AJ v Ofsted [2006] EWCST 693(EY-SUS) (02 June 2006)

CARE STANDARDS TRIBUNAL DECISION

AJ

-v-

OFSTED
[2006]   693 EY.SUS

-Before-:

Miss H Clarke (Chairman)
Mr D Griffiths
Mr A Wilson

The Tribunal met on May 22nd 2006 at the Care Standards Tribunal Hearing Centre, Pocock Street, London.    

For the Respondent: 	Miss Katherine Olley of Counsel instructed by Treasury Solicitor.      

For the Appellant:	The Appellant was not legally represented.  Mr R (the Appellant’s partner) spoke on behalf of the Appellant who was not present at the hearing.

Preliminary Point of Procedure

1.	The Appellant in the Care Standards Appeal Application Form C dated April 19th 2006 (Form C)   requested that the   Appeal be dealt with on the papers.    The Respondent’s submission to the Care Standards Tribunal (the CST) dated April 28th 2006 (the Respondent’s submission) requested that the matter be heard orally. Owing to administrative difficulties the nominated Chairman did not receive the Tribunal bundle until May 20th 2006, the Saturday before the date fixed for the hearing which meant that the decision as to whether or not the matter should be dealt with by an oral or paper hearing had to be determined on the day of the hearing.

2.	The Appellant did not appear in person at the Tribunal hearing but was represented by her partner Mr R   who confirmed that the Appellant still wished the matter to be dealt with as a paper hearing.  In response Counsel for the Respondent confirmed   that the Respondent still wanted the matter to be dealt with by an oral hearing.

3.	The written statements, correspondence and other documents filed by both parties with the CST prior to the hearing and on the date of the hearing have been collated into one paginated bundle (the Tribunal Bundle). The Tribunal Bundle includes an undated witness statement from the Appellant (Tribunal Bundle Pages 102- 104) and three undated witness statements from NR (Tribunal Bundle Pages 100-1001,105 and a further unnumbered two page statement by Mr R dated  May  20th  2006.     The Respondent’s bundle includes witness statements from the Appellant’s children, JJ and RJ and from Vanessa Redmond, Gillian Cubit, Lisa Marie Jones, Lena Mead, PC S Cresswell and PC A Brunt.

4.	The Tribunal, having  read the  Tribunal Bundle including the witness statements and additional  evidence  filed   by both parties  and taking into account  the  absence of the Appellant, the absence  of  any  legal representation on behalf of the Appellant  and the  request  by the Appellant  that the matter be dealt  with as a paper hearing,  has decided  that  the matter should be determined as  a paper hearing.

5.	Therefore after formally opening the Tribunal proceedings and dealing with the preliminary point the Tribunal directed that the case would be dealt with as a paper hearing and then retired to consider the same.

The Appeal

6.	 A Statutory Notice  of Suspension  under the Child  Minding and Care (Suspension of Regulations) (England) Regulation 2003 (the Regulations)  was sent to the Appellant in a letter  dated March 13th 2006 (the Statutory Suspension Notice).The Respondent  then  sent  the  Appellant a Notice of Continued Statutory Suspension (the Continued  Suspension Notice)  in a letter dated 21st April 200, which is the subject of  this appeal.

7.	A Restricted Reporting Order was made by the Tribunal under Regulation 18 of the Protection of Children and Vulnerable Adults in the Care Standards Regulations 2002 and this order shall continue at the conclusion of the hearing.   Details of the Appellant, her daughters, her partner and other members of the family of the Appellant have been anonymised in order to protect the private life of the parties.

8.	Regulation 3(1) of the Regulations  states:

“The Chief Inspector ma, in accordance with the 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 the steps to be taken to reduce or eliminate the risk of harm.”

9.	 The reason given by the Respondent for the extension of the statutory suspension was  to enable the Respondent to make further enquiries about the Appellant’s suitability.

10.	The Appellant, in a letter dated 22nd April 2006, requested that the suspension be lifted on the grounds that no reason had been given as to why the Appellant had been suspended.  The Appellant also requested further clarification as to what enquiries were being made about the Appellant’s suitability. The Appellant’s letter also contained other allegations concerning the manner in which the Respondent had conducted the investigation.

