England and Wales Care Standards Tribunal

 


P v OFSTED [2004] EWCST 334 (EYSUS) (12 July 2004)

P -v- Her Majesty's Chief Inspector of Schools (OFSTED) [2004] 334.EYSUS -Before- His Honour Judge David Pearl (President) Ms B Chatfield Mrs S Howell DECISION
1. Her Majesty's Chief Inspector of Schools (OFSTED) suspended the registration of P to provide childcare for an initial period of six weeks on 16^th June 2004. P appealed to the Care Standards Tribunal on the 24^th June 2004 and the Respondent filed the Response on 29^th June 2004.
2. At the hearing before us on 12^th July 2004, Mr J Jackson, Solicitor of Walker Morris, Leeds appeared on behalf of the Appellant, and the Respondent was represented by Ms S Freeborn of Counsel instructed by Anthony Collins, Solicitors of Birmingham.
3. It was agreed by the parties that the appeal should be determined on the basis of submissions alone as the issue before us was whether the complaints that had been made give reasonable cause to believe that the continued provision of day care exposes or may expose one or more children to the risk of harm [Regulation 3 of the Child Minding and Day Care (Suspension of Registration)(England) Regulations 2003].
4. The "threshold" that needs to be satisfied has been set out in a number of earlier decisions, in particular K v OFSTED [2003] 191.EYSUS and Mrs L.M. v EYSUS [2003] 181.EYSUS. It is worth repeating that the threshold "reasonable cause to believe" falls between the balance of probability test and the "reasonable cause to suspect" test in s 47 of the Children Act 1989.
5. The facts of this case are as follows. On 14^th June 2003, OFSTED received a telephone call from an Early Years teacher mentor (SW) who in the previous week had visited the Nursery for which P is the registered person. After the visit it would seem that SW had received a telephone call from an employee at the Nursery (N) who claimed to have witnessed P and his wife, Mrs P (who is employed at the nursery as a member of staff) hitting and kicking children, as well as force feeding them. SW had typed up her note of that telephone conversation and we have seen a copy of that note. It contains very serious allegations of physical assault on children.
6. The allegations were referred to Social Services and the Police, and arrangements were made for a strategy meeting on 16^th June 2004.
7. It would appear that OFSTED received a phone call from an employee of the nursery (RS) on the morning of the 16^th June. The OFSTED Complaints Officer called RS back and made a copy of the telephone conversation. Again, we have seen this note. RS said that she had witnessed Mrs P smack a child. It includes the comment from RS "A member of staff has a log of incidents going back about a year."
8. The strategy meeting took place on the 16^th June 2004. The decision was taken to suspend P, and the Notice of Statutory Suspension was served on P. The Notice states that the purpose of the suspension is to allow time for the circumstances to be investigated. The reasons for the suspension is given as: "to allow investigations to be undertaken into serious allegations which have been made against the nursery which appear to be breaches of the National Standards."
9. We were told that these "limited" reasons were given rather than more details so as to comply with the Protocol between OFSTED and the Area Child Protection Committees and in particular paragraph 2.1.1 This states that "providers and regulators must not jeopardise criminal or civil proceedings by making their own enquiries, particularly where evidence needs to be collected from young children."
10. We have to say that we do not read paragraph 2.1.1 in such a restrictive way. Regulation 5 of the Child Minding and Day Care (Suspension of Registration)(England) Regulations 2003 is very clear. It states that the Notice shall include the reasons for the decision, and at the very least it must follow in our opinion that the Notice should have referred to allegations by members of staff of physical abuse. If there is any inconsistency between the Regulations and the wording of the Protocol, the Regulations must be given priority. We hardly see how the information would have prejudiced or contaminated any evidence gathering activity by the Police and/or the Social Services.
11. In any event, by 22^nd June 2004, the Appellant's solicitors were informed that the alleged incidents involved physical abuse. The file note of that telephone call suggests that the Appellant's solicitors had already guessed the reason for the suspension.
12. We have to look at the facts as they are at the date of the hearing. We have been told that the Police have already interviewed P and his wife and members of staff. There are further interviews to be undertaken with parents and there may be interviews with some of the children.
13. Mr Jackson criticises the nature of the evidence that we have been presented. In particular, he draws our attention to the fact that no statement has been lodged by OFSTED from N, the employee who had made the phone call to SW. We were urged to look at the evidence we had been given with considerable caution. It was suggested that all the allegations had "an element of Chinese whispers."
14. We are unable to agree with Mr Jackson. We have formed the view that the threshold has been satisfied in this case. The allegations have been made by members of staff, and there is no suggestion whatsoever that there could be any grudge by these people. The facts of the case are very different to those in AC v OFSTED [2003] 247.EYSUS that Mr Jackson asked us to consider. In that case the Tribunal had no more than untested and unsupported assertions of one parent. It would seem that in that case, the parent had made no complaint at the time of the alleged injuries notwithstanding that she was present at the time. She allowed her son to continue to be cared for by AC after both the alleged incidents had taken place.
15. We agree with Ms Freeborn that the facts of this case are of a different nature. Here, complaints of a very serious nature of physical abuse have been made by employees. A reasonable person, presumed to know the law and possessed of the information available would in our view believe that a child might be at risk if the provision of day care by the Appellant were continued.
16. Accordingly, we dismiss the appeal in this case and confirm the Chief Inspector's decision to suspend registration. Our decision is unanimous.

His Honour Judge David Pearl

(President)

Ms B Chatfield

Mrs S Howell