OA v OFSTED [2005] EWCST 460(EYSUS) (01 April 2005)

In the Care Standards Tribunal	

Between
Mrs OA		Appellant

  and

OFSTED		Respondent

Case No [2004] 0460.EY SUS

Before

Rev Maureen Roberts (Chairman)
				Ms Caroline Joffe
				Miss Janice Funnell

				Heard on March 23rd 2005 

1.	This is an appeal against a decision dated 9th February 2005 of Her Majesty's Chief Inspector of Schools (OFSTED) to suspend under regulation 3 of the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003 the registration of the Appellant as a Day Care provider of Winter Childcare under Part XA of the Children Act 1989 and the subsequent refusal by the Respondent on 22nd February 2005 to lift the suspension.
2.	At the hearing the Appellant was represented by Mr David Perry, Trainee Solicitor of Hatten Wyatt Solicitors, Gravesend, and the Respondent was represented by Miss Anna McKenna of Counsel instructed by Bevan Britton Solicitors.  We announced our decision at the conclusion of the hearing and we now give our reasons.  We heard live evidence from the following: for the Respondent, officers employed by OFSTED, Andrew Mercer, Sarah Morfett, Michael Kubiek and Jeanette White and Mrs H, Mrs W, and for the Appellant Miss A and Mrs OA (the Appellant).
3.	Orders were made at the commencement of the proceedings under regulations 18 and 19 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, restricting the reporting of the proceedings and excluding members of the public and press.  We were satisfied that these orders were necessary in this case to safeguard the welfare of the children and the private life of the people involved in this matter.  The restricted reporting order prohibits the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, or any matter likely to lead members of the public to identify the Appellant or any child for whom she has cared.  We believe that the restriction on reporting should continue and therefore witnesses, except professional witnesses, are referred to in this decision by initials only.  Under regulation 27(3), the decision will be published with the Appellant's name reduced to her initials.

The Statutory Framework
4.	Regulation 3 states:  "The Chief Inspector may…suspend the registration of any person acting as a child minder or providing day care if he has reasonable cause to believe that the continued provision of child minding or day care by that person exposes or may expose one or more children to whom it is or may be provided to the risk of harm and the purpose of the suspension is for one or both of the purposes set out in paragraph (2).  Paragraph (2) states that the purposes of the suspension are (a) to allow time for the circumstances giving rise to the Chief Inspector's belief to be investigated; (b) to allow time for steps to be taken to reduce or eliminate the risk of harm.
5.	Regulation 4 makes clear that the suspension shall have effect for a period of six weeks, but that the power can be exercised for a further period if the investigations are incomplete or if the Chief Inspector has decided to take emergency action under s.79K of the Children Act 1989.
6.	In reaching our decision we have adopted the approach as to the standard of proof and the questions to be answered by the Tribunal in AG v OFSTED (2003) 232.EYSUS. That decision stated:
(a)	In Mrs L.M. v OFSTED [2003] 181.EYSUS, the Tribunal set out the appropriate standard of proof that has to be applied as follows:
"We are of the view that 'reasonable cause to believe' falls somewhere between the balance of probability test and 'reasonable cause to suspect' in s.47 Children Act 1989.  We agree [with Counsel] that 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."
b)	This approach was adopted by the Tribunal in K v OFSTED [2003] 191.EYSUS.
c) 	We can formulate the approach that the Tribunal should take in these cases as follows.  The Tribunal should look at the facts as they exist at the time of the hearing.  When considering these facts, the Tribunal should ask itself two questions.  The first of these questions is whether there is reasonable cause to believe that the continued provision of child minding or day care by the Appellant exposes or may expose one or more children to whom it is or may be provided to the risk of harm.  The second question is whether the suspension is to allow time for circumstances giving rise to the Chief Inspector's belief to be investigated and/or to allow time for steps to be taken to reduce or eliminate the risk of harm.  In our opinion, the Tribunal should consider the questions separately."

