When Ofsted call……What to expect if Ofsted visit your unregistered provision.
What to expect if Ofsted visit your unregistered provision.
Imagine the situation, it’s a bright sunny morning as you open the doors of your unregistered AP to your students. You are looking forward to seeing the progress they are making this week.
On your doorstep are two adults, your first thought is door-to-door salesmen – but they introduce themselves as representing Ofsted. The stakes get higher as they talk about their right to enter and inspect, criminal offences and body cam footage. When they give you your ‘Right to remain silent….’ phrase you’ve heard in arrests on 1000’s of police dramas your pulse really begins racing.
As an unregistered alternative provision, it is possible to get inspected by Ofsted officials who suspect you may be running an unregistered school. With the confusion that there is around the guidance for this both within the sector and in LAs and schools - how do we prepare for a visit, make sure we’re staying on the right side of the law and demonstrate best practice?
Firstly, let’s get things in perspective. Generally speaking, as unregistered provisions you have the weight of Ofsted inspections off your shoulders. Even with the new regulations that should eventually come in to regulate the sector the DfE are looking at QA ran by local authorities rather than Ofsted. In this context, the no notice inspection is a rare occurrence. Something you should be aware of and prepared to deal with but not overly worry about.
Since 2016 Ofsted have investigated 1388 potential illegal schools (in the year 23/24 it was 192). Since then, there have been only 6 prosecutions, mostly for schools that had either repeatedly failed Ofsted inspections or attempts to register and then tried to continue by going under the radar or changing names. Other provisions may well have closed due to warning notices as a result of investigations, but prison sentences or fines are very rare. It’s definitely not a regular event. If they discovered problems you would be served with a ‘warning notice’ and given chance to change your practice. Ofsted say: ‘Schools are always given time to comply with the law after we’ve warned them that they may be operating illegally. It’s better for the school, and the children, for things to improve without need for legal action.’ This is one of the reasons so little examples reach prosecution. Most of those that do were repeat offenders.
So – when do you need to register?
The guidance from the DfE around registration can be found most clearly here on pg6:
In summary, if you teach 5 or more students full-time or if you teach 1 or more students with EHCP’s or who are a ‘looked after child’ full-time then you must register as a school.
That’s the simple bit; the challenge is that there is no specific definition of what full-time means. That is where some confusion lies.
There may be some more formal clarity around this following the most recent schools bill which mentions the issue so it’s worth keeping an eye on that over the next couple of months. There is a figure of 18 hours used in some DfE guidance, but this is worth keeping as an absolute maximum standard including breaks and independent study time. Beyond 18 hours and there’s no argument – you are classed as teaching your pupils full-time.
The DfE say they are really defining full-time as whether you ‘Intend to provide, or do provide, all, or substantially all, of a child’s education’ in another piece of guidance they refer to it as being a child’s ‘main place of education’. To determine this, they will look at:
· The number of hours per week you teach including breaks and independent study.
· The number of weeks of education you provide,
· The time of day you teach and if your education precludes the possibility that full-time education could be provided elsewhere’.
Unfortunately, the exact parameters of what they look for in these also aren’t defined. It’s more of how they contribute to the overall picture.
For those provisions working with pupils one or two days a week there is no problem here. The grey areas happen where pupils are refusing school attendance and engaging with a provision 1 or 2 hours a day across the whole week, the AP is then providing all of the child’s education for that period. Sometimes an LA or a school can push you to full-time support of a pupil as there aren’t other provisions available or they know you’re the best place for that young person.
If you’re someone with responsibility for an unregistered provision, then you are the one for whom any criminal investigation would occur. Local authorities and schools aren’t the ones who face fines, prison or the shutting of their business if things go wrong. Whatever they encourage you need to ensure you are on the right side of the law.
One solution is to register as a school, as commissioners, schools and LA’s prefer the security of it. The challenges for APs come because registering as a school expects a certain breadth of curriculum, standards of premises and governance structures that small, specialised APs often can’t meet due to their resources or the specialism of their offer. If you offer a reasonably wide curriculum from a fairly ‘normal’ premises, it’s probably worth at least thinking about this. I’ve seen successful Ofsted’s at schools with 2 or 3 staff and 6-8 children. It definitely can be done.
If your model of AP works best without the restrictions of the Independent School Framework, I’d suggest the following as a safe approach to making sure you’re working legally:
· Keep well below the 18 hours for individual pupils
· Include breaks and lunchtimes in your hours calculations and travel time if this is significant
· If a student attends daily make sure those hours don’t preclude them also attending school – schools will often push for time slots that cover morning and afternoon to claim a day’s attendance, that may not be the best for an AP.
