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

RM v Ofsted [2009] UKFTT 30 (HESC) (06 April 2009)
Schedule 2 cases: Childminders and Day Care Providers for children
Cancaellation of registration

In the First-Tier Tribunal (Health, Education and Social Care)

RM (Appellant)

-v-

OFSTED (Respondent)

[2008] 1357.EY

- Before -

Maureen Roberts (Nominated Tribunal Judge)

James Black (Specialist Member)

Michael Jobbins (Specialist Member)

Decision

Heard on the 24^th February 2009 at Pontefract County Court Pontefract Yorkshire.

The Appellant represented herself.


The Respondent was represented by Mr. P Greatorex of Counsel instructed by Mr. D Brown of the Treasury Solicitor.

Prior to the hearing the tribunal read the bundle which set out the background to the appeal included statements from the Appellant and the Respondent's witnesses David Asher, an Area inspector, and Diane Turner, a Childcare inspector, for the Respondent.

1. The Appellant appeals to the tribunal against the Respondent's decision dated 14^th July 2008 cancelling her registration, as a day care provider.
2. An order was made under Regulation 29 that the hearing be conducted in private. The Restricted Reporting Order of the 28 November 2008 under Regulation 18(1) prohibiting the publication (including by electronic means) in a written publication available to the public, or 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, will continue in effect until this Tribunal shall order to the contrary. We are satisfied that these orders are necessary in this case to safeguard the welfare of the children and the private life of the people involved in this matter. We believe that the orders should continue and therefore individuals, except professional witnesses, are referred to in this decision by initials only. The decision will be published with the Appellant's name reduced to her initials.

The decision

3. This appeal is dismissed on the preliminary point that the Appellant has no premises available to her. The parties' submissions on this are set out below. In coming to our decision, the tribunal were mindful of the background to the matter and we set this out briefly.

The background.

4. The appellant has been in child care for over twenty years and since 1993, has run a day care facility. In 1993 the Appellant registered as a day care provider at the family's former home, a bungalow and has provided care for up to 25 children at that premises. The Appellant stated that she took children from many backgrounds and had a number of children referred by the Local authorities who paid the fees for them. The conditions of registration provided that she may care for no more than 25 children under 8 years ; of these not more than 16 may be under 3 years at any one time, and of these 16 not more than 10 may be under 2 years at any one time. She was not permitted to provide overnight care.
5. From 2003 there were a number of complaints about the facility. In September 2003 there was a complaint that no deputy had been provided in the Appellant's absence; in January 2004 that the premises were not clean; in October 2004 that the Appellant had been shouting at children and staff; in May 2005 a complaint about hygiene; in May 2005 an allegation that a baby had been force fed; in July 2005 there were concerns about staffing and feeding of children. These were investigated by the Respondent and no specific actions taken.
6. The Respondent also carried out regular inspections. On 28 April 2006 the inspection stated that 'The quality and standards of care are inadequate. The registered person does not meet the National standards for under 8's day care and childminding. The standards of the nursery education are satisfactory.' In December 2006 there was an inspection which judged the nursery care and education provided to be satisfactory.
7. In July 2007 there was a complaint to the East Riding local Authority that the Appellant had shouted at a child and left him/her unsupervised. This was investigated by the Respondent and four actions were raised to prevent a recurrence. There was also a complaint about the staff toilet being broken. In October 2007 an Environmental Health Officer from the East Riding of Yorkshire Council visited the premises and found 4 contraventions of food safety legislation.
8. On 12 November 2007 there was a complaint about the care of the children made to the Respondent by a parent. The Respondent visited the premises on the 13 November and raised 3 actions. On the 15 November the respondent received additional child protection concerns from the East Riding Safeguarding Children Board (ERSCB). The ERSCB started the child protection strategy procedure with a meeting on the 20 November. On the 16 November 2007 the Respondent asked the Appellant to accept a voluntary agreement not to be present at the nursery during the hours that the children were cared for, while the complaints were being investigated. Subsequent voluntary agreements were signed by the Appellant and she did not attend the nursery while the children were being cared for until the expiration of the final agreement in the middle of June 2008 by which time the nursery had closed, on 30 May 2008. This meant that she could only attend the premises when the children were not present. On the 11^th February 2008 there was a further inspection which concluded that the quality and standards of care, and education were inadequate.
9. The Respondent and ERSCB continued with their investigations and interviewed staff. On the 12 February 2008 the Appellant was interviewed by the Respondent in the presence of her solicitor. On 6 March 2008 the Respondent decided that in light of the ongoing concerns surrounding the nursery that cancellation of registration was the 'most appropriate and proportionate action to take'. On 16 April 2008 the Respondent sent a Notice of Intention to Cancel registration and the Appellant lodged her objection on the 29 April. On the 3 June 2008 there was an Objections Panel hearing attended by the Appellant. The Respondents' decided to uphold the decision to cancel and a letter of cancellation was sent on the 14 July 2008. It is against this decision that the Appellant appeals.
10. By the time of the Objections Panel hearing in June 2008 the building used by the nursery was about to be repossessed. Since then the property has been repossessed and has been sold. It is therefore not available to the Appellant and she has no other premises. She has started work in a different field though we accept that she would prefer to be in child care and may wish to return to that field in the future.
11. The appellant felt very strongly that the complaint in November 2007, by a parent/employee has been malicious and without foundation. She considered that she had been given no alternative to signing the voluntary agreements as she had been told that otherwise she would be compulsorily suspended. She also felt that she had not been told what was happening and had had no legal redress to put her point of view.

