Walters v OFSTED [2004] EWCST 292(EY) (20 December 2004)

Eleanor Walters v. HM Chief Inspector of Schools in England (OFSTED)

[2004] 292.EY

Mr Mark Rowland
Mr Chris Wakefield
Mr Peter Sarll

Heard on 8, 9, 10 and 11 November 2004

DECISION

The history in outline

1.	The Appellant, Mrs Eleanor Walters, has been running a nursery named Mrs Tiggy-Winkle’s Kindergarten since May 1990 and has been doing so from its present premises, a four-bedroom house in the grounds of a nursing home, since 1993.  At the nursery, she provides “day care”, within the definition in section 79A(6) of the Children Act 1989 Act (“the 1989 Act”).  Section 79A(6) falls within when Part XA of the 1989 Act, which was inserted by section 79 of the Care Standards Act 2000 with effect from September 2001.

2.	By virtue of section 79B(1) of the 1989 Act, the Respondent, Her Majesty’s Chief Inspector for Schools in England, who heads the Office for Standards in Education (“Ofsted”), is the registration authority in England for the purposes of Part XA of the 1989 Act.  The registration of child minders and day care providers has required the establishment of a substantial organisation within Ofsted.  The West Midlands region of Ofsted “Early Years”, based in Birmingham, inspects some 6,500 child minders and 3,500 day care providers.  Roughly a quarter of the day care providers are located within Area 1, one of four areas within the Region.  The Area Manager of Area 1 is Mr Tony Kew.  The inspectors within Area 1 are divided into teams.  One team covers Herefordshire and part of Worcestershire and is headed by Mrs Sheila Dunsford.  It was her team which was involved in the inspection of Mrs Tiggy-Winkle’s Kindergarten.

3.	The first inspection by Ofsted of Mrs Tiggy-Winkle’s Kindergarten was carried out on 7 May 2002.  This was a “transitional inspection” having the purpose of establishing whether there was compliance with the new national standards laid down under regulations made under Part XA of the 1989 Act, so that Mrs Walters could be registered under that Part of the Act.  The inspector, Mrs Owen, recorded her findings in an electronic notebook.  She and Mrs Walters agreed that a number of “actions” would be completed by various dates.  She also considered that there should be attached to the registration an express condition that “persons not vetted are never left in sole charge of children”. During the course of the inspection, Mrs Walters informed Mrs Owen that she proposed to cease, in September 2002, to be the registered person in respect of Mrs Tiggy-Winkle’s Kindergarten and that she expected that Mrs Julie Hodson, who worked at the nursery, would succeed her.

4.	Notwithstanding the actions that were required, a certificate of registration was issued by the Chief Inspector on 24 June 2002, subject to four conditions:

“Registered to provide full day care for a total of 25 (twenty-five) children under 8 years, of whom no more than 10 may be under 2 years.

Registered to provide out of school care for a total of 16 (sixteen) children aged 3-8 years.

Persons not vetted are never left in sole charge of children.

This registration does not include overnight care.”

5.	On 4 July 2002, by when most of the actions should have been completed, Mrs Owen returned to the nursery to check progress.  She was satisfied with what she saw.  Mrs Walters confirmed her intention of selling the nursery to Mrs Hodson and moving to South Wales later that summer to join her husband whose work had taken him there.

6.	Mrs Hodson duly made an application for registration in respect of the nursery.  This resulted in another inspection of the nursery by Mrs Owen on 16 September 2002.  She made a number of observations but required only one “action” to be completed, which was to “ensure outside play area is secure and free from hazards”.  That was to be done within a month and, it was said, was necessary before the applicant met National Standard 6.  During the inspection, Mrs Owen noted that the nursery “is under new management”.

7.	That month, Mrs Walters had a leaving party at the nursery and moved to South Wales, assuming that Mrs Hodson’s application for registration would shortly be approved.  However, the application appears to have become stuck in the system.  There is a special unit at Ofsted’s regional centre that deals with applications.  It processes an application by obtaining the necessary references, carrying out the necessary checks and obtaining the results of the “suitable person interview” and inspection, which are carried out by the local team of inspectors.  The application is then referred to the relevant area manager who makes a decision on it on behalf of the Chief Inspector.  We have not heard directly from the applications unit but Mrs Walters’ written evidence suggests that it was not, at that time, as efficient as it might have been.  For instance, it took more than one telephone call for Mrs Hodson to obtain an application pack and Mrs Walters herself was asked to complete a reference form after she had already done so.  We also observe that, before the inspection, Mrs Hodson had received a letter dated 27 August 2002, bearing all the appearances of having come directly from Ofsted, stating:

“We wrote to you recently to let you know that the Childcare Inspector has recommended that your application should be granted.  The purpose of this letter is to let you know how to pay the fee of £121.00.  It is in your interest to do so quickly as we cannot issue your certificate until you pay us.”

Unsurprisingly, Mrs Hodson paid the fee, despite the fact that she had, of course, not been informed that her application had been granted.  Mr Kew told us that, despite appearances, that letter was issued by an external fee collection agency and the wording of letters issued now has since been amended.  The early collection of fees is, we were told, intended to speed up the application process.

8.	In this case, collection of the fee seems to have been the speediest part of the process.  Some justifiable delay may have been caused by the fact that Mrs Owen had required the action in relation to the play area.  When an action is required, the inspector records it in the electronic notebook.  An administrator then issues to the relevant person a standard letter incorporating the inspector’s wording in respect of the action required.  The letter includes a form for the recipient to return to show what action has actually been taken and when.  Here, because the inspection had been carried out in relation to Mrs Hodson’s application, the letter was sent to her.  Her reply, dated 9 November 2002, was to the effect that, on 12 October 2002, she had put a fence in place and removed harmful berries.  On the form, she also said that she intended to rearrange the premises by swapping an office and a playroom over the next few weeks.  It is possible, as was suggested to us, that that information complicated the process of approving the application but it is not clear why nothing further appears to have been done by February 2003, save that on one occasion when Mrs Hodson rang up to enquire about the progress of her application she was told for what she believed to be the first time that a copy of the fire certificate was required.

9.	During this period, despite still being the owner of, and the person registered in respect of, the nursery, Mrs Walters played no effective part in the running of the nursery.  She might be consulted about major items of expenditure but otherwise the nursery was being managed entirely by Mrs Hodson.  Mrs Walters visited only on a couple of occasions when the nursery was open and those were social calls when she happened to be in Herefordshire.

10.	In February, Ofsted received two complaints about the nursery.  One was from a former employee of the nursery who spoke to Mrs Dunsford while she was shopping in Sainsbury’s and expressed concerns about the organisation and cleanliness of the nursery.  Mrs Dunsford passed the complaint on to the Complaints, Investigation and Enforcement team, based at Ofsted’s regional centre.  A telephone call to an environmental health officer ascertained that she too had thought the nursery to be dirty when she had visited the previous month. In the same week, the team received a complaint from a parent who had visited the nursery with a view to sending her baby there and “was so disgusted by the nursery that she would not send a dog there let alone a child”.  It was decided that there should be a visit by inspectors of the local team and Mrs Dunsford decided that, in the circumstances, the inspection should be carried out by two inspectors.

