Ofsted has a wide range of enforcement powers at its disposal and it is not afraid to take serious action in response to perceived areas of non-compliance. Recent figures from Ofsted’s annual report for 2023-24 demonstrate 19% of social care settings inspected saw Ofsted taking more than one enforcement action against them within one year – a 3% rise on figures from 2022-23.

The types of enforcement action Ofsted can take against registered providers include:

  • Making a recommendation for action
  • Raising a requirement
  • Imposing or varying conditions of registration
  • Serving compliance notices
  • Suspending registration
  • Restricting accommodation
  • Cancelling registration

In order to take more serious enforcement action, such as changes to conditions of registration, suspending registration or cancelling registration, unless the concerns represent a high risk as defined under section 20 or 20B of the Care Standards Act 2000 (“CSA 2000”), Ofsted must serve a Notice of Proposal (“NOP”) in the first instance.

The vast majority of providers will likely have never received a NOP, but if they do end up receiving one it is important they understand what they are, how they can respond and the potential outcomes so they can take prompt, decisive action to protect their service.

This article covers enforcement action pursued by Ofsted via NOPs under the Social Care Enforcement Policy and underpinned by the CSA 2000.

What is an Ofsted Notice of Proposal?

NOPs form part of Ofsted’s civil enforcement powers conferred under the CSA 2000. A NOP may propose to do any of the following in relation to a registered service provider or registered manager:

  • Impose, remove or vary conditions of registration (section 13 CSA 2000);
  • Suspend registration (section 14A CSA 2000); or
  • Cancel registration (section 14 CSA 2000)

NOPs can also be issued in registration situations where Ofsted proposes to refuse a new registration application for a provider or manager, proposes to grant registration subject to conditions which are not agreed or to refuse an application to remove or vary conditions relating to an existing registration.

In an enforcement context, Ofsted uses NOPs as a means of forcing a provider or manager to make improvements in order to protect people who use services from harm and the risk of harm. As such, they are usually issued after an Ofsted inspection has taken place and are based on the inspection findings. Providers and managers have the opportunity to submit written representations to Ofsted in response to a NOP which will be considered by Ofsted before a decision is made in relation to the proposed action.

A NOP will be served in the form of a letter and is served by Ofsted either in person, by courier or by post (see section 37 CSA 2000). Ofsted is required to provide reasons for its proposal (see section 17 CSA 2000) and these will be set out in the NOP.

Why should providers/managers consider responding to NOPs?

A NOP demonstrates Ofsted has serious concerns about a provider or manager.

If a provider or manager fails to convince Ofsted they have addressed the concerns or that the basis of the NOP is unsound, Ofsted can proceed to a Notice of Decision (NOD). In addition, if a provider or manager doesn’t respond to a NOP it will automatically be adopted by Ofsted and a NOD will be issued. Once a NOD is issued, the matter is taken outside of Ofsted and the provider or manager will have the opportunity to appeal the NOD through the First-tier Tribunal. The appeals process can be costly and time consuming and if a provider or manager does not appeal a NOD by the deadline or their appeal fails, the action outlined within the NOD will take effect.

In particular, if a provider or manager has received a NOP in relation to the cancellation of registration (or the refusal of registration to become a manager) related to a children’s home or supported accommodation and the cancellation (or refusal) subsequently takes effect, certain disqualification regulations may apply. The disqualification regulations prevent any relevant person from privately fostering a child or from carrying on, or otherwise being concerned in the management of, having a financial interest in, or being employed in a children’s home in England without prior written consent from Ofsted to waive the disqualification. The disqualification regulations apply to anyone who has been concerned in the management of, or had a financial interest in, a children’s home or supported accommodation service that has had its registration cancelled by Ofsted. Although the disqualification relates only to children’s homes, Ofsted will take the circumstances of the disqualification into account when assessing an applicant’s suitability to provide any other type of children’s social care establishment or agency such as a supported accommodation undertaking.

Therefore, there is a lot at stake and it is always best to begin addressing the matter at the earliest opportunity (i.e. following receipt of a NOP). Even if a provider’s or manager’s representations are  unsuccessful at the NOP stage, submitting representations can buy them some time to address issues of concern. This is of particular value to NOP recipients who accept the issues raised and are working to implement improvements. The representations process also assists a provider or manager in setting out their case clearly in anticipation of any potential subsequent appeal to the Tribunal.

