Kamara v Ofsted [2011] UKFTT 697 (HESC) (02 November 2011)

[2011] 1891.EY

IN THE FIRST TIER TRIBUNAL

(HEALTH, EDUCATION AND SOCIAL CARE CHAMBER)

IN THE MATTER OF AN APPEAL UNDER SECTION 74(1)(E) OF THE

CHILD CARE ACT 2006

APPEAL AGAINST CANCELLATION OF REGISTRATION

AS A CHILD MINDER

B E T W E E N:-

D’JENABA ZAINAB KAMARA

Applicant

and

OFSTED

Respondent

JUDGMENT IN THE APPEAL HEARD IN LONDON12^th, 13^th, 14^th, 15^th, 28^th

and 29^th SEPTEMBER 2011

BEFORE: MISS GILLIAN IRVING QC

MISS MARILYN ADOLPHE

MS CLAIRE TRENCHER

REPRESENTATION: The Appellant was unrepresented.

The Respondent OFSTED was represented by Miss G Ward of Counsel instructed by Field Fisher Waterhouse

1. This is the Appeal of Mrs D’Jenaba Zainab Kamara, hereinafter referred to as the Appellant. Her Appeal dated 20^th April 2011, lies against the decision of OFSTED, hereinafter referred to as the Respondent, to cancel her registration as a child minder. The Appellant has been registered as a child minder since 31^st August 2000. Currently her registration is subject to conditions which include that she:

· must not provide overnight care;

· may care for no more than 4 children under 8 years; of these, not more than 3 may be under 5 years, and of these, not more than 1 may be under 1 year at any one time;

· when caring for 4 or 5 year old children who are in full-time education, she may increase the number in the early years group by the number of children in full-time education, providing the maximum number is not exceeded.

2. At the time of the Appeal Hearing before us the Appellant was continuing to care for 3 children, no steps having been taken by the Respondent to seek summary termination of cancellation. On the facts of this Appeal we do not criticise the Respondent for that decision.

3. The Respondent issued the Appellant with written notice of its intention to cancel her registration on the 9^th December 2010. The Appellant objected to this and the Respondent convened an Objection Panel before which she appeared. She was unrepresented. The decision to cancel the Appellant’s registration was confirmed in a letter dated 18^th March 2011.

4. On the 12^th July 2011 Judge Hillier determined that the Appeal should be admitted out of time.

5. The Appeal took some 6 days to hear because:

(a) the Appellant required an interpreter and none had been appointed. Thanks to the good offices of the Tribunal Office one was found;

(b) at the time the ELH (the estimated length of hearing) was given, no statements had been filed and witness requirements were therefore unknown; and

(c) the Appellant produced a number of relevant documents on Thursday 13^th September which required detailed consideration and consequently necessitated further delay.

6. The Legal Provisions Governing this Appeal

Section 68(2) of the Child Care Act 2006 enables the Respondent to cancel a person’s registration if it appears:-

(a) that the prescribed requirements for registration which apply in relation to the person’s registration under that chapter have ceased, or will cease, to be satisfied;

(b) that the person has failed to comply with a condition imposed on his registration under that Chapter;

(d) in the case of a person registered under Chapter 2 that he has failed to comply with Section 40(2)(a); or

(e) in any case, that he has failed to pay a prescribed fee.

7. In this case the Respondent asserts that the Appellant in in breach of Section 68(2)(c).

8. By virtue of Section 74(1)E, the Appellant has a right to appeal to this Tribunal. The legal burden remains vested in the Respondent who must establish the facts upon which it relies to support cancellation. It must also demonstrate that the decision to cancel the Appellant’s registration is proportionate and necessary. The standard of proof to be applied is the balance of probability.

9. The powers of the Tribunal Panel can be found in Section 74(4) of the 2006 Act. Essentially the Tribunal may either confirm the Respondent’s decision to cancel or direct that it shall not have effect. If the Tribunal decides that cancellation should not have effect, it may impose conditions on the Appellant’s registration, or vary or remove any of the current conditions.

10. The Legal Framework Governing the Registration of Child Minders and Relevant to this Appeal

This is a complicated area of law and we are most grateful to Miss Ward for her thorough and helpful analysis which we adopt in its entirety.

11. The Legal Framework for the registration and regulation of child minders is to be found in Part 3 of the Child Care Act 2006. It was previously governed by the Children Act 1989. The relevant provisions of the Child Care Act 2006 came into force on 1^st September 2008. It is uncontroversial that these new provisions sought to elevate and regularise the standard of child minding in this country and the demands now made on child minders or potential child minders are significant.

