RT v OFSTED [2006] EWCST 640 (EY-SUS) (23 January 2006)

R T
-v-
OFSTED
[2005] 614.EYSUS
[2006] 640 EYSUS

-Before-

His Honour Judge David Pearl 
(President)
Mr James Churchill
Mrs Linda Elliot

Heard in Leicester on 10th January 2006 and Care Standards Tribunal, Pocock St on 25th January 2006.

DECISION

Preliminary Matters

1.	The Appellant is a childminder who has been registered since 1989. The Respondent issued a Notice of Suspension on 2nd December 2005 for a period of six weeks until 13th January 2006. The Appellant appealed, and we heard evidence on 10th January 2006 from Mrs De-Lastey, Mr Alexander, Mrs Andrews and Mrs Kerslake on behalf of the Respondent; and from Mrs RT on her own behalf.
2.	At the end of the evidence on this day, Ms K. Olley of Counsel on behalf of the Respondent submitted that the Tribunal should dismiss the appeal, or resume the hearing in order to hear further evidence from Ms Laura Keeley (and possibly her line manager) to rebut evidence given by Mrs RT relating to a telephone call from Mrs RT on 21st November 2005. 
3.	After consideration of this submission, the Tribunal decided to resume the hearing in order to hear this evidence, and to hear direct evidence if possible from the parents of the children who had been minded by Mrs RT as to what, if anything, they had been told by OFSTED concerning their children being minded by Mrs RT without reward.
4.	The appeal was adjourned until 25th January 2006. In the meantime, the suspension was extended by a notice dated 13th January 2006 for a further six week period. Mrs RT exercised her right of appeal in relation to this further period of suspension, and by virtue of Direction 7 of the Directions dated 11th January 2006, this further appeal was heard on 25th January 2006.
5.	At the conclusion of the hearing, the Tribunal made a Restricted Reporting Order under Regulation 18, with the approval of both parties. Accordingly, the Appellant and her witnesses are referred to throughout this Decision by  initials to protect the private life of the Appellant, her witnesses and their children.

The evidence heard on 10th January 2006.