11. 	The burden of proof is on the  Respondent and  the standard of proof  was laid  down in  LM  v OFSTED [2003] 181 EYSUS namely  “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” 

12.	Background Information

The Appellant was registered as a child minder in 2004  which enabled her  to care for three children under the age of 8 in her home in  Warlingham, Surrey.   On December 6th 2005 the police attended at the Appellant’s house as a result of a telephone call  made by the Appellant’s daughter, RJ, who alleged that she had been assaulted by the Appellant   during the previous evening December 5th 2005 ( the December 2005 incident ). The Appellant was arrested on suspicion of causing actual bodily harm and subsequently released on bail. The Respondent was notified of the Appellant’s arrest by a social worker and as a result the Respondent contacted the Appellant later on the same day, December 6th 2005 after the Appellant had been released on bail. The Appellant agreed to a voluntary  suspension  of  her child minder  registration, and this was   formalised in a letter  dated 9th December 2005 which confirmed that the Appellant had agreed to a voluntary suspension for a period from 6th December 2005 to 17th January 2006 to allow a child protection investigation to be concluded.

13.	The Respondent subsequently sent two letters to the Appellant requesting a further period of voluntary suspension from  January 18th to March 1st 2006 and second  further period of voluntary suspension from March 2nd   to April 13th 2006.  The Appellant did not agree to either of these periods of voluntary suspension.

14.	On December 12th 2005  an “Initial Senior  Strategy Meeting”  (the location is not specified) attended by  members of the Surrey Children’s Services, the  Surrey Police and Ofsted  took place  to consider the concerns and allegations that had been raised against the Appellant.

15.	On February 22nd 2006  the Surrey Police notified Miss S Harris of the Child Protection Liaison Office at Ofsted that RJ had made a statement stating that she was unwilling to proceed with the  allegation  that the Appellant had  assaulted her on December 5th 2005  and was not willing to attend Court or to be a witness on behalf of the Crown Prosecution Service (the CPS).   The CPS having reviewed the file decided therefore that no further action would be taken against the Appellant as it  would be difficult to prove  beyond reasonable doubt that the  allegations originally made by RJ, against  the  Appellant were  true.

16.	Once the Police investigation  was concluded, the  Appellant considered that she should be able to continue child minding and therefore she  contacted Surrey Children’s Information Service  and informed them that she was no longer suspended. Gillian Cubitt of Ofsted (Ms Cubitt) had been in contact by telephone with the Appellant on February 21st and 27th 2006  and  had tried to make arrangements to visit the Appellant to discuss the allegations arising from the  December 2005 incident  but the Appellant was unwilling to discuss the matter.    

17.	The communication between the Appellant and the Respondent deteriorated  markedly during the period from the end of February to the middle of April.  The Respondent then tried to make direct  contact with the Appellant by arranging for Ms Lisa–Marie Jones, a childcare Inspector, (Ms Jones)  to  make an unannounced visit to the Appellant’s home on April 19th 2006. The Appellant  declined to let  Ms Jones enter the house and would only speak to her  from an upstairs  bedroom window.  

18.	Counsel, in the Respondent’s written submission, relied on the Respondent’s letter of April 27th 2006 which set out the reasons for the refusal to lift the suspension and also emphasised that the Appellant had refused to agree to meet anyone from  the Respondent’s  team  and as a consequence  the Respondent  had been unable to assess the Appellant’s suitability to continue as a childminder.   The Respondent’s submission  also referred  to further enquiries being undertaken, including interviews with the Appellant’s daughters and collating further police information.   The Respondent  also questioned  whether or not the Appellant had continued to mind children after the  statutory  suspension  and  raised  a further  issue concerning the lack of information about the details of the children that the Appellant had minded prior to the suspension.

19.	The Appellant, in an undated statement which was received on May 10th 2006  (Tribunal Bundle Pages 102 - 104) challenged the account set out in paragraph 4 of the Respondent’s submission and stated that she in fact had considered making a claim for assault against RJ but had agreed to drop the charges if RJ agreed not to continue with the complaint against the Appellant.

20.	Evidence

The witness statement of PC Cresswell, the Reigate Police Station, Surrey (Tribunal Bundle page 29) establishes that the police were called to the Appellant’s house on December 6th 2005 and that RJ had sustained injuries to her face, and that the Appellant was subsequently arrested on suspicion of assault occasioning actual bodily harm.

