Children's Wellbeing and Schools Bill

Supplementary written evidence submitted by Ofsted (CWSB159)

Introduction

Ofsted very much welcomes the introduction of the Children’s Wellbeing and Schools Bill, which delivers on some of the legislative asks we have long been calling for over the last decade to ensure all children, especially the most vulnerable, are safe and learning.

This includes:

§ removing loopholes that enable illegal schools to operate,

§ improving Ofsted’s powers to investigate unregistered schools we suspect may be operating illegally,

§ enabling Ofsted to fine unregistered children’s homes for operating unsafe, unregulated accommodation to vulnerable children,

§ introducing a register of children not in school.

Alongside the wider measures in the Bill to better support families, these specific measures will better safeguard vulnerable children and deliver the ambitions we have for children in care and care leavers in the 21st century.

However, as we mentioned to the Committee in our evidence session, there are some areas where the Bill can be revised and strengthened to further improve its impact.

In children’s social care, we would like the Bill to go further on standards for care, corporate parenting, the portability of registered managers, and the inspection of Regional Care Co-operatives.

In the school’s section of the Bill, we very much welcome new powers enabling Ofsted to investigate schools that may be operating illegally. However, as currently drafted, we are concerned that the process will be too bureaucratic and inefficient, adversely impacting the number of inspections we can carry out. In addition, Ofsted would like all unregistered alternative provision (AP) to be regulated because all children educated in any provision for the majority of their time should be in the line of sight of an inspectorate and regulator.

Children’s Social Care – Part 1

We welcome the Bill and the opportunity to reform and modernise the children’s social care system, particularly measures to strengthen a multi-agency approach to safeguarding, a unique identifier for all children, and additional powers for Ofsted to both tackle unregistered provision and provide greater oversight of providers at group level.

We have long called for new powers to issue monetary fines against providers of unregistered provision. A fine will be an alternative to criminal prosecution, which is costly, protracted and time consuming, and will allow us to act at pace to tackle more unregistered settings. We will use these powers proportionally and with care to tackle providers who operate illegally.

We also welcome that the Bill gives Ofsted increased oversight of provider groups as it should enable us to accelerate improvement for children, particularly where we have significant concerns around the leadership and management of a provider group.

Many proposals will require changes to our existing inspection frameworks and our regulatory policy and practice, and some will require additional funding as we take on new responsibilities with additional powers. We are in regular conversations with the Department for Education (DfE) and will use our insights from our regulatory and inspection work to help shape the reforms. We will make sure our inspection and regulatory work underpins the changes and provides feedback to the sector and the government on its successful implementation. Finally, we will inform policy makers of any unintended consequences and consider the need for further changes that may be required to ensure successful implementation.

However, as we said in our oral evidence to the Committee, there are still some significant areas of the system that need urgent attention but do not feature in the Bill. These are:

1. Core quality standards

Ofsted has long argued for a core set of standards that apply to all children wherever they live or stay. National Minimum Standards are out of date and not reflective of current practices. We would like the sector to be more ambitious in our standards of care and we firmly believe it would be transformative for the lives of many children living away from their families.

Ofsted can require providers with Quality Standards to meet regulations through enforcement action; this function does not exist with National Minimum Standards. The regulatory safeguards for children need to reflect their vulnerability and the risks posed, and set out equally high aspirations for all children living away from home, rather than a focus on the type of building they are living in.

2. Corporate parenting responsibilities

Ofsted’s view is there is more that needs to be done across government in regard to corporate parenting responsibilities. This would mean all government departments, when they were making policy, would have to think about the impact on care leavers and children in care so that there's much more join up across government for children and that they think about things in that way.

3. Portability of Registered Managers

Ofsted would like to see improvements to the registration process and portability of requirements of registered managers moving between children’s homes. The current process is overly bureaucratic and costly; a Registered Manager must cancel their registration and go through the full registration process again at their new home.  It also leaves homes without a Registered Manager for too long while a new application is processed and slows down the registration of new provision.

The volume of new applications continues to be exceptionally high and is creating pressures on Ofsted resources. Enabling the portability of existing registered managers would alleviate some of this. Portability will not remove Ofsted’s fit and proper person test but would streamline the process and make it more efficient.

