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

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

[2010] 1774.EY-SUS

EH - appellant

v.

OFSTED - respondent

Before

Mr Brayne

Ms Diamond

Ms Rabbetts

Heard on the 11^th June 2010 at Gosforth Magistrates Court, Newcastle upon Tyne.

1. The respondent suspended the appellant’s registration as a childminder on 25.2.10, and renewed that suspension on 6.4.10.  The respondent refused the appellant’s application to lift the suspension on 19.4.10, and renewed the suspension on 21.5.10.
2. In her appeal of 26.5.10 EH says that she wishes to appeal against the decisions of 25.2.10 and 19.4.10.  However the effective decision at the date of hearing was that of 21.5.10 renewing her suspension, and we proceeded on the basis that this was the decision under appeal.
3. The Tribunal, by consent, makes a restricted reporting order under Rule 14 (1) (a) and (b) of the  Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, prohibiting the disclosure or publication of any documents or matter likely to lead members of the public to identify the appellant, her husband, her son, or the clients involved in the case, and directing that reference to them shall be by their initials or as Child 1, Child 2 and Child 3, so as to protect their private lives.   
4. The tribunal had a bundle of documents prepared by the respondent comprising 189 pages, together with further documents submitted by the respondent at the hearing. 
5. We also heard evidence from Karen De-Lastie, Senior Officer for Ofsted with the Compliance Investigation and Enforcement Team (CIE), and Jean Dunn, Regulatory Inspector for the respondent’s CIE team on behalf of the respondent, and from the appellant herself.  Each witness was examined, cross examined, questioned by the panel, and re-examined.
6. Mr Jack, Treasury Solicitors, represented the respondent, and Mr Vincent, from Vincents Solicitors, Fleetwood, represented the appellant.  Each made submissions at the end of the hearing.
7. We reach our decision to allow this appeal having taken careful note of the above written and oral evidence, and of the submissions.

The background

8. The appellant is a married woman. She was registered with the respondent in 2001 but had worked as a childminder registered by the local authority before then.  
9. There is no recent evidence of previous concerns as to her suitability.  However we were made aware of concerns which arose in 2004 and 2005, which we shall mention below.
10. The conditions of registration (according to the witness statement of LS) were:

• she may provide care for no more than six children under eight years, of these not more than three may be in the early years age group and of these not more than one may be under one year at any time;
• she must not use the first floor, except for the bathroom;
• she must not provide overnight care.

11. The appellant operates her childminding business from her home address.
12. She lives with her husband and her two sons.  One son, A, is now 16.  He attends a local school. 
13. We now know – though this information was first provided by the respondent in oral evidence, and the appellant was not previously informed – the following details of the relevant children.
14. Child 1 is a girl of 5 or 6 who, prior to suspension, was childminded by EH on Saturdays.  According to EH’s evidence, and not disputed by the respondent, Child1 was childminded approximately one Saturday every three or four weeks.
15. Child 2 is a girl of 6.
16. Child 3 is a boy of 8. 
17. Child 2 and Child 3 are brother and sister.  EH told us that prior to suspension she minded these two children during term time only, collecting them from the same school, together with one other client, bringing them to her home, their parents then collecting them later in the afternoon.

