5. Mr O complains that Ofsted wrongfully told him that his application to be accredited would be rejected. Mr O challenged the decision, Ofsted looked at the application again and granted it.
6. Mr O complains the process took five months and this delay caused him inconvenience and lost income.
7. Mr O wants Ofsted to accept it was wrong and for it to pay compensation, damages, and to reimburse his loss of income.
8. Mr Y is the executive of a company who oversee several new fostering agencies (the Company).
9. On 3 September 2020, Mr Y applied to Ofsted to register one of these agencies (Agency A). On 8 March 2021, Mr Y made a separate application to register a second agency (Agency B).
10. On 12 April 2021, Ofsted issued formal notification that it intended to refuse the application to register Agency A. It said it was not satisfied that the person put forward to run the agency had the necessary skills and knowledge to do so safely and in line with the relevant regulations. Ofsted said that if the agency disagreed with the proposal to refuse, it should present its concerns in writing within 28 days (by 12 May 2021). It said that if the agency did not agree with Ofsted’s final decision, it could appeal to a tribunal.
11. On 10 May 2021, Mr Y wrote to Ofsted with his concerns and highlighting what he saw as errors in its refusal notice. Ofsted responded and said that due to the amount of information Mr Y had provided, it may take longer than usual to respond. The next day, Mr Y told Ofsted he was withdrawing his application to register Agency B (Mr Y says Ofsted told him it would not decide on the application until it finished its consideration of the application for Agency A).
12. On 1 July 2021, Ofsted contacted Mr Y and said it had now considered his points and planned to arrange a site visit to Agency A. Ofsted did the visit on 14 July and after interviews with agency staff on 10 August, Ofsted accepted the registration on 24 August.
13. On 13 September 2021, Mr Y told Ofsted about a change to Agency A’s registered manager (this is a requirement of continued registration).
14. On 14 October Mr Y complained to Ofsted about what had happened. He said Ofsted had taken too long to make its decision and the decision itself was wrong. He said Ofsted failed to respond to the points he made in his letter of 10 May. He said Ofsted had still not processed the change of manager and it still had not allocated the agency a named Ofsted inspector.
15. Ofsted responded on 1 November 2021 and said the initial delay (between September 2020 and March 2021) had been because of an ongoing investigation by Social Work England (SWE - the regulatory body for social workers in England) into the conduct of a key member of staff at Agency A. Ofsted accepted it had taken longer that it should have to consider Mr Y’s letter but it was satisfied it had acted quickly from that time onwards. Ofsted apologised for the delay in updating the registration details and for the failure to allocate a named inspector. It said it had now corrected both these errors.
16. Mr Y complained to the Independent Complaints Adjudication Service For Ofsted (ICASO – its role is to review how Ofsted has dealt with a complaint). ICASO did not uphold his complaint.
19. To put this complaint and our decision into context, it may be helpful to explain more about Ofsted’s role, particularly in relation to fostering agencies.
20. Ofsted’s role is to inspect services providing education and skills for learners of all ages. It also inspects and regulates services that care for children and young people. Its declared mission is to put children and learners first.
21. The Department for Education publish National Minimum Standards (NMS) which fostering services must meet. These standards, together with regulations relevant to the placement of children in foster care, form the regulatory framework under the CSA for the conduct of fostering services. Among the values which underpin these standards is the understanding that a child’s welfare, safety and needs are at the centre of their care.
22. Standard 17 of the NMS relates to the fitness to provide or manage the administration of a fostering service. The NMS makes clear that the fostering service should be provided and managed by those who are suitable to work with children and have the appropriate skills, experience, and qualifications to deliver an efficient and effective service.
23. Standard 19 of the NMS relates to suitability to work with children. This makes clear that Ofsted are responsible for assessing whether anyone working with, or for, a fostering agency, is suitable to do so.
24. Independent fostering agencies must register with Ofsted. According to Ofsted, this helps to prevent unsuitable people owning, operating, managing or working within fostering services. It is an offence to run an independent fostering agency without registration.
25. Any franchise of a fostering agency must register in its own right as an independent fostering agency. Any branch of a fostering agency must also register separately. They cannot carry out any activities in relation to foster carers before they are registered.
26. Ofsted say that once it has received everything necessary for the application to be registered, it will usually make a decision within 47 days. Ofsted recommends that the agency allows at least 16 weeks from the start of its application, before it intends to open.
