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England and Wales Care Standards Tribunal

You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Shaw v OFSTED [2003] EWCST 0171(EY) (14 August 2003)
URL: http://www.bailii.org/ew/cases/EWCST/2003/0171(EY).html
Cite as: [2003] EWCST 171(EY), [2003] EWCST 0171(EY)
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Shaw v OFSTED [2003] EWCST 0171(EY) (14 August 2003)

Ronald Shaw v OFSTED
2003 0171.EY
Tuesday 12 August 2003
Andrea Rivers (chair)
Lydia Gladwin
Keith White

DECISION

    Introduction

  1. On 3rd January 2001 the Dudley Metropolitan Borough Council granted the Applicant, Mr Ronald Shaw, a Certificate of Registration to provide day care for 24 children between the ages of 2.5 and 5 years.
  2. On 6th January 2003 OFSTED sent Mr Shaw a Notice of Intention to cancel that registration and on 25th February 2003 Mr Shaw was given an opportunity to make his objections to this at a meeting with OFSTED.
  3. On 10th April 2003, following that meeting, OFSTED sent him a Notice of Decision to cancel his registration and informing him of his right to appeal to this tribunal.
  4. On 24th April 2003 Mr Shaw lodged an appeal to the tribunal against OFSTED’s decision and this was followed, on 2nd June 2003 by a request from him on form B5 for the matter to be decided without a hearing.
  5. On 23rd June 2003 the President of this tribunal made directions providing that the Respondent was to file a witness statement explaining the background to its decision and that the Applicant was to be given the opportunity to reply to this statement prior to the case being considered.
  6. On the same day, and in accordance with that direction, the Respondent filed a statement from Delrose Gooden, Area Manager of OFSTED Early Years Division, West Midlands Regional Centre and on 27th June 2003 the Applicant filed his response to it.
  7. In accordance with the Applicant’s request we have made our decision without an oral hearing, having carefully considered all the written material before us.

    The Law

  8. In September 2001 OFSTED became responsible for the regulation of the provision of day care providers in England, by virtue of Part XA of the Children Act 1989, as inserted by s 79 of the Care Standards Act 2000. S 79C deals with the provision of regulations governing day care providers and these include the Day Care and Child Minding (National Standards) (England) Regulations 2001, Regulation 3(1) of which states that "in exercising his functions under Part XA of the Act, the chief inspector shall have regard to the National Standards and supporting criteria".
  9. In making their decision in this case OFSTED relied on Standard 1 of these National Standards which deals with the question of whether "adults providing day care, looking after children or having unsupervised access to them are suitable to do so".
  10. The official guidance provied for the implementation of these National Standards sets out a number of specific criteria which OFSTED looks at when considering suitability and this includes "any convictions or any other information that might put the safety and welfare of a child at risk or make (a person) disqualified from providing day care".
  11. S 79M(2) sets out the powers of Tribunal in this matter, which are to:
    1. confirm the taking of the step (ie to cancel)…or direct that it shall not have, or shall cease to have effect and
    2. impose, vary or cancel any condition.
  12. It is for the Respondent to prove its case, on the balance of probability.