Events leading to the renewal of statutory suspension on 21.5.10

18. The respondent’s case is summarised in the response.  We have added additional undisputed detail from the written and oral evidence.  All dates are for the year 2010.
19. On 25^th February the respondent was notified by police that Child 1 had disclosed to her parent that A had asked her what underwear she was wearing and had put his hand inside her underwear.  This was alleged by Child 1 to have happened every time she attended.
20. The first suspension notice was issued to allow time for investigation.  Initially this investigation was by the police.  The parents of Child 1 refused permission for the police to interview her, and A denied the offence.  As a result on 18^th March the police notified the respondent that they were taking no further action. 
21. The local authority social services department advised they still had concerns and had not decided whether to take further action.
22. On 19^th March social services notified the respondent that Child 2 had disclosed to her parent that A regularly pulled down her pants while she was in the kitchen, and that A had also done this to Child 3. 
23. On 24^th March the respondent was informed by the police that they had re-opened their investigation, but permission to interview Child 2 was refused.
24. The police also told the respondent that they had interviewed parents of previously minded children.  No disclosures of sexual offending were obtained, but some children had disclosed inappropriate behaviours such as pulling trousers down.  (As there is no evidence that these children were themselves interviewed, we assume this means the above information was disclosed by parents or guardians.)
25. On 31^st March social services informed the respondent that they had re-opened their investigation.
26.  It follows that at some point between 18^th March and 31^st March social services had closed their initial investigation.
27. On 6^th and 9^th April respectively, police and social services informed the respondent that they were still investigating.
28. On 22^nd April the respondent attended a social services strategy meeting.  The respondent learned that the police were taking no further action. 
29. The respondent decided on 22^nd April to commence its own investigation.
30. Ms Dunn, on behalf of the respondent, visited and interviewed the appellant on 27^th April.
31. On 28^th April the respondent conducted a case review which concluded that the registration should be cancelled.  The recommendation was refused by principal officer, Ms Hindmarch, who considered there was insufficient information.  Ms Hindmarch set out a list of required actions.
32.  On 6^th May the respondent wrote to the police requesting information regarding the allegations.
33. On 7^th May when the respondent decided it needed further investigation including obtaining information from the police and interviewing the parents of Child 1 and Child 2.
34. On 21^st May the police advised that their investigation was concluded as the parents would not allow the children to be formally interviewed.  The respondent renewed the suspension on grounds that they needed time for their own investigation, and that the appellant had failed to accept that the incidents may have occurred and was unable to show how she would improve her practice in future to adequately safeguard the children.

The Law

35. The statutory framework for the registration of childminders is provided under the Childcare Act 2006. This Act establishes two registers of childminders: the early years register and the general child care register. Section 69 (1) Act provides for regulations to be made dealing with the suspension of a registered persons’ registration. The section also provides that the regulations must include a right of appeal to the tribunal.
36. Under the Childcare (Early Years and General Childcare Registers) (Common Provisions) Regulations 2008 when deciding whether to suspend a childminder the test set out in regulation 9 is

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.

37. The suspension shall be for a period of six weeks. That period of suspension may be renewed for a further six weeks, but the power of suspension cannot normally be exercised for a continuous period of more than 12 weeks (Regulation 10(3)
38. The period of suspension can exceed 12 weeks where it is not reasonably practicable for the Chief Inspector, for reasons beyond the control of the Chief Inspector, to complete the investigation into the grounds for belief of risk of harm.
39. “ Harm” is defined in regulation 13 as having the same definition as in section 31 (9) of the Children Act 1989, “ ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill treatment of another”.
40. The powers of the tribunal are that it stands in the shoes of the Chief Inspector and so in relation to regulation 9 the question for the tribunal is whether at the date of its decision it reasonably believes that the continued provision of child care by the registered person to any child may expose such a child to a risk of harm.
41. The burden of proof is on the respondent. The standard of proof ‘reasonable cause to believe’ falls somewhere between the balance of probability test and ‘reasonable cause to suspect’. 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.

Issues

42. The suspension must be lifted if we find that there is no reasonable basis for the belief that the provision of child care may expose a child to a risk of harm.  The respondent submits that that there continues to be such a risk.
43. The 12 week period referred to in Regulation 10 above expired on 20^th May.  It is therefore now for the respondent to show additionally that it has not been practicable to complete the investigation before that date, and that this is for reasons beyond the respondent’s control. 
44. Although Mr Jack initially denied in his submissions that delay was relevant, and maintained that the sole issue was risk, we approach the respondent’s case on the basis that the reason for the delay in completing the investigation is that the police have not complied with the request to provide details of the allegations.  We were not provided with any other basis or argument that earlier completion of the investigation was held up for other reasons.

