England and Wales Care Standards Tribunal

HN v OFSTED [2003] EWCST 229(EY) (05 April 2004)

Ms H.N.

-v-

OFSTED

[2003] 229.EY

Before: Mr Mark Rowland (chairman)

Mr Paul Thompson

Mr Jim Lim

Sitting at 18 Pocock Street, London SE1

on 29 March 2004

Appeal against a decision of the Her Majesty's Chief Inspector of Schools, dated 1 September 2003, whereby he refused to register the Appellant as a childminder under Part XA of the Children Act 1989.

Representation:

The Respondent was represented by Miss Anna McKenna of Counsel, instructed by Messrs Bevan Ashford.

The Appellant was represented by a family friend.

DECISION

The appeal is dismissed.

REASONS

1. The Appellant is a woman, now aged 20, who lives with her partner and their children, a girl now aged almost three years and a boy aged five months. In July 2002, she applied to OFSTED for registration as a childminder. She was visited at home on 8 August 2002, when the inspector formed the view that none of the 14 National Standards for childminders had been satisfied. Nonetheless, no decision was made at that time and the Appellant attended an Introductory Childminding Practice course and a first aid course. In January 2003, the same inspector and her team manager together visited the Appellant for another inspection. Again they concluded that none of the National Standards had been met. On 5 May 2003, the team manager and the area manager visited the Appellant and delivered a notice of intention to refuse registration. The Appellant objected and made written representations but, after a hearing in her absence, the decision was made on 1 September 2003 to refuse registration. It is against that decision that the Appellant now appeals.
2. Essentially, the Respondent's case has been that the Appellant has failed to demonstrate an adequate understanding of any of National Standards because, in her two interviews, she was not really able to talk about them and, even her replies to specific questions were very short. Therefore, she is not qualified to be registered because she is not suitable to look after children under the age of eight. The Appellant's case, in summary, is that she thought the first visit was an advisory visit rather than an inspection, that the inspectors had made their minds up before the second visit, that insufficient allowance had been made for her learning difficulty and that she did understand the National Standards and was qualified to be a childminder. The Appellant has been very ably represented by a family friend.
3. We indicated at the beginning of the hearing that we wished to hear the Appellant's case first. This was because we had to form our own view of the Appellant and her evidence was likely to make it relatively unimportant for us to resolve such relatively few disputes about the visits as there were. In the event, we heard oral evidence from the Appellant, her partner, her partner's mother and her representative and we did not hear oral evidence from the inspectors at all.
4. The Appellant's representative asked that the Appellant be allowed to give evidence by video link because she was very shy. We refused that application. It was not the Appellant's case that she fell within the scope of the term "vulnerable adult", as it is defined in regulation 1(2) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002. Therefore regulation 17, which makes special provision for child and vulnerable adult witnesses, did not apply. Furthermore, the Appellant's ability to communicate was plainly an underlying issue in the case and we wished to see and hear her give direct evidence to us. Although appearing before a tribunal can be a daunting experience, it should not be too much for a person applying for registration as a childminder. We allowed the Appellant's partner to sit next to her while she gave evidence.
5. The Appellant told us that she had a learning difficulty and that she had had various tests but she did not know what the results were. She had learning support at school and was taken out of some lessons to have special help with reading and writing. She said she referred to her difficulty as dyslexia but she had not had a formal diagnosis. Her partner's mother told us that she thought that the Appellant did suffer from dyslexia but otherwise did not have learning difficulties. Rather, she was intensely shy, being self-conscious about her dyslexia. We are not able to assess the extent to which the Appellant suffers from any intellectual impairment, if she does at all, and it is not necessary for us to do so. It is not in dispute that she does have difficulties in interacting with people and it is the effect of that that is important in this case.
6. There are really two aspects of the Appellant's difficulties. First, she is virtually unable to read and write. She said that if a parent brought a note with a child, she would try and read the note and would ask the parent to tell her what the rest of it said. The National Standards had had to be read to her by her partner. Plainly an inability to read places a premium on memory. This may have been a factor in the Appellant's inability to talk about matters covered in the National Standards or the course on childminding practice that she had attended. An inability to read also makes it difficult to use records and an inability to write makes it difficult to create them. There would also be obvious difficulties in developing the reading and writing skills of children in her care. Apart from saying that she can use a voice recorder and voice-activated computer to create documents, she had no strategy for dealing with any of these problems.
7. Secondly, the Appellant is not good at verbal communication. The other witnesses told us that the Appellant is a different person in her own home. It is necessary for us to make some allowance for the fact that we only saw the Appellant in the artificial and stressful circumstances of a tribunal hearing, but our experience does not seem very different from that described by the inspectors and they did see the Appellant in her home. She gave short answers to direct questions but hardly ever expanded the answers beyond vague generalities and so she failed to demonstrate any real understanding of what is expected of a childminder.
8. Regrettably, even if the problem is only one of communication, the consequence of the appellant's inability to answer questions is that we have no confidence in her ability to foster partnerships with parents or professionals concerned with the welfare of children in her care or to organise and plan childminding and anticipate possible events rather than merely react to them when they happen. Parents who leave their children with a childminder are entitled to rely upon the fact that the childminder is registered as an indication that an inspector or a tribunal has been satisfied that the childminder understands and is able to meet the National Standards. If an applicant for registration cannot communicate to an inspector or tribunal an understanding of what is required of a childminder, the application is bound to fail.