21.	In a letter dated February 22nd 2006 from Surrey Police (Tribunal Bundle page 137) reference is made to the Appellant confirming during an interview that she had had a verbal argument with her daughter, RJ.  However, in her undated witness statement, page 102, paragraph 2, the Appellant appears to deny the Respondent’s account of events. RJ’s  witness statement dated May 15th 2006 acknowledges that she bit her mother’s finger.

22.	The transcript of the police interview with the Appellant on December 6th in the presence of the Appellant’s solicitor has not been provided in the Tribunal Bundle,  there is also reference in the Tribunal Bundle at page 53 to a statement made by RJ and photographs of the injuries sustained by RJ; none of this    information has been provided  to the  Tribunal .

23.	The Respondent’s original concerns about the Appellant’s suitability to continue as a child minder arose after the Respondent  became aware of the incident on December 5th 2005  which resulted in the police attending at the Appellant’s home and arresting her on suspicion of  assault occasioning actual bodily harm to her daughter, RJ.

Once the Respondent had been aware that the police were investigating a potential assault by a child minder in her own home on a young person the decision by the Respondent to investigate the matter was entirely proportionate and reasonable.   The Respondent chose not to issue a Statutory Suspension  Notice  but instead requested  the Appellant to  agree to a voluntary suspension until January 17th 2006.

24.	The Respondent requested the Appellant to enter into  further  voluntary suspension agreements for  two  periods between January 18th – March 1st 2006 and between March 2nd 2006 – April 13th 2006  but the Appellant refused  to agree because she considered that  once RJ had agreed not to proceed with the allegation of assault against  the Appellant   there was no reason for the Appellant  to be suspended 

25. 	 However the Respondent did not consider that the   matter  was closed  when the police decided  not  to  continue with their  investigation, as the  initial allegation  that the Appellant  had  assaulted  RJ was sufficiently serious to    raise  on going concerns about the Appellant’s suitability  that  the Respondent  wished to investigate  further.

26.	Once the voluntary suspension expired on January 17th 2006 the Appellant was no longer subject to any form of suspension by the Respondent . Ms Cubit in her witness  statement   (Tribunal Bundle page 2006 Paragraph 9) states   “I explained Ofsted’s procedures where there has been a suspension and that it was necessary for an inspector to visit to  record AJ’s account of events of 05 and 06 December 2005.   I stated that the suspension could not be lifted until Ofsted had the opportunity of meeting her”, but this was incorrect as with the lapse of the voluntary suspension on January 17th 2006   no suspension existed to be lifted .

27. 	The Tribunal is concerned that an  employee of the Respondent  was  not able to accurately  explain to the Appellant the correct position. Later in  her witness statement   Ms Cubitt   reiterates  that in  her telephone conversations  with AJ  “I explained that my purpose  for calling  her was to make a date for an interview to assess her suitability  under the National Standards and I made it clear that the suspension  could not be lifted  until an interview  had taken place”  (Tribunal Bundle Page 2007 Paragraph 13). The Tribunal does not  see   how Ms Cubit was in a position to impose such a condition on the Appellant when the voluntary  suspension  had not been renewed.    	

28.	When  the Respondent received written confirmation from the Surrey police in a letter dated February 22nd 2006 that no further action was to be taken against the Appellant the Respondent had to decide  what  action if  any  should now  be taken against the Appellant. The Respondent requested a renewal of the   voluntary suspension at the beginning  of March,  although  it is accepted by the Respondent that the letter was mis-dated and also  referred to  incorrect dates in relation to the new voluntary suspension period proposed. The file had originally been dealt with through the Respondent’s Woking office but was subsequently transferred to the Bristol office who undertook a review of the proceedings and raised  concerns about the lack of management of the file.  The Respondent was also then notified by Surrey Children’s Information Service that the Appellant had requested that her name be reinstated on their list of child minders. The Respondent after reviewing the file then identified that as  the Appellant  had not signed the   voluntary suspension agreements  to cover  any  period of time  after  January 18th  2006  so a  Statutory Suspension Notice  was then  issued .

29.	The letter dated March 13th (the Statutory Suspension Letter) stated that the suspension was to allow the Respondent to assess the suitability of the Appellant to work as a child minder and then went on to state “The reason for Ofsted suspending your childcare service is because you were arrested for assaulting your daughter.”   This statement was incorrect, as the Appellant had been arrested on suspicion of assaulting her daughter and the allegation had subsequently been withdrawn.  This incorrect statement was reiterated in a letter dated March 29th 2006 by the Respondent to the Appellant, who in a letter dated March 30th  2006  quite rightly demanded an apology and confirmation that the statement was withdrawn.

