DC v OFSTED [2005] EWCST 516 (EY) (9 November 2005)

D. C.
-v-
Her Majesty’s Chief Inspector of Schools in England
(OFSTED)

[2005] 516.EY

Before:
Mr Mark Rowland (chairman)
Mr Michael Flynn
Mrs Geraldine Matthison

Appeal heard in London on 31 October 2005 from the decision of the Respondent dated 2 June 2005 whereby he refused to register the Appellant for child minding.  

The Appellant appeared in person.

The Respondent was represented by Mr Jeremy Hyam of counsel, instructed by the Treasury Solicitor.

DECISION

1.	The appeal is dismissed.

REASONS

2.	The Appellant applied for registration for child minding on 22 December 2004.  The Respondent is the Chief Inspector for Schools, who is responsible for the registration of childminders and who acts through OFSTED.

3.	The Appellant was visited by a child care inspector from OFSTED on 13 January 2005.  The inspector was not impressed by the Appellant’s knowledge of the national standards for under 8s day care and childminding and concluded that the Appellant did not meet eight of the fourteen standards and would need to take “actions” before meeting three of the others.

4.	The Appellant had also revealed in her application that she had suffered from mental illness in 2003.  OFSTED’s medical advisor made enquiries but failed to obtain a satisfactory response from the hospital where the Appellant had been treated and therefore referred the Appellant to Dr Trevor Friedman BSc MBBS MRCPsych for an opinion as to her state of mental health.  Dr Friedman considered that the Appellant appeared superficially to be coping well but he considered there to be a significant risk of relapse.

5.	In her application for registration, the Appellant had provided the names of three potential referees.  One, her former employer, McDonald’s Restaurants Ltd., provided only a job description without any reference.  Another, a friend, said that she did not know the Appellant well enough to provide a reference.  Only the third person, a long-standing friend, had no hesitation in recommending the Appellant on the basis that the Appellant’s three children were well cared for and well behaved.

6.	On 17 May 2005, OFSTED issued a notice of intention to refuse to register the Appellant for child minding “on the grounds of your medical history” and informed the Appellant that she could object to the decision.  In the absence of any objection, the decision to refuse registration was issued on 2 June 2005.  The Appellant appealed, saying that she was “a capable and reliable childminder” and referring to a letter in which she said –

“… I have no mental illness nor taking any regular medication since I was born.”

She also said she was now working as a care assistant.

7.	The Respondent, by a letter dated 28 July 2005 written by the Treasury Solicitors to the Appellant in response to the appeal, gave fairly detailed reasons for the refusal of registration, referring, for the first time, to all eight of the national standards that the appellant had been found not to meet.  The Respondent has since provided copies of a printout from the inspector’s electronic notebook, the report of Dr Friedman, the correspondence concerning references to which we have referred and documents relating to a child protection conference concerning the Appellant’s own children.  He has further provided witness statements from the inspector who visited the Appellant, from the area manager of OFSTED who signed the decision refusing registration, from Dr Friedman and from OFSTED’s own medical advisor.

8.	The Appellant did not produce any witness statement or any other material in support of her case until, on the morning of the hearing, she produced a letter dated 19 June 2003 from the locum consultant psychiatrist who had treated her in hospital, stating that she was “fit to return to work in her previous employment at MacDonalds [sic] as and [sic] from 20th June 2003” and another letter from him dated 15 July 2003, stating that he would arrange to see the Appellant in August that year “in order that we can discuss the matter of your request for a certificate stating that you are fit to be a Registered Childminder”.  She did not reply to the Respondent’s case in relation to the national standards.

9.	Where a person is applying for registration for child minding, the burden of satisfying the Chief Inspector of Schools as to the applicant’s qualification to be registered lies on the applicant by virtue of section 79F(1) of the Children Act 1989.  By section 79B(3)(i), a person is qualified for registration for child minding only if, among other things, he or she “is suitable to look after children under the age of eight”.  In forming a judgment as to a person’s suitability, the Chief Inspector is required to have regard to the national standards and supporting criteria (see regulation 4 of the Day Care and Child Minding (National Standards) (England) Regulations 2003 (S.I. 2003 No. 1996).  On an appeal under section 79M, the tribunal must substitute its judgment for that of the Chief Inspector and so the burden of persuasion remains on the applicant and any doubts must be resolved against registration (see SJ v OFSTED [2004] 344.EY, applying OFSTED v Spicer [2004] EWHC (Admin) and Jones v. CSCI [2004] EWCA Civ 1713).

10.	In the circumstances of this case, we decided that Mr Hyam should open the Respondent’s case (so that the Appellant was in no doubt as to what the Respondent’s case was) and that he should call Dr Friedman, but that we would then hear the Appellant’s evidence before deciding whether it was necessary for us to hear any oral evidence from the Respondent’s other witnesses.

11.	Dr Friedman told us that he had reviewed the Appellant’s medical notes as well as interviewing her.  The factual background is not in dispute and we take the following account from Dr Friedman’s evidence and the Appellant’s own evidence, supplemented by some of the other written evidence before us.  The Appellant was admitted to hospital under section 2 of the Mental Health Act 1983 on 17 May 2003 after the police had become concerned about her behaviour and removed her to a police station on the previous day under section 136.  She was having delusions that her three children were dead and their bodies were in the attic of her house.  In fact, she had recently separated from her husband and her children had chosen to live with him in the matrimonial home rather than with her.  She had been exhibiting symptoms of mental illness for some two years but had resisted attempts by her husband and her elder daughter to seek medical advice.  After a week in hospital, she was given leave to return home on 23 May 2003 but she was readmitted on 27 May 2003 after her sister had told the hospital that she was still exhibiting strange behaviour, including taping over cracks in the wall, thinking there might be hidden cameras.  She was finally discharged on 16 June 2003 and, in the letter produced by the Appellant, certified fit to work at McDonald’s a few days later.  While in hospital, she had refused most of the medication prescribed for her and, after her discharge, she refused the offer of follow-up appointments and medication.  It would have been usual for anti-psychotic medication to be continued for a year and for further follow-up appointments to continue for another year after that.