9. We accept that some of the inspectors' reasoning is not as compelling as it might be – for instance it seems to have been the inspector's arithmetic that was at fault rather than the Appellant's when the Appellant was criticised for miscalculating her daughter's age and it may not have been unreasonable for the Appellant to fail to talk about general behaviour management in answer to a question posed about methods of discipline – but these are minor points and do not undermine their overall assessment of the Appellant as being unsuitable for registration as a childminder. The claimant's inability to display any verbal reasoning skills is relevant to all 14 National Standards and, although we did not go through the standards with the Appellant in the detail that the inspectors did, we agree with their overall assessment.
10. On that ground, this appeal must fail.
11. However, we wish to make it clear that this is no reflection on the Appellant's integrity. Furthermore, we were told by the other witnesses that the Appellant was a good mother to her own children. There is no very substantial evidence to contradict that. The inspectors were concerned that she appeared not to give much attention to her daughter during the inspections but we can understand that she may have been giving the inspectors almost all her attention and that what they observed may not have been typical. The inspectors were also concerned that she appeared to have been referred to a "young Mum's group" formed to help mothers to develop parenting skills. The Appellant plainly did not understand that to have been the case and said that she had merely gone to a mother and toddler group so that her daughter would have the opportunity of being with other children of her own age. The health visitor's records that we have seen do not refer to any specific concern and, more importantly, the written evidence before us does not give any indication that any concern might have been justified and based on something more substantial than the Appellant's difficulty in expressing herself.
12. It follows that our decision does not necessarily mean that the Appellant could not make another application for registration in the future. We did note that she first applied for registration because she wanted a job and it would have been convenient working at home, which suggests that a desire to work with children was not the primary motive. However, if it does become something she particularly wants to do and she can improve her ability to communicate with strangers in positions of authority, she could make another application, although we would suggest that she should not do so until her own children are older so that she has more experience upon which to draw and, perhaps, until she has tried some other employment.
13. We also wish to comment on some of the points made about the inspection process. We do not consider that the Appellant's view that the first visit would be advisory was entirely unreasonable. OFSTED's Guide to Registration for Childminders does not make it quite as clear as it might that the "suitable person interview" will take place during the "registration site visit" and the process of "feedback" and the "action letter" do suggest that there will in practice be some advice given at, or after, that visit. The problem in the present case seems to have been that the Appellant thought that she did not need already to have a fair understanding of the National Standards before the visit and she seems to have expected the inspector to provide basic instruction rather than appropriate advice.
14. As it turned out, that misunderstanding was not important because OFSTED did not make any decision until the Appellant had attended the relevant courses. We do not accept that the inspectors had made up their minds before the second inspection in the sense of having closed minds. Because of the way the first interview had gone, they may have had low expectations that the Appellant would satisfy them of her suitability for registration and that may have communicated itself to the Appellant, perhaps because they started the interview by asking her whether she still wished to proceed with the application for registration. However, it does not follow that the inspectors would not have been quite prepared to be pleasantly surprised and to revise their views had the Appellant begun to demonstrate that she did now understand what was required of a childminder. Furthermore, it appears from her partner's statement that the Appellant had low expectations herself before the inspection took place. In the event, her partner answered most of the questions. He also had applied for registration but it was necessary for the Appellant to show that she was capable in her own right, not least because her partner would be out most of the day following his main employment.
15. There seem to us to be two answers to the Appellant's complaint that the inspectors did not adequately take into account her learning difficulty or dyslexia. The first is that nothing had been said about her suffering from a disability on the application form because she and her partner, who filled the form in for her, did not consider that she had a disability. They said that she did not hide her inability to read and write and mentioned her dyslexia in the first interview. There is no reference to that in the inspector's statement and notes and we do not know whether the inspector would accept that the dyslexia had been mentioned but, assuming that it was, it is plain that the information did not make any impression on the inspector, which might be because dyslexia does not necessarily have the effect of making a person as unable to read and write as the Appellant. There was also information from the health visitor suggesting that the Appellant had a learning difficulty but there was nothing specifically drawing the inspector's attention to the nature of the problem. Therefore, the first reason that the inspectors did not take account of the Appellant's difficulties is that they were not fully aware of them, although, insofar as the problem was one of verbal communication, the inspectors did take it into account to the extent of asking more detailed questions than they might otherwise have done. The second reason is that, sadly, such difficulties are part of the problem facing the Appellant in her application. An inability to communicate makes it difficult adequately to carry out the role of a childminder. It was for the Appellant to recognise that that was a difficulty and to suggest ways of overcoming it.
16. Finally, nothing we have said should be construed as reflecting on the Appellant's partner's suitability for registration as a childminder, although we suspect that he may wish to withdraw his application in the light of our dismissal of this appeal because he wished to be registered only to back up the Appellant. He and his family and friends have been very supportive of the Appellant. It may well be that, if he had wished to be a full-time childminder, he could have been registered and had the Appellant as an assistant. However, the Appellant seeks registration in her own right and so it is her ability to understand all that is required that has been in issue before us and not whether they could manage together.
17. At the hearing, the question was raised whether there should be a restricted reporting order under regulation 18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002. The chairman has not made such an order but the decision will be published with the name of the Appellant in the title represented by initials and the name of her representative deleted, in order to protect the private life of the Appellant and her family (see regulation 27(3)(b)).

Mark Rowland

Paul Thompson

Jim Lim

Signed by the chairman on this 5^th day of April 2004.