B v OFSTED [2005] EWCST 573(EY-SUS) (19 December 2005)

CARE STANDARDS TRIBUNAL DECISION

Mrs B (Appellant) 

-v-

Ofsted (Respondent)

[2005]  0573 EY.SUS

Before:

Miss H Clarke, Chairman
Mr M Jobbins
Ms M Tynan

Sitting at the VAT and Duties Tribunal in Manchester on 17th and 25th November 2005 and the Immigration Appeal Tribunal, Manchester on 2nd December 2005.

Appearing for the Appellant:  Mr G McGavin of Counsel instructed by Davies & Partners, Bristol, solicitors.

For the Respondent:  Miss L Busch, Counsel, instructed by Treasury Solicitor.

APPEAL

1.	The Appellant appeals against the decision of the Respondent to issue a statutory Suspension Notice  under S 79 of The Child Minding and Care (Suspension of Regulations) (England) Regulation 2003 (the Regulations) H and S 104 of the Children Act of 1989 as set out in  the  notice to the  Appellant dated 19th October 2005 (the Notice).

2.	A Restricted Reporting Order was made by the  Tribunal  under Regulation 18 of The Protection  of Children and Vulnerable Adults  and Care Standards Tribunal  Regulations 2002   on the  first  day  of the  hearing (17th November 2005) and this order was continued at the conclusion of the hearing. Details of the Applicant and her son and other neighbours of the Applicant have been anonymised in order to protect the private life of the parties.

3.	On the first day of the hearing the Appellant appeared in person but was represented on the second day of the hearing by Counsel. The Tribunal heard evidence on behalf of the Respondent from Jane Pamela Berry (Ms Berry) an Inspection Officer with Ofsted and from Ian Colin Marsh (Mr Marsh), a Team Manager with Ofsted.   The Appellant gave evidence but called no witnesses.
4.	The Regulations (Regulation 3(1)) states
 “The Chief Inspector may, in accordance with regulations 4, 5, 6 and 7,  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 of the 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).

(2) 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.”

The Regulations further state that the suspension can continue for a period of six weeks and that this period can be extended under Regulation 4 for a further period where it is necessary for more time to complete the investigation.   A central part of the case for the Respondent concerns the medical and psychological state of the Appellant and a request has been made for the medical records of the Appellant to be produced to facilitate a medical assessment of the Appellant.
The Appellant  has  agreed  that  her medical  records  can be  viewed  but at the date of the hearing the medical  records of the Appellant  were still awaited and no medical assessment has yet taken place.

5	The original suspension period  which  was  due  to  expire on 30th November 2005   was extended by a further notice of suspension  issued  by the Respondent to the Appellant dated 30th November 2005 for a  period of six weeks as from 30th November 2005.

The  written statements ,correspondence  and other documents filed by both  parties  with  the   Care Standards  Tribunal prior to the hearing has been collated  into  one paginated bundle ( the Tribunal Bundle ) 

6. 	Background Information

The Appellant was registered in 1998 as a child minder which authorised her to care for five children at any one time.  The Appellant was inspected on February 9th 2005 
( the February inspection)  and  copy of this report  which was  not included  in the Tribunal bundle was submitted to the Tribunal by the Appellant on the  first  day of the  hearing .

On August 19th 2005 the Appellant voluntarily  notified  the Respondent that she had been reported to Rochdale Social Services by  her neighbour ( Mrs B) who  claimed  that the Appellant had returned home late one night accompanied by her son in a drunken state and that the Appellant  had then shouted at her son.   This initial complaint (the first complaint) resulted in contact between the Respondent and the Social Services who after   making contact with the Appellant decided not to take any formal action in respect of the incident.

7.	The Appellant’s neighbour, Mrs B, then complained direct to the Respondent on 19th September 2005 (the second complaint) alleging that the Appellant had developed a drinking problem over the previous six to seven weeks, that the Appellant’s house was in a poor state and that there might be safety issues concerning the children that were being minded on the premises.   The Respondent decided to undertake an unannounced inspection visit which took place on 26th September 2005 (the September inspection).

