England and Wales Care Standards Tribunal

Sunshine Day Nursery (Woolwich) Ltd v OFSTED [2006] EWCST 732(EY) (6 February 2007)

SUNSHINE DAY NURSERY (WOOLWICH) LTD

Appellant

-v-

OFSTED

Respondent

[2006] 732.EY

Before:

Mr Mark Rowland

Mrs Lydia Gladwin

Mrs Claire Trencher MBE

Mr Paul Greatrex of counsel, instructed by the Treasury Solicitor, represented the Respondent.

Mr Shawn Bulgen, a management consultant, represented the Appellant.

DECISION

1. This is an appeal against the decision of the Respondent dated 7 June 2006 to cancel the Appellant's registration in respect of the Sunshine Day Nursery at 33-35 Spray Street, London SE 18.
2. The Appellant, whose sole director is Mrs Najma Uddin, was registered on 26 January 2005 to provide full day care for 82 children under five at Sunshine Day Nursery, having applied for registration on 19 July 2004. Notice of intention to cancel the registration was given on 24 March 2006. It is unnecessary to deal in detail with the grounds upon which it was intended to cancel registration. Suffice it to say that the Respondent had received no fewer than 31 complaints from various sources since 15 November 2004, the first one of which showed that child care was being provided before registration. The Appellant does not challenge most of the allegations in the notice to propose cancellation and accepts that there were grounds for cancelling registration in March 2006. However, it argued in response to the notice of proposal to cancel registration and now argues before us that there have since been very substantial improvements and that the way the nursery is being run is such that registration should not be cancelled. The Respondent accepts that there have been improvements and accepts that, if we consider there to have been sufficient improvement, registration should not be cancelled but it argues that there has not in fact been sufficient improvement.
3. Because Mrs Uddin conceded at the directions hearing before the President of the Care Standards Tribunal that she accepted most of the allegations upon which the cancellation of registration was based, it was agreed that the focus of the evidence should be on events since then. This approach was wholly appropriate, because the Appellant has always relied substantially on a manager to run the nursery and a new manager, Ms Amy Harris, was appointed on 3 April 2006. It is, as we have said, common ground that there have been improvements since her appointment.
4. The President ordered sequential disclosure of evidence. That was plainly with a view to the Respondent indicating what matters since the cancellation of registration it relied on and the Appellant than setting out its case in the light of the Respondent's evidence. Unfortunately, the Appellant failed to understand what was required of it and merely provided the statements submitted to the "objections hearing" held before the registration was cancelled, instead of providing up-to-date statements that answered the Respondent's new allegations. Only on the first day of the hearing was a substantial bundle of new evidence submitted and even then the statements did not contain all the evidence the witnesses proposed to give. It is obvious that that was not done deliberately, because no possible advantage could accrue from not producing evidence in an organised way. This is the sort of problem that arises because Appellants all too often do not have legal representation. Representation is often needed, not because the law is complicated but because those unfamiliar with litigation do not know how properly to gather evidence and present it, particularly in cases like these where the Respondent's case relies not on a single event but on the cumulative effect of a considerable number of separate matters.
5. Indeed, far from there being an advantage in presenting the evidence at the last moment, there was a substantial disadvantage because it was necessary for the Respondent to be given time to consider the evidence and it became apparent that, in any event, more time would be needed for the hearing. It was impossible to complete the hearing in the two days for which it was originally listed and the hearing had to be adjourned for some considerable time.
6. The legal issue before us is whether the Appellant has ceased to be qualified for registration for providing day care at the nursery (see sections 79G(1)(b), 79L(1)(b) and 79M(1)(a) of the Children Act 1989) and that depends, inter alia, on whether every person looking after children at the nursery is suitable to look after children under the age of eight and whether the Appellant is complying with regulations governing the provision of day care (see section 79B(4)). Complying with regulations involves meeting the National Standards (see regulation 4(2)(b) of the Day Care and Child Minding (National Standards) (England) Regulations 2003 (S.I. 2003 No. 1996)).
7. Mrs Uddin gave evidence to us. She obviously had a vision for this nursery and has put a lot of money into the premises and, indeed, into the running of the nursery. This is a case where there has been no complaint during the period with which we are concerned about a lack of suitably qualified staff (save for the lack of a cleaner). However, she has no particular expertise in professional childcare, being primarily a businesswoman, although she has previously owned a nursery and is herself a parent. It is plain that she could not run a nursery without having a competent manager in place. On the other hand, she is educated and intelligent, she seeks and listens to good advice and, at least in the period with which we are primarily concerned, she has not interfered with the day-to-day running of the nursery. This case turns much more on the capacity of her staff to run the nursery than on her own capabilities as director of the Appellant company.
8. Since the Appellant's registration was cancelled in June 2006, the nursery has been visited by inspectors employed by the Respondent on a considerable number of occasions and it is primarily on the basis of what was seen on those visits that the Respondent resist this appeal. In those circumstances, it is convenient to consider the issues arising from each of the visits in turn and then to consider the implication of the most serious of them.