Reasonable belief in risk of harm

45. Mr Vincent, on behalf of EH, accepted that the initial decision to suspend was justified.  We consider this an appropriate submission  Allegations that children were exposed to the sexual assaults alleged by Child 1 are very serious. If those events did take place, the children are not only at risk of harm but are actually being harmed.  The fact that, as EH told us, she did not for five minutes believe her son could have perpetrated such acts does not affect the reasonableness of the decision.  The respondent would be in gross breach of duty not to investigate and, in the interim, suspend a childminder in such circumstances.  This is not a reflection on the reasonableness of EH’s faith in her own son.  It is not necessary for the respondent to form a view that A did or did not commit the alleged acts at this stage.  That view is to be formed following investigation.
46. EH in her appeal, perhaps understandably, believes that when the police decided to take no further action, her son A was exonerated.  She cannot be expected to understand concepts such as burden of proof.  She believes her son to be innocent.  She has faith in him.
47. The respondent believes, however, that EH’s failure to consider that A might have behaved as alleged is itself evidence of failure to safeguard the children.  They believe that her claim that it could not have happened, as the children are never out of her sight even for a moment, is wholly unrealistic.  EH told this to Ms Dunn, and gave very detailed evidence in support of her claim that at no point, at any time, could a child be out of sight for even a moment.  Their case would be that if she makes unrealistic claims as to the level of supervision, then what she says about the supervision arrangements cannot be trusted, and that her certainty that her son did not assault, or have the slightest opportunity to assault, a child is not well-founded.  In other words, whether or not A did assault the children, she is not providing reliable evidence of understanding risk or of the actual supervision arrangements. 
48. Our own view was that EH gave answers with a level of certainty which cannot be accepted as wholly reliable.  We simply do not accept that that she would never answer the phone while she was looking after a child – for example, she must at times receive calls from parents to say they will be late; that she would never leave a child unwatched even while herself going to the toilet – we cannot see how this is possible; or that she would never answer the door without all children following her – which implies that a child enjoying for example cutting and pasting would put everything down every time the bell rings; and that there were no areas of the conservatory or garden where the children would ever be out of her actual sight – which was denied by Ms Dunn who had visited the premises and is virtually inconceivable architecturally.  She claimed a level of supervision which Ms Dunn told us in evidence Ofsted did not require or expect.  We therefore agree with the respondent that EH did not – for reasons we wholly understand in the context of seeking to deny the serious allegations against her son – give realistic thought to whether what was alleged could possibly have happened.
49. We therefore agree with the respondent that until the facts could be established more clearly, it was reasonable to hold the belief that the children minded by EH may be exposed to harm.  
50. The facts have still not been established clearly.  We will consider the reasons for this below.  But because they have not, the respondent is virtually no further towards understanding the level of risk than when the first, and then the second, allegations were made.  The respondent’s reasonable belief in the risk is the same and the issue is not whether the belief is reasonable, but whether the delay in investigating can be justified.