8.	The September inspection resulted in the Appellant agreeing on the day of the inspection to a voluntary suspension pending further investigations by the Respondent.   The Respondent subsequently issued a Statutory Suspension notice dated 19th October 2005(the Statutory Suspension) which was extended as previously stated on 30th November 2005.)

Two further inspections of the premises took place on October 19th and November 23rd 2005.

9.	The Respondent, during the course of the investigation raised a number of issues with the Appellant about alleged breaches of the   National Standards for Childminding.  

Counsel for the Respondent declared that for the purposes of the Appeal the Respondent would be seeking to argue only on the question of the Appellant’s suitability to continue to child mind (National Standard 1) and in particular the Respondent’s concerns about:

(a)	The Appellant’s alcohol consumption.
(b)	The Appellant’s ability to cope with stress and her mental and psychological suitability to continue child minding.

It was submitted by the Respondent’s Counsel that whilst there may be concerns about the Appellant’s record keeping and other breaches, the breaches would not in themselves be sufficient to continue with the suspension. The Appellant’s Counsel confirmed that the Appellant had no objection to the Appeal being heard on this basis.

 Evidence 
10.	Ms Berry in her evidence to the Tribunal stated that the Appellant had displayed inappropriate behaviour during the September inspection and referred to her comments in the notebook entry of the account (page 101 of the Tribunal bundle) “CM is disorientated, she flits from engaging in conversation to something else, and walks away in the middle of talking about something.  When she returns she does not recall what she is supposed to be doing…”

Ms Berry confirmed that this inappropriate behaviour had continued throughout the day and did not relate only to one or two odd responses.  Ms Berry further confirmed that  prior  to  the  September  inspection she  was aware  of the  complaints  that  had been made  by the Appellant’s neighbour  and to   “other professionals”.

11.	In cross examination Ms Berry confirmed that she had no direct evidence that the Appellant was under the influence of alcohol whilst child minding.  Ms Berry also confirmed that she was aware of the neighbour dispute that had arisen between the Appellant and Mrs B, the instigator of the complaints; but Ms Berry did not consider that the dispute was relevant to the investigation.   “What was going on between the neighbours was not something we were investigating.”

Ms Berry also acknowledged under examination that no-one from Ofsted had interviewed Mrs B to verify the allegations contained in the second complaint.  Ms Berry rejected the suggestion by the Appellant’s Counsel that the Appellant was depressed because of the inspection visit itself.  Ms Berry viewed the Appellant as being “at very low ebb” during the September inspection visit and that this was impacting on her ability to cope with the children.

When questioned about the second inspection visit in October (the October inspection) Ms Berry considered that the Appellant’s improved manner might be because the Appellant had by then had a break from child minding.

12.	The Appellant during her oral evidence admitted that she had been depressed, not only because of the September inspection but also because of the continuing dispute with her neighbour.   She stated “I have put up netting; I feel I am being watched”.  The Appellant also claimed that she had been intimidated by her neighbour and that had caused her to become  frightened  so she  had reported the matter  to the police and that she now had a contact telephone number to telephone the police in case there were any further incidents.

The Tribunal asked the Appellant about her records and documents and she indicated that she did still have some of the records “in my room somewhere”.  This response  contradicts  the written  comment   made  by Ms Berry  following the  Inspection  visit on  November 23rd 2005  (Page 11 of the  November report which  was submitted to the  Tribunal on the second say of the  hearing)  where  she states “ Although ( the Appellant) stated that  she has maintained these records  in the past  she was  still unable  to produce any records  for the children previously  minded”  .

The Tribunal also heard oral evidence from Mr Marsh who is the Team Manager for Ms Berry and who was involved in the decisions to issue the voluntary and the statutory suspension notices. 

13	Tribunal Conclusions

The Respondent’s concern about the Appellant’s alcohol consumption was triggered by the complaint to the Respondent by the Appellant’s neighbour, which actions Mr Marsh in his evidence to the Tribunal described as the catalyst which caused the Respondent to instigate an inspection visit of the Appellant.

Ms Berry in her evidence said that she had gone to see the Appellant with an “open mind” however, when questioned by the Tribunal she accepted that her continued questioning of the Appellant about her level of alcohol consumption were routine questions.   The Tribunal therefore considers that the inspectors, when they visited in September, were understandably mindful of the allegations of drunkenness that had been made by the Appellant’s neighbour.

