CP v OFSTED [2005] EWCST 543(EY) (13 February 2006)

CP

-v-

OFSTED

Before

Mrs.C.A.Singleton (Chairman)
Mr. D.Allman
Mr.T.Greenacre

[2005] 0543.EY

Heard at Barnsley County Court on 13th February 2006

1. This is an appeal under the Children Act 1989 s. 79M against a Notice of Decision made by the Respondent refusing an application for registration as a childminder.

2. The Appellant submitted an application for registration  as a childminder on 28/09/04. This was accompanied by the requisite health declaration in which the Appellant drew attention to her history of depression.

3. The Respondent made further enquiries of the Appellant’s G.P. and on receipt of his comments referred the Appellant for a medical assessment by a consultant psychiatrist.

4. On receipt of the report and recommendation from the psychiatrist the Respondent reviewed their decision as to the Appellant’s suitability to be registered and on 23rd March 2005 issued a Notice of intention to refuse registration to the Appellant.

5. On 28th March 2005 the Appellant wrote to the Respondent objecting to that decision.

6. On 5th July 2005 an Objection Panel Hearing took place at which the Appellant presented her case and on 14th July 2005 notice was sent to the Appellant explaining to her that her objection had not been upheld.

7. On 20th July 2005 the Respondent issued a Notice of decision to refuse registration following an objection.

8. On 23rd August 2005 the Appellant’s appeal was received by the Care Standards Tribunal.

9. At the hearing on 13th February 2006 the Appellant represented herself. The Respondent was represented by Mr. James Strachan of counsel.

10. The issue of the burden of proof was considered by the Tribunal. Applying the ruling of the Court of Appeal in Jones v CSCI and subsequent decisions of the CST it was accepted that the burden of proof lay with the Appellant to satisfy the Tribunal that she is suitable to be registered as a childminder. The standard of proof is the balance of probabilities.

11. Respondent’s evidence
The Tribunal heard firstly from Dr. Som D Soni, a consultant psychiatrist, who had assessed the Appellant and prepared a report on her suitability as a childminder in February 2005. His overall view remained the same as when he had prepared the report which appears at document 89 of the papers. The Appellant’s depression had started in May 2001 and had been triggered by stress at work. She was prescribed anti-depressants. In 2003 she experienced an exacerbation of the condition for which she had several sessions of counselling. During these, her early childhood and sex abuse were explored extensively. She has had no further exacerbations of her depression. In his original report Dr. Soni referred to the positive family history in that the Appellant's brother was under treatment for depression.

12. Document 33 of the papers is a witness statement signed by Dr. Soni. Paragraphs 4-7 of that statement set out the conclusions that Dr. Soni has reached as a result of his assessment. In particular, paragraph 4 sets out his main concern, that if the depression recurs and there is no supervision it may affect the care of young children. In oral evidence to the Tribunal, Dr. Soni confirmed that this was still his view.

13.Furthermore, in paragraph 3 of the statement, Dr. Soni refers to a letter from the Appellant’s G.P. dated 9/11/05 in which it is stated that “the chances of recurrence are no greater than an average member of the population”. Dr. Soni expressly disagrees with that statement and in oral evidence stated that in the face of the available literature on the subject it cannot be true. He told the tribunal that three of the most famous studies based on research over a period of 15 to 30 years suggest that recurrence rates are between 80% to 100%.

14. Dr. Soni further stated that, the longer the Appellant remains symptom free, the more likely it is that the depression will not recur. However, he recommended that the Appellant should be supervised for a period of time, in his opinion for two years and that, in the absence of that supervision, there is a risk. He pointed out that, the Appellant has good coping skills but that the symptoms of depression can creep in insidiously. The Appellant may then lose insight into her condition and be unable to cope. That may manifest itself in neglect or poor concentration. He was at pains to point out that there is no concern whatsoever that the Appellant would deliberately harm a child.

