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

 

 

 

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

Grantham Magistrates Court 18^th July 2011

 

Before

Deputy Chamber President Judge John Aitken

Mr James Churchill

Mr Michael Flynn

 

 

JC

Appellant

 

v.

 

OFSTED

Respondent

 

 

 

Decision

 

1. The appellant requested that his appeal in this matter be dealt with on the papers, however upon considering the papers a panel than allocated decided that further evidence was necessary and the matter was fixed for oral hearing.

 

2. The tribunal had a bundle of papers including the decision to suspend, the appeal, and the response to the appeal. In addition statements of Mr Hill, a third witness statement of JC and a number of statements in support of his position were considered.
   
   
3. The appellant appeals to the tribunal against the respondent’s decision dated 17^th June 2011 to suspend his registration, as a child minder for six weeks until 29^th July 2011.
   
   
4. The Tribunal makes a restricted reporting order under Rule 14 (1) (a) and (b) of the Tribunal Procedure (First tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, prohibiting the disclosure or publication of any documents or matter likely to lead members of the public to identify the appellant, or his wife, and directing that reference to them shall be by their initials so as to protect their private lives.   

 

The background

5. The appellant is a married man, his partner is MR, also a registered childminder who works with him. A number of complaints were made to Ofsted prior to June 2011, they were found to be unsubstantiated. His wife was investigated by the Police over one matter, and the Police found insufficient evidence to justify a charge and the matter was not proceeded with. The appellant is taking steps to obtain legal redress against an employee that he believes is responsible for malicious allegations.
   
   

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

6. The respondent has received a number of allegations since 20^th April 2011 about shouting and swearing in front of children, unsupervised children, poor and inappropriate nutrition, an unclean setting, the over minding of children and staff who have not been checked for suitability. Importantly there are also allegations of assault.       
   
   
7. By 16^th June 2011 the respondent had obtained witness statements from further witnesses who might be expected to have direct knowledge of the provision of child care by the appellant. They identified similar issues.

 

Events following the suspension

8. The respondent has obtained further statements on 22^nd and 23^rd June and further on 1^st July again allegations of improper behaviour were made. In total 7 witnesses (as identified by Ms Stone) have made statements which allege improper behaviour, some are former employees, others are not. The respondents allege that enforcement action has not yet been taken because of the possible interference with a Police investigation of the appellant.
   
   

The Law

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

“that the chief inspector reasonably believes that the continued provision of childcare by the registered person to any child may expose such a child to a risk of harm.”

11. The suspension shall be for a period of six weeks. Suspension may be lifted at any time if the circumstances described in regulation 9 cease to exist. This imposes an ongoing obligation upon the respondent to monitor whether suspension is necessary.   
    
    
12. “ Harm” is defined in regulation 13 as having the same definition as in section 31 (9) of the Children Act 1989:   
    
     “ ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill treatment of another”.
    
    
13. The powers of the tribunal are that it stands in the shoes of the Chief Inspector and so in relation to regulation 9 the question for the tribunal is whether at the date of its decision it reasonably believes that the continued provision of child care by the registered person to any child may expose such a child to a risk of harm.    
    
    
14. The burden of proof is on the respondent. The standard of proof ‘reasonable cause to believe’ falls somewhere between the balance of probability test and ‘reasonable cause to suspect’. The belief is to be judged by whether a reasonable person, assumed to know the law and possessed of the information, would believe that a child might be at risk.
    
    
15. Counsel helpfully reiterated these tests and agreed they were the appropriate ones.

 

Issues

16. We considered the documents referred to above. 
    
    
17. The respondent’s view, based on the witness statements and records referred to, is that there is evidence of risk requiring investigation, and suspension and indeed enforcement were it not for the possibility that such action might prejudice the Police enquiry into these matters.

 

18. Mr Davies on behalf of the respondent submits that the decision, could not be said to have any proper basis. In the first place the actual statements said to relate to wrongdoing by the appellant have not been produced and in the place of the Chief Inspector if he had not seen such statements he could not have a basis to act upon them. Secondly it was argued that the evidence before the Tribunal amounted to this in respect of the Police. They had had the case referred to them on 20^th June 2011, the Officer in charge had been on holiday over the past week, but when an update was sought it was clear that all that had been done was the formation of an action plan. In fairness that could not be said to be an ongoing investigation which presented enforcement or could be an ongoing investigation which enabled the respondent to rely upon it as a reason to suspend.

 

 

Conclusions

19. We of course make no findings of fact with regard to the allegations. We note however that the position with regard to the allegations is that there are a number of statements in existence which relate misbehaviour by the appellant, including assault, and if made out, breaches not only of regulations but which also might amount to neglect or cruelty.  
    
    
20. We consider in those circumstances the respondent is entitled, as do we in his place, to consider that where there is an ongoing Police investigation supported by statements, whether the detail of the content is divulged or not, into such matters that there is a reasonable belief that a child may come to harm. In short, there is presently a reasonable prospect of the investigation showing that the suspension is necessary. That no steps have been identified, aside from allocating the officer and forming an action plan in 4 weeks from referral (which included a period of leave for the Officer) does not indicate that the investigation is not ongoing. Equally refraining from enforcement is reasonably done in such circumstances because it may interfere with the investigation.
    
    
21. We do however make the following observation. A defunct police investigation could not support such reasoning, which would then have to rely upon the actions and evidence held by Ofsted directly. In this case the investigation has begun only to a limited extent, in that an officer has been assigned and an action plan, not containing any dates, has been said to have been produced by the police, which we have not seen. It may be that as, Mr Davies submits, this case has a decreased level of urgency in the eyes of the Police because the suspension acts to ensure protection of the children. We have seen no evidence of that, but would be concerned if that were to be the case. We understand that an investigation is complex and often difficult, but the livelihood of the appellant rests upon a speedy conclusion.  In the absence of such a speedy conclusion his business may well be damaged beyond repair and even vindication might not assist him financially. We would expect to see in any further appeal that may come before us in this matter some clear evidence of progress with regard to the Police investigation, if that were still given as the reason to suspend or continue to suspend. That does not mean we prescribe any particular action by any particular date, but the appellant is entitled to know that whilst he is suspended because of an investigation that investigation is progressing. In most cases the Police form a preliminary view of witnesses and from that the general merits of an investigation, some allegations may end there. Knowing that an investigation is progressing in areas such as that is fundamental to it being fair to suspend in these circumstances. In that way Ofsted is able to discharge its  duty to justify a suspension in the words of the tribunal in Ofsted v GM & WM [2009] UKUT 89 (AAC) at paragraph 27:  
    
    “…a suspension imposed on the ground that there is an outstanding investigation can, in our judgement, be justified only for so long as there is a reasonable prospect of the investigation showing that such steps are necessary”
    
    

Decision

 

The appeal against interim suspension is dismissed

 

 

 

 

 

 

 

 

 

 

 

 

Judge John Aitken

Deputy Chamber President

Health Education and Social Care Chamber

19 July 2011