First-tier Tribunal (Health Education and Social Care Chamber)

 [2009] UKFTT 278 (HESC)

JD

-and-

OFSTED

[2009] 1648.EYSUS

-Before-

Mrs Carolyn Singleton

(Tribunal Judge)

Ms. Michele Tynan

Mr. Jim Lim

Decision

Heard on 6^th November 2009 at Wolverhampton Magistrates Court, Wolverhampton, West Midlands.

Representation

The Appellant appeared in person. Ms. Ward of counsel appeared for the Respondent.

Facts of the Case

1. On 14th October 2009 the Respondent issued a notice suspending the Appellant’s registration as a child minder for 6 weeks. This followed an allegation being made by the parent of one of the children in the Appellant’s care that the child had been harmed whilst in the Appellant’s care.

2. The Notice of Suspension stated, inter alia;

“We are taking this step as we have reasonable cause to believe children are, or may be, exposed to risk of harm. The purpose of this suspension is to allow time for the circumstances to be investigated by the police.

We believe children are, or may be, exposed to a risk of harm due to a serious allegation of a child protection nature. The allegation, made on 9^th October 2009, is that a minded child has been the subject of harm whilst in your care. We are currently unable to give any more specific details regarding the allegation made, as to do so may prejudice the police investigation”

3. The Appellant lodged an appeal against the decision to suspend her registration on 21^st October 2009, the grounds being stated as “That the said allegation made against me is untrue as I do not recollect any occasion when a minded child in my care has been a subject of harm”.

Evidence for the Respondent

4. Counsel for the Respondent produced a copy letter dated 30^th October 2009 from Treasury solicitors which stated;

“…the Respondent understands that the police have not yet interviewed the Respondent but that they plan to do so soon. Accordingly, the Respondent is currently not able to disclose the substance of the allegations concerned because to do so may prejudice the ongoing police investigation.”

5. Barry Parnaby is a regulatory inspector within the Compliance, Investigation and Enforcement team of Ofsted. His statement, unsigned and undated, formed part of the bundle of evidence. On 13th October 2009 he attended a strategy meeting, the purpose being to discuss the allegations that had been received regarding a child cared for by the Appellant. Information received indicated that a referral had been made from Social Services stating that a parent had found unexplained injuries to their child. The child had been medically examined on 9^th October 2009 and the police had been contacted. At that meeting, it was confirmed that West Midlands Police would investigate the allegations

6. That same evening, a case review was convened and a decision was made to suspend the Appellant’s registration. Notice of that suspension was hand delivered by Mr. Parnaby to the Appellant.

7. In oral evidence, Mr. Parnaby told the Tribunal that the latest information from the police was that not all the witnesses had been interviewed. They still needed to interview the Appellant. He confirmed that, once the police have interviewed her, Ofsted will call a case review to consider the position.

8. Karen  De-Lastie is a senior officer within the Compliance, Investigation and Enforcement Team at Ofsted. Her statement is dated 30^th October 2009 and forms part of the bundle of evidence. It was her decision to suspend the Appellant’s registration. She confirmed that the allegation made against the Appellant is still being investigated. She had received an email from the police saying that they intend to interview the Appellant the week following the hearing. Because the Appellant has not yet been interviewed, no disclosure of the allegation had been made so as not to prejudice the investigation. She explained that, in making the decision to suspend, she took into account the fact that the police considered the allegation serious enough to warrant investigation. She also considered whether any other form of action by the Respondent would be a proportionate response. However, she concluded that children may be at risk in the light of all the information received. At the follow- up strategy meeting on 20^th October, it was clear that the police were still pursuing their enquiries. Ms. De-Lastie’s view was that the risk had not lessened and she concluded that the suspension should remain in place. She assured the Tribunal that the Respondent was mindful of the income of the Appellant being affected and they have been in regular contact with the police and Social Services. As soon as the Appellant has been interviewed by the police, the suspension will be reviewed. Ofsted’s aim would be to see the Appellant after her police interview. Ofsted’s concerns are continually expressed to the police and, if a stage is reached when they think matters have gone on too long, they will pursue their own investigation, regardless of whether other agencies, including the police, have completed theirs.

Evidence for the Appellant

9. The Appellant told the Tribunal the history of her relationship with Ofsted. She also told of a parent who had been difficult with her. She said that the allegation made against her, whatever it is, is false and asked for the suspension to be lifted.

The Law

10. The Childcare Act 2006 (“the Act”) came fully into force on 1^st September 2008. Section 69(1) of the Act provides for regulations to be made dealing with the suspension of a registered person’s registration. S.69(2) provides that any such regulations must include a right of appeal to the Care Standards Tribunal..

11. The Childcare (Early Years and General Childcare Registers) (Common Provisions) Regulations 2008 are made under S69(1) and(2). Regulation 8 provides that a registered person may be suspended by the Chief Inspector, by notice, in the circumstances prescribed in regulation 9 for the period prescribed in regulation 10.

12. The circumstances prescribed in regulation 9 are that the Chief Inspector reasonably believes that the continued provision of childcare by the registered person to any child may expose such a child to a risk of harm.

13. Regulation 12 deals with an appeal against suspension. It states;

(1) A registered person whose registration  has been suspended under regulation 8  may appeal to the First-Tier Tribunal against the suspension.

(2) On an appeal under paragraph (1), the First-Tier Tribunal must either -

   (a) confirm the Chief Inspector’s decision to suspend the registration, or

   (b) direct that the suspension shall cease to have effect.

14. The burden of proof is on the Respondent.

The Tribunal’s findings

15. There are no findings to be made on the evidence in this case. Quite simply, the Tribunal does not know what allegation has been made against the Appellant. It is accepted that the provision of details of the allegation at this hearing might prejudice the police enquiry. In any event, the Tribunal does not have to determine the truth of any allegation at this stage.

16. The question to be posed is whether there is a reasonable belief that the continued provision of childcare by the Appellant may expose  a child to risk of harm. The allegation was made on 9^th October and the enquiry is at a relatively early stage. However, given that the police are continuing with the investigation and wish to interview the Appellant and that the allegation appears to be supported by independent medical evidence the Tribunal concludes that such a belief is reasonably held Although the test in the 2008 Regulations focuses on whether the belief itself is reasonable, rather than whether the cause that gave rise to the belief is reasonable, (the test under the 2003 Regulations which were the predecessor to the 2008 Regulations), the Tribunal is of the view that the opinion expressed by its colleagues in  LM v Ofsted [2003] as to the standard of proof to be applied is relevant. The test is whether a reasonable person, assumed to know the law and possessed of the information, would believe that a child might be at risk.

17. Having considered all the evidence before the Tribunal, it is satisfied that the suspension should continue and the appeal be dismissed.

Concluding Remarks

18. The Tribunal is mindful of the fact that the Appellant’s livelihood is being seriously affected by this case.  Ofsted bear a considerable responsibility to continue to press the police to resolve their enquiry quickly so that Ofsted can bring about their own conclusions with some alacrity.

19. Although this appeal is dismissed, it is not the end of the matter. If Ofsted imposes a further period of suspension, there is a right to appeal against that and any further periods of suspension. Similarly, if the final decision is to cancel registration, the Appellant will have a right of appeal at that time against that decision.

20. The appeal is dismissed

CA Singleton (Tribunal Judge)

Ms. Michele Tynan

Mr. Jim Lim