England and Wales Care Standards Tribunal

Jennifer Duncan
-v-
Ofsted
[2007] 0986.EY
-Before-
Ms Andrea Rivers Ms Michele Tynan Mr Peter Sarll
DECISION

Heard on 16^th and 17^th October 2007 at the Civil Justice Centre, Birmingham

Representation

For the Appellant: Abigail Burdon (appellant's friend)

For the Respondent: Paul Greatorex (Counsel)

1. This is an appeal brought under Part XA of the Children Act 1989, as inserted by Section.79(1) of the Care Standards Act 2000. It is an appeal against the respondent's decision, dated 21 February 2007, to cancel the appellant's registration as a childminder. The appellant was registered to care for six children under the age of eight, in her own home.

Preliminary Matters

2. On 5 September 2007 a direction was made under Regulation 18(1) prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any child living in the appellant's household or cared for by her. The order was to last until the start of the hearing. The tribunal decided to extend this order for the period of the hearing and to consider then whether to extend it further. Since no individual child was specifically identified during the course of the proceedings it would serve no purpose to do so and accordingly we do not extend it.
3. At the beginning of the hearing Mr Greatorex raised the fact that one of the tribunal members, Mr Sarll, had sat on a separate appeal concerning a previous cancellation of Mrs Duncan's registration. He said that the Respondent had no objection to Mr Sarll's hearing this matter. Mrs Duncan was then asked if she had any objection and after briefly considering the matter she said that she too was content for the hearing to proceed.

Background

4. Mrs Duncan first began working as a childminder in around 1999. She told us that at that time she was a single parent living with her young son.
5. She said that she had married Donald Duncan in August 2003 and although there is an issue as to exactly when he moved in to live with her and her son, it is common ground that this was no later than the date of their marriage and that he continued to live in her home, at 3 Victoria Road, Handsworth, until at least June 2007.
6. On 27 March 2004 Mrs Duncan was minding a child outside her normal working hours and left that child unsupervised and unrestrained in a car whilst she went into a shop. This led to her being arrested and cautioned for an offence of child cruelty and to a decision by Ofsted to cancel her registration. Her appeal to the Care Standards Tribunal against this decision was heard on 28 February 2005 and 1 March 2005.
7. At that hearing Ofsted's case was based not simply on the offence itself, but also on Mrs Duncan's failure to provide them with details of the names and address of the child and the child's parents. The most senior member of staff who gave evidence told the tribunal that the offence itself would not have been sufficient to justify cancellation, had it not been for Mrs Duncan's subsequent attitude to it.
8. That tribunal, however, found Mrs Duncan to be "genuinely remorseful" and accepted her assurances that she now "realised her responsibilities to read and understand and maintain all the National Standards". They allowed her appeal.
9. On 9 May 2006 Ofsted received a telephone call from a social worker, the keyworker of children minded by Mrs Duncan. She reported serious allegations made to her by the mother of these children, concerning Mrs Duncan's son. The mother had also alleged that her children had witnessed domestic violence whilst in Mrs Duncan's care. Ofsted suspended Mrs Duncan's registration while they investigated the allegations.
10. On 12 May 2006 Mrs Duncan wrote to OFSTED asking them to lift the suspension. In her letter she disclosed that the police had forcibly entered the premises about four weeks before and had found marijuana in her son's room. All this had happened early in the morning before childminding hours, and when a parent had arrived with a child she had explained to them the reason for damage to her door and the parent had been satisfied with her explanation. She said that she had had no idea that her son smoked at all, let alone cannabis, and that in any case he only lived with her on a "part-time basis", sleeping there only at weekends. Ofsted, however, did not lift the suspension but continued with their investigation.
11. On 12 July 2006 they received a statement from PS Simon Hill, setting out the following details of police involvement with Mrs Duncan's son:

i) On 4 July 2005 he was arrested during a drugs search in Victoria Road and received a penalty notice.

ii) On 10 October 2005 he was found in possession of a small quantity of herbal cannabis at another address in Handsworth and received a caution.

iii) On 22 April 2005 he was stopped driving a motor vehicle near Victoria Road and found to be in possession of five wraps of herbal cannabis. He was convicted and fined £50. He was also dealt with for motoring offences for which he was disqualified and fined. He was made the subject of a community supervision order.

iv) On 5 April 2005 police entered the house at 3 Victoria Road on a search warrant and found a quantity of herbal cannabis, cling film and scales in his bedroom. He was charged with intent to supply drugs.