11.	On 18 February 2003, Mrs Owen and Mrs Jane Laraman visited the nursery in response to the complaints.  We note that, although the notebook shows Mrs Hodson as the “provider” – possibly because Mrs Dunsford had used Mrs Hodson’s unique reference number when referring the complaint – it is also recorded that the nursery was still owned by Mrs Walters and that Mrs Hodson was the “person in charge” and prospective purchaser, awaiting registration.  It is not disputed that parts of the nursery were filthy.  The inspectors returned on the same day with Mrs Dunsford and an environmental health officer and reported back to the Compliance, Investigation and Enforcement team.  The manager of that team, Mr Ted Goodman, who was designated an area manager although his team covered the whole region, discussed the situation with a member of his team and Mr Kew.  There was at that time no power to suspend registration and they considered whether to ask a magistrate to cancel altogether Mrs Walters’ registration with immediate effect under section 79K of the 1989 Act.  However, they decided to give Mrs Walters the opportunity to correct the situation.  Mr Goodman explained in his witness statement:

“We were aware of her proposal to sell the Nursery to Mrs Hodson and suspected that she was not perhaps as involved in the day to day running of the Nursery as she once had been.”

12.	On 19 February 2003, Mr Goodman managed to speak to Mrs Walters on her mobile telephone while she happened to be in the West Midlands house-hunting in expectation of her husband having to move again.  She went to his office and agreed that the nursery should close until it had been cleaned up.  Two days later, she sent a fax describing what had been done in response to the inspectors’ concerns and Mr Goodman agreed to the nursery reopening.

13.	On 24 February 2003, Mrs Owen and Mrs Laraman again visited the nursery.  They had some minor comments, but agreed that the national standards were now met and that the requirements for action had been complied with.  They did, however agree with Mrs Walters and Mrs Hodson action to prevent the children from having access to some drains, which seems effectively to have prevented the children from using the outside play area, and they also recommended that the registration be made subject to a condition that a “fence is erected at all times when nursery is operating”.

14.	On 13 March 2003, Mr Kew and Mr Goodman had a meeting.  It was agreed that there should be two further monitoring visits to the nursery.  The record of the meeting written by one of Mr Goodman’s team also says:

“Agreed that we should proceed to refuse Mrs Hodson’s pending application and ask that solicitors draft the NOI to that effect.”

In fact no notice of intention to refuse the application was drafted and there was no communication with Mrs Hodson about her application until she was interviewed in August.  At the hearing before us, neither Mr Kew nor Mr Goodman recalled that any firm decision had been made at that meeting and Mr Goodman told us that legal advice was subsequently taken from the Treasury Solicitor.  This is consistent with the inspectors recording that, on the next inspection, Mrs Hodson asked about her application and was told that advice was still being sought.  Mrs Walters’ understanding is that they said the matter was “with the courts” and suggested that Mrs Hodson might not be able to work with children any more.  It seems likely that the inspectors said, or meant, that the matter was with solicitors, rather than the courts.  It is also possible that they were also alluding to a reference under section 2A of the Protection of Children Act 1999.  If so, the Secretary of State appears sensibly not to have acted on the reference.

15.	Whatever the perceived problem, it seems to us that, at least after the two monitoring visits had taken place, Ofsted ought either to have moved towards issuing a notice of intention in respect of the application – which might have involved a further interview with Mrs Hodson to discuss with her the matters revealed at the February inspection – or else to have formally written to Mrs Hodson to inform her that there would be a delay and the reason for it.  Mr Goodman acknowledged that the delay was unsatisfactory.  Unfortunately, he became seriously ill two days after the meeting and was absent from work until August, initially returning on a part-time basis only. His sudden absence at that particular time may have contributed to the hiatus in the processing of the application.

16.	On 21 March 2003 and 31 March 2003, there took place the two planned monitoring visits.  Mrs Dunsford and Mrs Owen visited on the first occasion and Mrs Owen and Mrs Laraman on the second.  Some serious concerns were expressed but no “actions” were raised.  Indeed, at the second visit, it was recorded that the drains had been made safe and the children could use the outside play area.  It is not entirely clear whether that restriction had been reflected in a condition of the registration or not since 24 February 2003, but nothing turns on the point.

17.	On 4 April 2003, a new certificate of registration was issued to Mrs Walters, including a condition that “a temporary fence is erected at all times when children are outside”.  We note that that was not the same condition as that which had been contemplated on 24 February 2003 when it was recorded that the fence would be erected before the children arrived in the morning and not removed until all the children had left in the evening.  Otherwise, the only outcome of the monitoring visits was a decision that there be continued monitoring.  That there should be further monitoring is not surprising, given that the general summary on 31 March 2003 was:

“Low staffing levels and disorganisation, poor staff management make it difficult to maintain the nursery at minimum standard level of care.”

18.	Mrs Walters and Mrs Hodson now kept closer contact by e-mail and telephone and Mrs Walters visited the nursery more often, although she does not appear to have conducted any systematic monitoring of standards.  However, we accept that Mrs Walters was not made fully aware of Ofsted’s concerns.  Neither those concerns nor the decision that there should be further monitoring had been communicated in writing to either Mrs Hodson or Mrs Walters.  There was verbal feedback to Mrs Hodson and she was expected to relay the feedback to Mrs Walters.  

19.	It was explained to us that the normal approach of Ofsted is to give only oral feedback at the end of an inspection, unless specific “actions” are required, in which case a standard letter, setting out the “actions” required but not the reasons for the requirement, is issued by an administrator. No inspection report or other document recording concerns is issued.  It is true that a registered person can always contact the inspectors to be reminded of the concerns and, indeed, the standard letter issued with an “action” expressly states as much, but that is of no assistance where a manager or registered person does not realise that his or her recollection of, or understanding of, verbal feedback is incomplete. 

20.	Ofsted may wish to consider the adequacy of its approach.  Oral feedback is sensible and allows the person concerned immediately to correct any misunderstanding on the part of an inspector.  However, where concerns are sufficiently serious that Ofsted either formally requires action from the registered person or decides that further monitoring is required, it seems to us to be unsatisfactory that the oral feedback should not be reinforced in writing so that all those concerned in the management of the home have no doubt as to the nature of the concerns.

21.	On 16 June 2003, Mrs Dunsford and Mrs Owen visited the nursery as part of the further monitoring, although the timing of the visit appears to have been prompted by receipt of information from a development worker at the EYDCP suggesting that standards were falling again.  We note that, again, the inspection was carried out under Mrs Hodson’s reference number rather than Mrs Walters’.  At the end of the visit, the inspectors raised a number of concerns with Mrs Hodson and were not wholly satisfied with her responses.  However, they, and Mr Kew with whom Mrs Dunsford discussed the case, decided that, on balance, the nursery was complying with the national standards.  It was decided that there should be a meeting with Mrs Hodson and Mrs Walters to discuss the concerns.  Unfortunately, it appears that a change in Mr Goodman’s team had the effect of putting the meeting off but, for the first time, written feedback was provided in letters to both Mrs Hodson and Mrs Walters dated 19 August 2003.

