England and Wales Care Standards Tribunal

Vaissiere v Ofsted [2008] EWCST 1330(EY-SUS) (17 July 2008)
Suspension of registration


JULIE ANN VAISIERRE

-and-

OFSTED

[2008] 1330.EY-SUS

-Before-

Mr Simon Oliver

(Deputy President)

Ms Bridget Graham

Mr Mike Jobbins

Decision

Heard on 11^th July 2008 at Rugby Magistrates Court, Rugby, Warwickshire.

Representation

The Appellant did not attend and was not represented

For the Respondent: Ms K Olley (a barrister)

Appeal

1. The Appellant appeals to the Care Standards Tribunal ("the Tribunal") against the Respondent's decision dated 9th June 2008 to suspend her registration for 6 weeks until 21st July 2008.

Preliminary Matters

2. On the day of the hearing Ms Vaissiere was not in attendance at the start of the hearing. We therefore asked our London clerk to telephone Ms Vaissiere to find out if she was intending to attend. We were told that she was not because she had had to obtain a job working nights, that she had just (at about 10.30 am) got up, that she had not had a chance to read the bundle and that it was obvious what was going to happen as she had not yet been interviewed by the police. Ms Vaissiere said that she could not see the hearing going anywhere today and that she did not intend to come.

The Law

3. The Respondent has a duty under Part XA of the Children Act 1989 ("the 1989 Act") to regulate childminders and ensure that they remain qualified for registration.
4. Section 79B(3) of the 1989 Act provides so far as is material as follows:

"(3) A person is qualified for registration for child minding if

(a) he, and every other person looking after children on any premises on which he is or is likely to be child minding, is suitable to look after children under the age of eight..."

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

5. Section 79C(1) of the 1989 Act provides that:

"(1) The Secretary of State may, after consulting the Chief Inspector and any other person he considers appropriate, make regulations governing the activities of registered persons who act as child minders, or provide day care, on premises in England."

6. Section 79D of the 1989 Act provides as follows:

"(1) No person shall-

(a) act as a child minder in England unless he is registered under this Part for child minding by the Chief Inspector;…"

7. Under section 79H of the 1989 Act, the Secretary of State has a power to make regulations to provide for the registration of any person for acting as a child minder or providing day care to be suspended for a prescribed period by the registration authority in defined circumstances.
8. The Day Care and Child Minding (National Standards) (England) Regulations 2003 were made under section 79C of the 1989 Act. Regulation 4(2) and 5 are particularly relevant to this case:

Regulation 4(2) provides as follows:

(2) A registered person who acts as a child minder, or provides day care, on premises shall –

(a) comply with the requirements of these Regulations;

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

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

Regulation 5 provides as follows:

(1) A registered person shall not give corporal punishment to a child for whom he acts as a child minder or provides day care and, so far as is reasonably practicable, shall ensure that corporal punishment is not given to any such child by –

(a) any person looking after children on the premises;

(b) any person in charge; or

(c) any person living or working on the premises.

(2) A person shall not be taken to have given corporal punishment in breach of paragraph (1) if the action was taken for reasons that include averting an immediate danger of personal injury to, or an immediate danger of death of, any person (including the child himself).

9. The National Minimum Standards (NMS) for under 8s day care and childminding set out a baseline of quality which providers must meet. Some of the concerns which have been drawn to Ofsted's attention raise questions as to whether these NMS are being met and whether consequently children are exposed to the risk of harm. Some of the relevant NMS are set out below:

National Standard 1 – Suitable Person

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

National Standard 2 – Organisation

The registered person meets required adult:child ratios, ensures that training and qualifications requirements are met and organises space and resources to meet the children's needs effectively.

National Standard 7 – Health

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

National Standard 9 – Equal Opportunities

The registered person and staff actively promote equality of opportunity and anti-discriminatory practice for all children.

National Standard 11 – Behaviour

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.

10. In England the registration authority is the Her Majesty's Chief Inspector of

Education, Children's Services and Skills in England (in other words the

Respondent): section 79B(1) of the 1989 Act. The Regulations which have been made under section 79H(1) of the 1989 Act are the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003 ("the Suspension Regulations").

