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

 

 

 

 

Sukpreet Kaur

Tasleem Sarwar

V

 

OFSTED

[2010] 1763 EY

1786 EY

 

 

DECISION

 

 

 

Panel Tribunal Judge Nancy Hillier

Ms Marilyn Adolphe (Specialist member)

Ms Caroline Joffe  (Specialist member)

 

Hearing held at Auchinlech House, Birmingham on February 28, March1,2,3,4,7,8,10 2011 and at  Birmingham Magistrates Court on 9 March 2011.

Deliberations held 8 and 20 April 2011.

The Appellant attended the hearing and represented herself with assistance and representation by her father, Mr Singh Senior, her brother Mr Singh, Dr Sharma and Ms Sangha. She also had the assistance of a note taker throughout. The panel provided procedural guidance and legal information throughout to ensure she was not prejudiced by lack of legal representation.

The Respondent was represented by Mr Martin Downs of Counsel.

The panel heard the following oral evidence under oath:

28 February PC Sohal

March 1 Mr and Mrs D- parents of child D

Angela Blower – Support Teacher Birmingham City Council

Esther Gray – Ofsted Regulatory Inspector. Team manager

Sue Crawford- HMI in Ofsted Compliance and Investigation team

March 2 Sue Crawford

Patsy McGhie- former Kare Babies employee

March 3 Sue Crawford

Susan Riley- Early Years Inspector (Independent)

Maybelline Dennis –Area Manager Early Years and Child Care Services Birmingham City Council

March 4 Jan Keeling – Early Years Inspector. Team manager

Johanna Holt- Ofsted Compliance Enforcement and Investigation professional

March 7 Tracey Linton – Assistant Partnership Officer Birmingham City Council

Sian Piercy –Deputy Head Teacher Mayfield School

Sonia Dhesi- witness called by Ms Kaur

Marie Foster –Safeguarding Officer Birmingham City Council.

Sarah Russell- former Kare Babies employee

CD- mother of child DD

Karam Jan – Ofsted witness, mother of Sarah Russell.

March 8 Ferroza Saiyed-Early Years Inspector (Independent).

Esther Gray- Regulatory Inspector. Team manager.

March 9 Esther Gray

Ms Kaur- Appellant.

March 10 Ms Kaur

 

The Tribunal was provided with a consolidated core bundle of documents and additional bundles containing extensive disclosure and other documentation. Ms Kaur produced very little evidence prior to the hearing despite frequent directions to do so. Her Counsel confirmed that it was not her intention to file any evidence at the penultimate telephone directions hearing. In fact Ms Kaur produced a series of documents on 28 February and during the course of the hearing. These documents were admitted and were considered by the panel as part of the overall consideration of the evidence. They comprise:

(i) Written representations from Ms Kaur in response to Ofsted notice of intention to cancel registration - treated as her witness statement and dated 28 February 2011;

(ii) First Applicant’s Submissions part 1 (expert report of Simone Tennant-Smith 14 February 2011);

(iii) First Applicant’s Submissions Part 2 (collection of “statements” and handwritten documents);

(iv) The statements of VD and AD dated 31 January 2011 (with associated handwritten documents);

(v)             The “section 9” statement of Naima Hussain.

(vi)           Photographs of Kare Babies nursery produced by Ms Kaur and by Ofsted.

(vii)          Ms Kaur’s policies and procedures file from Kare Babies.

(viii)         Correspondence with Buckingham Palace and with an Member of Parliament.

 

Ms Sarwar did not file any evidence other than in respect of illness.

 

APPEAL

 

 

1.     Ms Kaur appeals pursuant to Childcare Act 2006 s74(1)(e) in relation to a Notice of Decision dated 20 April 2010 to cancel her registration as a day care provider.

2.     Ms Sarwar appeals pursuant to Childcare Act 2006 s74(1)(a) in relation to a notice of decision dated 17 May 2010 refusing her application to be a day care provider.

3.     The cases are not consolidated but a decision was taken on 28 July 2010 at a Telephone Case Management Hearing (TCMH) attended by all parties that they would be heard together since there is such an overlap between them. Both cases concern the same nursery, Kare Babies Day Nursery (Kare Babies) The Respondent had prepared a consolidated bundle and the witnesses are relevant to both cases. This decision covers both cases but applies a different burden of proof to each appellant.

 

 

PRELIMINARY ISSUES

 

Non attendance of Ms Sarwar

 

4.     Ms Sarwar did not attend the hearing on 28^th February 2011. The panel considered whether to strike out her application for lack of cooperation with the tribunal under rule 8, to continue with the hearing in her absence under rule 27 or to adjourn the hearing.

5.     Mr Downs submitted that the two cases were being heard together because they were essentially based upon the same facts and it would be disproportionate to litigate the matter twice.

6.     Ms Kaur and Dr Sharma stated that there were no objections to the matter proceeding in Ms Sarwar’s absence. Ms Kaur submitted that “There is no negative implications and no objections are taken to proceeding in her absence”(sic).

7.     The panel decided on 28 February to proceed with the hearing in Ms Sarwar’s absence under rule 27 because we were satisfied that she had notice of the hearing, she had not communicated any application to adjourn the hearing nor had she given any reason for her non attendance. Ms Sarwar was aware of the hearing because she had attended TCMH hearings on 17 December 2010 and 28 January 2011 when the final hearing was discussed in great detail.

8.     On 1 March 2011, the Tribunal Service received a fax consisting of a Med 3 (a Statement for Fitness for Work, for social security or SSP) concerning Tasleem Sarwar which appeared to state that she was not fit for work for four weeks because of anxiety. The applicable dates were virtually illegible beyond the fact that the Med 3 appeared to have been issued in February 2011, probably on 26 or 28 February.

9.     The fax was not accompanied by an application to adjourn the hearing by Ms Sarwar on grounds of sickness or any other reason.

10. The panel considered the fact that Ms Sarwar had failed to attend the final hearing in Loughborough on 23 November 2010 which had to be adjourned due to other reasons. She was directed to file medical evidence to confirm her illness (diarrhoea) which she did. She participated in the telephone  hearings on 17 December 2010 and 28 January 2011 when the need to engage with the proceedings was stressed to her. She failed to attend the telephone hearing on 18 February 2011 and gave no explanation. She has filed very little evidence and had failed to comply with most of the directions made requiring her to file evidence despite verbally assuring the tribunal that she would do so.

11. The panel considered the case of Synergy Child Services Ltd v Ofsted [2009] UKUT 125 (AAC) and issued directions on 2 March informing Ms Sarwar of the procedure if she wished to apply for an adjournment.

12. By letter dated 4 March 2011 received on 8 March 2011 Ms Sarwar applied for an adjournment of the hearing, “on medical grounds”. The hearing was at that stage on the 7^th Day and the application did not comply with the requirements of the direction. The panel revisited the question of holding the hearing in the absence of Ms Sarwar and of adjourning.  In considering Rule 27 and with reference to the overriding objective to deal with cases fairly and justly the panel decided to continue with the hearing and to refuse Ms Sarwar’s application to adjourn. The panel considered the fact that these are very costly proceedings where the tribunal had heard 20 witnesses, the final hearing has already been adjourned once, and the appeal was already nine months old. Further, Ms Sarwar offered very little supporting material for her application, had not followed directions setting out the need for submitting evidence that she was unable to participate in the hearing and had given no explanation for the delay in her application. There was no evidence of prognosis as to when she may be able to participate in a hearing, indeed a detailed medical report as directed had still not been filed by April 20 when the panel concluded its’ deliberations. The conclusion reached by the panel in all the circumstances was that it was appropriate, fair and just to continue with the proceedings in Ms Sarwar’s absence and to refuse the application to adjourn.

 

Whether either Ms Kaur or Ms Sarwar were prejudiced in any way from conducting their cases by police bail conditions imposed upon them

 

13.  The tribunal considered this at all telephone case management hearings and both Ms Sarwar and Ms Kaur were directed to supply copies of the relevant bail notices in order for the tribunal to be satisfied that there were no bail conditions preventing either from appropriate presentation or conduct of the case. On the documentation supplied the panel were satisfied that the bail conditions did not prejudice either Ms Kaur or Ms Sarwar, indeed both confirmed at the January 28 2011 telephone hearing and Ms Kaur confirmed at the hearing on 28 February 2011 that there were no difficulties with bail.

 

Ms Kaur’s application to admit a ‘statement’ made by her and sent to the tribunal after 5p.m. on 25 February 2011.

 

14. Despite numerous directions and warnings in the course of the appeal proceedings Ms Kaur did not file a statement of her evidence. The document submitted on 25 February was similar to, but not identical to, a document previously submitted to Ofsted by Ms Kaur’s solicitors in 2010. No objection was taken to its admission in evidence by Ofsted and the panel agreed to admit the document as it would provide some clarification of Ms Kaur’s position.

 

Ms Kaur’s application to admit three ‘statements’ by Naima Hussain dated 29.9.09, 27.4 10 and 23.2.2011.

 

15. The document dated 29.9.09 was a handwritten letter to Ofsted. The second is a handwritten statement dated 27 April 2010 giving her address as Newport Road, Spark Brook and stating that she is willing to come and give evidence on behalf of the tribunal. The final, typed, statement dated 23.2.2011 was said to be “s.9 from an independent solicitor by Ms Kaur. It was posted on Saturday 26^th February to Ms Kaur without a covering letter. It gave her address as  Lewisham Road, Smethwick, and indicated a willingness to give evidence. Since Naima Hussain was a witness for Ms Kaur and Ms Sarwar and the Respondent did not object, the panel admitted the evidence as it appeared to be relevant.

An Application by Naima Hussain dated 7 March 2011 to set aside the witness summons.

16.  A witness summons had been issued to Ms Hussain, at Ms Kaur’s request, on February 21^st  to the Sparkbrook address. It had been signed for on 26 February, however Ms Hussain did not attend as directed. A further summons was sent to Ms Hussain on 1 March at the address in Smethwick. She failed to attend as directed.

17. At about 11 am on 8^th March Judge Hillier was handed a letter dated 7 March purporting to be from Ms Hussain. It stated that Ms Hussain wished to withdraw from the case. The reasons given were that she was living in a hostel, had medical issues and had had an arranged marriage. She gave a mobile number on which she could be contacted.

18. In a statement made through Ofsted Ms Hussain had made allegations against the appellants and the regime at Kare Babies. The subsequent ‘statements’ alleged bribery and abuse by Ofsted. Since the weight that the panel could place on written evidence of serious misconduct allegations was much less than tested oral evidence, and given the reasons for non attendance were less than a few days after a “s.9” statement indicating a willingness to attend the tribunal, the application was refused. Ms Hussain did not attend to give evidence.   

 

An application by Mr and Mrs D to set aside the witness summons issued by Judge Hillier

 

19. Mr and Mrs D applied to set aside the witness summons requiring them to attend the hearing as witnesses for Ms Kaur. They based their application on the fact that they did not realise that they had given her anything more than a reference and that they both had work commitments.

20.  The application was refused as both had in fact signed documents clearly marked as statements, they were required by Ms Kaur as part of the presentation of her appeal and they had not cited any additional substantive reason other than inconvenience for non attendance.

 

An application by Ms Kaur and Dr Sharma made on 28 February 2011 for a third party disclosure order against West Midlands police in respect of the original of a reference dated 8^th April 2010 purported to be signed by PC Sohal

 

21.  Dr Sharma submitted that Ms Kaur’s case was that the original reference was genuine and that she required disclosure of that original document so that it could be considered by a graphologist who could then give evidence about its authenticity. Dr Sharma did not have any particulars of an expert or timescales once the document had been disclosed. She thought maybe a week. The tribunal asked Ms Kaur why the disclosure had not been requested at an earlier stage. Ms Kaur said that it had been raised with her solicitors and she had known it was a significant document since a conference with Counsel Mr Wilding in October 2010 but had not asked for disclosure, despite requesting other things.

22. The reference had originally been given by Ms Kaur to her solicitor and they had disclosed it within the proceedings as a character reference. Ofsted questioned the authenticity of the reference and queried it with West Midlands police. In a letter dated 27 September 2010 the Deputy Force solicitor, PM Smith, wrote to Tsol, stating that the reference was not authentic. The basis for this assertion was that it was not on a letterhead which was current in April 2010 and PC Sohal had made a statement on 20 September 2010 denying authorship or knowledge of the reference. Further, there was no record that Ms Kaur had worked for West Midlands Police, although her solicitors had told Ofsted that she was a special constable. 

23. PC Sohal had given oral evidence denying any connection with the reference. He pointed out that it is factually incorrect in that it refers to “my daughter” when it was his son who had attended Kare Babies and said that the matter had been fully investigated by senior officers.

24. The panel considered Rule 15(1)(c) and the overriding objective to deal with cases fairly and justly to enable participation but to avoid delay and to act proportionately. If the application were granted the hearing would have to be adjourned, possibly for several months. The panel concluded that such a delay would be unfair on the witnesses whose evidence had already been delayed, and would be disproportionate. Ms Kaur agreed that since October 2010, and possibly before, she had been aware that  the document was in the hands of the police and that she wished to confirm its authenticity. She had taken no steps to seek disclosure, despite being represented for a proportion of the time, and despite being fully aware of how to seek disclosure as demonstrated by her making applications for disclosure of other documents when unrepresented. She had obtained a graphologists report in respect of other documents but had made no application for this document. In those circumstances the application had come too late in the day and did not warrant further costly adjournment for an unknown time period. The application was therefore dismissed.

 

An application by Ms Kaur for the admission of the evidence of a graphologist

25. Ms Kaur had obtained the report of a graphologist, Simone Tennant-Smith , dated 14 February 2011 which she brought to the hearing on 28 February 2011. The panel considered Rule 15(1)(c) and the fact that the Respondents did not object to the contents of the report nor require the graphologist to attend to give evidence. The report was admitted in evidence.

An application by Ms Kaur for disclosure of files held by Ofsted.

26. This application concerned files which Ms Kaur alleged were wrongfully being withheld by Ofsted, namely the files for Jasvinder Dhinsay, Patsy McGhie and Naima Hussain. The allegations required evidence to be heard and findings to be made as one of the issues in the case. The application was therefore premature, and the allegations were held over as part of the hearing.

 

An application for Ms Kaur for unredacted documents.

 

27. Ms Kaur made an application on March 8^th for disclosure of unredacted documents from the Ofsted disclosure file. These had been redacted to delete user names etc. Mr Downs agreed that if these were specified they would be supplied, a matter which had been agreed with Ms Kaur’s Counsel when he acted for her before the hearing. Ms Kaur was given time to consider which documents she would need to cross examine Ferroza Saiyed and Esther Gray. In fact the documents she sought were already in the police disclosure file in an unredacted form so the case was able to proceed without a decision being made on the application.

 

Clarification of witness requirements and witnesses to be called.

 

28.  In November 2010 the Appellants indicated that (between them) they would want to question all the Respondent’s witnesses. Patricia Hindmarch and Marie Foster were unwell in November 2010 but all the Respondents other witnesses were available. Ms Holt was at that time heavily pregnant and it was apparent that the re-listing of the matter may cause difficulties. It was a condition of the decision to adjourn the hearing on the application of Ms Kaur’s legal representative that at a future hearing Ms Holt would only be made available for cross-examination over the telephone. Despite this, Ms Kaur made an application on 4^th March 2011 that Ms Holt give her evidence in person. The panel rejected this application on the basis that it was neither proportionate nor reasonable given the previous indication and the fact that Ms Holt had only recently undergone a very difficult birth.

29.  At the start of the hearing Ms Kaur confirmed that she required all the witnesses indicated by Mr Tyson of Counsel and her most recently instructed solicitors. She indicated that she would call Mr and Mrs D (who had been summonsed to attend at her request), Naima Hussain (who had also been summonsed to attend at her request) and Sonia Desai, who had made a statement on 1.11.10.  She confirmed that these were her witness requirements – “That’s it”.

30. On 8 March, the penultimate day of this hearing and just before she was due to give her own evidence, Ms Kaur said that she wanted Jasvinder Dhinsay to attend the hearing to give evidence. The application was that the panel should direct Ofsted to produce the person that they said was the “true” Jasvinder Dhinsay to give evidence. Ms Kaur stated that this was an application which had been made on several occasions.

31. Mr Downs opposed the application on the grounds that this was the first time that it had been made, and that the application was being made to delay the proceedings. Ms Kaur had been represented by solicitors and counsel at various stages in the proceedings and at no time had they requested that Ms Dhinsay should be produced to give evidence. Mr Downs stated that in fact it had been very difficult to get any indication of witness requirements until the witness template had been completed very shortly before the hearing.

32. Ms Kaur submitted that she had made an application for the witness to be summonsed at the telephone case management hearing on 17^th February 2011 and that she had requested the production of Ms Dhinsay in a letter to Judge Hillier sent to Darlington in February 2011. Mr Downs responded that the request for a witness summons had been for the woman Ms Kaur alleged was the “real” Jasvinder Dhinsay, and that Ms Kaur had asked for her to be summonsed at the telephone case management hearing on 17^th February.  That application was made on the basis that the address of this person was unknown and she was believed to be in India. Tribunal Judge Hillier had refused the application because there was insufficient material on which to base a summons.

