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

 

 

 

Care Standards Tribunal

 

The Tribunal Procedure Rules (First-tier Tribunal) (Health, Education and Social Care) Rules 2008

 

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

Considered on Papers

On Wednesday 12^th December 2012

 

Before:

Deputy Chamber President Judge John Aitken

Specialist Member Mr Graham Harper

Specialist Member Mr T John Williams

 

Mrs Ishrat Nazir

Appellant

-v-

 

OFSTED

Respondent

 

[2012] 2001.EY-SUS

 

Decision

 

1. This matter was listed for consideration on the papers. That is permissible under rule 23 however not only must both Parties consent, which they have, but the Tribunal must also consider that it is able to decide the matter without a hearing. When this matter was listed on 28^th November 2012 we declined to consider the matter on the papers because the allegations were not disclosed to us. Since that time the allegations have been disclosed and the Appellant has sought an adjournment to properly prepare her response, which was granted, to have this matter considered today following a direction to file further information.
   
   In this case now we have a good picture of the allegations made, the response, and the level of risk present from the papers, there appears to be no substantial factual dispute save the central allegations which might affect our decision and we consider that we can properly make a decision on the papers without a hearing.
   
   
2. The Appellant appeals to the Tribunal against the respondent’s decision dated 13^th November 2012 to suspend her registration as a child minder on the General Childcare Register under Section 69 of the Childcare Act 2006, for six weeks until 23^rd December 2012.
   
   
3. 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 children or their Parents in this case so as to protect their private lives.   

 

Events leading to the issue of the Notice of Statutory Suspension.

4. The Appellant has been a registered childminder on the Early Years Register and both parts of the Childcare Register since 24^th February 2009. Her husband Shaukat Nazir works with her as an assistant.

 

5.     In addition the Appellant is a foster carer, from the 16^th October 2012 there were two children in her care under a fostering arrangement through Harrow Children’s Services and the Sunbeam Fostering Agency, a girl aged 5 “L” and her brother “M” aged 9.

 

6.     During a contact visit on 16^th October 2012 “L” disclosed to her mother that the Appellant had pinched her on the cheek hard which hurt her. This was reported to the child’s social worker and “M” was spoken to and provided corroboration.

 

7.     A number of other issues were raised relating to standards of care of the foster children; dirty clothing, generally not being cared for well, the school having asking the Appellant to clean the children’s school uniforms which she had refused to do, the children being unwashed, “L” being sent to school on two occasions without underwear, the children having inappropriate shoes, “M” not being taken to a medical appointment, both being sent to their rooms when the Appellant’s own child had a party. Ofsted were advised that there was also concern for the welfare of the Appellant’s own two children and it had been decided that an initial assessment was to be completed by Children’s Services.

 

8.     As a result of the allegations of assault, neglect and poor standard of care, the children were removed from the Appellant’s care on 19^th October 2012 as the relevant agencies believed they may be at risk of harm from the Appellant.

 

9.     A multi-agency strategy meeting was convened on 2^nd November 2012 at the offices of Harrow Borough Council Children’s Services and a child protection investigation was commenced led by the police. At that meeting it was resolved that Ofsted should be informed.

 

10. On 13^th November 2012 a decision was taken by Ofsted to suspend the registration of the Appellant and she was notified accordingly.

 

Events following the suspension

11. The Appellant was interviewed and after reading a prepared statement declined to answer questions, she has however filed a detailed statement refuting the allegations. .
    
    

The Law

12. 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.
    
    
13. 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.”

14. The suspension is 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.
    
    
15. “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”.
    
    
16. The powers of the Tribunal are that it stands in the place 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.
    
    
17. 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.

 

Issues

18. The Appellant indicates in her appeal that she absolutely denies the allegations. We are not however directly concerned with that, we are not in a position to decide whether the allegations are well founded or not. We are in a position to consider the risk to the children who are present when the Appellant is childminding, given the allegations which are made.

 

Conclusions

19. We consider that the allegations fall into two categories, the allegation of physical harm, pinching a cheek on one occasion, and those related to quality of care on a more sustained basis, failing to ensure “L” and “M” were clean and properly clothed, treating them differently from their own children and the like. We have also considered the references which the Appellant has filed from the Parents of the children she has cared for, they are glowing and speak of a very well controlled environment.
    
    
20. With regard to the “physical” allegation. If proven there is a risk that this show of temper could be replicated on a child being cared for, but given the references and the period for which the Appellant has already been looking after children and of course that the Appellant might be expected to carefully consider her behaviour during an investigation we consider that the risk is theoretical rather than actual.
    
    
21. With regard to the care allegations, these are not directly relevant to the children who attend her childminding because they are if established illustrative of poor longer term care. Given the references the Appellant has provided we again consider that in respect of childminding that the level of risk is theoretical rather than actual.
    
    
22. We are also aware that the children who are using this provision are settled and need to have stability, they are also closely observed daily by their Parents, which is closer observation than for a fostered child. Balancing the risk of harm which may be caused by disruption to their usual routine, and the levels of risk identified by Ofsted we consider that given the allegations as we are aware of them at present, the Appellant remaining on the register until these matters are resolved does not amount to placing the children who are in her day care at risk of harm.
    
    

 

Decision

 

1. The appeal against interim suspension is allowed.
   
   
2. By virtue of Section 74(4)(a) Childcare Act 2006 we direct that the suspension shall cease to have effect.

 

 

 

 

 

Judge John Aitken

Deputy Chamber President

Health Education and Social Care Chamber

 Thursday 13^h December 2012