11. Regulation 3 of the Suspension Regulations 'Power to suspend registration' provides as follows:

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

(2) The purposes of the suspension are-

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

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

12. A suspension is to be lifted at any time where the Chief Inspector is satisfied that the grounds for suspension no longer apply: Regulation 7(1) of the Suspension Regulations. This applies whether or not a written request has been made, but Regulation 7(2) provides for a person whose registration has been suspended to make a written request to the Chief Inspector, at any time, for the suspension to be lifted.
13. Regulation 8 of the Suspension Regulations provides for a right of appeal to the Tribunal against a decision to suspend registration or a refusal to lift the suspension when requested to do so. The Tribunal's powers in relation to the appeal are set out in Regulation 8(2).
14. The procedural rules governing the method of appeal and the way in which the Tribunal handles appeals are contained within the Protection of Children and Vulnerable Adults and Care Standards Regulations 2002 ("the Tribunal Regulations"). Schedule 7 thereto stipulates the specific procedural issues relating to suspension appeals.

The Evidence heard

Background:

15. On 9th June 2008 Ofsted received concerns via two of the Appellant's assistants regarding her physical and emotional treatment of children in her care and, in particular, allegations of assault of the children.
16. On the same day, Ofsted contacted Leicestershire Social Services ("Social Services"). Social Services advised Ofsted that a 'Chapter 13' investigation would take place. This refers to the agreed procedure to be followed when allegations are made against a person who works with or is in contact with children. Social Services also advised that they approved of Ofsted's decision to issue a suspension notice to the Appellant.
17. Also on the same day, Ofsted held a case review. A suspension notice was hand delivered to the Appellant. It states:

"…The reason we are suspending your childcare service is because we have reasonable cause to believe children are, or may be, exposed to a risk of harm.

The purpose is to allow time for the circumstances to be investigated. We have based this decision on the following information.

On 09 June 2008, Ofsted received information of a child protection nature. This information raised concerns about your treatment of children in your care, and in particular the allegations relate to your treatment of four of the children you provide care to. The allegations do indicate use of corporal] punishment.

We are aware that you have notified Ofsted of some allegations which have been made against you today.

This information has been passed on to Social Services, who will be conducting their own investigations, and this information may also be passed on to the police to investigate in partnership with Social Services.

Ofsted will investigate the concerns in due course in relation to the National Standards after social services and the police have conducted their own investigations.

Before taking this step, Ofsted has considered whether or not the matter could be dealt with in any other way, but is of the opinion that this step is an appropriate and proportionate response in this case. The relevant legislation supporting Ofsted's action is set out in the annex to this letter.

We will review the suspension regularly. We will lift the suspension when we are satisfied that the grounds for suspension no longer apply.

We will try to complete our investigation as soon as possible. Where it is not possible to do so within the initial six week period, we may extend your suspension for an additional six weeks. In exceptional circumstances we may extend your suspension further; for example, if we are waiting for other agencies to complete their investigations.

Sometimes we are limited to the amount of information we can tell you during an investigation. The accompanying information sheet tells you why we cannot do so…"

18. On 17th June 2008 the Appellant contacted Ofsted regarding her suspension. She made an application for her suspension to be lifted which was received by Ofsted on 19 June 2008. Ofsted advised her by telephone on 20th June 2008 that after consideration of the request her suspension was not going to be lifted. Ofsted also contacted Social Services to advise them that the Appellant wanted information in relation to her suspension which Ofsted was unable to provide due to the fact that these allegations were the subject of an investigation. Ofsted wrote to the Appellant as follows on 20th June 2008:

"…Our reasons for refusing to lift the suspension are:

…Ofsted have not received any information since your suspension on 09 June 2008 which reduces the risk of harm to children.

Ofsted are not the lead agency investigating the concerns and at present Social Services and the police will be the lead bodies investigating the concerns initially.

