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

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

[1886].EY-SUS

JG - appellant

v.

OFSTED - respondent

Before

Mr Brayne

Mrs Rabbatts

Mrs Lowcock

Heard on the 28^th April 2011 at the Care Standards Tribunal Mowden Hall, Darlington.

The appeal

1. The appellant appeals against the respondent’s decision dated 15^th April 2011 to suspend her registration as a child minder for six weeks until 26^th May 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 the respondent’s decision the respondent reasonably believed 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 28^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 letters from parents of children minded by the appellant
10. The appellant submitted after the latest date for providing written evidence a response to the documents received from the respondent.  The Tribunal copied these to the respondent, who then consented to the Tribunal taking into account this late evidence.
11. 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, any child minded by the appellant, or any member of the families of these individuals, so as to protect their private lives.   

The background

12. The appellant was registered with the respondent in April 2007.  She is, according to the evidence in the witness statement of the respondent’s witness RF, 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 has not been inspected since registration.
13. The conditions of registration (according to the witness statement of the respondent’s senior officer KD) 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;
• when working with another childminder [at her premises] may care for no more than eight children under eight years; of these not more than six may be in the early years age group and of these, not more than two may be under one year at any one time
• she must not use the first floor, except for the bathroom and bedroom;
• must not provide overnight care

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

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

15. The respondent’s case is set out in the response, and is based on the evidence of witness RF and witness KD and supporting documents referred to in these statements.  This is summarised in paragraphs 16 to 18 below. 
16. The respondent’s Local Authority Designated Officer, witness KD above, and inspector, witness RF above, on 5^th April 2011 received information from a nurse at the B Hospital.  The information was that on 22^nd or 23^rd January 2011 the appellant had attended the Accident and Emergency Department at the hospital, appeared to be drunk, was abusive to the nurse, told the nurse she had an alcohol problem and was seeing her GP.  The appellant had also said she was a childminder.
17. The appellant was visited by RF on 13^th April 2011.  She told RF that she was currently minding children.  She said that she did not remember being in hospital in January 2011.  She said that she did not drink alcohol during the day when she was minding children, but only in the evenings and at weekends.  She said that she had sought help from an organization which provided alcohol abuse support as she considered that she had developed an alcohol dependency.  A nurse from this organization had visited her at home, and the appellant had undergone a five day detoxification programme at home under the organisation’s support.
18. The respondent held a Compliance, Investigation and Enforcement Case review the following day.  The respondent recorded concerns that the appellant had not notified them that she had an alcohol dependency problem, had been admitted to hospital, and had since undergone detoxification treatment under the care of an independent agency.  They were concerned that she might have minimised the scale of her dependency and the help she had sought.  She had not appeared to understand the impact this might have on her suitability to mind children and her role in a position of trust.  The respondent recorded that it felt unable to assess the appellant’s ongoing suitability in relation to her physical and mental health and that as a result, children in her care may be at risk of harm.  It felt further investigations were necessary, which would include a professional medical opinion, via a health check from a practitioner appointed by Ofsted, further contact with the staff nurse who raised the original concerns, and contact with the nurse from the independent organisation.  It decided to suspend the appellant during the course of these investigations.

