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England and Wales Care Standards Tribunal

You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Spicer v OFSTED (Quashed) [2003] EWCST 0165(JP) (24 September 2003)
URL: http://www.bailii.org/ew/cases/EWCST/2003/0165(JP).html
Cite as: [2003] EWCST 165(JP), [2003] EWCST 0165(JP)

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Quashed by Mr Justice Stanley Burnton [2004] EWHC 440 (Admin)

Spicer v OFSTED [2003] EWCST 0165(JP) (24 September 2003)

YVONNE CAROLE SPICER
Appellant
and
OFSTED
Respondent
0165.JP

Before
David Hershman QC, Chairman
Tim Greenacre
Peter Sarll
Sitting at the Leicester County Court , Leicester
On the 23^rd and 24^th September 2003

The Appellant was unrepresented

The Respondent was represented by Mr Hills, solicitor of Elvin and Co, Loughborough

The appeal

The Appellant was a registered childminder for 6 children under the age of eight on domestic premises at 63 Healey Street, South Wigston, Leicestershire. An application was made on the 14^th March 2003 by the Respondent to cancel her registration. By an order made on the 24^th March 2003 the Leicester Family Proceedings Court cancelled her registration. On the 31^st March 2003 the Appellant appealed against that order seeking re-instatement of her registration.

The Tribunal heard this appeal over two days on the 23^rd and 24^th September 2003 and was able to announce its decision on the 24^th September 2003 stating that reasons would be given later.

The following witnesses were called to give evidence :

For the Respondent:
Mrs Alexandra Brouder
Mrs Diane Plewinska
Mr John Fuller
Mr Clive Harrison

For the Appellant :
the Appellant
Judy McDonell
Christina Tilley
Joanne Bremner (nee Dixon)
Joan Munn
Bhupinder Anand

History

The Appellant is a registered childminder having been approved in 1989 to childmind up to five children under eight years old. This was extended in 2000 to a registration to childmind up to six children. Of those no more than three should be under five and not more than one under 12 months old.

In September 2001 the Respondent assumed responsibility for the registration of childminders in England and undertook "transitional" inspections during the first six months following take-over.

Prior to an arranged "transition" inspection the Respondent received a complaint in relation to the Appellant. Accordingly, on the 6^th September 2001 the Appellant was visited in relation to the complaint, which alleged that she was failing to properly supervise children that she was minding.

On the 12^th December 2001 a "transitional" inspection took place. Mrs Alexandra Brouder, child care inspector, visited. Unusually for a "transitional" inspection, she decided to visit the Appellant again and this was done on the 17^th January 2002. Records were made in respect of the two visits. Mrs Brouder recorded concerns in relation to a number of apparent failures on behalf of the Appellant relating to compliance with National Standards.

The Respondent received a further complaint in August 2002 and a visit took place. The complaint was that the Appellant had thirteen children in her care and was thus overminding. When visited, the Appellant explained that she had had birthday party for her son. No further action was taken. It was recorded that the Appellant still had failed to comply with certain National Standard requirements and was given a further month to comply. These related to not obtaining a first aid certificate, not having written agreements with the parents of children she was minding, failing to have secure locks in the kitchen and lacking child protection information.

A further complaint was received on about the 7^th March 2003 in relation to overminding. On the 11^th March 2003 Mrs Brouder, Ofsted Inspector visited her home.

The inspector found a number of matters, which caused her concern in relation to the Appellant’s childminding. She had sixteen children in the home (including two of her own children and one other who was a friend of one of her children). She did not know how many children were in her care and appeared to not know all their details.

Mrs Brouder went to her car to report her findings to the office by mobile phone and as she was in her car, saw a child cartwheel across the road. As a result of this information passed back to the Respondent’s office an urgent meeting was convened and a decision made to take emergency action.

The Respondent made an application to cancel the registration of the Appellant. This was heard at the Leicester Family Proceedings Court and an order was made on the 24^th March 2003 cancelling the registration.

