Ofsted – A Spotlight on Schools and Social Care

April 24, 2020

By Julian King

Additional Research by Harriet Lavin

This article focuses on the current landscape concerning the increased focus on regulation and prosecution, within the spheres of education and social care provision.

On 14.2.20 Gavin Williamson the Education Secretary announced, “Unregistered schools present a serious risk to children. They often do not offer the kind of balanced, informative curriculum all schools should, and can expose pupils to dangerous and extreme influences”.

He then went further to add, “We remain committed to strengthening Ofsted’s powers to make sure they can shut down illegal settings, and helping legitimate settings to make sure they know the rules”.[1]

In December 2019 the Guardian published an article under the heading, “Revealed: thousands of children in care placed in unregulated homes”. In February 2020, Ofsted identified that the number of children aged 16 or 17yrs placed in unregulated care settings had increased from 2,900 in 2009 to 6,100 in 2019. It identified that they proposed to ban certain types of settings and to introduce further standards, including more powers for Ofsted to take action against providers.[2]

The Regulator

The regulator for school and social care provision through children’s homes is Ofsted (the Office for Standards in Education, Children’s Services and Skills). As such it conducts inspection of services providing education and skills. It also inspects and regulates services caring for children and young people.

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Schools

It is important to advise clients who wish to operate independent schools or similar provision, of the dangers of committing criminal offences, and if registered, of the significant requirements under the set standards for operation.

It is an offence under s.96 of the Education and Skills Act 2008 to conduct an independent educational institution unless it is registered. If convicted, the maximum custodial sentence is 6 months, or an unlimited fine, or both.

An Independent School is essentially a private school most likely charging fees for attendance, as opposed to receiving government funding. There are of course, other types of school, but this article does not consider those aspects in more detail.

Whether provision from an independent school is required to be registered, can be a far from straightforward consideration. The definition for an independent school is contained within s.463 of the Education Act 1996 whereby an independent school, is one not maintained by a local authority. The definition is explained more fully within online Ofsted guidance:

For those wishing to operate an independent school or similar provision, then in depth consideration must also be given to the issues of what constitutes full time education:

The Department for Education consider in the Registration of Independent Schools guidance, “Generally, we consider any institution that is operating during the day, for more than 18 hours per week, to be providing full-time education. This is because the education being provided is taking up the substantial part of the week in which it can be reasonably expected a child can be educated, and therefore indicates that the education provided is the main source of education for that child.”

Regulation

If registration is required what then, are are the standards required for an independent school?

Under s.94 Education and Skills Act 2008 a wide range of factors are considered including Quality of education, spiritual, moral, social and cultural development of pupils, welfare health and safety of pupils, suitability of staff, premises, provision of information, handling of complaints, quality of management and leadership. Of course, Ofsted has the power to inspect and to enforce, which can include the refusal or revocation of registration.

Prosecution

The increase in Ofsted activity is seen from recent criminal cases. 3 examples include the Al-Istiqamah Learning Centre, in Ealing from October 2018. This case saw 50 children attending an unregistered school. The provision continued despite a warning notice. A CPS prosecution saw convictions for running an unregistered school with sentences of curfews and fines.

A second notable case was Frieston Hall, Boston, Lincolnshire from October 2019. This was an unregistered school charging £1,200 per child from local authorities. Again, the provider received warnings over its conduct. The prosecution and conviction saw conditional discharges and the award of costs.

More recently the prosecution of the Advance Education Centre from north west London, saw the first custodial sentences handed down for unregistered activity. This case saw a primary school operating on the ground floor of a registered premises for primary school activity. However, on an upper floor an unregistered school was providing full time education to 66 secondary school age children. This case saw fines for the trust and Chairman, with the first custodial sentences handed out against the principals (both receiving fines and suspended sentences).

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Social Care – Children’s Homes

In a similar context to that of independent schools, clients wishing to provide either care or support to children or young people through children’s homes, must be aware of the registration and standards required for unregistered and registered care and support. This article does not actively consider Nursery provision, though similar requirements exist for this type of activity.

