Ofsted has extensive enforcement powers which, if exercised, can have a major impact on a providers’ registration.  These powers can be taken on notice or, if urgent, on an emergency basis.

Ofsted can serve a:

Notice of Proposal (NOP) to:

• Cancel your registration
• Suspend your registration
• Vary or remove a condition on your registration
• Add a condition to your registration

Ridouts can help you to draft representations to the NOP setting out why the proposed action should not be taken.

Notice of Decision (NOD) to:

• Cancel, Suspend, or Vary your registration which confirms a Notice of Proposal already issued.
• Suspend or vary your registration on an urgent basis under section 20B of the Care Standards Act 2000. This means the decision takes effect immediately, and providers should comply or face committing a criminal offence.  Such action can result in services having to cease and children being removed immediately.

Ridouts can help you to appeal the NOD to the First-Tier (Care Standards) Tribunal.

Magistrates’ Court Order:

• Cancelling a provider’s registration, imposing, removing or varying conditions on your registration on an urgent basis under section 20 of the Care Standards Act 2000. This takes effect as soon as the order is made.

Ridouts can help you to appeal the order to the First-Tier (Care Standards) Tribunal.

Such action can be highly damaging, reputations can be tarnished, providers can be prosecuted for failing to comply with conditions of registration and businesses can be lost.

Ridouts can work with you to build a robust response to these types of action.

Disqualification Legislation

Cancellation of a children’s home registration also triggers related disqualification legislation. Such legislation can prevent those who have had their registration cancelled and relevant persons connected to a cancellation from being involved in a children’s home (and other services) in the future.

Ridouts can help you by:

• Advising on the strength of the case contained within Notices of Proposals (“NOPs”) and Notices of Decision (“NODs”);
• Drafting comprehensive responses to NOPs and NODs and identifying supportive evidence;
• Appealing NODs to the Tribunal; including drafting witness statements, attending case management hearings and preparing bundles for disclosure;
• Representing health and social care providers at emergency closure hearings in the Magistrates’ Court.

Following site visit inspections regulators, including Ofsted, will produce an inspection report recording their findings.  This includes rating a service.   

Negative findings, breaches of regulations and ratings of ‘Requires Improvement’ or ‘Inadequate’ can have a negative effect on a service. 

Providers have a very short period of time to make factual accuracy comments.  If you do not make representations, you will be deemed to accept the findings.

Inspections can lead to other enforcement action.  This can happen immediately or following a succession of reports showing non-compliance.

Providers can suffer reputational, staffing and financial damage as a result of an inaccurate inspection report.  As a result, children can be removed from services by commissioners and no further placements made.

Ridouts can help you to challenge the factual accuracy of the report.  We will work with you to gather evidence and put together as robust response as possible. 

Ridouts can help you by:

• Drafting factual accuracy comments submissions;
• Collating evidence in support of factual accuracy comments;
• Pre-action protocol letters and complaints where comments to inspection reports have not been thoroughly or properly considered.

A Restriction of Accommodation Notice can be issued by Ofsted where it believes that a child, young person or adult may be at risk of harm if there are further admissions.  The Notice prevents a children’s home from accepting any new placements while allowing existing children and young persons to remain at the home. Such restrictions are for time limited periods but can be subject to extensions by Ofsted.  

Whilst existing children and young persons can remain in the home, this can often prompt local authorities to assess existing placements and sometimes remove the children, leaving the home financially vulnerable. 

Additionally, Ofsted will notify every local authority in England and Wales that a Notice has been served, which can cause reputational damage too.

It is an offence not to comply with a Notice.

Notices should be kept under review by Ofsted and Providers can appeal a Notice to an independent Tribunal, the First–Tier Tribunal.

Ridouts can help you by:

• Working with you to present evidence to Ofsted as to why a Restriction is no longer needed;
• Appealing a Notice to the Tribunal;
• Drafting explanatory letters to local authorities.

Compliance Notices are at the lower end of Ofsted enforcement activity but can be precursors to more severe enforcement action. They are issued when Ofsted believes that a registered person is failing or has failed to comply with a legal requirement imposed on them (e.g. failure to comply with the relevant regulations).  

Ofsted will provide a date by which it expects a provider to comply with the notice and failure to do so can result in a provider being prosecuted.  Failure to comply with a Compliance Notice is a specific ground upon which Ofsted can cancel a provider’s registration.

Ofsted state that there is no right to appeal a Compliance Notice but Ridouts has been successful in having Compliance Notices withdrawn. 

Ridouts can help you by:

• Challenging a Compliance Notice

Any business falling within the scope of registration must be registered with the relevant regulator, be it Ofsted or the Department for Education.

The process of registration can be complicated and lengthy but if a provider prepares itself thoroughly then it should run more smoothly. Our team of specialist lawyers can make sure that this process is as seamless as possible.

If a potential provider’s application to be registered with Ofsted is refused, then this can have serious implications for them as it can prevent them and associated persons from being involved in the running of a children’s home in the future, which can also affect other current registrations.

