England and Wales Care Standards Tribunal

 


Flynn v OFSTED [2004] EWCST 365(EY) (15 March 2005)

Case Number: [2004] 365.EY

PAULA JANIE FLYNN

-v-

OFSTED

14 & 15 March 2005

Melanie Lewis - Chair

Jill Low

Jenny Cross

Representation: -

For the Appellant: Not represented but assisted in presenting her case by her partner Mr. Westgarth.

For the Respondent: Mr. Reed, Solicitor

DECISION

APPLICATION

1. Paula Flynn ('the applicant') a registered childminder appeals under Section 79 M Children Act 1989 (as inserted by the Care Standards Act 2000) against a Notice of Decision served by Ofsted on 26 August 2004 by which the following conditions were imposed on Mrs Flynn's registration to provide childcare: -

(i) Must not use the second floor

(ii) Must not provide overnight care

2. The first condition was imposed on the recommendation of the Fire Safety Officer. Hertfordshire County Council previously approved Mrs Flynn as a community childminder. This information was not passed to Ofsted when they took over their regulatory role at the time of transfer of responsibility. However it was common ground that at the inspection undertaken by Gail Groves on 12 May 2004, Mrs. Flynn indicated that she did not wish to provide overnight care. The second condition was therefore imposed by Ofsted. Mrs Flynn subsequently indicated that she did wish to provide overnight. Ofsted then offered to re-inspect the premises as the National Standards requires any childminder providing overnight childcare to meet the criteria in Annex B of the National Standards. Whilst they indicated that they believed Mrs Flynn would meet those criteria, that would be dependent on her being able to use the second floor so that a child would have easy access to her and the bathroom. That inspection had not been carried out.
3. At the commencement of the hearing it was agreed that our decision as to whether to confirm the first condition would effectively resolve the second condition. If we resolved the matter in favour of Mrs Flynn, Ofsted would still need to carry out an inspection to confirm that she met the criteria in Annex B of the National Standards.

PRELIMINARY ISSUE

4. There was an issue canvassed in correspondence and at the Directions hearing on 15^th December 2004 as to whether that Mrs Flynn and Mr Westgarth intended to submit an independent report to challenge the evidence of the fire safety officer Mr Laurie Oliver. At the commencement of the hearing, they confirmed that they were not going to adduce a report, although they had indicated in correspondence that they had one but had concerns about it's format, not having a curriculum vitae of the writer and a query about who was to pay for the report. They confirmed that they understood that there would therefore be no independent evidence on the fire risk before the Tribunal. In those circumstances, Mr Reed did not pursue his intended argument that they were bound to produce it as the proceedings concerned the welfare of children.

