Lowe v OFSTED [2004] EWCST 0336 (EY) (28 September 2004)

				Carol Ann Lowe
				              -v-
				         Ofsted
				[2004] 0336.EY

Considered: September 28th 2004

		by

Andrea Rivers (chair)
David Allman
Tim Greenacre	

INTRODUCTION		
			
1. This was an appeal, lodged on 29th June 2004 under Section 79M of the Children Act 2000, against a decision made by Ofsted. Mrs Lowe, a child minder, was appealing against their decision to impose conditions on her registration.  At her request the appeal was set down, to be decided solely on the papers and without an oral hearing on September 28th 2004. 

2. On 17th September Ofsted requested that the appeal be dealt with by way of an oral hearing and this matter was also set down for consideration on the same day.  

3. Mrs Lowe’s son, Malcolm Lowe, is a primary school teacher who was arrested on 28th December 2001 in relation to an alleged assault by him, at school, on one of his pupils. The girl was one of the children minded by his mother. Two of her friends who were also minded by her had reported the allegation to her prior to the arrest but she did not pass the information on to Ofsted or any other agency. When this was discovered she agreed to a voluntary suspension of the business. This suspension began in June 2002. 

4. On 12th August 2002 Malcolm Lowe was acquitted of the offence.

5. On 29th August 2002 there were discussions between Mrs Lowe and Ofsted and, according to their minutes of that meeting, she agreed to accept conditions on her registration. Thereafter, in a letter dated 2nd September 2002, Ofsted informed Mrs Lowe that the period of suspension was over and she would be receiving a Notice of Intention to Impose Conditions, as agreed by her. However, instead of sending this they sent her a new registration certificate which did not include the conditions.

6. The Notice of Intention was finally sent on 28th May 2003. In addition to some standard conditions they intended to impose the following additional conditions:

(i)	(She) must report all child protection concerns to Ofsted and the appropriate agency without delay and
(ii)	(She) must ensure that Malcolm Lowe does not have access to the registered premises when minded children are present.

7. On 6th June 2003 Mrs Lowe wrote asking for their reasons for imposing the conditions to which they replied that the “LEA and associated agencies” had not yet decided whether her son would be allowed regular access to children. She requested further clarification, in particular about timescale but they said they had no more information and requested that she inform them, by return, if she intended to appeal the conditions. On 7th July 2003 she confirmed that she did and on 17th July she gave them a list of dates to avoid. 

8. On 24th July 2003 Birmingham LEA wrote to Ofsted informing them that Malcolm Lowe had been dismissed from his job as a primary school teacher and his case referred to the Department for Education and Skills (DfES), so that they could consider “whether he should be banned from teaching”. If so, they understood that his name would be “placed on the Protection of Children List”. They wrote again on 24th February 2004 to say that they still hadn’t heard from the DfES but would try to “speed the process along”.

9. On 4th May 2004 Ofsted sent Mrs Lowe a very favourable report of a recent inspection they had carried out. It enclosed a new registration certificate incorporating the new conditions, despite the fact that she had told them the previous July that she was objecting to them.

10. On 11th May 2004 there was an Objections Panel Hearing and on 14th May Ofsted informed Mrs Lowe that her objections were not upheld. No reasons were given. On 2nd August 2004 they confirmed this in a formal Notice of Decision. Once again no reasons were given, although this time there was a covering letter from their Solicitors saying that this was an “interim decision pending Birmingham LEA informing them of the Secretary of State’s decision about her son, at which point the condition would be reviewed.”

11. On 17th September 2004 the Ofsted’s Solicitors wrote to the Tribunal requesting that the case be adjourned until such time as the DfES had made their decision which, they thought, would be in 5 to 6 months. The adjournment was refused. 

THE LAW

12. Regulation 6(3A) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, as inserted by Regulation 4 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal (Amendment) Regulations 2004 provides that: 

If, at any time, it appears to the President or nominated chairman that the appeal is of such a nature that it should be determined at an oral hearing, he may, (after considering representations from the parties) direct that such a hearing shall be held, but otherwise the case shall be determined without an oral hearing if the applicant has so requested.