The Law.

12. The Appeal Application, against cancellation dated 8 August 2008 and the Response to the Appeal dated 5 September 2008 were expressed in terms of the statutory scheme of the Children's Act 1989.This scheme has now been repealed and superseded by the Childcare Act 2006 (the 2006 Act).

12. Paragraph 18 of the Childcare Act 2006 (Commencement No 5 and Savings and Transitional Provisions) Order 2008 (SI/2008/2261) provides as follows;

"Appeals against steps mentioned in section 79L (1) of the 1989 Act

18.—(1) This paragraph applies where an appeal has been made before the transfer date to the Tribunal under section 79M(1) of the 1989 Act against a step taken by the Chief Inspector mentioned in section 79L(1), in respect of which the Tribunal has not reached a decision under section 79M(2).

(2) The appeal shall be treated, from the transfer date, as being an appeal under section 74

(appeals) of the 2006 Act.

(3) Where this paragraph applies, an appeal falls to be decided as if the step in respect of which the appeal is brought had been taken under the 2006 Act."

13. The transfer date means 1^st September 2008.This appeal was started as an appeal under s 79M (1) and therefore the appeal is treated as an appeal under s 74 of the 2006 Act. We have set out the relevant parts of the sections of the Act and regulations as apply to this matter.
14. Section 36 of the 2006 Act –

"Applications for registration; other early years providers" provides for prescribed requirements to be made for registration. These are set out in Part 1 of Schedule 2 of the Childcare (Early Years Register) Regulations 2008 (SI2008/974).

SCHEDULE 2

Applications for registration: other early years providers

PART 1 Prescribed requirements for registration

Requirements relating to the applicant

1.  The applicant is suitable to provide early years provision.

2.  Where the applicant is an individual, the applicant has provided an application for an enhanced criminal record certificate in respect of themselves to the Chief Inspector.

3.  The applicant will secure that the proposed early years provision meets the EYFS learning and development requirements.

4.  The applicant will comply with the EYFS welfare requirements.

5.  The applicant has carried out an assessment to identify any risks to the health or safety of children for whom early years provision is to be provided, arising from—

(a) the relevant premises (including the means of access to and exit from those premises),

(b) any equipment there, and

(c) the activities to be provided there. "

Regulation 2 – Interpretation

In these regulations -

'relevant premises' means in relation to early years provision by a person, the premises or part of the premises on which that early years provision is provided or will be provided.

15. Section 68 of the 2006 Act - Cancellation of registration

(2) The Chief Inspector may cancel the registration of a person registered under Chapter 2, 3 or 4 if it appears to him—

(a) that the prescribed requirements for registration which apply in relation to the person's registration under that Chapter have ceased, or will cease, to be satisfied,

16. Section 74 of the 2006 Act – Appeals

(1) An applicant for registration or (as the case may be) a registered person may

appeal to the Tribunal against the taking of any of the following steps by the

Chief Inspector under this Part—

(in this case) (e) the cancellation of his registration.

(2) An applicant for registration or (as the case may be) a registered person may

also appeal to the Tribunal against any other determination made by the Chief

Inspector under this Part which is of a prescribed description.

(3) A person against whom an order is made under section 72(2) may appeal to the

Tribunal against the making of the order.