30. 	The Respondent did eventually respond by letter on April 12th 2006 and apologised for writing “causing actual bodily harm.”   The incorrect statement , which was made on two separate occasions understandably did not encourage the Appellant to make contact with the Respondent.  The attitude of the Appellant towards the Respondent by the end of March 2006 was beginning to become hostile, as demonstrated by her letter dated  March 30th 2006 
(Tribunal Bundle Page 56/57)

     “As there is no criminal complaint there is patently no case to answer, I still see no need to discuss anything with you, I have nothing to say to you that will change the material facts and you have consistently refused to answer directly my questions to you.  I remain qualified for registration as I fulfil the requirements laid down by Act of Parliament and anything else you may consider would be subjective and open to legal challenge.  The Act uses the word “may” when granting registration which allows you to make those decisions at the outset but you are obliged to  show that you have reasonable cause in your beliefs.  I therefore challenge you to show that reasonable cause by way of evidence.   Put simply, what evidence do you have ?   
My last comment meant  that what you do is up to you.  I will not resign but I will not co-operate with an investigation that serves no purpose and has no lawful basis since you have failed to follow your own procedures and can therefore not be considered reasonable in jurisprudence.”

31.	 Whilst the Appellant’s frustration at the considerable length of time that had now passed since the original incident in December 2005 was understandable  the Appellant’s continued refusal to even discuss matters with the Respondent was a contributory part of the ongoing delay. 

The Respondent, in their letter dated April 27th 2006, (Tribunal  Bundle Page 197) when explaining the reason why they were refusing to lift the statutory Suspension explained clearly that  although  the Appellant had not been convicted or charged with the assault of her daughter, the Respondent did need to discuss the allegation that had been made and to make an assessment of any potential risk to the children being minded by the Respondent . The Tribunal accepts that this request by the Respondent to discuss the allegation and to make an assessment of risk in relation to the childcare service being offered by the Appellant was reasonable and correct. There may have been discrepancies and procedural inaccuracies by the Respondent following the initial voluntary suspension but these do not negate or extinguish the legitimate concern of the Respondent to investigate the allegations that had been made and their reasonable request to try and conduct an interview with the Appellant to discuss the matter.

32.	The Tribunal in making its finding has followed the approach 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 a reasonable cause to believe that the continued child  minding or day care 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.”

33.	 Tribunal Conclusions 

The Tribunal considers that the original incident was sufficiently serious for the Respondent to  consider that there was a reasonable  cause to believe that the continued provision of child minding might expose one or more of the children to the risk of harm.   The witness statement by PC Cresswell 2661 dated December 6th 2005 (Tribunal Bundle page 28) refers to the Appellant allegedly stating to PC Cresswell “I lost my temper, I’m sorry for what I’ve done.”

34.	Faced with an allegation that a child minder (the Appellant) had lost control of her temper and had assaulted her own daughter and that the police had become involved and had arrested the Appellant, it was appropriate and proportionate for the Respondents to want to investigate the matter further. However, no statutory suspension was in fact issued in December 2005 as the Respondent sought to rely on  a voluntary suspension.  The Respondent then sought unsuccessfully  to gain the agreement of the Appellant to further voluntary extensions. The Respondent  sent the  Appellant  incorrectly  dated  letters and notices  and   told the  Appellant  that   she was subject to a suspension  period when  the voluntary  period had clearly lapsed.  This  muddled approach to the  decision making in this  case  does not reflect  well on  the  Respondent .

