Regulating children’s services

Francesca Snape, associate solicitor at Stephensons Solicitors LLP, discusses the difference between unregulated and regulated care for children and how she works with registered social care providers

Ofsted has recently turned its attention to children’s social care providers that are operating without registration because it is keen to crack down on those not complying with the law.

Unregulated providers

Ofsted’s national director for social care, Yvette Stanley, outlined the differences between unregistered and unregulated provisions. She stated that unregulated providers are not required to register with Ofsted if they support children (usually aged over 16) who live independently. For example, those in supported accommodation, rather than in full-time care. This provision offers children more independence but less of a safety net.

There are several indicators that point to unregulated care providers including:

• Young people can leave the premises without permission from the provider

• Young people have full control of their finances

• There are no legal sanctions for young people, apart from normal house rules

• There is a clear difference between simply providing support for children, compared to care.

Consequently, a provider can legally offer this type of provision and they’re not required to register with Ofsted. It is the duty of local authorities to ensure unregulated settings are suitable and provide sufficient standards for young people to flourish.

Unregistered

If an organisation is providing some form of care, alongside accommodation for young people, they must usually 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, and a range of factors will determine whether they are providing care to young people. A key indicator is the need to register with Ofsted if young people are under constant supervision.

Stanley makes it clear that it’s a myth that organisations only have to register if they provide care for more than 28 days. It is irrelevant for how long they are providing care and accommodation. The fact they are offered 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 which 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 and care is offered alongside accommodation it is likely a higher level of care is necessary and therefore registration should be required. Registration is multi-faceted and context dependant, for example some over 16s may be less independent than others and still require a higher level of care.

What action is Ofsted taking?

Ofsted’s regulatory inspectors have been visiting suspected unregistered settings, interviewing providers and clearly informing people when they need either to apply, to be registered or stop operating. Ofsted is also considering its regulatory powers in order to effectively prosecute providers that are persistently avoiding registration.

A legal view

Children’s social care is a political hot topic at the moment and it’s no secret that local authorities are under an enormous amount of pressure to provide safe and effective placements for young people, while battling with financial cuts. This often means that local authorities are reliant on private organisations, especially crisis or urgent accommodation where for example, a child’s place at a children’s home may have broken down. This has contributed to an increase in unregulated and unregistered provisions.

It is vital that organisations carefully consider the types of services they are providing to young people and if in doubt I’d urge them to seek specialist legal advice to determine if they are required to be registered. The regulatory and legal framework is not straightforward, and every provision is likely to operate under different circumstances, requiring an in-depth view of the service in order to determine whether registration is required.

The effect of a criminal investigation or successful prosecution of organisations and individuals in-charge could be hugely detrimental both personally and to future business prospects. Seeking this advice and taking any necessary action to ensure you do not fall foul of the regulatory and legal requirements before Ofsted start making enquiries will safeguard your business.

If organisations find themselves subject to enforcement action or a criminal investigation by Ofsted, due to concerns that they are operating an unregistered children’s home, they should speak to a solicitor in order to protect their interests before providing any responses to Ofsted or attending any interviews.

In terms of Ofsted’s guidance, they will be guided by registration requirements for the setting, for example a children’s home and whether any provision falls within the requirements for registration. If they believe an organisation should be registered but they’re not, they will look to bring about a prosecution in accordance with the Care Standards Act 2000.