In the First-Tier Tribunal (Health, Education and Social Care)
HR - appellant
OFSTED - respondent
Miss M Roberts
Ms M Diamond
Mr R Winn
Heard on the 4th August 2010 at the Combined Court Centre Leeds.
The Appellant appeared in person. She was represented by her partner ST. We heard evidence from Mr ST on behalf of himself and the appellant. The Appellant’s father Mr C also attended and gave brief evidence.
The Respondent was represented by Mr Holloway of Counsel instructed by Mr Brooks. For the Respondent, the tribunal heard evidence from, Ms A Law, Regulatory Inspector Compliance Investigation and Enforcement (CIE) Team and Ms S Will, Senior Officer, Compliance Investigation and Enforcement Team. The tribunal had a bundle of papers including the decision for the suspension, the appeal, statements from Ms Law and Ms Will, a minute of the multi agency strategy meeting and the Respondent’s internal Case Review meetings, interviews with HR and ST and a large number of references from the Appellant.
Events leading to the issue of the notice of statutory suspension.
6. There are two recorded previous concerns about ST. In 2006 there was an allegation that ST had made suggestive remarks to and touched the bottom of a 12-year-old minded child. This was investigated by the Police and Social Services. The case resulted in no further action. One action was set by the respondents on the appellant namely to ’ ensure any child protection concerns are recorded and reported to social services or the police in accordance with the Local Safeguarding Children Board’s procedures, and to OFSTED without delay.’
7. In 2008 there was a concern that ST had twisted a child’s clothes in his fist and lifted him up by them, then called him a cry baby and made him sit on the kitchen floor; assistant left alone with minded children. This was investigated by Social Services. No further action was taken. Two actions were set by the respondent on the appellant namely, “to comply with local child protection procedures approved by the Local Safeguarding Children Board/ensure that all adults working and looking after children in the provision are able to put procedures into practice/ensure that records, policies and procedures which are required for the efficient and safe management of the provision and to promote the welfare, care and learning of children are maintained.”
8. On both occasions there was a voluntary agreement that ST was not on the premises during minded hours during the course of the investigations.
9. On Thursday, 3 June 2010 there was an incident where a minded child T, a boy aged four bumped the right side of his forehead. Child T was being looked after as a temporary measure by the appellant while his own childminder (HW) was away on holiday. On that day the appellant recorded that the children had gone to play at a children's centre in the morning. When they were leaving the children were finishing a game of football and child T ran into a wooden post and bumped the right side of his forehead. There was a red mark on his forehead and the appellant went to get a cold compress for the bump. She signed an accident form to this effect and noted that the child was fine and happy after the incident.
10. Child T was collected by his mother at the end of the day. At nine o'clock that night the mother called asking what had happened and was told that T had bumped his head on a post at the end of a football game.
11. On Friday morning the parent called to say that she was taking T to the GP. The appellant called her at 10 am to ask what the GP had said and the parent said that the child was fine and that she had not taken him.
12. Later the parent called asking for a meeting at 2 pm. She arrived with another person at 1:15 pm and the appellant was asked a number of questions about the incident involving child T. She was also asked questions about ST. The parent told the appellant that the child alleged that ST had bumped his head when he went to the toilet in the afternoon of the 3 June. The child reportedly told his mother that ST had grabbed him by the head and banged it on the toilet because he had urinated on the floor.
13. This was the first that the appellant or ST knew about the allegation. ST telephoned the respondents to ask for advice about reporting the matter.
14. The parent of T had in fact taken him to A and E and the doctor from A and E telephoned Social Services on 4 June and advised that child T had presented at hospital with a bump to his head. The mother said the child minders said he had got it playing football but she had asked the child how it happened and he had said it was because ST had banged his head on the toilet. The doctor reported, ‘there were no bruises now and the child is fine’.
15. The appellant agreed not to child mind while the matter was investigated. A letter of suspension of registration was delivered to the appellant on 8 June 2010 to run for six weeks until 19 July 2010.
16. On 11 June 2000 there was a strategy meeting attended by Social Services, Police and Ms Law on behalf of OFSTED. By this date the matter had been investigated by the Police and by Social Services neither of whom were taking any further action in the matter. However both expressed concerns about ST’s continuation as a child minder.
17. The respondents then proceeded with their own case review of the matter which included an interview with the appellant and an interview with ST, copies of which the Tribunal had. The respondents also wrote to the Police and the Social Services department to ask them to express their concerns in letter form. We had copies of the letter from the respondent to the investigating bodies and their replies.
18. On 9 July 2010 a further letter of suspension was sent to the appellant with an expiry date of 16 August 2010 and this letter of suspension indicated that the respondents were intending to cancel her registration. It appears that this letter was incorrectly signed by one of the respondent’s officers and therefore another suspension letter was sent on 19 July 2010 with exactly the same information but signed by the National Director for the respondent. On the same date a letter of notice of intention to cancel was also sent to the appellant. It is against the letter of suspension dated 9 July 2010 that the appellant appeals.