12. By virtue of Section 32 CCA 2006, OFSTED, the Respondent, is responsible for maintaining the Child Care Registers, the Early Years Register (EYR) and the General Childcare Register (GCR).

13. Section 96 of the 2006 Act provides the relevant definition of early years and later years’ provision, it is drafted in a manner which is most unhelpful and one must cross-reference to other Sections in the Act. In summary, early years’ provision means provision of childcare for a child aged 5 and under on domestic premises for reward. Later years’ provision means provision of childcare for a child between the age of 5 and 8 on domestic premises for reward.

14. Section 35 of the 2006 Act governs the application for registration by potential early years’ child minders. The Respondent must grant the application if the Applicant is not disqualified from registration and it appears that any requirements prescribed by Section 35(3) are satisfied and are likely to continue to be satisfied.

15. The requirements are prescribed by the Childcare (Early Years Register) Regulations 2008 and include:

(a) that the person registered is suitable;

(b) that the Early years Foundation Stage (EYFS) learning and development requirements are met;

16. The EYFS learning and development requirements and welfare requirements can be found in Sections 2 and 3 of the EYFS Statutory Framework. This was given statutory force by a number of provisions including Section 39 of the 2006 Act. The consequence is that compliance with Sections 2 and 3 of the Statutory Framework document is a requirement of registration on the Early Years Register.

The areas covered by the learning and development requirements are set out in Section 41(2) and 41(3) CCA 2006:-

“41(2) The learning and development requirements may specify in relation to each of the areas of learning and development:

(a) the knowledge, skills and understanding which young children of different abilities and maturities are expected to have before the 1^st September next following the day on which they attain the age of five (‘early learning goals’);

(b) the matters, skills and processes which are required to be taught to young children of different abilities and maturities (‘education programmes’); and

(c) the arrangements which are required for assessing children for the purpose of ascertaining what they have achieved in relation to the early learning goals (‘assessment arrangements’).

41(3) The areas of learning and development are as follows:

(a) personal, social and emotional development;

(b) communication, language and literacy;

(d) knowledge and understanding of the world;

(e) physical development; and

(f) creative development.

The general welfare requirements include safeguarding and promoting children’s welfare, ensuring suitable adults are looking after or having contact to children, ensuring that the premises are suitable, that records are maintained and policies and procedures are in place and that there is a plan for each child to ensure they have an enjoyable and suitably challenging learning experience.

17. Section 52 of the 2006 Act governs applications for registration on the General Child Care Register for later years’ child minding.

18. The requirements for registration and regulations governing the provision of later years child minding are contained in the Child Care (General Child Care Register) Regulations 2007. To a large extent these Regulations mirror those prescribed by the Early Years Register.

19. The Respondent is required to inspect early years’ provision and later years’ provision and following every inspection by sending a letter to let the provider know whether or not they are meeting the registration requirements. It has the power to serve notices on a provider requiring improvements. The issue of a Welfare Notice is a serious matter and failure to comply with it can lead to Prosecution.

20. Pursuant to Section 75(3)(f) CCA 2006 a person whose registration has been cancelled by the Respondent is disqualified from registration on either Register.

21. The Case Pleaded Against the Appellant

The Appellant, who is 63 years of age, is registered both on the Early Years Register and the General Child Care Register. She resides in the Croydon area and, as can be seen from her application, she has been child minding for some 11 years. As far as we are aware there have not been any complaints made against her by any parent at any time.

22. The Appellant comes originally from Guinea. She had no formal education and describes herself as semi-literate in the Appeal papers. English is not her first language of choice and she is evidently more comfortable expressing herself in her own language of Sou-Sou. At all times during this Hearing we have sought to ensure that the Appellant has fully understood the proceedings and the case asserted against her. Moreover considerable flexibility was shown by the Panel in order to facilitate the Appellant’s expression of her case and to provide ample opportunity for her to question any of the witnesses.

23. We say, at the outset we were impressed by the dignity with which the Appellant conducted herself in a situation which was unfamiliar and no doubt intimidating and stressful for her.

There can be no doubt that she is passionate about her work and derives great enjoyment and satisfaction from it. At no stage did the Respondent assert or seek to assert that the Appellant had “harmed” or would cause harm to any child intentionally.

24. Inspections going back to 2008 had, however, identified concerns and at this stage it would be helpful to summarise them, the date they were identified, by whom and what action was taken by the Respondent. In addition to the relevant paperwork derived from and ancillary to the visits made at the time, we also had the benefit of hearing evidence from Laura Brewer, Margaret Ferris and Karen De-Lastie, all of whom had visited the Appellant’s home.