(4) On an appeal the Tribunal must either—

(a) confirm the taking of the step, the making of the other determination or

the making of the order (as the case may be), or

(b) direct that it shall not have, or shall cease to have, effect.

(5) Unless the Tribunal has confirmed the taking of a step mentioned in subsection

(1)(a) or (e) or the making of an order under section 72(2) cancelling a person's

registration, the Tribunal may also do either or both of the following—

(a) impose conditions on the registration of the person concerned;

(b) vary or remove any condition previously imposed on his registration.

17. Section 75 of the 2006 Act - Disqualification from registration

(1) In this section, "registration" means registration under Chapters 2, 3 and 4.

(2) Regulations may provide for a person to be disqualified from registration.

(3) The regulations may, in particular, provide for a person to be disqualified from

registration if—

(in this case) (f) he has at any time been refused registration under Chapter 2, 3 or 4 of

this Part of this Act or under Part 10 or Part 10A of the Children Act

1989 (c. 41) or any prescribed enactment, or had any such registration

cancelled;

18. Sectiion 76 of the 2006 Act - Consequences of disqualification

(1) This section applies to—

(a) early years provision in respect of which the provider is required by

section 33(1) or 34(1) to be registered,

(b) early years provision in respect of which, but for section 34(2), the

provider would be required to be registered,

(c) later years provision in respect of which the provider is required by

section 52(1) or 53(1) to be registered, and

(d) later years provision in respect of which, but for section 53(2), the

provider would be required to be registered.

(2) A person who is disqualified from registration by regulations under section 75

must not—

(a) provide early years or later years provision to which this section

applies, or

(b) be directly concerned in the management of early years or later years

provision to which this section applies.

The premises.

19. In the Respondent's response to the appeal it was noted that the Appellant had notified the Respondent 'that the premises have been repossessed and placed on the market.' The Respondent submitted "Where a registered provider ceases to have access to premises and has no expectation that he or she will regain access, s 79G(1)(b) of the Children Act 1989 allows registration to be cancelled on that basis alone. (See Women intercessors (UK) ltd. V Ofsted [2005] 645.EY."
20. The tribunal decided that the issue of the non availability of the premises was a preliminary point. The Tribunal had a copy of the decision (Women Intercessors) and a copy was given to both parties. In that case the premises used by the day care minder were not available but there was the prospect that it could be made available again if the registration continued.
21. In that case it was agreed that "a person cannot be registered in the abstract because registration must always be in respect of particular premises. That much is clear from sections 79A(6), 79B(4) and 79F(2) of the Children Act 1989. Counsel for the Respondent referred us to six other provisions in the Act, six in the Regulations and four in the National Standards that reinforce the point. This appeal could therefore not be allowed in the absence of any premises. "
22. The tribunal in that case then went on to consider previously decided cases and the law. It addressed the circumstances and gave guidance as to when it would be appropriate or inappropriate to hear a case when premises were not available, (paragraphs 31 to 58 of the decision). The central points made in that case and relevant to our decision were as follows;

"50. In relation to the provision of day care, section 79B(4) has the effect that a person cannot be regarded as qualified for registration save in respect of identifiable premises and section 79F(2) therefore has the effect that a person cannot be granted registration if there are no relevant premises at the time the decision is made. Equally, where a registered provider ceases to have access to premises and has no expectation that he or she will regain access, section 79G(1)(b) must allow registration to be cancelled on that ground alone if the registration has not already been resigned.

56. The first question for a tribunal hearing an appeal after premises have been sold (apart from any issue there may be as to possible access to the relevant premises) is therefore whether to cancel registration on the simple ground that the provider does not have access to the relevant premises or to consider other issues. We consider that a pragmatic approach should be taken. If the parties cannot persuade the tribunal that there is some practical advantage to be gained from considering other issues, the tribunal should cancel registration on the sole ground of lack of premises. If the parties can persuade the tribunal that there is some practical advantage in giving a decision on other issues, the tribunal should do so.

57. It seems to us to be unlikely that there will be any practical advantage in considering other issues unless the appellant is a registered provider in respect of other premises or intends, or is likely in the future to wish, to make a further application for registration. We doubt that a mere wish by an appellant to clear his or her name will be enough if there is no prospect of him or her seeking registration in the future. However, it is unnecessary for us to decide that point."