14 June 2006

9. On 14 June 2006, two inspectors, Mrs Lara Hickson and Mrs Christine Hodge, made an unannounced visit, partly to monitor the situation in the nursery following the cancellation of registration (which would not take effect until any appeal had been heard) and partly to discuss a complaint received the previous day. The complaint related to a child aged 9 months who had been attending the nursery between February and May 2006. According to the Respondent's note, it was alleged that the child had contracted a virus on four occasions, being admitted to hospital on each occasion and that "doctors fell that she had probably contracted the bug at Nursery either through food or from another child". The complainant alleged that the staff had bad hygiene knowledge and did not wash their hands and that the same bed sheets were used and not changed when different children slept in them. The inspectors spoke to Ms Harris about the complaint and appear to have been satisfied that new procedures had already been introduced and that adequate bed linen had been purchased and that each child had its own. The notebook records –

"Hygiene and cleanliness of the nursery appears to have greatly improved since the last inspection. No evidence found that National Standard 7 has been breached."

10. The inspectors also discussed the outcome of an earlier complaint arising out of a Muslim child being given pork. The complainant had said that the fact that the child should not be given pork had been detailed on the child's "start sheet" and that Mrs Uddin had been aware of it. Ms Harris told the inspectors that the records she had seen had not referred to pork but only to the child's allergy to bananas and that Mrs Uddin could not remember being told the child could not eat pork. Ms Harris also said that new systems and forms had been put in place to ensure that appropriate information was recorded in the future. A formal recommendation was made that complaints relating to the National Standards should be properly recorded in accordance with recently revised standards.
11. There was further discussion about various other matters. Perhaps the most important arose out of the inspectors' observation that the 2-3 year-old children in "the Lilac Room" seemed rather subdued and that the room itself seemed lifeless and appeared to have no atmosphere. Ms Harris told the inspectors she would spend some time in the room and look at how the staff were working together and with the children. Ms Harris told us that she had understood that the children had been calm and subdued because it was their morning snack time. It seems unlikely that the inspectors had not taken that into account.
12. The only other recommendation that came from the visit was that the nursery should obtain written consent from parents for seeking emergency medical advice or treatment. This had arisen out of a discussion about a record that a parent had thought that the nursery would not call emergency medical advice. The inspectors appear to have been satisfied that in fact several members of staff were trained in first aid and would call an ambulance if necessary but asked whether parents were asked to provide written consent to emergency medical advice or treatment. Ms Harris had not been aware that was necessary but said she would draw up forms and ask parents to sign. It is true that obtaining such written permission appears as paragraph 7.10 of the "supporting criteria" to National Standard 7 but we have no doubt that the children would have been given whatever help was required notwithstanding the lack of formal permission and we do not believe parents would have objected. We do not regard the lack of formal permission as an issue carrying any significant weight as regards cancellation.

3 July 2006

13. On 3 July 2006, Mrs Hodge made a monitoring visit. Nothing of concern was noted. Mrs Hodge did, however, speak with Ms Harris about the position in the Lilac Room and recorded that Ms Harris said that she thought that the problems in the room had been due to one particular member of staff who had since been made redundant.

