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What should an early years nursery do when facing criticism or action by Ofsted following an inspection?

Nurseries can often feel threatened and take exception to the assessment. This can result in spending excessive amounts of time on fighting a relatively small issue rather than focusing on achieving compliance with Ofsted’s requirements.

Sometimes, nurseries may need to seek expert legal advice in relation to Ofsted. It is a niche area, but one which Stephensons has years of experience in, handling both civil and criminal cases.

Ofsted’s remit for assessing nurseries covers issues such as safeguarding children, staff ratios and training, the physical environment, nutrition along with disclosure and barring checks. It provides guidance to nurseries which, while clear in some parts, can also appear subjective. Differing interpretations of the guidance by Ofsted inspectors equally generates problems for nurseries’ registered owners and managers.

Ofsted has become increasingly severe in its dealings with early years nurseries and often inconsistent when using enforcement policies, especially in criminal matters. This has included inspectors telling owners and managers they are under suspicion of criminal offences but then failing to issue cautions correctly in line with the Police and Criminal Evidence Act. We are aware of instances where someone under caution does not understand what that means, has not been allowed legal advice or to record and confirm any relevant conversations.

Action to take following an Ofsted inspection

  • If your nursery either “requires improvement” or is deemed “inadequate”, appoint an independent consultant to obtain practical advice on how your nursery can improve. The National Day Nurseries Association (NDNA) can provide guidance on this.
  • If you receive a Welfare Requirement Notice – usually issued after a breach of regulations – this will outline the points to address in order to comply. Seeking legal advice at this point will help in making representations to Ofsted.
  • Receiving a notice of intention to cancel registration is certainly a trigger to seek legal advice. Ofsted outlines the possible enforcement action along with a deadline to make representations. Having a lawyer on your side, who is able to reference the relevant legislation and Ofsted guidance, is essential. These representations can delay further action while you make improvements to prevent Ofsted proceeding.
  • A notice of decision to cancel registration issued to your nursery means you need to go through the full legal appeals procedure. A lawyer will advise if you have grounds to appeal and the prospects of succeeding. Your solicitor will also lodge an appeal if necessary and assist you through the court process.

At the appeals stage, a nursery often needs to have practical advice and the help of a consultant to become compliant while Ofsted continues to visit and conducts an inspection before the final appeal hearing. This is vital, as the court will consider the nursery’s compliance with regulations on the date of appeal rather than when the notice was first issued.

If you need further information or advice in relation to Ofsted enforcement or appels contact us on 0175 321 6399.

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