Section 79(M) of the Children Act 1989 empowers the tribunal, on an appeal to:

(a)	confirm the taking of the step or the making of the order or direct that it shall not have, or shall cease to have, effect; and

(b)	impose, vary or cancel any condition.

DECISION

Application for an oral hearing
13. Ofsted’s reasons for this application were set out fully in their letter of September 17th 2004. They submitted that “the Tribunal will not be able to determine all the issues in this case without the benefit of oral evidence from Mrs Lowe and Ofsted’s witnesses” They referred in particular to the issue of whether Mrs Lowe’s behaviour in failing to inform them of the allegations against Mr Lowe should “give rise to the imposition of the proposed conditions.” 

14. In a letter dated the 19th September Mrs Lowe opposed this application.

15. We considered that both sides had had ample opportunity to set out their position fully in the papers and that there was little to be gained from questioning Mrs Lowe further about her failure to refer the child protection concerns to an appropriate agency.  Moreover the three witnesses Ofsted had originally intended to call, had an oral hearing been set down, were all Ofsted employees and would have little to add to the statements of Maurice Burns, an Ofsted Child Protection Liaison Officer and Delrose Gooden, the Area Manager, both of which were detailed and recent.

16. It is, therefore, our unanimous decision to dismiss this application. 

Appeal against the imposition of conditions
17. In her written representations Mrs Lowe referred solely to the condition in respect of her son Malcolm and it was not clear whether she accepted the condition requiring her to report child protection concerns. For the avoidance of doubt we therefore considered both conditions.

(i)She must report all child protection concerns to Ofsted and the appropriate agency without delay

18. It was a serious error to fail to pass on to the appropriate authorities the allegation reported to her by the two girls. Even if, as she says, she believed the child concerned was lying, it was not for her to dismiss the allegation. The fact that it involved her own son made it all the more important for her to refer the matter to others.

19. Accordingly we uphold Ofsted’s decision to impose this condition as we consider it necessary to make it absolutely clear that such an error must not be repeated.

(ii)She must ensure that Malcolm Lowe does not have access to the registered premises when minded children are present

20. Mrs Lowe’s case was set out in her letter of 29th June. She said that:

“My ability to care for children will be affected by the fact that prospective new parents may adopt the ‘no smoke without fire’ attitude when they see my son’s name on my Certificate, with no timescale from Ofsted when this could be removed.”

21. Ofsted’s position, as set out in the statement of Delrose Gooden, was that until the DfES had made their decision about Malcolm Lowe it was “entirely appropriate” to attach the condition. 

22. In our view, to identify on Mrs Lowe’s certificate her son as a potential risk to children is a matter which understandably causes her anxiety and could have a damaging effect on her business and her reputation. It is now over a year since the Respondent was notified that Malcolm Lowe’s case was being investigated by the DfES and although their application for an adjournment implied that a decision would have been made within 5 or 6 months, there was no evidence to that effect. It appears that the timescale is open ended. This delay is all the more perplexing in view of the fact that the matter must have already been thoroughly investigated in the context of the court case and the dismissal proceedings which followed.

23. We considered the seriousness of the risk to children. The Respondent’s only evidence related to the allegation of “touching”, also described as an assault, for which Malcolm Lowe was tried and acquitted. There was no other evidence to suggest he presents a risk to children or any allegation that any child has ever been at risk from him while being minded by Mrs Lowe who has been registered as a childminder since 1987. Indeed the inspection report praises her excellent care of the children and the warm and welcoming environment she provides for them.

24. In all these circumstances we consider that the condition in respect of her son is a disproportionate response to the nature of the risk and should be cancelled and that the condition that she report any concerns without delay is sufficient. Accordingly we uphold Mrs Lowe’s appeal to that extent.

25. It is therefore our unanimous decision that the condition that: 

she must report all child protection concerns to Ofsted and the appropriate agency without delay 

be confirmed, and that the condition that:

she must ensure that Malcolm Lowe does not have access to the registered premises when minded children are present

be cancelled.

Andrea Rivers (chair)
David Allman
Tim Greenacre