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

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

Care Standards Tribunal

[2011] 1882.EY-SUS

LV - appellant

v.

OFSTED - respondent

Before

Mr Brayne

Mrs Diamond

Mr Braybrook

Heard on the 6^th April 2011 at the Care Standards Tribunal Mowden Hall, Darlington.

The appeal

1. The appellant appeals against the respondent’s decision dated 16^th March 2011 to suspend her registration as a child minder for six weeks until 26^th April 2011.

The legal framework

2. 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.
3. 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.

4. The suspension shall be for a period of six weeks. Suspension may be lifted at any time if the circumstances described in regulation 9 cease to exist.
5. “ 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”.
6. 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.
7. 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.

The hearing

8. The appellant asked for a determination on the papers.  The respondent agreed to proceed without a hearing.  We applied Rule 23 Tribunal Procedure (First-tier Tribunal)(Health, Education and Social Care) Rules 2008 and proceeded to make a decision without a hearing.  The panel met and determined the appeal on 6^th April 2011.
9. The tribunal had a bundle of papers including the decision to suspend, the appeal, the response to the appeal, witness statements from the respondent, with exhibits, and character references submitted by the appellant
10. The Tribunal 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, the child involved in the case, or any member of the families of these individuals, so as to protect their private lives.   

The background

11. The appellant was registered with the respondent in June 2007.  She is, according to the evidence in the witness statement of the respondent’s senior officer LH, registered on the Early Years Register for provision for children under 5; Part A of the General Register for provision for children aged over 5 and under 8; and Part B of the General Register, for children aged 8 or over.  There is no evidence of previous concerns as to her suitability. She was last inspected in February 2011 and was reported as good.
12. The conditions of registration (according to the witness statement of LH) were:

• she may provide care for no more than five 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, toilet and spare room;
• she may provide overnight care for no more than two children under eight;
• she may leave an assistant alone with children for short periods of time providing that the arrangements are agreed and confirmed in writing by parents and the requirements of the Early Years Foundation Stage and the Childcare Register continue to be met
• .when caring for four or five year old children who are in full time education, may increase the number in early years age group by the number of children in full time education, providing the maximum number is not exceeded

13. The appellant operates her childminding business from her home address.

Events leading to the issue of the notice of statutory suspension.

14. The respondent’s case, set out in the response, based on the evidence of witness DO’B and witness LH and supporting documents referred to above, is summarised in paragraphs 8 to 12 below. 
15. On 15^th March 2011 the Local Authority Designated Officer (LADO) for child protection for the relevant area contacted the respondent’s officer DO’B to report that she had been contacted by a hospital about a minded child having an unexplained injury.  Witness DO’B obtained further information in a later phone call.  A case review took place on 16^th March 2011 leading to the decision now under appeal. 
16. The case record exhibited to the statements of both witnesses provide the following additional detail. 
17. The information supplied by the hospital was of a “significant blow to the buttocks resulting in a bruise and part hand print.  Child is two years old. An entry by witness DO’B states that the “Parent collected chd from the childminder as normal.  She noticed a large raised mark/bruise on child’s buttock when she was getting them ready for bed.  Mum took the child to the GP, the GP made a CP referral.  Child attended a CP medical appointment today 15/3/2011 set up by the safeguarding team.  Determination was that this was non accidental injury and the child had received a significant blow to the buttocks, appears to be a slap mark…”
18. Witness DO’B obtained the following additional information from the LADO, recorded on 16^th March 2011: “Injury was found by child’s mum on Sunday 13^th March in the afternoon when she was changing child’s nappy.  Mum took the child to the GP on Monday 14^th March, GP made immediate referral and has said there is significant bruising to three quarters of the child’s buttocks, some smaller bruising on one buttock cheek and a crescent shaped small bruise, also linear bruising which appears to be finger marks.  [The LADO] said the child is mixed race so the bruising would have to be very significant to be seen.  The attending physician said the injury would have taken considerable force and the child would not have been wearing a nappy at the time.  The child had been in the care of the childminder on Sunday morning.  [The LADO] is not sure at this point if anyone else has had care of the child …”
19. An entry on the same day from a telephone call (caller identify not stated) indicated that the child was minded by the appellant on Saturdays and Sundays, while the mother worked between 7.00 and 15.00, meaning the child would have been collected from the appellant at about 15.30.  The bruising had been noticed in the evening when the child needed a nappy change.  The mother then contacted the childminder to see if the child had fallen or something had happened.  It is said that the appellant became defensive.
20. A further entry the same day records that the attending physician had said that the bruising was likely to have been caused by the child being smacked more than once with considerable force.
21. The decision was taken on that same day, and the record indicates the following justification: “This case meets the threshold for suspension, a child has received a significant non accidental unexplained injury and has spend significant time in the childminder’s care prior to the injury being discovered. Investigations need to be conducted by lead agencies and Ofsted to establish the cause of the injury and we need to ensure the CM remains suitable for registration. To allow her to continue to caring for children would place children at potential risk of harm.”
22. The respondent appears satisfied, as a result of an interview recorded on 28^th March 2011 that the mother was not responsible for the injury.   The same entry records that the police were investigating.

