First-tier Tribunal (Health Education and Social Care Chamber)

In the Care Standards Tribunal

Between:

AG

 v

Ofsted

[2010] 1736. EY-SUS

 

DECISION

Heard on the 6 October 2010 on the papers at Mowden Hall, Darlington before

Meleri Tudur, Tribunal Judge

David Braybrook, Specialist Member

Margaret Diamond, Specialist Member

 Appeal

1.     The appellant appeals against the decision of the Respondent to make an Interim Suspension Order, suspending her registration as a childminder for a period of six weeks from the 24 February 2010.

The Law

2.     Section 32 of the Childcare Act 2006 (“the Act”) provides that there should be two registers of childminders: the Early Years Register and the General Childcare Register.

3.     By section 33(1) of the Act, a person may not provide early years childminding in England unless they are registered in the Early Years Register as an early years childminder.

4.     By section 52(1), a person may not provide later years childminding in England unless registered in Part A of the General Childcare Register as a childminder.

5.     Section 69 of the Act provides for regulations dealing with the suspension of childminders and a right of appeal against such a decision to the Care Standards Tribunal.

6.     The Childcare (Early Years and General Childcare Registers)(Common Provisions) Regulations 2008 are made under section 69.

7.     Regulation 8 provides that a registered person may be suspended by the Chief Inspector by notice in the circumstances prescribed in Regulation 9.

8.     The test for the Respondent to consider when deciding whether to suspend a childminder is set out in regulation 9 and it is that “the Chief Inspector reasonably believes that the continued provision of childcare by the registered person to any child may expose such a child to risk of harm.”

9.     By regulation 12, a registered person whose registration has been suspended may appeal to the Tribunal against the decision and the Tribunal must either confirm the decision to suspend or direct that the suspension shall cease to have effect.

10. “Harm” in regulation 13 is defined as having the same meaning as in section 31(9) of the Children Act 1989.  It is defined as “ill-treatment or the impairment of health or development including for example impairment suffered from seeing or hearing the ill-treatment of others.

11. The burden of proof in suspension cases is on the Respondent.  The test is whether on a balance of probability the Respondent had and has reasonable grounds to believe that the continued provision of childcare by the Appellant may place children at risk of harm. 

Background.

12. The Appellant has been a registered childminder since 1981 and was registered to provide childcare on domestic premises.  She has been working with an unblemished record for 30 years.  She decided that she would retire at the end of March 2010.

13. On the 18 February 2010, Kent Child Protection Agency (KCPA) had a referral from a prospective foster carer, who had just attended a child protection training course.  The referrer notified KCPA that her goddaughter had made a disturbing disclosure to her some two years previously about alleged behaviour which had taken place at her former childminder’s premises and involved a member of the appellant’s household.  The child had been minded there from the age of 5 to 11 and had recently moved to secondary school and was no longer being minded on the premises. Ofsted convened a meeting of the panel on the 22 February 2010 and considered the information that it had received.  The panel concluded that there was insufficient evidence at that point to issue an Interim Suspension Order.

14. On the 23 February 2010, the child, now aged 13, was interviewed by the police.  Information about the interview was relayed to KCPA.  The information was passed on to Ofsted and another panel convened to consider developments.

15. In interview, the child had named 4 to 5 other children who could confirm her allegations of sexually inappropriate behaviour by the Appellant’s husband, and the panel concluded that in the light of the additional information provided, there was sufficient evidence to conclude that there may be a risk of harm to a child unless an Interim Suspension Order was made.

16. The Appellant received a telephone call that afternoon notifying her of the decision, and a notice was delivered to her by hand on the 24 February 2010 confirming that decision.

17. The Respondents did not disclose the nature or the substance of the allegations made other than to confirm that a child protection allegation had been made which involved a member of her household.

18. On the 29 February 2010, the appellant made an appeal against the decision to suspend her registration for a period of six weeks, pending the outcome of the further investigations.

19. A hearing of the appeal was conducted on the 25 March 2010 and the Appellant gave oral evidence.

20. A decision was issued on the 19 April 2010 dismissing the appeal.

21. On the 17 May 2010, the Respondent wrote to the Tribunal inviting the Tribunal to amend the decision issued under Rule 44 of the Tribunal Procedure Rules 2008.

22. On considering the request, Tribunal Judge Tudur set aside the decision of the Tribunal’s own volition by order dated 21 July 2010 and ordered a rehearing of the appeal.

23. The Tribunal reheard the appeal on the papers only on the 6 October 2010.

24. Despite the fact that the Interim Suspension Order expired on the 1 April 2010 and that the Appellant had retired on the same date, the Tribunal considered the reasons for the suspension and revisited the evidence to ensure that the appeal decision was appropriately considered and reasoned.

Evidence

25. The Tribunal bundle contained a statement by Karen de Lastie, Senior Officer of Ofsted within the Compliance Investigation and Enforcement Team.