33. The panel considered the application in the light of the overriding objective, namely that the application should be dealt with fairly and justly. The application was refused because it would have inevitably caused substantial delay, possibly for several weeks or months. The panel did not feel that such delay was justified, necessary or compatible with consideration of this issue (impersonation of others) or other issues in the case. There had been no previous application for the production of the Jasvinder Dhinsay who had given evidence to Ofsted, and the letter sent to Judge Hillier in February 2010 had given no detail to enable identification. The panel concluded that every opportunity had been given to Ms Kaur for her to participate fully in the proceedings and to request the production of witnesses. She had not co-operated with several directions and requests to indicate her witness requirements nor had she made the application at an earlier stage of the hearing, including when the relevant evidence was being given of the Ofsted interview with Ms Dhinsay.

34. At the time when she was due to give her evidence Ms Kaur made an application assisted by Ms Sangha that Esther Grey and Sue Crawford should be excluded from the room because she felt intimidated by their presence in the room. Mr Downs opposed the application because he was concerned that since we had very little written evidence from Ms Kaur there would be a need to take extensive instructions on her oral evidence which would inevitably cause severe delay to the proceedings, and his cross examination of Ms Kaur could be hampered by lack of instructions.

35. The panel refused the application, bearing in mind the overriding objective. The reasons for the refusal were that Ms Kaur had shown no signs of feeling intimidated when she was robustly cross examining Ms Gray and Ms Crawford about allegations of assault and bribery. Both witnesses had conducted themselves professionally throughout the proceedings and whilst they had been asked to leave the room whilst Sonia Desai had given her evidence that evidence was short, on a discrete topic and Ms Desai is sixteen years of age. Further, the panel agreed with Mr Downs that the lack of written evidence from Ms Kaur, despite numerous directions to file such evidence, could seriously prejudice his ability to prepare cross examination of Ms Kaur without Ms Grey and Ms Crawford in the room. Finally, since we were in a very large court room at the magistrate’s court on that day, Ms Grey and Ms Crawford were sitting at some distance from Ms Kaur and out of her line of vision. We indicated that we would allow Ms Kaur to renew the application at any time during her evidence. She did not renew the application, and Ms Grey and Ms Crawford did not attend the second day of her evidence when the hearing returned to Auchinleck house.

 

The issues

 

36. Mr Downs produced Scott schedules which set out the reasons for refusing Tasleem Sarwar’s application for registration and the reasons for cancelling Sukpreet Kaur’s registration. The schedules set out in a clear format the evidence upon which Ofsted relied and the source of the information, with references to the bundles which both Appellants had full copies of. In the case of Ms Kaur she brought only limited documentation to the first day of the hearing and was supplied with copies of additional documentation by the Respondent. From the second day, assisted by her father, she confirmed that she had all tribunal bundles with her during the hearing.

37. The main reasons for refusing Ms Sarwar’s application were doubts about her integrity and suitability, alleged inability to safeguard children and her alleged inability to maintain accurate records, all taken together with her involvement with Ms Kaur’s failings as a registered provider.

38. The main reason for cancelling Ms Kaur’s registration was Ofsted had lost confidence in her ability to meet legislative requirements as she had consistently failed to comply with National Standards and the Early Years Foundation Stage Welfare Requirements; key concerns included:

(i)Failure to declare the surname Kandola on registration;

(ii)Failure to confirm the identities of Naima Hussain and Tasmena Begum amongst others leaving unverified and unchecked staff in charge of children, thereby placing them at risk of harm;

(iii) Involvement in the impersonation by a staff member of Jas Dhinsay;

(iv) Failure to ensure the cook Patsy McGhie was appropriately trained;

(v) Involvement in the forging of a reference for Sarah Russell from   Mayfield school;

(vi)Inability to verify child:staff ratios due to inadequate signing in records;

(vii) Failing to meet children’s needs, due inter alia to high staff turnover;

(viii) erecting an entirely unsuitable extension on the flat roof of a ground floor single extension;

(ix) Obstructing Ofsted officers from entering the premises.

(x) Being involved in the provision to Ofsted of a forged reference purporting to be from a police officer.

(xi) Making unfounded allegations against inspectors in order to deflect from the truth of their findings.

 

39. At a telephone case management hearing shortly before the final hearing, Ms Kaur made a series of allegations against the Respondents and Birmingham City Council. These were clarified at the start of the final hearing to include:

 

A. That Ms Kaur’s employees had been offered/paid bribes by Ofsted to give evidence against her and in particular that Esther Gray bribed Naimah Hussain, Patsy McGhie and Sonia Dhesi (she was offered an “award”) and Jo Holt bribed Naimah Hussain and Patsy McGhie.

B. That Ms Kaur and some of her employees have been harassed by Ofsted since 2008 and that this was racially motivated. Those responsible primarily were Sue Crawford and Esther Gray.

C. That there was a Birmingham City Council conspiracy of employees who had an agenda to see Kare Babies closed, and that they consistently failed to assist Ms Kaur and her colleagues with Kare Babies as part of this conspiracy

D Sue Crawford had assaulted a child, DD, aged 3 during the Ofsted inspection on 1 November 2010.

E Ofsted deliberately withheld evidence from the tribunal and Ms Kaur which would have assisted her case.

 

The Law

 

40. In Ms Kaur’s appeal against the cancellation of her registration the burden of proof is on the Respondent to establish on the balance of probabilities that the decision to issue a cancellation notice was appropriate (Thorley v Ofsted [2006] 0834/0835.EY). 

41. The standard of proof applicable on appeals to this tribunal is the civil standard of proof, namely on the balance of probabilities. In re B (Children) FC [2008] UKHL 35, Baroness Hale stressed that neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the relevant facts. Inherent probabilities may be taken into account, where relevant, in deciding where the truth lies

 

42. In essence, the tribunal takes an inquisitorial, not an adversarial, approach to the hearing. This is a fact gathering exercise governed by equitable principles and by the overriding objective set out in Rule 2 of the Health, Education and Social Care Chamber Rules 2008 (the ‘2008 Rules’):

 

(1)(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes—

(a)   dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b)   avoiding unnecessary formality and seeking flexibility in the proceedings;

(c)   ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d)   using any special expertise of the Tribunal effectively; and

(e)   avoiding delay, so far as compatible with proper consideration of the issues.

 

(3) The Tribunal must seek to give effect to the overriding objective when it—

(a)   exercises any power under these Rules; or

(b)   interprets any rule or practice direction.

 

(4) Parties must—

(a)   help the Tribunal to further the overriding objective; and

(b)   co-operate with the Tribunal generally.

 

43. The general principle is that each party must provide sufficient evidence to support their case, but where relevant information is available to the Respondents, an organisation with far greater resources than the Appellant, it is for the Respondents to produce that information.

44. The appeal is a full merits appeal rather than a review of the decision. The tribunal can therefore consider post decision evidence C v Ofsted 2002 87 EY

45. In the case of an applicant for registration appealing against a decision to refuse registration, the law places the burden of proof on Ms Sarwar to demonstrate her suitability or fitness.

46. Under s.32 Childcare Act 2006 the Chief Inspector must maintain two registers, “the early years register” and “the general childcare register”. All early years providers must be included in the EYR (section 34) and all later years providers (provision for children under 8) must be registered in Part A of the general childcare register in respect of premises (section 53).

 

47. The statutory framework for the registration of early years childcare providers is the Childcare Act 2006 (“the 2006 Act”). S.32 of the 2006 Act establishes two registers of childminders and other early years providers: the early years register and the general child care register. The latter is divided into two parts: A and B.

48. Section 34 (1)) requires a person who wishes to provide early years provision on non domestic premises to be registered in the early years register in respect of those premises. Section 36 sets out the relevant registration process and provides that the application must be granted by the Chief Inspector if a) the applicant is not disqualified from registration by regulations under section 75; and b) it appears to the Chief Inspector that the prescribed requirements are satisfied and are likely to continue to be satisfied (S36(3)). Under section 38 the Chief Inspector may impose such conditions on registration “as he thinks fit”

49. Requirements to be met by early years providers are set out in sections 39 to 43 which provide for appropriate regulations to govern their activities.

 

50. Schedule 2 part 1 of the Childcare (Early Years Register) Regulations 2008 (“the regulations”) sets out the requirements relating to the applicant, the manager and any other persons . Part 2 specifies prescribed information about certain matters including information relating to the applicant, and in respect of the manager. Finally, 25 provides for information about the provision itself.

51. The prescribed requirements for registration under the 2008 Regulations must continue to be met if an existing registration is to continue.

52. The welfare requirements are regulated by The Early Years Foundation Stage (Welfare Requirements) Regulations 2007.  Regulation 3(3) places a duty on providers to have regard to the guidance in the document “Statutory Framework for the Early Years Foundation Stage”, which applies equally to a provider who was practising before 1^st September 2008. Section 3 provides: “Providers must ensure that adults looking after children, or having unsupervised access to them are suitable to do so.”

 

53. Cancellation of registration is governed by section 68 of the 2006 Act. The Chief Inspector may cancel registration if it appears to him under section 68(2)a) that the prescribed requirements for registration have ceased, or will cease, to be satisfied or c) that the registered individual has failed to comply with a regulatory requirement. Procedure for a proposed refusal to register or cancellation is set out in Section 73 with provision for appeal under section 74. Under s.74 (4) on appeal the tribunal must either confirm the decision taken by the Chief Inspector or direct that it shall not have, or shall cease to have, effect.  The tribunal has the power to impose or vary conditions on registration in certain circumstances provided under s74 (6)

54.  The prescribed requirements under the Childcare (Early Years Register) Regulations and the Childcare (General Childcare Register) Regulations include a prescribed requirement in respect of the applicant for registration that the applicant should be “suitable” to provide the provision. In both cases it is to be found in Schedule 1, Part 1, Paragraph 1.

55. Under section 40 of the Act, early years providers have a duty to implement the Early Years Foundation Stage which specifies learning and development requirements and welfare requirements to be met within early years provision. The learning and development requirements are set out in Section 41 and the welfare requirements are included in the  Early Years Foundation Stage (Welfare Requirements) Regulations 2007 (“the 2007 Welfare Regulations”) Failure to meet some of the welfare requirements may constitute an offence such as failure to provide specified information under paragraph 8 of the 2007 Welfare Regulations. Similar offences are found in the Childcare (General Childcare Register) Regulations 2008.

 

 

Background

 

56. Kare Babies Day Nursery was Registered as URN EY360040  at 218 Hamstead Road, Handsworth, Birmingham on 5 October 2007. It operated from five rooms in a converted house. The nursery was open each weekday from 08.00 to 18.00 for 50 weeks of the year. Ms Sukpreet Kaur was the registered owner.  Ms Tasleem Sarwar went to work at the nursery on 23 December 2007 and in 2008 she was appointed deputy manager.

57. Problems were drawn to the attention of OFSTED by staff, students on placement, parents, relatives of former staff members, social services, Handsworth Job Centre, and anonymously as early as March 2008. As a result of these referrals OFSTED made a total of 31 visits to Kare Babies Day Nursery up to 27 August 2010. 22 cases were opened by Ofsted Compliance and Investigation. 2 full inspections, one in July 2008 and one in July 2010 found the quality and standard of nursery provision to be unsatisfactory.

58.  In March 2008 an investigation was launched following concerns raised by a student on placement. The investigation reported no breaches of the National Standards but two recommendations were given to improve practice. The first was given under the Enjoying and Achieving outcome, to ensure children’s individual routines and needs are followed to promote their care and well-being. The second recommendation was given under the Positive Contribution outcome, to further develop positive strategies for managing children’s behaviour. Kare Babies was required to have addressed these recommendations by the time of the next inspection.

59. Concerns were also raised by a parent of a child at the nursery regarding staff competency, staff to children ratios, staff deployment, a child’s learning not being progressed, children no longer using the garden for play, no place where staff and parents could talk confidentially, stair gates being unsafe, a lack of behaviour management, no feedback on children’s progress and a lack of confidentiality. In order to investigate these concerns Ofsted carried out unannounced visits on 25 March 2008 and on 31 March 2008. As a result of these visits 6 actions were set in relation to the National Standards.

60. In April 2008 Ms Kaur was allegedly attacked by a staff member. A further unannounced visit resulted in the inspector raising four actions. A monitoring visit on 16 May 2008  found breaches under National Standards 1 and 2 and two  compliance notices were issued. These were followed up at monitoring visits on 16 June 2008 and 11 July 2008 where it was established that appropriate action had been taken in response to the compliance notices.

61.  In June 2008 allegations were made by a family member of an ex member of Kare Babies staff  about staff suitability, unvetted staff being left unsupervised with children and adult to child ratios. Ofsted conducted an unannounced visit on 16 June 2008 and found no breaches in the National Standards. Following a full inspection on 11 and 12 July 2008 a notice of action to improve was issued in relation to childcare standards 3 and 8 relating to hygiene and to ensuring that staff have the knowledge and skills to facilitate children’s play and development and in relation to 3 areas in relation to nursery education. An unannounced visit on 10 October 2008 resulted in a notice of action to improve as standards were judged inadequate because Kare Babies did not have accurate records of attendance, policies and procedures were not up-to-date, a member of staff was working despite illness and not all records were available for the inspector.

62. On 10 October 2008 concerns were raised by the Local Authority that there was no manager or deputy on site at Kare Babies, incorrect documentation for vehicles was provided and there was inappropriate seating in vehicles. Ofsted conducted a visit on 15 October 2008 and found breaches under welfare requirements ‘Safeguarding and promoting children’s welfare’ and ‘Documentation’. As a result, 3 actions were raised.

63. On 29 January 2009 an anonymous referral raised various concerns regarding health and safety. An Ofsted unannounced visit to the premises found that the allegations were unfounded and no further action was taken.

64. In March 2009 there was an incident with youths threatening Ms Kaur with a gun directly outside the nursery during opening hours when she was trying to protect her car.  She did not report this incident to Ofsted. She gave the name Kandola to the police investigating the incident. Ms Kaur denies this.

65.  In May 2009 a member of staff assaulted a child and Ofsted alleged that Ms Kaur had failed to notify them. Their records indicate that Ms Kaur admitted the failure to notify them and a warning letter was sent. Ms Kaur has denied this admission. It is Ofsted’s case that Tasleem Sarwar was held out as the manager of Kare Babies from April 2009 onwards.

66. At about the same time Ofsted received information that Ms Kaur had carried out an ”extension” to the first floor flat roof area without planning permission. Ms Kaur was cautioned for the offence of failing to notify Ofsted of a change to the premises and  was sent a warning letter. The planning authorities became involved and Ms Kaur was directed to dismantle the structure immediately.

67.  On 22 May 2009 a parent complained to Ofsted about extreme nappy rash being discovered on their child at the end of a day at Kare Babies. Ofsted concluded that Ms Kaur had taken appropriate action by following Early Years Foundation requirements and notifying the Local Children’s Safeguarding Team. In September there was a further unannounced visit as a result of a parent raising concerns about staff child ratios. No breaches were found.

68. In August further concerns were raised by a former employee. An Ofsted unannounced visit concluded that the person who appeared to be the cook, Patsy McGhie, did not have a good understanding of Food Hygiene and had not attended any training. A notice to improve to ensure those responsible for the preparation and handling of food were competent to do so was issued.

69. A further unannounced visit on 28 September was made due to a referral from the Handsworth Job Centre. Ofsted reported that there was insufficient information about staff in the files and there was no effective system in place to ensure vetting procedures were followed. A notice to improve required Kare Babies to ensure an accurate record of all persons employed on the premises was kept, to obtain an enhanced CRB disclosure for all persons who worked there and to develop an effective system to ensure that practitioners and other people aged 16 or over likely to have regular contact with children were suitable to do so.

70. On 12^th October 2009 a letter was received from Mayfield School raising concerns about Sarah Russell being employed without references being taken up.

71. On 27 November 2009, Ms Sarwar became manager of the premises, although she had apparently worked in a managerial or deputy role throughout.  She applied for registration as the provider of Kare Babies Nursery Ltd on 25 November 2010. Ofsted understood that Ms Sarwar was to purchase the nursery and register it under this slightly different name. Her application for registration was refused.

72. This was followed up in December when it is recorded that an unannounced visit to the setting found staff whose checks had not been completed were left unsupervised with children and that insufficient progress had been made on the previous action requiring Ms Kaur to ensure those responsible for the preparation and handling of food were competent to do so. Further, the system for checking the suitability of staff was insufficiently robust and the identity of staff was not recorded and verified effectively. A welfare requirement notice was served.

73. On 7 January 2010 a monitoring visit to Kare Babies recorded that the recent welfare requirement notice was not met. Ms Kaur was cautioned. Documents were seized and a receipt issued for 7 files. Records indicate that Ms Kaur told Ofsted that Ms Sarwar was purchasing the nursery and had paid over the purchase price which was being held in a bank account pending registration. This is now denied by Ms Kaur. Ofsted interviewed Patsy McGhie on January 15^th. A further complaint was received from an ex member of staff on 18^th January.

74. Ofsted conducted a further visit on 25 January 2010 to collect further evidence, to remind Ms Kaur that she remained cautioned for the offence of not meeting the welfare requirement notice action three and to further caution her in respect of action one. The recording for that visit indicates that required records were not on site, historical staff records had been removed from site and staff signing in and out records were also not available. These records were said to be with the accountant and would not be available for Ofsted until 26^th January. The Inspectors were concerned about the suitability of both Ms Kaur and Ms Sarwar in terms of their honesty and integrity. Ofsted revisited on 28^th January to collect the documents which had been with the accountant and to further the investigation. This was followed up on February 8^th. Further complaints were received in late February from a parent who was concerned about the quality of the food being served to the children.