25 July 2006

14. On 25 July 2006, Mrs Hickson and Mrs Hodge made another unannounced monitoring visit. This led to three "actions" being raised. The first because an IT consultant working on the premises had not been checked by the Criminal Records Bureau (CRB), the second because a bag of soiled nappies had been left on a bathroom floor and the third because children had easy access to hazardous cleaning materials.
15. There was some discussion at the time of the inspection and at the hearing before us as to whether the IT consultant really needed a CRB check. We agree with the inspectors that he did. Although he worked on a different floor from the one where the children were and would generally have had to go out of his way if he was to have had contact with any of the children, he had to use some of the same common parts of the building and he used the same staff toilet as the other staff. From those parts of the building, he had access to the parts of the building where the children were. We do not consider that he could really be said to be working on different premises and we think that Ms Harris' suggestion to the contrary does not reflect well on her, although we stress that she was content to do what the inspectors required. There is, of course, absolutely no evidence that the IT consultant was a paedophile and no such suggestion has been made, but the point of insisting on proper checks is to provide as much protection against the risk of a paedophile coming into contact with children as possible. If he had been a paedophile, he would have been in a position where it was possible for him to have contact with the children. Mrs Uddin's suggestion that he could not possibly have been a paedophile because he was religious and she and her husband knew him well betrays a lack of understanding of child protection issues. Some apparently very respectable people turn out to be paedophiles.
16. The fact that there was a bag of soiled nappies on the bathroom floor is not a matter that we regard as being significant as regards cancellation. The nappies were in a sealed bag and the incident does not suggest a chronic disregard of hygiene procedures. Save that the same sort of incident appears to have occurred during the inspection in October, the inspectors had been very positive in their observations as regards nappy changing, the disposal of nappies and staff personal hygiene. It appears to have been the case that nappies were left in a bag in the bathroom like that from time to time when children were being returned to their rooms. Whether the inspectors saw the bag in those circumstances or whether this was an isolated occasion when the bag was forgotten about, we cannot be sure.
17. The cleaning materials were in an unsecured utility room or cleaning cupboard off the staff toilet, the door of which was open. It was therefore possible for children to have access to them. We accept that it was unlikely that they would get into the utility room or cupboard, because they would generally be supervised when in that general area, but the risk was there and could be avoided. Again, Ms Harris' suggestion that this was not really necessary because the children were supervised misses the point that children can escape supervision and that, although the risk was small, it could easily and cheaply be eliminated.
18. We note that, on this occasion, nothing untoward was recorded in respect of the Lilac room.
19. There was some discussion about a complaint that a child had been sent home in wet pull-ups and various other matters. Ms Harris responded to the complaint by accepting that the nursery had been at fault as regards the wet pull-ups but not accepting the other matters. The response seems to us have been appropriate and the complaint does not suggest any significant management failing.

8 August 2006

20. The same two inspectors visited again on 8 August 2006, while Ms Harris was on leave. They considered that the standard of cleanliness had deteriorated since the loss of the cleaner the previous month (and that cleaner had been employed only since June). Ms Harris says that the fact that a room is marked does not mean that it is not hygienically clean and points out that one room had to be used for physical play because use of the roof terrace had not been approved (although the children were also taken out to a park and walked to the library). The inspectors found that the utility room or cleaning cupboard was still unsecured. They were told that a lock had been obtained but not yet fitted and certainly a catch that children could not reach had been fitted by the subsequent visit. Socket covers were missing from two sockets. Ms Harris says that children were not at risk because one socket was in an unused room and the children from the other room were out. However, it seems to us to be good practice always to cover sockets as soon as a plug is removed in order to avoid risks. Indeed, Ms Harris appears to accept that because she says that staff are aware of the need to use socket covers. Two "actions" were set, requiring the nursery to be properly cleaned and maintained and again requiring the utility room or cleaning cupboard to be secured. These are matters to which we will return.

11 September 2006

21. Mrs Hickson and Mrs Hodge visited together yet again on 11 September 2006. They noted that the utility room or cleaning cupboard had now been secured and that the sockets were all covered. Ms Harris told them that a new cleaner had been employed for three hours a night. The IT consultant who had been working at the nursery was being replaced by another in respect of whom CRB checks were being arranged. Less positively, several light bulbs had gone and not been replaced and two twins had been recorded as a single entry in the attendance register. Ms Harris assured the inspectors that the light bulbs would be replaced. There was some discussion about the need to register the twins separately. The inspectors recognised that staff in the room would be aware that they should be counted as two children but were concerned that a new member of staff might fail to notice a child was missing in an emergency. The points that Ms Harris made to us were that it was fairly obvious that the entry relating to the twins referred to two children and, more importantly, the total number of children present was recorded and that figure was correct. We agree that the risk was slight but the inspectors were right to suggest that the recording should have been clearer. On the other hand, that is now done.
22. The matter that caused most concern was that, when the inspectors went into the Lilac Room, a 22-month old child appeared to be very distressed and was walking round the room sobbing while one member of staff was singing with the rest of the children and another member of staff, whose first day it was, was sitting beside her. The child came up to the inspectors and put her arms up and was given a cuddle by Mrs Hickson who then suggested that one of the members of staff should give her a cuddle. The child had relaxed following the cuddle and a few words of comfort but the inspectors noted that "neither nursery worker in the room appeared to be able to offer this". When they spoke to Ms Harris about this and reminded her that it had been the Lilac Room that had caused concern before, they recorded that Ms Harris had tried to discuss the child's settling in with the mother but it had proved difficult because the mother spoke no English. The inspectors were also concerned because the Lilac Room was intended for children aged between 2 and 3 and the distressed child had been below the age of 2. They noted that another member of staff from the Lilac room, who was pregnant and had been due to start maternity leave at the end of the day, had had to be admitted to hospital because her waters had broken that morning. There had been some other turnover of staff and the inspectors thought that this was leading to "inconsistency within the nursery which is affecting children's individual needs and care". According to the inspectors, Ms Harris herself had accepted as much in discussion with them. The inspectors do not appear to have mentioned their concern that the child was too young to be in the Lilac Room. We will consider the issues raised by the Lilac Room in more detail below.
23. The only "action" set was as regards the recording of the twins.