Date of Inspection	By Whom		Action taken by Respondent – and needed to be taken by Appellant
15.2.08	June Fielden	The quality and standards of care were deemed inadequate.	The Respondent served a notice of action to improve by letter dated 24.2.08. The action required the Appellant to: · Keep a daily attendance record of all minded children. · Develop knowledge and understanding of Regulations relating to complaints.
5.8.08	Laura Brewer	The quality and standards of care were deemed inadequate.	The Respondent served a notice of action to improve by a letter dated 14.8.08. The action required the Appellant to keep daily attendance records and ensure they were available. She was also required to complete a First Aid course.
23.3.09	Laura Brewer	The quality of the provision was deemed inadequate.	A notice to improve was issued. The Appellant was required: · To improve knowledge of the Welfare requirements of EYFS and the learning and development requirements of EYFS. · Plan and organise a care plan for each child consistent with their needs and development. · Conduct risk assessments.
16.12.09	June Fielden	The quality of the provision was deemed inadequate.	No children were on the roll when inspection took place. However a notice to improve was served. The Appellant was required: · To improve knowledge of welfare, learning and development requirements. · Keep proper care plans for each child. · Obtain parental consent for emergency medical treatment. · Keep a record of risk assessment. · Keep attendance records.
30.6.10	Jane Chappell	The quality of the provision was deemed inadequate.	No children were on the roll when inspection took place. A welfare requirement notice was served by letter dated 15^th July 2010. Extensive action was required by the Appellant namely: · She had to demonstrate how she would obtain parental permission, at the time of the child's admission to the provision, to the seeking of any necessary emergency medical advice or treatment in the future (Safeguarding and promoting children's welfare). · She had to devise and implement an effective safeguarding children policy and procedure which complied with the procedures of the Local Safeguarding Children's Board (LSCB) (Safeguarding and promoting children's welfare). · She had to devise and implement a system to carry out a full risk assessment for each type of outing, which included an assessment of required adult:child ratios. This assessment had to take account of the nature of the outing and be reviewed before embarking on each specific outing (Safeguarding and promoting children's welfare). · She had to demonstrate how she would ensure meals and snacks provided were healthy, balanced and nutritious (promoting good health). · She had to develop strategies to manage children's behaviour effectively and in a manner appropriate for their stage of development (behaviour management). · She had to demonstrate how she had the appropriate training skills and knowledge with particular regard to putting into practice the requirements of the Early Years Foundation Stage. · She had to conduct a risk assessment and review it regularly- at least once a year or more frequently where the need arose. · She had to implement a clearly defined procedure for the emergency evacuation of the premises (suitable premises, environment and equipment). · She had to plan and provide experiences which are appropriate to each child's stage of development as they progressed towards the early learning goals (Organisation). · She had to undertake sensitive observational assessment in order to plan to meet young children's individual needs (Organisation). · She had to maintain a record of the risk assessment clearly stating when it was carried out, by whom, date of review and any action taken following a review or incident. · She had to gain knowledge and understanding of the Early Years Foundation Stage learning and development requirements so that children were provided with an educational programme that would enable them to make progress towards the early learning goals in all areas of learning (Early learning goals).
4.8.10	Margaret Ferris	The provision was deemed inadequate.	A further Welfare Requirement Notice was served by letter dated 3.9.10. The Appellant was required to: · demonstrate how she had the appropriate training skills and knowledge with particular regard to putting into practice the requirements of the Early Years Foundation Stage; · plan and provide experiences which were appropriate to each child's stage of development as they progressed towards the early learning goals (Organisation); · undertake sensitive observational assessment in order to plan to meet young children's individual needs (Organisation); · gain knowledge and understanding of the Early Years Foundation Stage learning and development requirements so that children were provided with an educational programme that would enable them to make progress towards the early learning goals in all areas of learning (Early learning goals); · devise a written statement of procedures to be followed in relation to complaints; · take action as specified in the compulsory Childcare Register section of the report (Procedures for dealing with complaints).
4.10.10	Margaret Ferris	The provision was deemed inadequate.	Notice given of intention to take enforcement action or steps to cancel registration.
30.12.10	Margaret Ferris Karen De-Lastie	The provision was deemed inadequate.	A welfare notice was issued. Extensive action was required by the Appellant namely: · She had to ensure that she had effective systems in the administration of medication to children. This had to include a system to obtain prior written permission from parents for each and every medicine; a system to record medication administered and a system for informing parents when medication had been administered. · devise and implement an effective^: safeguarding children policy and procedure which complied with the procedures of the Local Safeguarding Children's Board (LSCB); · devise and implement a system to carry out a full risk assessment for each type of outing, which included an assessment of \|required adult: child ratios. The assessment had to take account of the nature of the outing and be reviewed before embarking on each specific outing; · conduct a risk assessment and review it regularly- at least once a year or more frequently where the need arises · implement a clearly defined procedure for the emergency evacuation of the premises; · develop strategies to manage children's behaviour effectively and in a manner appropriate for their stage of development; · demonstrate how she would ensure meals and snacks provided were healthy, balanced . and nutritious; · maintain a record assessments clearly stating when carried out, by whom, date of review and any action taken following a review or incident; · maintain an accurate record of children's attendance, including time of arrival and departure’ · demonstrate appropriate training skills and knowledge with particular in regard to putting into practice the requirements of the Early Years Foundation Stage; · plan and provide experiences which were appropriate to each child's stage of development as they progressed towards the early learning goals; · undertake sensitive observational assessment in order to plan to meet young children's individual needs.
8.3.11	Margaret Ferris	WRN not complied with.	Notice that they intended to pursue cancellation of registration.