12. In addition the statement set out details of the following police involvement with Mrs Duncan and her husband:

i) On 10 January 2004 she reported being physically pushed and shoved by her husband but did not wish to take any further action.

ii) On 28 February 2004 she reported that he had hit her and made threats to kill her son.

iii) On 11 May 2004 he was arrested for allegedly assaulting her, but not charged.

iv) On 4 October 2005 she reported that he was being abusive to her but he had left by the time the police arrived.

v) On 16 March 2006 police received notice of a non-molestation order and power of arrest in respect of Mr Duncan.

vi) On 6 April 2006 Mr Duncan alleged he was being attacked by Mrs Duncan and man armed with a knife whilst he was collecting his clothes but the matter was not pursued.

13. Shortly before receiving this information, Teresa Taylor, an Ofsted inspector, and Susan Crawford, a team manager, had interviewed Mrs Duncan to "discuss her suitability for registration". During the course of the interview she eventually disclosed most of the information about police involvement with her son, although she said that he never smoked marijuana on her premises. She showed the inspectors a six month lease agreement for a flat she had rented for her son for the period July 2006 to January 2007, to demonstrate that he would no longer be living with her.
14. So far as the allegations in relation to her husband were concerned, she said she had called out the police on one occasion to calm him down because of his "noise" and that raised voices were a normal part of married life. When asked about the injunction she said that she had started proceedings but dropped them, and that there had never been any violence or significant problems between her husband and her son.
15. In any event she did not feel that any of this was relevant to her work as a child minder as it related to events outside childminding hours, and she therefore did not see why it was necessary for her to disclose it. She also complained that the National Standards did not make it clear that it was necessary to inform Ofsted of events and circumstances which occurred outside childminding hours.
16. On 7 August 2006 Ofsted wrote to Mrs Duncan notifying her of their intention to cancel her registration and informing her of her right to challenge their decision at an objection hearing.
17. We were shown two letters from Mrs Duncan to Ofsted, dated 19^th and 20^th September, in response to the Notice of Intention, objecting to the cancellation of her registration and asking for a hearing before an objection panel. At that time she was unable to provide them with suitable dates for such a hearing as she said she needed to gather more information and would get in touch with them as soon as possible about dates.
18. On 4 January 2007 Mrs Duncan's solicitors wrote to Ofsted enclosing copies of the sworn statement and subsequent court orders relating to the injunction proceedings,
19. Her sworn statement contained the following allegations against her husband:

i) that the day after their marriage in August 2003 he had shouted at her and pushed her;

ii) that in December 2003 he had hit her neck with his shoe;

iii) that in December 2005 he had been abusive to her and when she had tried to call the police he had grabbed a mobile phone that was on a lead around her neck and pushed her into a nearby chair;

iv) that in January 2006 when he received a letter from Mrs Duncan's solicitors, warning him about his behaviour he had reacted in an aggressive and intimidating way towards her;

v) that in February 2006, during the course of an argument between them he had picked up her young granddaughter who was visiting at the time and taken her out of the room;

vi) that in March 2006 he had been verbally abusive to her and had left abusive and intimidating voice messages on her mobile phone;

vii) that in March 2006, during the course of an argument, he had forced her get up and go downstairs and had shouted and sworn at her;

viii) that she was fearful of her safety because of his violent and unpredictable behaviour when angry.

20. On the basis of this evidence she had been granted a non-molestation injunction, with power of arrest attached, on 9 March 2006, to continue until 31 August 2006. On 27^th June 2006 the injunction and power of arrest had been discharged by the court, at the request of Mrs Duncan.
21. The objection hearing took place shortly after Ofsted had received these documents. This was some five months after the Notice of Intention to cancel Mrs Duncan's' registration and the reasons for this delay were not explored at the hearing before us.
22. The outcome of the objection hearing was that Ofsted decided to confirm their decision and this was communicated to Mrs Duncan in a letter dated 23 March 2007.
23. On 17 April 2007 Mrs Duncan appealed to this tribunal against Ofsted's decision.
24. On 27 June 2007 the police wrote to Ofsted informing them that Mrs Duncan had been cautioned for an offence of using "threatening/abusive/insulting words likely to cause harassment". The letter states that she had informed the police that she had a Notifiable Occupation as a child minder.

