England and Wales Care Standards Tribunal

AJ v Ofsted [2006] EWCST 693(EY-SUS) (02 June 2006)

CARE STANDARDS TRIBUNAL DECISION

AJ

-v-

OFSTED

[2006] 693 EY.SUS

-Before-:

Miss H Clarke (Chairman)

Mr D Griffiths

Mr A Wilson

The Tribunal met on May 22^nd 2006 at the Care Standards Tribunal Hearing Centre, Pocock Street, London.

For the Respondent: Miss Katherine Olley of Counsel instructed by Treasury Solicitor.

For the Appellant: The Appellant was not legally represented. Mr R (the Appellant's partner) spoke on behalf of the Appellant who was not present at the hearing.

Preliminary Point of Procedure

1. The Appellant in the Care Standards Appeal Application Form C dated April 19^th 2006 (Form C) requested that the Appeal be dealt with on the papers. The Respondent's submission to the Care Standards Tribunal (the CST) dated April 28^th 2006 (the Respondent's submission) requested that the matter be heard orally. Owing to administrative difficulties the nominated Chairman did not receive the Tribunal bundle until May 20^th 2006, the Saturday before the date fixed for the hearing which meant that the decision as to whether or not the matter should be dealt with by an oral or paper hearing had to be determined on the day of the hearing.
2. The Appellant did not appear in person at the Tribunal hearing but was represented by her partner Mr R who confirmed that the Appellant still wished the matter to be dealt with as a paper hearing. In response Counsel for the Respondent confirmed that the Respondent still wanted the matter to be dealt with by an oral hearing.
3. The written statements, correspondence and other documents filed by both parties with the CST prior to the hearing and on the date of the hearing have been collated into one paginated bundle (the Tribunal Bundle). The Tribunal Bundle includes an undated witness statement from the Appellant (Tribunal Bundle Pages 102- 104) and three undated witness statements from NR (Tribunal Bundle Pages 100-1001,105 and a further unnumbered two page statement by Mr R dated May 20^th 2006. The Respondent's bundle includes witness statements from the Appellant's children, JJ and RJ and from Vanessa Redmond, Gillian Cubit, Lisa Marie Jones, Lena Mead, PC S Cresswell and PC A Brunt.
4. The Tribunal, having read the Tribunal Bundle including the witness statements and additional evidence filed by both parties and taking into account the absence of the Appellant, the absence of any legal representation on behalf of the Appellant and the request by the Appellant that the matter be dealt with as a paper hearing, has decided that the matter should be determined as a paper hearing.
5. Therefore after formally opening the Tribunal proceedings and dealing with the preliminary point the Tribunal directed that the case would be dealt with as a paper hearing and then retired to consider the same.

The Appeal

6. A Statutory Notice of Suspension under the Child Minding and Care (Suspension of Regulations) (England) Regulation 2003 (the Regulations) was sent to the Appellant in a letter dated March 13^th 2006 (the Statutory Suspension Notice).The Respondent then sent the Appellant a Notice of Continued Statutory Suspension (the Continued Suspension Notice) in a letter dated 21^st April 200, which is the subject of this appeal.
7. A Restricted Reporting Order was made by the Tribunal under Regulation 18 of the Protection of Children and Vulnerable Adults in the Care Standards Regulations 2002 and this order shall continue at the conclusion of the hearing. Details of the Appellant, her daughters, her partner and other members of the family of the Appellant have been anonymised in order to protect the private life of the parties.
8. Regulation 3(1) of the Regulations states:

"The Chief Inspector ma, in accordance with the regulations, 4, 5, 6 and 7, suspend the registration of any person acting as a child minder or providing day care if he has reasonable cause to believe that the continued provision of child minding or day care by that person exposes or may expose one or more of the children to whom it is or may be provided to the risk of harm and the purpose of the suspension is for one or both of the purposes set out in paragraph 2.

2. The purposes of the suspension are:

(a) to allow time for the circumstances giving rise to the Chief Inspector's belief to be investigated;

(b) to allow time for the steps to be taken to reduce or eliminate the risk of harm."

