If Ofsted cancelled your registration would you know what to do?

Many of the children’s home providers we advise are exasperated by the sheer speed at which concerns expressed by Ofsted can escalate into serious enforcement action. Regulatory concerns may start with relatively straightforward recommendations for improvement but quickly escalate to compliance actions and, in the most severe of circumstances, cancellation of registration. It is of vital importance that both new and existing children’s home providers understand exactly what powers Ofsted has and the potential knock-on impact to the business, its service users and staff.

Ofsted has a wide range of enforcement powers available to it under the Care Standards Act 2000 and associated legislation, the threat of cancellation of registration being one of the worst case scenarios providers can face.

What can cause Ofsted to take enforcement action?

Ofsted has the power to take enforcement action against any provider who at any time is in breach of relevant legislation. The most pertinent legislation is the Children’s Homes (England) Regulations 2015 which underpin the regulatory framework for children’s homes.

Ofsted is required to inspect every children’s home at least annually. The frequency of additional inspections depends on the findings of the previous inspection balanced alongside the receipt of any information of concern relating to a home.

The vast majority of the time inspection findings form the basis of Ofsted’s case against a provider. It is therefore of extreme importance that providers review inspection reports and submit any objections they have with the content of a report in a timely manner and within any timeframes set by Ofsted. Failure to do so could be interpreted as acceptance of issues raised in a report and can make it harder to challenge later down the line.

Ofsted may also reference concerns it has about recent whistleblowing allegations, safeguarding investigations or ongoing police investigations, particularly if these have not been handled well by the provider. Providers need to ensure they have clear safeguarding and whistleblowing policies in place as well as a comprehensive complaints policy. Staff and other relevant stakeholders should be made explicitly aware of these. The existence and proper use of such policies helps ensure potential issues are identified and dealt with at an early stage. They can also give staff and visitors confidence in the provider’s ability to address such matters appropriately without feeling the need to raise concerns with external bodies in the first instance. This can help avoid the escalation of issues which could otherwise lead the regulator to have concerns.

How does Ofsted take enforcement action?

Cancellation is at the highest end of Ofsted’s enforcement powers. There are two routes to cancellation that can be pursued – the ‘normal’ process and the urgent procedure.

‘Normal’ Cancellation

If Ofsted is following the ‘normal’ process, providers will receive a Notice of Proposal (“NOP”) which they have 28 days to respond to before Ofsted decides whether to continue with the proposed cancellation. Ofsted will then issue a notice of decision (“NOD”) confirming whether it intends to adopt or withdraw the proposal. If the NOD is adopted, providers then have a further 28 days to appeal the NOD via the First-tier Tribunal. Under this route cancellation will not take effect until either the provider decides not to make representations to the NOP and the subsequent NOD, they fail to appeal a NOD or the Tribunal decides in Ofsted’s favour upon appeal.

In very general terms, a provider will usually not find themselves in front of a Tribunal until approximately 4-6 months after receiving their NOP if the full process runs its course. This means there is ample time for the provider to invest in making improvements to the service before a decision is made. Importantly, any final decision by the Tribunal has to be based on the position of the service at the time the decision is being made. Therefore, any improvements must be taken into account. This puts proactive providers in a strong position and there is ample opportunity to negotiate with Ofsted throughout the process.

Urgent Cancellation

The most severe of Ofsted’s enforcement powers are those taken under the urgent procedures which includes urgent cancellation of registration. Under the urgent procedure, Ofsted can make a decision without first notifying the provider. Given the impact of the action, Ofsted has to make an application to a justice of the peace (i.e. the Magistrates Court) for the cancellation to take effect. There is no requirement for Ofsted to inform the provider prior to it making an application to the Court. However, in practice providers are usually informed shortly before a hearing takes place.

The test for urgent cancellation is that unless the order is made, there will be a serious risk to a person’s life, health or wellbeing. This is a much higher bar than under the normal process (which simply requires Ofsted to demonstrate that the service is being, or has at any time been, carried on otherwise than in accordance with relevant law). Given the high threshold, alongside the impact of such action, Ofsted will only pursue urgent cancellation in the most serious of cases.

If an application is approved by the courts, the decision will take effect immediately. This means that any children or young people resident at the home will need to be moved out as soon as the order is made, otherwise the provider will be committing an offence by operating an unregistered service. Given the impact on service users, Ofsted will usually contact the provider and relevant local authorities shortly before applying to the Court to ensure appropriate plans can be put in place to effect the safe transfer of service users to alternative accommodation.

Providers have the right to appeal directly to the First-tier Tribunal. Emergency appeals are expedited in line with the memorandum of understanding between Ofsted and the First-Tier Tribunal. While the provider has an initial 28 days to submit an appeal, once this is submitted they can expect to have their hearing scheduled within two weeks of the appeal being submitted.

The lesser-known implications of cancellation of registration

One important legislative matter that many providers are unaware of is the knock-on implication of certain disqualification regulations related to the cancellation of a provider’s registration by Ofsted. The legislation says that anyone significantly involved in the management of, or with a financial interest in, a children’s home that has had its registration cancelled by Ofsted would become disqualified from carrying on, being concerned in the management of, or having a financial interest in a children’s home without first obtaining written consent from Ofsted. Such individuals are also disqualified from fostering a child privately and are also prevented from providing childcare or childminding that require registration under the Childcare Act 2006. In each of these circumstances a request can be submitted by the relevant person to Ofsted seeking consent to allow them to carry out the activity. It is an offence for a person to contravene the disqualification legislation without having obtained appropriate consent from Ofsted.We have advised providers on steps that can be taken to avoid the impact of this legislation and successfully negotiated alternative solutions with Ofsted.

Involvement of other relevant bodies

In all cancellation cases we have advised on, the provider has also had to manage its relationships with various placing local authorities alongside Ofsted. This can be a difficult juggling act and requires careful relationship management. Providers should be looking to maintain an open and honest dialogue with placing authorities to help provide reassurance and avoid children and young people being moved prematurely and unnecessarily.

We have advised clients at all stages of the enforcement scale, including cancellation. Given the severity of action Ofsted can take and the tendency for matters to escalate, we strongly advise all providers to take any legal enforcement action seriously. Providers should be looking to take action to improve where required and to respond to Ofsted with any objections at the earliest opportunity and within relevant timeframes. It is important to consider the merits of each individual case and taking early legal advice can assist providers in assessing the strength of their case, deciding on an approach and setting strong foundations for challenge where necessary.

If you require assistance or advice in relation to any issues with Ofsted including inspections and enforcement action, our specialist solicitors can help.