The Appellant both during the September inspection and under cross examination firmly denied that she drank whilst she was child minding.  Reports on the inspection visits (which were unannounced) contain no reference to any evidence being found of alcohol on the premises. Ms Berry under cross examination stated “If I had felt that that she was drunk I would have contacted the police immediately “

The Respondent also referred to the telephone conversation between the Appellant and Alison Sturges (Ms Sturges), an investigating officer with Ofsted, which took place on September 19th 2005.    A written  note of the conversation (The Tribunal bundle page 87) states “[the Appellant] was not clear in her speech however I could not say she was slurring her words, she kept on snivelling and repeating the word “right” all the way through the conversation).   I asked [the Appellant] if she was OK.  She stated she was upset. [The Appellant] stated that she was having problems with neighbours.” 

The record of the conversation also states that the Appellant admitted that she does drink but again reiterated that she did not do so whilst looking after children; this conversation pre-dates the September inspection visit when Ms Berry raised the issue of alcohol consumption with the Appellant.

 As yet no medical evidence or reports or assessments have been submitted by the Respondent to support the concerns about the Appellant’s alcohol consumption.

14.	The Tribunal has considered the serious allegations about drunkenness that were made in the second complaint by the Appellant’s neighbour and has treated them with great caution as there is clearly considerable ill feeling between the parties.

The Respondent submitted that the Appellant had been evasive when asked about her alcohol consumption and under cross examination about the level of her drinking. The Tribunal considers that the Appellant was defensive in some of her  responses, she appeared reluctant to indicate  her level of alcohol consumption  and had stated   “This is my personal life – the reason why I spoke like that is because I think it has nothing to do with her (Ms Berry) or Ofsted what I do in my personal time.”

Whilst the Tribunal understands that the Appellant might find such questions intrusive, the Respondent was faced with the serious allegation that the Appellant was drinking heavily had a duty to investigate this issue as it could pose a risk to the children in the Appellant’s care.
 
The Respondent’s concern about this serious allegation stemmed in a major part from the unsubstantiated allegation by the Appellant’s neighbour.
Mr Marsh, in his evidence to the Tribunal stated “the complaint was a catalyst, without the complaint Ofsted would not have known what was happening.”    However, despite the claim that the Appellant had allegedly been drinking heavily over a period of several weeks, there was no other evidence from neighbours to support the claim. The Appellant  may have  acted  in an odd manner  during the  September  visit  but  Ms Berry in her oral  evidence  confirmed  that  the Appellant  was  not  drunk 

The Appellant, by contrast, did produce letters of support from parents of the children she was caring for and a very favourable testimonial reference from the Reverend Maureen Reed (page 37 of the Tribunal bundle).

The Tribunal therefore does not accept that the concerns about the Appellant’s alcohol consumption have been substantiated from the evidence so far produced to the Tribunal.

15.	Turning to the question of the Appellant’s mental and psychological state, the Respondent has not yet been able to produce a medical report or assessment concerning the Appellant’s mental state.    The Respondent seeks to rely on the observations by Ms Berry during the September inspection visit, who considered that the Appellant was not coping well.  “the main concern is around her health.  She herself had described herself as very depressed, being unable to cope, and feeling ill and very tearful.”(Tribunal Bundle Page 102) 
 
The combination of these concerns about the Appellant’s ability to cope, together with concerns at that time about a number of other standards led the Respondent to decide that they would need a medical assessment of the Appellant.

The Appellant submitted that the stress of having the inspectors in her house on 26th September caused her to get very distressed.   In her oral evidence the Appellant stated “I am not very good under stress”.   The Appellant also accepted that she may have laughed inappropriately but considered that that was simply her nervous way of reacting to stress “it makes me laugh – it’s just me”.
The Appellant also admitted in her oral evidence that she had cried a lot during the September inspection and had been unable to concentrate.

16. 	However, when the inspectors visited the Appellant in October during the suspension period, the Appellant had appeared much calmer as recorded in Ms Berry’s account of the October inspection (see tribunal bundle page 127) “The CM appeared to be more relaxed.  She was able to focus and concentrate better and was not visibly shaking or as easily distracted as she presented at the last visit.”

