Quandaries of a Caregiver

I resigned from the role of responsible individual and operations director in children’s residential care and education in 2017, five months after Amanda Spielman was appointed to Ofsted’s top job. This was a decision made by former secretary of State Nicky Morgan against the advice of the Education Select Committee who were unanimously unconvinced that Amanda Spielman would fulfil the role of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills effectively. Committee members were particularly concerned by her responses on child protection, they doubted her preparedness for the vast scope and complexity of this important role and her ability to improve the lives of children and young people.

Amanda Spielman had never been a teacher or a social worker, her background was in merchant banking, business mergers and acquisitions until 2006 when she joined ARK schools after completing an MA in comparative education. She was a founder board member and education adviser for ARK Academies, a multi-academy trust created by a group of financiers working closely with the DfE to develop academy schools. Then in 2011 when the Office of Qualifications and Examinations Regulation was formed, she saw off a strong field of candidates including the chief executive of the Ormiston Academies Trust, Toby Salt, and the general secretary of the National Association of Headteachers, Russell Hobby and was appointed as Chair. The following year Ofqual was accused of causing a “gross injustice” affecting many young people when significant changes to grade boundaries made halfway through the year caused English results to plummet and led to an acute crisis of confidence in the exam system.

This appointment came ten years after Ofsted’s remit was expanded to include children’s social care and regrettably media reporting of the announcement did nothing to reassure me the much-criticised regulator would exchange deterrence for a more ethical approach to compliance and enforcement under this new leadership. Then just a few weeks later I was thrown into a quandary when a letter arrived in the post accusing me of professional misconduct related to historical child protection concerns and oppressive inspection experiences. I had become a shareholder when my business partner and I acquired a small company operating children’s homes and schools after being led to believe it was for sale because the owner was terminally ill. But this turned out to be untrue and soon after completion worrying practices not evident in inspection reports were uncovered and late notification of a reportable event triggered an unannounced inspection.    

The inspection report was accusatory in tone and listed around twenty-five requirements which were difficult to comprehend given that the company had been under new ownership for little more than five months and was overseen by the existing Care Director for most of this. If there was a reason for the regulatory belligerence we were experiencing, we were left guessing what it might be until staff told us the Care Director and the inspector had trained at the same college and were thought to be friendly. Soon after we observed this for ourselves at a child protection strategy meeting called after one of our children suffered injuries during a physical restraint in school. We had not been informed that an incident had taken place by the headteacher or the care director who was the proprietor the school and had by then left our employ.

After returning to the home complaining of a sore back the child concerned was taken to A&E and was sent home without treatment when no injuries were found by medics. The next day staff called for advice after extensive bruising and grazes were noticed on the child’s back during the morning routine. I told them to take photographs and go back to the hospital to ensure these injuries were properly assessed and documented. The fact that this was necessary was terrifying given that memories of the Victoria Climbié inquiry had not faded when “Baby P” became the second abused child known to child protection services to die in Harringay during the first decade of the new millennium.

Fortunately, my business partner and I were visiting the homes when we discovered the  strategy meeting called in response to this had been scheduled to take place the next day and even though attending this meant an unplanned overnight stay and a trip to the supermarket for travel essentials, being there was the priority. The meeting went ahead without the medical report from the hospital in an atmosphere laden with bias and hidden agendas. The outcome was no further action beyond a recommendation that the school address shortfalls in physical intervention training, but as far as I was concerned this was a non-accidental injury at the hands of a restraint dependent regime.

I had already raised concerns about an excessive use of dangerous and probably unlawful physical intervention sometimes endured for hours at a time with HMCI Christine Gilbert and provided scanned copies of original paper records containing compelling evidence overlooked by inspectors. But this did not bring about an investigation and as other matters of concern continued to emerge, I persevered in my efforts to secure an inquiry for over two years. When these were repeatedly ignored by Ofsted and placing authorities I wrote and retained copies of letters to The Children’s Minister, The Children’s Commissioner and The Ombudsman who alarmingly informed me that only complaints made by the children themselves could be investigated.

