Jackson v OFSTED [2006] EWCST 0817(EY) (02 May 2007)

JANET JACKSON

-v-

OFSTED

[2006] 0817.EY

Melanie Lewis Chair
Bez Chatfield
Ray Winn

Introduction

1.	The Appellant, Mrs Jackson, appeals against the decision of Her Majesty's Chief Inspector of Schools (Ofsted) indicated by letter dated 26 September 2006 whereby Ofsted refused to vary, under Section 79F (4) of the Children Act 1989 (CA 1989), the conditions of the Appellant's registration. The issue in this case was that Mrs Jackson wished to care for 4 children under 5 years of age, without condition that she needed an assistant. If an assistant were present, she could care for no more than 5 children under 8 years of age of which 4 could be under 5 years. 

2.	An appeal lies to the Tribunal by virtue of Section 79M of the Children Act 1989, and on appeal, the Tribunal may 

(a)	confirm the taking of any step … or direct that it shall not have, or shall cease to have effect and 

(b)    impose, vary or cancel any condition. 

3.	At the hearing before us, Mr Buley of Counsel appeared on behalf of the Respondent. He called Mrs Lena Mead, Ofsted Area Manager. Mrs Jackson was not represented but was assisted in presenting her case by her brother Mr Jackson who acted as a McKenzie Friend. She called Mrs Walker, Ofsted Inspector, as a witness.

4.	It was agreed at the start of the hearing that there would be a Restricted Reporting Order under Regulation 18 (1) Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002.  This order prohibits the publication, including by electronic means in a written publication  available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any child. Mrs Jackson confirmed that she was happy to be named as the Applicant. The parties agreed that this order should continue indefinitely. The Tribunal agreed with this approach and every child in the family is referred to by an initial.

The Law

5.	Pursuant to S.79B (4) a child minder must comply with Regulations made by the Secretary of State under S.79C. The Regulations are the Day Care and Childminding (National Standards) (England Regulations) 2003 SI 2003/1996. By virtue of Regulation 4 (2), a Registered Person shall meet the requirements of the National Standards and have regard to the supporting criteria that are applicable to the childcare category into which he falls.

6.	The Department for Education and Skills published the National Standards in a document known as the 'National Standards for Under-Eights, Day Care and Childminding’, amended in 2003. This is of particular relevance as the standard we had to consider, 2.2: Childminder: Child Ratios, was amended to allow for greater flexibility. It reads:

7.	
'Childminder: Child Ratios

2.2	The maximum number of children for whom a childminder may care is as follows

•	Six children under 8 years of age;
•	Of these, no more than 3 children may be under 5 years of age;
•	And of these 3, normally no more than one child may be under one.
•	However, a childminder may be registered to care for 2 children under one where they can demonstrate they can meet and reconcile the varying needs of all the children being cared for.
•	Exceptions to these ratios can be made for siblings and to provide continuity of care in certain circumstances approved by OFSTED.
•	Any care provided for children aged 8-14 is not allowed to adversely affect the care provided for children under 8.

2.3	Where a childminder employs an assistant or works with another childminder, the same adult child ratio applies for any additional children. The space available for children on the premises may also affect the numbers for which the provision can be registered.'

8.	We have applied the law as set out in C -v- Ofsted [2002] 087.EY as to the burden of proof which is on the Respondent to a balance of probabilities. Failure to comply with National Standards may make an Appellant unsuitable and in many cases will do so. However, it does not necessarily follow that this will be the case. This is a full merits appeal to the Tribunal. We decide the case at the date of the hearing. We note that the Tribunal said in C: 'We are dealing with the care and welfare of children, and it is only right that post-decision facts should be made available to the Tribunal'. 

The Issues 

9.	Mrs. Jackson’s first position is that she would like her certificate to be changed to allow her to mind 4 children under 5 without an assistant in term time, long-term. In school holidays she would employ an assistant due to the age range of the children in her care, including her own children.

10.	Her second position is that she would wish to operate on this basis until September 2007 when child L leaves her care. .   Because of arrangements whereby children attend at various pre-school establishments, there will only be 4 children under 5 in her care during the hours of 8-9am and 3-4.30 pm three days a week,

11.	Ofsted do not accept that this case falls under ‘the exceptions permitted’ by the National Standards. This case could not come within 'continuity of care' because Mrs Jackson had taken on child K before child L had left. The objection panel refused the application on 21 September 2006 for that reason. The panel had taken into account that the National Standards represented a 'baseline of quality below which no provider will fall' and the decision of the Tribunal in Rosemary Whyatt -v- Ofsted [2002] 073.EY and that unless the Appellant came under one of the exceptions in the National Standards, it would not be appropriate to agree to her request for a variation.

The Facts

12.	Mr Buley helpfully clarified at the start of the case that it was not the Ofsted’s case that Mrs Jackson was anything other than a very competent and professional childminder. He accepted that she had attempted to bring her potential change of circumstances to Ofsted’s attention namely that child L was to leave her care as her family were moving and she wished to take on child K for a short changeover period. It was accepted that there was no intention to deceive when on 13 March 2006, she took on the care of child K.  It was accepted that Mrs Jackson was supported by her parents, all of whom had written in support of the care that she gave their children, and confirming that they were fully appraised of the facts behind this appeal and that they supported her application to care for 4 children under 5 years. Mrs Jackson is also supported by her local childminding co-ordinator. 