75. Notice of Intention to cancel Ms Kaur’s registration was given on 10 March 2010. Ms Kaur exercised her right to object to the proposed cancellation and Ofsted convened an objection panel meeting on 12 April.  Ms Kaur was not present at the objection panel but submitted a letter from her then solicitors, Anthony Collins, making representations. On April 8^th Ofsted received information that there was no manager on site at Kare Babies and no staff present with any qualifications. It was alleged that a trainee member of staff was looking after 6 babies. Ofsted visited later that day and the following day. There was no evidence of failure to comply with child:staff ratios and qualification requirements. A letter was sent to Ms Kaur dated 19 April 2010 confirming the decision of the objection panel to confirm the intention to cancel her registration. The Notice of Decision was issued on 20 April 2010.

76. Ms Kaur lodged an objection to the notice of cancellation on 22^nd March 2010 and appealed on 14 May 2010 to the Care Standards Tribunal. Notice of intention to refuse Ms Sarwar’s application was issued on 26^th March. Ms Sarwar submitted objections through her solicitors and a panel was convened on 7 May. The decision notice affirming refusal of registration was issued on 17 May and Ms Sarwar appealed the decision to the Care Standards Tribunal on 15 June 2010

77. An unannounced visit on 11 July was followed on 20 July by a full unannounced inspection over 2 days by Ferroza Saiyed and Susan Riley who had not inspected Kare Babies before and were “out of area”. Their findings were that the quality and standards of the nursery were inadequate in all areas and that the requirements of the childcare register were not met. Two welfare requirement notices were served.

78. A further monitoring visit took place on 27 August 2010 to check compliance with the welfare requirements notice. Further concerns were raised and noted by Ofsted because a member of staff who was recorded as an agency worker when checked had not worked for that agency for over a year. None of the new members of staff had current CRB checks and Tasleem Sarwar was present even though she was disqualified from working. Ms Kaur alleges that Ms Sarwar was not working on that day. A further two welfare notice requirements were served.

79. Ms Kaur was arrested and bailed by police investigating allegations of fraud on 1st October. A visit to Kare babies on 8 October by Sue Crawford and Esther Gray noted some improvements but judged the provision inadequate.

80. On 1 November 2010 at a visit by OFSTED and the Police the Ofsted Inspectors reported that the door to the nursery was not opened for approximately 40 minutes despite numerous attempts to alert the occupants. A child was heard crying and was feared to be at risk of danger. They concluded that the visit was being obstructed and police officers assisted them to enter. The inspectors reported that they witnessed unsafe practices, including 3 babies effectively left unsupervised, and that they had reasonable cause to believe children were or may be exposed to a risk of harm pursuant to section 69 of the Childcare Act 2006. An immediate case review was convened which was chaired by Johanna Holt and on 2 November 2010 Sukpreet Kaur’s registration to provide childcare on non-domestic premises at Kare Babies Day nursery was suspended for six weeks until 14 December 2010. The suspension, which has been periodically reviewed, has not been appealed.

81.  Ms Kaur was later arrested and bailed on suspicion of child abduction after the nursery had been closed. This, and other allegations of criminal offences which are being investigated, did not form part of the factual matrix of evidence considered by the tribunal at the final hearing.

82. This matter was first listed for final hearing at Loughborough for seven days commencing 22 November 2010. The Appellants had failed to comply with six sets of directions. On 22 November Ms Kaur was represented by a solicitor. This was the third or fourth firm instructed by Ms Kaur. They were instructed on the basis of an insurance policy, and applied for an adjournment to allow Ms Kaur to obtain the advice of Counsel as to whether she could obtain the benefit of the insurance to fund legal representation. There were also difficulties in respect of police disclosure which had been made late. The disclosure was sent to Darlington on the morning of the first day of the hearing. The parties were in Loughborough. Ms Sarwar failed to attend, informing the Care Standards administration that she was unwell. The hearing was adjourned and case managed to this hearing. The solicitors who had been representing Ms Kaur informed the tribunal in February 2011 that they no longer acted for Ms Kaur. She thereafter represented herself.

 

Ms Kaur’s position.

 

83. Sukpreet Kaur contests the accuracy of the findings of the inspections. She also claims racial harassment of staff members by Ofsted, Ofsted inspectors’ racist motivation in wanting to falsely report the failings of Kare Babies and conspiracy by the staff of Birmingham City Council to close her business down. She alleges that some staff members who have given evidence against her have been bribed or offered bribes and that the Respondents have wrongly withheld/not disclosed relevant evidence in these proceedings namely the  staff files for Patsy McGhie and Naimah Hussain to deliberately prejudice her case.  Additionally she asserts that she is of good character and denies any dishonesty. Since the notice of decision to cancel her registration, Ms Kaur states that she has made many improvements and met every action point required by Ofsted and she denies any obstruction of Ofsted officers. She claims that Kare Babies has remained safe at all times, save for an Ofsted inspector, Sue Crawford, assaulting a child at the final visit in early November 2010.

 

Ms Sarwar’s position.

 

84. Tasleem Sarwar’s position is not as clear as she has chosen not to file any relevant evidence in these proceedings. From material submitted to Ofsted before the appeal by her then solicitors it would appear that she also takes issue with factual assertions made on behalf of the Respondent. In particular she disputed the extent of her responsibility and control over Kare Babies and questioned how far she should be held responsible for any  failures by Sukpreet Kaur and Kare Babies.

85. On 7 May 2010 a meeting was held to consider Tasleem Sarwar’s objections to the notice of intention served by Ofsted to refuse to register her as a provider of childcare at Kare Babies. Ms Sarwar attended the panel and was represented by a solicitor, Mr Barrett. Mr Tom O’Neil, senior officer in the Compliance, Investigation and Enforcement Team at Ofsted recorded that Mr Barrett told the panel that there may have been some misconception over Ms Sarwar’s role within the nursery run by Ms Kaur.  Mr Barrett submitted that Miss Sarwar had not been the manager, rather she had been a deputy “and her duties and responsibilities are limited accordingly.”  With regard to the shortcomings of the nursery, Mr Barrett stated that Ms Sarwar’s position was one of “simply having no responsibility for the matters in question.”

86.  Mr O’Neil records that the EY2 form signed by Ms Sarwar identified her as being the person to ‘directly manage the day to day operation’ and to be the person who represents the provider in dealings with Ofsted. 

 

Ofsted’s position

 

87. Ofsted’s position is that neither Appellant was or is a suitable person to be registered for early years or later years provision because of the catalogue of failure to comply with inspection and welfare notices, the numerous complaints about the provision and the inadequacy of cooperation which led to the Respondent having no trust at all in anything which Ms Kaur or Ms Sarwar asserted. They assert that by November 2010 the nursery was simply unsafe and the lack of cooperation and level of dishonesty means that they cannot work with either Appellant to ensure adequate protection for any children in their care in the future.

Evidence

 

KANDOLA

Did Ms Kaur fail to declare the surname Kandola on registration even though it was a name she had used?

 

88. On her application to be a registered provider Ms Kaur gave Sukpreet Kaur as her only name, both currently and historically. Following a Position of Trust meeting at Birmingham Social Services Department on 14 May 2009 Sue Crawford was informed by the police that Sukpreet Kaur was also known as Sukpreet Kandola. Ms Crawford visited Ms Kaur on 8 February 2010 with Esther Gray and examined her personnel records.  The file included all Ms Kaur’s school qualifications where her surname was recorded as Kandola so Ms Crawford asked her why she was now known as Sukpreet Kaur.  She said that she is just now Kaur.  Kandola was her Dad’s name but she did not really use it any more.

89.  Ms Kaur’s evidence to the tribunal was that she did not know where the  name Kandola came from she has always used the name Kaur.

 

STAFF IDENTITIES

Was there a failure to confirm the identities of Naima Hussain and Tasmena Begum amongst others leaving unverified and unchecked staff in charge of children?

 

90.  At the visit of Sue Crawford and Marie Foster on 28 September 2009 concerns were raised about the identification checks on Naima Hussain and Tasmena Begum. Ms Crawford was told that Tasmena was working that day in the pre-school room but was currently on her break and would be back shortly. Ms Crawford requested this employee’s personnel file and was given the file for a Tasmena Begum whose date of birth was recorded as 24 January 1986 and her home address as 126 Antrobus Road.  When Ms Crawford spoke to the employee she  introduced herself as “Tasmena Hussain” date of birth 20 July 1988. Sukpreet Kaur explained that Tasmena Begum’s name was different because she had separated from her husband. A birth certificate for Tasmena Begum showing a date of birth of 20 July 1988 was produced the following day but without photographic evidence. When this was followed up by Ms Crawford during a telephone call on  2 October 2009 with Ms Kaur she was informed that that ‘Tasmena’ had left Kare Babies on 29 September.

 

91.  Ms Crawford’s evidence was that at the visit on 28 September she spoke with Naima Hussain, who, when asked when her last CRB had been completed, could not recall. Sue Crawford said that she was told by Naima Hussain that she started work at Kare Babies on 18 March 2008 but on inspecting the records references for Naima Hussain were not obtained until 13 March 2009 and the staff signing in record did not record her as present until March 2009. Ms Crawford’s evidence was that on 29 September 2010 there was still no identification or CRB evidence available for Naima Hussain but she was still having unsupervised access to the children. Sukpreet Kaur later informed Ofsted that she had obtained an out-of-date passport for Naima which had expired in April 2004.

 

92. Ms Holt’s evidence was that they had not seen a current passport for Naima Hussain and had never ever seen original certificates for her qualifications.

93. Mr Downs cross examined Ms Kaur on the inadequacies of the Kare Babies safeguarding policies and suggested that although she had initialled them to suggest they were updated in 2010, nothing in fact had been done.  Ms Kaur accused Mr Downs of removing the policy from her folder: “There was a safeguarding policy.  It was in here.  You had the folder and it’s not here now.”  The document was located in the folder.  Ms Kaur stated that it had been updated every year and that she had been through it with staff and all staff had been trained.

94. Ms Kaur’s evidence was that she had a robust checking system for staff.  She pointed out that someone with an out of date CRB check could work on probation supervised by a vetted member of staff.  She said “Ofsted were always saying staff aren’t checked.  My members of staff were checked.  There was no serious abuse during this time.  I was vetting the staff.  Ofsted saw the staff files.”

 

JAS DHINSAY

Were Ms Kaur and/or Ms Sarwar involved in the impersonation by a staff member of Jas Dhinsay?

 

95. On 28 September 2009, following allegations that staff were being told by Sukpreet Kaur to give false information to Ofsted Inspectors, Sue Crawford and Marie Foster visited Kare Babies to investigate. They believed that Sukpreet Kaur and Tasleem Sarwar had not verified the identity of three members of staff called Jas Bowler, Naima Hussain and Tasmena Begum. Ms Crawford asked for Jas Bowler’s staff file and was given a file for Jas Kaur Dhinsay with the explanation that Jas Bowler now wished to be known as Bowler not Dhinsay. The address recorded for Jas Dhinsay at the nursery was 33 Kent Street, but when Sue Crawford asked Jas Bowler for her current and recent addresses she did not give that address.

96. On 29 September  Ms Crawford revisited the nursery to see ID documentation for Ms Dhinsay. She states: “I was shown a very poor quality photocopy which was smudged, you could not see the picture and the name running along the bottom of the passport was typed in different font i.e. Jasvinder was in one font and Kaur in another. There was also no Criminal Record Bureau Check (“CRB”)  available or completed.”

97. Follow up telephone calls to Ms Kaur asking for identity documents for Jas Dhinsay/Bowler were said to be met with the response that she had left the nursery. Staff files seized from Kare Babies on 7 and 8 January 2010 gave a further address for Jas Dhinsay so Ofsted contacted Jas Dhinsay at the address given on the qualifications in that file.

98.  On 15 February 2010 Sue Crawford met the Jas Dhinsay contacted through her qualification records. She states that this Jas Dhinsay was an entirely different person who confirmed to Esther Grey that they had not met previously. Ms Crawford said the two women called Jas Dhinsay “were like chalk and cheese”. At this meeting Ms Dhinsay told Ms Crawford and Ms Grey that she had never worked for Kare Babies Nursery. She had attended Kare Babies for an interview. At the suggestion of Ms Kaur she had taken a tour of the nursery, leaving her qualifications and CRB check in the office. She was shown the copies of qualifications held on Kare Babies files and confirmed that these were copies of her originals. She produced the originals to Ofsted. Ms Crawford stated that Jas Dhinsay told them that she had not given permission for her documentation to be copied and was “very unhappy” that this had happened.  Ms Dhinsay had not pursued a job with Kare Babies but had noticed that a photograph had been taken from her folder at the nursery. She produced her original qualifications to Ms Crawford and Ms Gray and photo identification in the name of Jasvinder Dhinsay.

99. Ms Kaur’s evidence was that Jasvinder Dhinsay came for an interview and was given a job.  She brought her qualifications with her.  Later on she said that she had relationship problems and wished to be known as Jas Bowler.

100.       Mr Downs challenged Ms Kaur about the alleged change of name and why staff records were not changed when the name change occurred.  Ms Kaur replied that as Jas Bowler had no documents with that name on it the records were not changed.  She denied that the photocopy of the passport, showing writing in different fonts and a smudged photograph was clearly a fake.  She said “There has been a lot of ups and downs.  She told me she was going to India.  I thought she could be summonsed.”

 

PATSY MCGHIE

Were Ms Kaur and Ms Sarwar honest about Patsy McGhie’s role at Kare babies, her suitability and qualifications?

 

 

101.       Sue Crawford stated that she was told at a visit to Kare Babies on the 28 September 2009 that Patsy McGhie was the nursery cook. On 10 December 2009 Esther Gray visited Kare Babies nursery with a local authority development worker called Val Robinson, on 10 December 2009. Her evidence was that she was introduced to Patsy McGhie  and told by Ms Kaur that Patsy was the cook. Her statement records that Patsy was dressed in protective clothing and was in the kitchen, and Ms Gray confirmed in oral evidence that she recalled Patsy McGhie was wearing a hairnet. Ms Kaur challenged her and said that in fact she had clearly said that Roseena was the cook. Ms Gray denied this and said she was very clear in her recollection. Ms Gray states that she asked her about her understanding of food hygiene and whether she had obtained training in this. Patsy said she had not and was concerned that she was being asked to lie to Ofsted about this by Ms Kaur. She was concerned that another member of staff may have impersonated her. Ms Gray’s evidence was that she later asked Ms Kaur if her cook had been trained in food hygiene and Ms Kaur said that she had paid for Patsy McGhie to attend a course at University College Birmingham.

 

102.       Ms Gray visited Kare Babies again on 7 January 2010 . She had received a response to the notice from Ms Kaur which stated that, ‘the food preparation is done by Pasty [sic] the cook who has received her certificates and we have enclosed a copy of this.’ Ms Kaur had submitted a food hygiene certificate in the name of Patsy McGhie, who Ms Kaur said had left the premises earlier in the day. Ms Kaur told Ms Gray that the food hygiene exam took place in September but that the certificate had got lost and therefore was issued on 21 December 2009. Esther Gray’s evidence was that Sukpreet Kaur told her on the  visit that Patsy McGhie wasn’t present because she had left early at 11.45am to pick up her daughter from school, and that she had prepared the food before she left.

103.       Ms Gray interviewed Patsy McGhie on 15 January 2010. Patsy told her that she had not been to the nursery since 23 December 2009 when she went to confront Ms Kaur about non-payment of wages. She said that she had not sat a food hygiene exam and that the certificate shown to her, which had been sent to Ofsted by Ms Kaur was not hers.

104.              Ms Gray contacted University College Birmingham. They responded that they had refused to issue the certificate because they were worried about impersonation. They had not issued the certificate sent to Ofsted by Ms Kaur. Once this came to light, Ms Gray stated that Ms Kaur denied that Patsy McGhie had ever worked as a cook and that Rozeena Kosar, who held a food hygiene certificate was the cook. In July 2010 a new member of staff, Doris Masih, was employed as the cook. She held the relevant certificates.

105.       On 25 January 2010 Esther Gray and Sue Crawford visited because Ofsted believed they had evidence that Sukpreet Kaur had still failed to meet the requirement dated 17 December 2009 requiring her to ensure those responsible for the preparation and handling of food were competent to do so. Sue Crawford’s evidence was that Sukpreet Kaur told them that Patsy didn’t cook the food and never had done.

106.       Dr Sharma raised a complaint that Mr Downs had entered the witness room where Ms McGhie was waiting to give evidence and had spoken with her and that Mr Downs had refused to allow Dr Sharma to speak with the witness. Mr Downs explained that he had greeted Ms McGhie and given her a copy of her statement to read. He had asked her if she wished to swear or affirm and had not entered into any other discussion. He had agreed that Dr Sharma could speak to Ms McGhie if he was present, and she had refused. Ms McGhie confirmed that she had not discussed any evidence with Mr Downes.  Dr Sharma made an application for an adjournment, as she said that she had had inadequate time to prepare and she was also concerned that a statement from Patsy McGhie had been deliberately withheld by Ofsted and that Ms Kaur’s case was therefore prejudiced. The case was adjourned for 45 minutes to give her time to prepare the cross examination of Ms McGhie.

 

107.       Ms McGhie’s evidence was that she had needed a job and had been told that Kare Babies were recruiting. She had been to the nursery and was offered a job looking after the children but this was unsuitable because she had to pick her own daughter up from school. She was therefore offered the cook’s job which was 9am to 2.30p.m. She had a nutritional certificate and a very basic experience of preparing supper for care home residents in a previous job but otherwise had no qualifications or experience to do the job. She started the job in May 2009 and was paid £70 per week. She did the cooking, washing up and kitchen cleaning on her own at the nursery.

