In the First-Tier Tribunal (Health, Education and Social Care)
[2010] 1801.EYSUS

HR - appellant

v.

OFSTED - respondent

Before
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.

1.	The appellant appeals to the Tribunal against the respondent’s decision dated 9th July 2010 to suspend her registration, as a child minder for six weeks until 16 August 2010. There had been a previous period of suspension from 6 June 2010 which was due to expire on 19 July 2010. The appellant did not appeal against this period of suspension.
2.	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, her partner, her children, or the clients  and children involved in the case, and directing that reference to them shall be by their initials so as to protect their private lives.   

The background
3.	The appellant is in a long term relationship with her partner ST. She has two sons aged 13 and 16 from a previous relationship and a 2 year old daughter with ST. She was registered with the respondent in 2001 but had worked as a childminder registered by the local authority since 1994. There is no evidence of previous concerns as to her suitability.
4.	The conditions of registration were:
•	she may provide care for no more than five children under eight years, of these not more than three may be in the early years age group and of these not more than one may be under one year at any time;
•	when working with an assistant may care for no more than 11 children under eight years; of these, not more than five may be in the early years age group, and of these, not more than one may be under one year at any one time;
•	may leave an assistant alone with children for short periods of time providing the arrangements are agreed and confirmed in writing by parents and the requirements of the Early Years Foundation Stage continue to be met. For the Childcare Register these arrangements only apply off the premises.
•	must not provide overnight care.
•	must not use the first floor.
5.	The appellant operates her childminding business from her home address. ST acts as an assistant to the appellant as does AR her son and JC her father. However the business is essentially run by the appellant with ST as her main assistant. The tribunal noted that the outcome of the last inspection, carried out on 9 October 2009, was recorded as good.

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.”

The Law
21.	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.
22.	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.
23.	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.
24.	“ 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”. 
25.	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 tribunal accepts that post decision facts can be made available to tribunal.
26.	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 may be at risk.

Issues
27.	We considered the documents referred to above and listened to the witnesses for both sides.  
28.	The respondent’s view, based on the witness statements and records referred to, is that there is evidence of risk requiring suspension pending cancellation as a result of the following concerns:
•	there has been a third allegation of misconduct by ST. Whilst this is not being proceeded with, or prosecuted by the relevant authorities those authorities have expressed their concern about the third allegation in the light of the previous two incidents.
•	that HR the appellant, as the registered childminder has not supervised ST and taken such steps as are necessary to protect the children in her care from 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.

The evidence
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.”