16 October 2006

24. Mrs Hickson and Mrs Hodge again visited the nursery on 16 October 2006. The standard of cleanliness had improved a bit but the inspectors still thought the nursery grubby in places. The twins were being recorded separately. The light bulbs that had previously gone had been replaced but two more had gone and had not been replaced. "Several" socket covers were missing in one room. Ms Harris disputes the use of the word "several". A changing mat was split.
25. The child who had previously been distressed in the Lilac Room appeared to the inspectors, from their observations and discussions with staff, to have settled in well. Overall, the inspectors were of the view that the nursery appeared to be operating satisfactorily.

23 and 25 October 2006

26. On 23 and 25 October, Mrs Hodge and Mrs Teresa Coleman conducted a full inspection. The use of this combination of inspectors was a sensible compromise between Ofsted's desire for continuity and the Appellant's expressed wish for the nursery to be viewed by a fresh pair of eyes. They judged the nursery to be "inadequate 2", meaning both that the standard was inadequate and that it was believed that the provider could not make the necessary improvements. This appears to be what has led the Respondent to continue to oppose this appeal. The inspectors used Ofsted's five conventional headings.

Helping children to be healthy

27. The inspectors considered the premises to be "generally clean" but nonetheless found areas around the dumb waiter and the sink area on the first floor, used to store cutlery, bowls and plastic bibs, to be dirty and also the carpets in some rooms, including the babies room, were insufficiently clean. Ms Harris disputes this, saying that she believes that the area around the dumb waiter had been clean in the mornings. She also says that the area is now cleaned three times daily. According to the inspectors, children's noses were not being wiped immediately, but Ms Harris disputes that and would expect her staff to wipe noses appropriately. A soap dispenser had come off a wall and the inspectors considered that that did not promote independence because the children could not use it themselves. Ms Harris said it was still being used but she concedes that some children required help. It was said that children's face wipes were being used to clear the tables. Ms Harris says that the wipes are general cleansing wipes, although dermatologically tested so that they can be used on skin. They are used for wiping tables before disinfecting the table with a antibacterial spray and cleaning it with a cloth. Although the nappy changing practices were regarded as generally satisfactory, a nappy sack containing a soiled nappy was again on a bathroom floor and there were split changing mats in both changing rooms. The tumble dryer was broken and washing was being dried in the baby sleep room. Although each child had his or her own bed linen, the inspectors observed them swapping places which they regarded as giving rise to a risk of cross-infection. Ms Harris replies by saying that children with infections are not allowed to attend the nursery. That presumably depends on whether the infection is known about. First aid boxes had not been replenished and Ms Harris accepts that that was so. The inspectors were also concerned about the lack of opportunity for vigorous play. In part that was due to the premises, which had plainly been accepted by Ofsted as suitable even though Ofsted had not allowed the roof terrace to be used and so only one room in the building was available for vigorous play. The inspectors also commented that menus were sometimes changed because of inadequate supplies of fresh vegetables. Ms Harris replies that the menus only need changing when her supplier is delayed and they can be changed precisely because there are always alternative supplies available.

Protecting children from harm or neglect and helping them to stay safe

28. The handle of a door used as a fire escape route had broken, making the door unusable. Ms Harris replies by pointing out that there was another door three metres away. The inspectors smelt cigarette smoke in the lift, but Ms Harris says that could only have been from parents. The inspectors were also concerned about the way that some staff recorded accidents and they found that the child protection policy did not include the action to be taken if an allegation was made against a member of staff. Ms Harris comments that the inspectors had been happy with the policy in July when they had commented upon it positively. The inspectors also regarded the baby room as being dark, particularly when light bulbs went.

Helping children achieve well and enjoy what they do

29. The inspectors found significant variations in the quality of children's care and management depending on which room they were in. In particular, they considered that staff in the Lilac Room had insufficient knowledge and experience so that some children were upset for long periods and others were badly behaved. "Staff are not affectionate and often only give children attention when they are upset by asking them 'what's the matter' or when they are misbehaving. Activities do not provide sufficient interest or challenge for the children, for example a small amount of dried up play dough and a few pieces of sponge construction shapes. As a result, many children are not meaningfully occupied for long periods of time and this has a detrimental effect on their behaviour". The inspectors were also critical of the activities for the younger children, although they were observed to "receive lots of adult attention and support". The inspectors were more positive about the activities in the pre-school room, although they considered that reading and writing skills were not being fully encouraged, which Ms Harris disputes.

