The Care Quality Commission has made headlines recently with the focus on inadequacies in its processes as a regulator and its failure to spot sub-standard and even dangerous levels of care. Its fellow regulator Ofsted, however, is more likely to be accused of being over – rather than under – zealous, but its approach has been subject to far less scrutiny.
Government policy changes have recently led to a doubling in the number of schools graded “Inadequate”, and a similar pattern appears to be emerging amongst early years providers.
What is striking is that, despite the potentially devastating consequences of being branded inadequate, there is no statutory or other effective mechanism through which providers can challenge such a judgement (and that “e” in the middle is crucial: what we are debating is the hybrid subjective/objective personal view of an inspector as to how the provider measures up against a range of different, ever-changing benchmarks). For further details see here and here.
Ironically, providers that are deemed so bad as to warrant cancellation of their registration have a right of appeal under s 74 of the Childcare Act 2006 to the Health, Education and Social Care Chamber of the First-tier Tribunal: an independent tribunal with all the common law and HRA fair procedure safeguards that one would expect. It is for Ofsted to prove its case on such an appeal, by satisfying the tribunal both that the facts on which it relies are made out and that cancellation is a proportionate and justified response.
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