The disqualification regime affects real lives. Not only the lives of caregivers but also the lives of the children they look after. It would be easy to think this regime protects children by preventing unsuitable people from entering the workforce and ruthless business owners interested only in profit from cashing in on their vulnerability, but that's too often not the case. We don't know exactly how many caregivers and children have been affected because Ofsted declined freedom of information requests seeking information about the number of people disqualified and the reason for this. But we know from those seeking legal advice and support that qualified and experienced care givers and ethical providers are caught by this.
The proportionality of the Disqualification Regulations.
They are very broadly drafted, and it is not just an issue affecting people wanting to become registered managers whose applications are refused. If a children’s home has its registration cancelled, anyone concerned in the management of the home or who had a financial interest in it is disqualified for life. It is not time limited so a previous manager unconnected with the cancellation would be caught, as well as new managers who come in after the events to sort things out. The disqualification applies to children’s homes, fostering and early years.
The Disqualification Regulations are so draconian we are confident a court would find them to be incompatible with Convention Rights as well as established common law principles of reasonableness and proportionality.
People affected by these Regulations need to have an opportunity to be heard in advance of a disqualification taking effect. The Regulations also need to be amended as they are unfit for purpose. There should not be automatic disqualification.
The untested use of GDPR exemptions to refuse freedom of information requests. Ofsted routinely refuses freedom of information requests. This denies individuals the right to make a proper defence prior to disqualification. It also protects Ofsted from scrutiny and from being held to account. A precedence for disclosure is necessary to prevent the misuse of regulatory powers.
The reliability of inspection reports and decision-making processes.
On Tuesday 10 November 2020 at the accountability hearing HC 262 David Simmonds specifically asked why Ofsted’s legal costs have been rising (Q1261). Yvette Stanley said that one of the reasons for this was that providers are more litigious than they were historically. Given the time, effort, stress and costs involved in legal challenge it is highly unlikely the decision to pursue legal action is one that is taken lightly by an individual or a provider.