15. The Tribunal then heard from David Gordon Asher of Ofsted Early Years Directorate. He referred to his witness statement which appears at document 35 of the papers. He stated in oral evidence that the process of registration as a childminder has to include the assessment of the applicant’s suitability, both physical and mental. He pointed out that childminding is a solitary activity for the vast majority of childminders but is a position of great responsibility, given that they are entrusted with the care of young children. That being the case, Ofsted have to be satisfied that an applicant will be able to cope with both the expectations of young children and the stresses which will inevitably occur. They have to be confident that an applicant can cope with potentially unpredictable behaviour and needs. 

16. Mr. Asher dealt particularly with the question of supervision. He pointed out that childminding is a business run from domestic premises by individuals and potentially there could be 6 children under the age of 8 years. Supervision is not provided by Ofsted. That exercises a regulatory and inspection function only. Support is provided to a limited extent by the local authority in the form of the Early Years Partnership but that takes the form of training, not supervision. Having set out the history of the Appellant’s case, he confirmed that the Respondent’s concerns remained the same. The medical evidence of Dr. Soni was clear. Childminding is a stressful activity and the possibility of those stresses triggering a recurrence of the Appellant’s depression remained a concern.

17.  Appellant’s Evidence
The Appellant gave evidence on her own behalf. No witnesses were called by her. She told the tribunal that she had ceased working because she had recognised that she was depressed. Initially she had believed this to be as the result of stress at work but, following extensive counselling sessions, she became aware that the depression had not necessarily been induced through stress but may have been the consequence of issues from her childhood.

18. She referred to Dr. Soni’s evidence. She confirmed that her brother is taking anti-depressants but pointed out that his depression was the consequence of a severe road traffic collision in which he had been involved 20 years ago and since which time he has been disabled. She did not feel that this has any bearing on her own medical history. She confirmed that she was no longer taking medication. She had reduced it to alternate days in January 2005 without medical supervision but in the knowledge that her G.P. was available to help if she felt that she needed him. When she advised her G.P. in September 2005  that she was only taking medication on alternate days, he advised her to stop altogether. 

19. So far as her personal experience is concerned, she told the Tribunal that she has a lot of dealings with children. She has a 9 year old son and she often cares for his friends. Sometimes, other children stay all day. Their parents are content with this arrangement and it is one of the reasons that the Appellant wished to become a childminder. She works voluntarily with students at Doncaster School and College for the Deaf for two sessions a week and has done so since June 2002. She is supervised during these sessions to the extent that there is another member of staff in the room. 

20. The Appellant confirmed to the Tribunal that she is aware of the symptoms of depression. She pointed out that her own son had been 5 or 6 years old when her depression had started but , despite this, she had continued to care for him and did not feel that her condition had affected her ability to cope.

The Decision
21. The Tribunal carefully considered all the evidence, both oral and written. The burden of proof is on the Appellant to satisfy the Tribunal that she is suitable to be registered as a childminder. The standard of proof is on the balance of probabilities. The Tribunal accepted that the Appellant is a  person who demonstrates a genuine regard for children and is someone who expresses a desire to work with them. However, her application is, to a large extent, an assessment of risk and the medical evidence of Dr. Soni is persuasive. He has not changed his original opinion following his assessment of the Appellant. His expert opinion is that the Appellant is not suitable at the moment to be registered as a childminder unless there is some supervision. The tribunal heard from Mr. Asher that supervision is not feasible. No evidence was heard from the Appellant other than her own oral evidence. The letter from her G.P., Dr. Brennan, was discounted by the Tribunal who accepted Dr. Soni’s comments on it. 

22. The Tribunal accepted that the Appellant may well be suitable at a future date to be registered as a childminder but considered, on balance, that she had failed to discharge the burden of proof upon her and had failed to show that she is suitable to be registered at the moment. Dr. Soni’s comments that the longer she is symptom free the less likely it is that the depression will recur are significant. In evidence, the Appellant said that she was considering working in a nursery if her appeal was unsuccessful. That would provide her with the necessary supervision and give time for her to show that her depression had not recurred.

23. The decision of the Tribunal is unanimous

24. The appeal is dismissed.

Mrs. C.A.Singleton (Chairman)
Mr. D. Allman
Mr. T. Greenacre