Concern over change to Ofsted appeal process

• Officer who made decision to cancel registration will review setting’s objections
• Ofsted didn’t consult sector

Early years settings have raised concerns about changes to the way Ofsted deals with the internal objections process when a decision is made to cancel a provider’s registration.

An update to the Early Years Compliance Handbook last month means the inspectorate has altered its procedures in a way that has led providers to question the fairness and impartiality of the process.

The same senior officer who made the original decision about a notice of intention to cancel a provider’s registration now reviews the decision. Previously it was a senior officer who was not involved in the decision-making process.

The handbook now states, ‘If possible the senior officer who made the original decision considers the information provided in the objection to the notice of intention.’

This is a reversal of the previous Ofsted guidance.

When the handbook was published in 2015, it stated, ‘Objections are considered by a senior officer who was not involved in the decision-making process leading to the issuing of the notice of intention.’

One nursery owner, who did not want to be named, said they were uncomfortable with Ofsted changing the process without consulting the sector and without explicitly communicating the alteration.

They were concerned that the change weakens the internal objections process.

The provider told Nursery World there should be the ability with any challenges of this kind, or within the wider complaints procedure, to have a full and thorough review with someone not involved in the original decision-making process.

When we asked for the reasons behind the change, an Ofsted spokesperson said, ‘Ofsted has made the changes to clarify the difference between the internal objections process and the external appeal rights that all providers have, once we have reached our final decision.

‘The objections process gives the provider the opportunity to share with Ofsted any further information they wish us to take into account before we reach our final decision.

‘The provider also has an opportunity for an independent review of our final decision through the appeal process, which is carried out by the Care Standards Tribunal and independent of Ofsted.’

CASE STUDY

Markel Law, a solicitor firm representing a childminder who is challenging the cancellation of her Ofsted registration, said providers face potentially unfair action by Ofsted because the person who made the decision will also be the person who reviews any objections made.

Solicitor Lauren Wilson said, ‘Markel Law has been following this development for some time. Proposals for cancellation of a registration can be a serious issue for the many Markel clients that provide care services and we must make sure the process adopted by Ofsted doesn’t compromise their position.’

Using an example from her caseload, the solicitor said Ofsted raised concerns about childminder Ms A’s practices following an inspection, including that she did not have robust safeguarding procedures in place, and consequently sought to cancel her registration.

Ms Wilson said, ‘When Ofsted proposed to cancel Ms A’s registration, they issued a “notice of intention”. This contained the reasons for this proposal. Upon receipt, Ms A was advised she may make “objections”. These could either be in person or in writing.

‘The process following making those objections is simple: the objections are considered by Ofsted who then give notice of their decision; to confirm whether they will cancel Ms A’s registration or not.’

The solicitor said that under the previous compliance system, when a senior officer who was not involved in the original decision-making process leading to the issuing of the notice of intention would consider objections, this was ‘broadly fair’.

However, the change means that the manager who made the original decision to cancel Ms A’s registration will review their own decision.

‘It seems to become a tick-box exercise formality, as opposed to allowing a provider any real opportunity of defending a decision before having to take it to an appeal before a tribunal,’ Ms Wilson said.

EXTRA PAPERWORK

Stella Ziolkowski, director of quality and training at the National Day Nurseries Association (NDNA), said, ‘The Compliance Handbook deals with serious issues surrounding care and safeguarding and is vital in maintaining standards in the early years.

‘While we advocate that safeguarding children is paramount and changes may be necessary for the protection of children, these changes were not clearly communicated to the early years sector and neither were the reasons why they were made.

‘Rather than adding clarity, this could be adding an extra layer of cumbersome bureaucracy. Having the same officer revisit a case on which they have already made a decision appears to be just an exercise in additional paperwork, potentially forcing that case onto tribunal.

‘This may unfortunately put settings off engaging in an open dialogue with Ofsted should they feel an unfair decision has been reached.

‘This seems counterintuitive and not aligned to the ethos of the education inspection framework to reduce the admin burden.

‘It is important that childcare providers understand and have confidence in the system.’

Neil Leitch, chief executive of the Early Years Alliance, said, ‘It’s a huge effort for a provider to appeal against a decision to cancel a registration so it’s only right that someone independent, but informed of the facts of the case, is tasked with looking into an appeal.

‘Most people would be surprised to find their appeal investigated by the same person who made the original decision, so this feels like a pretty fundamental change to be made via an administrative update.

‘The fact is we don’t know why these changes have been made or what Ofsted hope to achieve in making them. If this is a result of a lack of resources then Ofsted should be clear that that is why this is happening. Ushering in this change in such a way risks eroding trust between providers and inspectors at a time when many feel the process of objections, complaints and appeals is already opaque.’

Commentary from NDNA associate and trainer Audrey Harris

I feel the change in the wording regarding the objections process in the compliance handbook is worrying and appears to simply serve to draw out the appeals process should a provider disagree with an Ofsted decision.

The compliance handbook is of course a vital piece of legislation as maintaining standards of care and safeguarding is at the forefront of all quality early years practice and all interactions with Ofsted. Appeals were previously looked at by a differing senior officer, which I feel provided an alternative viewpoint on any disagreements.

Of course, this viewpoint came from within the same organisation; however, I feel it is always comforting to know that Ofsted is a flexible group of professional individuals working to the same guidelines, rather than a faceless organisation with one point of view. In a world where an abundance of different types of early years providers exists (childminders, large nurseries, PVI settings, etc.) it is helpful to know that different inspectors also exist.

The framework is statutory – that, of course, is never up for debate – and the fundamental factors within it must be adhered to at all times; however, views on the best way to deliver early years care do differ and do provide families with choice.

Having the same officer rehash a case on which they have already made a decision appears to be just an exercise in additional paperwork, forcing that case onto tribunal. This may unfortunately put settings off engaging in an open dialogue with Ofsted should they feel that an unfair decision has been reached.

I feel the new inspection framework finally appears to be moving towards inspecting early years settings in the way in which all quality providers wish to be inspected; this change, however, seems to close any dialogue which can be had in the event of a disagreement or indeed a ‘clash of personality’.

Providers are then forced into an external tribunal should they wish to appeal. Tribunals should be overseen by two specialist members with professional experience in the field, but as we in early years know, experienced frontline staff are not easy to find so it is a worry that cases may not be overseen by early years specialised panels.

There is, of course, a danger that any prolonged dialogue with Ofsted, which fails to be quickly resolved and which effects a provider’s ability to accept funding, will result in loss of earnings and therefore closure.