In addition, we are aware that when a suspension notice was issued to you on 09 July 2008, you admitted to the childcare inspector that you had tapped a child on the hand. Ofsted see this as inappropriate behaviour management and a form of corporal punishment, and this information therefore does not reduce concerns of risk of harm to children at this stage…"

19. We heard evidence from Ms De-Lastie who confirmed that the contents of her statement were correct. Ms De-Lastie said that the Ofsted investigation had not started yet as they were still waiting for confirmation by the police that Ms Vaissiere had been interviewed by them. Although the police had said that Ofsted could investigate any of the allegations except for the allegation of corporal punishment so that there was no "contamination" of the interview, Ofsted felt that it was inappropriate to look at things other than as a whole and was not willing to look at matters separately as there were not separate allegations.
20. Ms De-Laistie said that if the police had not carried out the interview by 21^st July 2008 there would be an internal review and discussions with the police but would probably impose a further suspension. If matters were not completed by the end of that second 6 week suspension there would have to be a very clear rationale for a further (3^rd) period of suspension and there would need to be a discussion with managers to see if it was proportionate. Ms De-Laistie was very keen that the police interview took place very soon.
21. Ms Wright also gave evidence. She too confirmed that the contents of her statement were true. Ms Wright understood that the police had taken the statements from witnesses/parents. Ms Wright also confirmed that the police had said that Ofsted could undertake a simultaneous investigation and interview but that they could not ask about the alleged assaults until the police had interviewed Ms Vaissiere.

Submissions by Ofsted:

22. The test of 'reasonable cause to believe' within Regulation 3 of the 2003 Regulations is lower than that of the balance of probabilities. The Tribunal held in the case of LM v Ofsted [2003] 181.EY-SUS as follows in relation the standard of proof to be applied by the Tribunal:

"28. It is clear to us that the question that the Tribunal must ask itself on an appeal is whether there is reasonable cause to believe that the continued provision of child minding may expose a child being minded…to the risk of harm.

29. The standard is not the same standard as that which is applied in care proceedings …and which has been adopted by the Tribunal when dealing with appeals of persons placed on the Protection of Children Act list…In that area the test which is applied is the balance of probability…

30. On the other hand, the standard is not the same as that applied in s47 Children Act investigations. That section refers to the duties on a local authority to investigate "when they have reasonable cause to suspect" that a child is suffering or is likely to suffer significant harm."…The trigger to commence an investigation is a low one.

31. We are of the view that "reasonable cause to believe" falls somewhere between the balance of probability test and "reasonable cause to suspect" in s.47. We agree…that the belief is to be judged by whether a reasonable person, assumed to know the law and possessed of the information, would believe that a child might be at risk…"

23. It was also established in LM that post-decision facts should be made available to the Tribunal: paragraph 33.
24. This approach in relation to both the issue of the standard of proof and as to the ability of the Tribunal to look at the situation as it is at the date of the hearing was followed by the Tribunal in K v Ofsted [2003] 191 EYSUS: paragraphs 5 and 14 respectively.
25. In AG v Ofsted [2003] 232.EYSUS the Tribunal stated:

"12. We can formulate the approach that the Tribunal should take in these cases as follows. The Tribunal should look at the facts as they exist at the time of the hearing. When considering these facts, the Tribunal should ask itself two questions. The first of these questions is whether there is reasonable cause to believe that the continued provision of child minding or day care by the appellant exposes or may expose one or more children to whom it is or may be provided to the risk of harm. The second question is whether the suspension is to allow time for circumstances giving rise to the Chief Inspector's belief to be investigated and/or to allow time for steps to be taken to reduce or eliminate the risk of harm. In our opinion, the Tribunal should consider the questions separately…"

26. In MP v Ofsted [2005] 0618.EYSUS the Tribunal confirmed that it is not appropriate for Ofsted, when considering a suspension of registration, or the Tribunal when considering an appeal against a suspension decision, to reach a conclusion as to whether or not the underlying allegations are proved: paragraph 'd' of the Tribunal's conclusions. The Tribunal in MP also implicitly accepted (paragraph 'a' of its conclusions) that Ofsted is not necessarily the primary investigatory agency and accepted that if Ofsted were to conduct parallel investigations this might prejudice police enquiries. It may be necessary for Ofsted to wait for police and Social Services enquiries to be conducted before being in a position to initiate its own investigation.
27. The Tribunal's approach in LM et al was confirmed recently in JBS v Ofsted [2007] 1109.EY-SUS (paragraphs 18 and 19). The Tribunal in JBS v Ofsted also stated:

"36. The tribunal reminded itself that this is an appeal against suspension and that no final decision has been made. The purpose of a suspension is to allow investigations to be carried out by the Respondent as provided by the Suspension Regulations. We noted that there was some complaint by the Appellant at the amount of time that was being taken to carry out the investigations and that he and his witnesses were not told where to send their information. We can understand his concern however there is [a] set procedure for investigations of allegations such as this, and a statutory time scale for the enquiries by the Respondent.