35.	The Tribunal has considered whether the lapse of time between the original incident taking place in December 2005 and the issuing of the Statutory Suspension on March 13th 2006 meant that there was no longer a reasonable cause to believe that the continued provision of childminding might expose one or more children to the risk of harm. The Respondent  received  written  confirmation  of the  Police decision  not   to  take any further action  in a letter dated  February 22nd 2006 . Until that  decision was reached it was  understandable  that  the Respondent  considered  that the nature of the allegation  being  investigated  by the  Police was  sufficient for them to   be concerned about the possible   risk of harm to a child if the Appellant continued to  provide  child minding services.  The Tribunal considers that the concern about the Appellant’s alleged behaviour on December 5th and 6th  2005 did  still warrant investigation by the Respondent after the Police dropped their investigation , as the lack of sufficient evidence to enable a criminal prosecution  to proceed did not mean that the Respondent should  automatically consider that the risk of harm to children was erased. The fact that the Police  had been called  to the Appellant’s home and  that  she had been arrested  by the  Police  for allegedly assaulting her own daughter were sufficient grounds for the Respondent to be concerned and to want to investigate the matter further. Therefore the time lapse between the December incident and the   issuing of the statutory notice of suspension was not in the circumstances   unreasonable.  

36.	 The  Appellant  in her  witness statement raised  concerns about the failure  of the Respondent to  provide a “lawful  reason”  for their concerns  about her suitability  to continue as a childminder. (Tribunal Bundle Page 104) The Tribunal   agrees  that  Ms Cubitt  was incorrect in the options she presented  to  the Appellant ( See paragraphs 26 and 27  above).The Tribunal also agrees that the  Appellant was entitled to feel  aggrieved  by the very  brief reason  given in the  letter dated April 21st 2006 from Lena Mead on behalf  of the Respondent   which states  that the continuation of the suspension  was  “ so that we can make further enquiries about  your suitability”. The paucity of  detail in the Respondent’s letter some four months after the initial  incident  which  triggered the  Respondent’s concern causes the  Tribunal real concern; the Appellant should have received the proper  statement explaining why the  Respondent  had on going concerns,  to enable  the  Appellant to respond and if possible  address the issues.
   
37.	In the  Respondent’s  subsequent letter  to the Appellant dated April 27th  2006  the Respondent did  set  out in more detail  why  the Respondent was  refusing to  lift the suspension, in particular  that  the Respondent  still wanted to  discus the  alleged assault  “ we do need to discuss  the allegation  with you  and make an assessment of any potential risk to minded children” . The Tribunal  considers that  this was still  a reasonable  request not withstanding the time that  had elapsed.

38. 	In the subsequent letter dated  May 10th 2006  the Respondent   identified further allegations that had been made including an allegation by the Appellant’s older daughter, JK, that the Appellant had in the past  behaved violently towards JK and  that she had smacked  JK’s own daughter, S.  The Appellant’s daughters, JJ and RJ have both provided witness statements (Tribunal Bundle Pages 243 -249 alleging that the Appellant has in past hit them and also alleging that the Appellant has an anger problem which she cannot control. The Respondent, in the letter dated May 10th  2006  stated that they wanted  to discuss all the allegations  personally with  the Appellant.  

39. 	 The Appellant in an email dated May 11th  2006  (Tribunal Bundle Page 203) denied the allegations and suggested that there were reasons why JK would seek to make such false allegations but refused to discuss them with the Respondent.

40.	The continued refusal by the Appellant to meet the  Respondent to discuss the serious allegation  that was  originally  made by the Appellant’s own daughter and which  have been  reaffirmed by  both of the  Appellant’s  daughters in  witness statements submitted to the Tribunal cannot be ignored.  The Appellant’s   continued refusal to discuss the matter  with the Respondent   resulted in further  investigations   and correspondence  with  the Police and the Appellant’s  children, which ultimately serves to justify the  decision  by the  Respondent to  refuse the Appellant’s  request that the further suspension notice   be lifted.
 
41.	The  continued refusal  of the Appellant to address the concerns of the Respondent is regrettable and undoubtedly places the Respondent in an awkward  position as it may  mean that the Respondent will have  to decide  whether or not to cancel the registration notwithstanding that the Appellant has not provided any explanation, particularly  in respect of  the further allegations (apart from denying their veracity to the Respondent  in an e-mail dated May 11th to Vanessa Redmond)

42. 	This Tribunal would be concerned if there was a suggestion that there should be a further statutory suspension pending more investigations as there must come a point when the investigation process should end and a decision should be reached by the Respondent as to whether or not to apply for formal cancellation of the Appellant’s registration.

 Nevertheless based on all the information available the Tribunal confirms the Chief Inspector’s decision to refuse to lift the extension to the Statutory Suspension for reasons stated above.

This is the unanimous decision of the Tribunal.

Dated    2nd  day of June  2006

Miss H Clarke, Chairman
Mr D Griffiths
Mr A Wilson