23. We followed the guidance in this consideration by the tribunal of the effect of the loss of premises on the procedure at appeal. The statutory scheme has changed since the start of the appeal however we accept that the provisions in question regarding availability of premises remain the same in their effect. The Childcare (Early Years Register) Regulations 2008 (quoted above) refer to 'relevant premises' and registration must always be in respect of particular premises.

The parties' submissions

24. The Respondent referred the tribunal to the Womens' Intercessors case cited above. It relied on the findings in that case to support its application that the appeal should be dismissed as there would be no practical benefit from the appeal proceeding.
25. The Respondents informed the tribunal that the Appellant had insurance and that the outcome of the hearing might have a bearing on the Insurers response to a claim by the Appellant for losses arising from the cancellation of registration. The Appellant confirmed that she had insurance and that the company was disputing a payment to her. She did not maintain that the tribunal decision would be critical in the outcome of negotiations with the insurers. We gave no further weight to this point.
26. The respondent clarified their position about a possible referral to the Children's barred List and the Adults' barred list and stated that there would be no referral to either list.
27. The Appellant outlined her work experience which had been, until recently, exclusively with children. She had also been involved with the Scout movement and the school PTA and the after school club. She had voluntarily withdrawn from these so as to avoid any problems for these organizations. She said that there was a very good chance that she would try for fostering. She might also apply for a disqualification waiver in due course if she wanted to go back into child minding or day care.
28. The Appellant put to the tribunal that she had had no legal voice and no legal rights. She said that for 6 months she had felt like a criminal and had not known what was alleged against her. She had not been able to defend herself and it had been a very stressful time. She believed that the complainant in November 2007 had been malicious in her complaint and that the Respondent had failed to listen to the Appellant's concerns on this point.
29. The Appellant said she knew that the nursery was not perfect but that once the complaint had been made and the investigation by ERSCB had started then other inspections had taken place by the Respondent and the other departments of the East Riding of Yorkshire Council e.g. the environmental health department inspected the premises and found fault with various matters. She said that her staff had been terrified by all these inspections and she had lost half her staff and then half of the placing parents.

The decision

30. The Appellant has to accept that her registration is cancelled in that it is person and premises specific and the premises are no longer available. We accept that she would like to work with children again and possibly to run a day care facility but she has no immediate plans to do so.
31. We explored the practical consequences for the Appellant of the cancellation of registration and it was clear that these had, in part, been raised at the direction hearing (28 November 2008). After the direction hearing a letter (dated 9 December 2008) had been written by the Respondent's solicitor to the Appellant outlining the effect of cancellation. We were given a copy of it at the hearing on the 25^th February 2009. It stated;

'A person who is disqualified cannot;

1. register, be directly concerned in the management of, or be employed at any registered childminding or childcare service;

2. register, manage, have financial interest in or be employed at a children's home; or

3. foster a child privately.

In respect of (1) and (2) the letter explained that a disqualified person can apply to Ofsted to have the disqualification waived and that Ofsted consider each request on its own merits, taking into account the reasons for the disqualification, the length of time since any circumstance leading to the disqualification, and the risk to children.'

32. We noted that there would be no referral to Children's Barred list or the Adult's Barred list and this will mean that the Appellant can continue with much of her voluntary, community and school work.
33. The Appellant can apply for a waiver of the disqualification and no doubt if she did so, the substantive matters would then be heard.
34. It is not accurate to say that the Appellant has not known the charges or been able to defend herself in that she had a solicitor during the proceedings from November 2007 and during the preparation of her case. Initially she was expecting to be legally represented but had been told that this would not now be provided by the insurers. She had a meeting in February 2008 with the Respondent and an Objections hearing in June 2008. The full transcript of that hearing was in the bundle.
35. We note the Appellant's anger and concern with the Respondent's actions. However the Tribunal is a court of law and much as we might like to help the Appellant to vent her feelings that is not our role. She may have legitimate concerns which she could raise through other channels.
36. The statute law and regulations together with the ruling in the Womens' Intercessors case make the position of the tribunal clear. We dismiss the appeal solely on the grounds that the Appellant has no longer got the premises for which she was registered. We make no findings on any of the grounds of cancellation given by the Respondent.
37. The appeal is dismissed.

Maureen Roberts

(Nominated First-Tier Tribunal Judge)

James Black

(Specialist Member)

Michael Jobbins

(Specialist Member)

Date: 6^th March 2009

Decision amended under Rule 44 of The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008

Date 16^th April 2009