6.	Mrs De-Lastie, the Area Manager of the Respondent within the Midlands Region, stated in evidence that she first became aware of the case involving Mrs RT on 10th November 2005 following a complainant’s contact on 2nd November 2005 to OFSTED. This information would seem to have been given by a parent of an ex-minded child to the effect that Mrs RT was being investigated by the Police. Apparently, OFSTED had had no knowledge of this investigation, so enquiries were made by OFSTED to the Police.
7.	Mrs De-Lastie stated in her evidence, and in her witness statement, that a telephone call was received by Mrs Hutton in OFSTED from DC Claire Hill of the Leicestershire Police Force. DC Hill confirmed that Mrs RT had been interviewed under caution in October 2005 and that a police investigation was ongoing. 
8.	Mrs De-Lastie stated, that as result of this ongoing police investigation by the police regarding the care of children, the failure of Mrs RT to notify OFSTED of this significant event, and the fact that there was a history of previous complaints (15 complaints since 2001 summarised in an Annex to Mrs De-Lastie’s witness statement), she decided to call a case conference.
9.	It would seem that this conference was held over the telephone on 15th November 2005 at 9.00am with Mrs De-Lastie, Mrs Kerslake, Mrs Plewinska, Mrs Helbo and Mr Alexander (who chaired the Conference) all participating. The minute states: “Following OFSTED being made aware that Leicestershire police are conducting an investigation into this childminder. Childminder has been interviewed under caution by Police and failed to notify OFSTED. Police putting a case together to take to CPS. SSD has not decided about their involvement following a referral made to them regarding Child minder treating a child roughly.”
10.	The Minute of this conference states that the decision was taken to invite Mrs RT to accept a voluntary suspension, and that if she refused to agree to a voluntary suspension, then OFSTED would suspend Mrs RT on a statutory basis. 
11.	Mrs De-Lastie made two telephone calls to Mrs RT on that day, the first call being at 9.37am immediately after the case conference had been concluded.  She informed Mrs RT that she wished to come and discuss with her the request that she suspend her childminding on a voluntary basis. The witness statement of Mrs De-Lastie sets out what Mrs De-Lastie told Mrs RT: “She asked whether this was in relation to the previous complaints made by Mrs P’s children and I confirmed yes. Mrs RT voiced her concern that OFSTED had already dealt with this. I explained that since then, we had become aware of the ongoing police investigation regarding her care of children.” 
12.	Mrs De-Lastie said in evidence that she explained to Mrs RT what a voluntary suspension involved. She said that she told Mrs RT that a voluntary suspension meant that “she would not care for children.” Mrs De-Lastie said that Mrs RT decided not to agree to a voluntary suspension, and accordingly, Mrs De-Lastie phoned Mrs Helbo and told her to prepare a formal notice of suspension.
13.	Mrs De-Lastie then telephoned Mrs RT and told her that Mrs Kerslake, a team manager, would be visiting her to issue her with a formal statutory suspension. 
14.	It would seem that sometime during that morning and after receiving advice from lawyers of the NCMA, Mrs RT changed her mind and agreed to a voluntary suspension.
15.	Mrs Kerslake visited Mrs RT together with Mrs Susan Andrews, a Childcare inspector, at 11.25am on the 15th November 2005. They had with them copies of the formal suspension notice that had been prepared that day. This notice was not served, because Mrs RT told the OFSTED officers that after the discussion she had had with the lawyers she had decided to agree to a voluntary suspension. The OFSTED officials left the house at 12.05pm having had discussions about the possibility of Mrs RT caring for over 8’s. After a telephone conversation with Mrs De-Lastie by Mrs Andrews to obtain further information on that issue, Mrs Kerslake said that they told Mrs RT that if she continued to care for over 8’s, OFSTED would have to inform Social Services of that fact.
16.	There would seem to have been a strategy meeting on 28th November 2005 at the Social Services Department. The purpose of such a meeting is to bring together all the agencies: Social Services, the Police and OFSTED. Unfortunately, no one from OFSTED attended.
17.	There was a monitoring visit on 1st December 2005 by Mrs Andrews. She said that she arrived outside the house at 15.40pm and she saw Mrs RT enter the house with one child in a pushchair, and two other children by her side. In her witness statement, Mrs Andrews states “Mrs RT stated that she had continued providing care for children, but not on a child minding basis. She explained that she was not receiving any payment for the care of the children, as the parents were her good friends and she was doing it out of the goodness of her heart to help.”
18.	As a result of what Mrs Andrews discovered, an emergency case conference by telephone was held on 2nd December 2005, involving Mr Alexander (in the Chair), Mrs De-Lastie, Mrs Kerslake and Mr Walpole (the note taker). The Conference members were informed that a parent of one of the minded children had made contact with OFSTED asking whether Mrs RT could continue to mind her child without a fee. It was agreed that Mrs De-Lastie would speak with this parent, although it would appear from her statement that she was unable to do so. The meeting decided to progress to a statutory suspension because the police investigation was ongoing, Mrs RT had failed to notify OFSTED that she was continuing to care for children, and OFSTED was aware that the Social Services Department were to formally request in writing that she should not look after over 8’s. In her witness statement, Mrs De-Lastie states; “By continuing to care for children, even if it was without payment, this in effect cast doubt on her reliability to comply with a voluntary suspension.”
19.	The formal suspension was delivered by hand on 2nd December at 13.00pm by Mrs Kerslake.
20.	In her evidence before us, Mrs RT told us about the contact with the police. She said that this was on either 4th or 5th October 2005 when she saw DC Hill.  She got the impression that the discussion was about an old complaint, and that the Police wanted to clear it up. She was asked to make a statement on tape and she attended the Police Station on 14th October 2005. She said that she told the police that she understood the complaint was to do with an allegation of her smacking a child, throwing a child on to the settee causing some bruises, force feeding a child, and making children play in the garden when it was wet.
21.	She told us in evidence that she had no further communication with the police after 14th October  2005, and that the first she heard from OFSTED was the phone calls on 15th November 2005.
22.	She said in evidence that she had not told OFSTED that she had been interviewed by the police because she assumed that OFSTED already knew about it, and that she did not class it as a significant event which required OFSTED to be informed. She said in cross-examination that she “understood it was no great event. Purely to get my thoughts.”
23.	She was clear in her evidence to us that any recent complaints were motivated by malice, and perhaps because she had obtained a County Court judgement against Mrs P for non-payment of fees.
24.	She explained that after she accepted the voluntary suspension, she understood that the parents had telephoned OFSTED to ask whether they could leave their children with Mrs RT without payment, and that they were assured that they could do so. She said that she phoned OFSTED on 21st November 2005 and spoke to Ms Laura Keely who assured her that she would not get into trouble by looking after children over 8 or children under 8 without pay. She said that the conversation with Ms Laura Keely lasted 15 minutes, and she did not misconstrue the conversation she had with her.