22.	Just eight days later, on 27 August 2003, Mrs Dunsford and Mrs Tesa Mcgrath, who was from Mr Goodman’s team, visited the nursery, again under Mrs Hodson’s reference number.  That afternoon, they conducted separate interviews with both Mrs Hodson and Mrs Walters at the Inland Revenue offices in Hereford.  The interviews were recorded.  In her written submissions, Mrs Walters suggested that she should have been cautioned but, as no criminal proceedings were contemplated, we are satisfied that that was unnecessary.  She also suggested that the interviews should have taken place at the nursery, which would have been less disruptive.  However, Ofsted was entitled to take the view that it would be better for such important interviews to take place outside the nursery where the interviewing process itself would not be disturbed and they could more easily be recorded.  It is highly commendable that detailed interviews were conducted before deciding whether to issue a notice of intention to refuse Mrs Hodson’s application for registration and a notice of intention to cancel Mrs Walters’ registration.

23.	In her interview, Mrs Walters intimated that she was planning to return to having more involvement in running the nursery with Mrs Hodson acting as her deputy.  She still hoped to sell the nursery to Mrs Hodson “unless there’s any reason why it shouldn’t go through”, although she conceded that Mr Hodson might need to go on a management course.  However, at the end of Mrs Hodson’s interview, the inspectors told Mrs Hodson that they would not be supporting her application for registration.  It is plain that they were not satisfied with what they had seen that morning.  In the light of that indication, Mrs Hodson withdrew her application by letter dated 1 September 2003.

24.	Mrs Walters and her husband had recently moved from South Wales to a place in Warwickshire about 50 miles from Hereford and she had started making weekly visits to the nursery.  Her children were unable to start school until well into September but she then started attending the nursery more frequently, taking back the management but with Mrs Hodson acting as her deputy and being in charge on the days when she was not there.

25.	However, on 23 October 2003, Ofsted issued a notice of intention to cancel Mrs Walters’ registration, accidentally sending it to her old address in South Wales from where it was forwarded.  The notice was not particularly well drafted but was to the general effect that Mrs Walters had ceased to be qualified for registration.  It was specifically said that she had failed to ensure that suitable staff were recruited, that the person in charge had the skills and ability to be suitable for that role and that the nursery complied with the national standards.  A large number of specific breaches of the national standards before 19 February 2003 and on 31 March 2003 and 16 June 2003 were set out.

26.	Mrs Walters exercised her right to make representations and produced a large number of documents in support of a written submission.  On 13 February 2004, a fortnight before the Panel was due to hear oral representations, Mrs Esther Gray, of Mr Goodman’s team, visited the nursery.  Mrs Hodson was in charge but said that she would soon cease to work at the nursery and she in fact did so at the end of the month.  Mrs Gray had a number of concerns, mainly as a result of the nursery having decided that babies would be cared for downstairs and pre-school children upstairs instead of the other way round.  However, there was no written follow-up to the visit and she merely recommended that monitoring continue during the objections process.

27.	The Objections Panel met on 27 February 2003 but, on 4 March 2003, Mrs Walters’ solicitor was notified by letter from the senior member of the Panel that the objections had not been upheld.  The formal notice of decision to cancel registration, signed by Mr Kew, was not issued until 11 March 2003.  As the letter was sent before the notice, it is unsatisfactory that the letter should have contained the information that an appeal should be lodged within 28 days without stating that that period ran from the date of the notice.

28.	The meeting of the Objections Panel had a more positive outcome for Mrs Hodson.  It emerged at the hearing that, not only had she paid £121 in response to the invoice of 27 August 2002, but she had also been sent a renewal invoice on 30 July 2003 and had paid £94 in response to a reminder sent on 29 August 2003.  The £215 was refunded to her.  We do not know whether other unsuccessful applicants for registration have had fees returned to them.

29.	At the beginning of March 2004, following Mrs Hodson’s departure, Mrs Walters commenced working at the nursery every day.  At the end of that month, she lodged her appeal against the cancellation of her registration.

30.	On 27 April 2004, Mrs Gray and Mrs Laraman visited the nursery.  They were not satisfied that the nursery was complying with the national standards and were particularly unhappy that the way the premises were used had been rearranged without Ofsted having been notified and were concerned about some consequences of the rearrangement under which the babies were cared for downstairs and the older children were upstairs.  They issued a letter requiring Mrs Walters to take action by 20 May 2004 in respect of eleven matters. Mrs Walters duly returned the reply form on 24 May 2004.  Mrs Gray was not entirely satisfied with the response but no further action was taken, save for the preparation of documents for the appeal, until 26 August 2004, a week before the case was first listed for hearing.  Mrs Gray then visited again.  She identified some concerns but nevertheless concluded that there had been “a considerable improvement in the cleanliness and orderliness of the premises and the actions identified at my last visit have been carried out satisfactorily”.

31.	The hearing of Mrs Walters’ appeal had been listed before the tribunal for hearing at Worcester county court on 2, 3, 27 and 28 September 2004.  On the first day, Mrs Walters applied for an adjournment because she wished to have a further opportunity to sell the nursery.  Having considered Mrs Gray’s electronic notebook record of the visit on 26 August 2004, the tribunal (then consisting of Mr M Rowland, Mr D Cook and Mrs M Martin) adjourned to 27 September 2004 with a directions hearing before Mr Rowland alone on 22 September 2004.  At the directions hearing, Mrs Walters asked for a further adjournment, as a prospective purchaser had now made an application for registration and the suitable person interview was to take place on 11 October 2004.  Mr Rowland decided that the case should be relisted for hearing on four consecutive days in November.  In the event, neither the other members of the tribunal nor the court premises were available on the dates when witnesses were and the tribunal was reconstituted and the hearing fixed to take place at the premises of the valuation tribunal in Worcester from 8 to 11 November 2004.  Meanwhile, on 8 October 2004, the prospective purchaser withdrew her application for registration.

32.	On 2 November 2004, in anticipation of the hearing, Mrs Laraman and Mrs Deborah Ball visited the nursery.  This inspection gave rise to more concerns and sixteen points on which action was required.

33.	At the hearing before the tribunal, Mrs Walters appeared in person.  Ofsted was represented by Mr Paul Spencer of counsel, instructed by Messrs Anthony Collins, solicitors of Birmingham.  We heard oral evidence from Mrs Gray, Mrs Dunsford, Mr Kew, Mr Goodman and Mrs Laraman on behalf of Ofsted and, in addition, had a written statement from Mrs Owen.  On behalf of Mrs Walters, we heard oral evidence from Mrs Boyle, a development worker with EYDCP, from two parents of children at the nursery, one of whom was formerly a member of staff, and from Mrs Walters herself.  We also had a large number of written statements from parents and former members of staff.  Mrs Walters told us that it was still her intention to sell the nursery.  It was confirmed by Ofsted that an application for registration had been received and that a suitable person interview was to be arranged.

34.	In broad terms, Ofsted’s case is that Mrs Walters tends only to react to Ofsted drawing matters to her attention and that, when standards have been brought up to a reasonable level, they have then slipped again.  Ofsted should not be expected to monitor the nursery as closely as it has.  Mrs Walters accepts that there have been breaches of the national standards but submits that the most serious occurred when she was not in day-to-day charge of the nursery; other breaches she either challenges or submits are not sufficiently serious to justify closing the nursery.  She wishes the nursery to remain open until she is able to sell it.