The Law

25. The relevant legal provisions are as follows:

Children Act 1989

Section.79B(3) provides that:

A person is qualified for registration for child minding if –

(a) he…is suitable to look after children under the age of 8 and

(b) every person living…in the premises is suitable to be in regular contact with children under the age of 8 and

(c) he is complying with regulations under s79C

Section.79C empowers the Secretary of State to make regulations "governing the activities of registered persons who act as childminders…"

Day Care and Child Minding (National Standards)(England) Regulations 2003

Regulation 4(2) provides that:

A registered person who acts as a childminder shall:

(a) comply with the requirements of these regulations and

(b) meet the requirements of the National Standards

Regulation 6 provides that:

(i) A registered person shall notify the Chief Inspector of the occurrence of any of the events set out in Schedule 2 to these Regulations and shall at the same time provide him with any information specified in that Schedule in respect of that event.

(ii) Notification shall be made:

(a) where it is reasonably practicable to do so, in advance of the event occurring; and

(b) in all other cases as soon as reasonably practicable, but not later than 14 days, after the event has occurred.

Schedule 2 is entitled "Events to be Notified to the Chief Inspector". Two of the categories of information listed are relevant to this case. They are found in:

s1:

(1) In the case of childminding, a change of the following persons:

…(b)any person living….on the premises.

(2) The information to be provided is the new person's date of birth, full name, any former names or aliases and home address.

s12:

Particulars of any other significant event which is likely to affect the suitability of the registered person…to look after children.

National Standards

26. Although Ofsted referred in their reasons for cancellation to some of the National Standards, we did not find that these added significantly to matters already referred to in the Children Act and the Regulations referred to above.

Burden and Standard of Proof

27. In Peter Jones v CSCI[2004]EWCA Civ 1713, which was a case concerning the registration of a care home, the court found that the burden of proof is on the appellant in applications for registration. In SJ v OFSTED [2004] 344.EY the Care Standards Tribunal, referring to this case said: We consider that the same public interest considerations [as in care home managers] apply to the equally important position of a childminder. For these reasons we find the burden of proof to rest with the appellant in this case. It was for her to show that she was suitable to be a registered childminder.
28. The standard of proof is the civil standard, namely, balance of probability.

The Evidence

29. Ofsted's evidence included correspondence, notes of their investigations and of interviews with Mrs Duncan, a copy of her sworn statement for the injunction application and copies of the orders made by the court.
30. Mrs Duncan's evidence included: letters of support from parents; a letter from her solicitor to Ofsted, enclosing her affidavit and the court orders from the injunction application; and a copy of a 6 month tenancy agreement for a property for her son with a covering letter from an estate agent, dated 3 October 2007, indicating that he was still living there even though the contractual period had expired. There was also a letter from Mr Duncan to Ofsted, dated 14 March 2007, taking responsibility for what had happened and asking them to re-consider their decision.
31. We heard evidence from Manjit Singh, Ofsted area manager for the Midlands, on behalf of the respondent, and from Jennifer Duncan, the appellant.

The Respondent's Case

32. Ofsted's case in support of cancellation was that Mrs Duncan had failed to inform them of significant events, relevant to her registration as a childminder, in breach of her statutory obligation to do so. She had not told them about her marriage, or that her husband was now living at 3 Victoria Road. She not told them about her son's involvement with the police, about the injunction proceedings, or about her caution for harassment. Even when they had asked her about these matters she had been reluctant to provide the information they requested and some of the information she had eventually provided was not true.
33. She had not familiarised herself with the legal requirements for registration, despite having said she would do so at her previous appeal to this tribunal.
34. She herself was unsuitable to be a registered childminder and unsuitable people had been living on her premises from which she ran her childminding business. Any assurances she gave about things being different in the future could not be relied upon because of her untruthfulness and failure to keep the promises she had made at the previous tribunal hearing.

The Appellant's Case

35. Mrs Duncan's case was that she was a good childminder. Parents appreciated her services and no child had come to any harm in her care. Ofsted's complaints were about events which took place outside childminding hours and were therefore private matters. She said that the reference in Section 12 of Schedule 2 of the Regulations, to "any other significant event" was not precise enough and she could not be expected to understand what sort of event needed to be disclosed.
36. She told us that her son no longer lived with her and only visited occasionally, at weekends, and that her husband was now living with another woman. The caution for harassment was as the result of an incident when she had been seriously provoked by this woman, and had to be seen in the context of her distress about her husband's infidelity.
37. She said that her husband had never been violent to her and that her solicitors had advised her to make false allegations of violence in her sworn statement in the injunction proceedings as they said that this was the only way to get him out of the house. She told us that the statement she had made in these proceedings also contained an inaccurate reference to his violent behaviour and that although she had asked her solicitors to amend that paragraph, they had failed to do so.
38. In her statement she said that she had now read "the contract" in detail, and would comply with it. We understood this to mean the legal requirements for registration, but in her oral evidence she told us that she had been unable to obtain the necessary information about Regulations and National Standards; that despite requests to Ofsted they had not sent it to her, or if they did, it must have got lost in the post as some of her letters do go astray.
39. She also asked us to consider restoring her registration subject to conditions that she would:

(i) ensure that Mr Duncan did not enter the property and

(ii) in future, inform Ofsted immediately if anything of concern were to arise and seek advice from them if unsure as to whether or not to disclose a particular matter.

