England and Wales Care Standards Tribunal

 


Skerratt v Ofsted [2004] EWCST 428(EY) (26 May 2005)

IN THE CARE STANDARDS TRIBUNAL

BETWEEN:

Rosemary Skerratt

Appellant

-v-

Ofsted

Respondent

[2004] 0428.EY

Before:

Mr Stewart Hunter (Chairman)

Ms Susan Last

Mr David Allman

Sitting at the Leeds Employment Tribunal on 5^th May 2005

APPEAL

Rosemary Skerratt ("the Appellant") appeals under the Children Act 1989 Section 79M against the decision of the Office for Standards and Education ("Ofsted") made on 1^st December 2004, to cancel the Appellant's registration as a childminder.

Representation

Ofsted were represented by Mr John Jackson solicitor.

The Appellant, who did not participate in the hearing, was represented by a friend, Mr Patchett.

Preliminary matters

A restricted reporting order was made pursuant to Regulation 18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, prohibiting the publication, (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any children looked after by the Appellant.

Decision

The appeal is allowed subject to the imposition of a condition on the Appellant's registration certificate.

Reasons

1. Ms Skerratt has been a registered childminder since 1998. She lives in a market town known as Otley, which is just inside the boundaries of the City of Leeds. She is registered to provide care for 5 children under 8 with a maximum of 3 under 5. When inspected in June 2004 Ms Skerratt, was caring for 3 children aged between 1 and 3 years.
2. On the 4^th November 2002 following the introduction of the Care Standards Act 2000 Ofsted carried out a transitional inspection. The inspection was carried out by Margaret Shelborn, a child care inspector with Ofsted. In her witness statement dated 14^th April 2005 Ms Shelborn described her role as being to inspect early year's providers against the National Standards. Ms Shelborn stated that she explained to Mrs Skerratt that she would be completing an inspection notebook, and would be covering the standards by asking questions relevant to each standard. A copy of that notebook was submitted to the Tribunal.
3. Ms Shelborn identified six national standards which she did not consider that Ms Skerratt had met. These related to the completion of a first aid course, providing details of the assistant with whom Ms Skerratt was working, the provision of a fire blanket, having written permission from parents to administer medication and an action under Standard 11 relating to behaviour. Ms Shelborn indicated in her witness statement that she had raised appropriate actions to ensure that Ms Skerratt could meet these standards and further that Ms Skerratt had not raised any objection. A timetable was given for the implementation of these actions.
4. The next inspection took place on an unannounced basis on 17^th June 2004 and was carried out by Ms Jacqueline Walter, a childcare inspector working for Ofsted. As part of her inspection she checked that the previous actions raised by Ms Shelborn in November 2002, had been dealt with in an appropriate manner. Ms Walter took the view that Ms Skerratt had still not meet three of the standards under which actions had been previously raised.

The first outstanding action was in relation to Standard 1 which states as follows:-

"Adults providing day care, looking after children or having unsupervised access to them are suitable to do so".

The supporting criteria for this standard under the sub heading "Qualifications" reads as follows:-

"The childminder has completed a first aid course which includes training in first aid for infants and young children, and which is consistent with any guidance issued to Local Authorities by the Secretary of State….."

When questioned by Ms Walter as to why Ms Skerratt had not completed a first aid course, she is reported to have replied that she had contacted the Day Care Support Team, ("DCST") twice to try and obtain a date and venue for a first aid course, the DCST had implied that they would send this information out to her, but this had not happened. Ms Skerratt said that she was willing to do the training, but it had to be within her working hours.

5. The second outstanding action from the November 2002 inspection, related to standard 6 dealing with safety. The standard reads as follows:-

"The registered person takes positive steps to promote safety within the setting and on outings and ensures proper precautions are taken to prevent accidents."

In paragraph 6.11 of the supporting criteria, under the sub heading "Fire safety", the following information is given:-

"A fire blanket with conforms to BS EN safety standards is provided in the kitchen".

In respect of this matter, Ms Skerratt is reported as saying that she was not willing to pay for this appliance. She would be prepared to tell parents that this was a requirement, but she was not going to pay for it, if they wanted to make a contribution she would be grateful and would then buy one.

The final outstanding matter concerned standard 7 relating to health. The wording of the standard reads as follows:-

"The registered person promotes the good health of children and takes positive steps to prevent the spread of infection and appropriate measures when they are ill".