25. Since the 8/3/11 further inspections have been carried out. Attempts to conduct inspections on 26/5/11 and 9/6/11 were unsuccessful. The Respondent asserts that its officers were refused entry, the Appellant denies this. What is clear to the Panel is that the Appellant did not appear to have a full and adequate understanding of the role and powers of the Respondent.

26. There were stark differences in the recollection of the witnesses for the Respondent and the Appellant. Not all of these can be attributed to a lack of understanding between the parties. Where there is a conflict in account we prefer the evidence of the Respondent’s witnesses, each of whom was temperate, balanced and fair. There was no sign or hint of prejudice as alluded to by the Appellant. On the contrary, all the Respondent’s witnesses impressed us as professional and objective. In analysing the accuracy and truth of their accounts we had in addition to their oral testimony their contemporaneous notes and, most significantly, the evidence of the Appellant.

27. It was apparent from the Appellant’s own testimony and the documents she produced that her understanding of the regulations and what was now required of her was limited. She found it difficult to explain concepts such as safeguarding. She did not seem to understand the problems with the documents she did produce namely the attendance records and medical consent forms. Some were in triplicate and differed from one another. She did not appear to understand the purpose of the forms or why they were important.

28. Because of the wide disparity in accounts it is necessary to make findings of fact in relation to the inspection visits.

29. We accept the evidence produced by the Respondent that at the inspections conducted in February 2008, the Appellant did not supply any attendance records for 2008 and did not have in place a complaints procedure. At the time she was caring for two children under 5 all day and two children over 5 after school. Her knowledge of the regulations which applied at that time was not satisfactory. Although there were several positive aspects of the inspection which we acknowledge, overall it was below standard.

30. We heard direct evidence from the Inspector who performed the inspections on 5/8/08 and 23/3/09.

Whilst again acknowledging positive aspects of those inspections we are satisfied given the nature of the concerns, which are replicated in subsequent visits, that the reports before us accurately reflect the problems encountered. Attendance records were unavailable for inspection in August 2008. The Appellant was unable in March 2009 to demonstrate an adequate knowledge and understanding of the learning and development requirements. She struggled in explaining to the Tribunal what was meant by personal, social, emotional development and wellbeing of the children whilst in her care. Given that at the time of addressing us the Appellant had attended two periods of training, her inability to do so was difficult to understand. Whether it was because of the Appellant’s poor grasp and, more importantly, inadequate comprehension of English is unclear.

The EYFS (Early Years Foundation Stage) requires all child minders to have a sufficient grasp of the English language in order to keep children safe. The ability to read instructions on medication, call for emergency assistance, describe symptoms as well as being able to help children develop their communication, language, literacy and numeracy skills is a fundamental requirement of any child minder. The Tribunal sought to ascertain the ability of the Appellant to meet this requirement and certainly she was able to read letters asked of her. However, when cross-examined to explain her failure to respond to the Notices served upon her she cited an inability to understand the communications sent by the Respondent. There was an inconsistency and, we regret to say, a lack of candour on the part of the Appellant in this regard.