Helping children make a positive contribution

30. Inspectors considered that staff did not know children's dates of birth or full names and did not understand why they needed that information. Ms Harris said that the staff had access to that information and she considered it acceptable for staff not to know the full details, provided they knew their ages and current state of development. They also considered that the nursery had very few play resources to help the children learn about diversity, disability or the wider world. In the Lilac Room, the lack of knowledge and experience in managing behaviour resulted, in the inspectors' view, in an inability to set clear boundaries, with children being allowed to walk around with cutlery at mealtimes and to disturb other children who were sleeping at sleep times. Behaviour management for both the younger children and the older ones was much better.

Organisation

31. The inspectors also judged the organisation of the nursery to be inadequate, principally because it appeared that Ms Harris was not in a position to renew or replace resources and equipment or to organise minor building repairs or maintenance. The resources were considered inadequate in some respects. The system of registration in the pre-school room was regarded as inadequate because surnames were missing, although Ms Harris say only two were missing and that surnames are not necessarily required by the National Standards.

28 November 2006

32. Mrs Hickson and Mrs Coleman made another unannounced monitoring visit on 28 November 2006. They were able to gain access to the nursery through the front door without being admitted by a member of staff, because the door appeared not to lock properly. Ms Harris says the door had warped but parents knew they should be careful about closing it and that this was an isolated incident of it not being locked.
33. Another two light bulbs had gone in the baby room. The member of staff thought that it was due to children jumping around in the room immediately above. That may be so because apparently light bulbs of that type are inclined to work loose rather easily. The tumble dryer was still out of action but the washing was now being dried in the utility room. Ms Harris apparently told the inspectors that she did not have authority to arrange for the tumble drier to be fixed and that, so far as she was aware, Mrs Uddin had not made any arrangement herself. A socket cover was missing in the Lilac room and the fire door was still broken.
34. The carpets appeared cleaner than at the time of the inspection and it was planned to have them cleaned every three months. However, the cleaner had been sacked after being caught stealing from another member of staff. The staff had been told that they should not use the staff room as it was unhygienic and that they would lose the use of it if they did not keep it clean. Ms Harris considered this irrelevant because the children did not have access to the room but it seems to us that the staff's apparent inability to keep their own room clean gives rise to concerns about their ability to keep the rest of the nursery clean and their general standards of hygiene. The inadequacies in the register in the pre-school room had not been dealt with and there appeared still to be shortages of resources.
35. The child who had previously been observed to be distressed in the Lilac Room was playing happily in the baby room. She was then collected by a member of staff from the Lilac Room and started crying almost as soon as she arrived. The two members of staff were getting ready for a snack and neither of them gave the child the comfort and reassurance the inspectors would have expected. This pattern continued during the visit, with the members of staff doing menial tasks and not interacting with the children. The inspectors spoke to Ms Harris about this, and she appeared to agree and said that she had spoken to the staff and had considered bringing staff down from the pre-school room but had not wanted to disrupt that room. She and a deputy manager had been spending some time working alongside the staff.
36. First aid boxes had not been replenished. The medication cabinet included a bottle of Sudafed. The inspectors were concerned about this but it does not seem to have been taken up with Ms Harris at the time.

Parents' views

37. There are obviously differing views among parents. Some have complained about the nursery but we have before us some supportive statements and one parent came and gave oral evidence to us. We have no doubt that the nursery fulfils a need for nursery care in Woolwich. The question is whether it is of a sufficient standard.