Practicability of completion of investigation

51. We concluded that the respondent has not shown that it was not practicable to complete the investigation within 12 weeks, and that the delay was at least in part attributable to the respondent’s own actions or inactivity.
52. Before explaining why we reached this conclusion, we note that the respondent did not appear to treat as important the need to provide the appellant, or in some cases this Tribunal, with available information.  Details of which children had made the allegations, and their age and gender, were not supplied until requested by the Panel, and then only after initial resistance to the question.  Parents of the three children have recently been interviewed by the respondent.  We were not provided with any detail, let alone transcripts or summaries.  We cannot put ourselves in the shoes of the Chief Inspector if the respondent fails to understand the importance of providing the Tribunal with the information available to the Chief Inspector. 
53. We also note that Ms Dunn was herself unaware of whether Child 2 had been interviewed by police.  It is clearly shown in the case records that this was reported as a fact in a meeting in April, yet Ms Dunn told us that the first she knew of this was when it was reported in the hearing.  That such an interview could have taken place without the officer with principal interest in this case recalling the fact, while purporting to be actively seeking to investigate the case for cancellation, is unacceptable.
54. Case records clearly show that a decision was made on 28^th April to cancel registration.  They do not show that a decision was made to recommend cancellation to the Principal Officer.  It must be inferred from the case meeting’s record that those present agreed that the investigation was adequate and was concluded.
55. However the Principal Officer is recorded as comprehensively rejecting the decision (or, as now described, recommendation).  Ms Hindmarch listed all the steps still required.  The respondent needed information on A’s mental health condition; a risk assessment was to be explored; EH needed to be asked if she understood the impact, if any, of A’s mental health condition; the respondent needed to decide what level and type of supervision was required by that level of risk;  that must include exploring what steps could be taken to mitigate against that risk and exploring whether EH and her husband, as A’s parents, knew about A’s needs; the respondent needed to get information from other professionals on A’s needs and risk; Ofsted needed to form its own view on risk; finally, the police needed to be asked for the information held by them.
56. As far as the evidence showed, virtually none of Ms Hindmarch’s concerns have been explored fully, or at all.  We had evidence, but no detail, that A may have been assigned a social worker, though in the paperwork prior to the hearing it appeared that social services were not involved with A any longer, having closed their files on the allegations against him.
57. The main justification put forward by the respondent for not having made a decision, and still investigating while the appellant is suspended, is the lack of information from the police.  If it is true that the police have failed to supply a statutory agency with the requested information, this is deplorable and should be raised at the highest level.  We are told that the police have been contacted frequently by phone as well as via a formal request. 
58. We note that the police were formally requested to provide the information on 6^th May.  The reason for not doing so as soon as this was identified as necessary – a week earlier at the review meeting – has not been supplied.  Even if that is taken as a legitimate starting point, we were informed guidelines for this kind of disclosure require the information to be provided within 3 weeks.  This period expired on 28^th May.  We were told that the respondent is now thinking about taking legal steps to compel the police to disclose.  However,  there had at the date of the hearing been a gap of almost two weeks from the end of the guideline period and the hearing, during which the only evidence was of thinking about taking legal steps to make the police disclose, and we had no assurance that there was any plan to put pressure on the police by use of legal process.
59. It is perhaps regrettable that the respondent prepared the case on the basis that delay was not relevant, as is evidenced by Mr Jack’s submissions to which we referred above.  Had they more clearly understood that two matters had to be proved, more concerted action might have been undertaken prior to the hearing; even if it had not we would have had clearer submissions showing why, in the respondent’s view, the delay was the fault of anyone but the respondent.  As it is, and bearing in mind the very serious nature of the allegations, and the suspension, both on the appellant’s livelihood and on the family as a whole, the respondent’s willingness to make premature conclusions and then fail to follow the clear advice of its principal officer has led to inexcusable delay.

Conclusions.

60. It is not necessary for this Tribunal to make findings of fact as to whether or not A did or did not behave as alleged.  If we were required to make such findings of fact, the evidence upon which we would have to do so would amount to no more than allegations of child 1 and child 2, of which only summaries exist.  The statements of the parents are not available to us.  In the case of Child 1 the allegation was passed to police by a parent who has then refused access to the child for purposes of interview.  In the case of Child 3 there has been no disclosure by the child, only by Child 2 on his behalf.  There are very vague allegations, not of sexual misbehaviour but of inappropriate behaviour, in undisclosed interviews with parents of previously minded children.  There is medical evidence from several years back of sexualized behaviour by A, vehemently denied by EH, and recorded as having ceased several years ago, once A was appropriately medicated.   The best that could be said on this evidence is that there is a possibility that inappropriate behaviour and/or sexual assaults have taken place. 
61. It could also be said that EH has not taken this possibility seriously, and has failed to show a proper understanding of the need to guard against such risk.
62. Both the possibility that the allegations are true and the possible failure of the  appellant to understand and guard against risk were valid and proper reasons for the initial suspension.
63. However the Regulations provide clear time limits for suspension during a period of investigating these matters, beyond which clear justification is required based on the impracticability of adhering to them, and also require that impracticability to be not the fault of the respondent.  We conclude that there has been a delay in dealing with these allegations which is not justified and which is, at least since the date on which police disclosure could be expected, the fault of the respondent.  The fact that, if the respondent’s explanations are true, the police have themselves failed to co-operate in a matter where they have presented no justification for such failure, is lamentable, but it does not justify a finding that the suspension should continue.
64. The appeal against the decision to suspend the appellant is allowed.

Mr Brayne, First Tier Tribunal Judge

Ms Diamond, First-tier Tribunal member

Ms Rabbetts, First-tier Tribunal member

15^th June 2010