A further report was received of the Appellant childminding post cancellation. A visit was made to her home on the 1^st May 2003 and nine children were found to be present. The Appellant explained that the circumstances were unusual as this was polling day and she was helping out but not exceeding looking after any child for more than two hours (the limit beyond which registration is required). She mistakenly believed that the limit applied in respect of each child rather than in relation to her.

The Appellant appealed to the Care Standards Tribunal and the matter was listed for directions on the 11^th July 2003. The appeal was then timetabled for the hearing of the appeal.

The requirement for registration

By virtue of section 79D of the Children Act 1989 as amended by the Care Standards Act 2000, a person is required to register as a childminder if they fall within the criteria under section 79A. Section 79A provides that, subject to certain exceptions, a person acts as a childminder if they look after one or more children under the age of eight on domestic premises, for reward, for more than two hours in any day. Here there was no issue that the Appellant fell within the criteria and was a registered childminder.

Obligations are imposed upon a registered childminder by the Day Care and Childminding (National Standards)(England) Regulations 2001 which require compliance with "National Standards" and with the requirements of the regulations including in particular the maintenance of detailed records recording the details of each child, parent, each child cared for, addresses and telephone numbers, medicines and consent forms.

Cancellation

The Children Act 1989 provides two methods of cancellation of registration of a childminder. The conventional and the immediate (or emergency). The immediate procedure was used in this case. The procedure is that an application is made to the Family Proceedings Court in accordance with section 79K of the 1989 Act for immediate cancellation.

The test that the court must apply in determining whether to grant the application and cancel the registration is that "it appears that a child being looked after…. is suffering or is likely to suffer significant harm". If finding that the grounds exist the court is then able (but not obliged) to make an order cancelling the registration.

In this context "likely to suffer" means that there is a real possibility that the child will suffer significant harm (Re H & R [1996] 1 FLR 80).

The basis of determination by the Tribunal

The Tribunal is not considering the merits of the decision of the Family Proceedings Court but is considering afresh the test contained within section 79K of the 1989 Act.

The Respondent must prove that the grounds contained within section 79K of the 1989 Act are made out. Further, because the section empowers rather than requires the court to make an order, the Respondent must show that such an order should be made.

In determining this appeal, the Tribunal decided to adopt and follow the decision of C v Ofsted [2002] 87.EY (adopting Lyons v East Sussex County Council (1988) 86 LGR 369) as "we are dealing with the care and welfare of children,.. It is only right that post-decision facts should be made available to the Tribunal". Indeed both parties introduced evidence of subsequent events.

On appeal the Tribunal is not only able to allow the appeal it is able to allow the appeal (and hence registration) but impose conditions upon the registration under section 79M(2) of the 1989 Act.

The Respondent’s case

The Respondent asserted that the Appellant failed to comply with National Standards, in relation to each of the following standards :
1. SUITABLE PERSON: leaving some children in the care of her husband, an unregistered person ;
2. ORGANISATION: exceeded the maximum number of children permissible (on the 11^th March)
3. CARE LEARNING AND PLAY: having few toys and activities available to meet children’s needs;
4. PHYSICAL ENVIRONMENT: having insufficient space available ;
5. EQUIPMENT: there were few toys or activities;
6. SAFETY: children being allowed to play unsupervised in the kitchen and in the street ;
7. HEALTH: the Appellant’s husband smokes and was rolling a cigarette when the inspector arrived on the 11^th March ;
8. PARTNERSHIP WITH PARENTS; the Appellant could not produce an attendance book recording the presence of the children.

The Respondent’s case summary highlighted the factual issues for the appeal :
- the extent of overminding on the 11^th March 2003 ;
- the effect of the presence of non-minded children ;
- the quality of supervision exercised by the Appellant ;
- the safety of the premises ;
- the Appellant’s control of the minded children ;
- the Appellant’s control of the whereabouts and actions of the children ;
- the Appellant’s awareness of the identities and number of children minded ;
- the control of access by the Appellant to the minded children ;
- the accuracy and availability of the information that should have been obtained in relation to the children and their parents ;
- the Appellant’s knowledge of National Standards ;
- the significance of the Appellant understanding the need to comply with an action plan in respect of each child ;
- the Appellant’s demonstrated level of co-operation with the Respondent ;
- The significance of the finding of children at the Appellant’s home on the 1^st May 2003.