Discussion

38. Ms Harris in her evidence and Mr Bulgen in his submissions both argued that Ofsted had set unnecessary "actions" and recommendations and had been unwilling to acknowledge the improvements that had been made. We do not agree but we think there is a more subtle point to be made. The case against the Appellant had obviously gained considerable momentum by June 2006. Although we accept Mr Greatrex's submission that events before then are not irrelevant in principle, it seems to us that they in fact have very little relevance in this particular case. That is because the key issue is not whether there have been breaches of regulations but whether such breaches are likely to recur. Cancellation of registration is not a punishment for past misdemeanours but is an action of last resort to enable children to be protected against future risks. The likelihood of there being problems in the future is, of course, usually judged by reference to past problems but where, as in this case, there has been a complete replacement of the management team in a nursery, the past provides little guidance. And what seems fairly clear in this case is that, because the registration had already been cancelled, the nursery was subjected to far greater monitoring between June and November 2006 than would have been the case had the management team been working in a newly registered nursery.
39. The significance of this is that it is not uncommon for minor points to be picked up during an inspection or visit and the more frequent the visits the more points will be picked up. It seems to us that some care must be taken to ensure that all these minor points do not assume a disproportionate significance because of their number. If a newly registered nursery has "actions" or recommendations made following an inspection, it does not necessarily follow that Ofsted considers it to be inadequate. The "actions" or recommendations will usually be followed up but that may only be in writing. In other words, a nursery may be asked to confirm that the necessary action has been taken. There is not necessarily a monitoring visit. If the answer is satisfactory, there will be no further visit until the usual interval has elapsed. The consequence is that the possibility of new points being noticed during the monitoring visit does not arise. Human institutions are seldom perfect and it seems likely to us that unannounced visits to many nurseries would throw up minor points justifying the raising of "actions" or the making of recommendations. It would not, however, follow that those nurseries would not have dealt with many of those points on their own initiative if Ofsted had not visited and raised the "actions" or recommendations. We agree with Mr Greatrex that the Respondent could not be expected to continue monitoring this nursery to the extent it has been but we treat his implied submission that none of the defects found would have been cured without monitoring with some care.
40. Moreover, the failure to apply good practice does not always give rise to a significant disadvantage or a serious risk to children. Cancellation must be proportionate. There is always a downside to cancellation. Children lose the good points of a nursery, the parents may be seriously inconvenienced and, in some cases, may have to leave employment and the staff lose their jobs. The best should not be allowed to become the enemy of the good. However, we remind ourselves that the National Standards represent minima.
41. It is plain that the nursery was shocked by the "inadequate 2" rating following the October inspection. Comments following the visits had been relatively positive. It is true that a number of "actions" and recommendations had been made but most of them were about fairly minor issues. It is noteworthy that the inspectors' concern on 11 September 2006 about the standard of care in the Lilac Room was the subject only of verbal feedback. The only written feedback after that visit was in connection with the way the twins were recorded in the attendance register. It seems to us to be a weakness of Ofsted's procedures that written feedback from visits, as opposed to inspections, too often concentrates on minor, but easily measurable, matters rather than more serious and less easily measurable concerns. However, it is right to say that monitoring visits are not intended to be as thorough as inspections. Mr Bulgen sought to persuade us that the rating of "inadequate 2" was contrary to Ofsted's policies and was inconsistent with the rating of other nurseries with problems, given the faults recorded in reports in respect of the other nurseries. We are less concerned with the label than the true extent of the disadvantage, if any, faced by the children. We do, however, note that the nursery did not react to the report by writing a reasoned response and asking the inspectors to modify or explain their judgment. This is a pity because in a number of places observations made in the report are not adequately particularised and often there is no indication that the staff were asked to comment on the observations before they were published. It might be helpful in a case like this if there were more written communications between the parties in both directions.
42. By far the most serious issue in our view is the level of care given in the Lilac Room. Repeatedly, inspectors have commented on this and it is significant that they have contrasted the care in this room with the care in the others. We accept that inspectors may misread a single incident but here there was more than one incident. Ms Harris has herself recognised that there have been difficulties but has not adequately reorganised staff to deal with them. We appreciate a desire not to disrupt rooms that are functioning particularly well but the needs of children in the Lilac Room had to be considered too. This is also plainly a broader issue than the needs of the child who was observed in a distressed state on 11 September and 28 November. We see no reason not to accept the inspectors' judgment that the interaction with the children was seriously inadequate.
43. We understand the inspectors' concern that the child observed on 11 September had been placed in that room when she was under 2 years old. On the other hand, having heard both Ms Harris and Ms Ward, we accept that that was a rational decision that they were entitled to take. The child concerned had never been away from home before and was not used to interacting with other children and the view taken was that, as she was only just under the age of 2, it would be better for her to start with the 2-year olds rather than start with younger children and then be moved away from the children and staff she had got to know. However, that, of course, does not take account of the fact that the staff in the Lilac Room appear to have been less able to meet the needs of all children, quite apart from the more challenging ones, than the staff of other rooms.
44. Mr Bulgen took an ill-considered point and argued that the distress of the child on 11 September was the result of the staff behaving properly towards her, ignoring her crying as a way of inducing her to join in with the others. Ms Harris and Ms Ward did not adopt that approach in their evidence. They fairly made the point that sometimes a child will not be consoled and that a person coming into a situation may misunderstand it but did not deny the accuracy of the clear impression of the inspectors on 11 September that appropriate action was not being taken towards a very distressed little girl, on her fifth day at nursery among older children. On 28 November, the inspectors were with the child when she went into the Lilac Room. Ms Harris and Ms Ward seemed to us to have a good understanding of the child's needs. However, those needs do not appear to have been met consistently. What is important, is that they do now appear to be being addressed, particularly by Ms Ward in her role as Deputy Manager.
45. One difficulty appears to have been with accessing training. The nursery was originally refused admission to the Nursery Education Grant scheme because it had a high number of non-permanent staff. We can understand that. What we have more difficulty in understanding is why the fact that Ofsted has found the nursery to be inadequate means that it is not entitled to apply for reassessment, when the effect is that it has to pay for "Early Years" courses rather than having them free. That seems designed to prevent a poor nursery from improving itself. However, other courses may have been relevant and no courses at all were taken up during the period with which we are concerned. Ms Ward tried but was unable to make effective contact with the Groupcare Adviser of Early Years and Childcare. We think that Ms Harris should have pursued this issue herself and that she should have done so in writing.
46. We are also concerned about the state of cleanliness in the building. It is difficult to judge this without having been there and it is obvious that nurseries are not going to be permanently in pristine condition. On the other hand, it is also obvious that inspectors have experience of visiting many nurseries and we respect their judgment that the standard in this case was too often inadequate. We accept that Ms Harris then arranged for more frequent thorough cleaning of the carpets and also more frequent cleaning of the area around the dumb waiter, but the dirt should not have been allowed to accumulate in the first place.
47. The failure to have the IT consultant checked by CRB and the failure to ensure the utility room or store cupboard was secured raise a concern about the Appellant's ability to assess risks, particularly as it was argued before us that there were no risks. We accept that the risks were relatively low and that the Appellant was happy to do what the inspectors required. The concern arises because new risks may not be recognised. On the other hand, Ms Harris and her deputy managers plainly know how to manage the most important risks. It is particularly striking that the full inspection in October threw up no concerns about recruitment practices, despite the high staff turnover mentioned, and neither did it reveal major flaws in record keeping. A very respectable proportion of the staff hold qualifications and the management appear to have a reasonable understanding of the National Standards and generally to apply them appropriately. The consequence is that we consider that the risks they might overlook are relatively minor in terms of the likelihood of harm occurring, although, if they did occur, the harm might be serious.
48. One new area of risk that emerged at the hearing concerns medication. The inspectors inaccurately recorded in their note of the visit of 28 November that a bottle of Sudafed was "still" in the medication cupboard, wrongly implying that it had been there at the time of the October inspection, in the report of which it is not mentioned. In the first part of the hearing before us, Ms Harris said that the bottle was sealed and had been brought in that day for a child whose initials had been written on the bottom of the bottle. We asked her to produce the relevant medication record. That revealed that the medication had been given to the child on two days, the first of which was the day before the inspectors' visit. We accept that the reference to the bottle being sealed was a mistake rather than a deliberate attempt to deceive us, because when Ms Harris was investigating this the point that was important to her was that it was in current use and was not an old bottle left in the cupboard. What is rather more serious is that the medication had not been prescribed for the child by a doctor. The nursery's medication policy says that medication will not be given unless it has been prescribed by a doctor. Ms Harris and Ms Ward, however, took the view that they should not refuse to give over-the-counter medication that parents wanted to be given to their children. We understand the desire to be helpful and that this must be seen in the context that ill children are not admitted to the nursery but it raises the question whether the medication is safe. The response was that parents would not wish to harm their children, but that raises the question whether they might wish the nursery to give unsuitable medicine through ignorance. We were told that staff would use their judgment. It was somewhat worrying that Ms Harris would contemplate giving asprin to a child in the nursery if the parent asked her to do so. Again, we consider that the risk of harm occurring to a child through inappropriate medication being given is very low, but the harm might be significant if it did occur. We also observe that practice and policies should be consistent.
49. What is perhaps more worrying is that risks that have been recognised are not always eliminated. We accept that plug sockets can be accidentally left uncovered from time to time but in this case it happened frequently. Ms Harris has instituted daily checks but there appears to be no culture among the staff of noticing a missing socket cover and doing something about it. The same goes for replacing failed light bulbs. It also took some while for the utility room or cleaning cupboard to be secured. There were also a number of items mentioned in a letter following the inspection which Ms Harris promised to deal with by the week commencing 13 November. It transpired at the visit on 28 November that, in fact, not all those issues had been dealt with. Ms Harris told us that she had intended to promise that they would be done by mid-December and that she had written the wrong date because she had been looking at a rolling monthly planner. We are not convinced, not least because intending to have the work done by mid-November was a reasonable target.