9. The reason given by the Respondent for the extension of the statutory suspension was to enable the Respondent to make further enquiries about the Appellant's suitability.
10. The Appellant, in a letter dated 22^nd April 2006, requested that the suspension be lifted on the grounds that no reason had been given as to why the Appellant had been suspended. The Appellant also requested further clarification as to what enquiries were being made about the Appellant's suitability. The Appellant's letter also contained other allegations concerning the manner in which the Respondent had conducted the investigation.
11. The burden of proof is on the Respondent and the standard of proof was laid down in LM v OFSTED [2003] 181 EYSUS namely "whether there is reasonable cause to believe that the continued provision of child minding may expose a child being minded ... to the risk of harm"
12. Background Information

The Appellant was registered as a child minder in 2004 which enabled her to care for three children under the age of 8 in her home in Warlingham, Surrey. On December 6^th 2005 the police attended at the Appellant's house as a result of a telephone call made by the Appellant's daughter, RJ, who alleged that she had been assaulted by the Appellant during the previous evening December 5^th 2005 ( the December 2005 incident ). The Appellant was arrested on suspicion of causing actual bodily harm and subsequently released on bail. The Respondent was notified of the Appellant's arrest by a social worker and as a result the Respondent contacted the Appellant later on the same day, December 6^th 2005 after the Appellant had been released on bail. The Appellant agreed to a voluntary suspension of her child minder registration, and this was formalised in a letter dated 9^th December 2005 which confirmed that the Appellant had agreed to a voluntary suspension for a period from 6^th December 2005 to 17^th January 2006 to allow a child protection investigation to be concluded.

13. The Respondent subsequently sent two letters to the Appellant requesting a further period of voluntary suspension from January 18^th to March 1^st 2006 and second further period of voluntary suspension from March 2^nd to April 13^th 2006. The Appellant did not agree to either of these periods of voluntary suspension.
14. On December 12^th 2005 an "Initial Senior Strategy Meeting" (the location is not specified) attended by members of the Surrey Children's Services, the Surrey Police and Ofsted took place to consider the concerns and allegations that had been raised against the Appellant.
15. On February 22^nd 2006 the Surrey Police notified Miss S Harris of the Child Protection Liaison Office at Ofsted that RJ had made a statement stating that she was unwilling to proceed with the allegation that the Appellant had assaulted her on December 5^th 2005 and was not willing to attend Court or to be a witness on behalf of the Crown Prosecution Service (the CPS). The CPS having reviewed the file decided therefore that no further action would be taken against the Appellant as it would be difficult to prove beyond reasonable doubt that the allegations originally made by RJ, against the Appellant were true.
16. Once the Police investigation was concluded, the Appellant considered that she should be able to continue child minding and therefore she contacted Surrey Children's Information Service and informed them that she was no longer suspended. Gillian Cubitt of Ofsted (Ms Cubitt) had been in contact by telephone with the Appellant on February 21^st and 27^th 2006 and had tried to make arrangements to visit the Appellant to discuss the allegations arising from the December 2005 incident but the Appellant was unwilling to discuss the matter.
17. The communication between the Appellant and the Respondent deteriorated markedly during the period from the end of February to the middle of April. The Respondent then tried to make direct contact with the Appellant by arranging for Ms Lisa–Marie Jones, a childcare Inspector, (Ms Jones) to make an unannounced visit to the Appellant's home on April 19^th 2006. The Appellant declined to let Ms Jones enter the house and would only speak to her from an upstairs bedroom window.
18. Counsel, in the Respondent's written submission, relied on the Respondent's letter of April 27^th 2006 which set out the reasons for the refusal to lift the suspension and also emphasised that the Appellant had refused to agree to meet anyone from the Respondent's team and as a consequence the Respondent had been unable to assess the Appellant's suitability to continue as a childminder. The Respondent's submission also referred to further enquiries being undertaken, including interviews with the Appellant's daughters and collating further police information. The Respondent also questioned whether or not the Appellant had continued to mind children after the statutory suspension and raised a further issue concerning the lack of information about the details of the children that the Appellant had minded prior to the suspension.
19. The Appellant, in an undated statement which was received on May 10^th 2006 (Tribunal Bundle Pages 102 - 104) challenged the account set out in paragraph 4 of the Respondent's submission and stated that she in fact had considered making a claim for assault against RJ but had agreed to drop the charges if RJ agreed not to continue with the complaint against the Appellant.
20. Evidence

The witness statement of PC Cresswell, the Reigate Police Station, Surrey (Tribunal Bundle page 29) establishes that the police were called to the Appellant's house on December 6^th 2005 and that RJ had sustained injuries to her face, and that the Appellant was subsequently arrested on suspicion of assault occasioning actual bodily harm.