Nevertheless, Ms Berry in her oral evidence considered that the Appellant still needed to be medically assessed to ascertain her ability to cope with different situations such as how to react if faced with an emergency.

Mr Marsh in his evidence acknowledged that so far as the national standards were concerned, the Respondent’s concerns had largely been met but that the suspension still remained necessary until the Respondent had received the appropriate medical assessment.

17.	The Tribunal accepts that it was reasonable for the inspectors to be concerned about the significant change in the situation that had arisen by the time of the September inspection. The Appellant, by her own admission, found the September inspection very stressful and recognised that her tearful breakdowns had probably upset the children.   The previous inspection reports of February 2005 and July 2005 do not give any indication of underlying stress.
  The Tribunal also accepts that the Appellant was in an emotional and distressed state because of outside forces such as the continuing neighbour dispute.

The Appellant submitted a very brief letter dated September 28th 2005 from a Dr Rowlands   (Tribunal bundle page 33) which stated “I have seen this lady today. Based on my assessment today I cannot find any evidence of mental illness. I understand that yesterday she became quite upset and distressed however, from what I understand this was a stressful situation and this sounds like a normal reaction.” However there is no indication whatsoever of how the assessment was carried out therefore the Tribunal considers it to be of limited value. 

The inspectors had made it clear to the Appellant that they were not interested in the motives of the neighbour making the complaint and this may well have created further panic and fear in the Appellant during that September visit. 

The Tribunal considers that it was proper that the inspectors faced with the emotional and   distressed behaviour exhibited by the Appellant   decided to seek a voluntary suspension of the Appellant’s child minding activities pending further investigations. 
Although the Respondent has chosen not to argue in detail about any of the breaches of the individual national standards, the Tribunal accepts the submission by the Respondent that the alleged breaches of the national standards were relevant insofar as they reflect a marked changed in the Appellant’s overall ability to cope when compared with the previous inspection visits in July and February. 

The Appellant’s   response  to the Tribunal that  she  was not  under  the impression  that  Ms Berry  had wanted  to see her   child attendance records  when  Ms Berry   made an inspection  on November 23 2005  was not  credible given the Respondent’s previous  concerns  following  the September  inspection. The Appellant  said that  she  did have  the records since 1999 “ somewhere” in her room but that  she could not locate  them  as she was having “a big sort out” . This response reinforces the contrast in the Appellant’s behaviour and attitude   when compared with the inspection visit in July 2005   when records had been available and readily produced. (Tribunal bundle Page 76) 

The Tribunal accepts that the Appellant’s behaviour and her emotional reactions and distress during the September inspection did warrant further investigation by the Respondent.  The Tribunal also accepts that the acrimonious neighbour dispute had caused the Appellant considerable stress and anxiety.

The question for the Tribunal is whether or not the Chief Inspector did have reasonable cause to believe that the continued provision of child minding or day care by the Appellant might expose one or more of the children to a risk of harm and that the continued suspension should be allowed to enable the Chief Inspector to investigate the circumstances.

As previously stated  the Tribunal does  not accept that  sufficient  evidence has been provided  to date to indicate  that there  is reasonable cause  to believe  that  the Appellant’s  alcohol consumption   would expose  or might  expose  any child being minded by the  Appellant  to the risk of harm. 

The Tribunal does however accept that there is reasonable cause to believe that the emotional anxiety and stress displayed by the Appellant during the September inspection visit does justify a medical assessment of the Appellant to ascertain whether she is suitable to continue to child mind and we urge that this assessment is done as quickly as possible.

The Tribunal notes that the Appellant has already indicated that she has no objection to her medical records being reviewed and in these circumstances the Tribunal would be most concerned if there was any suggestion that the suspension should be further continued because of delays in obtaining the medical records as this would be unfair to the Appellant.

 The Chief Inspector’s decision   to suspend registration is confirmed. This decision is unanimous.

 The Appeal is refused.  

 Dated 19 December 2005 

H Clarke (Chairman)
M Jobbins 
M Tynan