The legislation 

35.	By section 79G(1)(b) of the 1989 Act, the registration authority may cancel the registration of a person registered for providing day care on any premises if “the authority is of the opinion that the person has ceased or will cease to be qualified for registration for providing day care on those premises, …”  Section 79B(4) provides:

“A person is qualified for registration for providing day care on particular premises if –
(a)	every person looking after children on the premises is suitable to look after children under the age of eight;
(b)	every person living or working on the premises is suitable to be in regular contact with children under the age of eight;
(c)	the premises are suitable to be used for looking after children under the age of eight, having regard to their condition and the condition and appropriateness of any equipment on the premises and to any other factor connected with the situation, construction or size of the premises; and
(d)	he is complying with regulations under section 79C and with any conditions imposed by the registration authority.”

The procedure for cancelling registration is set out in section 79L of the Act and section 79M provides for an appeal to a tribunal.

36.	The Day Care and Child Minding (National Standards) (England) Regulations 2003 (S.I. 2003 No. 1996) came into force on 1 September 2003, replacing similar regulations made in 2001 (S.I. 2001 No. 1828).  Schedule 1 lists five national standards documents, published by the Department for Education and Skills.  By virtue of regulation 3, references in the Regulations to “national standards” mean the standards numbered 1 to 14 set out in each of those documents and references to “supporting criteria” mean the criteria set out in respect of each national standard in each national standard document.  Regulation 4 provides:

“(1)	In exercising his functions under Part XA of the Act, the Chief Inspector –
(a)	shall have regard to the national standards and supporting criteria; and
(b)	may take account of –
(i)	the duty imposed on a registered person by paragraph (2); and
(ii)	any failure or alleged failure of such a person to comply with that duty in any respect or on any occasion.

(2)	A registered person who … provides day care, on premises shall –
(a)	comply with the requirements of these Regulations;
(b)	meet the requirements of the national standards; and
(c)	have regard to the supporting criteria that are applicable to the child category into which the care provided by him falls and to any alternative supporting criteria which he is notified by the Chief Inspector are applicable to that care.

(3)	Any allegation that a registered person has failed to comply with paragraph (2) may be taken into account in any proceedings under Part XA of the Act.”

In the 2001 Regulations, there was no equivalent to regulation 4(2)(c).  Regulation 6 of the 2003 Regulations provides for the provision of information and regulation 7 provides for the keeping of records.  Where there has been a breach of regulations 4(2) or 7, the Chief Inspector may issue a notice under regulation 8 requiring compliance.  A failure to comply with such a notice is an offence under regulation 10.

Our approach to this case

37.	Although Ofsted has not referred expressly to section 79B(4)(d), its case must be that the Appellant has ceased to be qualified to registration because she is not complying with the 2003 Regulations which in turn require the claimant to comply with the requirements of the national standards and have regard to the supporting criteria.  Breach of the requirements of the Regulations or the national standards or a failure to have regard to the supporting criteria is a pre-condition of cancellation under section 79G(1)(b) on the ground that the registered person has ceased to be qualified under section 79B(4)(d), but cancellation is not the necessary consequence of such a breach. Section 79G(1)(b) gives the Chief Inspector the power to cancel but he may choose not to do so.  On an appeal, that choice lies with the tribunal and must be exercised in the light of the circumstances as they are at the time of the tribunal’s hearing (see Her Majesty’s Chief Inspector of Schools v. Spicer [2004] EWHC 440 (Admin), which concerned an appeal from a decision of a magistrate under section 79K of the 1989 Act but the main reasoning of which applies equally to an appeal against a decision of the Chief Inspector under section 79G).

38.	One important consideration when deciding whether or not to allow an appeal against a decision based on breaches of the regulations or the requirements of the national standards is the likelihood of further breaches.  That is one of the reasons why it is so important for a tribunal to be able to consider events since the making of the decision under appeal.  In the present case, there has also been a major change of circumstances since the Objections Panel sat in that Mrs Walters has returned to having complete day-to-day control over the nursery and, despite that, has again become committed to selling the nursery.

39.	That has some important implications for the way we consider events during the year from August 2002 to August 2003, upon which Ofsted naturally relied in the notice of decision to cancel registration, which reproduced, with a correction, the grounds upon which the notice of intention to cancel had been based in October 2003.

40.	Mrs Walters’ instinct has been to defend her inaction during that period, while accepting ultimate responsibility for the state of the nursery.  We do not consider that her inaction is defensible.  However, it seems to us to have become largely, but not wholly, irrelevant.  Her failures were failures properly to supervise a person whom she had put in charge of the nursery while she was playing no active part in its management.  She is not, at the moment, in such a position.  For the short term, it is more important for us to consider the alleged breaches of standards when Mrs Walters was herself in day-to-day control of the nursery.  First, though, we will consider the breaches during the year when she was living in South Wales.

The year from August 2002 to August 2003

41.	It is clear that neither Mrs Walters nor Ofsted was under any misapprehension that Mrs Walters remained the registered person throughout the year when Mrs Hodson was left in charge of the nursery.  During that period, Mrs Walters retained ultimate responsibility for ensuring that standards were maintained.  She, in effect, passed the responsibility for the nursery over to Mrs Hodson save that, as the owner, she still retained a say in financial matters.  That abdication of responsibility was unacceptable.  However, it is plain that, until she was contacted by Mr Goodman in February 2003, Mrs Walters expected Mrs Hodson’s application for registration to be accepted without any difficulty and to go through at any time.  That she expected a speedy decision is understandable but expecting it definitely to be successful raises a question about her judgment of Mrs Hodson’s ability to meet the standards required by Ofsted.  More importantly, her continued inaction when the application still had not been processed after some time shows a lack of appreciation of her responsibilities.  When the application was not immediately successful, she should have checked that standards were being maintained.  This is particularly so as the office administrator had mentioned to her that there was some unhappiness among the staff.  It is also surprising that Mrs Walters herself did not impress upon Ofsted the need to give a decision on Mrs Hodson’s application quickly.

42.	After February 2003, Mrs Walters continued to have confidence in Mrs Hodson.  That appears to have been simply because Mrs Hodson assured her that “it won’t happen again” and she decided to give her the benefit of the doubt.  Mrs Walters did not conduct any serious analysis of the problems that had arisen and the actions needed to ensure they were not repeated and she did not put in place any clear system of monitoring.  Judging from what she said in her interview in August 2003, she considered Mrs Hodson to be suitable as a “person in charge” because she was good with children.  She appears not to have appreciated the importance of her having an ability to be an administrator and manager as well, which perhaps reflects the relative importance she attaches to administrative matters herself.  It ought to have been clear both from what had happened in February and, more specifically, from what was said to Mrs Hodson on 21 March 2003 that there was now a serious question-mark over Mrs Hodson’s application, but we accept that Ofsted’s apparent (from Mrs Walters’ viewpoint) happiness with the situation on 31 March 2003 and their failure to reach any quick decision on the application may have lulled Mrs Walters into a false sense of security.

43.	Be that as it may, we would be concerned if Mrs Walters were again to become an absentee proprietor.  It was plain that, at the hearing before us, she still did not realise what she ought to have done during the year that Mrs Hodson was left in charge of the nursery.

