reinspect the provider.
FE Week understands that the watchdog would have seen out the trial but stood down at the last minute after a relationship between the lead inspector and Make UK was exposed.
There was a family connection between the lead inspector and a company that is both a member of Make UK and used the organisation to train its apprentices, which raises questions of impartiality.
The lead inspector failed to declare this alleged conflict during the original inspection process. FE Week understands that the lead inspector claimed to have had no knowledge of the link and therefore it could not have impacted the decisions made during the inspection, but this was contested by Make UK.
This significant information came to light after Make UK was granted a judicial review in the summer and the judge accepted it could be added to evidence ahead of the trial.
Ofsted then backpedalled and ultimately pulled out of the proceedings. The watchdog decided to conduct a full reinspection of Make UK with a different inspection team in October, which resulted in a ‘good’ report published last week. None of the allegations in the January inspection, including claims of misogynistic behaviour, were carried forward.
FE Week understands the lead inspector from the January inspection has now been suspended.
Ofsted’s conflicts of interest policy states that inspectors should “not accept work or undertake inspection or regulation activity with a provider where past, present or future employment, engagement, allegiance or relationship suggests an actual or perceived bias or any personal benefit”.
It adds: “Inspectors are responsible for continuously ensuring that there is no real or perceived conflict of interest before undertaking an inspection event or any work for Ofsted. They are responsible for declining inspections where they feel there may be a real or perceived conflict.”
Angela Sandhal, a judicial review solicitor who specialises in Ofsted disputes, said the potential for conflicts is a “wide-open field and can arise in various forms”.
She told FE Week: “Inspectors may feel uncomfortable and awkward about disclosing affiliations or memberships which could create the conflict, preferring instead to keep quiet about such matters.
“The key problem from a provider point of view is that conflicts or potential conflicts do not have to be declared to the education provider and may arise unexpectedly during the inspection itself. So providers have to rely completely on an inspector making a declaration in the first place and then Ofsted’s assessments and decisions about whether an inspector can proceed to conduct objective and impartial judgments about the quality of provision, which is ultimately what the public relies on.”
Make UK, formerly known as the Engineering Employers’ Federation, is an influential organisation that represents manufacturers across the country. It is chaired by Lord Hutton of Furness and was name-checked twice in last month’s autumn statement speech by the chancellor Jeremy Hunt.
It spent more than half a million pounds on legal fees to suppress the grade four Ofsted report, which included initially being granted an anonymity order to protect its name and reputation.
An ‘inadequate’ judgment would probably have led to the Education and Skills Funding Agency terminating the provider’s skills funding contract and ending its ability to deliver apprenticeship training.
Sandhal pointed out that “unfair” inspections can have “major ramifications for small education and training providers especially and there have been several cases recently of providers being put out of business based on a single inspection and not having the financial resources to bring these matters to the court’s attention”.
Ofsted and Make UK declined to comment.
There was a time when Lead Inspectors had to declare any possible conflicts of interest so that this kind of situation could not arise. For example, where you had previously worked, been a consultant for and even in my case, company of an ex-wife. So much for transparency yet again.