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No evidence to support Care Inspectorate enforcement action

74 days ago, we wrote to the Care Inspectorate to ask them to provide the evidence that might justify the enforcement action that was taken against the school in November 2018.

Today, the Head of School received a response. See below.

In short, after 74 days, the Inspectorate has been unable to identify any legitimate reason for that action nor a single piece of evidence.

In addition, they have not, to date, been able to provide any supportive evidence for the 13 improvements that they demanded.

In other words, after all this time, no justification has emerged for the enforcement action and improvement notice that led to Witherslack’s withdrawal from their takeover arrangement.

Furthermore, the very obvious evasion of these critical questions means that the whole affair can never be attributed to the mistakes of 3 incompetent inspectors but must reflect on the organisation as a whole.

The response below appears to indicate a desperate attempt to distance the Inspectorate from the closure of the school, despite the statement from Sir Andrew Cubie, and letter from Phil Jones of Witherslack which indicate that it was “intolerable pressure” from the Care Inspectorate and Education Scotland that caused this to happen.

Dear Mr Colley

Please find the additional information that I agreed to send following my email of 25 July 2019 please accept my apologies in the delay in forwarding this to you.

The Care Inspectorate has at no time had any regulatory role or responsibilities in relation to the education of pupils at The New School Butterstone (“the School”). The role of the Care Inspectorate was as regulator only of the school care accommodation service which operated to provide residential accommodation for the purpose of  pupils attending the school .

Information regarding formal requirements are made following inspection and published within inspection reports, and  statutory enforcement action is also published by us. We regard any other discussions regarding aspects of a care service which we consider unsatisfactory, as confidential matters between the Care Inspectorate and the provider of the care service concerned, and would not disclose these to a third party.

The Improvement Notice issued to the school care accommodation service, on 9 November 2018 (“the Improvement Notice”), is available on our website at www.careinspectorate.com, states clearly the legislative basis for each of the Improvements required.

The Care Inspectorate does not issue Improvement Notices in respect of matters which it considers trivial.  All of our interactions with the school care accommodation service in the period leading up to the issue of the Improvement Notice led us to conclude that there were significant failings in the child protection arrangements in that care service. We take matters of child protection very seriously – as should all registered care services and the staff employed within them.

When we issue an Improvement Notice, our expectation is that it will be complied with, and that we will not be required to proceed to cancellation of registration. It is extremely unusual in our experience, for cancellation of registration to become necessary as a result of non-compliance with an Improvement Notice. While cancellation of registration is viewed by the Care Inspectorate as a last resort, it nevertheless may be done where there is a persistent failure to address the matters specified in an Improvement Notice and the timescales for compliance (or any agreed extension(s) thereto) have expired.

Where in exception an Improvement Notice is not complied with, statute requires that before registration may be cancelled, a notice of proposal to cancel the registration must be issued to the provider of the care  service concerned. The provider of the care service concerned is allowed 14 days in which to make representations in writing in relation to the proposal. The Care Inspectorate may not proceed to cancel the registration until that period has expired without representations having been made or confirmation has been received that no representations are to be made or if representations are made, it has considered them.

Where the Care Inspectorate has made a proposal to cancel the registration of a care service, that is a matter of public record, in that such notices are published in the “Enforcement” section of the entry relating to the care service concerned, on our website.

I trust this information clarifies the legal basis for the Care Inspectorate’s enforcement powers



Catherine Agnew

Chief Inspector (Children)

Care Inspectorate

Princes Gate



Tel: 01698 897811

Mobile: 07766133259

Original email from Bill Colley on 25th July.

I represent the former staff and parents of the New School, Butterstone which was served with an improvement notice in November 2018.

Mindful of the Care Inspectorate’s obligation viz;

  • Transparency

  • Accountability

  • Proportionality

  • Consistency

  • Targeting


I would like information to determine whether or not that enforcement action was legal under the terms of the Public Services Reform Act (2010) and in particular, Section 62.

“Where informal enforcement has not succeeded in bringing about improvement or where the circumstances suggest that the formal enforcement is a necessary first step, consideration can be given to using our powers of enforcement under the Act.”

  1. Please indicate what informal enforcement action was taken prior to the issuing of an improvement notice

  2. Please indicate the severity of need that could justify enforcement as a ‘necessary first step’

Where there is a serious breach of regulations or conditions of registration, which is leading to poor outcomes the service users, such as to justify cancellation of registration, the service provider may be served with an improvement notice, under section 62 of the Act.

  1. Please indicate what regulation was breached to justify the improvement notice

  2. Please indicate why this was considered as a ‘serious breach’

  3. Please provide examples of the ‘poor outcomes’ that pupils at the school demonstrated to justify the improvement notice

  4. Please indicate why cancellation of the service could be considered as an appropriate option

Yours sincerely,

Bill Colley