…

38. [The] Respondent's first duty is to the children being cared for and we appreciate that [the] Respondent wishes to get further information about the original allegation and any further allegation that has been made prior to concluding its investigation. On that basis we are dismissing the appeal…"

28. The Appellant is currently being investigated in relation to the allegations of assault that have been made and the concerns raised about her treatment of the children. The police are involved and will be taking statements and speaking to the Appellant under caution. Until this has been concluded, it is not possible for Ofsted to provide more information.
29. However, it is submitted that in view of the serious nature of the concerns a reasonable person, presumed to know the law and possessed of the information available, would believe that children might be at risk if the provision of childminding by the Applicant was continued. It is submitted that the suspension was properly and lawfully made and was an appropriate and proportionate step to take to allow time for the circumstances giving rise to the allegations to be investigated.

The findings of the Tribunal on the evidence

30. There is very little, if anything, to find on the evidence in this case. We know nothing about the alleged assaults as the investigations are at an early stage. Ofsted, quite properly, came to the conclusion that it would not be appropriate to undertake a partial simultaneous investigation and so there is no detailed evidence of the alleged assaults for us to consider.
31. We are not able to consider any evidence but, of course, we do not have to determine the truth of the allegations at this stage.

Conclusions

32. We adopt the analysis of the legal test we have to apply as set out above. Our test is not, therefore, to consider the truth or otherwise of the evidence – that is for the final hearing. We have to ask ourselves two questions. The first of these is whether there is reasonable cause to believe that the continued provision of child minding or day care by the appellant exposes or may expose one or more children to whom it is or may be provided to the risk of harm. We accept that the "reasonable cause to believe" test is lower than those used in Children Act proceedings. We are only aware that there are allegations of corporal punishment made against Ms Vaissiere. Like her we are unaware of the detail save that we do have the anonymous statement of a mother in our bundle. That statement is dated 12^th June 2008.
33. We are aware that these are serious allegations and that they are at an early stage of investigation. Given the limited evidence we have available to us from what we have read, we have come to the conclusion that there IS reasonable cause to believe that the continued provision of child minding or day care by the appellant exposes or may expose one or more children to whom it is or may be provided to the risk of harm. We can only rely on the statement from the parent as there is no other information to go on.
34. The second question is whether the suspension is to allow time for circumstances giving rise to the Chief Inspector's belief to be investigated and/or to allow time for steps to be taken to reduce or eliminate the risk of harm. The answer to that is clear. Yes, the suspension is to allow time for investigations to take place.
35. In the circumstances we have come to the conclusion that we have to dismiss this appeal.

Concluding Remarks

36. We appreciate that this is a serious matter to be hanging over Ms Vaissiere's head and would urge Ofsted to press the police for an early resolution of their investigations so that Ofsted can carry out their own investigations very quickly.
37. Although we have dismissed this appeal that does not mean that is the end of the matter. If there is a further period of suspension imposed by Ofsted, there is a right of appeal against that and any further periods of suspension. Of course, it is a matter for Ms Vaissiere to decide if there is any point in lodging a further appeal against suspension until at least the conclusion of the police investigation or interview but she does have the right to do so should she wish. Likewise, if the final decision is to cancel registration Ms Vaissiere would have a right of appeal at that time against that decision.
38. Given that we have read the papers we will order that any future applications should be reserved to us (if we are available). This will ensure that there is consistency. Likewise, at the request of Ms Olley we will make both a restricted reporting order and an order excluding the press and the public from this and any future hearing.

Accordingly, our Unanimous/Majority decision is:

Order:

1. APPEAL DISMISSED

2. Under Regulations 18 and 19 of the Tribunal Regulations, we make a restricted reporting order and a further order that the press and members of the public be excluded from the hearing in order to safeguard the welfare of the children involved in this matter.

3. We reserve any further applications and/or hearings to ourselves, if available

Mr Simon Oliver

(Deputy President)

Ms Bridget Graham

Mr Mike Jobbins

Date: 16^th July 2008