The appellant’s case

19. In her grounds of appeal the appellant confirmed that she had told the respondent’s officer that she had attended hospital, but was unsure why, and had been drinking on that night.  She had told the inspector that she only drank evenings and weekends when there were no children in her care, and three weeks ago had undergone a detox and therefore no longer consumed alcohol.  She had decided to undergo a detox because she had started to have a few alcoholic drinks to help her sleep at night, and this had become a habit which she no longer wished to have.  The doctor had prescribed her sleeping tablets and therefore she no longer needed to drink, so she therefore detoxed.  She had stressed to the inspector that she had not had an alcoholic drink at all in the past three weeks.  A statement from the nurse involved in the detox programme had been taken by Ofsted, and it showed this person had visited her when she had children in her care, that the appellant was not under the influence of alcohol, and the nurse had no concerns for the children’s safety.  She had obtained written statements from the parents who had no issues while their children were in the appellant’s care.  In summary she could see no evidence to suggest that the children were “in harm” or that she was not suitable to care for them.
20. In the information provided in response to the respondent’s documentation, the appellant added the following evidence.  The date she had gone to the hospital had been a Saturday, which was her personal time, and she was not looking after children.  She had finished the detox while on a holiday and not caring for the children.  She had been free from alcohol for a month (as at 27^th April 2011).  She also referred to evidence which is contained in the respondent’s witness statements, to which we have not yet referred, relating to suggestions that she had been in hospital for an overdose of ibuprofen.  She had only taken two for headache, but her husband had rung for an ambulance as he had concerns she may have taken more, having found an empty packet, but her husband had later confirmed that this was accompanied by a pack with only one missing, which showed she had taken one from the end of a pack and one from a new pack.  She had not self-discharged from the hospital but had, according to her daughter who was with her, been told she could go home without signing a discharge form.  She had not been visited by Ofsted since the suspension, and her doctor had not been approached.  She could not have been violent in the hospital, as the hospital declared a no-tolerance policy and a violent person would have been arrested.

Tribunal’s conclusions with reasons

21. Some facts are not disputed.  The appellant did have what she herself perceived to be a problem with alcohol.  She did visit the Accident and Emergency Department on a Saturday night in January, accompanied by her daughter. She was not detained.  She voluntarily arranged a detoxification programme, which she has successfully completed at a time when she has not been responsible for minded chidlren.  She failed to inform Ofsted of the alcohol problem, or the detoxification. 
22. There is no evidence or suggestion that she has ever been under the influence of alcohol, or suspected of such, during the time she has childminded. There is no evidence of any failure to look after children adequately.  Parents have confirmed their high regard for her.  The nurse responsible for the detoxification has observed her while childminding, taken alcohol readings of zero, and confirmed her own high opinion of the appellant’s qualities as a childminder.
23. The appellant herself described her alcohol problem as a dependency when interviewed by the respondent’s officer.  However, there is no evidence to suggest a dependency or a condition of alcoholism in the medical sense.  The fact of her ability to stop drinking in a short space of time indicates any alcohol problem was not severe.
24. Evidence of abusive or drunken behaviour at the hospital in January is at best unclear.  It was supplied by a nurse, who chose, for unknown reasons, to disclose the information three months after the events, and who, subsequently, has failed to provide any confirmation or to contact the respondent.  In these circumstances it is difficult to place much weight on the nurse’s evidence.  The evidence came to light more than a week before the suspension decision and during that week there is no evidence of harm as a result of that delay.  The respondent has not (on the documents available to us) obtained medical evidence, so there is no medical evidence suggesting the alcohol problem could be more serious than the appellant admits.
25. For all of the above reasons, the respondent might well make a different decision as to the risk to children if the decision had to be made now.
26. However, we have previously explained that our task is to decide only whether the respondent has shown that the original suspension was justified.  We do not have the responsibility of determining whether its continuation or renewal is justified.  We can only look at the question: did the respondent reasonably believe when deciding to suspend the appellant that the continued provision of childcare by the registered person to any child may expose such a child to a risk of harm.  To answer this question, we have to look at the facts and information known to the respondent at the date of the respondent’s decision
27. The respondent, when making the decision to suspend, had received information raising an allegation of drunken and disorderly conduct.  The appellant had been visited, and she had confirmed that she had visited the hospital, that she had a drink problem, and had undertaken a detoxification programme; there was evidence that she may have taken an overdose of ibuprofen. The risk the respondent was concerned with was that the appellant’s ability to look after children safely could be affected by problems arising from abuse of alcohol.  The respondent was concerned in addition that the appellant had not told Ofsted about these drink problems, and the respondent was reasonably concerned that failing to disclose something of this importance could mean she had not disclosed the true extent of her problems.  
28. We are satisfied that the respondent was entitled to decide not only that this required investigation, but also to believe that during the time it would take to conduct the investigation the children might be at risk if the appellant continued to work as a childminder. 

Mr Brayne, First Tier Tribunal Judge

Mrs Rabbatts, Tribunal Member

Mrs Lowcock, Tribunal Member

5^th May 2011