Supported Accommodation – Refusal of service manager registration by Ofsted

For many service managers of supported accommodation undertakings, now maybe a daunting time. Whilst some individuals will be awaiting the outcome of their Ofsted registration application with baited breath, others may be mulling over and contemplating how to respond to the Notice of Proposal to refuse registration (“Notice”) they have received from Ofsted. For those individuals who have received a Notice from Ofsted, please do not be disheartened! This article is for you and will demystify the Notice process and provide insight and helpful tips to respond to the Notice.

Regulation

As of 28 October 2023, providers and service managers of supported accommodation undertakings for looked-after children and care leavers aged 16 and 17 years of age (“Care Leavers”) are required to register with Ofsted and become subject to inspection, and regulation, in connection with Ofsted’s new quality standards.

Previously, and prior to the introduction of the Supported Accommodation (England) Regulations 2023 (“Regulations”), the supported accommodation sector was unregulated and Care Leavers were placed at potential risk of harm. For further information regarding the Ofsted registration process and the Regulations in general, please see our previous article located here:

Service Manager Registration

Regulation 12 of the Regulations states that Ofsted will only register an individual as a service manager if:

• The individual is of integrity and good character
• The individual has the appropriate skills to manage the supported accommodation undertaking effectively with reference to the number and geographical scope of the premises, its statement of purpose, and number of children accommodated
• The individual has the appropriate experience which must include a period of at least two years working in a position relevant to the residential support of children or adults within the preceding five years before the application is received by Ofsted
• The individual is mentally and physically fit to manage the supported accommodation undertaking
• The individual is able to provide Ofsted with proof of their identity, including a recent photograph, two written references, a full employment history including details of any gaps in employment and the reason for leaving their last employment position if working with children or vulnerable adults, documentary evidence of relevant qualifications, and a satisfactory enhanced DBS with barred list(s) check.

For any Individuals currently considering becoming an Ofsted registered service manager for a supported accommodation undertaking, and has concerns regarding meeting the above stated criterion, legal advice at an early stage can provide clarity and prevent a premature application being submitted and subsequently refused by Ofsted.

Notice

Where Ofsted deems an individual not to meet one or more of the above, Ofsted will deny the registration application and issue a Notice to the individual. The Notice will set out the reasons for refusing registration and provide the individual with 28 days to provide a written response to the Notice in accordance with section 18 of the Care Standards Act 2000 (“Act”).

Individuals should be aware that if they do not respond to the Notice, Ofsted will issue a Notice of Decision in accordance with section 17 of the Act and a new application will need to be submitted if an individual decides to reapply for registration. Whilst this may not sound too daunting for some individuals, apart from paying the Ofsted registration fee again, a Notice of Decision may have implications for those individuals who are registered nurses or social workers and professionally regulated by the Nursing and Midwifery Council and Social Work England. This is worth bearing in mind and legal advice should be obtained, where able.

Responding to the Notice

The Notice will set out, in some detail, the reasons for Ofsted’s refusal of registration and this will enable an individual, or a legal representative on an individual’s behalf, to respond to each of the points raised. Some helpful and practical hints when responding to the Notice include:

• Remember to address each of the points raised. If one of the points is not addressed, it is likely a Notice of Decision will be issued. It is therefore worth going over a response again, once written, or asking a friend/family member or colleague to do the same to ensure that every point has been covered
• Take the time to complete and submit a full and robust response to the Notice. Do not rush the response as something important may be overlooked. An individual is afforded 28 days to respond to the Notice so use this time effectively
• If Ofsted has misunderstood what was said during the fit person interview or has incorrectly recorded their inspection findings, do not be afraid to state as much within the Notice response. Where able, provide corresponding documents to this effect or a narrative setting out what was actually said
• Remember, most importantly, that Ofsted will actually make their decision once the 28 days to respond to the Notice have passed. Therefore, ensure that the current position is demonstrated and all supporting documentation provided as evidence.

The above points are also applicable to providers responding to a Notice of Proposal to refuse registration of a supported accommodation undertaking.

As alluded to above, the aim of responding to the Notice is to prevent a Notice of Decision being issued by Ofsted. Therefore, the strength of evidence submitted by an individual is determinative of the outcome and sufficient time should be spent completing and submitting a robust response to Ofsted. It is worth noting that Ofsted can decide to no longer pursue a Notice at this stage and not every Notice develops into a Notice of Decision.

Naturally, legal representation can assist an individual to respond to a Notice and submit robust, persuasive written representations to Ofsted’s assertions along with accompanying advice on relevant documents to be appended to the response. Legal representation can take many shapes and forms and can include:

1. Drafting the representations submitted to Ofsted and providing advice on the documents to be appended
2. Providing advice solely on the documentary evidence to be appended to the representations drafted by an individual
3. Reviewing and supplementing an individual’s draft response to Ofsted
4. A mix of the above.

Obtaining legal advice at this stage can make the difference between a Notice turning in to a Notice of Decision as well as providing an individual with an objective viewpoint and reducing the stress and anxiety they may be experiencing as a result of a Notice being issued against them.

What Happens if a NOD is issued?

If Ofsted decides to issue a Notice of Decision, an appeal can be submitted to prevent the Notice of Decision from taking immediate effect. This would involve filing an application and supporting documents with the Care Standards Tribunal within 28 days from the date of Ofsted’s decision. Given the enormity of an appeal however, and the associated expense, legal advice should be obtained in the first instance.

Conclusion

Whilst receiving a Notice from Ofsted can be daunting, this article has hopefully demystified the process and provided greater understanding to those service managers in this situation.