4. Inspection of Regional Care Co-operatives

Ofsted would like the inspection of Regional Care Co-operatives to be included in the Bill to ensure that all organisations responsible for the protection of vulnerable children are under sufficient oversight. While statutory duties (sufficiency duty) will remain with the local authority, the day-to-day delivery will sit with the Regional Care Co-operative.

Inspecting Regional Care Co-operatives would be consistent with the current direction of travel to look at responsible groups and responsible bodies that care for children. Given placement sufficiency is such a key issue for the sector, a reduction in oversight represents a significant risk.

Unregistered / Independent Schools – Part 2

We welcome provisions in the Bill that will address loopholes in the law for registering as an independent school and the new powers for Ofsted to investigate unregistered, illegal schools.

However, the feasibility and administrative costs of the system proposed to enact these new powers may have an adverse impact on the number of inspections we can carry out. This could be mitigated by amendments that allow us to utilise some investigative powers (such as the power to enter and to compel the production of documents) without a warrant in the case of commercial premises. We know that other investigative agencies have similar powers.

Definition of an ‘Independent School’

We welcome that the Bill will address loopholes in the law for registering as an independent school. This will help us to keep children safe.

T he current legal definition of an ‘independent school’ does not encompass settings that provide full-time education but teach only a very narrow curriculum, effectively exempting them from registration. As a result, these settings are beyond our oversight and Ofsted cannot progress investigations into settings that do not teach a broad curriculum, even when hundreds of children are provided an inadequate education, in unsuitable and even dangerous premises, up to six days a week.   

This legislation will address this loophole, most importantly by changing the definition of an ‘independent school’ to include all institutions that provide the majority of a child’s education or instruction during the school day.  We would like this section of the Bill to be protected.

Ofsted’s powers for investigating an illegal school

We also welcome that the Bill will give us new powers to investigate unregistered, illegal schools. Currently, our powers to investigate suspected illegal schools are very limited:

§ our power of entry is ineffective, which means we are reliant on those running a setting to let us in, even though they may be suspects

§ we have no power to search for or seize evidence, which makes it difficult to gather the necessary evidence without cooperation from those who run the setting.

It is therefore challenging to prosecute. Ofsted welcomes stronger powers of entry and investigation – supported by relevant, enforceable obstruction offences – including the power to search for and seize evidence and the power to apply for entry by warrant when necessary.

We can only use the new powers granted to us by the Bill when entering a premises under a warrant, and only if the magistrate issuing the warrant specifically authorises the use of the additional powers. Entry without a warrant is dependent on the consent of the person in charge of the premises, who is likely to be the suspect. For this reason, we anticipate that we will have to apply for warrants in many cases a t significant cost in terms of both resources and time. Without adequate additional resourcing, this may reduce the number of onsite investigations we can carry out.  

If our powers of entry were strengthened so as not to rely on consent in the case of commercial premises, and we were given a power to compel people to produce documents (which are the primary source of evidence) , it would make applying for an entry warrant the exception it ought to be rather than the norm. Ofsted would welcome an amendment to the Bill to allow for these more robust powers that do not depend on a warrant in some instances . This would enable us to act more quickly to keep more children safe and reduce the cost to the taxpayer of both Ofsted and the court system dealing with warrant applications.  

 

Not included in this legislation - unregulated, unsafe, unregistered AP

The Bill also does not address our calls to ensure vulnerable children are no longer placed in unregulated, unsafe and unregistered AP. There are an estimated 20,000 pupils in unregistered AP settings, which are increasingly being used to deliver education to pupils with special educational needs and/or disabilities (SEND). These settings are not subject to any compulsory oversight. Our unregistered schools inspectors frequently visit unregistered AP and have serious concerns about the sector. Some settings keep no attendance records, don’t check the suitability of staff who work with children, and many offer a very limited curriculum. Urgent action is needed to address these concerns and ensure that all children placed in unregistered alternative provision by their schools and local authorities receive the high-quality education to which they are entitled and which they deserve.

29 January 2025