Mrs Brouder, inspector, visited the Appellant in December 2001, January 2002 and on the 11^th March 2003. The two earlier visits were "transitional" inspection visits during which Mrs Brounder concluded that the Appellant did not have a full understanding of the requirements of National Standards. Further there were very few records found during these visits. The kitchen cupboard was noted to be unsafe because it was not lockable. In relation to keeping the contact details of parents for the children minded Mrs Brouder was told by the Appellant that these were stored on the memory of a mobile phone which she regarded as inadequate. The Appellant held no consent forms and she said she would obtain and use them. There was discussion about the children playing outside, that having been the substance of an earlier complaint and the Appellant had stated that this would not happen again. Mrs Brouder explained that a "transitional" inspection normally only involves one visit. She decided after her first visit that she needed to make a second because she did not think that the Appellant had properly understood National Standards and the importance of complying with them. On her second visit she noted that the record keeping had improved but she provided a list of matters that needed to be attended to as an "action plan". This required medical consent forms and a proper record of the administration of medicines to be in place within a few days, safety from dangerous substances and a fire blanket to be obtained within days, written agreements with parents to be entered into within a few weeks, a knowledge of National Standards and completion of a first aid course within a few months and other matters.

A further visit was undertaken on the 5^th September 2002 as a result of a complaint in relation to overminding. The Tribunal saw documentation relating to this but the inspectors, Ruth Bacon and Margaret Kerslake gave no direct evidence. A previous visit had been made on the 22^nd August by another inspector but no one had been at home. The records show that the explanation of a birthday party for her son was accepted and the inspector "was satisfied she had not exceeded her registered numbers". The list of items outstanding from the "transitional" inspection was considered and four outstanding items were recorded. A further action plan was prepared requiring the Appellant within a month to provide a first aid certificate; mend the kitchen cupboard door so as to make it childproof; make sure that she had written agreements with the parents of children minded and develop her knowledge and understanding of child protection issues.

The Appellant gave evidence that she had contacted Ofsted within the specified time to state that the kitchen unit had been replaced and she had provided a copy of her first aid certificate. There was no evidence to the contrary.

On the 11^th March Mrs Brouder attended the Appellant’s home because of a complaint. When she arrived the Appellant’s husband met her and she observed two small children at home. Soon after the Appellant arrived with fourteen other children. Mr Brouder asked how many children there were with her and she did not appear to know. The children were taken into the house and counted. A head count produced a total of sixteen children.

During the visit Mrs Brounder noticed that some children were allowed to wander outside and in particular one child appeared near to the gate to the road. When it was suggested to Mrs Brouder that a particular child, K was outside but in fact by the Appellant’s side, Mrs Brouder did not accept this. Mrs Brouder asked to see record books but was only given a book containing information relating to 2002. Mrs Brouder recalled that the Appellant told her that the number of children with her on this occasion was a "one off" and gave an explanation in relation to some of the children. Mrs Brouder eventually obtained details of the children and discovered that at the time of her visit there were nine children under eight and seven over eight. She was thus overminding.

Following this visit the Appellant wrote a letter to the Respondent explaining that in relation to some of the children she was looking after beyond a normal time because the parents were late, one because a parent was ill and two were her own children and two were their friends.

The information relating to this visit was communicated to Mr Clive Harrison, Area Manager and he convened an urgent meeting as a result of which a decision was made to seek an immediate and urgent cancellation of the Appellant’s registration. He explained in evidence that he was very concerned about the number of children present in the home but the image of a child "cartwheeling" across the road potentially in front of a moving car particularly alarmed him. He accepted that there was no evidence of any problems relating to the Appellant’s childminding in the previous eleven years but notwithstanding such an unblemished history, there was a failure to understand or implement National Standards, which was the purpose of the "transitional" inspection. He explained that it was planned that there should have been a further visit following the "transitional" inspection to further discuss National Standards with the Appellant but this had not been possible because of the large number of visits that needed to take place during this time for the inspectors.

