We must remember that the actions of the Care Inspectorate took place AFTER a police-led child protection investigation had concluded that nothing had happened (November 2nd 2018).
It is probably the first time something that has not happened has caused the closure of a school.
“A fraud refers to the deliberate use of deception or dishonesty to disadvantage or cause loss to another person or party.
Fraud can be committed by both individuals and companies. Companies are liable based on the ‘directing mind and will’ principal.
Fraud is committed when someone achieves a practical result by the means of false pretence. In other words, where someone is caused to do something they would not otherwise have done by use of deception”.
“In addition, if, in the course of business or through a close personal relationship, a person becomes aware or suspicious that two or more people have got together for the principal purpose of committing a serious crime (such as fraud), that person commits an offence if s/he does not report that knowledge or suspicion to Police Scotland (s31 Criminal Justice and Licensing (Scotland) Act 2010)”.
Care Inspectorate powers are laid out in Section 62 of the Public Services Reform Act (2010). Enforcement action is seen as a ‘last resort’.
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.
Ø No informal enforcement action was taken. For example, in discussing with school managers the reasons for their (correct) decision to regard the original letter as raising concerns about professional practice and not pupil welfare.
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.
Ø There was no “serious breach of regulations”
Ø There were no “poor outcomes for service users”
No opportunity was provided to school managers to explain their decision-making before enforcement action was taken.
The Improvement Notice issued by the Care Inspectorate was ‘incompetent’ in that it detailed areas for improvement for which there was no evidence of failings, e.g. with respect to behaviour between staff and pupils, conflicts of interest.
It is the view of our Investigations Team that the Care Inspectorate acted illegally and failed to follow their own procedures.
It is also our view that the Care Inspectorate was guilty of failings under Administrative Law with respect to the stipulations that their actions should be;