Cambridge Associates In Management v Her Majesty's Inspector of Schools In England (Ofsted)

A childcare regulator may take preventative action where a short incident reveals that children were left vulnerable and their individual needs were not adequately met. The regulator may rely on its experience and expertise when assessing compliance with welfare requirements. A non-statutory notice to improve may be lawful as an ancillary regulatory measure, provided it is reasonable and proportionate. Publication of a summary of justified regulatory action may also be lawful where authorised by statute and designed to help parents make informed childcare choices.

The claimant operated an early-years nursery registered by Ofsted. Following a complaint, Ofsted inspected the premises and found that, for approximately five minutes, at least eight pre-school children were left with one member of staff who became occupied comforting another child. Ofsted issued a non-statutory Notice to Improve and proposed publishing a summary of its action.

The claimant sought judicial review, challenging the decision on grounds including irrationality, inadequate investigation, failure to follow guidance, disproportionality, ultra vires action and disproportionate publication. Following an internal review, Ofsted revised the stated basis of the notice to inadequate staff deployment and failure to ensure that the individual needs of all children were met. The central issues were whether the notice and publication were lawful.

1. Claim dismissed. The challenge to the Notice to Improve and its proposed publication was without merit.
2. Ofsted had important statutory responsibilities to monitor and enforce compliance with childcare welfare requirements. In exercising those functions, it was entitled to draw on its experience and expertise. The court would assess the decision on ordinary Wednesbury principles.
3. Ofsted was entitled to regard the five-minute incident as significant. The duration was short, but a single staff member had been left responsible for several young children and, when comforting one child, had been unable to attend to the individual needs of the others. Preventative regulatory action did not require proof that a child had already suffered adverse consequences.
4. The Notice to Improve was a modest regulatory measure. It did not constitute a criminal notice, create an offence on breach, or directly affect the provider’s continuing entitlement to operate. Given the finding of non-compliance and the need to protect children, issuing it was reasonable and proportionate.
5. The revised requirement to ensure effective systems for meeting the individual needs of all children reflected the relevant welfare requirement and sufficiently communicated the action required. The provider understood the concern, had relevant procedures and guidance available, and in fact complied with the requirement.
6. Ofsted’s usual practice of publishing a summary where action had been required to secure compliance was lawful. Publication was authorised by Childcare Act 2006 and was neither unnecessary nor disproportionate. It promoted informed parental choice, while the policy limited publication to cases requiring action and updated the information after compliance.
7. A Notice to Improve was within Ofsted’s ancillary powers under paragraph 13 of Schedule 11 to the Education and Inspections Act 2006. The claim was dismissed.