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

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

Before:

Judge Meleri Tudur

Ms Michele Tynan

Mr Paul Thompson

MS

Appellant

v

Ofsted

Respondent

[2012]1970.EY-SUS

DECISION

1.            The Appellant appeals against the Respondent’s decision dated 31 May 2012 to suspend her registration as a child minder pursuant to Regulation 12 of the Childcare (Early Years and General Childcare Registers) (Common Provisions) Regulations 2008.

2.            The Tribunal of it’s own motion 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 her family and directing that reference to them shall be in an anonymised form so as to protect their private lives pending consideration of the case by Ofsted. 

3.            The appeal was the subject of consideration on the papers alone by the consent of both parties.

Background

4.            The Appellant is a registered childminder under Chapters 2, 3 and 4 of the Childcare Act 2006 providing services from her home address.

5.            The Appellant was first registered with Ofsted on the 25 November 2003.  Her last published inspection was in 2008 when she was graded as “satisfactory”.  In December 2011, an inspection was due but not carried out and logged as the Appellant having no children on roll.

6.            The conditions of registration allow the Appellant to care for no more than 5 children under 8 years; of these, not more than 3 may be in the early years age group and of these not more than 1 may be under 1 year at any one time.  The conditions also specify that the Appellant must not use part of the garden where the greenhouse is situated and must not provide overnight care.

7.            On the 23 May 2012, a further Ofsted inspection took place and another “no child on roll” inspection carried out as the Appellant had stated she was not looking after children in the early years age group.

8.            On the 29 May 2012, an anonymous complaint was received by Ofsted by way of a telephone call raising concerns that children were being left alone with an individual who had possibly not been vetted and without parental consent; an allegation that the Appellant had pulled a child’s hair and beat her and that a child came home regularly with bruises without explanation from the childminder.

9.            The case was referred to the Local Authority Designated Officer and further investigations made which revealed previous concerns regarding the Appellant and another household member.

10.          A strategy meeting was convened by the LADO on the 1 June 2012.

11.         On the basis of the information received, Ofsted conducted a Compliance, Investigation and Enforcement case review on the 30 May 2012.

12.         The case review concluded, taking into account the original information regarding the allegations about unexplained bruises to a child, leaving a minded child in the care of an unvetted person and the additional information from the LA, that children may be at risk of harm and that suspension is the only step that can adequately protect them whist enquiries are made.

13.         A notice of suspension was served on the Appellant on the 31 May 2012.

14.         The Appellant appealed against the notice on the 1 June 2012.

Evidence

15.         The Respondent relied on witness statements made by Christy Judge , Compliance, Investigation and Enforcement Professional dated 6 June 2012; Sarah Haylett, Regulatory Inspector, Ofsted dated  6 June 2012; Margaret Ferris, Regulatory Inspector, Ofsted dated 7 June 2012 and Karen De-Lastie, Senior Officer dated 11 June 2012.

16.         In support of her appeal, the Appellant submitted statements from Barez Kaftan dated 6 June 2012; Hope Oyet dated 6 June 2012; Gagandeep Singh and Jasmail Kaur Sandhu dated 6 June 2012; an undated letter from Mrs N Jerbi; the Appellant’s own statement dated 11 June 2012 and a statement by Jane Medici dated 12 June 2012.

17.         The Appellant’s statement set out the circumstances leading to the anonymous complaint and set out a potential context for it. 

18.         She confirmed that she had signed a contract in 2008 with the parents of a child who was then 3 months old who had continued in her care until May 2012, but who had taken a day off rather than allow the child to be collected by a backup childminder from Nursery on the day of the Ofsted inspection.

19.         The statement of Jane Medici confirmed that on the day of the inspection one child was on holiday and the other had been picked up from Nursery by his mother.  The Appellant had been advised that the information in the report had been incorrect and that she did have children on roll but none present.  It also confirmed that there was an incident about five years ago in their relationship which may have become part of the issues through Social Services.

The Law

20.         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 person’s registration. The section also provides that the regulations must include a right of appeal to the Tribunal.

21.         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.”

22.         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.

23.         “ 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”.

24.         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.  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.

Tribunal’s conclusions with reasons

25.         We considered all the evidence presented in the appeal and note that there are issues raised, not only from the anonymous complaint but also from the enquiries made by the Respondent about the information provided by the Appellant to the inspectors which is at odds with the information provided by the Appellant in the appeal and her own witnesses.  We have concluded that this, coupled with the anonymous complaint and further information about past difficulties that involved Social Services, are sufficient to support the reasonable belief that the continued provision of childcare may expose a child to risk of harm.

26.         We have concluded that on the date of the decision to suspend, 31 May 2012, and at the date of the hearing there was and is reasonable cause to believe that the continued provision of child care by the Appellant to any child may expose such a child to a risk of harm and that a reasonable person, assumed to know the law and possessed of the information we have, would believe that a child might be at risk.

ORDER

The appeal against interim suspension is dismissed

Meleri Tudur

Tribunal Judge, Care Standards

18 June 2012