21. In a letter dated February 22^nd 2006 from Surrey Police (Tribunal Bundle page 137) reference is made to the Appellant confirming during an interview that she had had a verbal argument with her daughter, RJ. However, in her undated witness statement, page 102, paragraph 2, the Appellant appears to deny the Respondent's account of events. RJ's witness statement dated May 15^th 2006 acknowledges that she bit her mother's finger.
22. The transcript of the police interview with the Appellant on December 6^th in the presence of the Appellant's solicitor has not been provided in the Tribunal Bundle, there is also reference in the Tribunal Bundle at page 53 to a statement made by RJ and photographs of the injuries sustained by RJ; none of this information has been provided to the Tribunal .
23. The Respondent's original concerns about the Appellant's suitability to continue as a child minder arose after the Respondent became aware of the incident on December 5^th 2005 which resulted in the police attending at the Appellant's home and arresting her on suspicion of assault occasioning actual bodily harm to her daughter, RJ.

Once the Respondent had been aware that the police were investigating a potential assault by a child minder in her own home on a young person the decision by the Respondent to investigate the matter was entirely proportionate and reasonable. The Respondent chose not to issue a Statutory Suspension Notice but instead requested the Appellant to agree to a voluntary suspension until January 17^th 2006.

24. The Respondent requested the Appellant to enter into further voluntary suspension agreements for two periods between January 18^th – March 1^st 2006 and between March 2^nd 2006 – April 13^th 2006 but the Appellant refused to agree because she considered that once RJ had agreed not to proceed with the allegation of assault against the Appellant there was no reason for the Appellant to be suspended
25. However the Respondent did not consider that the matter was closed when the police decided not to continue with their investigation, as the initial allegation that the Appellant had assaulted RJ was sufficiently serious to raise on going concerns about the Appellant's suitability that the Respondent wished to investigate further.
26. Once the voluntary suspension expired on January 17^th 2006 the Appellant was no longer subject to any form of suspension by the Respondent . Ms Cubit in her witness statement (Tribunal Bundle page 2006 Paragraph 9) states "I explained Ofsted's procedures where there has been a suspension and that it was necessary for an inspector to visit to record AJ's account of events of 05 and 06 December 2005. I stated that the suspension could not be lifted until Ofsted had the opportunity of meeting her", but this was incorrect as with the lapse of the voluntary suspension on January 17^th 2006 no suspension existed to be lifted .
27. The Tribunal is concerned that an employee of the Respondent was not able to accurately explain to the Appellant the correct position. Later in her witness statement Ms Cubitt reiterates that in her telephone conversations with AJ "I explained that my purpose for calling her was to make a date for an interview to assess her suitability under the National Standards and I made it clear that the suspension could not be lifted until an interview had taken place" (Tribunal Bundle Page 2007 Paragraph 13). The Tribunal does not see how Ms Cubit was in a position to impose such a condition on the Appellant when the voluntary suspension had not been renewed.
28. When the Respondent received written confirmation from the Surrey police in a letter dated February 22^nd 2006 that no further action was to be taken against the Appellant the Respondent had to decide what action if any should now be taken against the Appellant. The Respondent requested a renewal of the voluntary suspension at the beginning of March, although it is accepted by the Respondent that the letter was mis-dated and also referred to incorrect dates in relation to the new voluntary suspension period proposed. The file had originally been dealt with through the Respondent's Woking office but was subsequently transferred to the Bristol office who undertook a review of the proceedings and raised concerns about the lack of management of the file. The Respondent was also then notified by Surrey Children's Information Service that the Appellant had requested that her name be reinstated on their list of child minders. The Respondent after reviewing the file then identified that as the Appellant had not signed the voluntary suspension agreements to cover any period of time after January 18^th 2006 so a Statutory Suspension Notice was then issued .
29. The letter dated March 13^th (the Statutory Suspension Letter) stated that the suspension was to allow the Respondent to assess the suitability of the Appellant to work as a child minder and then went on to state "The reason for Ofsted suspending your childcare service is because you were arrested for assaulting your daughter." This statement was incorrect, as the Appellant had been arrested on suspicion of assaulting her daughter and the allegation had subsequently been withdrawn. This incorrect statement was reiterated in a letter dated March 29^th 2006 by the Respondent to the Appellant, who in a letter dated March 30^th 2006 quite rightly demanded an apology and confirmation that the statement was withdrawn.
30. The Respondent did eventually respond by letter on April 12^th 2006 and apologised for writing "causing actual bodily harm." The incorrect statement , which was made on two separate occasions understandably did not encourage the Appellant to make contact with the Respondent. The attitude of the Appellant towards the Respondent by the end of March 2006 was beginning to become hostile, as demonstrated by her letter dated March 30^th 2006

