Ofsted inspectors recently gave a 16 to 19 independent learning provider an inadequate rating having discovered it failing to meet its statutory requirements on safeguarding learners. Geraldine Swanton explains the safeguarding learners issue.

A positive duty to promote and safeguard the welfare of children was imposed on FE colleges and schools by the Education Act 2002.

Private providers are not within the ambit of that duty, but are subject to the Ofsted Common Inspection Framework and to funding conditions imposed by the Education Funding Agency, which will be linked to Ofsted assessment outcomes.

Because of their day-to-day contact with children, educators are considered to be particularly well placed to observe the signs of abuse and to prevent harm.

An inter-agency approach has since been adopted, as set out in government guidance Working Together to Safeguard Children (March 2013). Though primarily intended for children’s services, it should be taken into account by all providers.

Complying with a broad, positive duty is much more challenging than a duty that requires a college to refrain from concrete conduct (eg anti-discrimination legislation).

The challenge is reinforced when providers’ quality of leadership and management is judged by Ofsted to be inadequate for reasons which include their safeguarding arrangements.

Every provider needs to be mindful of the legal consequences of failing to discharge safeguarding duties

The statutory duty is broad and devoid of specific detail, but is given some substance in the statutory guidance published from time to time by the Department for Education.

The current version is Keeping Children Safe in Education, which was issued in April 2014, which in some respects lacks the specificity of previous versions.

The guidance interprets the statutory duty as comprising three essential elements. They are: identifying concerns regarding harm to children and reporting those concerns to the relevant agency via the senior member of the college’s staff with responsibility for safeguarding; recruitment of staff to ensure that unsuitable people do not work with children; and dealing with allegations of abuse against staff.

The guidance requires colleges to have an “effective” child protection policy in place which is promulgated to all staff.

The policy should describe procedures that are in accordance with government guidance and refer to locally agreed inter-agency procedures put in place by the Local Safeguarding Children Board.

Regular staff training is key to discharging the duty. That policy should be reviewed annually by the governing body, which has a supervisory role.

Providers should have genuine concern for the wellbeing of every learner, but in an increasingly regulatory environment, every provider needs to be mindful of the legal consequences of failing to discharge safeguarding duties.

There is no scope in the legislation for a legal action against colleges for breach of statutory duty. In addition, failing to prevent abuse perpetrated by third parties outside of a college or private provider’s control is unlikely in most circumstances to lead to a successful claim of negligence.

Of much greater import is a negative assessment by Ofsted and persistent failure to comply with the duty could precipitate intervention by the Secretary of State under powers conferred by the Further and Higher Education Act 1992 in respect of colleges and in relation to private training providers, termination of funding contracts.

Ofsted’s common inspection framework no longer attributes a limiting grade overall to the quality of safeguarding, but significant weight appears to be attached to it in the assessment of leadership and management.

The checklist of factors that Ofsted will consider is set out in its inspection handbook, is comprehensive and, arguably, more prescriptive than the statutory guidance.

For example, it states that inspectors will take into account whether learners are suitably protected from the risks associated with radicalisation and extremism. Government guidance may help to elucidate what amounts to suitable protection.

Colleges and private providers should ensure that they have a range of policies to address threats of harm to children, from e-security, bullying to radicalisation.

Further, staff should be sensitive to the signs of abuse and should report all reasonable suspicions to the designated member of staff.

Though staff should co-operate with inter-agency case investigations, they should not assume responsibility for handling and resolving cases of abuse. That is the responsibility of the relevant statutory agency.