The Care Standards Act 2000 is the primary legislation in relation to children’s homes and requirements for registration with Ofsted. Under s.1 of the Act children’s homes are defined as follows, “An establishment [in England] is a children’s home (subject to the following provisions of this section) if it provides care and accommodation wholly or mainly for children”.

The requirement for registration and the offence for carrying on without registration is contained under s.11 of the Act. As with school offences, if convicted the maximum custodial sentence is 6 months, or an unlimited fine, or both.

The legal requirements for children’s homes and registration are more broadly defined within Ofsted Guidance, namely the “Introduction to Children’s Homes”, published July 2018.

Ofsted guidance acknowledges that some establishments and types of accommodation can be known as “unregulated settings” [paragraph 6]. It goes on to identify that “Placing authorities are responsible for ensuring that any placements in an unregulated setting are suitable for the child or young person.”

The general standards and requirements are further detailed within the Children’s Homes (England) Regulations 2015. This includes assessment of the fitness of both the provider and individuals, in many ways, this being a similar test to that experienced by licensing practitioners when addressing courts in respect of fit and proper person tests.

Any provision must register before operation. Relevant legislation is most notably the Care Standards Act 2000, Care Standards Act 2000 (Registration)(England) Regulations 2010 and the Children’s Homes (England) Regulations 2015.

From the Care Standards Act 2000, Annex A is worth detailed consideration. This provides guidance on supported accommodation over 16yrs which does not require registration. It is extremely detailed, but this examines the type of support including freedoms and restrictions given or imposed on young people.

Further essential reading in this area, is Annex C. This provides more general advice on unregulated settings and registration requirements. This considers amongst a number of issues, how permanent the arrangements for accommodation are.

Effectively, in broad terms if classified as emergency or short-term isolated placements, then registration requirements are less likely to be triggered. This however, is a position to be reviewed extremely carefully in each scenario.

Providers and their relationship with the Local Authority

Often a Local Authority may have a child they cannot house in a Local Authority setting. They must then look to other providers. This can be a concern for Ofsted as these can be unregulated settings, which in the eyes of Ofsted, may have inappropriate or inadequate safeguarding measures in place.

Of course, the Local Authority carry a duty to ensure children are appropriately placed. However, the Local Authority can be placed between a rock and a hard place. They must house the child somewhere, but simply may not be able to find a registered setting.

Within the Guardian article from December 2019, Yvette Stanley, Ofsted’s national director for social care, said: “Over the last 12 months we’ve investigated 150 places that were not registered with us and when we went out and looked, only 30 need not register with us – the rest should have done”.

She added that councils were less likely to run thorough checks on provisions when a child needed to be urgently placed elsewhere but emphasised that Ofsted had recently improved its system for notifying them about unregistered homes.

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Education and Social Care – Joint Principles

Appeals Against Ofsted Decisions

It may well be that a criminal prosecution is not pursued, yet revocation is made, or registration is refused either in respect of a company or individuals. Failure to observe such an Ofsted decision by the providers, could then lead to enforced closure and further criminal sanctions. Following refusal or revocation there is an appeal route available to those wishing to challenge such a decision.

Appeals against Ofsted decisions are heard within the First Tier Tribunal and are governed by The Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 S.I 2008 No. 2699.

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Conclusion

The introduction of criminal prosecutions and the growing media spotlight demonstrates that Ofsted continues to increase the focus on regulation and enforcement in both the areas of education and social care. There are many sole traders and limited companies that wish to operate in these areas, whether under registration and regulation, or outside through alternative settings. Those wishing to operate in these fields, should do so knowing the registration requirements, the penalties and the standards they must meet.

 

Julian King specialises in regulatory and serious criminal cases. He has extensive experience of professional discipline cases and licensing work across numerous practice areas. He has advised and represented companies and individuals across a range of Ofsted registration, revocation and prosecution issues.

[1] https://www.gov.uk/government/news/further-crackdown-on-illegal-schools

[2] https://www.gov.uk/government/consultations/unregulated-provision-for-children-in-care-and-care-leavers

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