44.	We turn to the various complaints about the nursery while Mrs Walters was herself in day-to-day control.

Staff working without CRB checks

45.	This was raised as an issue at the transitional inspection.  Mr Spencer invited us to infer from the unusual inclusion of a condition on the registration certificate that “persons not vetted are never left in sole charge of children” that Ofsted had been particularly concerned about this issue in this case.  They may have been particularly concerned, but the mere attachment of the condition does not help us to decide whether the level of concern was justified.  Mrs Walters told us that the staff concerned had come from other employment where they had been checked by the police under the system in existence before the Criminal Records Bureau took over the task and she also said that the police and, initially, the Criminal Records Bureau had been notoriously slow in carrying out checks.  As Mrs Owen had not recorded who the staff concerned were or the length of time for which, or the manner in which, they had been employed, we are not satisfied that children were really placed at any risk.  Mrs Walters told us that she had not objected to the imposition of the condition because she had had no reason to do so. We see the force of that, particularly as there was nothing in the letter accompanying the certificate to suggest that the condition was an unusual one.

46.	The only other occasion on which a member of staff was found to be working without having been checked was on 2 November 2004.  There were two very recently appointed members of staff whose details had been provided to Ofsted so that the checking process had been put into motion.  The other person was a Mrs Pizzey, the mother of one of the other members of staff, who was helping to look after children.  Mrs Walters told us that she herself had been on the premises earlier in the day, as is borne out by her having signed in, but had been called away because her daughter was ill.  Two other members of staff had been sick and Mrs Pizzey, who had not previously worked at the nursery and had not been checked by the Criminal Records Bureau, had been asked to help out in those circumstances, after Mrs Walters had been unable to contact another person who had previously worked at the nursery and had been checked.  Mrs Walters did not dispute that, from time to time during the day, Mrs Pizzey had been on her own with children and accepted that that should not have been the position.

47.	Nonetheless, the fact of the matter is that Mrs Walters had known Mrs Pizzey for some time and Mrs Pizzey’s own daughter was working with her.  Although she may have been alone in a room with children for short periods, there were other adults about in the small building.  There is no reason to suspect that Mrs Pizzey might not be a suitable person to look after children. In our view, any risk was more theoretical than real and what principally is revealed by this episode is a management failing in that Mrs Walters did not have enough checked relief staff.

Failing to notify Oftsed of changes of staff

48.	Regulation 6(1) of, and paragraph 2(1)(a) and (b) of Schedule 2 to, the 2003 Regulations require the registered person to notify Ofsted of “a change of … (a) any person in charge [and] (b) anyone looking after children on the premises”.  A “person in charge” is, by virtue of regulation 3, “the individual appointed by the registered person as the person in charge of providing actual day care on the premises”.  Except for the year when Mrs Hodson was, as Ofsted was well aware, the “person in charge”, Mrs Walters was herself the “person in charge”.  The Regulations make no specific reference to a requirement to identify a deputy.

49.	Ofsted interpres the legislation as requiring a registered person to notify it of employees leaving as well as persons taking up employment, although paragraph 2(2) of the Schedule requires that the information to be provided is details of “the new person” (our emphasis) so that it is at least arguable that, on one interpretation of the legislation, only the arrival of new employees need be notified.  However, it is plainly desirable that Ofsted should be informed of staff leaving because, in some cases, that might raise a concern about a possible breach of the national standards in relation to staff/children ratios, although that has not been an issue in this case.  In practice, Ofsted keeps a computer list of staff in respect of each nursery and, when inspectors visit, they have that list and know whether or not Ofsted is aware of the existence of staff they meet.  When Mrs Laraman visited on 2 November 2004, it was plain that there were many people on the list who had long ceased working at the nursery.  Indeed there was one person who was completely unknown to Mrs Walters and whose name had presumably been put on the list by mistake.  Mrs Laraman told us that, if a person mentioned a change during the course of the inspection, she would pass the information to the regional centre where the information is processed but that plainly does not always happen because, for instance, Mrs Hodson and her husband were still on the list.  Mrs Walters now appreciates that, in order to ensure that Ofsted’s records are accurate, all notifications need to be made directly by her to the regional centre and that, whatever the legislation actually requires, the departure of staff should be notified as well as the arrival of new staff.

50.	Ofsted’s computer list actually has spaces for recording a person’s qualifications and the capacity in which he or she is employed.  Those are not details that a registered person is required by law to provide to Ofsted, but the information could be useful, particularly so that Ofsted can identify the deputy person in charge and know which staff are full-time and which are casual.  There is nothing to stop Ofsted asking for that information if they wish, provided they have the capacity to process it.  However, a registered person cannot be expected to give such information if he or she is not asked for it.

Failing to appoint suitably qualified staff

51.	By and large, the staff at the nursery appear to have been suitably qualified and to have been observed by inspectors to be doing a good job when caring for the children.  At Mrs Hodson’s registration inspection it was observed that a supervisor did not have two years’ experience and it appeared to be suggested at the beginning of the hearing before us that that showed a breach of the national standards by Mrs Walters, although we could see nothing that specific in the standards or the guidance.  However, it was explained in evidence that the fact that there was a check-box on the electronic notebook for noting whether a supervisor had less then two years experience did not mean that that level of experience was regarded as a requirement in all cases.  The check-box was there in order to remind the inspector to investigate further and decide whether the supervisor had enough suitable experience in the context of the particular case.  In fact Mrs Owen had merely noted that the supervisor would be working “to the direction of the proprietor” and there was no indication that she was not satisfied with that arrangement.  

52.	On 2 November 2004, there was a suggestion that some staff did not have proper contracts but this was not explored during the inspection or at the hearing and we place no weight on it.  As we have said, the staff appear to have been competent and that is what is most important.

53.	The one area where Ofsted has really serious concerns is in relation to the competence of the staff in relation to administrative matters and in particular it is said that Mrs Walters has shown herself unable to choose suitable deputies.  In order to judge whether those concerns are justified, it is necessary for us to indicate what we consider is required of staff and, in particular, a deputy.

54.	A distinction must be drawn between a “person in charge” and a deputy.  As we have indicated, Mrs Hodson was the “person in charge” while Mrs Walters was living in South Wales.  The legislation requires Ofsted to be notified of any change in the “person in charge” but, perhaps surprisingly, does not require a “person in charge” to be registered (compare the position of a manager under Part I of the Care Standards Act 2000).  A person who is left in charge of a nursery for an hour or a day or a week is not a “person in charge” merely because a “hands on” registered provider or a “person in charge” is temporarily absent.  Ofsted’s own guidance uses the non-statutory, but perhaps preferable, terms “manager” and “person in charge who is present”, the former being the person in day-to-day charge of the setting and the latter being the senior person on the premises at the time.  No indication is given in either the legislation or the standards as to the length of time that must elapse before a person covering for an absent “person in charge” becomes a “person in charge” herself but we note that the legislation governing children’s homes requires the absence of a manager for more than four weeks to be reported to the registration authority (see regulation 37(1) of the Children’s Homes Regulations 2001 (S.I. 2001 No. 3967) and it might be appropriate for a similar approach to be taken in the context of day care provision.

55.	Much was made at the hearing of the various members in staff who happened to be in charge of the nursery during inspections being unable to find documents.  We accept that generally a deputy should be able to find any document required by an inspector.  That is because we would expect the “person in charge” to involve the deputy in the running of the nursery as part of her career development and so that she is better able to take over when the “person in charge” is away.  The deputy should therefore acquire a knowledge of all the documents and, if the files are kept in an orderly manner, it ought then to be easy for the deputy to find a document when requested to do so.  However, for reasons we will explain below, we do not expect all members of staff to be familiar with all the documents kept by a “person in charge” and we accept that a newly appointed deputy may take a little while to become wholly familiar with them all.  Moreover, in the present case, it is as likely that the cause of a deputy being unable to find a document lies in the untidiness of Mrs Walters’ office as in any inadequacy in the deputy.

