England and Wales Care Standards Tribunal

Stringer v OFSTED [2003] EWCST 166(EY) (11 July 2003)

LISA JANE STRINGER v. OFSTED
2003. 166. EY
Friday 11'h July 2003

Carolyn Singleton (Chair)
Marilyn Adolphe
James Black

DECISION

Appeal

1. Lisa Jane Stringer (the Appellant) appeals under the Children Act 1999 section 79M against the decision of the Office for Standards and Education (OFSTED) made on the 31st March 2003; the decision being the refusal of an application by the Appellant to vary a condition of her registration as a childminder.

Preliminary

2. The Appellant requested the Tribunal, pursuant to Regulation 7(1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 to determine her appeal without an oral hearing. Accordingly the case was dealt with on the basis of the papers submitted to the Tribunal by the parties, all of which were carefully read by the Tribunal. No oral evidence was taken.

Facts Found

The material facts found by the Tribunal were as follows:-

3 . The Appellant became a registered childminder following a childminding registration granted on 16th January 2003. The Appellant's Certificate of Registration states that she is entitled to mind a maximum of 4 children of whom 2 can be aged under 5 years and none can be aged under 1 year.

4. On 26/3/03 the appellant wrote to Ofsted requesting that her registration be varied to enable her to care for upto 2 children aged under 1 year.

5. On 31/3/03 Ofsted wrote to the appellant informing her that her request had been refused stating "under Ofsted regulations a registered childminder is only allowed to look after one child under 12 months of age".

6. The Appellant wrote to Ofsted on 4th April 2003 objecting to Ofsted's decision to refuse her request to vary her conditions of registration. In this letter the Appellant set out a number of points in support of her request, itemising her extensive qualifications in the area of childcare and pointing out that, as at that date, the only childminding enquiries she had received had been from parents of children aged under one year.

7. Ofsted treated that letter as an intention by the Appellant to appeal their decision and returned the Appellant's paperwork advising her to write to the Care Standards Tribunal.

8. The Appellant then appealed formally to the CST. In the appeal she stated that her grounds for appeal were based on her qualifications and the fact that she took issue with Ofsted's reason for refusal in their letter of 31/3/03. She referred to the National Standard 2.2 and Ofsted's own booklet entitled "Childminding: Guidance to the National Standards".

9. National Standard 2.2 states that the maximum number of children for whom a childminder may care is as follows:-

• 6 children under 8 years of age;
• Of the 6 no more than 3 children may be under 5 years of age;
• And of these 3 normally no more than 1 child may be under 1 year. Exceptions can be made for siblings;
• Any care provided for children aged 8-14 is not allowed to adversely affect the care provided for children under 8.

10. Ofsted's booklet "Childminding: Guidance to the National Standards" states inter alia, "You may normally be registered to care for only one child under 12 months. The most likely reason for allowing exceptions to this would be to enable one childminder to care for children from the same family, such as twins ........... Requests for exceptions will be considered on a case-by-case basis and on their own merits".

11. Ofsted's response to the appeal is that "Ofsted Early Years directorate consider that steps taken to refuse to vary conditions of registration for Mrs. L. Stringer were taken reasonably and with regard to the National Standards and Guidelines for Childminders. Furthermore Ofsted relies on the CST decision in Whyatt v. Ofsted.

Tribunal Conclusions and Reasons.

12. The issue to be determined by the Tribunal in this case is whether to confirm the decision of Ofsted not to vary the Appellant's childminding registration certificate or to direct that such decision shall cease to have effect.

13. In this case the Appellant sought a variation to her registration certificate to enable her to care for upto 2 children aged under 1 year. The Day Care and Childminding (National Care Standards) Regulations 2001 state at Paragraph 3(2) that;-

"A registered person who acts as a childminder, or provides day care, on premises shall -

• (a) meet the requirements of the National Standards; and
• (b) have regard to the supporting criteria applicable to the child care category into which he falls.

The National Standards for under Eights, Day Care and Childminding state in their introduction that the "represent a base line of quality below which no provider may fall".
There are 14 standards which the childminder is required to meet. Standard 2 deals with organisation. Paragraph 2.2 is reproduced at paragraph 9 of this decision.

14. The Tribunal accepted that the Appellant is very experienced in the area of childcare. Her curriculum vitae demonstrates extensive qualifications. That is not in dispute. The Tribunal also accepted that the bullet point of National Standards paragraph 2.2 dealing with the care of children aged under one year permits some discretion. It states that "normally no more than 1 child may be under 1 year. Exceptions may be made for siblings". The Tribunal also noted the point raised by the Appellant that Ofsted's own guidance booklet referred to at paragraph 10 above indicates that each case will be judged on its own merits. However the tribunal noted the use of the word "may" in the sentence "Exceptions may be made for siblings". It does not say "will" or "must". The Tribunal considered that this allowed for each case to be judged on its own merits and for the discretion referred to in "Childminding; Guidance to the National Standards" to be exercised. In other words, although exceptions may be made for siblings, there is no guarantee that exceptions will be made. The Tribunal considered, on balance, that the bullet point in the National Standards 2.2 which is the subject of this appeal restricts the exceptions to the consideration of siblings only. The decision of the Tribunal is that the discretion which exists as a result of the wording of this bullet point has been exercised reasonably by Ofsted in this case.

15. The tribunal considered the CST case of Whyatt v. Ofsted referred to above. That case related to a different bullet point and was not relevant to Mrs. Stringer's case. The bullet point that was relevant in Whyatt is unequivocal. There is no mention of exceptions and, therefore, no room for discretion. That is not the case in this appeal.

The decision of the Tribunal is to confirm the decision of Ofsted not to vary the Appellant's condition of registration.

The decision of the Tribunal was unanimous.

CA Singleton (Chair)