26. The statement confirmed that on the 18 February 2010, a child previously cared for by the Appellant had made an allegation regarding a member of the house.

27. The complaint was referred to the Local Authority Designated Officer of the Kent Children and Families Services as a child protection concern on the next day.

28. On the 22 February 2010, a case review was held by Ms de Lastie to consider whether there was information which would indicate that minded children were at risk of harm.  At that point the review concluded that there was no evidence to support that risk.

29. On the 23 February, Ms De Lastie received an update from Kent Children and Family Services which confirmed that the child had been seen by the police and social worker.  The child had confirmed the allegations and the police were intending to proceed with their enquiries and carry out a video interview with her.  Ofsted believed that the person against whom the allegations were made still resided at the childminder’s home.

30. On the basis of the further information the case review concluded that an Interim Suspension Order should be made and an order was made under section 69 in order to safeguard other children in the Appellant’s care and to prevent the appellant from taking on additional children whilst the police investigation was ongoing.

31. Following receipt of the Appellant’s notice of appeal, Ms de Lastie had conducted a further case review on the 10 March 2010.  She confirmed that the police and Kent Children and Families Service had requested that Ofsted did not disclose any further information as this may prejudice the investigation.

32. In a second witness statement Ms de Lastie supplemented the first statement with the information that the Appellant was aware of the allegations made following the interview by the police where he had denied all the allegations.

33. A further case review had been conducted on the 22 March 2010 which led to the conclusion that the final decision regarding the lifting of the suspension could not be considered as the enquiries had not been concluded.

34. Copies of the case review minutes and case notes were produced as documentary evidence to support the statements made.

35. The agreed notes of evidence and submissions set out a summary of the evidence heard at the original hearing in March 2010.

36. In the course of that hearing, the Appellant had given oral evidence and disputed the contents of the statement made by the complainant.  She disputed the facts of the evidence given by the child in the allegations and described the child’s family as “rough”.  She alleged that the child had stolen from her and was known in the area as “having her knickers down”.  She described another incident where the child was alleged to have been caught with a boy in the playhouse with his trousers and her knickers down.  When asked what they were doing, the child had said “playing doctors and nurses”.  She alleged that the child was about 9 years old then.  She confirmed that she had not made any reference to the incident either to the child’s family or to Ofsted.

Tribunal’s conclusions with reasons

37. We considered the evidence presented by the Respondent setting out the sequence of events leading to the making of the interim suspension order.

38. The Upper Tribunal in the case of Ofsted v GM & WM[2009]UKUT 89 (AAC) concluded that regulation 9 means what is says, and it says that the circumstances for a suspension are that the Chief Inspector reasonably believes that the continued provision of childcare may expose a child to a risk of harm.

39. This is the test that we have applied in relation to this case: did the evidence available at the various case reviews support the conclusion drawn that the continued provision of childcare by the Appellant may expose a child to a risk of harm?

40. We noted that when the allegation was first made, the case review had weighed the evidence and concluded that there was insufficient evidence to support the belief that the continued provision of childcare by the Appellant may expose a child to risk of harm.

41. The matter was further considered following the further information disclosed that the interview with the 13 year old child had led to the allegations made two years previously being confirmed again with other children also being named.  It was only on the strength of the additional information given on the 23 February 2010 that the decision to suspend the registration had been made.

42. We considered whether the evidence supported the decision: we had regard to the fact that the allegations had been confirmed by a child of 13 years, so that it is a child who is of an age to understand the importance of telling the truth and knowing the difference between right and wrong;  the child is no longer minded by the childcare provider and has no obvious axe to grind by making false allegations and consequently, we concluded that the decision by the Respondent was reasonable, and that there were reasonable grounds for the belief on the 23 February 2010 that unless the registration was suspended the continued provision of childcare by the Appellant may expose a child to risk of harm.

43. We noted that the Respondent in this case had applied a considered and fair process of weighing the evidence and reaching a decision on the suspension, in concluding on the 22 February that the evidence of an allegation made two years previously was insufficient and then at a further case review on the 23 February on the strength of the further information provided, concluding that the evidence did support the decision to suspend the registration.  The documentary evidence submitted confirms that the Respondent worked with the evidence available without delay.

44. Whilst the Appellant’s confusion about the lack of information imparted to her is understandable, the Respondent was obliged to keep the Appellant in the dark so as not to compromise the police and Kent child and family services investigations.

45. An application was made for a Restricted Reporting Order to prevent the identity of any child being published pursuant to rule 14 of the Tribunal Procedure Rules.  We have decided that such an order should be made and should extend to the publication of the decision.

46.  This is the unanimous decision of us all.  The appeal is dismissed.

Dated 6 October 2010

 

Meleri Tudur, Tribunal Judge  

David Braybrook, Specialist Member

Margaret Diamond, Specialist Member