· Where a pupil is attending your provision for a few hours as a sole provider to re-engage them in education make sure the commissioning school is offering them attendance more widely (even if they aren’t going) and taking good responsibility for their support.
· Have a clear individual plans towards ambitious objectives for every pupil. Make sure these are regularly reviewed with commissioners, parents/carers and pupils and include timetables and hours of attendance.
Do – be prepared to use your 4 full-time places that you can have. Don’t be so scared of the legislation that you miss out on opportunities around this.
Don’t – take local authorities or schools advice on what you can or can’t provide. You are responsible for making sure you stay on the right side of the law, and you would be the one prosecuted if you lead an AP that breaks the rules.
What to expect if Ofsted visit?
As an unregistered AP the majority of your contact with Ofsted will be when they visit your commissioners. Normally a call about the pupils you have and how well the commissioner takes responsibility for them. If Ofsted haven’t previously visited you, they may visit, possibly in tandem with a staff member from your commissioner, they would be looking for the same information as in the phone call but will also check your status as an unregistered provider. Visits that raise concerns could prompt more of an investigation.
Ofsted take information around possible illegal schools from 5 sources, the DfE, parents, local authorities, the police and Ofsted staff. They don’t have a full list of unregistered APs - no one does - but if they come across one in a school inspection they haven’t visited before they will generally visit as part of that inspection. In terms of the full investigation visits, anecdotally, some people say they’ve had them after complaints from staff or relationship breakdown with the LA. Certainly, it’s helpful to always be very clear with all your stakeholders as to how you work, the guidelines you keep to and to keep relationships as strong and positive as possible with plenty of opportunity for communication around any concerns that arise.
Ofsted can legally enter and inspect your premises and watch your AP in action if they have a reasonable cause to suspect an offence. They can take copies of records and documents as part of this process and take video during their visit. It’s best to be as co-operative as possible.
Visits will be no notice and, for the person they suspect of committing the offence (the person legally responsible for the AP) they may caution them in an official way (“anything you say may be given in evidence”!) and take notes of significant statements you make.
They would be looking for evidence that you are breaking those rules around registration – this would include whether pupil arrivals and departures and attendance registers match with timetables. They can also act to report a setting in terms of safeguarding so may also be looking at health and safety, the premises and your safeguarding records and policy. This may include your recruitment checks for staff. They may also check with your LA and the local police around whether any safeguarding concerns have been received around the provision.
Feedback from visits would suggest that they expect you to be working with your Health and Safety and Safeguarding at the same level as for the Independent school standards. It’s worth checking how you do against the standards in those areas.
Detailed Ofsted guidance about the visits can be found here: https://www.gov.uk/government/publications/inspections-under-section-97-of-the-education-and-skills-act-2008-handbook-for-inspectors/unregistered-school-inspection-handbook
How to help yourself:
· Make sure you are working within the rules – be clear on your structure and how it works.
· Collate paperwork around referrals, timetables, registers and pupil plans – have it available and keep it up to date. Have a folder ready just in case. Run through it across your week – would the comings and goings in your AP match what is on paper?
· Ensure your safeguarding and health and safety policies are up to date and followed.
· Check your premises for Health and Safety issues daily and respond if you find any.
· Keep a single central record for staff and make sure everyone who is in your AP across the day including volunteers/cleaners etc is safer recruited.
· Communicate regularly with commissioners and the local authority. Work hard to keep these relationships positive and deal with concerns quickly.
· Have your paperwork, policy pack, service level agreements and so on ready and available for show a visitor.
· Clarify your working structures, aims and ethos as an organisation. Be clear where you fit within the sector.
· Stay calm. Body cameras and a legal caution will be intimidating even without the triggers many of us who have spent time in education feel when we meet Ofsted. You are the expert in your provision and the children who attend. You are well capable of communicating your quality and care well to others.
The good news is that, over the longer term, the DfE are working on standards for unregistered AP’s. They should stop the term ‘unregistered’ and reduce some of the negativity around what is an important part of inclusion for many pupils. It should also make the rules we work within clearer and guidelines easier to follow.
At Close the Gaps we regularly work with AP’s both registered and unregistered. We’ve supported lots to open, to register, to pass QA frameworks and just to generally improve. Do get in touch via the website if we can help support you too.