 

108.       Dr Sharma asked Ms McGhie about a statement that she had made on 7 April 2010 effectively retracting her earlier allegations about Kare Babies. She said that she had given a statement to Ofsted in January 2010. Ms McGhie then explained that Ms Kaur had owed her quite a lot of money when she had had to leave Kare Babies on 23 December 2009. Ms Kaur had contacted her and offered her the money she was owed but then she and the other employees present put pressure on Ms McGhie to retract her statement. She initially denied that she had been to a solicitor’s office on that day but having had a break she confirmed that she remembered that she had been taken to a solicitor by Ms Kaur.  They were advised to write a statement and send it in to the solicitor. She had then been taken to Kare Babies where she had very reluctantly signed the statement and had been paid her money. She said “ Ana and Rozeena were there. I was unwilling. I just wanted to get it over and done with…They begged me to do the letter. I was a little bit scared.”

 

109.       Dr Sharma suggested to Ms McGhie that in the third week of December 2009 she had sent a statement to Kare Babies saying that she had been bribed by Ofsted to make allegations about Kare Babies. She denied sending such a statement or making one. She had been asked numerous details by Ms Kaur about how the statement had been given to Ofsted, including the venue and what car the inspectors drove. She said that nobody from Ofsted had ever offered her a bribe and she certainly had not sent anything to Ms Kaur stating that. She’d had to leave Kare Babies because she refused to be involved in obtaining a false food hygiene certificate.  She denied lying because she was sacked and said she had been paid all the money she was owed after she retracted her Ofsted statement.  Finally, she confirmed that the Ofsted statement was true and she had not been bribed to make it.

110.       Mr Downs cross examined Ms Kaur about the chronology relating to the letter she said Ms McGhie had sent to the nursery alleging that she had been offered a bribe.  Ms Kaur confirmed that the letter had been sent in December 2009 and was seized by Ofsted on 7^th January 2010.  Mr Downes asked how it was that she had also alleged that the police had seized the letter in October 2010.  Ms Kaur replied that in fact she had two copies.  One had been seized in January 2010 by Ofsted and the other by the police in October 2010. She said that both the police and Ofsted are wrongfully withholding the evidence.  Mr Downes asked why the ‘statement’ had not been disclosed during the proceedings if she had a copy until October 2010.  Ms Kaur stated that her solicitor had told her to hold on to it until exchange of documents, and the fact that this did not happen in August 2010 as directed was her solicitor’s fault.

111.       Mr Downes showed Ms Kaur the letter to Ofsted dated 17^th December 2009 referring to “Pasty (sic) the cook”.  Ms Kaur said that patsy was not the cook and the letter ‘should have been in a different format.’  Mr Downs pointed out to Ms Kaur that she had made great play of the fact that Ms McGhie had been trained at Birmingham University.  She denied trying to obtain a food hygiene certificate from UCB for Patsy McGhie.  “. . .  it wouldn’t have been no use to me” and pointed out that a letter to Ofsted from the university which raised concerns about possible impersonation had nothng to do with her because it referred to ‘Manjit’ Kaur.  Ms Kaur also denied putting any pressure on Ms McGhie to retract the allegations she had made in a statement to Ofsted.  She stated ‘She made it of her own free will.  She never was the cook.’

 

 (v) Were Ms Sarwar and/ or Ms Kaur involved in the forging of a reference for Sarah Russell from Mayfield school?

 

112.       Ms Crawford and Esther Grey’s evidence was that they had examined Sarah Russell’s staff file which included the record of a verbal reference request made to ‘Mayfield School’ from ‘Lilly Yorke’, whose position was stated as Teacher/supervisor.  The file entry was completed and signed by Tasleem Sarwar and was dated 07 October 2009.  A written reference request had apparently been completed and signed by Lilly Yorke and was dated 05 October 2009 from Mayfeild [sic] School with a note on it to “foward: Taslim”. Ms Crawford said that she had noted a complaint re Kare Babies logged on 12 October 2009 from Mayfield School, Heathfield Road. On 22 February 2010 she telephoned that Mayfield School and spoke to Mr Dave Francome, Head of Early Years Education, who had written the letter of complaint. He confirmed that Sarah Russell had come to the school seeking references in respect of a position that she had held there as a lunchtime supervisor.  She had also requested a copy of the reference that they had taken up when they employed her in that role. The school had refused to provide a reference.

113.        Ms Crawford’s statement records “When Sukpreet Kaur appealed against the cancellation of her registration, she alleged that Ofsted had made a mistake and in fact it was Mayfield Preparatory School that had provided the reference. On 28 April 2010 I contacted the Head of Mayfield Preparatory School who is now Matthew Draper. Matthew Draper confirmed that the school has never employed nor had on placement a person by the name of Sarah Russell and did not know of anyone named Lilly Yorke. I showed Matthew Draper the reference letter, he highlighted several inaccuracies including: the previous Head Teacher was Mark Coleman not Mark Coldman as detailed on the reference letter, the signature was not Mark Coleman’s, (as the school provided me with an example with which to make a comparison and which was completely different to the one on Sarah Russell’s reference letter). He also highlighted that the template used was not that used by either himself or Mark and that Mark always signed his letters ‘Head’ not Head Teacher.”

114.       Mr O’Neill’s unchallenged written evidence was that during the meeting with Ofsted on 7 May 2010 it was also suggested on behalf of Ms Sarwar that Ofsted had made contact with the wrong Mayfield school.

115.       Ms Sarwar had produced a letter of reference to Ofsted purporting to be from Mayfield Preparatory School, Sutton Road, Walsall.  Mr Barrett, her solicitor, told the meeting that Ms Sarwar had spoken to a Miss York who worked at that school and had subsequently received the letter of reference.  She also stated that she had sent off a copy of the nursery’s reference request form to that address and had received a completed copy back.

116.       Mr O’Neill records that it was explained at the meeting that Ofsted had contact with both schools. Sarah Russell had worked at the school in Heathfield Road but they had declined to provide a reference because she had already started work at Kare Babies and they had referred the matter to Ofsted.  Sarah Russell had not worked at the school in Sutton Road and neither had anybody named Lilly York, the purported signatory of the reference provided by Ms Sarwar. Ofsted challenged Ms Sarwar about this at the meeting. She suggested that Sarah Russell must have forged the reference.

117.       Ms Russell’s evidence to the tribunal was that Ms Kaur had shown her the “Mayfield” reference and told her that Tasleem had made it. She said that it wasn’t from the Mayfield school she had worked at and she had nothing to do with it. She was too scared to tell Ms Kaur that they’d got the wrong school. She’d been taken to the Mayfield school she had worked at by Ms Kaur to ask for a reference but had been told that it was too late, especially since she was already employed at Kare Babies and was wearing one of their tops. When she’d left Kare Babies she’d been owed £2,488. She had not left on good terms because it was hell for her at Kare Babies.

118.       Ms Russell’s mother gave evidence that she had challenged Ms Kaur over her failure to pay Sarah. She said that Ms Kaur had shouted and banged her hands on the office desk, saying “I’m not scared of Ofsted or the police.” At one stage when Ms Kaur had no money she offered them a tenancy at one of her rental properties “…and you can sign on…”  and suggested that Sarah claimed for an accident at Kare Babies and made a false claim on the insurance.

119.       Sian Piercy gave oral evidence about the day Sarah Russell came to Mayfield School to ask for a reference. She particularly remembered ‘Care’ being spelt ‘Kare’ on Ms Russell’s work shirt. She described Ms Russell as tense and rushed. Ms Kaur suggested that Ms Piercy had received a letter from Kare Babies. Ms Piercy denied this but said she had received a compliment slip with nothing attached. Ms Piercy told the tribunal that she was very concerned about safeguarding issues arising from the visit.

120.       Ms Kaur’s evidence to the tribunal was that she hadn’t taken Ms Russell to the school to collect a reference and that she hadn’t been involved in forging a reference from the school.  Mr Downs suggested that she and Ms Sarwar had not even made basic enquiries about Ms Russell when she was employed at Kare Babies, and had been involved in attempted deception of Ofsted by producing a reference from the wrong school.  Ms Kaur denied any involvement and suggested the school’s evidence was incorrect.

MEETING STANDARDS

 

Was there a consistent failure to meet standards?

121.       Ms Gray said that she had reviewed the initial registration file from 2007. There were concerns that Ms Kaur lacked experience but she had told Ofsted that the previous manager, Ms Jackson, would be employed as manager. There would therefore be someone very experienced working in the role. When Ms Jackson did not continue to work at Kare Babies she was contacted by Ofsted and said that she had never agreed to work for Ms Kaur and hadn’t had any intention of doing so.

122.       Ms Gray stated that on the December 2009 visit none of the staff had current CRB checks, so a Welfare Requirements Notice was issued. She explained to the panel that she was trying to help Ms Kaur and Ms Sarwar identify a robust system of checks and child protection procedures. Despite some attempts at improving the system by Ms Sarwar, who had recorded on Naima Hussain’s file that someone at Kare Babies had seen her passport, Ms Kaur was reactive rather than proactive and there was never a sustained or satisfactory approach to checking staff identities and getting CRB checks. She said “Unfortunately the system was not robust”.

123.       Ms Kaur produced a document which she said demonstrated that staff had agency checks. Ms Gray commented that “Being given an invoice today is not evidence that there was a robust system in place.”

124.       Ms Kaur suggested to Ms Gray that in any event unchecked staff were supervised. Ms Gray’s evidence was that Ms Sarwar had indicated that unchecked staff  were supervised by CCTV whilst their checks were awaited. Ms Gray said that she had explained to Ms Sarwar that since CCTV did not cover private areas it was inadequate, especially since they were the very areas where abuse might occur, but she seemed to lack understanding on this issue of risk or potential risk.

125.       Ms Crawford gave evidence of a complaint made via Handsworth Job centre that people were being asked to sign in at Kare Babies as others. The person who complained did not wish to give evidence or become involved, but this had heightened concerns about the veracity of the documentation. Ofsted had also received other similar complaints in August and September regarding inadequate safeguarding and vetting of staff. Following an investigation visit in September 09 a Notice of Action to Improve was issued.

126.       Sue Crawford gave evidence that on the visit of November 1 2010 Doris Masih, the cook, was helping Ms Kaur to care for the children. This meant that there was no one in the kitchen. It was after half past twelve and she asked if the children had had lunch. Ms Kaur insisted that they had but a little boy piped up that he hadn’t had any. There was no evidence of the aftermath of lunch in the kitchen. Ms Crawford did not believe that the children had had lunch, and felt their needs were not being met.

127.       Ms Kaur produced a statement from Doris Masih dated 25 February 2011. This alleged that the children had had breakfast between 8a.m. and 9 a.m. and lunch at 10.30 a.m. She suggested to Ms Gray that the children had therefore been fed. Ms Gray replied that she believed the children had still not been fed at 12.37 because when the children were taken into the dining room they appeared to be looking for their lunches

128.       Sarah Russell’s evidence was that there was a very high staff turnover and the required staff : child ratio was not always met. This was partly due to the fact that Ms Kaur would not employ a cleaner and would instruct nursery staff or students on work experience that they had to do the cleaning. They would then leave. She said “There were that many coming in and out!”  She said she was supposed to look after 4 children but on quite a lot of occasions she had more than 4 children to look after and once had 9.  She said that Doris, the cook, had to leave the dinner to support her when the inspectors came. She was worried about reporting anything because of the threats made by Sukpreet Kaur who she said ran the nursery by fear and had threatened her mother. She said that the parents had no idea what it was like when they left their children. “Ms Kaur would threaten them that there was a lion in the office that would eat them and she would shout at them and make them cry.”

129.         Ms Gray’s evidence was that when they had started to look at historical staff files and signing in sheets there were many discrepancies. She said “I began to distrust who was looking after who. If we couldn’t be confident  of identities we couldn’t rely on the documentation and we could therefore not rely on safety.”

130.       CD gave evidence about her son, K. She brought photos of extensive nappy rash which she alleged he had suffered due to neglect by the Kare Babies staff. She told the panel that she had taken the photos when she had undressed K on a Friday evening in August 2009 after she had taken him home. The rash was so severe she could not put a nappy on him. She had shown Ms Kaur the photos and a regime was brought in whereby CD would check him each day with a member of staff when collecting him. CD said this happened for about 2 weeks then stopped. Ms Kaur put several documents to CD alleging that she had signed them, including a nappy changing confirmation sheet from June 2009. CD denied that she had signed the sheet, although it looked similar to her initials, but she alleged that the sheets didn’t come in until after the nappy rash problem in August. Similarly, Ms Kaur produced a document which she said was the accident report form for the incident when K was given very hot food. Again, CD said that the first time she had seen the sheet was when Ofsted produced it to her.

131.       CD told the panel that when she went to the nursery to tell Ms Kaur that she was removing K Ms Kaur was very aggressive. She said “How dare you speak to them [Ofsted]?, and threatened to report CD to the Child Tax Credit authority for over claiming. Ms Kaur denied acting in an aggressive manner or making any threats.

132.       Ferroza Saiyed’s evidence was that she had gone to Kare Babies in July 2010 as “A fresh pair of eyes.” She had read the previous report and was aware that Ms Kaur had made a complaint about the conduct and reporting of the inspection. Her main task was to consider whether Early Years standards were being met. She hadn’t really discussed the inspection in detail with her colleague, other than to consider who would be the scribe.

133.       Ms Saiyed’s evidence was that during the course of the visit she saw a member of staff just sitting looking at the children with no interaction at all. Also, they saw another member of staff ignoring a baby. Ms Kaur challenged her and said if she had seen that she should have challenged the staff member. Ms Saiyed confirmed that she had raised interaction with the staff member but she had not replied. She told the panel that the staff acted more like baby sitters than early years staff. Ms Kaur suggested that all the staff had been trained, however Ms Saiyed said she felt that it was even more serious if they had been trained yet still failed to appreciate the need for interaction with children. Ms Kaur also suggested that the staff undertook learning journeys with the children. Ms Saiyed replied that the documentation was at least three months out of date and many of the records were strikingly similar for each child, which did not indicate good practice. Similarly the observation boards were dated May and the inspection took place in July.  Ms Saiyed stated in her statement that during the course of the two day inspection on 20^th and 21^st July 2010 she observed and through discussions with staff that not all of the children had a key worker. She stated that this was extremely important for children’s well-being, because there was no key person, they were unable to build a strong relationship with their carer. 

134.       Ms Kaur showed Ms Saiyed the references from parents who had said that they did not agree with the Ofsted reports. Ms Saiyed replied that most parents are not there for substantial periods of time, and obtain all their information from the staff. She had reported what she had seen from extensive observations. She had hoped to speak to parents at an open forum at the nursery but nobody had attended. Ms Kaur alleged that one parent, Ms T-C had alleged in a document dated 24^th October 2010 but disclosed to the tribunal on the 25 ^th March 2011 that Ms Saiyed had pushed past her and been rude. Ms Saiyed said that it was the first she had heard of such a suggestion and she was shocked. She completely denied any suggestion that she had been rude to anyone.

135.       Ms Saiyed gave evidence that the resources for the children were limited, with just a few building blocks and books in the dining area and that some of the resources were out of reach in the pre school room. Ms Kaur suggested that in fact there were soft toys and sand trays there but Ms Saiyed stated that there were none there on the day of the inspection. Ms Kaur produced photographs of the nursery taken after closure and showed them to Ms Saiyed. Ms Saiyed said that the layout looked very different and there were far more resources in the photos. Ms Kaur suggested that the resources were exactly the same.

136.       Ms Kaur suggested to Ms Saiyed that there were various hygiene procedures in place such as hair nets and signs about hygiene. Ms Saiyed said that she did not recall seeing them but she was very concerned about food she saw on the floor, children dropping their cutlery and continuing to eat with it and children not being prompted to wash their hands. Staff appeared to take no action.

137.       Ms Saiyed witnessed child K being given very hot food by the cook and she demonstrated how he flinched when he put the food to his mouth. Despite staff giving him a cold drink he would not take any further food for the whole lunchtime break.

138.       Ms Kaur’s case as put to Ms Saiyed was that the incident did not occur, and that the child would have had burn marks if events had occurred as Ms Saiyed described.

139.       Ms Saiyed continued by saying that when she looked at the policies and procedures some were missing and Ms Kaur rang Ms Sarwar to ask where they were. Ms Kaur denied this. She produced a policies and procedures file, which had not been produced before, and suggested to Ms Saiyed that she had been shown that file and had looked at it for an hour. Ms Saiyed said she had not been given that file before. Ms Kaur accused her of lying, which she denied. In particular she had said she had not seen any comprehensive risk assessment for the building, which has to be done every year. The child protection policy she’d been shown was also different to the one produced at the hearing, and was much shorter and referred to the ACPC.  Ms Riley, who jointly inspected with her, confirmed in her evidence that the policy they saw was written before the new procedures, so they were concerned that staff were not appropriately aware.  She said the policies and procedures had the heading of the previous owner.

140.       Ms Kaur suggested to Ms Saiyed that she had in fact seen the file in it’s entirety and that the policies and procedures were good practice standard. Ms Saiyed denied this and said the policies were deficient. Ms Kaur did not put any of the documents to Ms Saiyed which she had requested in an unredacted form and had been provided to her.

141.       Ms Kaur told the panel that she is 26 years old and has worked in childcare for a number of years and is fully qualified.  She had bought Kare Babies from her employer with the help of a loan obtained by her father.  When she took over Birmingham City Council did not give her the help that they should have done.  She felt that staff turnover was high because Ofsted had harassed them and picked on them.