Soon after, I was forced to give up on my unheard attempts to point out the obvious child protection concerns arising from the ombudsman’s response because the company was sold and my services had been contractually retained for three years as an obligatory part of this deal which diverted my time and focus. But this was a testing time and by the end of the second year I left because I couldn’t stay. Consequently, when I became aware of the allegations of professional misconduct against me, I concluded that only my resignation would afford me the autonomy I needed to respond.

After months of costly legal wrangling I was satisfied the evidence of overlooked child protection concerns I was reluctant to give up was safely protected by legal privilege and could be retrieved by the children affected if they decided to make a complaint at any time in the future. Thankfully the wider dispute was also settled out of court without the need to re-mortgage the family home to cover the cost of legal fees. But I had forfeited the right to tell my story in the public arena and with allegations of professional misconduct still hanging over me I was still in a quandary.

Throughout this awful experience I had taken comfort from the determination of the families of Hillsborough victims during their 26 years long battle for justice. If I was guilty of professional misconduct, I was prepared to face the consequences and with this I referred myself to HCPC and the ICO a few days later. I was astounded to discover just how many other, whistle blowers had found themselves in a similar quandary, most significantly those who had reported Jimmy Saville, and other prolific child abusers to officials over the years.

As I waited for the decision on my fitness to practice, I busied myself with the final preparations for the first Your Life Your Story event which was taking place during Care Leavers Week. The event was bringing a group of care experienced adults together with published care experienced authors, Rosie Canning, Lisa Cherry and Paolo Hewitt to learn the techniques of storytelling in an emotionally supported space. Remarkably it was on the Eve of Your Life Your Story 2017 that I received confirmation from the Health Care Professionals Council that I was fit to practice without restriction and the case was closed.

With this awfulness finally over I spent the next two years managing and developing the supported accommodation service my business partner and I had co-owned for almost ten years as well as promoting therapeutic practice through my charity work with the Consortium for Therapeutic Communities and growing Your Life Your Story into a small charity. Then in the autumn of 2019, the director of a company operating three small children’s home’s my business partner and I had known for years, asked for our help following difficulties arising from the sudden and premature death of the director of care the previous year.

The homes had fallen to requires improvement during the inspection cycle that ended three weeks before this devastating loss and Ofsted approved plans to return the homes to good ratings were unavoidably disrupted. But it was proving difficult to fill the gap caused by this tragedy in short timescales and best efforts to get the homes back on track were undermined when the omission of significant information led to a disastrous admission to one of the homes. Staff were defeated by the teenager’s challenging behaviour and notice had already been given when a complaint from neighbours triggered an inspection and enforcement action closed the home two days before the placement was due to end. Deplorably, this also resulted in a settled young person being moved against his wishes when appeals to prevent this were hastily rejected.

Whilst we were of course saddened by this news the thought of resuming responsibility for registered children’s homes was not immediately appealing nevertheless we did agree to give it further consideration. We had no doubts about the benefits of connecting these children’s homes with our nearby supported accommodation services to provide better leaving care transitions for young people, but we were hesitant about putting ourselves at the mercy of Ofsted again and agreed we should discuss our plans with the regional inspection team before reaching a final decision. Reassured by what we believed were well received discussions and the withdrawal of the notice of proposal to cancel the registration of the home subject to enforcement action in response to our action plan we agreed to proceed.

By the time completion went ahead we had decided on closer inspection to close one of the homes as it was unfit for purpose due to its unsuitable location, property type and very limited potential for improvement. Refurbishment of the home suspended by Ofsted was well underway and variation requests had been submitted to increase the number of beds from two to three in the two remaining homes to ensure viability. A month later registered manager applications had been submitted as planned and all seemed to be on track until one of the variation requests was refused by a regional inspection manager who I was perturbed to remember from past experience plunged us both into a quandary.