THE FACTS

5. There was no issue that Mrs Flynn is a good childminder (and was graded as "good" as opposed to "satisfactory" by Ofsted). Mrs Flynn would like to be able to offer overnight accommodation on an occasional basis for two children she currently child minds and has done for the last eight years. There is also a possibility that she may wish to have the flexibility to provide overnight care for the children that she currently cares for and possibly to child mind overnight in her capacity as a community childminder.
6. Mrs Flynn does not use the second floor of her home for childminding but that she may need to go to the second floor from time to time during the course of the day. Ofsted could not accept her taking a minded child to the second floor in light of the fire safety officer's recommendations. There was no objection to her or her own children, over whom Ofsted had no jurisdiction going to the second floor where the family have their bedrooms and the bathroom is located.
7. Ofsted contended that they had no basis to go against the recommendations of the fire officer.
8. Mrs Flynn lives in a three-storey terraced townhouse. It is an Ofsted recommendation that any childminder living in a residence over two storeys should be inspected. That was the reason for the inspection. By letter dated 7 January 2003 Laurie Oliver, assistant fire safety inspector advised that childminding should be restricted to the ground and first floor only. 'The reason for this restriction is the second floor means of escape are through a risk area i.e.: the lounge'. Mr Oliver also advised that a water type fire extinguisher should be supplied and sited in the ground floor hall and that the kitchen door should be provided with an overhead self closing device or fitted with a child gate in order to prevent entry. A further letter from the community fire safety officer Mr Lee Bailey dated 20 January 2003, clarified those requirements. The egress on the second floor needed to be via a dedicated self-contained staircase that allowed travel from the second to the ground floor without the need to pass through any other room or 'risk area'. The identified risk area in this case was the lounge. It was agreed that when the house was built in 1968 it complied with the then building regulations. In oral evidence, Mr Oliver said he was surprised to find this configuration and initially thought Mr Westgarth and Mrs Flynn had made alterations, but this was not so. Mrs Flynn moved into the house in 1990. Maureen East, team manager in a telephone call on 19 August 2004 clarified that the recommendation not to use the second floor was a 'must'. That was so even if a hard-wired smoke detection system was connected in each room of the house.
9. Mr Westgarth asked that Ofsted should apply discretion. There was no issue that Mrs Flynn does not adequately supervise the children. A hard-wired system has been installed in the main circulation areas. The risk area was the lounge but this was where the childminding was centred and it was necessary to pass through that room to move between the first and second floor. Therefore, Mrs. Flynn would be alerted to any fire risk at a very early stage. She had practised a fire drill.
10. Mr Oliver clarified, in response to a question from the panel that it might be that the problem could be rectified by a by pass door being inserted between the first floor bedroom and study. He reminded us however that he had not been to the property now for nearly two years.
11. Mrs Flynn indicated that she would be willing to consider this option and did not think the cost would be outside a range she could contemplate. However, neither party favoured adjourning the matter, so that that option could be investigated and even possibly carried out.
12. Mrs Flynn and Mr Westgarth were concerned at the lack of advice they had received both from Ofsted and the fire service. Mr Oliver explained that he had visited in his capacity as a fire inspection officer at the request of Ofsted, when his function is to inspect not advise. If he had been requested to do so, he would have returned to advise Mr Westgarth and Mrs Flynn as private householders. Gail Groves, Ofsted inspector explained that she like all Ofsted inspectors is based at her home. She had not therefore seen the correspondence relating the recommendation of the fire officer, although she was made aware by Mrs. Flynn, that they had disputed Mr. Oliver's recommendations.
13. Mrs. Flynn has been a child minder in the house for eight years. She has her own routine of working and thought it would be hard to vary it. Mrs. Groves was of the view that the condition meant that Mrs Flynn should not set foot on the second floor and accepted that logically that could make child minding very difficult. Her team manager Maureen East did not share that view. She said that there were 400 childminders in her area of responsibility. She said it was very common for a condition to be imposed, sometimes at the request of the childminder (35-40%). Childminders were able to devise routines to accommodate such conditions, although if exceptional circumstances arose, Ofsted accepted that it would be reasonable for the childminder to go to the area in respect of which a condition was imposed.
14. Mr O'Neil, the Ofsted team manager for complaints investigation amplified where the boundaries lay. Mrs Flynn should not take childminded children to the second floor area and would commit an offence unless she had 'reasonable excuse'. Reasonable excuse would be exceptional circumstances. He did not have the flexibility to do anything other than follow the recommendation of the fire officer. At the objections meeting which he had chaired, the panel had not thought it necessary to go back to the fire officer as Mr Westgarth had sought clarification. However, in other cases the panel would have sought clarification if they thought it necessary. In some cases, the panel considered qualified recommendations from the fire safety officer. They would not insist on a best standard providing a lesser standard was acceptable.
15. One of the strengths of Mrs Flynn as a childminder, as testified to by references we read from the children's parents, were that the childminded children are warmly included in her own family. Mrs Flynn has four children. Two adult children are no longer living at home, her children now 8 and 6 remaining. She only childminds on three days per week .She minds a seven month old baby for three days per week. That child is reluctant to leave her side, although they are working on this. She also minds two children aged 8 and 4 after school two days per week and all day during school holidays. Those children have been with her, since the oldest was a baby. One day per week she looks after children who are both 18 months old. On another day she has a child who is 3 years old. She emphasised that she has varied arrangements in order to attain maximum flexibility. She thought that the difficulties caused by the condition would be that sometimes children are dropped off early. She needs to go to the second floor to get her own children up. Another area of difficulty would be during the holidays when she could have as many as six children on one day. She emphasised that the children are made to feel part of her family, and particularly the children she has minded the longest would often to upstairs for example to play with her own children. She makes no distinction between them.
16. Mrs Flynn was also concerned that the condition might create a difficulty with her insurers, although she had not discussed this with them.
17. In reaching our decision we have considered all the evidence in the round and the submissions made on behalf of both parties. We were fully conscious that Mrs Flynn was in person assisted by Mr Westgarth, her partner. We therefore took a more interventionist approach than we might otherwise have done in order to ensure that the issues were fully explored.
18. We have had regard to the National Standards, which state: -

"6.14 If a local Fire Safety Officer has visited, the childminder complies with, and keeps records of, any recommendations he has made".