142.       Ms Kaur continued by stating that the Ofsted inspection reports were inadequate and that each action raised by Ofsted had been met at Kare Babies.  She denied that staff were unvetted: “Ofsted saw the staff and knew they were vetted.”  Naima Hussain’s passport was out of date but they saw her original driving licence.  The fact was that she had good staff:child ratios, the staff were trained and the facilities were very good and always clean.

143.       Ms Kaur’s evidence about child K was that the nappy rash was not the responsibility of Kare Babies: “It didn’t happen at the nursery.”  She also told the panel that she was not present when it was alleged that child D was given very hot food.  She said “I don’t believe the child put the food in its mouth.  All the children’s needs were met at Kare Babies and there were sufficient resources.  Although she had had ‘bad’ inspections Ms Kaur said that she made changes which were ignored and there was certainly no reason to close the nursery.  She felt that the inspectors misreported what they had seen.  “They were always negative  . . . like a ton of bricks.” The nursery was always satisfactory or good.

 

 

Did Ms Kaur and/or Ms Sarwar put children at risk by erecting the extension on the flat roof of a ground floor single storey building?

 

144.       Sue Crawford’s statement records that on 11 May 2009 Ofsted received information from Birmingham Local Authority about a “small extension” that had been constructed on the first floor over a flat roof over the top of the baby room. The construction was described as “a wooden summer house, 12ft by 8ft with a polycarbonate wavy roof and the roof height of the room was approx 5ft high. The step leading from the pre-school room into the summer house was approximately 24 inches and the entrance was approximately 28 inches wide”. On 26 May 2009  the Fire Officer and Birmingham City Council Planning Department ordered Sukpreet Kaur  to remove the structure immediately. Sue Crawford showed the parties and the panel photographs of the extension on her laptop. 

145.        Ms Crawford’s evidence was that Ms Kaur admitted that she had failed to notify Ofsted of the change to the nursery premises, which  is an offence under The Early Years Foundation Stage (Welfare Requirements) Regulations 2007, and that she cautioned Ms Kaur for this offence and subsequently interviewed her under PACE with Johanna Holt. During the interview Ms Crawford records that Ms Kaur was asked …”what structural survey she had undertaken to ensure the safety of the structure and also the safety of the existing premises it was erected on. Sukpreet Kaur told us that there were two builders who had certificates and one went into the baby room underneath the flat roof and the other walked out onto the flat roof, and that the builder then proceeded to jump up and down. Sukpreet Kaur said that because there was no movement it was deemed as “okay”. She said that the builders had lifted some of the felt to check the construction underneath and the conclusion was that it was okay to construct the shed.”

146.       Ms Crawford’s evidence was that she had been shocked when she saw the “extension”. Tasleem Sarwar told her they needed an additional role play area, and that a builder had erected the shed on the flat roof single storey extension. She told Ms Crawford that the builder had checked the safety of the roof by jumping up and down on it. She denied that it was simply a storage area and produced photographs of the contents and layout of the shed.

147.       Ms Kaur’s evidnce was that the structure was erected by qualified builders as a storage area.  She denied that it was unsafe or that children used it, and said “It was taken out in days”.

 

Were Ofsted officers obstructed from entering the premises?

148.       Ms Russell told the panel that CCTV cameras showed who was at the nursery door. On 27^th August 2010 Ofsted officers arrived unexpectedly. The door was not opened until Ms Sarwar had a chance to leave and the cook had come from the kitchen to make up the numbers supervising the children.

149.       Ms Crawford gave evidence that on 1 November it was about 40 minutes from their arrival at the nursery before Ofsted could gain entry. They arrived at 3 minutes to eleven and gained entry at 11.36. They had rung the doorbell and telephoned the nursery. They could hear children crying. When they gained entry she tried to caution Ms Kaur but was unable to because Ms Kaur was so wound up. The total lack of cooperation meant that Ofsted could not continue to monitor the nursery.

150.       Ms Gray said that when they had gained entry Ms Kaur was arguing with the police. Ms Crawford had asked her to calm down. Ms Kaur had indicated that she did not wish to speak with Ms Gray. Ms Kaur suggested that a member of staff called Mandeep was present on that day. Ms Gray stated that Mandeep was not present, and in fact that was why the cook, Doris, was supervising the children rather than making the lunch.

151.       Ms Sangha suggested to Ms Gray that all proper procedures were followed for staff vetting and all files were complete. Ms Gray stated that she found three unchecked staff members. In the case of Naima Hussain an out of date passport had been provided and there was no birth certificate. She said that at the time Ms Kaur accepted that the matter remained unresolved. The whole system was poor and inadequate, and despite issuing actions Ms Kaur and Ms Sarwar were unable to address the problem. She explained that she’d looked at 17 files in total and she had aleted Ms Kaur to the difficulties.

152.       Ms Sangha also suggested that Ms Gray had manufactured evidence by telling the cook, Doris Masih, to put food on the floor which she had then photographed. Ms Gray denied that she had done so.

FORGED PC SOHAL REFERENCE

Was Ms Kaur and/or Ms Sarwar involved in the provision of a forged reference for Ms Kaur purporting to be from P.C. Sohal to Ofsted?

 

153.       PC Sohal gave evidence that he had never seen the reference for Ms Kaur dated April 8 2009 which was purported to be from him. He said that he had offered to give Ms Kaur a personal reference but had not heard anything further until called in by his Chief Inspector and asked if he had provided the reference. He denied it and offered to have his fingerprints taken and to have the paper tested. He said his child had attended Kare Babies and he had occasionally signed in there on visits.

154.       Dr Sharma cross examined him on behalf of Ms Kaur who also asked some questions. The case put to him was that he had sent the reference to Kare Babies and was lying. Ms Kaur suggested to him that he was a benefit cheat who had collected tax credits even when his child had left Kare Babies. She said that this proved his dishonesty. PC Sohal said that he had not claimed any additional benefits after his child had left the nursery. Reluctantly he told the tribunal that Ms Kaur had actually rung him and demanded money “out of the blue” She alleged that he’d been over claiming tax credit and that he should pay her £10,000 which would be reduced to £2000 if he paid it in 5 days. He’d told her he wasn’t over claiming and wasn’t going to pay her anything. He said the person who wrote the letter referred to a daughter, when it was his son who had attended Kare Babies. Ms Kaur denied any threats and suggested he was lying because he is a benefit cheat.

 

BRIBERY AND RACIAL HARRASSMENT

Were bribes offered/paid by Ofsted to individuals so that they would give evidence against Kare Babies? Has there been a policy of racially motivated harassment of Ms Kaur and her staff by Ofsted inspectors, particularly Sue Crawford and Esther Gray?

 

155.       Johanna Holt’s evidence was that Naima Hussain was picked up in a hire car and taken for a recorded interview at the Ramada Inn. Esther Gray drove the car and there was just general chit chat about things other than the nursery until they had got to the hotel and set up the recording equipment. They did not give any documents to Ms Hussain.

156.         Ms Kaur suggested to her that she had bribed Naima Hussain to make an untruthful statement about Kare Babies. Ms Holt responded that “I have not tried to bribe anyone. I don’t have £5000 just to give to someone. Neither of us bribed her; she contacted us to give us information about Kare Babies.”

157.         Ms Gray gave evidence that Naima Hussain contacted Johanna Holt and had asked for a meeting. Ms Gray had contacted her to sort out a suitable time and had given her a works mobile number to assist in the process. Ms Kaur said ”You told her exactly what to do and say”. Ms Gray said that that would have been very difficult. She did not think that Ms Hussain was the sort of person likely to be willing to give false evidence which could harm children. She denied bribing or attempting to bribe anyone and said she had never intimidated any of the Kare Babies staff at any time, nor any other person who she had come across during over ten years working in an inspection capacity.

158.       Sonia Dhesi told the panel that she had arrived at Kare Babies at about 10.45 a.m. to enquire about work experience. She had signed the visitors book and been taken to the staff room by Ms Kaur where she had waited. She said that there was no bolt on the door and the door was unlocked. After about half an hour there had been a lot of noise and the police arrived. An Ofsted inspector had introduced herself and shown her ID and asked her who she was and why she was there. “They asked for my address but I didn’t give it to them. She said ‘you’d receive an award’. I assumed it was to make comments about the nursery. I was upset after the visit so I wrote a statement and sent it to Kare Babies.” Ms Dhesi denied that anyone had asked her to write the statement.

159.       When cross examined by Mr Downs she accepted that she had told the Ofsted inspector that she was related to Ms Kaur, which was untrue. Ms Kaur had said she should leave and described Ms Kaur as  “on edge”. She was sure either Sue Crawford or Ester Gray had mentioned an award: “I didn’t really think about it at the time”. She replied “I can’t remember” in response to many of Mr Downs’ questions. Mr Downs challenged her statement which said that she had been asked if she was an illegal immigrant. She replied “They asked if I was British. I wasn’t really paying attention. I was texting my sister”. She had completed her work experience at her Aunt’s nursery.  She confirmed that there had been no prior arrangements to attend Kare Babies on that day.

160.       Ms Gray gave evidence that she had had very little time to ask Sonia Dhesi anything, because “Ms Kaur was hot on my heels.”.  She had seen that Ms Dhesi was nervous and reassured her. Ms Dhesi had volunteered that Ms Kaur was related to her. She stated that Ms Kaur had intervened and stopped her asking any further questions. She had not made any mention of an award and did not offer Ms Dhesi anything to make a negative statement about Kare Babies.  The door to the room had been bolted on the outside.

161.       Sarah Russell’s evidence confirmed that there was a bolt on the outside of the office door to stop children going into the staff room. On occasion this was shut accidentally locking people in the staff room.

162.       Ms Kaur cross examined Sarah Russell on the basis that she had been racially abused by Ms Crawford. She strenuously denied it and said “Ofsted have always been friendly”

163.       Ms Russell was cross examined by Ms Kaur about a statement which she had allegedly made to the police about racial abuse by Sue Crawford. She denied making it or signing it and pointed out the signature was very different to her own.

164.       Ms Kaur told the tribunal that Ms Russell had made the statement to the police and she had CCTV footage of this occurring which had been seized by the police and wrongfully retained by them.

165.       Ms Crawford told the tribunal that there had been 3 allegations made against her. Firstly, on 29.9.2009 Naima Hussain made an allegation that she had made an offensive remark about her headscarf and the fact that she was Muslim. In February 2010 this was apparently backed up by a statement from Sarah Russell and a later complaint from Sarah Russell claiming she too had been racially abused. Ms Crawford said that she had only met Sarah Russell once and she was certainly not present on the day when Naima Hussain alleged she had made racist comments. Ms Crawford denied any racism or racial motivation in carrying out her observations and inspections at the nursery. She said that she had been removed from front line duties and had been investigated by the police. She had had to see a solicitor. She had been cleared of wrongdoing by the investigations and had been able to return to visiting Kare Babies. The only reasoning she could put forward for the allegations was to get her removed from inspections.

166.       Esther Gray confirmed that at no time had she seen or heard Sue Crawford act in a racist manner, and that they were together through almost all of the visits.

167.       Ms Crawford said that Ofsted had used the escalating tariff and had not simply jumped in to close the nursery. It was not her sole decision that action was taken against Kare Babies. There were several case reviews and consideration is given at each step as to what action needed to be taken.

168.         Ms Kaur suggested to Ms Gray that “You always harassed us” and that she had picked on Naima Hussain and Sarah Russell. Ms Gray commented that her original visit was for the nineteenth complaint about Kare Babies and that in fact she had quite a good relationship with the staff. She commented that each visit had a purpose, and that Ofsted wanted to raise standards. She said that if a welfare notice is issued and positive action is taken she regards that as a success. “I don’t go around looking for someone to cancel” .She also categorically denied bribing or attempting to bribe anyone.

169.         Mr Downs suggested that allegations of racial bias come easily to Ms Kaur to counter allegations of failed standards.  Ms Kaur stressed that she feels that she has been treated differently because she is Asian.  She said “I feel as though I’ve been targeted and victimised.  All of them are lying.  There is a conspiracy to close me down.”  Mr Downs suggested that an alternative view might be that she was the person telling lies and that neither she nor Ms Sarwar were fit to run a nursery.  She replied “No, they’ve wanted to shut me down since day one.”

170.         Ms Kaur told the panel that Ofsted had to justify all their visits so they had to find fault.  She said “It’s harassment and discrimination because I am young and Asian.  They’ve penalised me.  I wrote to my MP and David Cameron and the Queen.  I’ve had regular contact with Buckingham Palace and they were going to invite me to meet the Queen in 2012.”

 

 (xiv) Was there a conspiracy of employees at Birmingham City Council to close Kare Babies and was this racially motivated?

171.       Angela Blower was required to give evidence by Ms Kaur.  Ms Kaur asked her if she knew anything about a man called Dwayne Burke, a man who works for the Council and who Ms Kaur alleges abused her down the phone. Ms Blower said that she didn’t know him, and had heard vague details about the allegations, but that she does not work with the team involved.

172.       Ms Blower told the tribunal that at her visit to Kare Babies in April 2010 it was difficult to see any improvement, and that problems were worsened by the high turnover of staff. She said that visits were always made by officers in pairs after 2009 due to difficulties at Kare Babies.

173.         Ms Dennis gave evidence about the assistance which had been given to and offered to Kare Babies. She was challenged by Ms Kaur on the basis that Birmingham City Council had not given her the support she needed. Ms Dennis said “I know that we supported Ms Kaur. Kare Babies was often on our agenda. We made visits, offered telephone support and sent leaflets out.” . She explained that there were normally three visits per year, but one difficulty was the number of complaints which Ms Kaur made about Birmingham staff. She made three verbal complaints but would not follow them up in writing which meant there was some hiatus in visits. When Ms Dennis visited in 2010 she agreed that there had been some improvements but there were still very significant concerns. An example she gave was of a mat which had been bought in line with advice but lay unused in its wrapping, and a nail protruding from a changing area. In respect of the latter it was suggested to her that there was no nail, simply a bracket, and that she had not raised any concern about it at the time. Ms Dennis pointed out that she had highlighted the nail to Ms Kaur who signed a note about it. The matter was followed up in writing.

174.         Ms Dennis was also asked whether she knew about the allegations about Dwayne Burke. She agreed she knew about the complaint which Ms Kaur had made about him but she was not involved in the investigation, nor did she discuss it with him.

175.       Jan Keeling gave evidence of her visit to Kare Babies in August 2008 to investigate a complaint made by Ms Kaur about the outcome of an Ofsted inspection and the inspector. She confirmed that she noted some improvements at the setting, including more hygienic flooring. She agreed that Ms Kaur had behaved appropriately during her visit, and had told her that she was receiving help from Birmingham City Council.

176.       Marie Foster gave evidence that she had sent out a great deal of information to Kare Babies to assist them in meeting standards, including information on safeguarding procedures and safe recruiting practice. The training team were also available but reported very low attendance by Kare Babies staff on safeguarding training. There was a high turnover of staff and specific training was set up just for Kare Babies. She had visited on one occasion with Ofsted to assist and ensure Kare Babies had adequate paperwork regarding safeguarding.  Unfortunately the visit had demonstrated that paperwork was out of date, and Ms Foster had provided information and support to Ms Kaur to assist in submitting updated policies. She had not done so. Similarly Ms Foster had provided support and assistance to Ms Kaur to submit a PoCA referral in respect of an employee. She said “I gave Ms Kaur the form. I sat down with her to explain it. She did not send it”. Ms Foster stressed that she tells providers that it is their responsibility to safeguard, not hers, and that she will support them to ensure they know what to do.

177.       The panel asked Ms Kaur if she had updated the policies. She said that she had. She was then asked if she had sent them to Ms Foster. Ms Kaur replied that she hadn’t because she felt Ms Foster should have come to her. Ms Kaur said she had not been given a PoCA form and therefore had not filled one in. She stressed that she had been given inadequate support by the council and that she felt that there was a staff conspiracy against her.  Dwayne Burke had allegedly threatened to get her closed down and she had recorded it.  She feels that Birmingham City Council and Ofsted are liaising and conspiring against her.

ASSAULT ON A CHILD

Did Sue Crawford assault a child, DD, aged 3, during the Ofsted inspection on 1 November 2010?

 

178.       Sue Crawford told the tribunal that they had received a complaint that Kare Babies had been claiming grants for children who were not enrolled. It was therefore necessary to verify the children’s identities. She did this informally by pretending to take a register. She mentioned one name and a little boy said “He’s left” but generally the children answered their names. She recalled that there was a little girl who was upset and a little boy who was crying. They were being supervised by Doris the cook and Sukpreet Kaur but were left to cry. A police officer was present.

179.       Ms Crawford denied touching or assaulting any child on that day. She felt that Mr and Mrs D had been put in a difficult position because they were not there. Ms Crawford said that she put the children’s needs first on that and every visit. On that visit they had been denied entry for 40 minutes and she had attempted to caution Ms Kaur. Ms Kaur was so agitated that Ms Crawford desisted because she didn’t want the children to be upset.

180.       Ms Kaur’s evidence was that Ms Crawford was asking children their names and had asked DD her name. When DD did not answer Sue Crawford grabbed her arm and the little girl ran behind Sukpreet Kaur in distress. Ms Kaur said she had challenged Ms Crawford about the incident but she had just walked off.

181.       Ms Kaur also suggested to Ms Gray that she had seen her colleague “manhandle” DD. Ms Gray said that no such thing had taken place and the only person who was acting inappropriately was Ms Kaur because she was annoyed and distressed and this was affecting the children.