Findings

40. We were unable to make any findings based solely on Mrs Duncan's version of events because her evidence was inconsistent. The most obvious example of this was the fact that her sworn affidavit in the injunction proceedings described her husband as a violent and frightening man, whereas her evidence to the Ofsted inspectors and to this tribunal was that he was never physically violent but simply had a tendency to shout. In the absence of any other evidence about Mr Duncan it was therefore impossible for us to know whether or not he was a suitable person to live on the premises.
41. Similarly we can place no reliance on any assurances she gave us, or any conditions which she invited us to attach to her registration, because she had failed to comply with the assurances given to the previous tribunal, who had believed her and allowed her appeal. In their decision they record that they accepted that she now realised: "her responsibility to read and maintain and understand all the National Standards". Yet at the hearing of this current appeal, some three and a half years later, it emerged that far from having familiarised herself with them, she did not even know where they were to be found. Here again her evidence was inconsistent as her written statement appeared to confirm that she had read them in detail, whereas her oral evidence made it clear that she had not.
42. Her explanations for the inconsistencies were frequently implausible. She blamed her solicitors for persuading her to make false allegations, Ofsted for not sending her information, and the postal service for not delivering mail.
43. It was clear that she said whatever she felt would best achieve the outcome she wanted, whether or not it was true. This lack of truthfulness and openness is, in itself, sufficient to persuade us that she is not a suitable person to be a registered childminder.
44. Part of her case was that she should not be expected to disclose to Ofsted information about her private life outside childminding hours and that this information was not relevant to the safety and wellbeing of the children in her care. However, registration authorities frequently need to make judgments about the suitability of those whose work involves caring for children and vulnerable adults and they cannot make these judgments unless they can rely on the individuals concerned to be open and co-operative and to give accurate information.
45. Ofsted were entitled to expect Mrs Duncan to be frank and truthful with them, and to have read and understood the legal requirements for registration as a childminder. They needed to know that the children were being cared for by a suitable person in a safe and suitable environment and that unsuitable people were not living on the premises. It was Mrs Duncan's responsibility to satisfy them about all these things.
46. Despite our difficulties, as referred to above, in making findings based on Mrs Duncan's evidence alone, the statement of PS Simon Hill did provide us with reliable evidence of a number of events. This showed that there were at least one, and possibly two occasions when police had entered Mrs Duncan's premises. On one of those occasions they had entered on a search warrant and as a result of what they found they had charged her son with possession of cannabis with intent to supply. On four occasions between January 2004 and October 2005 she had called out the police, alleging domestic abuse and on March 9 2006 she had obtained a non-molestation injunction, with a power of arrest attached, which continued until 27 June, when the court discharged it at her request. As recently as 27 June of this year she had received a caution for harassment, which, according to her was in response to an altercation between her and her husband's new partner.
47. All this demonstrates to us that for some time her life has been turbulent and chaotic. For the reasons stated above, we cannot rely on her assurances that all this has now changed. Indeed, this is unlikely to be the case in view of the fact that the incident leading to her being cautioned for harassment happened less than four months ago. The statement of PS Hill is evidence that she has experienced continuing instability in her life, and in her home, from at least January 2004. In these circumstances we find it unlikely that she can provide a safe environment for childminding.
48. Taking into consideration all these things we find that she is unsuitable to be a registered childminder for the following reasons:

1) her inability to provide a safe and stable environment for children in her own home, due to the turbulent nature of her private life;

2) her repeated failure to notify Ofsted of significant matters, or to give honest and accurate information about these matters, in breach of her statutory obligation to do so.

3) Her failure to familiarise herself with the requirements of the Regulations or the National Standards, despite her assurances to a previous tribunal that she would do so.

Accordingly, our unanimous decision is:

APPEAL DISMISSED

Ms Andrea Rivers (Nominated Chairman)

Ms Michele Tynan

Mr Peter Sarll