The Facts
7.	In September 2003 Winter Childcare was registered and started operating from St Mark's Church Hall, Gravesend (the setting).  The Appellant was the registered provider, a function which she carried out, she said, on an unpaid basis as the director (and founder) of a charity "Women Intercessors UK Ltd".
8.	The facility was registered for up to 26 children aged 4 to 8 from Monday to Friday 7.00 am to 9.00 am, 3.00 pm to 6.00 pm, and in school holidays from 8.00 am to 6.00 pm.
9.	On the 6th January 2005 the Respondents received a letter of complaint from a local head teacher, some of whose pupils used the setting.  She wrote:
"The Winter after school club [St Mark's Church, London Road, Northfleet DA11 9HN] collects several children from our school.  A parent (Mrs H) of one of the children (B) is making a referral to Social Services about three specific incidents.  The parent alleges that her child was punched by a member of staff, was left alone in a McDonald's toilet for 15 minutes and was given 'time out' in a dark room.  She also alleges that other children were hit at the club.  Her child no longer attends the club.
The school has had concerns about the different staff that pick children up from school and the fact that they have no clear identification.  The children have also been left unsupervised whilst waiting to board the minibus.  I would like this situation to be investigated as a matter or urgency."
10.	The matter was referred to Kent Social Services who undertook a s47 child protection investigation and made some enquiries including interviewing Mrs H and her son B. The Tribunal saw notes of these interviews. On 31st January 2005 Kent Social Services informed the Respondents there would not be a strategy meeting and they would be taking no further action. The Respondents decided to undertake their own investigation.  They tried to contact the Appellant but were told that she was out of the country (in USA for funeral) from 2nd to 19th February 2005.
11.	The Respondent made an unannounced visit on 8th February 2005.  We heard from both inspectors.  We summarise their concerns as set out in the Notice of Suspension of Registration.  This Notice was served on the Appellant's husband on 10th February 2005.
12.	(1)	The person left in charge of the setting Miss A was not cleared by the Criminal Records Bureau (CRB).  Her work had not been notified to the Respondent.
(2)	She was alone at the setting caring for 7 children.  The minimum requirement is for 2 adults to be present.
(3)	There appeared to be no contingency plans in place for emergencies.
(4)	Miss A could not provide a copy of the registration certificate or insurance.  Nor could she gain access to the records of the children.  All documents were locked away.
(5)	The range of activities for the children present, aged 5 to 10, were inappropriate and very unsuitable for the age group.
(6)	The Respondent stated it had received information relating to a child protection allegation of a child previously cared for at the provision and that this would be discussed with the Appellant on her return.
13.  The child protection allegations were that a child was punched by a member of staff, was left alone in a McDonald’s toilet for 15 minutes and was given ‘time out’ in a dark room. Also, that other children were hit at the club, and that children were left unsupervised. The McDonald’s allegation arose from a trip by the appellant to the Bluewater Shopping Centre in the October half term. On the 25th October 2004 the Appellant and one other female member of staff took four children including the Appellant’s own four year old son and child B to the centre to see a film. At lunch time they went to McDonald’s and the Appellant permitted B to go to the toilet by himself. He was found in a distressed state by members of the McDonald’s staff (because he had lost a toy). The McDonald’s staff said that he had been with them for 15 to 20 minutes.
14.	The Notice stated:  "The purpose of the suspension is to allow time for the circumstances giving rise to Ofsted's belief to be fully investigated and to allow time for steps to be taken to reduce or eliminate the risk of harm."
15.	The Respondents then interviewed the adults identified as relevant at that stage. The Tribunal saw all the statements taken.
16.	The Respondents had two lengthy meetings with the Appellant one on 23rd February 2005 and one on the 16th March 2005.  The Appellant maintained that the child protection concerns arose from a malicious complaint from one parent, Mrs H, and that the failings found on 8th February 2005 were a "one off" circumstance.

The Evidence
17.	We heard live evidence from the witnesses recorded in paragraph 2.  The Respondent's professional witnesses were competent and knowledgeable. Mrs H, the parent, told us that her son was a lively and challenging child and that she had asked the Appellant to tell her if he was too difficult. The Appellant had not done so. Mrs H had gone to McDonalds the day after the incident to try and find the missing toy and was approached by the staff who told her what had happened. She phoned the Appellant from the centre to complain about her son being left alone. The child no longer attends the setting. We did not find cause to believe that had a malicious motive.  Mrs W the head teacher impressed us because she had made her enquiries in a detached way.  We accepted that she had spoken to the Appellant on prior occasions about concerns and had been assured that matters would be remedied. 
18.	We were given a supplementary statement from Andrew Mercer with an update on the progress of the child protection investigation which was still ongoing. We were informed that Respondent had written to the parents of children attending Winter Childcare on 15 March 2005 and we were given a copy of the letter as was the Appellant. Subsequently two parents have contacted the Respondents with allegations about smacking and the injury of another child. Janette White told us that she had tried as yet unsuccessfully to contact both parents to arrange interviews and will be trying to do so as soon as possible.
19.	 We were informed that Mrs A had not provided CRB checks for current staff members. That she is still the only recorded member of staff as she has not formally notified them of any other staff employed (whether paid or voluntary) and that she has failed to satisfy the Respondent that she has a clear action plan for the re-opening of Winter Childcare which addresses all of their concerns.
20.	Miss A for the Appellant, who had been the person present on 8th February 2005, was a muddled witness who contradicted herself. She had difficulty in understanding some of the questions and answering them. She told us that she had been working at Winter Childcare since November 2004 as an unpaid volunteer and the only other people working there were the Appellant the Appellant’s husband, Mr A and the driver M. She said when the Appellant was not around that her Husband Mr A was the person in charge.
21.	The Appellant gave her evidence but did not always answer the questions directly and did not appear to realise the seriousness of what was being alleged.  Much of what the Respondent said was not disputed by the Appellant. She sought to give explanations for what had happened and assurances that such incidents would not happen again. She did not provide evidence of an action plan to address the concerns identified by the Respondent.
22.	The Appellant told the Tribunal that she is a qualified Social Worker with a Diploma in Social Work and has a full-time job as a residential social worker, working nights as a waking member of staff in a home run by Greenwich Borough Council.  Her husband has just moved to West Africa for work. She said he had experience with children and had a clear CRB check, which was then shown to the Respondents. She said that her work for the Winter Childcare provision was done on a charitable and unpaid basis.