19. The letter recorded that the respondent is ‘ taking this step as we have reasonable cause to believe children are or may be exposed to a risk harm. The purpose of this suspension is to reduce or eliminate risk of harm.’ The respondent said that Mr ST has been “accused of deliberately physically harming the child in your care. A four-year-old child has accused ST of deliberately banging his head against a toilet on 3 June 2010 after the child urinated on the floor. You were responsible overall for the child’s care at the time of the alleged incident.”
20. The letter also recorded the respondent’s concern about the two previous allegations in the past and concluded that having received a further allegation against ST this , “ causes us to doubt your ability to safeguard and adequately protect children in your care.” Further the suspension was stated to be “appropriate in the circumstances that whilst we take steps to cancel your registration.”
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.
29. The appellant’s version of events and submissions can be identified in the records of what she said to the respondent, police and social services, in her appeal.
· The appellant complained that the respondent had not followed its own procedures and policies in its investigation. In particular that the interviews conducted with the appellant and ST were not submitted to them for checking and signature.
· ST submitted to the Tribunal in evidence details of the first two allegations which he has always denied. He also gave an account of what happened on 3 June 2010 from his point of view; he denied that he had had any physical contact with T in the toilet. The appellant produced a plan of the ground floor of the childminding premises. This is attached to this decision as appendix 1.
30. Ms Law the regulatory inspector outlined her involvement in the investigation of the allegation of 3 June 2010. In particular she had attended the strategy meeting on 11 June 2010; as noted above, by this date, the Police and Social Services had concluded their investigations and were taking no further steps in the matter. Ms Law told the Tribunal that both agencies expressed very strong feelings and concerns about the appellant and ST continuing to childmind.
31. The Tribunal read the minutes of the strategy meeting. Firstly the social worker who had interviewed the mother and child concerned had recorded that the child T had reiterated that ST had “banged him on the toilet and he also said ST called him dumb”. She said she believed the mother and the child in their account of what had happened, “as he is very consistent” and she believed he had been “traumatised.”
32. Secondly we noted that the strength of feeling referred to, is not reflected in those minutes. The Safeguarding service manager from Wakefield does record that there are” three allegations against this man and it seems that on information presented to us it is probable that the incident occurred… concerns remain based on balance of probabilities and the previous incidents which are unretracted.”
33. Ms Law told the meeting that their “ views will be considered, but at the end of the day if Police and Family Services do not take any action it is difficult for them to keep a suspension in place or deregister as they (Ofsted) too can only act on hard evidence.” She said that Ofsted would now do their own case review.
34. Subsequently she asked both the Police and Family Services to write to her with their concerns. We saw the letter of request for this and the responses from the two authorities concerned. The letter from Wakefield Family Services reiterated the three allegations and concluded that, “The fact that there have been three allegations made against ST brings into question his suitability to continue as a childminder's assistant.”
35. The Police also replied by reiterating the three allegations. On the last allegation it was confirmed that no further police action could be taken against Mr T as it was “effectively a word on word allegation with no supporting witnesses available. However this does not mean that the findings proved Mr T innocent of the allegation.“
36. Ms Law directed us to the CIE case review meetings in particular that of the 6 July 2010 when the evidence was reviewed. By this time she had had interviews with the appellant and ST. The meeting concluded: that three allegations had been made none of which were believed to be maliciously motivated; the most recent allegation was said to be plausible and credible; whist this was against ST the child minding assistant it was the appellant’s overall responsibility to ensure that no harm came to the children in her care.
37. In addition the respondent concluded that the appellant was not able to protect children in her care. They further stated that they did not think she understood her responsibilities as the childminder in relation to ST as the assistant childminder .There was concern as to whether she had appreciated the possibilities of risk and taken seriously needs to guard against risk.
38. The childminding takes place at the appellant's own domestic premises and the respondent did not believe that a condition for ST not to be at the premises during childminding times was enforceable.
39. Ms Will as the Senior Officer reviewed the evidence and took the final decision regarding the further period of suspension. She helpfully outlined the procedure of the respondent. She gathers all the evidence and listens to the officers concerned. The respondent does not investigate itself what happens. She noted the strength of feeling that was reported to her. She said that all the evidence given to her including references provided by the appellant was taken into account.
40. Ms Will deals with a large number of CIE cases each day. She acknowledged that the appellant had an unblemished record of child care and that the last inspection was ‘good.’ However she said that three allegations against an assistant childminder was unusual. The respondent had been told on the balance of probabilities that the latest incident had probably occurred. She therefore took the view that the appellant’s continued suitability was in question. The appellant was not able to protect children when in her care. There was also some concern about who had telephoned Ofsted to notify the incident and concern that the appellant did not appreciate the distinctive responsibilities that she had, as opposed to that of an assistant.