56.	An experienced deputy may become qualified for appointment as a “person in charge” but it is enough for an inexperienced deputy to be able to take charge for short periods.  Such a person is not expected to be able to answer as many questions as a “person in charge” or to have the same management skills.  Mrs Hodson may have been unsuitable for appointment as the “person in charge” but we have no reason to doubt that she was an adequate deputy.

57.	On 2 November 2004, the person left in charge of the nursery when Mrs Walters was called away was not even a deputy.  She just happened to be the most senior member of staff left because one of the women who would normally have taken charge was on holiday and the other was ill.  In those circumstances, we do not consider that an inability to find a document that she would not normally have needed to use as part of her duties suggests that she was not properly qualified for the post she held.

58.	We are not satisfied those who acted as Mrs Walters’ deputies were not adequately qualified.  We are not even satisfied that Mrs Walters’ initial appointment of Mrs Hodson as a “person in charge” was unreasonable.  Her failure was to monitor her performance and either give her further training or replace her when it appeared that she was not maintaining the nursery to the national standards.

Failing to notify Ofsted of changes of facilities

59.	Regulation 6(1) of, and paragraph 6 of Schedule 2 to, the 2003 Regulations requires a registered person to notify Ofsted “of any change in the facilities to be used for day care that may affect the space available to children and the level of care available to them”.  We are prepared to assume that the rearrangement of the premises so that the babies were downstairs and the older children upstairs, rather than vice versa, was a notifiable change (as it clearly would have been under the 2001 Regulations), although it is arguable that neither the space available to children nor the level of care was in fact affected.  Mrs Walters said that when the inspectors visited the nursery on 27 April 2004, the 14 days allowed for notification had not expired.  However, regulation 6(2) requires notification to be in advance of the event occurring “where it is reasonably practicable to do so” and “in all other cases as soon as reasonably practicable, but not later than 14 days after the event has occurred” and Mrs Walters did not suggest that the change could not have been notified in advance.  Interestingly, though, neither Ofsted’s guidance to the national standards nor the SureStart booklet “Full day care” mentions the requirement to notify changes in advance where it is practical to do so and we are not convinced that Mrs Walters can reasonably have been expected to be aware of the precise terms of the legislation.

60.	Notification of a change of facilities is important because a certificate is issued in the light of the facilities then offered.  Advance notification is obviously desirable so that Ofsted can draw to the proprietor’s attention any possibly undesirable features of the change.  However, in this instance, although the inspectors have not been entirely happy about some aspects of the change, they have not gone so far as to say that the change ought not to have taken place.  Again, therefore, the failure is not one that directly impacts on the well-being of the children.

Failing adequately to plan and assess risks of change of facilities

61.	Potentially more serious was the allegation that Mrs Walters had not adequately assessed the risks of the change of facilities.  Of particular concern to the inspectors were the fact that the babies were now in a room through which people had to walk to get to the kitchen and the fact that the toilet facilities available to the older children were less suitable than before.  It appears that there was only one toilet upstairs, which meant that there was a likelihood of children having to queue and it was more difficult to ensure proper privacy for them.  Moreover, the sink in that upstairs bathroom was at a conventional height and there was more risk of a child banging his or head on it and there were also steps going into the bathroom and a risk of a child falling.  One child, who was too busy gazing at an inspector instead of looking where she was going, did fall down the steps with a loud bang during the inspection on 2 November 2004 but was not injured.  More suitable facilities, with lower sinks, were available downstairs but that, of course, meant using the stairs, which would require some supervision and reduce the opportunities for the children to act independently.

62.	We understand the inspectors’ concerns and we consider Mrs Walters’ written risk assessment (actually written by another member of staff but checked by her) to be somewhat perfunctory.  On the other hand, having listened to Mrs Walters, we are satisfied that she did in fact give proper thought to the change in the arrangements.   The babies’ room is not used by other staff to get to the kitchen.  There are arrangements for the staff looking after the babies to put drinks and snacks on trays and hand them out to other staff.  Hot drinks are not carried through the room.  Mrs Walters accepted that the toilet facilities for the older children were not ideal.  However, they did have opportunities to use the downstairs toilets because they could do so when they were on their way outside or coming back in.  She judged the disadvantages to be outweighed by the advantages, particularly in both staff and parents not having to carry babies and their equipment up and down the stairs.  She did not regard either the sink or the stairs in the upstairs bathroom to present unacceptable risks.

63.	The inspectors stressed that it was for the provider to determine how to organise the nursery and that they merely needed to see evidence of proper risk assessments.  They accepted that there were advantages in the change, including better supervision of sleeping children and better arrangements for nappy changing.  Although they were plainly concerned about the sink and steps in the upstairs bathroom, they did not go so far as to say either that the use of that bathroom by the children or any other aspect of the arrangements was in fact unacceptable.  Not having seen the bathroom ourselves, we are unable to form our own independent view of the risks they pose but we see no reason not to accept the inspectors’ view that use of the bathroom is not ideal but is within the bounds of what is acceptable.

64.	In our judgment, Mrs Walters not only made a decision she was entitled to make but she also weighed the relevant considerations properly.  Her failing is in not recording that in writing as fully as she should and, of course, not notifying Ofsted in advance.

Failing to keep adequate records of medication

65.	Regulation 7 of, and paragraph 6 of Schedule 3 to, the 2003 Regulations requires that the registered person keep –

“A record of any medicinal product administered to any child on the premises, including the date and circumstances of its administration, by whom it was administered, including medicinal products which the child is permitted to administer to himself, together with a record of a parent’s consent.”

66.	Paragraph 7.7 of the SureStart booklet “Full day care” suggests that it is also a statutory requirement that the parent sign the record book to acknowledge the entry.  Mr Spencer conceded that that was inaccurate and we were told during the course of the hearing that an asterisk would be moved when the booklet is reprinted by the Department for Education and Skills so that it is no longer misleading. Nonetheless, this additional requirement is useful in circumstances where medication is given to a child late because the child was asleep at the appointed time and it is then necessary for a parent to be aware of that so that, where necessary, the next dose can be delayed.  The nursery needs to have systems for ensuring the parent is given that information and that the fact that they have been given the information has been recorded.

67.	On 2 November 2004, the inspectors noted that the medication records at the nursery did not indicate the date on which medication had been given and that parents did not sign to acknowledge the records.  Mrs Walters conceded that that was so and said that she would amend the form in which records are kept.  She did, however, say that  parents were in fact told of the time at which medication was given on a document that was given to them when collecting the child.

68.	Neither party produced a copy of the records and it is not easy for us to picture them.  However, it does not seem to us that the failure to date the records actually posed any risk to the children.  The staff and the parents would have been working from the child’s daily notes.  The keeping of the statutory record and the parent’s acknowledgement of it is more important if there is a subsequent investigation.  There has been no suggestion in this case that there has ever been a complaint regarding the administration of medication.

