There has been a noticed increase in Ofsted’s focus on provisions that are operating without registration in the social care sector for children. However, the situation is not always clear cut as to whether an organisation is required to be registered. Ofsted’s national director for social care, Yvette Stanley, has recently issued a blog outlining the differences between unregistered and unregulated provisions.
Ofsted do not regulate providers who provide support to children (usually aged over 16) to live independently, for example in “supported accommodation”, rather than receiving full-time care. This type of provision gives a much higher level of independence to the children, in comparison to young people living in a children’s home. For example, a few indicators that the care you provide is unregulated include: the young people can leave the premises without permission from the provider; the young people have full control of their finances; and there are no sanctions policies for the young persons, apart from normal house rules and legal sanctions that would be imposed for an adult. There is a clear difference between simply providing support to children, compared to providing care.
Consequently, a provider can legally provide this type of provision and are not required to register with Ofsted. It is the duty of local authorities to ensure unregulated settings are suitable and providing beneficial functions to young people.
If an organisation is providing some form of care, alongside accommodation to young people, they usually must register with Ofsted as a children’s home. Organisations may be committing a criminal offence by providing this service without registration. ‘Care’ is not defined, as a range of factors will determine whether or not you are actually providing care to young persons. A key indication that you will need to register with Ofsted is if the young persons are under constant supervision; this is more than likely to be considered to be providing ‘care’.
Ms Stanley makes clear in the blog that it is a myth that organisations only have to register if they provide care only for 28 days. It is irrelevant how long you are providing care and accommodation for. The sole fact they are provided together means that you must register with Ofsted. This is likely to be where organisations fall foul of the legislation, where they are required to put in place short-term arrangements or crisis responses when a child is in need. Organisations who are unregistered must recognise the line between providing accommodation and care in these circumstances, and consider carefully whether they are legally able to provide the service required.
If the young people in question are under 16, it is likely a higher level of care is necessary and therefore registration is likely to be required. If care is provided alongside accommodation for children over 16, registration is likely to be required. Some over 16s may be less independent than others and still require a higher level of care. This highlights the fact that registration is context dependant.
What action are Ofsted taking?
Ofsted’s regulatory inspectors have been visiting suspected unregistered settings, interviewing providers and clearly informing people when they need to either apply to be registered or stop operating. Ofsted are considering their regulatory powers in order to effectively prosecute providers that are persistently avoiding registration.
How can we help?
It is vital that organisations carefully consider the types of services they are providing to young persons and if in doubt, seek specialist legal advice as to whether they are required to be registered. If you find yourself subject to enforcement action or a criminal investigation by Ofsted due to concerns that you are operating an unregistered children’s home, you should seek specialist legal advice as soon as possible in order to protect your interests.
At Stephensons, we have a team of specialist lawyers who provide advice and representation to registered social care providers in relation to compliance, inspections, enforcement action and appeals to the first-tier tribunal (Health, Education and Social Care Chamber). For more information, please contact us on 01616 966 229.
By Francesca Snape, associate solicitor and Katie Wilson, student