41. Mr T presented the appellant's case to the tribunal and as noted above gave evidence about the two earlier incidents and the incident of 3 June 2010. Briefly he confirmed that the children had been taken to the children's play centre in the morning. He had left at about one o'clock to take some children home and that as the appellant was leaving the premises at about 1:15pm T and two other children were playing football in the playground. T ran into a wooden post and received a bump to his right forehead. The appellant treated this with a cold, compress. The Tribunal saw the accident form signed by the appellant in respect of this.
42. All the children came home. After the children had been inside for a little while they were asked if they wanted to go to the toilet. This was just before 4pm. The children who didn't need the toilet went through the kitchen to the porch where ST was putting on their shoes and getting them ready to go out to play. It was a hot sunny day.
43. The appellant has all the toilet responsibilities; at no time is the toilet door locked. T and Ta wanted to go to the toilet. ST was in the porch getting the other children ready to go out. T was one of the children who wanted the toilet; he went into the toilet and after a little while the appellant opened the door to discover that he was struggling with his belt. The appellant helped him with his belt and he went to the toilet. She noticed that the floor was wet but wasn’t sure if it was wet before. She asked T to stand back and asked ST, who was in the porch area, for the kitchen roll. He came and gave her the kitchen roll and disinfectant. He handed them to the appellant who cleaned up the spillage and washed her hands. When she got back, Ta was stood behind T in the toilet area T said that he (Ta) had pushed him. ST said that at no time did he go into the toilet or help or have contact with T.
44. ST said that the children then went out to play. They played happily for the rest of the day. He produced a photograph of T which he said had been taken just after the child had been to the toilet. It shows him playing on the patio outside the childminder's house. ST then left the premises with his stepson and one of the minded children aged 2 to go to water some plants. He returned to the house at about 5:30pm having been away for between one and a quarter and half hours.
45. ST told the Tribunal, as he had stated to the respondents that child T had not known or remembered children or staff names. He referred to someone as ‘you’ or ‘that man’ and constantly asked other children’s names and could not remember them.
46. On the 4 June 2010 ST telephoned Ofsted to ask for advice about reporting the allegation that was being made by T’s mother. On 7 June the incident was formally reported by the appellant.
47. ST made a further point that the signatories of the letters from Social Services and the Police had not been involved with the investigation into the incident. They had never interviewed him or been to the premises. It was his view that the police officer who had interviewed him had expressed the view that the matter was concluded and that he accepted ST’s account of events.
48. The respondents and the Tribunal had a statement from HW the regular child minder for T which records a conversation that she had with him on the 8 June 2010 when he returned to her care. This conversation is attached to this decision as appendix 2.
49. The tribunal were given two additional documents by the appellant. Firstly we had thirty additional references in support of the appellant. The bundle contained three original references in support of the appellant and ST.
50. Secondly we had a statement from HW (dated 2.8.2010) about child T. In that statement, she gave her previous experience including working for NCH supporting children and families facing family breakdown. As a child minder looking after T she said that, “ during the last 9 months I have been working with the child’s Nursery Teacher, as we had concerns about the child’s ability to process questions and give appropriate responses as well as his ability to recall information correctly.”
The decision was unanimous.
Miss M Roberts, First Tier Tribunal Judge
Ms Diamond, Tribunal member
Mr Winn, Tribunal Member
10 August 2010
Appendix 1. Plan produced by the appellant to the tribunal to show the layout of the childminding area. Toilet fixtures and dimensions added by the tribunal.
Appendix 2. Statement by HW childminder of child C.
On Tuesday, 8 June 2010 child arrived at 7:40 a.m. after I had been away on holiday for 12 days.
I opened door and said “good morning”,
The child responded by saying “I've got a bump on my head!”
I replied to this by saying “you children are always bumping yourselves, come on, in you come.”
At this point his mum said “there is more to it than that, Stuart did it!” However, his mum said she didn't have time to explain, but would explain more when she collected the child later. Mum then left.
I then took the child's shoes off and he walked into the lounge where X (aged 3 years) was playing with his new castle and called for the child to come and play.
The child walked over to X and said “I've got a bump on my head.”
I then asked “How did you do that?”
The child replied “Stuart did it.”
I asked “How did he do it?”
A child replied “On the toilet seat.”
I said “Who took you to the toilet?”
He child replied “Heather.”
I then asked “How did Stuart bump your head if Heather took you to the toilet? “ The child replied “He did it playing football.”
I asked “What did he do?”
The child replied “I bumped it on the wooden post. “
I asked “Were you pushed or did you fall?”
The child replied “I ran into it.”
I then left the child and X to play with the castle and said nothing further to him about his head.
I declare this is a statement of truth
Declared before me Linda M Box Solicitor Wakefield Dixon Coles and Gill, Solicitors