We noted that the National Standards represent a baseline of quality below, which no provider may fall. However, they are also intended to underpin a continuous improvement in quality in all settings. There are 14 National Standards. Each standard describes a particular quality outcome and is accompanied by a set of supporting criteria giving information about how that outcome is to be achieved. The law also requires Ofsted to have regard to both the standard and criteria. Regulations under the Children Act require providers (technically the registered person in each setting) to meet the 14 standards and to have regard to those 14 criteria.

CONCLUSIONS AND REASONS

A The appeal raised issues about Mr Oliver's qualifications and competence. Mr Oliver has many years of experience, including ten years in his current job. In particular, he carries out at least one to two childminder inspections per month. We do not find that point made out

B We are not satisfied that Mr. Oliver was applying an unrealistic criteria. He was applying guidance issued by the Chief and Assistant Chief Fire Officers' Association which, in its introduction records that the guidance had been prepared with the objective of establishing a common basic standard of fire precautions for domestic dwellings used for childminding activities. We note in paragraph 21 that specifically it records that childminding in private dwellings does not normally present a high risk to life from fire and it is important that a homely and non-institutional environment is maintained. We are satisfied that some flexibility was maintained in this case, because Mr. Oliver's concerns were satisfied by a smoke alarm system being installed, rather than an overhead self-closing device on the kitchen door or a child gate in order to prevent entry to the kitchen. However, concern in relation to the layout of the property is in a different category. Mr Oliver gave clear and unambiguous advice about that which has not been contradicted by any other evidence. We therefore find that we have no basis for seeking to go behind his recommendation.

C The appellant sought to argue that Ofsted have discretion in this specific matter. The National Guidelines agree that some discretion is appropriate. In the section 'Applying the Criteria', it states that providers will normally show that they are meeting the headline standards by following the criteria. However, the criteria do not have to be followed to the letter if the provider can demonstrate, and Ofsted is satisfied, that the standards are being met in a different way. There are two exceptions to this: physical punishment and record keeping. However, we are not satisfied that this is so in this case. We accept that given the concern was about the lay out of the property, Ofsted were absolutely bound to follow the fire safety officer's recommendation, which applied over-arching standards with supporting criteria. No solution to the identified concern was suggested to either party until the hearing,

D Our concern cannot be with the safety of the Flynn/Westgarth children over which Ofsted has no jurisdiction. We appreciate as they frankly acknowledged, that Mrs. Flynn and Mr. Westgarth found the case emotional, as they would never wish to place their own or any other child in their care at risk. We accept that. They put forward reasoned arguments involving statistics, that there was more risk to children on the road than from a domestic fire. That may be so, particularly in a household where care and diligence are exercised, as we are satisfied is the case here. Nevertheless the National Standards apply to childminded children and we can find no basis for departing from them on the facts of this case.

E Despite the many positives, which were acknowledged in Mrs Flynn's practice as a childminder, the fact that she could undoubtedly meet the other 13 National Standards does not entitle us to say that she does not have to meet this 14^th standard. Each standard must be independently met.

F It therefore follows that the condition restricting childminded children being taken to the second floor must stand. We appreciate that Mrs. Flynn has developed her childminding practice over eight years and she will find it difficult to modify her established routines.

G. It would be very unfortunate if the outcome to these proceedings were that Mrs. Flynn no longer feels able to continue to childmind. It is very much to be hoped that the installation of a bypass door will resolve this matter, because there is one agreed outcome that everybody wants, namely that Mrs Flynn continues to work as a childminder. It is regrettable that Ofsted's regulatory role seems to have prevented the initiation of a constructive exploration of the possible solutions, one of which was raised for the first time during this hearing and that adversarial proceedings may have further prevented a more positive outcome. We suggest that Ofsted inspectors who work from home and, as understood to be the case, do not have access to all the written information by computer link should ensure that they are fully informed on all relevant issues before setting out on an inspection visit. Although we have no reason to believe it to be so in this case, the practice of relying on childminders to provide information is possibly open to misinterpretation.

DECISION

The appeal is dismissed

ME Lewis

Chair Dated: