England and Wales Care Standards Tribunal

John Thorley Victoria Kathleen Thorley

Appellants

-v-
Her Majesty's Chief Inspector of Schools in England (OFSTED Early Years Directorate)

Respondents

[2006] 0834.EY [2006] 0835.EY

 

Before: Mrs Meleri Tudur Mrs Bridget Graham Mr Ronald Radley
DECISION

Heard at the Stoke on Trent Combined Court Centre on the 23^rd – 30^th July 2007.

1. This is an appeal, brought by Mr John Thorley and Mrs Victoria Kathleen Thorley ("the Appellants") under section 79M of the Children Act 1989 against a notice of decision to cancel registration, dated the 20 October 2006, sent to each of the Appellants by the Respondent, Her Majesty's Chief Inspector of Schools in England (Ofsted Early Years Directorate) ("Ofsted"), confirming a decision that each of the Appellants was no longer qualified to be registered as a childminder because they had failed to demonstrate that they could comply with the requirements of Part XA of the Children Act 1989, the Regulations made under the Act, including the Day Care and Child Minding (National Standards) (England) Regulations 2003.

THE LAW

2. Pursuant to section 79A(2) of the Children Act 1989 ("the Act"), a childminder is a person who looks after one or more children under the age of eight on domestic premises for reward. Section 79B(3) provides that a person is qualified for registration for childminding if:

(1) he or she is suitable to look after children under the age of eight;

(2) every other person looking after children on any premises on which the person is or is likely to be childminding is suitable to look after children under the age of eight;

(3) every person living or employed on the premises in question is suitable to be in regular contact with children under the age of eight;

(4) the premises in question are suitable to be used for looking after children under the age of eight, having regard to their condition and the condition and appropriateness of any equipment on the premises and to any other factor connected with the situation construction or size of the premises; and

(5) he or she is complying with the Day Care and Child Minding (National Standards) (England) Regulations 2003 ("the Regulations"); and

(6) he or she is complying with any conditions imposed by Ofsted.

3. Regulation 4(2) of the Regulations provide that a registered person who acts as a childminder shall comply with the requirements of the Regulations, shall meet the requirements of the national standards and shall have regard to the relevant supporting criteria set out in the national standards document, namely the "National Standards for Under 8s: Day Care and Childminding" ("National Standards").
4. Sections 79D to 79F require a childminder to register with Ofsted and make provision for granting such registration, including the imposition and variation of conditions on a registration.
5. Section 79G provides that Ofsted may cancel a registration of a person registered for childminding if it is of the opinion that the person has ceased or will cease to be qualified for registration.
6. Section 79L makes provision for the procedure to be followed before a registration may be cancelled, including the right to object and for an objection hearing to be arranged and 79M provides a right of appeal to the Care Standards Tribunal ("the Tribunal") against a cancellation of registration.
7. On an appeal, the burden of proving on a balance of probability that the Appellant has ceased or will cease to be qualified for registration lies on Ofsted. Where the Tribunal is satisfied that the Appellant has ceased to be qualified for registration, it has a discretion as to the decision that it reaches on the appeal. The Tribunal may confirm the cancellation or direct that it shall not have effect and it may impose, vary or cancel any condition on the registration as it may see fit.

Background

8. The Appellants are husband and wife and were, on the 6 January 1994, jointly registered by Staffordshire County Council as childminders pursuant to Section 79 of the Children Act 1989. The Appellants together minded children at premises known as "The Manor Nursery" ("The Manor") at Blythe Bridge in Staffordshire. Prior to the original registration, both Mr and Mrs Thorley attended a pre-registration course and obtained certificates of attendance on a First Aid course.
9. Before becoming a childminder, Mr Thorley had, until its sale in 1994, run his own business. It had been the intention of the Appellants to register The Manor as a day nursery but they had been unable to do so because of difficulties relating to the toilet facilities and the minimum qualification for staff requirements. On the advice of the Early Years Adviser from Staffordshire County Council, they applied instead to register as childminders.
10. Pursuant to the Care Standards Act 2000 and Part XA of the Children Act 1989, regulation and inspection of child care facilities transferred to Ofsted on the 1 September 2001.
11. On transfer to Ofsted, Mr and Mrs Thorley elected to be separately registered as child minders, each in their own right.
12. The Manor was the subject of a Transitional Inspection on the 26 April 2002. As a result of the inspection, several concerns were raised but Ofsted confirmed by letter dated 3 July 2002 that they did not propose to take any further action in relation to those issues but recorded that the Appellants should adhere to the conditions of their registration at all times, and that due to the changes in the legislation, that they should now keep a record of any medication administered to the children in their care.
13. A further inspection was undertaken on the 4 December 2003, following which new certificates of registration were issued to Mr and Mrs Thorley under cover of letters dated 7 April 2004 and 23 March 2004, respectively.
14. The conditions identified on the new certificates of registration, issued on the 7 April 2004, were identical for both Appellants and specified that the childminder must display the registration certificate; must not provide overnight care; can work with an assistant, who may, at times agreed and when confirmed in writing by parents, be left in sole charge of the children; may care for no more than six children under eight years, of those, not more than three may be under five years and of those, not more than one may be under one year at any one time; when an assistant is present, may care for no more than six children under eight years, of those, not more than two may be under one year at any one time; when working with another childminder at the premises, does not care for more than six children under eight years, of those, not more than two may be under one year at any one time.
15. On the 24 February 2004, an investigation visit was undertaken by Ofsted inspectors in response to a complaint made by a parent against the Appellants. As a result of the investigation, a Notice of Failure to Comply with the Regulations was issued dated 15 April 2004. The Notice identified the breaches and required that all the conditions of registration were complied with and that the registered numbers of children cared for is not exceeded at any time.
16. The report following the investigation visit also detailed other breaches of the National Standards, which were not subject to Notices of Failure: they were, however, the subject of action notices.
17. On the 28 April 2004, the Appellants confirmed in writing that they would undertake all the actions identified in the Notice.
18. On the 30 November 2004, a further inspection was undertaken by Ofsted inspectors, namely Mrs Lorraine Lawton, Team Manager and Mrs Jacqueline Gerrard. On arrival, the inspectors found that two children present when they arrived at the setting, had not been entered in the register as present on that day. By letter dated 2 December 2004, Mr and Mrs Thorley wrote to Ofsted to explain that the children had been entered by an assistant on a fresh sheet and placed in a part of the file not seen by the inspectors. They also submitted applications for the vetting as assistants, of both Mr David Emery and his wife, Mrs Dorothy Emery, who were helping as emergency cover when the usual assistants were not available.
19. As a result of the visit, Ofsted decided to change the Appellants' conditions of registration. By letters dated the 23 December 2004, they notified both Mr and Mrs Thorley that it was their intention to limit the number and ages of registered children in their care, to no more than three children from two to five years and when working with another childminder at the premises, not to care for more than six children under five years, of those, not more than three may be aged under two years and of those, not more than one may be under one year at any one time. It was also proposed to remove the condition allowing the Appellants to work with an assistant.
20. By a separate letter dated 23 December 2004, both Mr and Mrs Thorley were informed of actions required following a visit by the inspector, Mrs Lorraine Lawton, on the 9 December 2004.
21. By letters dated 14 January 2005, the Appellants confirmed that they would comply with the request and indicated their intention to object to the change of conditions on the registration.
22. On the 7 February 2005, a further inspection was undertaken by Mrs L Lawton and Mrs V Thomas. On entering the premises, they found Mrs Thorley in the kitchen with eight children, of those, five were aged under two years, one aged two and two aged three. A further two children were found unsupervised in the small playroom. This made a total of ten children under five with no assistants present. The Appellants were cautioned in respect of the offence of exceeding the number of children cared for when assistants were not present.
23. During a further visit on the 24 February 2005, the Appellants were unable to produce records requested by the inspector and in addition, the registers, which were produced, were not accurate.
24. Following the several visits in November, December and February, a letter was sent to Mr Thorley dated 18 February 2005, identifying "…a number of serious concerns" arising from the visits.
25. The letter contained further observations relating to access to the premises. Because of the difficulties experienced by the inspectors in gaining access, it had been concluded by the respondents that Mr Thorley was persistently and wilfully obstructing authorised inspectors in their duties, a criminal offence pursuant to Section 79U of the Children Act 1989.
26. The letter concluded by stating that the Respondents continued to have serious concerns about the poor standard of care provided by Mr Thorley as a registered childminder. It stated that he consistently failed to meet a number of National Standards and was consistently failing to meet the requirements of a number of the Regulations.
27. Mr and Mrs Thorley were prosecuted on three counts in relation to minding more children than was allowed under the conditions of their registration. They were convicted on all three counts in April 2006, changing their plea to guilty on the advice of their legal representative and receiving a fine of £750 on each count.
28. On the 14 December 2005, Mrs Lawton and Valerie Thomas carried out a complaint investigation visit to The Manor.
29. In a letter dated 3 January 2006, the concerns raised by the inspectors following the visit were identified and breaches alleged of the Regulations. Once again, the letter concluded with an expression of concern about the quality of care offered and confirmed Mrs Lawton's suggestion during the inspection that the Appellants may wish to engage the services, advice and support of the Staffordshire Social Services Early Years Development Team, who would be able to advise them in relation to meeting the National Standards.
30. On the 10 January 2006, Mr Thorley responded to the letter in writing, stating that he had only just been notified of the complaint made against him in February 2004 by the parents of a child who had been in their care at The Manor until December 2003, who had complained to Ofsted, but not to the Appellants or any of their staff.
31. By letter dated 14 April 2006, Mr and Mrs Emery wrote to the Appellants informing them that they felt obliged to withdraw their services as childcare assistants because of the attitude of the Ofsted inspectors.
32. On the 20 June and 3 July 2006, the Appellants received a visit from Mrs J Lyons the Staffordshire Early Years Advisor. Her report recorded the issues discussed with Mr and Mrs Thorley and Mr Emery, those that they had implemented since the previous visit and her recommendations for meeting the National Standards at the next inspection.
33. On the 11 July 2006, a full inspection of The Manor was undertaken by Mrs V Thomas and Mrs J Mason.
34. On the 26 July 2006, the Appellants filed an official complaint against Mrs Lawton, Mrs Thomas and Mrs Mason, all of whom were inspectors who had visited the property. It was alleged that the inspectors were conducting a vendetta against the Appellants. It was alleged that Mrs Lawton had behaved in a threatening manner, indicating that it was her intention to close The Manor as a childminding setting and cancel the Appellants' registration.
35. The complaint was investigated by Mrs Elaine White, Ofsted Area Manager, who arranged to visit the Appellants at their home, and who spent over two hours with them discussing the issues. Mrs White also undertook a tour of the setting, although she had made it clear to the Appellants that she was not undertaking a fresh inspection of the setting.
36. Following the inspection, a Notice of intention to cancel registration was delivered to the Appellants by Mrs Lawton on the 28 July 2006. The letter identified a failure to meet 13 of the 14 National Standards and Annex A, and notified them of the Respondents' decision to cancel the registration of them both.
37. On the 12 August 2006, Mr Emery, who had been present at The Manor on the 11 July 2006, wrote a letter "To whom it may concern" stating that the inspectors had not visited the upstairs office to check on the documentation held upstairs.
38. The outcome of the complaint investigation was notified to the Appellants by letter dated 21 August 2006. The decision was that no part of the complaint was upheld.
39. The inspection report was issued on the 7 August 2006 and on the 29 August 2006, Mr Thorley wrote a long letter to Ofsted, setting out his objections to the contents of the report and identifying the facts and findings he considered to be inaccurate.
40. Inspections of The Manor, carried out after the complaint was made, were undertaken by inspectors who were not part of Mrs Lawton's team and who were not under her direct supervision. Furthermore, Mrs White arranged for a review of the inspection report of the visit on the 11 July 2006 to ensure that sufficient evidence had been gathered for the judgement of "Inadequate" which the Appellants received.
41. The review was undertaken by Mrs D O'Brien, Team Manager. On the basis of her review of the evidence, she concluded that there were very clear examples of practice where standards fell below the requirement for a "Satisfactory" judgement to have been achieved. In addition, there were breaches of the conditions of registration identified, as well as insufficient progress made on previously set actions. She concluded in her letter to the Appellants dated 8 November 2006, that sufficient evidence was gathered against each of the standards, in terms of outcomes for children, to support the judgement of "Inadequate".
42. Mr and Mrs Thorley submitted an objection to the cancellation notice and an Objection Panel was convened to hear the objection on the 13 October 2006. The panel concluded that they would confirm the decision to cancel the Appellants' registration and the decision was confirmed by letter dated 20 October 2006.
43. Mr and Mrs Thorley appealed. Throughout the period leading up to the hearing, the Respondents continued to undertake inspections and a total of 10 visits were made to The Manor between the issue of the Notice of intention to cancel in July 2006 and the hearing of the appeal.
44. On the 28 February 2007, a preliminary hearing in accordance with Regulation 6 of the Care Standards Act and Protection of Children Act Tribunal Regulations 2002 ("the Tribunal Regulations") was held and His Honour Judge David Pearl gave directions for the conduct of the appeal. Amongst other directions, he made a Restricted Reporting Order under Regulation 18(1) of the Tribunal Regulations 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 the Appellants, any child or any vulnerable adult, such order to continue until the conclusion of the hearing and the Tribunal shall consider its continuation at the hearing itself.
45. At the conclusion of the hearing, the Tribunal considered the Restricted Reporting Order made by the President and extended its continuation until the panel had had an opportunity to consider written submissions by the parties regarding its continuation after the Tribunal decision had been issued to the parties.
46. At the hearing, held on the 23 to the 30 July 2007, Mrs Thorley did not attend but authorised her husband, Mr Thorley, to act on her behalf.

The issues

47. The issues for decision by the Tribunal were identified by Counsel representing Ofsted in a statement of issues as being:

i. Have the Appellants failed to comply with National Standards 1 to 9 and 11 to 14?

ii. Have the Appellants failed to comply with the Day Care and Child Minding (National Standards)(England) Regulations 2003, in particular Regulations 6, 6A and 7?

iii. Have the Appellants ensured that every other person looking after children is suitable to look after children under the age of eight?

iv. Have the Appellants complied with conditions imposed by Ofsted, particularly those in relation to the maximum number of children that they may mind?

v. Have the Appellants' premises been suitable to be used for looking after children under the age of eight?

vi. Have the Appellants properly co-operated with Ofsted?

vii. Are the Appellants suitable to look after children under the age of eight?

viii. If the Appellants have ceased to be qualified for registration for child minding, should the decisions to cancel their registration be confirmed or if not, should conditions on their registrations be imposed, varied or cancelled?

48. There were many issues on which there were disputes of fact between Ofsted and the Appellants relating to the findings of inspections and comments made by the inspectors.

The Evidence

49. The basis for the Notice of intention to cancel registration was the inspection undertaken on the 11 July 2006. During the course of the inspection, the inspectors concluded that 13 of the 14 National Standards had not been met. The inspection report prepared by the inspectors after the inspection described the findings of the inspection in terms of outcomes, under general headings: "Helping children to be healthy"; "Protecting children from harm or neglect and helping them stay safe"; "Helping children achieve well and enjoy what they do"; "Helping children make a positive contribution" and "Organisation". The report concluded with findings about the improvements made since the last inspection and the complaints received about the childcare provision before providing a judgement on the quality and standards of the care provided, and information about what is to be done to secure future improvement. The final conclusion was that "Ofsted is taking enforcement action to safeguard the welfare of children."
50. In view of the cancellation decision and the judgement of "Inadequate" following the inspection on the 11 July 2006, Ofsted made frequent, almost monthly, monitoring visits thereafter, until the final hearing of the appeal, to monitor the situation and to ascertain whether improvements were made in response to the inspection findings. A total of 10 visits were undertaken, and evidence was provided in the form of witness statements from the inspectors involved and oral evidence at the hearing to confirm the findings of the monitoring visits.

Other documentary evidence.

51. The Tribunal bundle included copies of inspection reports from Staffordshire County Council inspections from 1999 until the transfer of responsibility to Ofsted in 2001. Also included as documentary evidence were the inspection notebooks and the reports compiled from them, from the start of Ofsted involvement with the Appellants, in 2001.
52. The Staffordshire Social Services report dated 18 February 1999, was prepared by Ms Sandra Varley. In it, she commented that no accidents or medication had been recorded within the setting in the previous year and that the records of children's details were not satisfactory. The report stated that 7 children under 5 had been received by Mr and Mrs Thorley at The Manor on the day of the inspection, a number that exceeded the 6 children under 5 specified in the registration certificate conditions. Ms Varley noted that the fireguard in the bottom playroom wasn't fixed to the wall, that the register must be kept for more than one month and that records of children's details should be kept.
53. The subsequent Social Services report dated March 2000, was again written by Ms Varley. In the report, she recorded a discussion about the issue of locking the main gate, in the context of Mrs Thorley being left alone with the children, whilst Mr Thorley went to open the gate. The practice by the Appellants was to close and lock the main entrance gate to the property when the children were present, with access during the day being gained by using an intercom system linked to the house to notify a visitor's arrival and Mr Thorley walking down the drive to open the gate manually. Ms Varley suggested that the gate should be left open during the day. Mr Thorley informed her that it was a condition of the planning consent that the gates should remain closed, but he agreed to leave the gates closed but unlocked unless the children were playing outside. Ms Varley also recorded a discussion about the practice of recording existing injuries seen on the children and recording medication. She made a recommendation that both Mr and Mrs Thorley should attend a first aid course in the next 12 months and produce a child protection policy for the setting.
54. In November 2001, a complaint by a parent about a child being held in a locked room in The Manor led to an inter agency strategy meeting convened by Staffordshire Social Services department under the child protection procedures. The complaint included other elements, including the lack of an Accident Book, very little structure to the day with no academic element and very limited details kept about the children. An investigation was undertaken and the complaint discussed with Mr and Mrs Thorley and it was admitted that two boys had been locked in a room on two occasions and that there was no accident book. Following the investigation, a letter was sent to Ofsted identifying the "unsatisfactory replies" to the issues discussed and concluding by stating that the child protection unit continued to have concerns about poor supervision of the children, too many children (the number exceeding the registered number on the day of the visit), too many under twos, children locked in the back room and no accident book, contract or satisfactory register and no written behaviour policy. It was, therefore, felt that the issues raised had not been addressed appropriately.
55. Ms Varley carried out an inspection on 26 April 2002, measuring the standards at The Manor against the National Standards. The issues recorded as necessary for discussion at the inspection were all the issues identified in the letter from Child Protection Unit and strategy meeting. On inspection, Ms Varley discovered that there were eight children under 5 present, one of whom was alleged to have turned up unexpectedly and two visiting for short periods but both of whom remained for the duration of the inspection from 10am to 3.15pm. Mr Thorley admitted to the inspector that he found it difficult to say "No" to parents. There were no up to date first aid certificates for Mr or Mrs Thorley.
56. At the time of the inspection, there were three assistants working at The Manor, Katherine Mary Reeves and Anne-Marie Thorley, the Appellants' daughters and Anna Marie Thorley, their daughter-in-law, all of whom had been cleared and were known to the Staffordshire County Council. Mr Thorley confirmed to the inspector that he was responsible for the paperwork and that he needed to get organised. The inspector recorded that Mr Thorley was aware that he needed to comply with registered numbers, be more business like and keep clearer and accurate records. He confirmed that he would consult both the National Standards and the Guidance to obtain more information and would seek advice from the Early Years Directorate. The inspector recorded that Mrs Thorley was very nervous and reluctant to join into conversation. Mrs Thorley was recorded as stating that she just likes looking after babies. The issue of access to the premises was raised, as was the lack of adult seating available. Mr Thorley agreed to address the issue of seating. Child sized tables and chairs/feeding chairs/sleep and rest facilities were all discussed with the inspector and the inspector recorded that these were all matters that Mr Thorley was willing to address. She noted that the medication book had no entries and that the Appellants seemed unaware of the section available in the book to record medication. There was in use a National Child Minders Association accident and medication book, which contained entries from 29 September 1997 to 06 January 2002. She noted limited resources reflecting multi cultural positive images. The inspector did not identify any relevant issues in relation to food.
57. Ms Varley discussed with Mr Thorley the issues raised by the child protection investigation and he admitted locking a child in a room to protect the other children as a last resort. He indicated that he would be willing to attend a behaviour management course or training to improve his skills. A complaint file note in relation to the complaints confirmed that the decision was to take no further action because the Thorleys had indicated that: they would never again go over their registered numbers; that the parent was aware that the child could be locked in a room as a last resort; medication records were not at the time compulsory, neither were contracts and because the records were present, albeit in a disorganised fashion, no actions could be raised in respect of the record keeping.
58. The next inspection report was written by Mrs S J Rhodes following her inspection on the 4 December 2003. Once again, it was found that Mrs Thorley did not have an up to date first aid certificate, but she informed the inspector that she was booked on a first aid course for 7 and 14 February 2004. On the visit, the inspector noted that the paperwork was neatly arranged, although no paper record existed to show that the adult: child ratios were met. The report recorded a discussion about the teaching of two and three times tables to the children and the inspector, on that visit, concluded that the activities were age appropriate for the children present. Mrs Rhodes described the setting as a warm and welcoming environment, that was clean and at an appropriate temperature. She concluded that hygiene routines were promoted and that there were good safety practices, with the children well supervised. She described the lunchtime meal of chicken drummers, peas, carrots, french fries, apple pie and custard and fruit. She noted that the setting now had a written behaviour policy and that contracts with parents were seen by the inspector. She described the setting as having a good selection of toys.
59. On the basis of the inspection, Mrs Rhodes concluded that the evidence led to a judgment that "Good" provision was made at The Manor by the Appellants. They were informed of the rating by the inspector at the oral feedback following the inspection. Within a few days, Mr Thorley received a telephone call from Mrs Rhodes, informing him that the Team Manager had decided to change the finding from "Good" to "Satisfactory". She informed him that he had a right to raise an objection to the change, but he chose not to do so.
60. In February 2004, another anonymous complaint was made to Ofsted about the provision at The Manor. The complaint related to difficulties in gaining access to the property, a child who was toilet trained being returned home in nappies and only two members of staff when four should be present.

61. As a result of the complaint, an investigation visit was carried out on the 24 February 2004 by Mrs Lawton and Ms Varley. On that occasion, the inspectors were unable to gain access for a period of 20 minutes after they first rang the bell at the gate. When they entered the property, they found that there were seven children under 5 years old present with Mr and Mrs Thorley and no assistant present. The report compiled after the investigation visit set out the required actions. They were: i) to meet Standard 2, to maintain a clear record of the recruitment procedures followed when employing an assistant; to record training undertaken and qualifications gained by all assistants; ii) to meet Standard 4, to produce a copy of the conditions applied with regard to the property by the local planning department; iii) to meet Standard 6, to demonstrate how the parents of minded children gain access to the premises and how minimum staffing ratios are maintained when allowing parents access to the premises and iv) to meet Standard 12, to provide copies of the written agreements in place that confirm that all parents are content with the security procedures that are currently in place and ensure that there is a written agreement with parents which sets out the expectations of both parties as to the care of the child activities provided and business arrangements.

61. Ms Varley visited again on the 10 June 2004, this time with Jane Lyons, and it took the inspectors 45 minutes to gain access to The Manor.

Other documentary evidence

62. The Appellants produced letters from parents who had placed children at The Manor covering a period from 2001 to 2005. The letters were complimentary of the provision made at The Manor and complimented Mr and Mrs Thorley on the provision they made as registered child minders.
63. Other correspondence produced included a letter dated 11 May 2007, in which the Appellants were informed of the inspectors' concerns arising from the two visits on the 15 February and 4 April 2007 and were notified that the Respondents still remained of the opinion that the cancellation of the registration remained the appropriate course of action because the Appellants continued to provide an inadequate level of care for children, their apparent lack of understanding of the needs and the welfare requirements of children.
64. The Appellants responded by letter dated 5 June 2007, expressing their dismay that there were inaccuracies contained within the letter of the 11 May and stating that the sole intention of Mrs Lawton for the previous two and a half years had been to secure the closure of The Manor. They maintained that they had complied with everything that had been asked of them by the Respondents: refurbishing rooms, rearranging the whole of the setting of the interior and exterior of the property, purchasing new toys and effecting an overhaul of the administration procedures.
65. The letter claimed that both the Early Years Coordinator, Mrs Lyons and the Area Manager, Mrs White, found the establishment praiseworthy and in order. It stated "All previous inspections prior to the first visit of L Lawton and team had shown how we promoted the children's health, hygiene, dietary needs, toy selection and the development of the children was more than satisfactory." It was stated that an inspector had telephoned following one inspection to inform the Appellants that in her opinion her report should have judged the setting as "Good" but had been downgraded to "Satisfactory" by her superiors. The letter identified a number of factual issues disputed by the Appellants and concluded that the only criteria for Mrs Lawton was to close The Manor as a childcare facility.

Evidence at the hearing

66. At the start of the hearing, Mr Thorley agreed the evidence of four of the witnesses, namely Mr P Kilburn, Team Manager (Compliance, Investigation and Enforcement) Midlands Region, Ofsted; Mrs D O'Brien, Inspection Team Manager, Midlands Region, Ofsted; Mrs L Sunter, Area Manager, Midlands Region, Ofsted and Mr T O'Neil, Team Manager Compliance Investigation Team, Midlands Region, Ofsted. The witness statements by those witnesses were accepted without challenge.
67. Mrs Lorraine Lawton, Team Manager, gave evidence about her involvement with the Appellants and The Manor. She first visited the setting in her capacity as Team Manager on the 30 November 2004. She stated that she had been the Team Manager responsible for the setting since 2003, and that it was on her recommendation that the report by Mrs Rhodes had been downgraded from "Good" to "Satisfactory". She explained that this was done because it was Ofsted policy not to allocate "Good" ratings to settings where actions had been raised.
68. Mrs Lawton had visited to inspect The Manor on six occasions between 30 November 2004 and 28 July 2006. In her statement, dated 8 June 2007, she identified her current concerns about the Appellants to be the access to the premises, the suitability of Mr and Mrs Thorley to act as child minders, the vetting, deployment and suitability of assistants, adult: child ratios and the organisation of records. In oral evidence, she denied the allegation that she had conducted a vendetta against the Thorleys and that she had been overbearing and aggressive towards Mr and Mrs Emery. She confirmed her role as being part of a regulatory body to ensure that children are well cared for, because they have a right to appropriate care.
69. She confirmed her impression that both Mr and Mrs Thorley showed a lack of understanding about the level of appropriate childcare, where it is paid care. She had an impression that the Appellants were not handling children sensitively according to their individual needs and that children were being placed in cots for management, not because they were tired. Mrs Lawton had observed a child in a cot for about an hour without any interaction from an adult, and crying children were not dealt with appropriately.
70. Mrs Lawton gave evidence about the inspection process, explaining that the inspectors look for evidence that the standards are met within a setting. The inspectors apply a fair principle – if there is a breach of a National Standard or Regulation, then they consider the overall picture, considering the risk to the child and the attitude of the provider, before deciding on the outcome.
71. On cross examination about the visit of the 30 November 2004, she denied being irate or aggressive and confirmed that she had spoken to two parents about the provision offered. She recalled the dispute about the time of leaving, when she stated that she had left at 6.20pm and Mr Emery insisted that she had not left until 7.45pm. She confirmed that the time was recorded in her inspection notes.
72. Mrs Lawton also confirmed that she had requested an opportunity to visit the Appellants' living accommodation upstairs because she was aware that there were children present who were not recorded on the paperwork and wanted to ensure that there weren't any more children upstairs whose presence was not recorded.
73. Mrs Lawton confirmed that a further complaint had been received in about October 2005, which Ofsted had decided not to investigate because of the pending criminal prosecution about the minding over numbers. There followed a discussion about the situation and the complaint was eventually investigated on the 14 December 2005, after the criminal proceedings had been adjourned to the following February. A further complaint had been received by Corinne Holmes, who had attended at The Manor as an assistant, and who had subsequently complained to Ofsted about the setting because of her dismay at their care practices.
74. Mrs Lawton acknowledged on cross-examination, that there had been some improvements at The Manor following the cancellation notice. She identified some of the improvements as being the keeping of a log when the children go out to play and that the quality of the outdoor equipment had improved. Her continuing concerns, however, were identified as being the lack of social opportunities at meal times, the lack of safety surrounding outdoor play equipment, the appellants' lack of clarity about the children's details and how long they had been attending the Manor, poor supervision of the children and poor direction of assistants.
75. She denied that she had a personal problem with Mr Emery, suggesting instead, that perhaps he had a problem with her. She described his questioning of her on the 9 December 2004 as aggressive and abusive, and described how he had phoned the solicitor on behalf of Mr and Mrs Thorley on her subsequent visit. She expressed her view that the visit had become prolonged because of Mr Emery's interference.
76. Other important areas of concern for Mrs Lawton was the changing of children's nappies in cots and the use of unvetted assistants within the setting. Mrs Thorley, in her view, showed a lack of understanding of the National Standards or what the supporting criteria meant. She also considered that Mr Thorley subjected the children to totally inappropriate activities for their age. She regarded the feeding of children with fish fingers and sausages as inappropriate because of their nutritional content and concluded that this did not meet the National Standard, on the basis that the expectations in a paid care situation is that the provider should find out about suitable nutrition. She confirmed that she does not provide advice to providers, but is able to signpost them to other agencies – as she did to the Appellants by directing them to the Early Years Advisor at Staffordshire County Council.
77. Mrs Valerie Thomas gave evidence about her visits to The Manor: she had visited eleven times over a period of 28 months. She identified her current concerns as the Appellants lack of suitability and qualification to act as childminders, their lack of knowledge of the children, their lack of understanding of their responsibilities and their inability to meet the National Standards.
78. In oral evidence, Mrs Thomas described the difficulties experienced in gaining access to the property, with delays between the inspectors ringing the bell and gaining access to the property. She described her main concern as being the inappropriate activities for the children. She gave evidence about her visit on the 11 July 2006, when she observed a child being required to complete a "worksheet" although the child did not wish to do so. Mrs Thomas also saw children working at a table to complete work for a period in excess of one hour and stated that she had seen them becoming distressed because they didn't want to do the work. She described the worksheets as sheets with the alphabet written on them, which the children traced, some with letters and others with numbers. She confirmed that she did not consider that the activity was age appropriate for the children at the setting, who were aged under five years.
79. On the 9 December 2004 and again on the 11 July 2006, Mrs Thomas observed that the children weren't provided with drink and food. On the first occasion, they weren't offered a drink for more than two hours and, on the second the children weren't offered food for a period of at least four hours and one of them for more than five hours. On the 28 July 2006, she noted that two children had only been provided with one biscuit to eat during five hours attendance at the setting. Furthermore, she did not consider that the food was varied and nutritious, having noticed that the children ate fish fingers and chips on several of her visits to the Manor.
80. Mrs Thomas described Mrs Thorley's lack of interaction with some of the younger children, having observed a child standing in a cot without any adult interaction for about an hour and Mr Thorley's lack of understanding of the children's needs.
81. Other areas of concern for Mrs Thomas were the use of unvetted assistants, inadequate supervision and deployment of them and minding over numbers. Once again on the 11 July 2006, there had been 8 children under 5 years present, when the Appellants were registered to care for no more than six. There was also an issue regarding the recording of accidents: it was alleged that Mr Thorley had failed to record an "attempted bite" in the accident book on the 11 July 2006. Mrs Thomas identified issues about the ventilation and temperature regulation in the playrooms, supervision of children and understanding of child protection issues.
82. Mrs Thomas confirmed in oral evidence that the guidance to the National Standards states that supervision means being within sight or earshot of an assistant. She confirmed that within the Manor, it was possible to see the large playroom from the kitchen and that the bathroom is next door to the large playroom. She also confirmed that it was possible to see from the rear playroom into the toilet.
83. She expressed her concerns about the recruitment procedures for the assistants. Two had come from a recruitment agency called Rock House Training, but Mr Thorley had not secured any written references for them and they did not have their Criminal Records Bureau (CRB) checks at the time that they started work. She referred to the confusion about the status of Corinne Holmes – Mrs Thorley had said she was an assistant and Mr Thorley that she was just visiting.
84. Mrs Thomas had been present at the time of the "attempted bite". She gave evidence that she had seen a child place his teeth around the arm of another and the other had cried out, alerting Mr Thorley to the incident. He had then started to rub the child's arm firmly causing it to become more red. She described it as a bite because it had left a mouth mark, a lower gum mark. She did not see teeth indentations and it was not recorded as an accident.
85. Mrs Thomas acknowledged the improvement she had seen in the keeping of records at The Manor, although there still remained concerns about their accuracy. There were limited improvements in the provision of food, (although insufficient to meet the National Standard) and an improvement in hygiene, including nappy changing practice. She also acknowledged that there was some improvement in the interaction between Mr and Mrs Thorley and the children but described this as "intermittent".
86. Finally, Mrs Thomas described an incident on the 11 July 2006 when Mrs Thorley had prepared one lunch portion too few and two children had to share one portion between them from the same plate. She considered this a clear indication that the children's nutritional needs were not met, as was the length of time which passed between meals. An assistant present on the 11 July confirmed that a mid morning snack was not a regular occurrence but sometimes happened on an unplanned basis.
87. Mrs Jacqueline Mason gave evidence about her seven visits to The Manor between the 11 July 2006 and the 14 June 2007. In oral evidence, she described in detail her concerns about the conditions at The Manor, including the environment in the playrooms, safety issues, the condition of the outdoor play area, behaviour management of the children by the Appellants and Mr Emery, supervision of assistants and the inadequate or inappropriate use of equipment and toys. She explained that she had been shocked by what she saw at The Manor to such an extent that she had been unable to sleep on the night after the visit, leading to her raising the question with her superiors of whether the situation warranted immediate suspension of registration. It had been concluded that the situation was not sufficiently serious to require immediate suspension.
88. On her visit in January 2007, she had perceived Mrs Thorley to lack understanding of the conditions of registration or the requirements of the National Standards. She described her observation of Mrs Thorley fetching a one year old from his cot after a nap, lifting him down to the floor without speaking to the child at all and without acknowledging another child who came over and hugged him. This was identified as an example of lack of interaction and meeting the children's individual needs.
89. On the 4 January 2007, Mrs Mason observed supervision of assistants to be adequate but their deployment poor. She was satisfied that the hygiene procedures were improved although not always consistently applied.
90. In oral evidence, Mrs Mason stated that despite the fact that she had visited for over a year, she had seen only very limited improvements within the setting. She did not consider that the children's individual care needs were being met, the activities offered were not age appropriate and the behaviour management of the children was poor. She concluded that neither of the Appellants was capable of managing the children's behaviour. She did not consider the Appellants to be aware of the developmental stages for children, referring, as an example, to the use of worksheets for children as young as one year and the teaching of the two times tables and the alphabet to 18 month olds. She continued to have concerns about the heat in the playroom and the lack of ventilation, referring to her most recent visit on the 14 June 2007, when all the blinds had been down and the light on although it was bright outside.
91. Mrs Mason was adamant that on the 11 July 2006, Mr Thorley had told her and Mrs Thomas that the Appellants were frequently over their registered numbers before 9am, when the assistants turned up for work. She expressed her view that the situation where an additional child arrives unexpectedly would not be unacceptable for a very short period, but on the date in question, the inspectors had arrived and there had been eight children present with Mrs Thorley on her own, with Mr Thorley upstairs and no assistants present. She identified other concerns as being Mrs Thorley's confirmation that she had booked on to a first aid course in February, yet at the next visit the first aid certificate had expired and no course had been attended and the fact that the only reason that Ofsted became aware of Corinne Holmes at all was because she had made a complaint. Mrs Mason gave evidence about Mr Emery's inappropriate behaviour towards other adults carried out in front of the children and the lack of direction given to assistants by both Mr and Mrs Thorley.
92. Mrs Mason identified numerous issues about the provision at The Manor, with her current concerns being identified as the temperature and ventilation of the playrooms, the safety and supervision of the children, the inadequate provision of age appropriate toys, equipment and domestic furniture and the lack of knowledge demonstrated by Mrs Thorley of child protection issues.
93. In oral evidence, she described her greatest concern as the overall standard of care provided by both child minders. She was very concerned about the children's emotional support by Mrs Thorley and Mr Thorley's lack of knowledge about child development. She acknowledged limited improvements in relation to nappy changing but concluded that improvements in relation to assistants had been made but not maintained and her view that the Appellants would not respond appropriately to training or advice put in place for them, bearing in mind that they had received ten visits from the inspectors over the previous twelve months.
94. Mrs Karen Byfleet gave evidence about her two visits to The Manor in January and July 2007. She stated that she had undertaken an inspection visit in January 2007 and then had visited in response to a complaint by Mrs J Lyons, the Early Years Advisor in July 2007. There were three facets to the complaint – the supervision of assistants, fire safety and children's unsupervised access to the kitchen when the oven was on. Following the investigation and discussion with Mr Thorley, no actions or recommendations were raised.
95. Following the inspection on the 4 January 2007, Mrs Byfleet expressed concern about Mrs Thorley's limited understanding of the conditions of her registration, her inconsistency in meeting the children's dietary needs, the poor supervision of the children and deployment of the assistants.
96. Mrs Sharon Dickinson gave evidence about her three visits to The Manor in January, February and July 2007. She was part of the North Derbyshire Ofsted Team and had had no previous involvement with The Manor, prior to her first visit on the 4 January 2007. In the course of the inspection, she noted that Mr and Mrs Thorley showed limited understanding of their condition of registration and of the deployment of assistants. She concluded that Mr Thorley showed limited initiative in dealing with the children, seeking guidance from both Mrs Thorley and the inspectors.
97. Mrs Dickinson noted improvements in relation to the heating and ventilation and to the outdoor play areas. She also noted improvements in relation to hygiene in terms of hand washing but concluded that the improvements weren't consistently maintained. Her main concern in respect of Mr Thorley was his lack of understanding of the awareness of the requirements of the National Standards, child development and methods of helping children to develop, his lack of appreciation of children's individual needs and in relation to Mrs Thorley the issues surrounding children's sleeping, toileting and snacks.
98. Mrs Elaine White gave evidence about her visit to The Manor to discuss the complaint against Mrs Lawton and her team with the Appellants. She stated that she had not made voluntary positive remarks about the setting to the Appellants, as was alleged in the letters both from Mr Thorley and Mr Emery. She confirmed that she had made comments such as "Oh, yes I can see that" in response to Mr Thorley's comments and "That's very interesting" and "Gosh, that's a lot of toys" when she walked around the setting. She had stressed on many occasions during the visit that she wasn't there to make another inspection but to deal with the complaint. She explained that she would expect her inspectors to offer advice about training opportunities and what needs to be addressed by signposting providers to the appropriate training provider.
99. Mrs J Lyons was the Child Care Coordinator for Staffordshire County Council. She had visited the Appellants since about March 2006 in connection with a referral by Mrs Lawton because of the failure of the Appellants to meet the National Standards. She explained that her role is to advise and support providers in ways of meeting the National Standards and to promote good practice. She gave evidence about the advice she had offered the Appellants in April 2007 about child safety in using the climbing frame placed on the concrete flagstones outside, and her recommendation that there should be soft play mats placed underneath to break a fall. A record of matters discussed were compiled in a report sent to the Appellants, with the issues addressed referred to as "implemented" and the other matters raised marked as "discussed". She stated that Mr and Mrs Thorley had always made her feel welcome but that she struggled to move them forward in making the environment more homely and an area where children could have fun. She had tried to explain her role to them but gained the impression that they did not understand her role in relation to Ofsted. She felt that the Appellants wanted her comments on what Ofsted had said, although she was not an inspector or in a position to make such comments.
100. Mrs Lyons described her difficulties in gaining access to The Manor in 2004, when she had been employed by Ofsted and it had taken her 20 minutes to get into the property. She confirmed that if the emergency services required access it was likely to take some time before the gates were opened.
101. The Staffordshire County Council Early Years Team provide regular and frequent training opportunities to all child care settings in the area and these are informed to the providers on a termly basis. Mrs Lyons' evidence was that she had no recollection of Mr and Mrs Thorley accessing any courses offered other than first aid.
102. Mr Thorley gave evidence about the provision made at The Manor and confirmed several times that he and Mrs Thorley had done their best to meet the National Standards at all times. He applauded the inspection and registration system as a good system to ensure good provision for children and insisted that there was no reason why he and Mrs Thorley would not meet the National Standards at all times. He confirmed that he had read the National Standards and the Regulations and endeavoured always to work within them, stating that they were not very difficult to adhere to. He considered Ofsted a "super system", expressing the view that the National Standards were easy to follow and in fact, made a provider's life easier.
103. Mr Thorley described how, when they had first started offering child minding, the Appellants had offered respite care to children who required temporary placements by Social Services and this service had been gratefully accepted by the Staffordshire County Council. In time, however, fee-paying parents had objected to their children sharing the setting with children with behavioural and other difficulties and the Appellants had withdrawn the service to concentrate on child minding.
104. Mr Thorley accepted that there had been breaches of the Regulations and National Standards in the past, in a limited way. He accepted that the shortage of adults on the 7 February 2005 was a direct result of his managerial decision to allow his sister in law, Mrs Emery, to leave the setting to collect her medicine. He expressed his view that, even if he had refused her permission, she would have gone, anyway. He was adamant, however, that the failure to comply with the registration condition in relation to numbers of children was not because of the Appellants' blatant disregard of the law but rather the result of several unfortunate incidents, such as the ill-health of his daughter, leading to assistants being absent unexpectedly. He vehemently denied telling the inspectors on the 11 July 2006, that he was frequently over the numbers before 9am, because he thought that would be a stupid thing to say. In cross examination, he confirmed that he had always done his best to meet the National Standards and that the Tribunal could be satisfied that he and Mrs Thorley had done their best over the last year. He perceived Ofsted to be looking for difficulties, failing to identify and recognise improvements the Appellants had made. He described as an example the different advice given in relation to the use of the climbing frame: this had originally been used indoors, but one of the inspectors had identified the danger of its use within a limited space. It had then been placed outdoors, and Mr Thorley expressed surprise at the fact that the inspectors were still dissatisfied because of the danger its use presented there. Finally, he had discussed the possibility of placing the climbing frame on the lawn with Mrs J Lyons, who had indicated to him that this, too, would present danger unless appropriate soft play mats were placed beneath it.
105. In response to the cancellation notice, Mr Thorley provided a significant amount of documentation to refute the allegations of the inspectors regarding the provision of child care at The Manor. He gave oral evidence about his knowledge of "Birth to Three Matters", the DfES publication and guidance on provision for children under three, and insisted that it was used in the preparation of activities for the children. He described the process of selecting assistants and produced documentation to support the appointment process, including application forms and confirmation of CRB check applications. He explained the difficulties that arose when assistants were sent by Rock Training, who had agreed to provide references, but the agency had disappeared overnight, and he had none of the necessary paperwork for Hannah Thompson or Hailey Smith. He explained the difficulties of obtaining suitable references for young girls who have never worked before. He gave evidence that until the hearing, he had not been aware that supervision of assistants meant being in sight or sound of them, and confirmed his view that the assistants at The Manor had been supervised at all times.
106. In response to specific complaints raised by the Inspectors, he claimed that the practice had been to place cot mattresses around the base of the climbing frame when it was outside, and that the children were supervised when they used it. He denied that the assistants and the children were left unsupervised by him, claiming that the incidents described by the inspectors either had not happened or had been dramatised by them. He was extremely disappointed by Mrs White's oral evidence that she had not made complimentary remarks about The Manor on her visit and was certain in his own mind that she had described the playroom as "bright and airy" and the "ambience" as "very pleasant". He considered Mrs White to have been a "breath of fresh air" because her attitude towards the Manor had been so different to that of the other inspectors.
107. Mr Thorley gave evidence of his belief that Mrs Lyons and the inspection team who attended in January 2007, had been persuaded by Ofsted to change their views about the provision in The Manor. He had gained an impression that the inspection on the 4 January 2007 had gone well and was shocked by the change in attitude when the inspectors returned the following day to provide feedback. Similarly, he had found Mrs Lyons to be always helpful and supportive but considered that her attitude had changed at the last visit. This he could only attribute to some intervention by Ofsted.
108. Mr Thorley was clear in his opinion that the activities provided and the worksheets – which he referred to as "play sheets" - were age appropriate and reflected the "Birth to Three Matters" framework. He gave evidence that the children enjoyed the activities and that parents were pleased with the head start their children received before they started in school. He gave evidence about strategies employed in behaviour management including the use of a "naughty cot", the use of which was stopped because of Ofsted disapproval, and the use of a "naughty rug". He described the version of events on the 14 June 2007, when the children were described as being out of control, as an over dramatisation of events, giving a false impression of the setting. In relation to the complaints by Ofsted about the heating and stuffiness of the playroom, he claimed that it had been raised, repeated and dramatised beyond belief. He expressed his view that where the Appellants accepted that there was a problem they have taken steps to address them and they do not accept that the issue of the environment continues to be a valid concern.
109. In relation to food and nutrition, Mr Thorley did not accept that the children went for long periods without food or drink and gave evidence that food and drink was available to them at all times, throughout the day. He believed that the inspectorate had missed the snacks offered to the children during their visits, as he claimed Mrs Lyons had done at the beginning of July 2007. In cross-examination, in response to a query about whether, in truth, snacks were offered, he queried "Why would we deviate from our routine when the inspectors are there?"
110. Mrs Joanne Griffiths was a parent of two children who had attended The Manor between 2001 and 2007. She gave evidence about the provision that she had sought for her children and the satisfaction that they, as parents, had with The Manor and the Appellants. She described the setting as having a homely environment and explained that both her children had been very happy there. She gave evidence that she had been surprised to discover how advanced they were academically as a result of their attendance there. Her daughter had been able to write her name and recite the two times table before she attended school full time, and this, Mrs Griffiths attributed to the excellent provision at The Manor. She described the provision as being second to none and Mrs Thorley as being, if anything, over cautious about the children's safety. She described the provision as having the culture of a nursery and with Mrs Thorley being able to discuss and address any issues that arose, such as nutrition or behaviour. Mrs Thorley had successfully addressed a specific issue of nutrition that arose with her son, Callum, since he would not eat anything at home, but this was resolved after discussions about strategy with Mrs Thorley.
111. Mr David Emery gave evidence about his involvement with The Manor: he had been present at the visit of the Ofsted inspectors on the 30 November 2004 and had been observing the children without interacting with them because he did not at the time have CRB clearance. He had placed his chair at the door and watched the children in the playroom. He acknowledged that during the day he had not realised the full power of Ofsted inspectors. In cross-examination, he explained how he had tried to build up a rapport with the inspectors by being flippant and making flippant remarks. He acknowledged that on the 30 November 2004, he felt that the inspectors had made him feel as if he was nothing and had found their attitude threatening. He stated that he made no apology for saying that Ofsted were like the Gestapo and admitted that he had been galled by their criticism of him in their report, following the visit on the 9 December 2004. He admitted to becoming exasperated with Mrs Mason and to being short with her but did not accept that he had given the inspectors reason to be firm with him.
112. There were several factual issues on which Mr Emery disagreed with the evidence of the inspectors: he expressed his view that the inspection reports relating to the danger of the children climbing on top of a table was exaggerated by the failure of the inspector to mention that the table referred to was only 18 inches high. He had a disagreement with Mrs Lawton about the time of her departure on one of the inspection visits – she claimed to have left The Manor at 6.20pm whilst he insisted that she had left at 7.45pm. He denied that his interactions with the children were inappropriate and insisted that the practice of pointing a finger in the face of a child and saying he was "Naughty" was used by Supernanny on television as an appropriate behaviour management strategy. He claimed that Mrs Lawton had insisted on seeing the private residence upstairs, and had made a comment about nothing more to come out of the woodwork.
113. Mr Emery described how he had been present at several inspections and how he had assisted in the compilation of the necessary documentation and the establishment of an appropriate system for recording assistants' details. He described an element of confusion within Ofsted about the CRB and CR2 forms: he had submitted application forms for CRB checks in respect of both Hannah Smith and Hailey Thomson, and both had received letters of confirmation from Ofsted at the time when the inspectors alleged that the applications had not been made. He had, therefore, developed a system whereby copies of applications were sent to Ofsted offices in both Manchester and Nottingham at the same time, to ensure that the same did not happen again. He confirmed that he wrote letters to job applicants once Mr and Mr Thorley had selected them for interview and stated that they had decided not to inform Ofsted of the attempt to employ Corinne Holmes because she had only stayed for one day on a training placement. He expressed his personal view that written references from former employers are useless and difficult to obtain.
114. He described the visit by Mrs White to The Manor and the comments that she had made and confirmed that he had written a letter to Ofsted to praise her attitude as being a breath of fresh air. He had been astounded when she had denied in evidence making positive comments about the setting. He insisted that the evidence that Mrs White had given had been totally wrong.
115. Mr Emery gave evidence that he had only been present for about three visits from Mrs Lyons and denied being present at The Manor on the 26 April 2007, as she had alleged, on the grounds that he had a hospital appointment. He expressed his opinion that the matters recorded in Mrs Lyons' report of the 3 July 2006 did not relate in any way to the content of the inspection report of Ofsted eight days later.

Tribunal's conclusions with reasons

116. We found the manner in which the most recent inspection reports had been compiled, whilst, no doubt, very user friendly for parents and users of child care facilities, difficult to use effectively in terms of making findings of fact directly related to the National Standards. In order to consider the alleged breaches and failures appropriately, we have considered each of the National Standards in turn, and had regard for the guidance provided to that standard, together with the evidence relied upon, not only in the format of the inspection reports and the inspectors' statements but also the written notes prepared contemporaneously, the other documents produced by the parties and the oral evidence presented at the hearing.
117. It is our view that in relation to the Appellants, the requirement of Standard 1, "Suitable Person", is the overarching consideration in the context of the Appeal, and for that reason, we will deal with it last.
118. Standard 2 "Organisation": to meet this standard, the registered person must meet the required adult: child ratios, ensure that training and qualification requirements are met and organise space and resources to meet the children's need effectively. There were numerous allegations about the setting in the context of this requirement and it is in terms of the breaches of ratios that it has been, most clearly, not met. Although Mr Thorley tried to persuade the Tribunal that his breaches of the registered numbers were not the result of a blatant disregard for the law, his persistent failure to ensure that the condition on his registration certificate was met is clear evidence that it was. From hearing Mr Thorley's evidence and his presentation of the case, we believe that he was telling the truth when he said that he found it difficult to say "No" to parents. He described in evidence how he tried to persuade a parent that he could not accept a child because he was without an assistant, and despite this, the mother left her child there. Mr Thorley presented as a very pleasant and polite person, but perhaps he is too polite, so as to be ineffectual when it really mattered. He may not have intended to blatantly disregard the law, but he had more than one warning regarding his failure to heed the registered numbers, not least, when he received three fines for being over numbers in 2006. Yet, immediately, on the next inspection, he was found to be over the numbers again. The evidence presented showed a clear and consistent picture of too many children being present over a number of years, and we have concluded on the evidence that this situation has not been remedied.
119. The other relevant aspects where we considered the evidence to show that Standard 2 had not been met was in the context of being proactive in seeking training, ensuring effective and clear induction as well as effective direction of assistants. Once an organisation relies on additional staff to offer its service, then it is vital that those members of staff are properly trained and directed as to how to undertake their work, and the evidence of the inspectors was consistent that the assistants at The Manor were not properly directed. We were provided with examples, such as allowing Mrs Emery to leave to collect her medication, allowing the adult: child ratios not to be met and when inappropriate use was made of the assistants for nappy changing when they were unvetted. There was evidence of the assistants not being directed to interact with children; not being directed to supervise children appropriately on the outdoor play equipment and to ensure children's active participation in activities. There were so many examples that we concluded that the evidence confirmed that the Appellants were ineffective in their management of their assistants and were unable to make the appropriate arrangements for their training and induction. The most obvious evidence of an inability to arrange suitable training were the references to Mr Thorley agreeing to attend training on child development and behaviour management, following the complaint in 2004, but failing to make any arrangements to attend the training. Similarly, Mrs Thorley was aware of the impending expiry of her first aid certificate in 2004 but failed to take steps to arrange to attend a course to refresh her training, despite the matter having been drawn to her attention by the inspector. We noted that Mr Thorley was still making promises to attend any necessary training during the hearing, but we were not persuaded that such a promise would be fulfilled.
120. Standard 3 refers to Care, Learning and Play: "The registered person meets children's individual needs and promotes their welfare. They plan and provide activities and play opportunities to develop children's emotional, physical, social and intellectual capabilities." We noted from the evidence that there did not appear to be a structured daily plan of activities with scheduled meal and break times. We accepted Mr Thorley's evidence that there was some planning required in the preparation of worksheets, and he did not accept that they were entirely inappropriate for all the children. We noted that Mr Thorley showed an understanding of "Birth to Three Matters" in his oral evidence, but we were unable to find evidence of the framework being applied in the context of the provision at The Manor. The evidence that he produced about the amount of planning was very limited and not sufficient to persuade us that it was a significant feature of the work. We found Mrs Lyons to be an honest and compelling witness and her evidence that Mr Thorley's lack of understanding of child development was a significant obstacle that he was unable to address, carried considerable weight. We found that the evidence presented in the inspection reports, and the oral evidence at the hearing, supported the conclusion that this standard had not been met and continues to lack sufficient improvement to meet the standard.
121. Standard 4: Physical environment: the premises are safe secure and suitable for their purpose. Although this had been a significant issue over time for the inspectors, we did not accept that the evidence was sufficient to show that it remains a relevant issue now. Although it took time to address, the Appellants did respond to the criticisms raised about the physical environment at The Manor and made some changes to accommodate the recommendations made. The description of a "welcoming environment" is a very subjective one and we noted that two inspectors had taken diametrically opposite views in relation to the physical environment at different times. Mrs Rhodes in 2004 identified The Manor as having a homely and welcoming environment, whereas Mrs Lawton had criticised the setting because of the environment. The interior of the setting was noted to have all the necessary safety features in place and we have concluded that the evidence supports the conclusion that by the time of the hearing, Standard 4 was met.
122. Standard 5: Equipment: Furniture, equipment and toys are provided which are appropriate for their purpose and help to create an accessible and stimulating environment. The issue of the suitability of toys and equipment was raised by the Mrs Thomas and Mrs Lawton several times over the years. The evidence presented showed Mr Thorley's inability to take on board the need to ensure that appropriate toys were available for all the age ranges and it seems to be an indication of his inability to differentiate between the different developmental stages of children that he could not adapt the equipment appropriately. We did not consider that the evidence showed that sufficient change had been made for this standard to have been met, so that it remains not met.
123. Standard 6: Safety: The registered person takes positive steps to promote safety within the setting and on outings and ensures proper precautions are taken to prevent accidents. The issue of safety was crystallised in the evidence relating to the climbing frame. This was initially placed indoors restricting the space available to the older children. We saw photographic evidence of the climbing frame in use outside on the flagstones without any suitable protective mats underneath. Despite the evidence presented, Mr Thorley stated in oral evidence that they had always used the cot mattresses around the climbing frame when used outside. We found the evidence of Mrs Lyons who stated that she had seen the cot mattresses in use only on her most recent visit, to carry more weight, because she has been advising over several visits on appropriate safety protection around the frame. However, Mr Thorley's inability to recognise the dangers of the climbing frame in its various settings was, in our view, an indicator of a deeper failure to identify important issues when caring for young children. The other relevant issue in this context was that of the management of children who climbed on the table in the playroom. Mr Emery was adamant that the table was only 18" high. If a child falls even from that height, it is possible to break a limb and suffer significant injury. He gave oral evidence that he was watching a child climb up on to the table and jump down again. He insisted that the child was not in any danger. We have concluded that this reflects significant lack of perception of the risks to children from falls even from a relatively low height, and reflects an inability to recognise relevant dangers for young children. Overall, we concluded that there was clear evidence that this standard is still not met. We were surprised that Ofsted had not raised the issue of the locked front gate in the context of the difficulties which emergency services might encounter in gaining access to the property in the event of an accident or an emergency, which we consider would have been a relevant consideration, as suggested by Mrs Lyons in her evidence.
124. Standard 7. Health: We have considered the evidence of the inspectors that improvements were made in relation to the promotion of hygiene and hand-washing. It was acknowledged in oral evidence by Mrs Thomas that the practice in relation to nappy changing had improved significantly since the inspection in 2006, so that it was no longer a concern for the inspectors in terms of hygiene. We have, therefore, concluded that overall, there has been improvement in the awareness and that the standard is now met.
125. Standard 8. Food and Drink: "Children are provided with adequate food and drink in adequate quantities for their needs." There were two aspects to the inspectors' complaints under this standard, the quality of the food offered and the frequency with which it was offered. We were not persuaded by the argument that the quality of the food was such as to make it nutritionally unsound for the children: although good practice would dictate that children should be encouraged to eat a wider range of food, including unprocessed food, we did not entirely agree that there is an issue about offering children fish fingers and sausages in the context of a mixed and varied diet. On each visit where the food was recorded by the inspectors, there were vegetables and fruit served with fish fingers or sausages, and on one visit "Lamb" was recorded although the cut and method of preparation of the meat was not.
126. Of far greater concern to the Tribunal were the times noted when children were offered neither food nor drink and the manner in which the younger children were kept waiting for their lunch whilst the older ones ate, watching them in the kitchen eating. There was also a recorded example of lunch being one portion short and two children having to share their food. It is once again the lack of planning and structure, which is so important to young children and which is vital in terms of their health and well-being, where food is concerned, which is missing from The Manor. There is evidence that a child had been present at the setting from 7.15am and was not seen to be offered food or drink until 12.30pm. We found the evidence in relation to meeting this standard the most disturbing in terms of the length of time that children went without being offered food or drink and it is on that count that the Appellants failed to meet the standard, and because of the continuing concerns, we were not satisfied that sufficient consistent improvement had been shown so that the standard is still not met.
127. Standard 10 was not in dispute, being the only standard to have been met at the inspection.
128. Standard 11: "Adults caring for children in the provision are able to manage a wide range of children's behaviour in a way which promotes their welfare and development." In this context, there was a long history of complaints that children's behaviour was not being appropriately managed. There had been a complaint by a parent in 2001 because a child had been locked in a room. Mr Thorley then admitted that he did, as a last resort, lock children up if they became unmanageable, but that he had since ceased the practice. The outcome of the investigation was to identify a concern about no written behaviour policy, yet neither of the Appellants saw a need to consider training to address the issue and seek possible alternative strategies at managing child behaviour. In the evidence there was mention of use of a "naughty corner", "naughty cot" and "naughty rug", despite the fact that the inspectors did not consider such methods appropriate. There was also a description of Mr Emery's use of pointing and inappropriate methods of behaviour management, when he was there as an assistant. Despite the fact that such measures may be used on television, it does not mean that they are appropriate in a paid care setting. We found that the evidence supported the conclusion that appropriate behaviour management strategies were not in place and again the lack of training and refreshing the knowledge base about child development was conspicuous by its absence and would have been of far greater benefit to the Appellants.
129. Other concerns in the context of managing behaviour were from the length of time when children were recorded as being in their cots without interaction or stimulation by adults. We found the records of times when the younger children were spending in costs very long, and the lack of interaction seen, even if it was interpreted as being in the context of a visit by the inspectors which clearly caused Mrs Thorley distress, is unsatisfactory. Young children need stimulation and interaction to develop and to learn to behave in an appropriate way. We found that the evidence supported the conclusion that the standard was not and is still not met, despite the limited improvements noted.
130. Standard 12: Working in partnership with parents and carers: In our view, the evidence presented in the appeal supported the conclusion that this is an area of strength for the Appellants. They produced in evidence letters from parents supporting the quality of provision and Mrs Griffiths a parent who had used the setting for several years had glowing praise for their practices. During the course of the Ofsted inspections, this area had been improved significantly, with written contracts being put in place, written policies prepared and support from the parents for the work done. We found on the evidence presented in the appeal that this standard is now met.
131. Standard 14: Documentation. Concerns have been raised in the inspection reports relating to the maintenance of documentation at the Manor for many years, starting with Mrs Varley's report of insufficient child details being recorded in 1999. Improvements have been noted and there is evidence of a significant change in the system of record keeping, to which improvement, Mr Emery's assistance appears to have played an important part. We are concerned about the length of time it has taken for the Appellants to understand the importance of maintaining proper records, which indicated to us that they were slow to grasp the importance of careful record keeping to support the welfare of the children. We were provided with copies of the most recent employment application and information forms and we are satisfied that the procedures are now in place to ensure that sufficient information is kept within the setting. We have concluded that record-keeping and documentation have improved sufficiently to state that the standard is now being met.
132. We therefore return to Standard 1 and the question of the suitability of the Appellants to act as childminders. The standard supporting criteria starts with a reference to the childminder complying with all conditions of regulation. It has been a major concern and a recurring issue in relation to the Appellants that they have regularly been found to be minding children over their registered numbers. Both were prosecuted in 2006 and fined on three counts, yet they continued to mind over their numbers. This was the single most serious area of concern for the Tribunal. The number of recorded breaches of the condition of registration by minding over the numbers was shocking. Even after being successfully prosecuted for three offences, within months, the number of children was found again to be over that stipulated by the certificate of registration. Although Mr Thorley gave evidence that this was not intended as a blatant disregard to the law, we take the view that it was. There were invariably reasons or excuses for the lapses, yet we have concluded that it is very unlikely that by coincidence some mishap would occur consistently on the days when the inspectors visited. We accepted the evidence of the inspector that Mr Thorley admitted that they were frequently over their numbers, because all the indications from the evidence point to that statement being true. At the same time, we also accept the evidence that Mr Thorley found it difficult to say "No" to parents. The child who arrived early on the 11 July 2006 may have been unexpected but Mr Thorley was too nice to stand his ground and to insist to the parent that he was risking further prosecution or worse, the loss of his livelihood, if he accepted the child without sufficient adults to ensure the appropriate adult: child ratios. From the documentary evidence before us, it was clear that the over minding had been a feature at the Manor from at least 1999, and we cannot be satisfied that it has ceased, because every time the Appellants were found out, there was a statement by Mr Thorley that it would not happen again, but it did.
133. We noted that on several occasions Mr Thorley stressed that the Appellants had done their best to try to comply with the National Standards. Our conclusions on the appeal reflect the extent to which they failed to do so. We have concluded that the failure to grasp the purpose and intention of the Regulations and Standards is a significant difficulty in making a finding of suitability. This is compounded by the failure to ensure that the assistants appointed were suitable, properly trained, supervised and directed in their work. On the basis of the evidence, we have found that both the appellants did not meet National Standard 1.
134. The final part of the guidance to the standard refers to the requirement to notify Ofsted of the intention to employ an assistant. Regulation 6 of the Regulations provides that a registered person shall notify, amongst other things, changes in the persons caring for children, either before they happen, as soon as reasonably practicable or within 14 days after they happen. It is clear from the evidence presented that this point had not been grasped by the Appellants, despite the fact that Mr Thorley claimed to have read the National Standards, the guidance and the Regulations. The reports by Mrs Lyons from early 2006 pointed him in the direction of these documents, yet he did not appear to take on board the fundamental point of having to notify Ofsted of changes. Consequently, there was a duty to notify Ofsted in respect of Corinne Holmes, even if she was only employed for one day, as was a duty to notify of the other assistants employed by the Appellants. We have concluded that the failure to comply with this standard has been clear and continues up to the date of the hearing.
135. We were very surprised to note how little mention was made by the inspectors of Annexe A to the National Standards. At the time of the inspection in July 2006, ten of the children on roll at the setting were aged under 2 years. There are additional criteria to Standard 6 in relation to checking on sleeping babies and considering appropriate toys and equipment. There are also additional criteria in relation to food and drink, care, learning and play (Standards 3 and 8). We were very concerned about the evidence presented about the lack of interaction between Mrs Thorley and the assistants and the younger children. It is our view that interaction and stimulation are very important aspects of the development of young children and that the concept of young children spending periods of up to an hour in a cot, awake and without interaction from an adult is totally inappropriate. Similarly, we were struck by the fact that no comment was made anywhere about there being only one high chair in the setting when so many young children were on roll. There was a new strategy of recording nappy changes put into place in response to the inspection findings but we were concerned that this indicated a strict time system rather than a response to the needs of the individual child. Nappy changing especially is not an activity that is conducive to a strict time-led response. It is our view that the evidence produced from the observations of the inspectors, together with the comments already made in the context of the individual standards led us to the conclusion that the additional criteria under Annexe A in relation to food and drink and care, learning and play were not met.
136. We have considered whether the Appellants failed to comply with the Regulations particularly Regulation 6, Regulation 6A relating to complaints and the keeping of records pursuant to Regulation 7. We have already recorded our finding in relation to Regulation 6 above, and found that compliance had still not been attained. We accepted Mr Thorley's evidence that a complaint record had recently been put in place, although there were few complaints received by the Appellants, most being sent directly to Ofsted. In the past there have been clear breaches of the Regulation in the failure to keep a complaints record and the failure to investigate complaints and to report the outcomes to parents. The keeping of records is also a historical concern, which has been put right, gradually, over time. At the time of the hearing, we were satisfied that the Appellants were now in compliance with Regulation 6A and 7.
137. The issue relating to the employment of assistants is one that has proved very difficult for the Appellants to address. Once again, they succeeded in putting in place the necessary documentary process of obtaining information about the assistants, but seemed unable to comply with the requirements by obtaining the necessary references to satisfy not only Ofsted but themselves, of the suitability of those whom they intended to employ. Perhaps the weakness of this aspect of the process is not surprising given Mr Emery's attitude to written references. Nevertheless, the evidence we considered in the application forms and the observations of the inspectors was that the process of considering the appropriateness of assistants, their experience and attitude was not sufficiently robust for them to be satisfied that they were appropriate people to look after young children.
138. The replies to the issues identified in the appeal as set out in paragraph 47 are summarised therefore as follow:

i) The Appellants failed to comply with National Standards 1,2,3,5,6,8,11,13 and 14 and Annexe A.

ii) The Appellants failed to comply with Regulation 6 relating to the provision of information.

iii) The Appellants did not have suitably robust strategies in place to ensure that all other persons looking after children at The Manor were suitable to look after children under the age of eight. The recruitment policy improved during the course of the appeal but could not shown to have operated effectively in relation to the appointments made up to the date of the hearing.

iv) The Appellants did not comply with the conditions on their registration in that they frequently minded a greater number of children than was identified in their registration condition. We have found that there was a culture of over-minding prevalent at The Manor, which was not addressed during the course of the appeal.

v) The premises were found to be unsuitable for a long period but during the course of the appeal, improvements were made and we concluded that the suitability of the premises was satisfactory by the time of the hearing.

139. In respect of the cooperation with Ofsted, we noted that two of the witnesses expressed how polite and pleasant Mr Thorley had been with them, and that was reflected in our own impression of him. Unfortunately, we did not have an opportunity to meet Mrs Thorley to hear her evidence. There is clear evidence, however, from the recorded comments by Mr Thorley that the visits from Ofsted caused considerable stress and caused Mrs Thorley to become particularly distressed. Mr Thorley's evidence at the hearing indicated a lack of understanding of the roles of the inspectors and the other persons that he dealt with: he had expected some kind of mediation service from Mrs Lyons, whereas she felt that she had been clear in explaining her role and the purpose of her visits. We concluded that Mr Thorley had little understanding of the respective roles of the agencies involved. The most dispiriting aspect of the lack of understanding is that the Appellants appear to have paid little heed to the contents of the inspection reports prepared by Ofsted: Mr Thorley's oft-repeated mantra that all the inspections prior to Mrs Lawton's involvement had been fine was, on the basis of the evidence in the written reports from 1999 to 2002, clearly wrong. Issues had been raised at every inspection visit since 1999 yet, Mr Thorley convinced himself that there were no problems prior to Mrs Lawton's involvement as Team Leader.
140. We have concluded that the length of time taken to admit the inspectors into The Manor was a clear indication of the reluctance with which they were received. The difficulties and delays in admitting inspectors were reported on several occasions and we noted that Mrs Lyons did not encounter a problem when she attended The Manor in her capacity as Child Care Coordinator, whereas she had done in 2004, in her previous role as Ofsted inspector. We have concluded that there was a reluctance to work with the inspectors or to acknowledge their role, and very sadly for the Appellants, a failure to grasp the relevance of the inspection reports as tools with which to address problems for the future. We accepted the evidence from Mr Thorley that over the years there were differences of opinion between individual inspectors about how things should be done, however, he was not sufficiently strong minded to look objectively at his own practice and to consider why various criticisms were made: had he made himself familiar with the National Standards and the guidance, he might have understood why criticism was made and how he could remedy it.
141. We did not accept the allegation that there was a vendetta conducted by Mrs Lawton with the intention of closing The Manor. She undertook her duties with the interests of the children as her focus, and we did not accept that there was evidence to support the allegation that she was working to any other agenda. The Appellants' perception that she had a personal vendetta against them was not supported by the evidence presented at the hearing. We have concluded, however, that the perception led to the Appellants' inability to cooperate with Ofsted, a situation that continued up to the date of the hearing.
142. Are the Appellants suitable to look after children under eight years old? This is the most important question in the appeal. We have a discretion to conclude that they are still suitable and to refuse to confirm the cancellation of their registration. On the evidence, we have concluded that we cannot do so. We were conscious throughout the appeal of how pleasant a person Mr Thorley appeared, a quality that would be cherished by many young children and their parents, in a carer. However, it is not sufficient on its own, when the responsibility for promoting the development and protecting the welfare of those children rests on the ability of the person to manage a business, direct assistants and plan and prepare a daily routine, including the food and drinks of a large number of children. We have identified at length, the areas where we felt the Appellants did not meet the National Standards and each inspector in turn was asked when giving oral evidence, whether in their opinion the Appellants could make sufficient changes through appropriate training and support, to meet the statutory requirements. None of them considered that to be the case. We, too, have reached the same conclusion. The failure of the Appellants to understand the process of registration once Ofsted became involved in the monitoring, to be proactive in seeking up-to-date and relevant training and information and responding to the reports made by the inspectors, have in our view, shown them to be incapable of meeting children's needs appropriately and effectively. They had a long time to put things right, from the first inspection in 2004 to the hearing in 2007, but failed to do so, except in the limited areas identified. They became increasingly focussed on the perceived injustice of the system, rather than the means of putting things right and it is our view that they continue to be unable to make the necessary changes to offer a sufficiently high standard of care for children under the age of eight.
143. During our deliberations, we considered whether there were any conditions that could be imposed in order to allow the registration to continue, but we could not identify any relevant conditions which were appropriate, because the burden of the high level of continued support and monitoring could not be justified given the very limited progress made in the course of the appeal.
144. This is the unanimous decision of the tribunal.

Order

It is ordered that the decision to cancel the registration of Mr J Thorley and Mrs K V Thorley as child minders under section 79 of the Children Act 1989, issued on the 20 October 2006 is confirmed.

Mrs Meleri Tudur

Chair

Mrs Bridget Graham

Mr Ronald Radley

31 August 2007