27. If Ofsted proposes to refuse the registration, it is legally required to notify the applicant and explain its reasons. It must also give the applicant 28 days to make written arguments about why it disputes Ofsted’s proposal.
28. If, after this time, Ofsted decides to continue with the refusal, it must issue a formal notification of decision. It must also tell the applicant they have the right to take the decision to a tribunal.
29. Once registered, Ofsted’s role is to inspect fostering agencies to make sure they are complying with their obligations and continuing to meet the relevant standards. Ofsted says it will normally do its first inspection of a new agency between seven and 12 months from the date of registration and will inspect all agencies at least once in a three-year cycle.
Refusal of the application
30. Before we decide if we should do a detailed investigation of a complaint, we look at whether there are signs the organisation got something wrong. We do this by comparing what should have happened with what did happen. We have done this and we have not seen any signs that something went seriously wrong.
31. We note Mr Y’s concerns that Ofsted failed to act in line with the relevant statutory regulations. It is not our role to decide whether an organisation has complied with the law. That is a matter for a court and if Mr Y wishes to follow this up, he may wish to get independent legal advice. We cannot help him with this.
32. We should also explain that it is not our role to decide if Ofsted was right to propose to refuse the application. That would be a matter for a tribunal. We can look only at whether Ofsted followed a reasonable administrative process when making its decision.
33. It seems clear that Ofsted had concerns about the suitability of Agency A’s registered manager. Because of those concerns, it told Mr Y it was proposing to refuse the application. It explained the reasons why and told Mr Y what he needed to do if he wanted to dispute the proposal. This is in line with Ofsted’s responsibilities.
34. Our ‘Principles of Good Administration’ say to get it right we expect organisations to act in line with any rules leading the service they provide. We are satisfied that Ofsted acted in line with its responsibilities and our Principles.
35. Mr Y told us he is unhappy Ofsted did not address in detail all the points he made in his letter of 10 May 2021. In considering this, we looked carefully at the context and purpose of the letter.
36. This letter was written in response to Ofsted’s proposal to refuse and gave Mr Y’s reasons for disagreeing with the proposal. The ‘proposal’ is not meant to be a final decision and when issuing it Ofsted has a duty to offer the applicant an opportunity to comment on it. The process allows for Ofsted to change its mind.
37. The evidence shows that Ofsted considered Mr Y’s objections and it looked at the application in more detail. This included gathering more information to clarify the situation. It then decided it should register Agency A. We are satisfied this is reasonable. Our ‘Principles of Good Administration’ say to get it right we expect organisations to look at all relevant information before making a final decision. We also expect organisations to balance the evidence appropriately. We are satisfied this is what Ofsted did.
38. In summary, we are satisfied that Ofsted acted in line with its administrative responsibilities when both proposing to refuse the application and when considering Mr Y’s objections to that proposal. For these reasons, we have decided not to investigate this part of Mr Y’s complaint further.
Delays in the application
39. Ofsted took no action on the application between September 2020 and March 2021. This was because it was waiting for the outcome of the SWE investigation. As Ofsted’s role is to make sure the people named in an application are fit to run a fostering service, that was reasonable.
40. We note Mr Y’s view that it was unreasonable for Ofsted to wait for the outcome of the investigation (which he thinks was started by a false and malicious allegation). While we make no comment on the allegation itself, Ofsted had a clear and established commitment to safeguarding children and making sure those who work with them are suitable. An ongoing SWE investigation was a relevant consideration as the outcome would have had an impact on Ofsted’s decision. It is unfortunate the investigation took as long as it did but that is not the fault of Ofsted.
41. We have also noted Mr Y’s concern about both the length of time Ofsted took to issue an amended certificate (following the change of manager) and the allocation of a named inspector. We accept this may have been frustrating, but we cannot see that either of these things had a material impact on Mr Y or Agency A. Although Ofsted did not immediately update the registration certificate, we cannot see it took any action which prevented the Agency from operating. As no inspection had been announced, or seemed to be due, we cannot say the failure to allocate an inspector had any real impact.
42. Our ‘Principles of Good Administration’ say to put things right we expect organisations to accept and apologise for mistakes and put things right quickly and effectively. We can see from Ofsted’s 1 November 2021 letter that it had acted in line with our Principles.
43. We recognise there was a delay between 10 May 2021 (when Mr Y raised his objections to the proposal) and 1 July 2021 (when Ofsted began considering those objections). From that time, things were back on track (and Ofsted did further work in what seems to be good time). This means the delay was for just under two months.