69.	Mrs Walters recognises that the records were not adequate and intends to ensure that they are properly dated.

Keeping records locked away or removing them from the premises

70.	While regulation 7 of, and Schedule 3 to, the 2003 Regulations require a registered person to keep certain records on the premises, or at some other location agreed by Ofsted, and to provide the Chief Inspector with copies of such of those records as he may from time to time request, there is no express statutory requirement to make them instantaneously available to an inspector without notice.  Such a duty can, however, be inferred from section 79U(3)(b)(i) of the 1989 Act, which empowers an inspector to inspect any records kept by the person providing day care.  An inspector cannot inspect records that he or she cannot find and so a duty to produce records is to be implied although, again by implication, the duty must be confined to matters within Ofsted’s remit and not other business records.

71.	If there is no explanation for a registered person failing to produce records to an inspector visiting the premises, the inspector may be entitled to infer that the records do not exist or that they are not being kept on the premises.  An inference that the records do not exist will be almost irresistible if the inspector asks for them to be produced after the visit and they are still not forthcoming.  That, however, is not the allegation in this case.  The inspectors never asked Mrs Walters to produce documents that had not been produced on inspections. 

72.	Ofsted does complain that Mrs Walters had suggested that a risk assessment the inspectors wished to look at was in the boot of her car.  She said she had been working on it.  In our view, she was entitled to take it home for that purpose.  It is not suggested that the relevant current policy was not on the premises.  

73.	Apart from that, there are really two complaints.  One is that, on more than one occasion, the senior member of staff present in the nursery could not lay her hands on records that the inspectors wished to see.  We have already considered this issue.  The other complaint is that records were not accessible to all staff. 

74.	We are not satisfied that it was necessary for all staff to have immediate access to all those documents.  Members of staff need to have access to policies and procedures that they must operate and to some records in respect of children.  It is not, in our judgment, necessary for them to have access to risk assessments that may lie behind the policies and procedures or to administrative records such as fire safety records.  Furthermore, there are some records to which they ought not to have access.  For instance, one of the complaints made in this case was that the accident records were locked away.  However, it is our understanding that current data protection advice is that a report of an accident ought to be removed from the accident book, to which staff must have access in order to record accidents, and put in a file precisely for reasons of confidentiality.  That implies that staff should not have access to those records.  The stronger complaint is that there was some difficulty locating the file and that the records were not kept in the way most likely to enable the accidents to be analysed by Mrs Walters to see whether lessons could be learnt.  There had also been an oversight in not removing an accident record from the accident book but the senior member of staff realised that that was an error and took it out while the inspector was there.  She did not know where to file it but we are not satisfied that she should have done.

75.	There is no evidence before us that any member of staff did not have access to documents that she needed to see.  On the contrary, in respect of policies and procedures, the evidence is that the staff had access to 14 folders, each one of which contained the policies and procedures related to one of the national standards

Failing to record accidents

76.	No permanent record was made of the child falling down the steps in the bathroom on 2 November 2004.  Obviously making a record of that sort of incident enables a true idea of the risk caused by the steps to be built up.  On the other hand, an impressionistic assessment made at a staff meeting on the basis of the recollections of staff might be just as valuable because it might include instances when a child “nearly” fell.

77.	It is always difficult to decide what events amount to “accidents” that must be recorded by virtue of regulation 7 of, and paragraph 5 of Schedule 3 to, the 2003 Regulations.  The guidance is not very helpful but we note that in Ofsted’s own guidance to the national standards it is said on page 37 that “you may also wish to consider … ensuring all injuries and incidents where no wound is visible are recorded”, which suggests that the term “accidents” is not interpreted by Ofsted as including falls that do not result in an injury or visible wound.

78.	We are not persuaded that there was breach of the Regulations or the national standards in this respect.  We note that the accident book was in fact used on other occasions.

Failing to maintain confidentiality in respect of medication

79.	Details of a child’s need to have Gaviscon administered to him were displayed in public view on 2 November 2004.  Mrs Walters has produced a statement from the boy’s mother explaining that she had given consent for the form to be pinned to the wall so that all staff were aware of his milk allergy and medication requirements.  She did not consider the information to be confidential.  Mr Spencer asked us not to place any weight on the statement, but we do not see why we should ignore it.  Having the form pinned to the wall may have been a breach of best practice but it is hard to see that it caused any harm or that it shows a general lack of awareness of the importance of maintaining confidentiality.

Failings in respect of fire safety

80.	Much was made of the fact that some fire doors were kept wedged open, but the fire safety officer had said that it was quite acceptable that fire doors should be open while rooms were being used, given the nature of the premises and the use being made of them. We accept, however, that there were occasions when fire doors were wedged open when rooms were not being used and that some of the doors failed to close properly in February 2004, despite that matter having been drawn to Mrs Hodson’s attention in May 2003.  

81.	Much was also made of the fact that, on a gazebo that had been built by a member of staff some fairy lights were seen to be in contact with a fabric.  We accept that there was no evidence that anyone had ensured that the fabric was fire resistant and, anyway, the lights should have been positioned so that they did not touch any fabric.  On the other hand the fire safety officer observed that “the bulbs in the fairy lights did not appear to generate a great deal of heat”.

82.	Also outstanding was a formal fire risk assessment, which Mrs Walters clearly had not regarded as a matter of priority.

83.	On 2 November 2004, Mrs Walters had also not got round to updating the fire evacuation procedures in the light of the reorganisation of the premises so that the babies were downstairs and the older children upstairs.  Mrs Walters’ conceded that that was so but said that the only change that was required was that a reference to the      cot room needed to be changed to the role-play room.  No other change was needed because the plans for evacuation were the same as before and the other rooms were identified by reference to their position in the house rather than to their function.  Ofsted did not dispute that.  Therefore, what sounds a serious allegation has proved to be fairly minor.  It is not entirely trivial, because an inaccurate reference in the procedure could be confusing when a new member of staff was being trained and several months had elapsed since the premises had been reorganised, but we doubt it would have led to any real misunderstanding.  Moreover, it is an illustration of Mrs Walters’ disorganisation because the need to update the document had been drawn to her attention in April 2004.

84.	Also at the 2 November 2004 visit, the inspectors were not asked to sign the visitors’ book and their presence was not recorded by anyone else.  Equally, Mrs Walters had not signed herself out.  However, the inspectors did see the visitors’ book and it has not been suggested that it was not generally used.  Other witnesses were asked to sign in and out.  This therefore suggests a lapse by the staff members on the day and we are not satisfied that it shows a management failure by Mrs Walters.

85.	Fire safety is important but it can also be an emotive issue.  Failings should not be blown out of proportion.  The fire safety officer’s view was that the fire risk on the premises was low and in some rooms negligible.  This was not a building that was used at night.  There was no cooking on the premises.  We are not satisfied that Mrs Walters’ failings created any significant additional risk to children or staff.  Nonetheless, we accept that there were failings.

Keeping food items next to cleaning products

86.	On 2 November 2004, the inspectors observed porridge oats and flour in a cupboard next to some dishwashing powder and rinse aid.  However, the flour was used only for making play-dough and so does not in our eyes count as food.  The porridge oats were Mrs Walters’ own supply.  She has some breakfast when she arrives after her long journey in the morning.  It seems unwise to keep porridge oats in such a place but this is not very material to the issue before us.