The evidence heard on 25th January 2006.

25.	Prior to the adjourned hearing on 25th January 2006, witness statements were received from Ms Keeley, Mrs Helbo, and a supplementary witness statement from Mr Alexander on behalf of the Respondent, and from Ms B, Mrs C, Mrs E, and Miss S, all of whom are mothers of children that were looked after by Mrs RT. 
26.	Ms B gave evidence about the phone call she had made to OFSTED on 1st December 2005 at 5.30pm that afternoon. Her witness statement, which she confirmed in her evidence was her recollection, states that she asked whether Mrs RT “would get into trouble” if she looked after children under voluntary child care (not being paid). Her witness statement says: “The lady said NO”.
27.	Mrs Helbo gave evidence to us about this call. She said that she told Ms B that she would take down her concerns and pass them on. She did not provide any advice on whether Mrs RT could continue to look after Ms B’s children without pay. She said that she would not discuss a case in detail because of issues of confidentiality, and that she did not specifically answer the question of what Mrs RT could or could not do. She said that the policy of OFSTED is that the parents have to go back to the registered provider, because OFSTED’s responsibility does not extend to providing information to parents about what should happen in the event of a suspension.
28.	Mrs C wrote to OFSTED on 16th November 2005 expressing her concerns about the voluntary suspension. She did not receive a response. She gave evidence to us about how her son’s behaviour has deteriorated, since alternative arrangements have had to be made for him.
29.	Ms Keeley was clear in her evidence that she remembered the call from Mrs RT on 21st November 2005 very clearly and that Mrs RT did not ask her the question whether she could work with over 8’s or without pay with under 8’s, even though subject to a voluntary suspension. She said that if the question had been asked she would have replied that this was not a matter for OFSTED, and if pressed she would have sought advice from her line manager, Mr Alexander, who worked in the same room as her. She said that the conversation was about the wording of the letter, and that she acknowledged to Mrs RT that there was a part of the letter, in standard form, that was confusing. The rest of the conversation she said was Mrs RT asserting that the complaint was malicious. She said that she passed no comment on Mrs RT’s assertions. 
30.	Mr Alexander confirmed that he was not consulted by Ms Keeley on the 21st November 2005. He told us in evidence that if he had been consulted he would have said that the legal definition of acting as a childminder is very clear. It is “looking after one or more children under the age of 8 on domestic premises for more than two hours per day for reward.” This of course is the definition as contained in s 79A(2) read with s 79A(7) of the Children Act 1989. He said that if a suspended childminder continued to look after children under 8 without reward, or children over 8, then OFSTED would need to refer the matter to Social Services because it may call into question the safety of the children. He stated in evidence that OFSTED does not give advice or guidance, and that it is the responsibility of the suspended childminder to comply with the suspension. It was his view that continuing to mind children, albeit without reward, would throw into doubt the suitability of the person to be a childminder.

The findings of the Tribunal on the evidence.

31.	We have considered the conflicts of recollection of the two telephone calls; namely the call made by Mrs RT on 21st November 2005 that was answered by Ms Keeley, and the call made by Ms B on 1st December 2005 (prior to the statutory suspension notice but after the monitoring visit) that was answered by Mrs Helbo. We have also of course seen the contemporaneous notes of these calls made by Mrs Helbo and Ms Keeley.
32.	We think that Mrs RT and Ms B almost certainly took away from these phone conversations what they wanted to hear. Mrs Helbo and Ms Keeley cannot be faulted, and we are certain that they were following OFSTED policy and procedures. But we have formed the view that Mrs RT, on 21st November 2005, and Ms B, on 1st December 2005, were left with the impression that continuing to care for under 8’s without pay was not a breach in law of either a voluntary suspension or a statutory suspension, but that the implications of continuing to care for children on an unpaid basis was a matter for the childminder and the parent to consider. 
33.	There is no other major conflict of evidence. In  summary, we are dealing with the following factual situation. A further period of suspension has been imposed by the Respondent under Regulation 4(3) of the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003 (SI 2003/332). Mrs RT was interviewed under caution by the Police on 14th October 2005. OFSTED have been informed that investigations were ongoing and that the papers have been passed to the CPS. As at the date of the hearing on 25th January 2006 no further information has been forthcoming. Mrs RT believes that the interview was around earlier issues about which OFSTED were aware and that these issues had been resolved. It was for this reason that she did not inform OFSTED that she had been interviewed by the Police. She said that any recent communication with OFSTED by a parent of a child she had once looked after was malicious because of a judgement she had obtained against her. Mrs RT believed that she was not breaking the law when she continued, without pay, to look after children under 8 whilst having agreed to a voluntary suspension; and that OFSTED had not told her that doing so would put into question her suitability to be a registered child minder.