The supporting criteria under the sub heading "medicine" at paragraph 7.8 states as follows:-

"The childminder does not administer any medicine or other treatment to children unless the parent has discussed its use and given prior written permission …"

Ms Skerratt's recorded response to the action taken in respect to this standard was that she only sought written permission from parents to administer medication for their children if parents were willing to provide it. Ms Skerratt indicated that she would make it clear to parents that if they did not give written permission then they were breaking a requirement.

6. Ms Walter recorded her findings in her inspection notes. In the section headed "How Good is the Childminding?" Ms Walter recorded that "Rosemary Skerratt offers overall, satisfactory care for children". Amongst the comments under the heading "What is being done well?" Ms Walter noted that, "Children are involved in a stimulating and balanced range of activities and toys, both indoors and outdoors and are happy and interested in their surroundings".
7. Ms Walter reported the outcome of her inspection visit to her team manager Ms Joy Law, who in turn discussed the matter with the Ofsted area manager, Mr David Asher. As a result on the 22^nd July 2004 Ofsted sent three separate Compliance Notices to Mrs Skerratt one in respect of each of the three standards it was alleged that she was breaching. These notices required Ms Skerratt to provide a fire blanket, to obtain parental consent for the administration of medication within 14 days of the notice, and in respect of the first aid training to provide an action plan demonstrating how Ms Skerratt intended to complete an appropriate first aid course by 20^th August 2004.
8. There then followed further communication between Ms Walter and Ms Skerratt, as a result of those discussions Ms Skerratt was given further time in order to comply with the notices. By the end of September 2004 Ms Skerratt had satisfied Ofsted that she had taken the necessary action to obtain written consent from parents to administer medication. However the issues of the fire blanket and the first aid course remained outstanding. On 24^th September 2004, Ms Skerratt wrote a letter to Ofsted which included the following comments:-

"Regarding a fire blanket. I do not object to having one, and as it is an Ofsted requirement, Ofsted should provide me with one.

Attending a first aid course, I am willing to attend on Monday, Tuesday, Thursday or Friday during working hours. As it is an Ofsted requirement Ofsted should pay if any charges are made. I am waiting for details of a course I can attend".

9. The Tribunal heard from Mr David Asher about how seriously Ofsted regarded the ongoing breaches of the National Standards by Ms Skerratt. As far as Ofsted was concerned Ms Skerratt's attitude was putting children at risk, particularly by not attending an appropriate first aid training course; young children were vulnerable to accidents. Mr Asher considered that Ofsted had given Ms Skerratt every opportunity to comply with the standards. Mr Asher told the Tribunal that there were some 3000 childminders in the area for which he was responsible and that Mrs Skerratt was unique in failing to attend a first aid course and provide a fire blanket.

There were a number of first aid courses available provided by Leeds City Council, details of which were given to the Tribunal. This information indicated that there were a number of first aid courses consisting of up to four sessions, held on Saturdays or in the evenings. The Tribunal were told that there were a number of courses within reasonable travelling distance of Ms Skerratt's home. The cost of the courses were said to be around £10.

In view of the seriousness with which Ofsted viewed the matter, a Notice of Intention to Cancel Mrs Skerratt's registration as a childminder was sent to her by Ofsted on 26^th October 2004. Mr Asher gave evidence that he had hoped that this would prompt Ms Skerratt to understand the seriousness of the situation and persuade her to comply, thereby allowing the Notice to be withdrawn.