182.       Mr and Mrs D attended to give evidence. Mr D said that they were concerned about what had happened to their daughter, DD, when Ofsted had visited on 1 November 2010 with the police. He said that prior to this they had had no concerns about Kare Babies. He had picked D up from the nursery on that day and had been told by Mandeep, a member of staff, that the police had been round with Ofsted. Mandeep had mentioned a woman called Sue. D was quiet but he thought that it was because she was scared of the police. Then after a week or so she had said “Dad, I’m scared because this woman grabbed my arm and asked my name.” He said that she had mentioned the name “Sue” and “she said this woman went to grab her arm”. He said he had made a statement of his own initiative and that nobody had asked him to make a statement. He complained to Ofsted on 24 November 2010 but they did not respond. He did not report the matter to Kare Babies or the police but was contacted by a solicitor who had asked him for a reference and had sent him the statement to sign.

183.       When cross examined by Mr Downs, Mr D told the panel that they had changed D’s name from R to D whilst she was at the nursery. He accepted that they had in fact made a serious complaint to Ofsted on 22 May 2009 about Kare Babies’ care of their daughter. He had been happy with the way Kare Babies had dealt with it but kept an eye on what was going on. He admitted that he had sent an abusive email to Ofsted on 6 December 2010 but said that he was very upset when Ms Kaur’s solicitor contacted him. “All I was hearing was what she said. She said DD was scared and crying on that day and that Ofsted had tried to grab my daughter’s arm”.

184.       Mrs D said that on November 1^st D wasn’t herself. The next day she was ill and didn’t want to go to the nursery. She was sick when they got there and said she was worried about the men coming back. Ms Kaur had told her about the police being there the day before and she was very concerned as to why they had been there. Mrs D rang Ofsted because she wanted to know what was going on. She spoke to Johanna Holt “who was lovely” and who explained that the nursery was going to be suspended. Mr D collected D and later told her that Mandeep told him that an Ofsted inspector had grabbed D’s arm. She said “I didn’t think it was an issue.”

185.       She said that everything started when Ms Kaur’s solicitor contacted her at the end of November. They had sent a “to whom it may concern “reference but this had been typed into a statement. The way the solicitor described the incident to them on the phone “sounded a lot more than we realised.” She said Mr D was very angry and sent the email to Ofsted.

186.         Mrs D told the panel ”I can’t say I blame anybody. I trust the nursery. Ofsted explained, I understand why they asked D her name. I don’t know what happened, I wasn’t there. I would send D back, it’s just a situation that happened.”

 

WITHOLDING EVIDENCE

Did Ofsted deliberately withhold evidence from the tribunal and Ms Kaur which would have assisted her case?

187.       Esther Gray told the panel that when she visited Kare Babies on 7 January 2010 seven files were seized and a receipt was given for them. While she did initially ask for it, she did not take the file for Patsy McGhie because she was told Ms McGhie was no longer working there, so decided to take Tasleem Sarwar’s file. Tasleem Sarwar handed the files to her and shouted the names and she wrote them down. Somehow Patsy McGhie’s name was written down instead of Tasleem Sarwar’s.  As soon as she realised the error she contacted Kare Babies. Ms Kaur put it to her that she had Patsy McGhie’s statement alleging bribery by Ofsted officers made in December 2009 as it was in the file she had taken and was withholding. She denied doing so and pointed out that she’d rather not have made a mistake. She confirmed that the Jas Dhinsay file was copied and put in the bundle and that Naima Hussain’s file had been sent back to Kare Babies because she had requested it. Ofsted produced a purchase order which showed that a courier was paid for to take the file to Kare Babies. There was no signed receipt to prove delivery.

188.       Ms Kaur also suggested to Ms Gray that when she had removed signing in records to photocopy them when they were returned Ms Kaur “was unhappy”. Ms Gray replied that the evidence was copied in a secure location and all was returned. She denied that Ms Kaur had raised any unhappiness about it.

189.       Johanna Holt’s evidence was that when Naima Hussain requested the return of her staff file from Ofsted she was advised that it should be returned and she ensured that it was couriered to Kare Babies. She did not retain it. Ms Kaur’s challenge to this evidence was “I never received it”. Further, she suggested to Ms Holt that there were originals in the file which had been retained. Ms Holt stated that the file only ever contained copies.

190.       Ms Kaur’s evidence was that the documents had been deliberately retained by Ofsted as part of the plan to close her nursery and undermine her case.

 

MS SARWAR

Was Ms Sarwar an appropriate person to be registered given doubts about her integrity and suitability, alleged inability to safeguard children and her alleged inability to maintain accurate records, taken together with her involvement with Ms Kaur’s alleged failings as a registered provider?

The Marie Foster letter.

191.       During the course of Ms Sarwar’s representations to Ofsted on May 7 2010, specific attention was also paid to a letter purporting to be from Marie Foster, Safeguarding Officer at Birmingham City Council to Ms Sarwar dated 29 January 2010 in respect of action taken in respect of a parent allegedly over chastising a child at the nursery. The letter put forward on behalf of Ms Sarwar stated that “I advised you that you took the correct action.” It was therefore put forward as supportive of Ms Sarwar’s actions. Ofsted contacted Marie Foster and obtained  a copy of a letter from Marie Foster addressed to Tasleem Sarwar of the same date which is critical of the action taken by Ms Sarwar.

192.        Marie Foster gave evidence at the hearing. She has been employed by Birmingham City Council as a Safeguarding Officer since September 2005 and holds a graduate diploma in safeguarding children and young people. Ms Foster said that on the 29th January 2010 she had a message on her phone to call Ms Sarwar urgently. She was concerned about having an unwitnessed telephone call with Ms Sarwar so she asked Ms Linton to join her. Ms Foster spoke to Ms Sarwar and then agreed to write a follow up letter of the telephone conversation, which she did, asking Ms Linton to read the letter before it went. She was later shown the letter given to Ofsted by Tasleem Sarwar and confirmed that the letter was not the one she had sent.

193.       Tracey Linton, an employee of Birmingham City Council in the field of Early Years and Childcare since 1987 made a statement which stated  that on the 29 January 2010 Marie Foster asked her if she would listen to a telephone conversation between herself and Tasleem Sarwar “to verify her side of the conversation in line with the agreed risk assessment that was currently being implemented by all staff supporting Kare Babies nursery”.

194.       She recalled that Marie Foster called Tasleem from her office and asked Tasleem about what had occurred. Marie Foster told Ms Sarwar that she should have challenged the parent about her use of smacking as chastisement and advised her that she should have offered the parent advice about alternative methods of managing her child’s behaviour. Marie Foster also asked Tasleem Sarwar to ensure that all parents were made aware of the settings behaviour management procedures, and advised that all staff should be encouraged to not only support parents, but be prepared to challenge them when necessary. Finally Ms Foster said she would write to Ms Sarwar confirming the content of their conversation.

195.       Ms Linton confirmed in her statement that Marie Foster asked her to read the letter before sending it out to Tasleem Sarwar. She was shown the letter produced by Ms Sarwar to Ofsted and was clear that the letter was very different to the original. She later identified the letter given by Ms Foster to Ofsted as the original letter she had seen.

196.       Ms Linton was required to give oral evidence by Ms Kaur. She was called by Mr Downs and sworn.  Ms Kaur then told the panel that she did not have any questions for Ms Linton. Judge Hillier checked that this was really the position. Ms Kaur said that Ms Sarwar would be having a tribunal in a few weeks and Ms Linton could give evidence at that. No application for an adjournment had been received at that time from Ms Sarwar.

 

Tasleem Sarwar’s presence at Kare Babies on 27 August 2010

 

197.       Sue Crawford’s statement records that when she visited Kare Babies on this date Tasleem Sarwar was on the premises. She was disqualified and should not be working at any childcare facility including Kare Babies. Ms Sarwar was in the garage office where children and staff records are kept. She said that she had come to pick up a pack for her nephew who was due to start at the nursery. Sabrina Begum, the deputy manager, told the Police that she did not know who let Tasleem Sarwar into the nursery but then later on told Sue Crawford and Esther Grey that she had in fact let Ms Sarwar in and had omitted to get her to sign the staff/visitors signing in register. Ms Crawford said that she telephoned Ms Kaur who said she didn’t know Ms Sarwar was there.

198.       Sarah Russell said on the day of the visit Tasleem and Sabrina rushed up to her and said “Ofsted have come!” They were panicking. They told her to put all the children in the pre school room and Doris the cook came up. Ofsted inspectors were still outside. She and Doris tried to keep the children calm but they had 14 children in one room. Tasleem left and Sabrina went to open the door. Sabrina told her that Tasleem had hidden in the shed. Ms Russell said that around this time Ms Sarwar was coming to the nursery wearing different hats and changing her hairstyle :”She seemed to be disguising herself”.

199.       Ms Gray gave evidence that Tasleem Sarwar was always put forward in a managerial role and had a big part to play in the running of Kare Babies. She dealt with salaries because Ms Kaur thought she was better at maths and she worked out the hours. She had tried to improve the staff vetting procedures but had not been able to achieve an acceptable standard. The staff viewed Ms Kaur and Ms Sarwar as jointly in charge.

 

Tasleem Sarwar’s role at Kare Babies

 

200.       Ms Crawford gave evidence that Tasleem Sarwar was present on nearly all occasions that she visited Kare Babies. She worked in the office rather than looking after the children. Ms Kaur referred to Tasleem Sarwar as the manager when the complaint was made by Mr and Mrs D and Ms Sarwar held herself out as the manager, with control over staff files and finance. Ofsted had told both Ms Kaur and Ms Sarwar that Ms Sarwar needed to apply to be registered but she had not done so for some time. Ms Kaur had had a suitable person interview so there was no need for Ofsted to intervene.

201.       Ms Gray said that she was aware that Tasleem Sarwar may have been present on that day so she had looked in each room. She had not searched the shed. Ms Sarwar had been present on a later visit, which as a disqualified person she should not have been.

202.       Ms Kaur told the tribunal that Ms Sarwar is older than her, and had worked for the previous owners in a senior capacity.  Ms Kaur promoted her to Deputy Manager in 2008, and explained that Ms Sarwar helped with the accounts, whereas she was responsible for staff files and polices.  Ms Downs challenged this by suggesting that Ms Kaur introduced Ms Sarwar to Ms Blower and others as the manager and that she had described her in writing as such.  Ms Kaur said Ofsted had told her that there was no such thing as a deputy manager.  She denied that Ms Sarwar continued to visit the nursery in disguise after she had been disqualified or that she’s hidden when Ofsted had visited.

 

 

 

Submissions

 

Mr Downs

 

203.       Mr Downs submitted that this is not a case of technical regulatory failures, isolated examples of non-compliance or of temporary lapses in standards. Neither Appellant is a “suitable person” to undertake early years or general childcare because any documentation, policies, assurances (in writing or otherwise) or evidence provided by the Appellants in the past or in the future simply could not be relied upon. He stated “The level and scale of dishonesty verges on the pathological. There has been an attempt at a systematic deception of the Regulator. The likelihood is that Ms Kaur, aided by Ms Sarwar, has employed unsuitable/unqualified persons as staff in her setting and encouraged them to impersonate others and systematically set about creating fraudulent references and documents for them. In the case of Jasvinder Dhinsay, this included the theft of the identity of another”.

204.       Mr Downs went on to state that there have been a number of occasions when harm has befallen children. He gave the examples of the child of Mr and Mrs D, CD’s child and the allegation in May 2009 that a child was harmed by a member of staff. He asserted that this was evidence of the Appellants employing poorly qualified and trained workers and pointed out that investigation of such problems is virtually impossible in circumstances in which the identity and qualifications of the workers involved, the dates upon which events occurred and the documentation surrounding these incidents are all in issue as a result of what he described as “the blatant dishonesty of Ms Kaur”. In the case of CD, complaints to the nursery led to crude threats being made against her by Ms Kaur.

205.       Mr Downs opined that it is virtually impossible to be certain who is or was the guiding mind of Kare Babies. He stated:” What is certain is that Ms Kaur appears to have been responsible for every area of the activities and organisation of Kare Babies. She has not sought to argue that she delegated a responsibility to Ms Sarwar and that, consequently, she was not responsible for a particular problem. In the case of Ms Sarwar, the evidence is not unanimous that she was the Manager of Kare Babies. However, she was involved throughout the relevant period until 17 May 2010 when the Notice of Decision to refuse the registration of Tasleem Sarwar was produced…. There is also evidence that she was involved afterwards. There is evidence that she had particular responsibility for record keeping and staff pay. Additionally she also dealt with some safeguarding concerns as with the referral to Ofsted made on 29 January 2010 where two versions of the same letter from Marie Foster are produced which are the subject of controversy. This would appear to show she played an intimate part in the running of Kare babies.”

 

Ms Kaur

 

206.       Ms Kaur and Ms Sangha told the panel that Dr Sharma was expected to bring written submissions to the tribunal by 1 p.m. on 10 March. She had not arrived by 3p.m. so enquiries were made as to her whereabouts and arrangements were made for written submissions to be emailed in to the tribunal clerk if needed. It transpired that Dr Sharma had not prepared any written submissions but Ms Kaur had prepared several pages of handwritten submissions. Ms Kaur and Ms Sangha suggested that these submissions should be read and the panel agreed.

207.       Ms Kaur submitted that following the notice of cancellation in 2010 she had the opportunity to make changes at the setting. The inspection by Ms Saiyed and Ms Riley in July 2010 was supposed to be by independent inspectors but they had given her a bad report. There wasn’t sufficient evidence for Ofsted to close her down then or in November 2010. All of the changes she had made were ignored, and the nursery was closed down in November 2010 under false pretences. The Ofsted officers were unfair in November 2010 because she did not obstruct them at all. The staff to child ratios on that day were appropriate and there were no children at risk of harm or danger.

208.       Ms Kaur submitted that staff had been racially abused by Ofsted inspectors who had bribed her employees to give false negative evidence about the nursery. She had been very affected by Ofsted actions and so had the children who attended the nursery and their families. She had made substantial investment in the nursery and she would not do anything to jeopardise that investment.

209.       Ms Kaur stated that she feels that Ofsted have targeted her with frequent inspections and had not taken into account the fact that Birmingham City Council had failed to support her. She had addressed every action raised by Ofsted who had made up their minds to close her down. She felt victimised and was hurt that they went behind her back to get her staff members to make derogatory statements about the nursery. She pointed out that several staff members who had done so had given inconsistent evidence. Further, she submitted that evidence crucial to her case has been deliberately withheld by Ofsted.

 

 

 

Tribunal’s findings and conclusions with reasons.

 

 

Did Ms Kaur fail to declare the surname Kandola on registration even though it was a name she had used?

210.       The panel were satisfied on a balance of probabilities that Ms Kaur did use the surname Kandola on occasion, as evidenced by her qualification certificates, and that she had given that name to the police when they investigated the incident with her car in 2009. The panel was also satisfied that it was clear to Ms Kaur on the registration application that all names should be disclosed. The panel concluded that this failure to disclose was evidence of Ms Kaur’s fundamental failure to appreciate the importance and need for full and verifiable information in respect of herself and others when undertaking CRB and safeguarding checks. Further, that she remains unable to grasp how serious the consequences of a lack of safeguarding checks could be for potential risk to the children at Kare Babies and the need for openness and honesty with Ofsted and other authorities involved in the care and wellbeing of the children. In all respects the panel preferred the evidence of Sue Crawford, which was consistent and cogent, and corroborated by the police evidence, to that of Ms Kaur, who simply gave a flat denial without any explanation as to how the police documents or her certificates could bear another name, which happened also to be her family name.

Was there a failure to confirm the identities of Naima Hussain and Tasmena Begum amongst others leaving unverified and unchecked staff in charge of children?

211.       The panel were satisfied on a balance of probabilities that there was a complete lack of robust checking procedures for staff identities, including gaining references of suitability, and processing the required  CRB checks, and were unimpressed by Ms Kaur’s apparent view that since no abuse had been reported during the relevant period there was therefore no real issue of concern.

212.                 The panel rejected Ms Kaur’s evidence that she was checking and vetting the staff because the weight of the evidence demonstrated that the opposite was true, and that there was no adequate system in place. The task was effectively delegated to Ms Sarwar who had made some attempt to improve procedures but was unable to do so. An example of this was Naima Hussain. Her passport had been checked, but it was out of date and no real effort was made to obtain additional original documentation to verify her identity, despite both Ms Kaur and Ms Sarwar being well apprised of the need to do so.  This brought into question Ms Kaur’s  and Ms Sarwar’s suitability as day care provider.

213.       Ms Crawford’s evidence about Naima Hussain was consistent with Ms Kaur’s initial statement to Ofsted, namely that she had relied on the out of date passport, and the panel accepted Ms Crawford’s evidence, which was well documented and professionally presented, that the situation had not been rectified even by 29 September 2010.

214.       The evidence about Ms Begum/Hussain was also of concern and highlighted issues of potential risk to the panel. The woman who was said to be Tasmena Begum gave a significantly different date of birth to that on the staff file. Also, as soon as she was challenged about the discrepancy, and the discrepancy about her name, she stopped working at Kare Babies, thus preventing any further investigation by Ofsted into her identity.

215.       The panel rejected Ms Kaur’s explanation that the confusion was because the woman called herself Hussain rather than Begum due to marital difficulties, because this did not account for the fact that she gave a different date of birth.

