Receiving a Notice of Proposal from Ofsted can be a stressful time for Providers, not least because it indicates that Ofsted has serious concerns about a service. Understanding what a Notice of Proposal is, its legal impact and how to respond can help Providers move past the initial panic mode more quickly and enable them to focus on tackling the issue at hand. While a Notice of Proposal can lead to serious consequences, there is a lot Providers can do to avoid the proposed action ever taking effect.
What is a Notice of Proposal?
A Notice of Proposal (“NOP”) represents one of the civil enforcement powers afforded to Ofsted under the Care Standards Act 2000 (“Act”). It indicates Ofsted’s intention to take certain enforcement action against a provider as a result of specific concerns. Such concerns will usually be linked to compliance with relevant regulations such as the Children’s Homes (England) Regulations 2015 for children’s homes providers.
Section 17 of the Act sets out the types of action Ofsted can take through a NOP, this includes:
- Cancellation of registration;
- Suspension of registration (or extension of a period of suspension);
- Imposition of conditions of registration (e.g. preventing future admissions without Ofsted’s consent or requiring the regular provision of information to Ofsted);
- Variation of conditions of registration (e.g. by amending the number of children authorised to be accommodated at a service); or
- Removal of conditions of registration
Such actions can be in relation to a Provider’s registration or a registered manager’s registration.
Ofsted is required to provide reasons for its proposal in the NOP letter itself to help the recipient understand the case against it and afford it the opportunity to respond fully. A NOP will usually follow an inspection where serious and/or multiple concerns around regulatory compliance have been identified.
Providers should note that at the NOP stage the letter is a proposal, not definitive action, albeit one that Ofsted wishes to pursue. The proposed enforcement action will not take effect (if at all) until the final outcome of the matter is known. There is plenty of scope to persuade Ofsted (and any subsequent Tribunal if the matter progresses to an appeal) that the action is not required.
Responding to a Notice of Proposal
Providers have 28 days from the date of receipt of a NOP to submit representations to Ofsted (see section 18 of the Act). This is a statutory deadline and must be adhered to. Ofsted has been known to grant extensions to this deadline in exceptional circumstances but providers should not rely on getting an extension if one has not been expressly agreed to in writing by Ofsted.
If a Provider fails to submit representations within the deadline, Ofsted will automatically issue a Notice of Decision (“NOD”) upholding the proposed action.
Providers should carefully consider how they intend to approach the representations, the content of which will be case-specific and depend on the concerns raised by Ofsted. The general focus should be on reasons why the NOP shouldn’t be adopted and, depending on the circumstances, the representations may:
- Challenge the factual basis of reasons relied upon by Ofsted;
- Challenge the legal basis of the proposed action;
- Challenge the proportionality of the proposed action; and/or
- Detail improvements made to the service that address concerns raised.
Providers should appreciate that any final decision made by Ofsted (and subsequently a Tribunal) must be based upon the facts of the case at the date of the decision. In short, the means any action taken to address concerns raised in the NOP should be put forward and must be taken into account by Ofsted in its consideration of the representations.
In addition to written representations, a Provider also has the option of presenting its written representations in person via video or telephone call. This must be requested in the written representations. The purpose of this is to present the written representations that have already been submitted. This is not a contentious meeting and Ofsted cannot cross-examine the Provider or challenge the information communicated, nor can the Provider challenge the decision-maker. Ofsted may ask questions if it requires clarification on any particular points. Providers can take a representative to the meeting, if this person is a solicitor, they can advise on legal points that may affect the decision but there will be no legal debate.
What Happens Next?
Once a Provider’s representations have been submitted it will be up to Ofsted to make a determination. There is no statutory timeframe in which Ofsted is required to respond to a Provider’s representations.
If Ofsted upholds the representations, deciding not to pursue the enforcement action any further, it will send a representations outcome letter to the Provider confirming this.
If a Provider’s representations are unsuccessful Ofsted will issue the Provider with a NOD. Once a NOD is issued, the final decision-making power moves away from Ofsted and into the hands of the First-tier Tribunal. Again, the Provider will have 28 days from the date of receipt of the NOD to submit an appeal to the Tribunal. There is still scope for resolution through such proceedings if a Provider approaches it in the right way.
Ideally Ofsted would carry out a re-inspection of a service following receipt of NOP representations to assure itself of the position of the service at the time of making its decision. If any compliance notices were issued around the same time as the NOP Ofsted will be carrying out re-inspection in line with the timeframes provided in those and this could be before any determination has been made on the NOP. However, re-inspection is not a given and Ofsted could issue a NOD without re-inspection. Such action is premature and exposes Ofsted to additional challenge through the appeals process.
The issuance of an Ofsted NOP can have serious consequences for Providers. Of particular note are the knock-on implications of certain disqualification regulations related to the cancellation of a provider’s registration. Legislation states 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 relevant persons can seek consent from Ofsted allowing 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. At Ridouts, we have advised providers on steps that can be taken to avoid the impact of this legislation and successfully negotiated alternative solutions with Ofsted.
On receipt of a NOP Providers should be prepared to take prompt and decisive steps to help avoid the proposed action ever taking effect as well as any knock-on impact. Responding thoroughly at the NOP stage can help avoid additional costs further down the line.
Ridouts has extensive experience assisting Providers put their best-case forwards through the representations process. If you have received a NOP and would like advice, do not hesitate to give Ridouts Professional Services a call on 0207 317 0340 or send us an email at firstname.lastname@example.org.