Conclusions.
51.	The first period of suspension is not in dispute. The appellant immediately suspended ST once the matter was under investigation. 
52.	The tribunal noted the complaint of the appellant about the interviews, by the respondent, of her and ST. Whilst it might be best practice to have the statements signed as correct after the interview we did not consider that this was a failure in the respondents enquiries. The respondent had followed its procedure in the matter.
53.	The appellant has been childminding since 1994 and she has a blemish free record. Her last inspection was good. From the evidence we heard we accept that she is aware of the various regulations and standards relating to childminding. She was clear about her registration, her numbers and how children are to be cared for between herself and her assistant childminder, ST. 
54.	The allegations of 2006 and 2008 and the most recent incident of 2010 all relate to ST the assistant childminder. He is the long-term partner of the appellant. 
55.	It is clear from the evidence of the respondent that it was the third incident that tipped the balance of concern for them. The first two allegations had been investigated by the authorities. The respondents had taken certain actions in response to them and no further steps were to be taken. 
56.	The fact that there have been three allegations does require investigation but does not necessarily mean that they are true. They do not form a pattern. It was said by the respondents that they had not been retracted but no agency had approached the earlier complainants to enquire about possible retraction.
57.	With respect to the third incident the respondent is in a difficult position in that they receive reports from other investigating bodies but take the view that they do not make independent investigations themselves into the allegation. Having said that they did interview the appellant and ST. We note what was said to them at the strategy meeting about the third allegation. We also note Ms Law's response to that, bearing in mind that the authorities were taking no further action. 
58.	 It is not necessary for this Tribunal to make findings of fact as to whether or not allegation three took place as described by T and his mother or whether we accept the version of events given by ST. Having read the tribunal bundle and heard ST’s account and looked at the plan of the ground floor which shows the location and dimensions of the downstairs toilet we have to say that we find it difficult to believe that ST was involved physically with T in the toilet. 
59.	The attached plan shows the toilet area with a door that opens outward into the utility area, kitchen and porch. We were informed that the toilet measures approximately 1 m across and 2 m long and into that space there is an adult sized toilet and a small wash hand basin. The area is constricted by wooden housing for pipes around the bottom area of the room.
60.	The Tribunal notes what the respondents say about not being an investigatory body however they did make their own enquiries into the allegation ( e.g. interviewing the appellant and ST). Ms Law said she had attended the property to deliver the first notice of suspension but had not looked specifically at the area where the incident was said to have taken place. 
61.	The tribunal noted that the child T and his mother had been interviewed by Social Services but not the Police. Mr ST had been interviewed by the Police but not Social Services. Neither agency appears to have made inquiries into how and where the incident took place. There was an exchange of information at the Strategy meeting but no further steps were taken by either agency.
62.	It is right that a decision not to prosecute is not a finding of innocence. In this case the complainant was a four-year-old child who, while he had been spoken to by Social Services, had been deemed not suitable for a video interview. The Tribunal understands why the Police would not proceed to a prosecution in such circumstances.
63.	The appellant sent the respondent a copy of the conversation between child T and his usual childminder HW (see Appendix 2) which questions the consistency of T’s account.
64.	We understand that the respondent has a duty to make its own case review and receive reports from the investigating authorities. The suspension notice was served in relation to risk of harm to children on the premises arising from alleged actions of the assistant child minder. By the time of the second notice of suspension the respondent had accepted the reports it had received albeit that the letters were not signed by the front line investigating officers. 
65.	A number of references have been received and additional references were given to the Tribunal which were overwhelmingly in support of the appellant.
66.	The Tribunal accept that the welfare of children is paramount for the respondent in their duties of inspection and regulation. However in this matter and we do not think that they gave sufficient weight to the appellant’s position as a woman who has conducted her childminding for 16 years without complaint, understands the regulations involved, has wide community involvement with child care groups and has produced a large number of references in support of her work. 
67.	We accept that she is the partner of the assistant childminder involved in the allegation and might be expected to ‘protect’ him, however there was no evidence that she was acting in this way. 
68.	With our limited enquiries we have real doubts about the version of events given by T and his mother. What we can conclude is as follows. There was an incident at the children’s centre when T bumped his head, and this was correctly recorded. T had one bump to his forehead. Something may have happened in the toilet later in the afternoon.
69.	 Bearing in mind that this ‘third allegation’ was the issue which was to lead to suspension with all that that entails, we conclude that some further investigation by the respondent would have been in order in the circumstances. For example, we find it surprising that the inspector did not look at the layout of the ground floor and the toilet in the house. She was drawn a plan by the appellant in interview and consideration of that plan or a visit to the location could have helped in her decision making bearing in mind the reservations that she had expressed to the investigating authorities in the strategy meeting.
70.	 There is no evidence that the appellant has failed to protect the children in her care. Social Services have taken no steps about her own children. There is no other evidence which adds weight to the allegations.
71.	In the circumstances asked whether it is reasonable to believe that continued provision of childcare by the appellant to any child may expose such a child to a risk of harm the tribunal answers in the negative and accordingly directs under the Childcare ( Early years and General Childcare Registers) (Common Provisions) Regulations 2008, regulation 12 (2) (b) that the suspension of the appellant shall cease to have effect.
72.	The appeal is accordingly allowed. 
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.

7-50a.m.

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
Signed HW 
Date 13.7.2010
Address
Declared before me Linda M Box Solicitor Wakefield Dixon Coles and Gill, Solicitors