On the 1^st May 2003 after the Appellant’s registration had been cancelled the Respondent received a report of apparent further childminding. Mrs Plewinska, team manager visited the Appellant’s home. She found nine children at the home. She thought the home was chaotic. The Appellant explained that she was not receiving the children for reward, save for one child who she was looking after for only two hours and hence believed that she was not acting as a childminder who would be required to register. Mrs Plewinska did recall two of the children’s fathers arriving to collect children during her visit which tended to support the Appellant’s assertion that she was only looking after the children for a short period of time. Mrs Plewinska agreed that it was polling day that day and a number of local schools were closed. Mrs Plewinska considered that the home was not very clean and observed she saw dirty pots in the kitchen and a child’s clothing on the kitchen floor.

Mr Fuller, Area Manager was notified of the information relating to the 1^st May and made a decision that an enforcement notice be issued.

The Appellant’s case

The Appellant is the mother of two children. Her husband is at home with her and suffers from a neurological disorder, which prevents him from working. She explained that she had become approved by the local authority as a childminder for five children under eight in 1989. In all the years of childminding prior to 2001 there had never been any complaint. She had minded over 150 children some of whom had particular, special needs. Of the 150 children about 50 were in local authority care. For a period of time the Appellant’s husband had been approved by social services to assist and provide cover for the Appellant for short periods of time. This did not continue once Ofsted assumed responsibility and they had not requested that it did.

The Appellant said that she had established a good working relationship with social services. She accepted that she was unfamiliar with the National Standards when introduced and indeed when she was visited for a "transitional inspection". She also explained that she did not like to let people down, many of whom had become friends and accordingly she had on occasion been guilty of overminding.

The Appellant explained that she now fully understood the seriousness of the situation, accepted that in fact there was a real possibility that with all the children in her home on the 11^th March 2003, a child might have suffered serious harm and that if she was allowed to continue to childmind she would look after fewer children. She also explained that she needed to attend some training courses to familiarise herself with National Standards but had previously been reluctant to do so because she would be letting down the parents and children she normally minded when so doing.

By her "grounds of appeal" the Appellant accepted that on the 11^th March 2003 she had been "overminding". There were specific problems on this day, which caused this. The mother of child M asked her to collect him from school because of a hospital appointment. The child O who was found at her home should have been collected early but her mother was late. The parents of K and J were also late and were delayed in traffic. This was also true of the child B. In support of these assertions the Appellant produced documents from the parents of M and O. The Appellant also asserts in the "grounds of appeal" that her two children came home from school with another child, who she was not minding but was a friend. The Appellant asserts that she is well regarded as a chilminder and maintains good records. Her evidence to the Tribunal was that she was unable to use a particular buggy that she had for two children and thus, in what she considered was an emergency she chose to leave them with her husband for the short time that it took her to walk to school to collect the other children. It was whilst walking back from school that he inspector arrived. She had also been told that two of the children'’ parents were late and so she was minding them for longer than expected. She accepted that a child had "cartwheeled" into the road. She said that this was her own son. He was trying to show what he had seen earlier and went from the pavement but not into the road. She immediately told him off and was with him as he did this.

In relation to the allegation of overminding on the 5^th September 2002 the Appellant explained that she had had a birthday party on the 22^nd July for her son and a complaint had been made in relation to that. This had been accepted and no further action taken. Following the visit on the 5^th September the Appellant accepted that there were four outstanding points that she as required to attend to. She said that she had sent a photocopy of her first aid certificate to Ofsted and rang to report her repairs to the kitchen sink unit within a few weeks of the visit. She explained that she had entered into contracts with the parents of the children she was minding but was rather vague about precisely what records she was keeping up to the 11^th March 2003 or why they were not immediately available to show the inspector.

In relation to the visit on the 1^st May 2003 the Appellant explained that she had agreed to help out some of the parents of children that she had previously minded but not for reward. She had continued to look after one particular child but only for two hours each day and was being paid to do so. She had received advice that this was not contrary to the requirements of the Children Act 1989.