50. Finally, of the matters that concern us, there is the matter of resources. We were assured at the hearing that resources were available and that, although Ms Harris has a limited ability to buy items without Mrs Uddin's approval, the approval is forthcoming when required. We think the inspectors may have misinterpreted the information given at the time of the inspection. By and large, we are not persuaded that resources have been inadequate. However, the number of children in the nursery has been low, possibly due both to the very poor standards before Ms Harris took over and also because of the threat of closure. We suspect there has been some reluctance to spend during that time. That pressure would be removed if the appeal is allowed.
51. The other matters we have recorded do not seem to us to be either individually or collectively issues that add substantially to the Respondent's case. They are all relatively minor or have been satisfactorily resolved and they do not warrant cancellation.
52. The matters that have concerned us give rise to the question of what would happen if we allow this appeal. Mr Greatrex rightly says that Ofsted cannot be expected to continue giving this nursery the degree of attention it has received, when most nurseries are inspected only once every three years. However, it does not follow that we should allow this appeal only if we are satisfied that it need not be visited for three years. It would ultimately be up to Ofsted to decide how often to monitor but we would not allow the appeal unless satisfied that the nursery could safely be left in peace for at least six months or so and that there was a realistic chance that the result of a monitoring visit or inspection then would be such that Ofsted would feel that it was not necessary to keep monitoring the nursery at such short intervals.
53. This is very much a borderline case and our unwillingness to make a decision at the end of the first part of the hearing was because we had not then heard sufficient evidence from the Appellant's witnesses to enable us to form a judgment. On balance, having heard Ms Harris and Ms Ward give evidence, we are minded to allow the appeal. We do so with some hesitation, but it seems to us that they are capable of managing this nursery satisfactorily. They and their colleagues have made huge strides since April 2006 and should be allowed to continue to do so. They do recognise the problems there have been in the Lilac Room and have arranged for more work to be done there. We think they need some space and that Ofsted should recognise that, if they stand back for a while, the risk of harm befalling the children is very slight. The balance of advantage for the children is, in our view, in favour of keeping the nursery open.
54. In reaching this judgment, we have not thought it right to ignore the social need for nurseries in the Woolwich. Mrs Uddin had opened the nursery in Woolwich because her research had shown a comparative lack of nursery places in the London Borough of Greenwich and particularly in the area of Woolwich, Charlton and Plumstead. Mr Greatrex submitted that that was irrelevant. We agree with him that children in deprived areas should not receive substandard care but our decision is made in the expectation that the children in this nursery will receive a proper standard of care. The issue in this case is about the risk of that not happening and we are entitled to put in the scales our finding that there will be an unmet need if the nursery closes. We also have regard to our view that much of such risk of National Standards not being met as there is involves a very low risk to the welfare of the children. Some breaches of standards are much less important than others. We consider that the management team is capable of avoiding the more serious risks, such as a risk of staff continuing not properly to interact with children or the risk of poor hygiene, and will do so, or will continue to do so, if given the chance.
55. However, the Appellant needs to take firm action in respect of the issues that we have identified as real concerns for us. In particular, the nursery needs to access training for the staff, including the management team for whom we have identified child protection and risk assessment as issues. Ms Harris should, as a matter of some urgency, contact the Groupcare Adviser of Early Years and Childcare with a view to arranging staff training. We observe that it is likely that one consequence of the nursery being in a relatively deprived part of London is that it is difficult to recruit and retain staff and improving their training opportunities would be likely to assist. Moreover, the nursery needs to work towards obtaining the Nursery Education Grant, because without it they will continue to find it difficult to attract older children. Our decision should also allow the finances of the nursery to be reviewed. It is vital that it maintains an adequate stock of resources and that minor repairs are done quickly.
56. The Appellant must expect Ofsted to keep a close eye on the nursery – even if not such a close eye as it has during the last year – until it is satisfied that it will maintain proper standards. It must therefore make every effort to maintain and improve standards.
57. We appreciate that Ofsted's experienced inspectors have taken a different view from us. This is, as we have said, a borderline case. The original decision to cancel registration was, in our view, entirely justified and despite the criticisms we have made, we consider that Ofsted have acted reasonably in opposing this appeal. We hope that Ofsted will find the nursery to be at least satisfactory when it is next inspected.
58. We accept that there is the possibility that Ofsted will consider the nursery again to be inadequate and that if that happens there may be another drawn-out cancellation process. We cannot avoid this. It is unfortunate that the legislation does not provide that, for cases where there has previously been a decision to cancel registration, there should be a process for the cancellation of registration that is quicker than the standard one but not as sudden as emergency cancellation.
59. We unanimously allow this appeal.

Mark Rowland Chairman

Lydia Gladwin

Claire Trencher

Signed by the chairman on this 6th day of February 2007.