The law. 
     
34.	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)”.
35.	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.
36.	The Tribunal has considered these Regulations on a number of occasions. The appropriate standard of proof was laid down in Mrs LM v OFSTED [2003] 181 EYSUS to which Ms Olley referred us. The Tribunal said in that case:
“28. It is clear to us that the question that the Tribunal must ask itself  on an appeal is whether there is reasonable cause to believe that the continued provision of child minding may expose a child being minded…to the risk of harm.
29.	The standard is not the same standard as that which is applied in care proceedings…and which has been adopted by the Tribunal when dealing with appeals of persons placed on the Protection of Children Act list…In that area the test which is applied is the balance of probability.
30.	On the other hand, the standard is not the same as that applied in s 47 Children Act investigations. That section refers to the duties on a local authority to investigate “when they have reasonable cause to suspect” that a child is suffering or is likely to suffer significant harm.”…The trigger to commence an investigation is a low one.
31.	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. We agree…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…”
                           
37.	This approach has been adopted by the Tribunal in all subsequent cases, most recently in MP v OFSTED [2005] 618.EYSUS.
38.	The approach that the Tribunal adopts in these cases was formulated in AG v OFSTED [2003] 232.EYSUS where the Tribunal said:
12. “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 a 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.”
39.	We adopt this approach in this case. Ms Olley, in her closing submissions,      submitted that the first question should be answered in the affirmative for three reasons. First, that there was an ongoing investigation that raised child protection issues. Secondly, that Mrs RT was in breach of Standard 14 by not reporting the police interview to OFSTED as a “significant event.” Thirdly, that whilst being subject to a period of voluntary suspension, she continued to look after children albeit without reward and did not inform OFSTED that she was doing so, and this raised issues of trust.
40.	The purpose of the suspension in this case, namely to allow time for the Chief Inspector’s belief to be investigated, is clearly satisfied. That fact, however, is not sufficient to enable OFSTED to impose, or on appeal, the Tribunal to confirm, a period of suspension. Regulation 3(1) must be complied with.

Our Conclusions. 
  
41.	We do not accept, applying the appropriate standard of proof as set out above, that Regulation 3(1) is satisfied in this case for the following reasons. 
42.	It is submitted by Ms Olley that the investigation involves child protection issues. There is no suggestion in the evidence that that is the case. Indeed, all the evidence points to the contrary. Neither the police nor the CPS are any further forward in their enquiries on 25th January 2006 than they would appear to have been in October 2005. We are unable to see how there can be any child protection issues arising out of an enquiry conducted in such a dilatory way. It is suggested by Mrs RT that the complaint was motivated by malice. Whilst we are unable to make any finding on this matter, there is absolutely nothing in the evidence provided to us by OFSTED that does anything at all to rebut this allegation by Mrs RT. 
43.	Although each case must necessarily be fact specific, we think the situation here is similar in many respects to AC v OFSTED [2003] 247.EYSUS where the matters alleged by a complainant were “inconsistent with the experience of other parents.” Here also, allegations of which we are not aware are totally inconsistent with the experience of Ms A, Ms B, Ms C, and Mrs E. Indeed, if there are any child protection concerns in this case, the only one about which we have heard is the fact that Ms C has had to remove her son from Mrs RT to a facility that Ms C refers to as very stressful and upsetting, as a result of which it would appear that his behaviour has deteriorated. 
44.	The second basis for invoking the suspension is the failure by Mrs RT to inform OFSTED that she had been questioned by the police, that this was a significant event, and that she was in consequence in breach of Standard 14. Mrs RT considered that the interview concerned matters about which OFSTED already knew, and in consequence she did not believe it to be a significant event. Again, we have not been told of any new allegations that raise issues of child protection, and Mrs RT was not questioned about new allegations. Although it may have been sensible for Mrs RT to have informed OFSTED about the interview, the failure to so inform OFSTED in this case falls a long way short of providing a reasonable cause to believe that continued provision of child minding exposes or may expose one or more children to the risk of harm.
45.	The third basis for upholding the decision, advanced by Ms Olley, related to the fact that Mrs RT failed to inform OFSTED that, during the voluntary suspension, she was continuing to look after children without reward. This  raised an issue of trust. We take the view that Mrs RT was not in breach of her acceptance of a voluntary suspension when she cared for these children. She had not been told by OFSTED what OFSTED’s response would be if she did indeed continue to care for these children, albeit without reward. No parent had been given any information about OFSTED’s approach. It is therefore exceedingly difficult for OFSTED to submit at the date of the hearing that Mrs RT’s trust is in question as a result of her continuing to care for children without reward. One can well understand why she did do so; in part to help out parents who had confidence in her and, one assumes, in part to retain her client base for the time when the suspension would be lifted.
46.	For all the above reasons, the Respondent has failed to satisfy us applying  the appropriate standard that the suspension should be confirmed. Accordingly, we allow the appeal and ORDER that the suspension should cease to have effect.