10. On Monday 1^st November 2004 Ofsted had received a letter from Ms Skerratt objecting to the Notice of Intention to cancel her registration.
11. On 22^nd November 2004 Ofsted convened an Objection Panel chaired by Marie McGuinness, a manager from a neighbouring Ofsted region. The other members of the panel were a Ms Beaumont and Mr Asher himself. Mr Asher indicated that during the meeting Ms Skerratt had re-iterated why she considered that she was not breaching standards 1 and 6. She was willing to attend a suitable first aid course provided it was during her working hours and that she did not have to pay for it. Similarly she was not objecting to having a fire blanket, but objected to having to pay for the same. It was clear to Mr Asher that Ms Skerratt felt on principle, that it was not incumbent on childminders to bear the cost of meeting these standards. The panel's view was that it was the responsibility of Ms Skerratt as a childminder, to ensure the safety and protection of children being minded by her, and accordingly the panel supported the decision to proceed with issuing a Notice of Decision to cancel Ms Skerratt's registration as a childminder. On 1^st December 2004 Mr Asher signed the Notice of Decision to cancel.
12. On 17^th December 2004 Ms Skerratt appealed to this Tribunal. In her appeal, Ms Skerratt confirmed that she was prepared to attend an appropriate first aid course, but that had to be within her normal working hours and paid for by "whatever body imposed the regulation". In respect of standard 6 she stated that she believed that a fire blanket should be provided, again by whichever body had imposed the regulation. She considered that she was a suitable person to care for young children and that registered childminders working in their own home should be exempt from standard 1 in respect of first aid training and standard 7, being in possession of a fire blanket, and further that these should be advisory and not mandatory requirements. Ms Skerratt did not attend the Tribunal hearing itself, but did provide a witness statement on the day of the hearing. In addition the Tribunal received supportive letters from the parents of the children being minded by Ms Skerratt. All three sets of parents indicated that they were satisfied with the care being given by Ms Skerratt. In addition Ms Louise Rouke stated in her letter of 11^th April 2005 as follows:-

"A fire blanket has been bought for Rose by a parent of one of her charges".

At the Tribunal hearing Mr Jackson on behalf of Ofsted, indicated that Ofsted were prepared to accept that a fire blanket had now been provided.

13. In her witness statement Ms Skerratt argued that she did not believe that a fire blanket was an essential safety item in a family home where professional childcare takes place. As for the first aid course, she re-iterated that she was still prepared to attend such a course and that she had on numerous occasions asked for details of relevant courses, however the dates that she had been given were not convenient as she worked 4 days a week, and at weekends she was a full time carer of her own children. The only realistic time for her to attend a first aid course would be during working hours which would involve her in a loss of income. She went on to say that she did provide child care on a day to day basis in a genuine caring and professional way.

CONCLUSIONS

14. The issue to be determined by the Tribunal in this case is whether to confirm the decision of Ofsted to cancel the Appellant's childminding registration certificate or to direct that that decision should not have effect and consider whether to impose, vary or cancel any condition.
15. The Day Care and Childminding (National Standards) England Regulations 2003 state at paragraph 4(2) as follows:-

"A registered person who acts as a childminder or provides Day Care on premises shall:-

(a) comply with the requirements of these Regulations;

(b) meet the requirements of the national standards, and

(c) have regard to the supporting criteria that are applicable to the child care category into which the care provided by him falls and to any additional or alternative supporting criteria which he is notified by the Chief Inspector are applicable to that care".

The relevant national standards in this case are the standards for under 8's day care and childminding. The introduction to the national standards document contains a paragraph which reads as follows:-

"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".

16. In this case Ms Skerratt received a transitional inspection in November 2002, following the transfer of regulation from Leeds local authority to Ofsted. On that occasion the inspector Margaret Shelborn identified breaches of five standards and actions were raised by Ofsted to identify what needed to be done for those standards to be met. It does not appear that at that stage Ms Skerratt objected to the action being asked of her by Ofsted. In view of the fact this was a new regime, Ms Skerratt was given several months to comply with the standards. It is however a little surprising that it was not until June 2004 that Ms Skerratt was inspected again. By the time of the second inspection, this time carried out by Jacqueline Walter, three of the original five breaches were still outstanding. As a result compliance notices were issued and we are satisfied that Ms Skerratt was indeed aware that her continuing non compliance with the standards would possibly result in her registration being cancelled.

This did result in Ms Skerratt obtaining written consent from parents before administering medication, but left outstanding provision of a fire blanket and Ms Skerratt's attendance on a first aid training course. By this stage Ms Skerratt was making it clear to Ofsted that her refusal to obtain a fire blanket and complete a first aid training course were matters of principle, relating to the timing of the first aid course and the costs involved.