(Tribunal Bundle Page 56/57)

"As there is no criminal complaint there is patently no case to answer, I still see no need to discuss anything with you, I have nothing to say to you that will change the material facts and you have consistently refused to answer directly my questions to you. I remain qualified for registration as I fulfil the requirements laid down by Act of Parliament and anything else you may consider would be subjective and open to legal challenge. The Act uses the word "may" when granting registration which allows you to make those decisions at the outset but you are obliged to show that you have reasonable cause in your beliefs. I therefore challenge you to show that reasonable cause by way of evidence. Put simply, what evidence do you have ?

My last comment meant that what you do is up to you. I will not resign but I will not co-operate with an investigation that serves no purpose and has no lawful basis since you have failed to follow your own procedures and can therefore not be considered reasonable in jurisprudence."

31. Whilst the Appellant's frustration at the considerable length of time that had now passed since the original incident in December 2005 was understandable the Appellant's continued refusal to even discuss matters with the Respondent was a contributory part of the ongoing delay.

The Respondent, in their letter dated April 27^th 2006, (Tribunal Bundle Page 197) when explaining the reason why they were refusing to lift the statutory Suspension explained clearly that although the Appellant had not been convicted or charged with the assault of her daughter, the Respondent did need to discuss the allegation that had been made and to make an assessment of any potential risk to the children being minded by the Respondent . The Tribunal accepts that this request by the Respondent to discuss the allegation and to make an assessment of risk in relation to the childcare service being offered by the Appellant was reasonable and correct. There may have been discrepancies and procedural inaccuracies by the Respondent following the initial voluntary suspension but these do not negate or extinguish the legitimate concern of the Respondent to investigate the allegations that had been made and their reasonable request to try and conduct an interview with the Appellant to discuss the matter.

32. The Tribunal in making its finding has followed the approach formulated in AG –v- Ofsted (2003) 232 EYSUS where the Tribunal said.

"12. We can formulate the approach that the Tribunal should take in these cases as follows:

the Tribunal should look at the facts as they exist at the time of the hearing. When considering these facts the Tribunal should ask itself two questions. The first of these questions is whether a reasonable cause to believe that the continued child minding or day care exposes or may expose one or more children to whom it is or may be provided to the risk of harm. The second question is whether the suspension is to allow time for circumstances giving rise to the Chief Inspector's belief to be investigated and/or to allow time for steps to be taken to reduce or eliminate the risk of harm.

In our opinion the Tribunal should consider the questions separately."

33. Tribunal Conclusions

The Tribunal considers that the original incident was sufficiently serious for the Respondent to consider that there was a reasonable cause to believe that the continued provision of child minding might expose one or more of the children to the risk of harm. The witness statement by PC Cresswell 2661 dated December 6^th 2005 (Tribunal Bundle page 28) refers to the Appellant allegedly stating to PC Cresswell "I lost my temper, I'm sorry for what I've done."