216.       When giving evidence about her safeguarding policies Ms Kaur accused Mr Downs of Counsel of removing evidence from her staff procedures file. There was no foundation for the accusation, made forcefully, and Ms Kaur’s representative was able to locate the document in the file on the desk in front of Ms Kaur. The document itself lacked substance, and the weight of the oral and written evidence demonstrated that such policies or procedures as there were had not been followed.

 

Were Ms Kaur and/or Ms Sarwar involved in the impersonation by a staff member of Jas Dhinsay?

217.        The panel was satisfied that when a woman called Jas Dhinsay went to Kare Babies for an interview her documents were copied without her knowledge and her photograph taken from her interview documents. These were then used subsequently on a staff file for a person who probably lacked suitable qualifications or had some other reason for needing to have her identity concealed from Ofsted. The evidence clearly demonstrated that when the person calling herself Jas Dhinsay/ Bowler at Kare Babies was challenged by Ofsted as to her identity she immediately stopped working for the nursery and gave no forwarding address. Indeed Ms Kaur told Judge Hillier at a telephone hearing that she was believed to be in India and there was no method of contacting her.

218.       Ms Kaur's evidence on this lacked credibility. She relied on the fact that the person who had been working at the nursery was un-contactable but had no explanation as to how Jas Dhinsay had been able to produce original certificates and ID to Ofsted at her meeting with them. The burden of proof of course rested on Ofsted in respect of this issue and the panel were satisfied to a high standard that the woman working at Kare Babies was not Jas Dhinsay. The evidence was given credence and weight by the fact that she stopped working, and indeed effectively disappeared, as soon as Ofsted questioned her identity.

219.       The panel concluded that this evidence, taken with the Ofsted interview of Jas Dhinsay, proved on the balance of probabilities that it was more likely than not that Ms Kaur and Ms Sarwar were aware of the fact that this woman was not Jas Dhinsay and knew that the qualifications in the woman’s personnel file belonged to someone else. The culture of impersonation at Kare Babies was described by Sarah Russell and others, and the panel accepted her evidence in particular as honest evidence. The evidence clearly demonstrated that the only way that documentation from the real Jas Dhinsay could come to be on the Kare Babies file for an impostor was from the theft of her identity when she visited for interview. The persons responsible for management at Kare Babies, Ms Kaur and Ms Sarwar had to be involved in the obtaining and use of the documents and must have known who the impersonator was. Ms Kaur tried to cover this up by maintaining that Jas Dhinsay was somewhere in India out of contact to everyone, however the panel rejected this explanation because of the cogent, strong and credible evidence given about the Jas Dhinsay known to Ofsted. The panel concluded that on the balance of the evidence there was a culture of staff impersonation at Kare Babies, and this was known about and perpetuated by Ms Kaur and Ms Sarwar.

Were Ms Kaur and Ms Sarwar honest about Patsy McGhie’s role at Kare babies, her suitability and qualifications?

220.       The panel found that the balance of the evidence proved that Ms McGhie had worked at Kare Babies as the cook from May/June 2009 until 23 December when she was dismissed. The evidence of Sue Crawford and Esther Gray was consistent and was corroborated by the evidence of Ms McGhie herself that she was the cook and was introduced to them as such. The panel were impressed by Ms McGhie. She was clearly somewhat overwhelmed by the situation and struggled at times to express herself, but the panel accepted her evidence as honest and credible. In particular the panel were satisfied that she had not sat for the food hygiene certificate put forward by Ms Kaur on her behalf and that she was entirely unwilling to become involved in fraudulent misrepresentation of her qualifications.

221.       The panel concluded that Ms Kaur’s blanket denial to the tribunal that Ms McGhie had ever been the cook was simply untruthful. Ms Kaur had even confirmed to Ofsted in writing that the food preparation was undertaken by “Pasty” (sic) the cook in January 2010, yet as soon as the qualification “scam” became apparent Ms Kaur changed her story and said that Rozeena Kosar was the cook. The panel concluded that Ms Kaur had changed her story once the attempted deception of Ofsted by false certification had failed. The account given by Ms McGhie as to how she had been offered the job and the work she undertook was unchallenged by Ms Kaur who concentrated instead on trying to establish that Ms McGhie had been offered bribes by Ofsted to give false evidence against Kare Babies. When confronted with the evidence about the attempted deception by obtaining a food hygiene certificate from UCB, Ms Kaur’s evidence was conflicting. On the one hand she alleged that the document could have nothing to do with Kare Babies because Patsy never was the cook, and that the UCB letter referred to “Manjit Kaur” at Kare Babies and on the other she had signed the document stating that Patsy was the cook “but the letter should have been in a different format”.  The panel preferred the evidence of Ms McGhie to that of Ms Kaur in all respects.

Were Ms Sarwar and/ or Ms Kaur involved in the forging of a reference for Sarah Russell from Mayfield School?

222.       The panel found the unchallenged evidence of Mr O’Neill about a meeting on 7 May 2010 demonstrated that both Ms Kaur and Ms Sarwar had been involved in the attempted deception of Ofsted in respect of a reference for Sarah Russell.

223.       Ms Sarwar’s involvement was to produce a document purporting to be a reference from Mayfield School, together with a verbal reference from “Lilly Yorke” which she claimed demonstrated that Sarah Russell’s identity and references had been properly checked when she was employed by Kare Babies. When Mr O’Neill challenged her that in fact the reference was from the wrong school and no one called Lilly Yorke worked there Ms Sarwar attempted to shift the blame to Sarah Russell, saying that she must have forged the reference. The panel concluded that the weight of the evidence demonstrated that Ms Sarwar had been involved in the production of the document and the alleged reference, which was clearly forged as it contained inaccuracies of style and spelling (Mark Coleman rather than Coldman for example) which showed that it was not produced by the school. Ms Russell gave compelling evidence which the panel accepted as truthful that she had been told Ms Sarwar had forged the document and she was too scared to tell either Ms Kaur or Ms Sarwar about the errors. Had Ms Russell been the author of the document the panel was satisfied that she would not have made the fundamental error of using the wrong Mayfield school, thus demonstrating that Ms Sarwar’s explanation as to it’s origin was false.

224.       Ms Kaur’s evidence was that she had not been involved in the forged reference, she had not taken Sarah Russell to the appropriate Mayfield school to obtain a reference and that the school’s evidence about Sarah Russell’s visit was inaccurate. The panel accepted the evidence of Sian Piercey and Ms Russell about the visit to the school over that of Ms Kaur, whose evidence was again found to lack credibility or consistency. Ms Russell and Ms Piercey had no opportunity to collude nor any reason or motivation for collusion. Ms Piercey’s evidence about how the spelling of “Kare” was offensive to her teacher’s eye and her recollection of the detail of the Kare Babies uniform worn by Sarah Russell on that day was particularly striking. Her evidence was professional, composed and cogent. Ms Kaur’s suggestion that she was lying about receiving a letter from Kare Babies was firmly rebuffed and Ms Piercey’s concern about the safeguarding issue of employing Sarah Russell without references for some time came through as clear motivation for her evidence rather than any sinister intent towards Kare Babies.

225.       Was there a consistent failure to meet standards?

226.       The panel heard and read extensive evidence about standards in the nursery and the failings which Ofsted had found on two full inspections and on numerous visits, together with incidents such as the extensive nappy rash found on child K and the fact that he was given very hot food without any checks in front of Ofsted inspectors during an inspection. In respect of the incidents regarding K Ms Kaur denied that the nappy rash had been caused at Kare Babies and said that she did not believe that hot food had been put in his mouth. In respect of the findings made on full inspections and on visits the main thrust of her evidence was that the evidence was concocted, was racially motivated and/ or motivated by the intention to close Kare Babies down.

227.       The panel heard evidence from CD, mother of child K and concluded that her evidence was honest, well motivated and consistent. CD gave evidence of an apparent attempt to dissuade her from giving evidence. The panel did not take this evidence into account when assessing her evidence or that of Ms Kaur, since it would not be possible to investigate the allegations without delay to the proceedings and they were serious enough to warrant police investigation.

228.       CD produced photographic evidence of the nappy rash on her son after a day at Kare Babies. She was clear that there had not been any problem when she had left him one Friday morning but had been so concerned about the state of his skin when he returned home that she had taken photographs to demonstrate the extent of the rash to staff and Ms Kaur on the following Monday. The panel accepted her evidence, especially because this was not an isolated incident since Mr and Mrs D had made a complain to Ofsted about a similar experience. Further, Kare Babies had introduced a checking system, which they clearly would not have done if there had not been acceptance of the nursery’s culpability at the time. In addition, the panel were impressed by CD’s obvious concern and compassion for the care and well-being of her son and the fact that there were no issues about her care of him alleged by Ms Kaur or anyone else.

229.        Ms Saiyed gave evidence about very hot food being given to K whilst she was observing the lunchtime routine. Despite being given a cold drink K would not accept any food for the remainder of the lunch break. The panel accepted that her graphic account of watching K flinch when he was given the food was an accurate and truthful account. Ms Kaur’s evidence that the incident did not occur was rejected because Ms Saiyed’s evidence as an inspector with no previous involvement in the case was professional, well documented and internally consistent and was corroborated by the evidence produced by Ms Kaur of an incident sheet for this very incident, which would only have been written if the incident had occurred. The panel noted that CD could not recall seeing the document before although her initials appeared on it.

230.       The panel’s evaluation of the inspection reports and the failings noted on visits was that in all cases the matters were recorded appropriately and professionally, that they were corroborated by the observations of others and that the overall picture painted was of Ms Kaur and Ms Sarwar, whether through inexperience or lack of ability, consistently failing to meet the National Standards and Early Years Foundation Stage welfare requirements.. Ms Kaur denied that standards were not met. The question for the panel was whether the numerous inspectors and professionals who gave evidence were lying and had fabricated evidence in order to close the nursery down, acting in the main through racially discriminatory motivation, as alleged by Ms Kaur.  Further, that some of these professionals had gone so far as to offer or pay financial inducements to Kare Babies staff to provide false evidence against Kare Babies. Findings in relation to these allegations are made below, however it is appropriate to record that Ms Kaur put forward no positive evidence of standards being met other than the photographs which she produced to witnesses to prove that their recordings were inaccurate, her Policies and Procedures handbook and references from parents. These photographs were taken after the nursery registration had been suspended and the panel concluded that Ms Kaur attempted to use them to wrongly discredit witnesses and to attempt to deceive the tribunal. The panel took all the references into account when considering the evidence as a whole, and respected the views of parents who felt that the nursery provided a good service. On balance however the panel gave more weight to the evidence of professionals who were observing what actually occurred during the day rather than simply observing the handover and pick up routines. Further, the panel was satisfied that if the author’s of the references had witnessed examples of their children’s lunch being missed because the cook had to help with childcare, staff failing to interact with children and babies, and a lack of robust staff vetting which led to unchecked staff supervising their children, they would not have been so fulsome in their praise.

231.       Whilst Ms Kaur alleged that Ms Saiyed had rudely pushed past one of the parents, which was denied, and that she was part of the overall Ofsted conspiracy, no allegations of bribery or other dishonest practice was levelled at her. The panel decided that this was very important because the evidence of this two day “independent” inspection by two officers who had not worked with each other before and had no previous connection with Kare Babies was highly relevant. Both Ms Saiyed and her colleague Ms Riley have had extensive relevant experience and were considered by the panel to be very child focussed and entirely unbiased. Their clear observations were of a failing nursery which was not meeting children’s needs and the panel found that these observations were accurate, truthful and in themselves sufficient evidence to demonstrate that Ofsted’s decision to cancel registration in April 2010 was, and remained, entirely appropriate.

 

Did Ms Kaur and/or Ms Sarwar put children at risk by erecting the extension on the flat roof of a ground floor single storey building?

 

232.       The panel were able to see photographs of the extension and to consider those photographs with the oral and written evidence about this structure. The suggestion by Ms Kaur that the structure was a store room was rejected by the panel who concluded that her evidence was disingenuous because if more storage space were needed the hut could have been erected in the grounds and because the contents of a store room would not have been set out in such a manner.. The photographs showed a flimsy garden hut structure which had been erected on a flat roof. It would have been clear to anyone that such a structure was unsafe and that testing the load bearing capacity of the structure below by jumping up and down on it was entirely inadequate. The structure was barely secured and could have been dislodged by severe weather with potentially fatal consequences to anyone inside. The photographs showed that the inside of the structure had been carefully set out as a children’s play area, with seating and toys carefully set out. The panel concluded that the intention had been to use the area for children to play in and that it had more likely than not been used as such. Further, that Ms Kaur and Ms Sarwar should have known that the structure was entirely unsuitable and unsafe for children in their care. The fact that it was condemned by the planning officer and fire department as soon as it was notified to the authorities confirmed the evidence of Ms Crawford that she was shocked when she saw the structure.

 

Were Ofsted officers obstructed from entering the premises?

233.       The panel accepted the evidence of Ms Russell that the CCTV cameras showed the occupants of Kare Babies who was at the door and that when Ofsted visited unexpectedly on 27 August 2010 the door wasn’t opened until Ms Sarwar had chance to leave and the cook came up from the kitchen to take her place looking after the children. This was clear evidence that Ofsted were obstructed and that there was a false picture presented to them when they were let in.

234.       A further example was the 1 November 2010. The panel was satisfied that there was a delay of about 40 minutes in gaining entry to Kare Babies, and that the police acted appropriately to gain entrance. The evidence of Ms Gray and Ms Crawford that they could hear the phone ringing in the building and a baby crying was corroborated by the police actions. The panel accepted that when the phone was tested it was working and rejected Ms Kaur’s evidence that both the doorbell and the phone were not working and had since been replaced. Further, the panel rejected Ms Kaur’s evidence that Mandeep had been working on that day and that Ms Crawford and Ms Gray had lied in order to incriminate her because the records for that day, as for many others were unreliable.

 

Were Ms Kaur and or Ms Sarwar involved in the provision to Ofsted of a forged reference for Ms Kaur purporting to be from a police officer?

 

235.       The panel concluded that PC Sohal told the truth and that he had not written the reference. The reasons for this are that the reference is on out of date police headed notepaper and wrongly refers to his daughter, a mistake he would not make. PC Sohal was willing to give Ms Kaur a personal reference and would have done so if asked. He was supportive of the nursery so there was no need for him to lie about the reference and he was willing to have the original documented fingerprinted to prove he had never touched it. He was reticent about telling the tribunal about Ms Kaur demanding money, even though she was aggressively accusing him of being a benefit cheat and a liar. He knew her family and the panel saw he was in a very difficult position.

236.       Ms Kaur’s evidence that it had been sent to her without any prompting was not credible, and was part of a series of claims that documents had been sent to her “out of the blue” for example the alleged statement of Patsy McGhie and the statement of Sonia Dhesi

237.       The panel therefore concluded in the light of the oral and written evidence on a balance of probabilities that PC Sohal had not written the reference for the nursery and that it was more likely than not forged by Ms Kaur or Ms Sarwar, or them both acting together. Further, that Ms Kaur acted dishonestly when she put forward the reference to Ofsted as she knew it to be false and that when caught out in her attempted deception she resorted to making false allegations of dishonesty of a similar nature to those she levelled at CD.

Were bribes offered/paid by Ofsted to individuals so that they would give evidence against Kare Babies?

238.       Ms Kaur’s suggestion that in the third week of December Ms McGhie had sent Kare Babies a letter saying she had been bribed by Ofsted was demonstrated to be plainly untrue when the panel considered the chronology. Firstly, Ms McGhie was working at Kare Babies at the time, so there was no need for her to write a letter of this nature. Secondly, she was not interviewed by Ofsted until 15 January 2010 so she could not describe an experience which had not yet occurred, and thirdly, Ms Kaur alleged that the letter which allegedly set out how Ms McGhie had been taken to a hotel and bribed was seized on 7 January when Ofsted officers allegedly took the staff file. This again was one week before the interview took place.

239.        The panel were satisfied that Ms Gray did not remove the Patsy McGhie file on 7 January 2010 but removed the file for Ms Sarwar on that day. She contacted Ms Kaur to confirm this on 8 February 2010 and the panel concluded that Ms Kaur seized upon the error made on the receipt to fabricate yet further alleged “proof” of bribery which had been wrongfully retained by Ofsted. The panel preferred the evidence of Patsy McGhie who denied ever making any allegation of bribery or sending such a letter and were satisfied that the “retraction” signed on 7 April 2010 was signed under circumstances tantamount to coercion and duress. Further, whilst Ms McGhie was not directly offered money by Ms Kaur to make the retraction statement on that day, the offer to pay £350 in unpaid wages, which was the equivalent of five weeks wages, must have had an influence on her decision to sign the document. The panel was satisfied that Ms McGhie was not offered any bribe to make a statement about Kare Babies to Ofsted and that the contents of the statement she made on 15 January 2010 are correct.

240.       Sonia Dhesi did not come up to proof on any significant aspect of the ‘bribery’ evidence she was called by Ms Kaur to give. Whilst to an adult an ’award’ may have connotations of financial inducement it was apparent that no such connection was made by Ms Dhesi. The panel could not be satisfied on the basis of her evidence that any inducement was offered to her, indeed the panel concluded that she was not harassed or bribed by Esther Gray or Sue Crawford. The evidence that she had written a ‘statement’ making these allegations but had not informed the school or the police, who were present on the day, further supports the conclusion which the panel reached that she was motivated to give evidence to support Ms Kaur but was unable to give evidence of events which had not in fact occurred.