How can a provider respond to a NOP?

Providers and managers have 28 days from the date of receipt of a NOP to submit written representations to Ofsted.

In Ofsted enforcement situations the burden of proof is on Ofsted to demonstrate that at the time a decision is made, the proposed action is reasonable and proportionate.

The representations may include factual challenges against the information relied upon by Ofsted to justify the action, legal challenges against the proportionality of the proposed action, updates on the current position at the service and evidence supporting assertions made.  It is essential to cover off every aspect of the NOP in detail and with supporting evidence, so far as available, given the propensity of the decision-maker to look for any perceived gaps in the representations to justify adopting the NOP. In particular, the provider or manager will need to show any improvements are embedded and subject to proper oversight to prevent reoccurrence.

As well as submitting written representations, the provider/manager can also present their representations in person or by video call. This must be requested through the written representations. Some people find this process helps them solidify their submissions and the process enables Ofsted to ask questions if they require clarification on the information presented. This is not an opportunity for either party to challenge one another.

An important point to note is that Ofsted should be basing any decision on whether or not the decision is proportionate, taking into account the position of the provider or manager at the time the decision is being made. Therefore, any improvements made by the provider or manager must be considered by the Ofsted decision-maker. With that in mind, it can be argued that Ofsted should be re-inspecting a service to assess any changes and improvements made in advance of issuing a NOD.

How will Ofsted respond to NOP representations?

Following receipt of representations, Ofsted can either:

  • Uphold the written representations and send a representations outcome letter confirming the matter will not be proceeding to a NOD, or
  • Not uphold the written representations and issue a NOD.

Ofsted should carry out a new assessment of a service prior to making a decision, particularly if the representations have focused on improvements having been made at the service since the assessment prompting the NOP took place. However, this is not guaranteed. A failure by Ofsted to reassess a service prior to making a formal decision can be referred to in any subsequent Tribunal appeal.

There is no statutory requirement for Ofsted to respond to representations within a certain timeframe.

 

When will a NOD take effect?

It is important to note that a NOP is, as it is described, only a proposal.

A NOD adopted after a NOP does not take effect immediately. It will only take effect (if at all) when a final determination has been made in relation to the matter. This may be either:

  1. If a NOD has been received and the provider or manager does not appeal the decision to the Tribunal;
  2. If an appeal has been made to the Tribunal and the provider or manager either withdraws their appeal, has it struck out or they lose the appeal at a final hearing.

Providers and managers should note that there is ample opportunity to persuade Ofsted that the proposed action is no longer required and the NOP representations process is the first official way to do this. Even if a NOP is adopted and the matter enters the formal Tribunal process, there is plenty of scope for negotiation along the way.

 

Will Ofsted publish NOPs?

Ofsted is required by legislation to notify all local authorities in England and Wales when they take certain enforcement action against social care providers or managers.  This includes issuing:

  • NODs to cancel or suspend registration; and
  • Notices to restrict accommodation.

There is no statutory requirement for Ofsted to disclose the fact that a NOP has been served. This is not surprising given NOPs may be withdrawn or not adopted by Ofsted – they are only proposals, not a final decision. However, in practice Ofsted has been known to inform local authorities of proposed enforcement action at this earlier stage.

 

How can Gordons Partnership help?

At Gordons Partnership we have an experienced team who have successfully represented providers and managers through the Ofsted NOP and NOD processes. We are experienced in reviewing, assessing and putting forward the strongest case possible on behalf of our clients both at the written representation stage and before the First-tier Tribunal.

We regularly assist providers through all stages of the Ofsted enforcement process as well as with registration matters, complaints and factual accuracy challenges. Given the time-sensitive nature and potentially severe consequences of Ofsted enforcement action, we encourage providers and managers to seek legal assistance as soon as possible.

If you’ve received an enforcement action letter or notice from Ofsted and are seeking legal support, please don’t hesitate to contact us on 01483 451 900 or email us at sols@gordonsols.co.uk. Our team would be happy to help.

 

About the Author

Samantha Burges

Senior Associate Solicitor