Ridouts can help you by:

• Guiding you through the application process;
• Reviewing your Statement of Purpose;
• Considering any additional guidance that the regulator might require you to rely upon when applying for registration;
• Assisting with the registration of your manager;
• Making sure that all relevant applicants have applied for the relevant enhanced DBS checks;
• Reviewing the completed application before submission
• Advising in the event of Ofsted refusing to register a service.

If a child is harmed or dies in your care as a result of suspected abuse or neglect then you can find yourself under the spot light of multiple interested parties.

This will include a Local Authority Safeguarding Children Board and Ofsted and providers may find that the police and coroner are also interested.

The primary purpose of a Serious Case Review (“SCR”) is to learn lessons from the situation however, often a finger gets pointed at the professionals who were caring for the child when they died, despite there being multiple party input to that care package.

These processes can be complex, daunting and overwhelming. Ridouts is well placed to advice a provider during a SCR which are often document heavy, detail driven investigations.

Ridouts can help you by:

• Advising providers on the process to be followed;
• Advising providers in relation to their Individual Management Report in order to protect their position (especially whilst there are on-going regulatory and police investigations);
• Challenging aspects of the process which are procedurally unfair;
• Challenging the Overview Report and Executive Summary to ensure they accurately reflect a provider’s position;
• Reviewing documentation requested by the regulators and police to advise on whether there are any areas of potential concern.

Providers may find themselves involved in safeguarding investigations, whether that is through self-reported matters or because third-parties make a referral or allegation.

Enquiries can sometimes lead to difficult, protracted and opaque section 47 safeguarding investigations.  They can lead to embargoes and young people and children being removed from the home. 

Investigations can be highly disruptive, drain morale and leave services financially vulnerable with reputations damaged.

Providers can find themselves subject to investigations which are fundamentally unfair with incorrect conclusions drawn.  Even if the final findings demonstrate there is no basis for the allegation, damage can have already been caused. 

Ridouts can help you by:

• securing early and full disclosure of allegations and helping providers respond to them;
• helping providers to present evidence to challenge allegations, where necessary;
• emphasising that authorities should carry out investigations fairly and swiftly;
• attending meetings to help providers put across their case thoroughly and clearly;
• challenging procedurally unfair processes and procedures.

The death of a child whilst in care is devastating for all concerned. 

An inquest will take place when certain criteria are fulfilled.  The purpose of an inquest is to establish facts.  It is not to apportion blame and the conclusion should not use language that suggests civil or criminal liability.  However, there are conclusions and language used that may have a negative impact on your service, including findings of neglect.

Deaths and inquests can prompt action from the police, commissioners and the regulator and can be used to support a civil claim or criminal action.

Providers can participate in proceedings and often it is beneficial to do so as it allows a provider to access documentation they would not otherwise be entitled to; ask witnesses questions; make submissions on the scope of the inquest and possible conclusions (if legally represented); and minimise the possibility of a Prevention of Future Deaths report (PFD Report) being issued.  This is a report that Coroners have a duty to issue at the end of an inquest if they believe steps could be taken by parties to prevent deaths arising from similar circumstances in the future.  If a PFD Report is issued to you, a response must be provided.   The PFD Report and responses are usually published.

Inquests can also attract media attention.

If managed properly then the risk of damage to your business from negative findings can be minimised.

Ridouts can help you by:

• Securing providers ‘interested person’ status;
• Obtaining disclosure;
• Advising on the evidence;
• Taking witness statements;
• Making legal representations to the Coroner;
• Advising on responses to PFD Reports from the Coroner;
• Advising on the merits of any further contemplated proceedings;
• Help to manage media interest in conjunction with a PR firm, where necessary.

When purchasing or selling a health and social care business you’re not just dealing with bricks and mortar.  All are subject to regulation, contracts and multi-stakeholder interest.  There are many aspects which can help assess the health and value of the business.

Ridouts can help prepare a business for sale.  We can spot issues which may cause concern for purchasers allowing vendors to eliminate the problem ahead of time, or prepare an explanation which could comfort purchasers.

We can organise and arrange documents for a disclosure room, be the central point of contact to field information requests and negotiate warranties.

We can also advise the vendor on whether a purchaser concerns are valid and what impact these may have on the business for the purchaser moving forward which may impact the price the purchaser is willing to pay.

Ridouts also act for purchasers. We help to identify regulatory issues that may affect the value of the business and therefore the appropriate purchase price.  We can provide a report to the purchaser and provide warranties to insert into the Sale and Purchase Agreement (where there is a share sale) or the Business Purchase Agreement (where there is an asset sale).

The team has experience of undertaking health and social care regulatory due diligence in relation to the following types of businesses:

• Children’s homes
• Special Schools
• Foster Agencies
• Care homes for adults (Dementia, learning disabled, Acquired Brain Injury, Mental Disorder)
• Independent hospitals (cosmetic surgery)
• Non-surgical cosmetic treatments
• Dentists
• Medical Devices
• Supported Living

Ridouts is well placed to offer a health and social care regulatory due diligence service which will add value to any acquisition or divestment.