The landlord of the home we had decided to close had given notice on the lease when he inadvertently found out about our plan which meant that by the beginning of February, we would have two registered beds and three children. Not wanting any of the children to become a casualty of circumstances beyond their control or ours we asked the decision maker to reconsider the variation request. When this was predictably refused we enquired at national level about the possibility of granting  a temporary variation to prevent a particularly vulnerable young person from being forced to accept unsuitable supported accommodation against his wishes. Disappointingly the senior leader we approached refused to get involved other than to express the view that legislation would not permit this. 

Within days the home manager received notification that her fit person interview had been scheduled to take place at the regional office which was little surprising because the fit person interview of our other manager had taken place in the home. The interview turned out to be a four-hour interrogation about distressing historical events conducted by two inspectors without advance warning. We raised concerns without response and the manager’s request for a copy of the notes was refused. Then during the second week of the new inspection cycle two inspectors arrived to complete a full inspection but home improvement work was taking place, one of the two living rooms was completely out of action and the manager was covering the shift whilst staff attended mandatory physical intervention training.

When it was suggested it might be better to come back another day as everywhere was in a mess and the home manager was on duty, they insisted on going ahead even though this meant locating themselves at the dining table and denying a young person who was ‘at home’ at the time access to this part of the house. Inevitably, inspector foisted efforts to prevent the young person from accessing to his own living space triggered behaviours that eventually led to the inspection being terminated and the lead inspector refusing to give a provisional judgement ahead of discussions with the regional inspection manager.

The next day the lead inspector notified the manager and placing authorities that the home had been rated inadequate. Two weeks later, after raising serious concerns about the inspection findings, inspector conduct and the judgement we were advised that Ofsted had found it necessary to deem the inspection incomplete and needed to make a further visit to the home. Interestingly, placing authorities were not informed that the notification was premature, again there was no response to concerns raised and no apology was given. The following week two more inspectors came to “complete” another two-day inspection and the home was eventually rated ‘Requires Improvement to be Good’. It had taken four inspectors the equivalent of six full inspection days in the home to arrive at this judgement.

By now mistrustful, we took contemporaneous notes during the verbal feedback and when the written report received was far more critical than the verbatim comments recorded, we were despairingly compelled to complain again but this was also to no avail. Eventually, seven months after the variation was first requested and four months since the appeal was submitted, we were finally notified of the decision to refuse the application because the home still did not have a registered manager. By then it was six months since the manager’s application had been accepted and a month later this was also refused.

Ofsted’s clumsy attempts to make believe these decisions had not been constructed were insulting. We did not accept the validity of such obviously contrived outcomes and in the absence of opportunity for constructive discussion a tribunal appeal against the decision to refuse the variation request was unavoidable. From our perspective Ofsted was looking more like a force for destruction than a force for improvement. As I remember it when care began shifting from the public sector to the independent sector part of the thinking behind the Care Standards Act 2000 was to charge registered home managers with legal duties that empowered them to make the right decisions for service users against organisational or business demands if necessary. This translated into the need for managers to be registered with the relevant regulatory body and registration based on a test of fitness but reasons why this had been allowed to become a secretive process alluded me.

My search for answers took me to the regulators code and I was immediately struck by the differences between the code which requires regulators to carry out their activities in a way that supports those they regulate to comply and grow, to help those they regulate meet their responsibilities to comply and to ensure that their approach to their regulatory activities is transparent and our much different experience. With the benefit of this new insight we submitted our application to the tribunal but after a year of hefty home improvement and refurbishment costs without the capacity or occupancy to generate the income necessary to cover them, funds did not stretch to legal fees and we were forced to represent ourselves. The hearing was listed for January 2020 and we worked diligently to pull together evidence of highly questionable procedures, unjustified outcomes and reasons to reverse the decision to refuse the variation request.