44. Ofsted has accepted and apologised for the delay, but Mr Y says Ofsted has not fully considered the financial impact of what happened.
45. When looking at this issue, we considered our ‘Principles for Remedy’. These say where maladministration (fault) or poor service has led to injustice or hardship, the organisation responsible should take steps to give an appropriate and fair remedy. They should ideally return people to the position they were in before the poor service took place. If that is not possible, it should compensate them appropriately. When applying this Principle we need to see evidence that the injustice claimed is a direct result of the poor service. If we cannot find evidence of this link, we cannot recommend that the organisation puts things right.
46. Mr Y gave us a breakdown of the claimed impact of the delay. Below we have listed each factor and explained our thinking.
a) The Company’s costs Mr Y explained that these costs relate to all overheads that the group business continued to have from April to August 2021.
While we accept the Company would have had costs during this time, we cannot reasonably say Ofsted’s delay caused the costs. In our view, there are always costs associated with running a business, regardless of any delays or errors that may happen. We cannot reasonably link these costs to Ofsted’s delay and for that reason, we cannot recommend that Ofsted reimburse Mr Y (or the Company) for these costs.
b) Agency A’s costs Mr Y explained these costs relate to all overheads that this new fostering service continued to have from April to August 2021.
For similar reasons to those explained above, we do not accept that these costs are linked with Ofsted’s delay. These are costs linked with running a business and are not the result of any error by Ofsted.
c) Agency B’s costs Mr Y explained these costs relate to the set up and overhead costs for the second fostering service. Mr Y said that because of Ofsted’s actions he felt he had no choice but to withdraw the application to register.
We do not dispute Mr Y’s feelings. We cannot reasonably link his decision to Ofsted’s delay because each of the agencies needed to be registered separately. Even if Ofsted had gone on to refuse Agency A’s application, this would not have been evidence that it would refuse Agency B’s application as well. Mr Y did not have to withdraw his second application and could have allowed it to continue if he wanted to. It was his choice and we cannot hold Ofsted responsible for it.
d) Loss of income Mr Y says that if Ofsted had issued a registration notice in April 2021, Agency A would have received this income from October 2021.
We accept that if Ofsted had not delayed Agency A would have been registered earlier. That is not evidence of a loss of income. Although Agency A would likely have been in a position to approve new families and place children, its ability to do this would still have been dependent on people being signed to use the service. We cannot say this was guaranteed, or be certain when or if this would have happened. These factors are outside of Ofsted's control and are not an impact of any delay. At best, we can say Agency A may have lost a potential opportunity to operate in the way it may have wished. We cannot say with enough certainty that it suffered a loss of income because the application was delayed.
e) Legal costs Mr Y says costs were paid to legal advisers and barristers when challenging Ofsted’s decision. He says the costs are ongoing as there have been more delays with inspection and the registration of a new registered manager, and another formal complaint has been made.
We need to look at this from an administrative view. Ofsted made clear to Mr Y (as it does to all applicants) how he could challenge the proposal to refuse if he did not agree with it. This process was clear and legal support is not needed. While Mr Y may have chosen to get legal help, he did not have to. For that reason, we cannot reasonably link his legal costs to Ofsted’s actions.
f) Founders loss of income Mr Y says he has lost 24 months defending the potential closure of his services and his personal reputation.
There is no link between the delay and a loss of personal income (we have addressed the claimed impact on the business separately). Even if there were, any impact would be linked to the delay between 10 May and 1 July 2021, a period that is much less than 24 months.
47. In summary, we have decided to take no further action on this complaint. This is because we have seen no sign that anything went seriously wrong and, we are unable to link the claimed impact to the injustice claimed.
48. We understand Mr Y may find our decision disappointing but we hope we have clearly explained the reasons for our decision.
49. We would like to thank Mr Y for bringing his concerns to our attention and wish him well for the future.
1. The Parliamentary and Health Service Ombudsman has carefully considered Mr Y’s complaint about Office for Standards in Education, Childrens Services and Skills (Ofsted).
2. We are sorry to learn of the events which led Mr Y to complain and understand he is frustrated by what happened.
3. We have reviewed all parts of Mr Y’s complaint and decided not to investigate it further because we have not seen any signs Ofsted did anything seriously wrong. We also cannot link the events complained about to the financial loss Mr Y says he suffered.
4. We understand this is unlikely to be the outcome Mr Y was hoping for. We apologise for any further distress our decision may cause. This statement explains our decision.