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Amanda Knowles Special Edition

Why it is necessary to end the unfair disqualification of caregivers

Boris Johnson announced the first lockdown on 20 March 2020, it is a date I will never forget. It was the day after my wedding anniversary, and a month since I had learned that Ofsted had refused to register another manager who had been in charge of a children’s home for over six months. This was the second manager application to be refused at this particular home in 18 months. Each one had a clear DBS check, was suitably qualified,  experienced with many years service, and had managed the children’s home in question for several months prior to the fit person interview.

It is the responsibility of the Disclosure and Barring Service to maintain the official list of people barred from working with vulnerable adults and children. They say this aspect of their work involves making fair, consistent and thorough decisions that are appropriate to the behaviour that has occurred and considering the risk of future harm. Ofsted is responsible for the Fit Person Process which is an assessment of good character and suitability to hold a regulated position. People who would not be deemed suitable include individuals listed on the Independent Safeguarding Authority (ISA) list of individuals barred from working with children; a person convicted of certain offences against a child; a person made subject of an order related to the care of children such as a child being removed from their care; or a person whose registration as a childcare provider or manager of a children’s home has been refused or cancelled.

The relevant legislation is The Care Standards Act 2000 which introduced a requirement for managers of children’s homes to be registered with The Care Standards Commission.  The responsibility was transferred to Ofsted in 2007 when its remit was extended to include the registration of children’s homes and the fit person process. This legislation was introduced to create a level playing field between providers of regulated children’s social care in the public, voluntary and independent sector. The requirement for managers to be registered included legal responsibility for the service provided, and disqualification from the children’s workforce as a penalty for applicants who failed to meet the registration criteria in the Act.

Applicants are required to demonstrate they are of good character and have the relevant qualifications, experience and skills. The relevant qualification for registration is the level 3 CYP diploma and if registered the manager has two years to complete the level 5 Managers Award. Fitness is assessed by scrutiny of the information provided by the applicant, background checks and an interview with the inspector allocated to the home.

In some cases, the interview will take place at the home with the inspector only and in others the applicant will be required to attend another venue and a notetaker will be present. The notes are not shared with the applicant for validation at the end of the interview and requests from applicants for a copy of the notes are routinely refused.

At the time the applications referred to in this article were refused I knew that inspectors were no longer informing applicants whether or not they were recommending registration following fit person interviews. The reason for this policy change had been explained to me in response to a query I had raised with a senior Ofsted manager twelve months before:

Regarding feedback after the FPI [Fit Person Interview]. This is within guidance. Previously in situations where it was likely that we would refuse to register a manager (or refuse a registration) the inspector would inform the applicant of the likely outcome. This gave the applicant time to withdraw their application, which they are well within their rights to do and Ofsted have to accept the withdrawal. However, in a small number of circumstances we come across people who we do not believe should be operating within social care and want to be able to ‘refuse’ them without giving them the opportunity to withdraw. By not giving immediate feedback to anyone, this allows parity….

Before this, I had not seen or heard an announcement to this effect even though I was a regular attender at the quarterly provider forum hosted by Ofsted for almost a decade, and I had not previously paid attention to the legislative small print. I was shocked that an applicant who had worked in children’s homes for over twenty years, and in the role of responsible individual for twelve of these, was refused registration after managing a home for seven months. No steps had been taken to remove the applicant from the role of the responsible individual or the duty to supervise the management of the home but the reasons given for refusal related to events that occurred during this period. Surely this applicant was not on an unofficial ‘barred’ list being operated by Ofsted?

Freedom of Information requests for the notes taken at the fit person interview were submitted but these were refused for the legally untested reasons given below,  and in any event the reply did not arrive until after the 28-day appeal deadline. The enormity of this refusal and the immediate disqualification from the children’s workforce this carries with it should not be underestimated and I was worried about this person’s wellbeing when I became aware of this. The stress of unemployment without rights, financial hardship, a lost career, and reduced employment prospects was enough to tip even the most resilient person over the edge and lead to a nervous breakdown or worse.

In another case I am familiar with, the applicant had been in post for seven months when her application was refused. The employer had completed all safer recruitment checks and the manager took up the position in mid-July 2019. In the period leading up to the fit person interview that took place two weeks before Christmas, young people at the home were reported to be making good progress, feedback from social workers was positive and Regulation 44 reports did not raise any concerns.

At the fit person interview the applicant was asked to explain the reasons for the disciplinary sanction declared on the application form and was made aware of another disciplinary sanction that was disputed. But again, Ofsted refused the Freedom of Information request for the notes from the fit person interview for the following reasons:

Section 7 of schedule 2 of the Data Protection Act 2018 explains where the data controller has “functions designed to protect the public” disclosure may be restricted. This would apply where a government department has a function in either of the two following areas:

  • To protect the public from unfitness or incompetence
  • To protect persons other than those at work against risk to health and safety arising out of or in connection with the actions of persons at work

Ofsted is not required to provide personal data where doing so would be likely to harm the proper discharge of those functions…. We are satisfied that disclosure would harm the proper discharge of our regulatory functions and consequently are refusing your request at this time.

A few days after the fit person interview two Ofsted inspectors completed an interim inspection at the home and rated it to have improved effectiveness, but two months later the applicant was disqualified from working in the children’s workforce and refused a waiver to work in any capacity.  As lockdown loomed, the applicant was unemployed, the employer had lost the services of an experienced and suitably qualified manager, the children had suffered another loss, and the team had lost their leader.