17. This has continued to be Ms Skerratt's position and therefore we accept that by October 2004 Ofsted were left with little choice but to issue a Notice of Intention to cancel Mrs Skerratt's registration as a childminder, this on the basis of a failure to meet standard 1 relating to "suitable person" and Standard 5 "safety". Ms Skerratt objected to the Notice of Intention and an Objection Panel was convened. Ms Skerratt attended and re-iterated her position. It was perhaps inevitable in the circumstances, given Ofsted's view that Ms Skerratt's continuing non compliance placed children at risk, that the panel would support the decision to proceed with issuing a Notice of Decision to cancel Ms Skerratt's registration as a childminder. Nevertheless we do have concerns about the make up of the panel, in particular the fact that Mr Asher, the person who had signed the notices of intention to cancel Mrs Skerratt's registration as a childminder, was also a member of the panel that considered Ms Skerratt's objections to the same notice.
18. It is perhaps important to note that the regulations require a childminder to meet the requirements of the national standards, whereas in terms of the supporting criteria they are required to have regard to that criteria. It is true therefore to say that national standard 6 on the issue of safety, does not in itself mention fire blankets, but rather the overall requirement for a childminder to ensure proper precautions are taken to prevent accidents. Similarly in relation to standard 1, dealing with the definition of a suitable person, the standard does not specifically refer to a childminder having completed a first aid course, this is a matter that appears in the accompanying criteria. Therefore in appropriate cases it may be open to a childminder to argue that they have met the standard in a way other than specifically set out in the criteria. However in our view that is likely to be an unusual Moreover this was not the argument used by Ms Skerratt in this case, she chose to adopt which she regarded as points of principle, in terms of the cost of meeting the relevant criteria and her availability to attend a first aid course. In those circumstances we are in no doubt that at the time that Ofsted issued their Notice of Decision to cancel Ms Skerratt's registration, she was in breach of two important standards, and therefore in our view it was appropriate for Ofsted to have taken the action it did.
19. In the documents submitted in support of her appeal, Ms Skerratt included a letter from the parents of one of the children that she looks after, Ms R, who indicated that a fire blanket had now been purchased for use by Ms Skerratt. At the Tribunal hearing Ofsted indicated that they were prepared to accept that a fire blanket was now in place. This left outstanding questions of compliance with standard 1 namely the suitability of Ms Skerratt to provide day care. It is our view that if someone takes on the role of looking after other people's children this entails a high level of responsibility, in circumstances where a child has been entrusted by their parents into someone else's care. One of the key elements being to ensure that children are kept safe. Infants and young children are particularly at risk when it comes to accidents in the home and we therefore regard it as essential that a childminder can demonstrate that they have the necessary first aid knowledge in order to be considered a suitable person. As the criteria to Standard 1 indicates the way to achieve this is to attend a first aid course which includes training in first aid for infants and young children. Ms Skerratt provided no evidence that she had completed such a course. Whilst she provided evidence that she was willing to go on to such a course, it could only be on her terms and provided the cost was met by someone else. There appears to have been a misunderstanding on Ms Skerratt's part as to Ofsted 's role in relation to childminders, they are there as the regulatory authority to ensure regulations and standards are complied with. It is not their responsibility to arrange courses, to provide equipment or to provide financial assistance for childminders. In our view Ms Skerratt has not demonstrated that she has met standard 1 by virtue of her failure to complete a first aid course.

The question then arises as to whether or not Ofsted's decision to cancel her registration should be upheld. We take into account the fact that Ms Skerratt has been registered as a childminder since 1998 and the comments made about the overall standard of her day care as recorded by Ofsted's inspectors, which has been described as satisfactory with the children being involved in a stimulating and balanced range of activities. We also take into account the supportive letters from the parents of the children whom Ms Skerratt minds. This however does not in any way negate the importance that we attach to ensuring the safety of children and therefore if Ms Skerratt is to continue to be a childminder she must complete a first aid course. The evidence presented to the Tribunal suggests that there are courses available in her locality, both at weekends and evenings and Ms Skerratt must make the necessary arrangements to attend and complete such a course. In those circumstances we are prepared to agree to Ms Skerratt's registration continuing, but only if she completes a first aid course within 3 months and provides Ofsted with written confirmation and evidence that the course has indeed been completed satisfactorily.

20. The decision of the Tribunal was unanimous.

ORDER

The Respondent's decision to cancel the Appellant's registration shall cease to have effect. The Appellant's registration certificate shall continue in force, provided that within 3 months from the date hereof, she completes a first aid course which includes training in first aid for infants and young children, and which is consistent with any guidance issued to local authorities by the Secretary of State, and within the said 3 months provides Ofsted with written confirmation that such a course has been successfully completed.

Mr Stewart Hunter - Chairman

Ms Susan Last

Mr David Allman

Dated 26 May 2005