The appellant’s case

23. At the date of issuing her appeal, the appellant did not know what precise allegations she would have to meet.  She referred to reasons why the parent concerned might have some animosity towards her, in that the appellant had been contacted and asked to provide information about the parent to HM Customs and Revenue.  She referred to events on the day in question, including the arrival of the child with a nappy which needed changing   She says that the parent called her at around 2.30 on that day to ask the appellant if the appellant had seen a blue mark on the child’s bottom.  The appellant said she had told the parent if there was a complaint about her, it should be taken through appropriate channels.  She said that at 10.30 that evening the parent had called to say she was not accusing the appellant.
24. There is no record of any interview by the police or Ofsted with the appellant.  The appellant was seen by witness DO’B when the notice of suspension was delivered, but at that time was not given details of the allegations, and therefore had no chance to respond.  Information submitted to the Tribunal by the appellant relates to what is said about her demeanor on that occasion and need not be considered for the purposes of this appeal.
25. The appellant has supplied very positive testimonials by parents of other children she minds.
26. It can be inferred from what the appellant has said that she denies any conduct on her own behalf which caused the injuries to the child.   

The respondent’s case

27. In their response the respondent rely on the same matters recorded above.  The decision to suspend was because of the significant non accidental injury, not explained, following significant time in the appellant’s care. Investigations were needed to establish the cause, to ensure that the appellant remained suitable for registration.  Allowing her to remain registered would place children at potential risk of harm.

Tribunal’s conclusions with reasons

28. It does not appear to be in dispute that the child concerned had bruising to the buttocks.  Evidence that the injury appears to be non-accidental, and involved repeated and significant force, has not been challenged.  It is in any event not necessary for this Tribunal to make findings of fact on these issues.  We do, however, note that they are very serious matters, and require investigation. 
29. We do not need to make a finding of fact as to whether or not the appellant smacked the child, or in some other way failed to protect the child, leading to the injury.  That, too, requires a full investigation. 
30. The scope of this appeal is limited to whether the respondent has shown the need, during this six week period, to manage potential risk while the investigation takes place. 
31. We are satisfied that Regulation 9 of the 2008 Regulations applies to the present circumstances.  A significant injury remains unexplained.  The respondent does not have to sure, or even satisfied on balance of probabilities, that the respondent is directly or indirectly responsible for the injury.  The respondent does not have to be sure that the injury was not caused in some other way, for example by accident or by another person.  The respondent must keep an open mind, as must other agencies investigating what happened. What the respondent must do is to protect children where the risk arises that they may be exposed to harm. 
32. We are quite satisfied that this matter requires investigating.  If that investigation, which has to be carried out without delay, indicates the true facts, then a decision based on those findings can be made.  We are satisfied that, pending the completion of the investigation, the suspension of the appellant ensures that the possibility of minded children being at risk is avoided.  Until the cause of the injury is better known, the respondent has good cause to believe that children minded by the appellant may be at risk of harm.
33. The appellant should be aware that this decision is not, therefore, a finding that she is responsible for the injuries.  It is not a finding against her.  It is a finding that children may be at risk and a short period of suspension is justified while matters are investigated.
34. The appeal is dismissed.

Mr Brayne, First Tier Tribunal Judge

Mrs Diamond, Deputy Chamber President

Mr Braybrook, Tribunal Member

11^th April 2011