England and Wales Care Standards Tribunal

Fleming v OFSTED [2004] EWCST 401(EY) (07 March 2005)

Adrienne Fleming

v

OFSTED

[2004] 401.EY

BEFORE

Mr Laurence J Bennett (Chairman)

Mr Tim Greenacre

Ms Michele Tynan

On

4^th March 2005 at Leeds

Appeal

1. Mrs Adrienne Fleming (the Appellant) appeals under the Children Act 1999 Section 79M against the refusal by the Office for Standards and Education (OFSTED) to vary a condition of her registration as a Child Minder.

Preliminary application

2. Mr John Jackson solicitor on behalf of OFSTED applies under Schedule 2 Paragraph 4 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (as amended) to strike out the appeal on the grounds stated in Paragraph 4(1)(b) that "it is outside the jurisdiction of the Tribunal or is otherwise misconceived."
3. Mrs Fleming confirmed that she was prepared to make oral representations in relation to this application at the hearing.

Facts and submissions

4. Mrs Fleming applied to OFSTED for amendment of her registration as a Child Minder dated 1^st July 2004 to care for two additional children aged three and seven years. This would if granted allow a ratio of ages and number of children in her care beyond that set out in the current National Standards relating to Child Minding and specified in the Guidance to the National Standards issued by OFSTED Revision 2 dated February 2004.
5. The 2004 Guidance relating to Child Minder ratios in the National Standards states:

   "More than three children aged under five – In exceptional circumstances you may care for more than three children aged under five. You must make a separate request on each occasion where you wish to do this. You must write into your regional centre and identify clearly the specific children for whom you are making the request with full details of how you intend to meet the needs of the children. Ofsted will make decisions based on the individual circumstances of each request. We will only consider such requests for time-limited arrangements involving:

• Siblings

• Continuity of care for children from the same family.

If your request is successful Ofsted will issue you with a certificate setting a new or varied condition that details the numbers of children that you may care for. This condition of registration only applies while you are caring for the particular children identified on your request. If any of these children or your care arrangements change then you must tell your Ofsted regional centre. You may not care for more than three children aged under five on a permanent basis."

6. Mrs Fleming requested in her Notice of Appeal that the Tribunal clarify considerations mentioned by OFSTED in their refusal which might lead to a future successful variation request. She confirmed at the hearing that this remained her purpose in maintaining the appeal.
7. Mrs Fleming requires clarification of the length of time a sibling would have to be in her care before a variation would be made to allow her to accept a related sibling. She also wants clarification of the requirements to constitute "continuity of care."
8. Mrs Fleming stated at the hearing that in the light of the answers to her questions she might discuss with a parent who had requested care for two children aged three and seven if she still required it. She may then apply to OFSTED to vary her registration.
9. Mrs Fleming did not provide additional documentation to assist the Tribunal in accordance with directions made by the President of the Tribunal, His Honour Judge David Pearl following the parties' appearance before him on 24^th January 2005.
10. Mr Jackson submitted that the grounds of the appeal could not be ascertained from the documents submitted by Mrs Fleming, although it was clear she had questions to which she wanted answers. He emphasised she had confirmed that once she had the answers she would contact the parent in question, ascertain whether or not that parent required her services and thereafter make an application for variation of the conditions to allow the specific placements.
11. Mr Jackson submitted that the Tribunal's jurisdiction is not to answer Mrs Fleming's questions which were described by him as "hypothetical." He suggested they were not specific and were matters which OFSTED would consider flexibly in the light of the actual circumstances pertaining at the time of any application for variation, taking into account the requirements of the National Standards.

Tribunal's conclusions with reasons

We have carefully considered the written evidence and submissions presented to the Tribunal prior to the hearing and the oral evidence and submissions given at the hearing.

Our conclusions are:

a. Mrs Fleming has a right of appeal against the refusal of OFSTED to vary conditions attached to her registration as a Child Minder. Paragraph 79M of the Children's Act 1989 inserted by Part 6 of the Care Standards Act 2000 states: "

(1) "An appeal against ……….. shall lie to the Tribunal

(2) On an appeal, the Tribunal may –

(a) confirm the taking of the step or the making of the order or direct that it shall not

have, or shall cease to have, effect; and

(b) impose, vary or cancel any condition."

This defines the powers of the Tribunal.

b. We have analysed Mrs Fleming's appeal. Whilst it is founded as an application to consider and possibly vary her registration conditions in fact she wishes a decision on preliminary issues before ascertaining whether she wishes to proceed to a position where it is necessary for her to apply for variation.

c. Mrs Fleming has formulated questions, answers to which will help her decide whether she should enter into a discussion with a third party which might lead to an application to OFSTED for variation.

d. Mrs Fleming did not specify in the papers provided by either party or provide at the hearing information relating to the detail set out in the 2004 Guidance. Mrs Fleming did not provide specific information relating to the two children, to the contrary she indicated that parents may no longer require placement. She did not take any opportunity at the Tribunal to provide further details but felt that her questions were a matter of principle and required an answer. We conclude that we are asked to provide some form of indication or ruling on her questions and not to vary her registration at this stage.

e. The Act does not provide that the Tribunal should decide preliminary points save as may be relevant to a substantive appeal. We do not consider we have jurisdiction to answer the questions Mrs Fleming poses and conclude that her appeal is outwith the jurisdiction of the Tribunal and should not be heard.

f. Had we concluded that the appeal should continue, we consider on balance of probabilities that the information provided would be insufficient for us to properly exercise a discretion or power to vary her registration as set out in the Act and it would likely fail.

Order

Mrs Fleming's appeal is struck out

12. According to Regulation 4(A)4, where the President or nominated chairman has made a determination to strike out an appeal, the applicant may apply to the President for that determination to be set aside. Such an application must be made no later than 10 working days after the date on which notice of the determination was sent to the applicant. Any application to set aside this determination must be made in writing, setting out the grounds in full (Reg 4A(5)(b)).

Date: 7 March 2005

Signed:

Chairman: L J Bennett

Mr Tim Greenacre

Ms Michele Tynan