The Appellant accepted in her evidence that she had been overminding. She explained that she found it difficult to say no when asked because of the local difficulties in there being a shortage of childminders. She said that she always tried to operate within the legal requirements but would always go to the limit. Accordingly, reluctantly the Appellant accepted that the grounds were made out in respect of the events of the 11^th March 2003.

Mrs McDonnell, a near neighbour and friend of the Appellant’s gave evidence. She described how children in the Appellant’s care always seemed happy and that she had never seen the Appellant with a large number of children in her care.

Christina Tilley the mother of D, a child who was minded by the Appellant gave evidence. She explained that D had been with the Appellant since 2000 for between 16 and 20 hours each week. When the Appellant was unable to care for D, MS Tilley had to stop work. Ms Tilley explained that D had been somewhat unsettled because of domestic violence within the home but during his time with the Appellant she had seen a dramatic change in him and he was then a happy little boy.

Mrs Joanne Bremner (nee Dixon) explained that she had a hospital appointment on the 11^th March 2003. She was supposed to collect two children from the Appellant but was late, hence they were present when the inspector visited. She spoke of the Appellant’s kindness and ability in caring for children.

Joan Munn gave evidence. She explained that her two young nephews had been placed in care and then with her and her husband. She relied upon the services of the Appellant. Prior to being placed with the Appellant the children were very insecure and unsettled by the Appellant had turned them into happy little boys. She was very supportive and very kind. Mrs Moon explained that her children were with the Appellant on the 1^st May because of difficulties that she had in finding someone to look after them but the Appellant refused payment.

Mr Bhupinder Anand gave evidence. He has known the Appellant since 1979. They became family friends through their mutual religious faith. He explained that she is a very caring person and he observed a very good relationship between her and the children in her care.

The analysis of the Tribunal

There is no dispute that on the 11^th March 2003 when Mrs Brouder visited the Appellant’s home she had sixteen children in her care. She did not know exactly who was with her and was unable to look after them properly. Hence on that day the grounds for an order cancelling her registration were made out.

In relation to earlier reports of overminding (resulting in the visit on the 5^th September 2002) these were not substantiated. In relation to the allegation of acting illegally on the 1^st May 2003 there is no evidence to contradict the Appellant that she was looking after children but in accordance with her understanding of what was acceptable. There is evidence to support her stated wish not to act contrary to the provisions of the Act. Nevertheless it is likely that she was in fact childminding contrary to the provisions of the Act despite the cancellation of her registration and thus acting illegally.

It follows that the Respondent acted quite properly in bringing these proceedings and indeed in issuing an enforcement notice following the visit on the 1^st May 2003.

There is clear evidence that the Appellant is a very caring person who has a special affinity with children. Probably through being too kind or indeed perhaps wishing to avoid upsetting people, she has been prepared to look after children in what she considered was the very extremes of her registration and hence at times in excess.

She has been a childminder since 1989 and prior to the involvement of the Respondent in 2001, in her own words, had an unblemished record.

The Tribunal is unable to find that the Appellant regularly overminded but are suspicious that this might have been so. The only evidence of overminding comes from the visits on the 11^th March, the 1^st May and the acknowledgement by the Appellant herself in her letter of the 11^th March 2003. There is a suggestion of such in an earlier report in September 2001 but this is not sufficient to make a finding to this effect.

The result of these findings is that the Appellant is a caring, well regarded childminder who has not kept up to date with National Standards and is at risk of overstretching herself to the point of not being able to provide proper care for children she is looking after.

There is no doubt that the Appellant needs to better familiarise herself with the National Standards in particular to keep and maintain proper records and agreements with the parents of children minded.

The decision

The decision of the Tribunal is that the Appellant would not cause or allow a child in her care to be likely to suffer significant harm in the future. With a restriction upon the number of children that she can look after there is an additional safeguard to prevent her from going to the limit of her registration and thus risk overminding and placing herself in danger of not being able to provide proper care. The Tribunal therefore allow this appeal, re-instate the Appellant’s registration but with the following conditions :

Conditions:

It shall be a condition of the Appellant’s registration that :-

Further, the Tribunal make the following recommendations :

The Appellant now understands that a further failure to comply with National Standards or the with conditions of her registration may cause further action to be taken by Ofsted.

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