In the meantime, the new manager’s fit person interview took place on Friday 13th December, the following week two inspectors rated the home ‘improved effectiveness’ at the interim inspection and two days before Christmas Ofsted withdrew opposition to our appeal. This was welcome and at the same time confusing news because the home still did not have a registered manager which was the main reason given for refusing the application and opposing our appeal in the first place. But any foolish hopes that this signalled a better year to come were shattered two days after the New Year’s Celebrations came to an abrupt end when the new manager also received a notice of proposal to refuse registration which brings me to another quandary.

Safer recruitment procedures had been adhered to, the DBS was clear and validated references from previous employers did not provide any reason why the new manager should not be employed to manage a children’s home. Ofsted found reasons to disagree but refused to share their evidence and relied on GDPR exemptions to refuse the request for a copy of the notes from the fit person interview. The appeal timescale is restricted to 28 days, but subject access requests can take up to 3 months and in any event one of the companies had gone into compulsory liquidation and the official receiver confirmed the company records were not available which is in itself a very worrying breach of children’s homes regulations and employment law.

As a result, the new manager was forced to prepare her appeal without sight of the evidence relied upon by Ofsted which unsurprisingly was refused, and she was disqualified from working in the children’s workforce with immediate effect. A waiver for her to work as an assistant manager was refused and efforts to interrogate the reasons for this resulted in threats to call into question the suitability of the responsible individual if he requested a waiver allowing her to work in a non-managerial role or for the company in any guise. Ironically replies to subject access requests received a few days later provided the evidence Ofsted had refused to share as well as evidence that refutes the legitimacy of the untested information relied upon by decision makers.

By now the world was facing the threat of CoronaVirus and we were all realising the true value and identity of our key workers. As messages of love and gratitude filled our TV screens and spilled out onto the streets the absurdness of a decision-making process that had ejected a much needed, qualified and experienced caregiver from the workforce consumed us. With this nagging reality in mind we wrote a to HMCI Amanda Spielman and The Children’s Minister in search of sense and justice but neither felt personally compelled to reply. Four days later on the same day the Prime Minister announced ‘lock down’ our former manager received confirmation that her tribunal appeal application had been received but it will likely be months before a hearing date is set CoronaVirus may well extend timescales even further.

Now as I stand at my front door at 8pm every Thursday along with my neighbours and my grandchildren on FaceTime to applaud and give thanks to those on the frontline I am even more sickened by these events. It is just not right that staff who have worked in children’s homes for years  judged unfit only by Ofsted are being disqualified from the children’s workforce by a process that attributes certainty to covertly recorded  and unsubstantiated information and completely ignores the potential for decisions to be deliberately engineered for unethical purposes. If we accept that these decisions are reliable without question it unequivocally means that unfit people are caring for the most vulnerable children in society and safer recruitment and child protection arrangements designed to prevent this are not fit for purpose.

This is either a terrifying discovery by the regulator or a highly questionable application of law intended to keep unfit people out of the children’s social care not to eject qualified and experienced staff from an already besieged workforce. Paradoxically, Ofsted say that having a registered manager in post is the single most important factor that determines the quality of care provided. But a quarter of all children’s homes do not have a registered manager and decisions to refuse registration on the basis of untested judgements made by inspectors who are not experts in the field of residential care have contributed to this and accelerated an exodus of disillusioned practitioners from caregiving roles.

Incredibly at the same time Ofsted want us to believe that as a result of their efforts only three percent of children’s homes are inadequate. They say that eighty-two percent of children’s homes are good or outstanding and only fifteen percent require improvement which according to Ofsted’s own criteria means, “there are no serious or widespread failures that result in children’s welfare not being safeguarded or promoted” in ninety-seven percent of the two thousand two hundred and twenty one children homes inspected in the period to 31 August 2019. Yet at the same time, we hear from The Children’s Commissioner for England that the care system is struggling to cope, that nearly a quarter of all children in care are over 16 and too many are ‘pinballing’ around the system and daily media reports expose care horror stories. 

There is no doubt that children’s social care is in chaos or that the evidence supports calls for a wholesale review of children’s social care including previously raised questions about whether Ofsted itself is fit for purpose.







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