12.	Dr Friedman accepted that there was no evidence that the Appellant was still floridly unwell but he expressed concern that there was a significant risk of a relapse and also that the history showed that the Appellant lacked insight into her mental health so that she could not be relied upon to act appropriately should her condition deteriorate.  In particular, he pointed to her failure to act on her family’s advice before her admission to hospital and her refusal to accept treatment or the offer of follow-up appointments.  Follow-up appointments would have enabled the Appellant’s mental health to be monitored and would have helped with a judgment as to whether her level of functioning was still being affected by mental illness.  In the absence either of such monitoring or of any information from members of the Appellant’s family or other people who knew her well, Dr Friedman said it was difficult to judge whether the Appellant was functioning at the level she had been functioning at before the onset of illness or whether her illness was still affecting her.  He was not sure, for instance, whether her lack of insight was part of a problem caused by the illness itself.  He thought that it would be unlikely for stress to be the main cause of symptoms such as those from which the Appellant had suffered but that it might increase the risk of such symptoms developing.

13.	The Appellant, on the other hand, said that she was “98 per cent. sure” that she was not suffering from mental illness now.  She said that she had not responded to the advice of her family in the two years before her admission to hospital because she had not been ill then and that she had refused medication and the offer of follow-up appointments because they were unnecessary.  Her view was that she was mentally ill only when it was necessary for her to be detained in hospital and that her symptoms then were attributable to the stress arising from the break-up of her marriage and her children’s choice to live with their father.  She pointed to the locum psychiatrist’s certificate of her fitness to work at McDonald’s and told us that she was working as a care assistant both in a care home and for a domiciliary care agency.

14.	In our judgment, the Appellant’s evidence merely served to reinforce the views expressed by Dr Friedman.  We accept Dr Friedman’s evidence.  We have serious doubts as to whether the Appellant is currently entirely well and, even if she is, we are not satisfied that she possesses the insight necessary to act appropriately if she were to become unwell again.  A person may be mentally ill even though fit to live and work in the community.  Being fit to work in McDonald’s does not necessarily imply being fit to be registered as a childminder.  In McDonald’s, the Appellant was being supervised, as she also is when working in a care home; as a childminder, she would be working unsupervised.  If her thinking is, or is liable to become, disordered, there is a risk of harm befalling any children for whom she is caring.  The Appellant has made no attempt to provide up-to-date evidence of her mental health either from the medical profession or from friends and family.  On medical grounds, we are not satisfied that the Appellant is suitable to work with children under the age of eight.  We are also concerned about the Appellant’s suitability for working alone with vulnerable adults when providing domiciliary care and we ask the Respondent’s solicitors to draw this to the attention of the relevant authority.

15.	Because we are prepared to dismiss this appeal on medical grounds alone, it is unnecessary for us to deal in detail with the points relating to the national standards raised by the Respondent in response to the appeal.  We did not explore those issues with the Appellant in great depth but it was apparent from her answers to the questions we and Mr Hyam did ask that she had very little idea about the national standards.  Essentially, her case was that her suitability for childminding was shown by the fact that she had brought up her own children well, as supported by the one reference that was provided and by the Appellant’s own evidence as to the academic success of her children.  We have no doubt that a person’s experience as a parent may in practice go a considerable way towards enabling that person to satisfy the national standards for childminding, but a childminder must be able to demonstrate that he or she has appreciated the broad lessons to be learned from any experience as a parent and that he or she is aware that a childminder may meet problems for which that experience does not provide any preparation.  Therefore, a childminder must demonstrate that the national standards are understood and that he or she has learned from experience, or otherwise, all that is necessary.  We accept that an unrepresented appellant may need some assistance from a tribunal in order to make the best of his or her case but the present Appellant made no attempt at all to address the issues herself, either in writing before the hearing or when given the opportunity at the hearing.  Her failure to engage properly with the process of the appeal is itself another reason for considering that she would be unable or unwilling to engage with professional agencies as a childminder may be required to do.  We agree with Mr Hyam’s submission that the Appellant lacks insight into what is required of a childminder and that that may well be connected to her lack of insight into her mental health.

16.	 In reaching our conclusion we have not relied upon the information concerning the Appellant’s own children that was provided to us by the Respondent.  An undesirable amount of speculation would be required to draw any relevant conclusions from that evidence.  Nor have we relied upon the detail of the witness statements of the witnesses whose oral evidence we did not hear.  In particular, we make no finding as to whether the Appellant told the inspector who visited her that she wished to be a childminder in order to show that she was fit to look after her own children again.  We merely record that the Appellant said that that was a misunderstanding and that what she had said was that she wanted to be a childminder because her new home was empty without her children, because she considered that her past experience in bringing up her own children had equipped her to be a childminder and because she needed to make some money.

17.	We dismiss this appeal because our concerns about the Appellant’s mental health are such that we are not satisfied that she is suitable to look after children under the age of eight.

18.	Our decision is unanimous.

Signed by the chairman on this 9th day of November 2005.

Mr Mark Rowland (chairman)
Mr Michael Flynn
Mrs Geraldine Matthison