Findings
23.	It is accepted by the Appellant that on the 8th February 2005 Miss A was the only person looking after 7 children. It is a requirement that there is always a minimum of 2 staff and 3 if there are 17 children, so there should have been another adult present. Miss A was not CRB cleared so should never have been left alone with children and should work together with someone with CRB clearance. Her work for the Appellant had not been notified to the Respondents.  When the inspectors went into the setting at 4.00 pm they were told that the Appellant's husband had just left for a meeting in the area and would be back shortly.  He did not return and a letter showed that his meeting was scheduled for 5.30 pm
24.	It is accepted by the Appellant that, on the 8th February 2005, Miss A could not provide a copy of the registration certificate or insurance which is a requirement of registration. The Appellant was the only person with CRB clearance.  Staff changes were not notified to the Respondents in accordance with the National Standards.
25.	On the child protection allegation, we do not consider we can or need to make a finding as to whether B had been physically chastised by the Appellant. We do find that the incident at McDonald's Bluewater was serious.  The Appellant had taken 4 children (including her own son, aged 4, and Mrs H's son [B] aged 5) to the Bluewater Shopping Centre.  She had a female member of staff with her.  At lunchtime she took the children to McDonald's.  She queued for food and allowed B to go to what she thought was the Men's Toilets by himself (after further investigations it was established that he had in fact gone to the disabled toilet).  He then lost a toy and became very distressed.  On the Appellant’s own admission he was away 10 minutes.  McDonald's staff (in written statements) said he was with them for 15 to 20 minutes before being reunited with the Appellant.  The Appellant accepted in giving evidence that she would not have allowed her own son to go into a Men's Toilet by himself and that she would have taken him to the Women's Toilet and stayed with him.  The Appellant said B was a very independent child and did not want her to go with him. This is not an acceptable reason and the Appellant’s decision and actions exposed child B to an unacceptable level of risk.
26.	From the evidence submitted it is clear that the child protection investigations were still underway on the 22nd February 2005 when the Respondents notified the Appellant of its refusal to lift the suspension and are still ongoing. There is no satisfactory evidence from the Appellant to support the assertion that she has addressed all the Respondents concerns regarding the care and welfare of the children in the setting of Winter Childcare.
27.	The Appellant stated that she was not appealing against the original suspension, under regulation 3 of the Childminding and Day Care (Suspension of Registration) (England) Regulations 2003 but against the Respondents refusal to lift the suspension after an application by the Appellant under regulation 7.

Conclusions
28.	As a result of our findings we conclude that, both at the time of the suspension and when refusing to lift the suspension the Respondent had reasonable cause to believe that the continued provision of the after school club Winter Childcare by the Appellant exposes or may expose one or more children to the risk of harm.
29.	We also accept the evidence of the Respondent that there are further investigations to be carried out.  Two more parents have raised concerns. In these circumstances we are satisfied that there is still a reasonable cause to believe that the continued provision of the after school club Winter Childcare by the Appellant exposes or may expose children to the risk of harm.
30.	The Appellant gave us no evidence that any plan had been drawn up to address the risks that had been identified.  She stated that she would not re-open the setting immediately.  However she does not have any staff or systems in place to restart the setting.
31.	The Tribunal accepted the evidence given by the Respondents that their computer showed that only the Appellant had ever submitted a CRB clearance and that changes in staff were not notified. We accept that OFSTED have a very large number of childcare facilities to inspect and work on the basis that the "onus is on the provider". They have a two year cycle of inspections.  We suggest that they might consider a programme for the computer to highlight providers who have not notified them of an adequate staff complement with CRB checks especially where facilities are registered for larger numbers, as in this case where the registration was for ‘up to 26 children’.
32.	Our decision, communicated to the parties at the end of the hearing is to confirm the Respondent's decision to suspend registration (not disputed by the Appellant at the hearing) and its refusal to lift the suspension.  Our decision is unanimous.

Rev Maureen Roberts 
Ms Caroline Joffe
Miss Janice Funnell
1st April 2005