In the First-Tier Tribunal (Health, Education and Social
Care)
Grantham Magistrates Court 18th July 2011
Before
Deputy Chamber President Judge John
Aitken
Mr James Churchill
Mr Michael Flynn
JC
Appellant
v.
OFSTED
Respondent
Decision
- The appellant requested that his appeal in this
matter be dealt with on the papers, however upon considering the papers a
panel than allocated decided that further evidence was necessary and the
matter was fixed for oral hearing.
- The
tribunal had a bundle of papers including the decision to suspend, the
appeal, and the response to the appeal. In addition statements of Mr Hill,
a third witness statement of JC and a number of statements in support of
his position were considered.
- The
appellant appeals to the tribunal against the respondent’s decision dated
17th June 2011 to suspend his registration, as a child minder
for six weeks until 29th July 2011.
- The Tribunal makes a restricted reporting order
under Rule 14 (1) (a) and (b) of the Tribunal Procedure (First tier
Tribunal) (Health, Education and Social Care Chamber) Rules 2008,
prohibiting the disclosure or publication of any documents or matter
likely to lead members of the public to identify the appellant, or his
wife, and directing that reference to them shall be by their initials so
as to protect their private lives.
The
background
- The appellant is a married man, his partner is
MR, also a registered childminder who works with him. A number of
complaints were made to Ofsted prior to June 2011, they were found to be
unsubstantiated. His wife was investigated by the Police over one matter,
and the Police found insufficient evidence to justify a charge and the
matter was not proceeded with. The appellant is taking steps to obtain
legal redress against an employee that he believes is responsible for
malicious allegations.
Events
leading to the issue of the notice of statutory suspension.
- The respondent has received a number of
allegations since 20th April 2011 about shouting and swearing
in front of children, unsupervised children, poor and inappropriate
nutrition, an unclean setting, the over minding of children and staff who
have not been checked for suitability. Importantly there are also
allegations of assault.
- By 16th June 2011 the respondent had
obtained witness statements from further witnesses who might be expected
to have direct knowledge of the provision of child care by the appellant.
They identified similar issues.
Events
following the suspension
- The respondent has obtained further statements
on 22nd and 23rd June and further on 1st
July again allegations of improper behaviour were made. In total 7
witnesses (as identified by Ms Stone) have made statements which allege
improper behaviour, some are former employees, others are not. The
respondents allege that enforcement action has not yet been taken because
of the possible interference with a Police investigation of the appellant.
The
Law
- The statutory framework for the registration of
childminders is provided under the Childcare Act 2006. This Act
establishes two registers of childminders: the early years register and
the general child care register. Section 69 (1) Act provides for
regulations to be made dealing with the suspension of a registered
persons’ registration. The section also provides that the regulations must
include a right of appeal to the tribunal.
- Under the Childcare (Early Years and General
Childcare Registers) (Common Provisions) Regulations 2008 when deciding
whether to suspend a childminder the test set out in regulation 9 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 a
risk of harm.”
- The suspension shall be for a period of six
weeks. Suspension may be lifted at any time if the circumstances described
in regulation 9 cease to exist. This imposes an ongoing obligation upon
the respondent to monitor whether suspension is necessary.
- “ Harm” is defined in regulation 13 as having
the same definition as in section 31 (9) of the Children Act 1989:
“ ill-treatment or the impairment of health or development including,
for example, impairment suffered from seeing or hearing the ill treatment
of another”.
- The powers of the tribunal are that it stands in
the shoes of the Chief Inspector and so in relation to regulation 9 the
question for the tribunal is whether at the date of its decision it
reasonably believes that the continued provision of child care by the
registered person to any child may expose such a child to a risk of harm.
- The burden of proof is on the respondent. The
standard of proof ‘reasonable cause to believe’ falls somewhere
between the balance of probability test and ‘reasonable cause to
suspect’. The belief is to be judged by whether a reasonable person,
assumed to know the law and possessed of the information, would believe
that a child might be at risk.
- Counsel helpfully reiterated these tests and
agreed they were the appropriate ones.
Issues
- We
considered the documents referred to above.
- The
respondent’s view, based on the witness statements and records referred
to, is that there is evidence of risk requiring investigation, and
suspension and indeed enforcement were it not for the possibility that
such action might prejudice the Police enquiry into these matters.
- Mr Davies on behalf of the respondent submits
that the decision, could not be said to have any proper basis. In the
first place the actual statements said to relate to wrongdoing by the
appellant have not been produced and in the place of the Chief Inspector
if he had not seen such statements he could not have a basis to act upon
them. Secondly it was argued that the evidence before the Tribunal
amounted to this in respect of the Police. They had had the case referred
to them on 20th June 2011, the Officer in charge had been on
holiday over the past week, but when an update was sought it was clear
that all that had been done was the formation of an action plan. In
fairness that could not be said to be an ongoing investigation which
presented enforcement or could be an ongoing investigation which enabled
the respondent to rely upon it as a reason to suspend.
Conclusions
- We of course make no findings of fact with
regard to the allegations. We note however that the position with regard
to the allegations is that there are a number of statements in existence
which relate misbehaviour by the appellant, including assault, and if made
out, breaches not only of regulations but which also might amount to
neglect or cruelty.
- We consider in those circumstances the
respondent is entitled, as do we in his place, to consider that where
there is an ongoing Police investigation supported by statements, whether
the detail of the content is divulged or not, into such matters that there
is a reasonable belief that a child may come to harm. In short, there is
presently a reasonable prospect of the investigation showing that the
suspension is necessary. That no steps have been identified, aside from
allocating the officer and forming an action plan in 4 weeks from referral
(which included a period of leave for the Officer) does not indicate that
the investigation is not ongoing. Equally refraining from enforcement is
reasonably done in such circumstances because it may interfere with the
investigation.
- We do however make the following observation. A
defunct police investigation could not support such reasoning, which would
then have to rely upon the actions and evidence held by Ofsted directly.
In this case the investigation has begun only to a limited extent, in that
an officer has been assigned and an action plan, not containing any dates,
has been said to have been produced by the police, which we have not seen.
It may be that as, Mr Davies submits, this case has a decreased level of
urgency in the eyes of the Police because the suspension acts to ensure
protection of the children. We have seen no evidence of that, but would be
concerned if that were to be the case. We understand that an investigation
is complex and often difficult, but the livelihood of the appellant rests
upon a speedy conclusion. In the absence of such a speedy conclusion his
business may well be damaged beyond repair and even vindication might not
assist him financially. We would expect to see in any further appeal that
may come before us in this matter some clear evidence of progress with
regard to the Police investigation, if that were still given as the reason
to suspend or continue to suspend. That does not mean we prescribe any
particular action by any particular date, but the appellant is entitled to
know that whilst he is suspended because of an investigation that
investigation is progressing. In most cases the Police form a preliminary
view of witnesses and from that the general merits of an investigation,
some allegations may end there. Knowing that an investigation is
progressing in areas such as that is fundamental to it being fair to
suspend in these circumstances. In that way Ofsted is able to discharge
its duty to justify a suspension in the words of the tribunal in Ofsted
v GM & WM [2009] UKUT 89 (AAC) at paragraph 27:
“…a suspension imposed on the ground that there is an outstanding
investigation can, in our judgement, be justified only for so long as
there is a reasonable prospect of the investigation showing that such steps
are necessary”
Decision
The
appeal against interim suspension is dismissed
Judge John Aitken
Deputy Chamber
President
Health Education
and Social Care Chamber
19 July 2011
