Law in Order

Refusal of registration as a children’s home manager.

What does it mean for applicants and the sector generally?

Children living in homes require, deserve and expect to receive high quality care from staff with appropriate skills and experience. The Registered Manager’s leadership is critical for a well-functioning home.  There is a scarcity of registered managers in the children’s homes sector and it is crucial that steps are taken to encourage people to take on this important role. However, first, one must obtain registration with Ofsted. Regulation can be a blunt instrument on occasion, no more so than when Ofsted makes decisions about applicants wanting to become registered managers of children’s homes.  

Feedback from clients who have been refused registrations tend to fall into 2 categories

  1. Proposed mangers who have had management roles in children’s homes where there has been poor practice, incidents or safeguarding concerns.
  2. Proposed managers who have not managed children’s homes and whose responses in Fit Persons Interview are deemed to be unsatisfactory.

However, notices of proposal to refuse the registration of managers are normally thin on detail, highly subjective in terms of the stated opinions and unsupported by evidence. As a result, they fail to provide the applicant with sufficient information to make meaningful written representations in response. In addition, we have come across cases where Ofsted has not thoroughly investigated the allegations set out in notices of proposal to refuse. However, the risk is not just that Ofsted may proceed to adopt the proposal to refuse. A decision to refuse an application to become a registered manager of a children’s home disqualifies the applicant from carrying on, managing, having a financial interest in, or working in a children’s home unless Ofsted gives its written consent. 

If that weren’t enough, a refusal also disqualifies the applicant from providing early years services under the Childcare Act 2006, unless Ofsted agrees to it. A refusal also disqualifies the person from fostering a child privately.  

Of course, the applicant could appeal to the Tribunal and seek to overturn the decision to refuse but that is a time-consuming process and one that can be costly if legal representation is obtained. There is also no guarantee that an appeal to the Tribunal will succeed. It all depends on the facts and the evidence, and how people come across when giving evidence in a public hearing.

An applicant might hope that their Ofsted registration inspector will give them a warning that Ofsted is minded to propose to refuse the application. That way, the applicant can withdraw the application. However, this does not always happen. Instead, Ofsted is issuing notices of proposal to refuse, after which point applicants are told by Ofsted they cannot withdraw their applications without the regulator’s permission. If Ofsted has concerns about an applicant’s ability to safeguard children’s welfare, which might be a subjective opinion based on weak evidence, it will not agree to the application being withdrawn and will proceed to a notice of decision, leading to disqualification.  

In fact, there is nothing in the law saying an applicant cannot withdraw their application before a notice of decision is made. Ofsted is simply applying a policy which has no statutory basis whatsoever. However, unless an applicant has the funds to challenge the policy in the High Court, the best the applicant can hope for is that Ofsted will not object to the application being withdrawn.

The current situation is deeply unsatisfactory for managers who may find themselves disqualified from working in the sector. If Ofsted refuses to give its consent to allow a disqualified manager to work in a particular role, an appeal can be made to the Tribunal but, again, that will be a lengthy and costly process if lawyers are instructed.

Ofsted needs to look at its whole approach to dealing with applications to become registered managers, otherwise many will be put off applying in the first place given the serious risks to a person’s career and livelihood. Children and young people will also be let down if people are put off from becoming registered managers. A call to action is required across the sector to solve this problem and ensure there is a sufficient flow of people willing to be the registered managers of the future.    

Neil Grant, Gordons Partnership Solicitors, 24.03.21