    13. The Facts

  13. Mr Shaw is 44 years old. He has a police record dating back to February 1976, when he was 16 years old, for offences such as theft, burglary and possession of an offensive weapon. In addition, in 1989 he was convicted of an indecent assault on a female aged 16 or over and received a sentence of imprisonment for 6 months, suspended for 12 months.
  14. In 1991 he was disabled in an industrial accident. He was no longer able to obtain work and began to work in the community on a voluntary basis.
  15. We were provided with substantial documentation in relation to his community activities. This included letters from individuals on the estate where he lives, describing him in general terms as being particularly helpful and considerate to vulnerable members of the community. He himself describes the estate as being in a deprived area.
  16. There were also letters of appreciation for his work from officials, such as the local estate officer, the Tenant Particpation officer, the president of the local community association, the tenants’ association, Neighbourhood Watch, Youth and Community Services and Groundwork Black Country, an environmental charity.
  17. As well as serving on various local committees he set up a youth club which has provided activities for young people in the area, teaming up with local agencies in projects such as litter clearance, bicycle maintenance workshops and the "landscaping of a local eyesore". Mr Sidaway, the Estate Officer, described this work as "aimed at tackling social exclusion amongst young people".
  18. Mr Shaw also helps with school and pre-school activities run by the local church and was approved as a volunteer by the Worcester Diocesan Board for Social Responsibility who noted, in their letter of approval, that he had agreed to Diocesan Guidelines specifying that "there should always be a minimum of two adults present in a children’s group".
  19. On 26th October 2000 Mr Shaw was awarded a Certificate of Achievement from Dudley Borough Council.
  20. Mr Shaw states that it was as a consequence of his work in the community that he was approached by the Early Years and Childcare Team to apply for Registration as a Day Care Provider in respect of Brockmoor Playgroup.
  21. The circumstances surrounding the granting of this registration are not entirely clear. The application for registration involved disclosure of Mr Shaw’s criminal record and on 24th November 2000 he received a letter from Val Walden, the Registration Officer, asking him to attend an appointment to discuss this. However, there is no further mention of this issue in the correspondence available to us, and in a letter dated 20th December 2000 Mr Shaw was informed that Dudley Metropolitan Borough Council had approved his registration.
  22. In the report of the meeting between Mr Shaw and OFSTED, referred to in paragraph 2 above, reference is made to a decision by Dudley MBC to impose a condition on his registration, namely that he was not to "work directly with children". This information seems to have been obtained from file notes which were not made available to us. The Registration Certificate itself imposes no such condition.
  23. Having been granted registration Mr Shaw says it became clear to him that the playgroup "was not being run properly". He therefore closed it down, raised £24,000 for an outdoor play area and re-organised it. On 6th September 2002 it was re-opened by the local mayor. All the local children were invited to the opening ceremony.
  24. When OFSTED took over as the regulating body it was obliged to make a transitional inspection of the playgroup to ensure that it complied with the new National Standards. In anticipation of that inspection Mr Shaw requested and completed a Criminal Records Bureau check which OFSTED processed. They thus became aware of his criminal record. It appears that if Mr Shaw had not made this request none of these matters would have come to light. According to Ted Goodman, the OFSTED Complaints, Investigation and Enforcement (CIE) Manager, he had chosen to do so in order to "clear the air".
  25. On 24th July 2002 Jackie Nation and Caren Leedham conducted an OFSTED interview with Mr Shaw, covering all of the 14 National Standards. Standard 1 related to his personal suitability for registration, as set out in paragraph 9 above. In relation to the conviction for indecent assault Mr Shaw told them that he had originally been charged with rape of his niece and had pleaded guilty to indecent assault on the advice of his solicitor. They report that "he went on blame the victim of the offence and question her character."
  26. Following this interview, and in the light of Mr Shaw’s account of the offence it is recorded that both interviewers concluded that he was not suitable in respect of Standard 1.
  27. On 25th October 2002 Mr Shaw was invited to a meeting with Delrose Gooden and Ted Goodman. Its purpose was to discuss the outcome of the inspection and to give him an opportunity to resign as registered person so that OFSTED would not need to proceed with the cancellation. This would enable the playgroup to continue under the present arrangements pending the registration of a new nominated person.
  28. It appears that Mr Shaw did not resign because a Notice of Intention to Cancel was sent to him on 6th January 2003. Three reasons for cancellation were given and these were: his criminal record and in particular the conviction for indecent assault, the inspection interview and the meeting on 25th October 2002.
  29. The meeting on 25th February 2003 was called an Objection Hearing. Mr Shaw was invited to put his case to a panel consisting of Ted Goodman, Delrose Gooden, Susan Norvell (Business Administration Manager) Bob Eggington (Area Manager, Nottingham) and Samantha Wilson (B2 Manager, CIE Team). In making his objections Mr Shaw repeated his claim in respect of the indecent assault, that he had admitted under pressure to an offence he did not commit. He told the panel that both the Early Years and Child Care Team and Sure Start had told him that they were willing to support the continuation of his registration. At the end of the hearing Bob Eggington summarised Mr Shaw’s objections in the following terms:

    30. "You do realise the seriousness of the offence and you wish your recent records and achievements to overrule your convictions. Also, your exemplary record since this, securing finances to rebuild the playgroup, setting up a committee and the success of and the support received from partnership agencies."

