Regulation 40: Worked Scenarios, Decision Tools and Audit

1. The notification decision: when to notify

Regulation 40 requires the registered person to notify Ofsted without delay of the events and matters set out in Schedule 3. These include: serious illness or accident, serious injury, death, involvement in sexual exploitation, involvement in drug or alcohol misuse, events that may affect the welfare or safety of a child, and other matters specified in the Regulations. The full list is in the definitive guide.

The key question is not whether something has happened, but whether it falls within the scope of what Regulation 40 requires you to notify. Some events are clear: a child is seriously injured, a child dies, a child goes missing. Others are less clear: a child is found with a small amount of cannabis, a child is involved in a minor accident, a child makes an allegation that may or may not be substantiated. The worked scenarios below are designed to help you think through these less clear situations.

2. The Hub Seriousness Test

The Seriousness Test is a practical tool to help you decide whether to notify. It is not a legal test and it does not replace the requirements of Regulation 40 or Schedule 3. It is a way of structuring your thinking when the situation is not clear-cut.

Ask four questions: First, did a child suffer harm or could a child have suffered harm? Second, is this the kind of event listed in Schedule 3? Third, would an inspector or a parent expect to be told about this? Fourth, if I am not sure, should I notify anyway and let Ofsted decide? If the answer to any of the first three is yes, notify. If the answer to the fourth is yes, notify.

3. Worked scenarios

The scenarios below are designed to help you think through real situations. They are not exhaustive and they are not legal advice. Each situation should be judged on its own facts, and when in doubt, notify.

Scenario 1: A child is found with a small amount of cannabis

A 15-year-old is found with a small amount of cannabis in their bedroom. They say it is for personal use. There is no evidence of supply. This falls within the scope of Regulation 40 because it involves drug misuse. Notify without delay. You should also consider whether to involve the police, whether the child needs support, and whether your safeguarding procedures need to be activated. Record your decision and your actions.

Scenario 2: A child has a minor accident at home

A 12-year-old trips and falls in the garden, cutting their knee. The cut is cleaned and dressed by staff. No medical attention is needed. The child is upset but recovers quickly. This is a minor accident that does not meet the threshold for notification under Regulation 40. It does not involve serious illness or serious injury. Record it in the home's accident book and in the child's daily record. If the injury had been more serious, or if there were concerns about how it happened, the decision might be different.

Scenario 3: A child goes missing for two hours

A 14-year-old leaves the home without permission and returns two hours later. They are uninjured and say they went to see a friend. Missing from care is notifiable under Regulation 40. Notify without delay, even if the child returns quickly. You should also follow your missing from care procedures, including contacting the police, the social worker, and the parents as appropriate. The length of absence does not determine whether to notify: the fact that the child went missing does.

Scenario 4: An allegation is made against a staff member

A child alleges that a staff member grabbed their arm and hurt them. The staff member says they were preventing the child from running into traffic. Allegations against staff are notifiable under Regulation 40 because they may affect the welfare of a child. Notify without delay. You should also follow your allegations procedures, including contacting the LADO, and consider whether the staff member should be removed from contact with children while the allegation is investigated. Record your decision and your actions.

Scenario 5: A child is excluded from school for three days

A 13-year-old is excluded from school for three days for disruptive behaviour. The exclusion is fixed-term and the child is expected to return. This does not fall within the scope of Regulation 40. It is not a serious event and does not involve serious illness, injury, or harm. Record it in the child's file and follow up with the school. If the exclusion were permanent, or if there were safeguarding concerns behind the exclusion, the decision might be different.

4. Decision recording

Every notification decision should be recorded, whether you notified or not. The record should show: what happened, when it happened, who was involved, what decision you made, why you made it, and what you did next. If you decided not to notify, the record should explain your reasoning. If you decided to notify, the record should show when and how you notified, and what response you received.

Good decision recording protects the home and the child. It shows that you thought about the situation carefully, that you made a reasoned decision, and that you acted on it. It also helps with future decisions: if a similar situation arises, you can look back at what you did before and why.

5. Notification timescales and templates

Regulation 40 says to notify without delay. This means as soon as possible after the event, not the next day or when it is convenient. The DfE Guide says notification should be made as soon as is reasonably practicable. In practice, this means the same day for most events. The full guidance on notification methods, forms, and follow-up is in the definitive guide.

The Hub provides a notification template that you can use to make sure you include all the information Ofsted needs. The template is a practice aid, not a legal requirement. Ofsted may have its own forms and processes, and you should follow those where they exist.

6. Common pitfalls

Some common pitfalls in Regulation 40 notifications include: delaying notification because you are not sure, treating notification as something to do after everything else is sorted, not recording the decision and the reasoning, not notifying because the event seems minor, and not following up after notification to check that Ofsted has received it.

7. Manager and RI self-tests

The self-tests below are designed to help you check your own understanding and practice. They are not a legal requirement and they do not replace the need to follow the Regulations and the DfE Guide.

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