31. A Welfare Requirement Notice was served following the inspection in June 2010 and extensive improvements were sought. The report prepared by the Inspector states:

“The child minder demonstrated very limited knowledge and understanding of many aspects of the Early Years Foundation Stage. She has insufficient knowledge of child protection procedures approved by the Local Safeguarding Children Board and does not fully understand her responsibility to protect the welfare and wellbeing of the child. Risk assessments have not been carried out or recorded to ensure all potential risks are identified and acted upon. Fire safety arrangements are also insufficient; there are no fire evacuation plans in place and emergency evacuations have not been practised with children whilst minding. Also, parental permissions had not been sought for each child for emergency medical advice and treatment. These failings would place children at significant risk in the event of an emergency. There is no complaints procedure in place should parents have a concern.

The child minder demonstrated little understanding of suitable procedures to ensure that children would be provided with healthy, balanced and nutritious meals, snacks and drinks. Furthermore, suitable strategies for managing children’s behaviour have not been put in place, for example sweets have been used as a way of trying to manage children’s behaviour.

The child minder lacks sufficient knowledge and understanding of the learning and development requirements. She does not fully understand her responsibility to plan and provide activities and experiences which cover all areas of learning and are appropriate to each child’s stage of development. The child minder’s capacity to improve is poor; she has no self-evaluation system to monitor and evaluate her provision. As a result, the child minder is unable to identify her strengths and weaknesses or target areas for improvement. Furthermore, little action has been taken to secure improvement since the last inspection. Consequently, children’s welfare, learning and development would be seriously compromised”.

We accept the accuracy of this recording.

32. Prior to the Notice of intended cancellation, all remaining inspections were carried out by Margaret Ferris accompanied on one occasion by Karen De-Lastie. The problems identified were familiar and included the ongoing failure to produce accurate and properly recorded attendance records and parents authorisation form to administer medication,, accident reports, forms completed in advance, incomplete consent to medical treatment forms, poverty of understanding in relation to safeguarding and child protection, the absence of care planning for each child, inadequate risk assessments both internal and external and an ongoing lack of understanding of the regulations and the concepts behind them.

33. In relation to the allegation that the Appellant failed to provide adequate records she sought to disprove this and produced on Thursday 15^th September a number of documents which she asserted were produced to Mrs Ferris and which had, in part, previously been produced before the Objections Panel in March 2011.

These documents contained a number of discrepancies and at worst suggest that there has been some ‘manufacture’ of records both after March 2011 and following the commencement of this hearing. Given the obvious deficiencies therein, however, we are not led to conclude that this was as a deliberate attempt to mislead but more likely due to chaotic organisation on the part of the Appellant.

34. At the inspection conducted at the beginning of 2010 and again in August and October 2010, the Appellant informed the Inspectors that she had not cared for any child since December 2009/January 2010. Following information to the effect that the Appellant was caring for a child ‘F’ in December 2010 a visit was made.

Child F was not present at the inspection but there was an attendance record for her. This had been completed in advance and included the day after the inspection visit. The records available, such as they were, appeared to have been completed by different people and the Appellant was unable to identify the authors. Attendance records were uniform, completed in one go and in advance.

On the 28^th September 2011, the Appellant told the Tribunal that she had been caring for child ‘M’ throughout 2010. This is completely contrary to her past assertion and there are no records at all dealing with his attendance in that year. She could not explain their absence.

35. We are satisfied that the Respondent gave the Appellant sufficient opportunity to remedy the deficits in her standard of care. The suggestion made by Mrs Ferris that she resign rather than have her registration cancelled was well intentioned given that once cancellation has occurred it is much harder to re-register and waiver of the cancellation must be sought with the burden transferring to the Appellant.

36. In considering whether the sanction imposed by the Respondent was proportionate we have regard to the duration of the concerns and the failure to exact improvements. Having had the benefit over several days of observing and listening to the Appellant we must sadly conclude that the sanction imposed was and is appropriate. The Appellant does not appear to have the ability to understand the requirements and make the changes necessary. There were several examples of this throughout the hearing, when she did not understand the importance of her basic responsibilities as a provider regarding the issues of consent and permission from parents which placed the children in high risk. She will no doubt find this a very hard decision to accept. She is clearly fond of the children she cares for and the parent we heard from, Haja Banja, clearly holds her in high regard. These days that is not enough. The Regulations may seem onerous but they are designed to protect the child minder as well as the child. Records of where a child was when other than with its parent can be of critical importance. A carer needs to be alert to and be able to recognise potential signs of abuse and act in accordance with established good practice. These are but the basic skills expected from a child minder today.

37. We therefore dismiss the Appeal and there shall be no Order as to Costs.

3^rd November 2011

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