Failing to have an adequate range of toys and equipment

87.	This has been a concern on more than one inspection.  It is very much a matter of judgment and not easy to prove but the inspectors’ views were supported by Mrs Boyle, the development worker for the EYDCP, when she gave evidence on behalf of Mrs Walters.  However, Mrs Boyle made it plain that, although she felt that the nursery could do with more equipment, the children always appeared to be occupied.  That too is the general tenor of the Ofsted inspectors’ evidence.  There is much positive comment on the interaction between staff and children and the activities being undertaken.  The only substantial exception was again on 2 November 2004 when the inspectors thought there was a period of 50 minutes when the children were not engaging in any particular activity, although there was interaction with staff.  This is an isolated criticism, perhaps reflecting the difficulties of the day.

88.	We accept that the nursery could do with more toys and equipment and we are also prepared to accept that in the past some of the equipment has not been in particularly good condition but we are not satisfied that there is currently any breach of national standard 5 (equipment).

Conclusion

89.	There have undoubtedly been breaches of the national standards on a number of occasions.  However, we do not accept that there were 16 breaches on 2 November 2004 as suggested by the number of “actions” raised and many of those that there were were relatively minor.

90.	We have to consider whether the breaches there have been justify cancelling Mrs Walters’ registration, which implies closing the nursery and depriving the children and their parents of its services and the staff of their jobs.  Use of cancellation as a purely punitive measure is not justified.  The law provides for criminal sanctions where mere punishment for past misdemeanours is required.  Cancellation is appropriate only if further serious breaches are likely.  The well-being of the children for whom day care is provided is the most important consideration but we must also have regard to the convenience of parents, the jobs of the staff and, as Mr Spencer submitted, the cost to Ofsted of reasonable monitoring of a nursery where further breaches of national standards are feared.

91.	It must be acknowledged that many of the national standards are concerned with administrative matters that have only an indirect bearing on the well-being of children.  Furthermore, some of the standards are met only if a written record of, say, a risk assessment is kept.  But a risk assessment may in substance have been carried out even though no written record was made of it.  It is important that there be a written record because both an effective inspection process and proper administration, including periodic reviews, require it.  Recording a risk assessment is also more likely to result in a rational, evidence-based decision being made.  Nonetheless, we regard breaches of requirements as to form to be less important than breaches of substance.

92.	We must also not overlook the positive aspects of the nursery.  There is really no substantial criticism of the care provided for the children on a day-to-day basis.  On the contrary, we have received a large number of letters from parents in support of the nursery, speaking highly of the care of their children and the education they have received.  Mr Spencer suggested that we should put little weight on such evidence because parents are not qualified to judge the quality of a nursery.  Obviously parents do not see the whole picture but they see an important part of it that we are not able to see for ourselves.  Even inspectors see only snapshots.  Obviously, also, not all parents are able to judge the quality of child care provision in one establishment by comparison with the provision in other establishments.  Nonetheless, we consider that parents’ views can be given substantial weight and we consider it appropriate, in this particular case, to accept the general view that the day-to-day provision of day care in the nursery is good.

93.	Set against that must be Mrs Walters’ failings.  Most of the breaches that have been proved are fairly minor in themselves and even taken collectively are not all that serious.  However, the pattern suggests that Ofsted are right to consider that they will continue and possibly become more serious.

94.	We are satisfied that Mrs Walters does have the capacity to run the nursery properly.  She has shown herself to be prepared to seek advice from EYDCP and Mrs Boyle made it clear that Mrs Walters did act on advice.  We have had the opportunity of listening to Mrs Walters and were impressed by the way she answered questions, developing her points in a way that demonstrated a good grasp of relevant issues.

95.	It seems to us that there are two reasons why there have been breaches of the national standards while Mrs Walters has been in day-to-day control of the nursery.  The first is that she is not a natural administrator.  There were several references to her office being untidy although, because there is no particular reference to the need to have a tidy office in the national standards, the inspectors were muted in their comments.  An untidy office is often a symptom of poor administration.  We note that sorting the office out was identified by Mrs Boyle as a priority when she was asked to give advice in May 2004.  By November, it had fallen at least part of the way back to its former state.  There is really no excuse for not having completed the fire risk assessment several months after it should have been done or for not up-dating the fire evacuation procedures.

96.	The second reason for Mrs Walters not performing as well as she might seems to us to be the distance she has to travel and the time that takes.  That means that she does not spend as much time at the nursery as she might otherwise and the administration suffers.

97.	Mrs Walters herself does not want to go on spending so much time travelling and away from her family.  She still wishes to sell the nursery and there is at least one buyer in the offing.  If that purchase is not successful, Mrs Walters herself is considering recruiting a “person in charge” with previous experience in such a position, so that she herself can withdraw from having day-to-day control of the premises.  We have indicated that, on past performance, we would have concerns about Mrs Walters being an absentee proprietor.  However, much would depend on the qualities of the “person in charge” and Mrs Walters’ proposals for monitoring him or her.

98.	We consider that she should be allowed to continue running the nursery for the time being, while she tries to sell it or make other arrangements.  The breaches of national standards do not warrant closing the nursery immediately in this particular case.

99.	However, this situation cannot go on forever and that puts us in a difficult position.  Dismissing an appeal means that the cancellation of registration takes effect immediately and it becomes a criminal offence to continue to provide day care “without reasonable excuse” (see section 79D(5) and (6) of the 1989 Act).  We have no power to suspend the effect of a decision to dismiss this appeal.

100.	We considered with the parties the possibility of announcing a conclusion that the appeal should be dismissed without giving a formal decision or our reasons for some time, but that would not be appropriate for more than quite a short period of time.  We have concluded that, realistically, rather longer may be needed.  Ofsted has shown in September and October that it can process an application for registration rather more quickly than it did in Mrs Hodson’s case but the proposed purchaser does not hold a child care qualification and so would have to recruit a “person in charge”.  That cannot be done overnight.

101.	We could dismiss the appeal but indicate that Ofsted should regard Mrs Walters as having “reasonable excuse” for providing day care while not registered but that too would not be appropriate for an extended period – if appropriate at all – and would also leave Ofsted as the sole judge of when the period should end as we cannot now fix a definite period.

102.	We could allow the appeal and leave Ofsted to make a new cancellation decision if that became necessary, but that would be unfair to Ofsted because the procedure for cancellation and the procedure in the event of there being an appeal are both so convoluted and costly.

103.	In the end, we have come to the conclusion that it is necessary for us to remain seized of the case and therefore to adjourn it for a period of six months.  If the nursery is sold, a further hearing will be unnecessary and it may become unnecessary even if there is no sale.  If a hearing is necessary, we anticipate it being relatively short. Whether there should be any inspections before the hearing is a matter for Ofsted.

Decision

104.	Accordingly –

(a)	we adjourn the case until the first available date from 20 June 2005; 

(b)	we direct Mrs Walters to inform both the tribunal and Ofsted if she wishes to cease to be the registered person in respect of the nursery at any date before 20 June 2005;

(c)	we direct both parties to inform the tribunal in the week commencing 25 April 2005 of the current position and the decision each will be seeking from the tribunal, in the light of which information the chairman will issue any further directions that appear necessary;

(d)	we give both parties liberty to apply in writing for further directions at any time before the hearing;

(d)	we reserve the case to ourselves.

Mark Rowland
Chris Wakefield
Peter Sarll

Signed by the chairman on this 20th day of December 2004.