  30. After the hearing the panel discussed the matter at some length. They finally decided not to uphold the decision to cancel but to impose the condition which, they believed, had been originally envisaged, namely that he should have no direct involvement with the children. This would be subject to their receiving the promised references from the Early Years and Childcare Team and from National Children’s Home (NCH), the body responsible for the implementation of Sure Start in that area. Accordingly and with the signed consent of Mr Shaw, each of these agencies was written to and a reference requested.
  31. Notwithstanding Mr Shaw’s confidence in their support, neither agency was prepared to provide the expected re-assurance. Their letters, dated 18th and 20th March 2003, were written in almost identical terms. While both had "the highest respect for Ron’s commitment to the community and his ability to be an active member of the community", and despite the fact that they had had, during the three years they had worked with him, "no evidence to cause concern regarding a risk in relation to his conviction" they would not, as a matter of policy, have been prepared to work with him had they known about his conviction. Therefore they no longer considered him to be a "fit person".
  32. On 2nd April 2003 there was a telephone conference between two members of the original panel, Susan Norvell and Bob Eggington, and Joel Sadler, Complaints Officer, West Midlands. In the light of the two letters from external organisations supporting the cancellation they felt they had no alternative but to proceed with it.
  33. Accordingly, on 3rd April 2003 they wrote to Mr Shaw, confirming the proposal to cancel. In addition to the three reasons set out in their earlier letter to him, they added a fourth reason, this being the information received from the Early Years and Childcare Team and Sure Start.

    34. Decision

  34. Prior to making our decision we considered whether or not it was appropriate to draw any inference from the fact that Mr Shaw had chosen not to appear before us at an oral hearing. We considered that there was no evidence which might lead us to draw any adverse inference from his non-attendance. He does not appear to have had legal advice or representation at any stage and it does not seem unreasonable to assume that he simply felt content to present his case in writing, together with the written evidence of his witnesses.
  35. We considered whether or not a conviction of this nature is, in itself, sufficient grounds for disqualification from registration. Clearly this is the position of the Early Years Team and NCH, though we noted in the letter from the Early Years Team that in their case "exceptional circumstances" might be taken into consideration. National Standard 1, however, states that OFSTED "makes a judgment about the suitability of all registration applicants and registered persons" based on the criteria referred to in paragraph 10 above. Similarly, this tribunal has a discretion to make a decision as to the suitability or otherwise of a registered person.
  36. In making our decision we took into account the following matters:
    1. that the offences committed between 1976 and 1983 referred to in paragraph 13 above between the ages of 16 and 24 were at a time when he was a young man and he has committed no further offences of this nature for 20 years;
    2. that the offence of indecent assault was a single offence, not relating to young children or, on the evidence before us, of a young person in his care;
    3. his unblemished record of service to a deprived community, and specifically to the mothers and young children of that community over a substantial period of time;
    4. that he had initiated projects to help socially excluded young people in his area;
    5. that he has been able to use his past difficulties and personal experience of the consequences of criminal behaviour to exert a positive influence on young people on the estate, as described by him in his statement in the following terms:

      "Although I feel ashamed of my previous convictions, when I see the youngsters breaking the law I try to tell them about the struggle they are going to have in the future with a criminal record as I have had".

    6. the numerous positive character references both from ordinary members of the community and from professionals, including NCH and the Early Years and Childcare team (see paragraph 31 above);
    7. the fact that there is no evidence before us to suggest that any concerns whatsoever have been raised by either Dudley Social Services, the original registering body, or OFSTED, or any other professional body or any individuals, since he began working with the playgroup;
    8. that his registration might well have continued unchallenged after OFSTED took over the responsibility of registration had he not himself requested a police check;
    9. that there must be circumstances when it is possible for rehabilitation and reflection to bring about a change in a person’s behaviour;
    10. our concerns about the fact that, in the words of the people who conducted the "suitable person interview", he did not:

      "recognise himself as guilty of a serious offence"

      and indeed blamed his victim;

    11. our responsibility to ensure that children are protected.
  37. In the light of all these considerations we wish to strike a balance between the importance of Mr Shaw’s continuing his work in the community and the need to ensure that the children in his care are adequately protected.
  38. We note that in his work with his local church he has been approved by the Diocesan Board for Social Responsibility on the basis that "there should always be a minimum of two adults present in a children’s group" and that Mr Shaw himself had "affirmed his agreement and support for this".
  39. In the circumstances we consider that the imposition of a condition, in similar terms, would be sufficient to deal with our concerns, as well as the concerns expressed by others, about the protection of children.
  40. Accordingly we uphold this appeal and direct that the decision to cancel his registration shall not have effect, subject to the following condition:

    "that he do not have contact with any of the children attending the playgroup without another adult being present at all times".

14th August 2003
Andrea Rivers
Lydia Gladwin
Keith White

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