What unfolded was a disturbing chain of events driven, as a result of deterrent regulation in a commercial environment that has outpaced relevant legislation in my opinion. The Care Standards Act 2000 pre-dates the regulators’ code and when it was written I doubt that the commercial value of good Ofsted ratings, and the routes some might take to achieve this were fully appreciated. It is the difference between financial success and financial ruin, and this has the potential to drive unethical regulation and business practice.

Registered managers have a legal responsibility to ensure compliance which includes safer recruitment and a duty to ensure children living at the home are suitably matched, but managers are easily overruled by the power of more senior managers who are required to maintain staffing levels and high levels of occupancy to ensure financial targets are met. In other words, senior managers may be willing to throw lower ranking mangers under the bus for financial gain or blame managers for shortfalls they had no control over to save themselves from poor Ofsted ratings or prosecution.  It is also possible that inspectors may be willing to overlook serious regulatory shortfalls for a fee as it is not beyond the realms of possibility that inspectors may have financial interests in the homes they inspect or other related businesses.

It was not until 2008 that the regulators’ compliance code was introduced and a further six years before it was replaced in 2014 by the current code which was developed following consultation with national regulators, local authorities, businesses and trade bodies. The code provides a flexible, principles-based, framework for regulatory delivery that supports and enables regulators to design their service and enforcement policies in a manner that best suits the needs of businesses and other regulated entities. The code reads well but it bears no resemblance to regulatory practices that I have witnessed in recent years. Not least, the secretive nature of decision-making processes, the lack of transparency and misuse of power that has created the potential for unfair decision making undeniably evident in this unannounced policy change.

When you stop to think about this, the ramifications for individuals, businesses and children’s social care are enormous, and it is for these reasons that I set up the campaign to ‘End the Unfair Disqualification of Caregivers’. It cannot be right that a person’s career is taken away by a process that denies the right to see the evidence on which that decision has been reached. Or that justice relies on an individual’s emotional and financial ability to pursue this through an equally secretive tribunal process that will cost in the region of twelve to fifteen thousand pounds in legal fees.

Despite these odds, the second refused applicant was fortunate enough to be able to make a tribunal appeal because she had familial access to affordable legal representation. During the hearing significant gaps were identified in the employment law knowledge of inspectors responsible for the decision to disqualify but the panel still did not think the applicant should be rewarded with manager registration. The applicant was judged to have failed to be sufficiently candid about highly questionable historical disciplinary action which resulted in the lowest sanction possible at the end of October 2017. At the time she was not made fully aware of the allegations against her or provided with the evidence on which these were based. A first written warning to be held on file for six months until 30 April 2018. The judge also said it was evident from those well qualified to speak over two years later, she had undoubted childcare skills which should not be ignored and that imposing a permanent ban on playing any role in her chosen career would be excessive.

Whether the weight given to this lack of candor was proportionate is debatable given the way Ofsted phrased the questions at the fit person interview and in view of the fact that the disciplinary was unfair and  the sanction was spent. It is also noteworthy that certain criminal offences are filtered by DBS, and an applicant is not required to declare them. But the tribunal decision is final and, unlike a criminal conviction disqualification is not time limited and hearings are not recorded. Whilst this prevents repeat appeals, it also prevent evidence from being revisited and eradicates the opportunity for learning, and even if a waiver is granted it is job-specific which means reapplying for permission to change jobs.

It is also of significance that during this hearing the solicitor for Ofsted drew the court’s attention to case law that would have made the whole process a costly pointless exercise because the decision relates specifically to the home where the applicant was employed. In other words, if the vacancy had been filled the case would have been automatically dismissed. But on this occasion, the vacancy had not been filled in the months preceding the hearing.

There was already a national shortage of suitable managers affecting the sector when lockdown began and before Ofsted registered 177 new homes of which over fifty percent were applications from new providers with no background in children’s services. All that is required to open a new children’s home is an applicant with a level 3 diploma in children’s residential care who has been employed in a supervisory position for two years and Ofsted’s blessing.

It is not that I am opposed to rules or regulation, but against this backdrop, recent calls for more regulation and plans for Ofsted’s reach to be extended ahead of the Independent Care Review promised by Boris Johnson risk mistakes. It is not that I am opposed to rules or regulation, it is the current interpretation and application of these, the lack of transparency and secretive decision-making processes, and above all the unchecked power in the hands of inspectors who are well protected by Ofsted’s impenetrable defences that deeply concern me. Ofsted have recently declined freedom of information requests for its policy on inspectors working for companies operating children’s homes at the same time they are working for Ofsted and data related to the disqualification of manager by region and reason.

Surely, given the level of responsibility located in the role of the registered manager and the impact of this on the lives of the most vulnerable children in society it makes more sense for the professional status of registered mangers to be raised, for them to be registered in the same way as social workers and to disentangle the fit person process for managers from all commercial interests, ethical or otherwise. I would also strongly suggest the registration of children’s homes should include a fit person process for share-holder directors because in the commercial world this is where the real decision-making power that affects children’s lives is located. This would also eradicate the need for the highly questionable ‘unofficial barred list’ deployed by Ofsted.

To find out more about this campaign please see here.

Amanda Knowles MBE

21 February, 2021