Concluding Remarks.

47.	There are a number of issues that have arisen in this case to which we would like to draw attention, in the hope that lessons can be learnt. 
48.	First, whilst we accept that OFSTED does not provide advice or guidance to parents or indeed to child minders, we are concerned that clear messages were not provided in this case. Ms Keeley, who was an impressive witness on this matter, conceded that the standard letter setting out the basis for voluntary suspension was ambiguous, and that sections of the letter did not apply to Mrs RT. Some thought needs to be given to this letter and to other letters, to ensure that there is no room for ambiguity. A policy of directing parents who ring to ask specific questions about the permissibility of certain actions to go and discuss this with the same childminder whose suspension has caused the call in the first place is bound to create difficulties. OFSTED may wish to consider the advantages of providing a clear statement of the law which could be read out to parents or sent to parents who make specific enquiries. 
49.	Secondly, we were not impressed by the involvement of the NCMA and their legal advisers in this case. Mrs RT stated to us that she had been given certain advice. It would have been wrong of the Tribunal to have breached principles of client confidentiality to enquire further. But Mrs RT was left to fend for herself in the two days of hearings. A way must be found to ensure that Appellants have the benefit of legal representation, and one would hope that the NCMA will address this issue. A copy of this decision is being sent to them.
50.	We have read the comments of our colleagues in the case of SB v OFSTED [2005] 605.EYSUS. We believe that the views expressed in paragraphs 26 and 27 have a lot to commend them; namely that a letter be written by OFSTED to the child minder to explain the Protocol and how the matter is to be investigated by the various agencies, and that consideration be given to allocating one named OFSTED official to be the contact point for the child minder whilst the investigation and other steps are being taken. Honesty and transparency are always the more effective responses to genuine concerns; whether these concerns be from child minders or from parents.
51.	In Mr and Mrs G v OFSTED [2005] 527 and 528 EYSUS, the Tribunal suggested “Where a case such as this comes before the Tribunal, then we consider the Tribunal should have the details of the matter even if it has to be kept confidential from the Appellants. The Tribunal should be given details, from the police/social services, about the timetable for investigation and the reasons why the person under investigation should not be told what has been alleged against him or her.”  We are unhappy about details being given to the Tribunal when it has to be kept confidential from the Appellant, although there is an analogy in the procedures of this Tribunal in the context of Regulation 15 and the withholding of medical reports. We would not support an extension of that provision into this area. We do think however that there is considerable force in the suggestion that the Tribunal, and the Appellant, should be given details from the Police and/or the Social Services about the timetable for the investigation. 
52.	Finally, we are troubled by the use made of voluntary suspension. A voluntary suspension of course carries with it no right of appeal, and the timescales as set out in the Regulations for a statutory suspension are not relevant. Whilst it may be that there will be some cases where a voluntary suspension is appropriate, the options must be set out as clearly as possible to the child minder. In particular, he or she must be told that if he or she agrees to a voluntary suspension, and if he or she continues to mind children although without reward, then it is probable that an issue of trust will arise and his or her suitability as a child minder will be brought into question, even though the childminder may well be acting within the strict letter of the law. 

ACCORDINGLY, OUR UNANIMOUS DECISION IS:

We allow the Appeal
We Direct that the suspension shall cease to have effect.

His Honour Judge David Pearl
(President)
Mr James Churchill
Mrs Linda Elliot

January 27th 2006.