34. Faced with an allegation that a child minder (the Appellant) had lost control of her temper and had assaulted her own daughter and that the police had become involved and had arrested the Appellant, it was appropriate and proportionate for the Respondents to want to investigate the matter further. However, no statutory suspension was in fact issued in December 2005 as the Respondent sought to rely on a voluntary suspension. The Respondent then sought unsuccessfully to gain the agreement of the Appellant to further voluntary extensions. The Respondent sent the Appellant incorrectly dated letters and notices and told the Appellant that she was subject to a suspension period when the voluntary period had clearly lapsed. This muddled approach to the decision making in this case does not reflect well on the Respondent .
35. The Tribunal has considered whether the lapse of time between the original incident taking place in December 2005 and the issuing of the Statutory Suspension on March 13^th 2006 meant that there was no longer a reasonable cause to believe that the continued provision of childminding might expose one or more children to the risk of harm. The Respondent received written confirmation of the Police decision not to take any further action in a letter dated February 22^nd 2006 . Until that decision was reached it was understandable that the Respondent considered that the nature of the allegation being investigated by the Police was sufficient for them to be concerned about the possible risk of harm to a child if the Appellant continued to provide child minding services. The Tribunal considers that the concern about the Appellant's alleged behaviour on December 5^th and 6^th 2005 did still warrant investigation by the Respondent after the Police dropped their investigation , as the lack of sufficient evidence to enable a criminal prosecution to proceed did not mean that the Respondent should automatically consider that the risk of harm to children was erased. The fact that the Police had been called to the Appellant's home and that she had been arrested by the Police for allegedly assaulting her own daughter were sufficient grounds for the Respondent to be concerned and to want to investigate the matter further. Therefore the time lapse between the December incident and the issuing of the statutory notice of suspension was not in the circumstances unreasonable.
36. The Appellant in her witness statement raised concerns about the failure of the Respondent to provide a "lawful reason" for their concerns about her suitability to continue as a childminder. (Tribunal Bundle Page 104) The Tribunal agrees that Ms Cubitt was incorrect in the options she presented to the Appellant ( See paragraphs 26 and 27 above).The Tribunal also agrees that the Appellant was entitled to feel aggrieved by the very brief reason given in the letter dated April 21^st 2006 from Lena Mead on behalf of the Respondent which states that the continuation of the suspension was " so that we can make further enquiries about your suitability". The paucity of detail in the Respondent's letter some four months after the initial incident which triggered the Respondent's concern causes the Tribunal real concern; the Appellant should have received the proper statement explaining why the Respondent had on going concerns, to enable the Appellant to respond and if possible address the issues.
37. In the Respondent's subsequent letter to the Appellant dated April 27^th 2006 the Respondent did set out in more detail why the Respondent was refusing to lift the suspension, in particular that the Respondent still wanted to discus the alleged assault " we do need to discuss the allegation with you and make an assessment of any potential risk to minded children" . The Tribunal considers that this was still a reasonable request not withstanding the time that had elapsed.
38. In the subsequent letter dated May 10^th 2006 the Respondent identified further allegations that had been made including an allegation by the Appellant's older daughter, JK, that the Appellant had in the past behaved violently towards JK and that she had smacked JK's own daughter, S. The Appellant's daughters, JJ and RJ have both provided witness statements (Tribunal Bundle Pages 243 -249 alleging that the Appellant has in past hit them and also alleging that the Appellant has an anger problem which she cannot control. The Respondent, in the letter dated May 10^th 2006 stated that they wanted to discuss all the allegations personally with the Appellant.
39. The Appellant in an email dated May 11^th 2006 (Tribunal Bundle Page 203) denied the allegations and suggested that there were reasons why JK would seek to make such false allegations but refused to discuss them with the Respondent.
40. The continued refusal by the Appellant to meet the Respondent to discuss the serious allegation that was originally made by the Appellant's own daughter and which have been reaffirmed by both of the Appellant's daughters in witness statements submitted to the Tribunal cannot be ignored. The Appellant's continued refusal to discuss the matter with the Respondent resulted in further investigations and correspondence with the Police and the Appellant's children, which ultimately serves to justify the decision by the Respondent to refuse the Appellant's request that the further suspension notice be lifted.
41. The continued refusal of the Appellant to address the concerns of the Respondent is regrettable and undoubtedly places the Respondent in an awkward position as it may mean that the Respondent will have to decide whether or not to cancel the registration notwithstanding that the Appellant has not provided any explanation, particularly in respect of the further allegations (apart from denying their veracity to the Respondent in an e-mail dated May 11^th to Vanessa Redmond)
42. This Tribunal would be concerned if there was a suggestion that there should be a further statutory suspension pending more investigations as there must come a point when the investigation process should end and a decision should be reached by the Respondent as to whether or not to apply for formal cancellation of the Appellant's registration.

Nevertheless based on all the information available the Tribunal confirms the Chief Inspector's decision to refuse to lift the extension to the Statutory Suspension for reasons stated above.

This is the unanimous decision of the Tribunal.

Dated 2nd day of June 2006

Miss H Clarke, Chairman

Mr D Griffiths

Mr A Wilson