241.       Naima Hussain had allegedly made a handwritten statement on 8 September 2009 which retracts the factual basis of her evidence to Ofsted and makes allegations of bribery. Ms Hussain did not attend the hearing, despite being summonsed to give evidence, so the panel were unable to assess her credibility. In the face of conflicting evidence, firstly given under controlled conditions to Ofsted and secondly in the handwritten statement and a typed statement appearing apparently unrequested through Ms Kaur’s door in the days just before the hearing the panel were unable to place any reliance upon Ms Hussain’s evidence.

242.       The panel were able to assess the oral and written evidence of Sue Crawford, Johanna Holt and Esther Gray. The panel found all three to be truthful, professional and lacking in any motivation to offer incentives to anyone to give evidence against Kare Babies. They were evidence gathering and there was simply no personal gain to them or to Ofsted to offer bribes or pay bribes to anyone. The evidence of the inspection reports and visits was available for assessment by Ofsted and the tribunal and did not need bolstering to show that cancellation was appropriate. Further, there were only three people who they were alleged to have offered inducements, and the panel found that in the case of both Patsy McGhie and Sonia Dhesi, Ms Kaur targeted those she saw as vulnerable and malleable to manipulate into situations where they were asked to make allegations which were untrue. Ms Hussain was unwilling to give oral evidence, however the panel did not speculate as to the reason for her sudden reluctance. Finally, the panel took into account that Ms Kaur, who had demonstrated the ability to raise complaints and allegations about many professionals and professional organisations, had not raised any question of bribery to the police, to Ofsted or to the tribunal until very shortly before the final hearing. The panel concluded that the allegations were made as an attempt to erect a smokescreen around the evidence of the inspections and the visits and to attempt to detract from their value as evidence by making entirely false accusations of dishonesty.

Has there been a policy of racially motivated harassment of Ms Kaur and her staff by Ofsted inspectors, particularly Sue Crawford and Esther Gray?

243.       It was clear from Ms Kaur’s evidence that she did not accept that there were any failings of either her or Ms Sarwar’s running and management of Kare Babies. She defended Ms Sarwar’s position at every opportunity. She therefore struggled to see why there had been over 30 Ofsted visits to Kare Babies and felt that the only reason for these must be a campaign of harassment against her and her staff.  The panel decided that the historical, mainly unchallenged, evidence of the number of visits and the reasons for them demonstrated that there were 2 inspections, more than 24 compliance issues and 17 complaints which formed the basis of the total number of visits. The panel was satisfied that each visit was for appropriate reasons rather than with any motivation of harassment. Ofsted also arranged for non local inspectors to conduct the 2010 inspection.

244.       Ms Kaur put forward the alleged statement of Sarah Russell as evidence that she had been called an offensive racist name by a member of the Ofsted team. When Sarah Russell gave evidence she denied making the statement. Her evidence was that she had been harassed and bullied at Kare Babies and she gave the example that Ms Kaur had made derogatory comments to her directed to her personal hygiene. Ms Kaur’s cross examination of Ms Russell was very robust, but Ms Russell said that although life at Kare Babies was “hell” for her she was now able to stand up to Ms Kaur and tell the truth about what had gone on. She told the tribunal that she had not had any problems from the Ofsted visitors and that she suffered only at the hands of Kare Babies management. The panel accepted Ms Russell’s evidence that she had not been abused by any member of the Ofsted team and that she had in fact been abused and intimidated by Ms Kaur, who tried to manipulate her. Sadly, Ms Russell’s experience at Kare Babies has meant that she now is not using her child care qualifications because she does not want the experience to be repeated.

245.       The panel preferred the evidence of Ms Russell, who gave cogent, consistent and compelling evidence, over that of Ms Kaur because Ms Russell’s evidence was consistent with the Ofsted evidence about the way she had been treated by them and was backed up by her mother who gave corroborating evidence about how she had been treated by Kare babies. Although a mother would naturally wish to support her daughter, her evidence of being threatened aggressively by Ms Kaur to the extent that she reported the matter to the police was believable and supported by others who had been threatened by Ms Kaur, including PC Sohal and CD.

246.       Naima Hussain’s evidence was treated with caution by the panel because she did not attend to give evidence and her evidence was inconsistent. The panel concluded that it was unable to place reliance on her allegations.

247.       Ms Kaur’s evidence was that she felt that Ofsted and Birmingham City Council mistreated her because she was a young professional Asian woman, and that they had wanted to close her business down through racist motivation.

248.       Ms Kaur also put forward Sonia Dhesi as a witness who she said demonstrated harassment by Ofsted. The panel decided that it was perfectly reasonable for Sue Crawford and Esther Gray to question who the young woman apparently locked in the Kare Babies office at their visit on 1^st November was, especially given the background of alleged impersonation and dishonesty. Sonia Dhesi gave conflicting evidence about what happened on that day and the panel concluded that they could not have any confidence in her evidence. This was mainly due to the striking feature of her oral evidence which was that she was vague and evasive on all elements of potential racism and bribery, could not adequately explain why she was at Kare Babies that day and could not identify the inspectors who were present. The panel took into account her age (16) and the fact that she was giving evidence in a strange environment. She was clear as to what had upset her on the day, namely that she didn’t like being asked who she was and for her personal details because she wanted to have nothing to do with Ofsted or the police. She certainly did not give the impression that she was particularly “penalised” as Ms Kaur tried to impress upon her. The panel decided that Ms Kaur was trying to manipulate her into giving evidence of something which she had not felt and which had not in fact happened, and were satisfied that she was not subject to oppressive conduct or racially motivated harassment.

249.       Taking the evidence as a whole the panel concluded that Ms Kaur made allegations of racially motivated behaviour by inspectors because it gave an explanation for the findings made by them other than the facts of inadequate provision and consistent breaches of the minimum standards required for early year’s provision. The panel decided that her motivation was to ascribe a reason to the findings of failure on her part other than the fact that she, Ms Sarwar and Kare Babies were seriously underperforming and putting children at risk. 

Was there a conspiracy of employees at Birmingham City Council to close Kare Babies and was this racially motivated?

250.       Angela Blower and Maybelline Dennis denied being involved in the investigation of, or detailed knowledge of Ms Kaur’s complaint against Mr Burke and any conspiracy to close Kare Babies down. The panel found that they had all acted professionally to try to assist Ms Kaur but had been thwarted by her general lack of cooperation and complaints made against anyone who challenged her. Ms Kaur had actually told Ms Keeling that Birmingham staff were helping her but in her evidence she denied this and claimed they had acted against her interests. The panel found that the witnesses from Birmingham City Council gave unbiased, balanced and professional evidence throughout, and their evidence was to be preferred over that of Ms Kaur’s allegations of unspecified conspiracy.

Did Sue Crawford assault a child, DD, aged 3 during the Ofsted inspection on 1 November 2010?

251.       The panel concluded that on the written and oral evidence that this allegation was fabricated after the Ofsted visit on that day by Ms Kaur because she was angry about the fact that Ofsted had decided to cancel her registration to provide childcare at Kare Babies and she was particularly angry with Sue Crawford. Had the incident occurred as described by Ms Kaur she would undoubtedly have raised the alarm to the police, who were present on the day. She did not. Instead she fed disinformation to Mr and Mrs D through staff members and later through her solicitor.

252.       The panel concluded that Mrs D’s evidence was balanced and non judgemental. She had not thought that her daughter had been assaulted and had actually been rather more concerned about the upset caused to DD by Ofsted and the police being present at the nursery, and was wanting to know the reasons for the visit. Mr D’s evidence about what his daughter had said was clearly influenced by his acceptance of the reports that Sue Crawford had assaulted her. His description of what she had allegedly described was not convincing as the evidence of a three year old child and the panel rejected his evidence in that regard. The panel ascribed this to his natural concern as a parent to question his daughter and find out what had happened, without understanding how to question a child of that age rather than any deliberate policy of dishonesty on his part.

253.        The panel accepted Ms Crawford’s denial of any grabbing or deliberate harm of DD on that visit and concluded that she conducted herself throughout in an appropriate and professional manner. Any upset felt by DD, and her subsequent unwillingness to attend nursery, could only properly be ascribed to the need to have police present and to Ms Kaur’s outbursts. The responsibility for DD’s distress was therefore found to be that of Ms Kaur alone.

Did Ofsted deliberately withhold evidence from the tribunal and Ms Kaur which would have assisted her case?

254.       When considering the allegations of bribery the panel found that evidence relating to Patsy McGhie, namely of an alleged letter written by her in December 2009 and posted to Kare Babies, had not existed, and it therefore follows that such a letter cannot have been wrongfully seized and withheld by Ofsted. In any event, the letter would not have provided any substantial assistance to Ms Kaur because Patsy McGhie robustly denied ever being offered a bribe and was found to be a truthful witness by the tribunal and on her own evidence Ms Kaur had held a copy of the letter for several months after the alleged seizure.

255.       Equally, the panel was satisfied that Ofsted had returned the file for Naima Hussain to Kare Babies, as evidenced by the payment to the courier. Further the file produced from Ofsted for Jasvinder Dhinsay mirrored the photocopies in the bundle, and the panel were therefore satisfied that the file had not been wrongfully withheld or wrongly copied.

256.       The panel considered whether there would be any advantage to Ofsted in retaining the files and concluded that it was very unlikely that any of the evidence either real or fabricated would have supported Ms Kaur or Ms Sarwar’s case in any relevant respect. The balance of the evidence led the panel to conclude that Ms Kaur had made these allegations dishonestly and without any foundation to try to divert attention away from her failures as a provider and to detract from the findings made by Ofsted inspectors on their many visits.

Was Ms Sarwar an appropriate person to be registered given doubts about her integrity and suitability, alleged inability to safeguard children and her alleged inability to maintain accurate records, taken together with her involvement with Ms Kaur’s alleged failings as a registered provider?

257.       Throughout the hearing Ms Kaur referred to “we” and the weight of the evidence demonstrated that Ms Kaur and Ms Sarwar worked as a team. Ms Sarwar paid the staff and was responsible for finance and administration. She was also responsible for staff references and CRB checks. It was for Ms Sarwar to put forward a positive case in her appeal to demonstrate that she was an appropriate person to be registered. She has not cooperated to any significant extent with the tribunal process and has not filed any evidence.

258.       The panel considered the evidence in respect of the letter allegedly written by Ms Marie Foster, put forward by Ms Sarwar as evidence of her fitness to be registered and came to the conclusion on the balance of probabilities that there was clear, cogent and consistent evidence that Ms Sarwar forged the letter, basing it on the original which had been sent by Ms Foster. The panel accepted the evidence of Ms Foster, corroborated by Tracey Linton, about the contents of the letter which she had written, which was critical of Ms Sarwar. Having rejected the general allegation that there was a conspiracy amongst Birmingham City Council employees against Ms Kaur, the panel could see no reason why either should lie about the contents of the letter.

259.       The only person who could benefit from the reworked version of the letter from Marie Foster was Ms Sarwar and the panel’s finding that she forged it is sufficient to demonstrate that she was unfit to be registered. The panel also found that Ms Sarwar was involved in the forging of the Mayfield letter and the impersonation of Ms Dhinsay, which are also matters which would of themselves be sufficient to disqualify her. This evidence, taken together with her involvement in the running of Kare Babies with Ms Kaur in a manner which the panel have concluded was sufficient to compromise the safety of children at the nursery was clear and compelling evidence that Ms Sarwar was not and is not an appropriate person to be registered.

 

Overall Conclusions

 

260.       The panel concluded that throughout the involvement with Kare Babies under the control of Ms Kaur and Ms Sarwar Ofsted applied the appropriate procedures and the escalating tariff to ensure that Ms Kaur and Ms Sarwar were given the opportunity to improve their practices and to work with Ofsted. Rather than work on their weaknesses by addressing the issues and taking the help and guidance offered by staff at Birmingham City Council, Ms Kaur and Ms Sarwar dishonestly attempted to cover the problems up. When the escalating tariff meant Ofsted had to start cancellation procedures Ms Kaur started a campaign of manipulating false allegations of racism, harassment and bribery and was prepared to lie about Ms Crawford assaulting a child in attempt to deflect criticism from the inadequacies of the provision. Under such circumstances the panel were satisfied that neither had a capacity to improve, to work with professional bodies, or, more importantly, to put the needs and well-being of children in their care first.

261.        The tribunal decided that it was important not to simply look at the individual issues in isolation, but also to consider the overall picture painted by the evidence heard in relation to these two appeals. In relation to both Appellants the panel concluded that the evidence as a whole pointed to a sustained campaign of dishonesty and attempted deception of both Ofsted and the tribunal and to a catalogue of similar conduct where unrelated witnesses gave evidence of similar occurrences without any possibility of contamination or collusion. Examples of this include :

                                          i.     PC Sohal and KD, who were both threatened about child tax credit by Ms Kaur and Sarah Russell’s mother who corroborated their evidence about the way Ms Kaur can lose her temper and threaten when things aren’t going her way;

                                        ii.      Patsy McGhie was offered money in the context of statement making and Ms Kaur suggested to Karam Jan that Sarah Russell could make a false claim to get back the money she was owed;

                                      iii.     Independent confirmation of the lock on the outside of the office door by both Sarah Russell and Sue Crawford;

                                      iv.     The forged reference from PC Sohal, the forged letter from Marie Foster, the forged duplicate identity of Jas Dhinsay, the forged reference from Mayfield School;

                                        v.     The similar complaints about serious nappy rash made by Mrs D and KD.

 

262.       The panel decided that this evidence further confirmed the findings made in relation to the issues identified by the parties. Further, Ms Kaur was caught out in two acts of blatant dishonesty during the hearing. In relation to child K she insisted that there had been no incident where his mouth was potentially burnt by hot food. While D’s mother, KD, was giving evidence Ms Kaur produced a document purporting to be an accident record relating to his mouth being burnt by hot food at lunchtime, the very incident she had earlier categorically denied had occurred.

263.       Also, when cross examining Susan Riley, Ms Kaur produced several photographs for the first time. These were put to Ms Riley as evidence of things she had missed on her inspection in July 2010, including water fountains, bottles and sinks.  When challenged by Judge Hillier Ms Kaur accepted that the photos had actually been taken in November 2010 after the nursery was closed and that the sinks had been installed after Susan Riley’s visit.

264.       The panel concluded that there could be no confidence whatsoever that either Ms Kaur or Ms Sarwar would act openly and honestly with authorities in the future because both were imbued in a culture of dishonesty in their running of Kare Babies, which in Ms Kaur’s case carried through to her conduct of the hearing. The panel was satisfied that they were willing to use threats, intimidation, offers of money, allegations of racism or unfairness or even forging documents to further their cases, irrespective of the effect on others. They are simply nor trustworthy

265.       Taking together the written and oral evidence, the panel’s findings on the issues, the reasons for those findings and the assessment of the evidence overall, and applying the law as set out above, the panel concluded that Ofsted had proved on a balance of probabilities that the decision to cancel Ms Kaur’s registration pursuant to section 68 of the 2006 Act should be confirmed under section 74(4).  The panel did not conclude that it would be appropriate to impose any conditions on continued registration as there was such clear evidence that the provider had not made any changes or improvements to her understanding of safeguarding in particular and early years in general and had been found to be thoroughly dishonest, therefore that her appeal must fail. In relation to Ms Sarwar she had failed to prove on the balance of probabilities that she was an appropriate person to be registered as a manager by her involvement in the unsafe and unsatisfactory practices at Kare Babies with Ms Kaur, her involvement in the dishonest actions of forgery and impersonation through identity theft at that nursery and her failure to cooperate with tribunal proceedings. In the circumstances her appeal must also fail.

266.       Sadly, the actions of Ms Kaur and Ms Sarwar had far reaching and significant effects on individuals which were demonstrated through the nine day hearing. Examples of this include: Mr and Mrs D, worried to distraction that their daughter had been assaulted, when she was not. PC Sohal, interviewed by senior officers about a reference he did not write. Sarah Russell, abandoning her childcare career after the bullying by Ms Kaur ;DD and D, both of whom suffered extensive nappy rash, D’s exposure to potential burning from being fed hot food, and, perhaps more significantly, by both being cared for by unchecked adults. Put simply, by 1 November 2010, if not for some months before, Kare Babies was not a safe place for a child to be.

267.       There has also been the impact on the public purse by the investigation of totally false allegations made against both local authority and Ofsted employees. The cost to Ofsted of the high numbers of inspections and the lengthy proceedings is no doubt very substantial.

268.       This tribunal decision records the fact that all Ofsted officers, including Susan Crawford, Esther Gray and Johanna Holt, acted with professionalism and integrity throughout the Kare Babies investigations and that they did not withhold evidence from Ms Kaur, Ms Sarwar or the tribunal, that they did not pay or offer bribes to anyone nor act in a racially biased way towards anyone. They are all consummately professional, but have been subjected to the personal and professional stress which accompanies false allegations of dishonesty and racism – to the extent in Sue Crawford’s case of a police investigation and removal from front line duties. The fact that they have been fully exonerated by this decision and that Ms Kaur and Ms Sarwar’s proven dishonesty has been exposed in the proceedings and in the panel decision is now publicly recorded.

Decision

 

The appeal of Ms Kaur dated  13 May 2010 is dismissed.

The appeal of Ms Sarwar dated June 15 2010 is dismissed.

There be a Restricted Reporting Order under Rule 14(1)(b) of the Tribunal Procedure (First-tier Tribunal) Rules 2008 prohibiting publication (including be electronic means) in a written publication available to the public, or the 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 referred to in these proceedings. 

 

Tribunal Judge Nancy Hillier

Caroline Joffe

Marilyn Adolphe

9 May 2011