13.	Mrs. Jackson had a different professional career before leaving to have her own family, where she held positions of responsibility. That may have assisted her in presenting her case both to Ofsted, and us, in a clear and objective way despite her strong views as to Ofsted’s handling of this case. In 2002 she qualified as a primary school teacher but then decided to work as a child minder as it suits her own family commitments better.  

14.	The facts in this case were largely not in dispute although the sequence of events is important.  On 4 March 2006 Mrs Jackson wrote to Ofsted stating that for a short period she would like to have her conditions varied to allow her to care for 4 children under 5. She had unexpectedly been asked to care for a 9-month-old child K, full time, beginning on 13 March. She knew child L was moving and would be leaving her care. It seemed like a good business opportunity as full time children are not so common and it would allow her to keep a consistent income. Elsewhere in her written evidence, Mrs Jackson set out in detail that this was a surprise opportunity, which came to her unexpectedly.  She quickly formed a very good relationship with K's parents. K's mother was due to return to work shortly and needed an immediate response. 

15.	In that first letter, Mrs Jackson set out her qualifications and the practical arrangements she intended to make in order to cover what she believed would be a short-term period. It is unfortunate that Ofsted never received that letter. Having telephoned Ofsted and been told that they had no record of her letter, Mrs Jackson sent a chasing letter on 14 March 2006. It is accepted that Mrs Jackson has acted openly. In that letter she said that she had already taken on the care of K the previous day.

16.	Unfortunately Ofsted’s reply was an undated, standard letter requesting further information and an action plan as to how she intended to meet the needs of the children. That does not fit with Ofsted’s position that Mrs. Jackson should not have taken on child K in breach of her conditions. When she gave evidence Mrs. Mead very fairly acknowledged that Mrs. Jackson was given “mixed messages”. By letter dated 19 March 2006, Mrs Jackson returned that information. She again repeated that she was looking after child K as his mother had, by necessity, returned to work. She thought that as long as she applied for a variation, as quickly as possible, the best thing she could do for the family was to begin his care. With regard to child L, the family had an anticipated completion date. She asked Ofsted to visit so that she could demonstrate her competence. Mrs Jackson sent a further chasing letter on 15 May 2006

17.	By letter, dated 18 May 2006, Mrs. Jackson then changed her position. There was now a new situation because child L's parents could not find a place at the new local pre-school. Whilst this would involve considerable travel they wished to maintain the arrangement whereby their child spent time in their old area in pre-school and time with Mrs Jackson. That was to last until Child L went to school full time in September 2007, so that is the situation we must consider.

18.	Mrs Jackson's request did not meet with the response she had hoped for or anticipated.  On 3 April 2006, Ofsted sent her a formal warning letter. Issues of communication and resolution can be best understood by the fact that Ofsted have a number of different departments. At this point in the history Mrs Jackson had not appreciated this. On 11 April 2006 she wrote to Ms Carr, Compliance Investigation and Enforcement Team, investigating the possibility of employing an assistant. By letter dated 27 May she confirmed that she wouldn't operate without an assistant. 

19.	On 26 April 2006, Ms. Carr wrote the first personalised letter from an officer at Ofsted. She apologised if Mrs. Jackson, who believed she had fully set out her position, took the formal warning letter as insulting.  

20.	Mrs. Jackson had been asking for a visit so that her home and the arrangements she had made could be inspected. She had called Ms. Walker as a witness because there were factual points in the report of her visit on 26 May 2006 that she wished to challenge but these were conceded and not material. Mrs Walker agreed that on her unannounced visit she and her colleague had noted no concerns about the children and indeed positively reported that they were all happily occupied on tasks, with the assistant, whilst they spoke to Mrs Jackson. What emerged was that Mrs Walker works from home, as do all Ofsted inspectors. Prior to the visit she recalled that she had been aware that this was an application for a variation but her sole task was to inspect to see if standards were breached. She was, therefore, not aware of the correspondence that had been passing between Mrs Jackson and Ofsted although the notes record that it was Mrs Jackson who brought her up to date with what had been happening and what it was that she wanted. 

21.	On 31 May 2006 Mrs Jackson agreed that she would not child mind without an assistant. It was only on that one point that Mr Buley made any real criticism of Mrs Jackson. On 2 June 2006, Ms. Denson, Team Manager, and a colleague visited. It appeared from the notes that they had gone prepared to look at ways for resolving the situation by the use of an assistant. However, that went off course when they found Mrs. Jackson working without an assistant in breach of her conditions and that:  a caution had been issued on 26 May 2006. Mrs Jackson said that she had told Ms. Carr that she was working without an assistant but Ms. Denson, who works in a different department, felt that must be a misunderstanding. Mrs Jackson's point is and remains that by then the case had become a ‘continuity of care’ situation. The situation had evolved that she had either to choose between child K and child L, which she did not think was in their best interests and  would not have been supported or wanted by the respective families who depended upon her to care for their children so that they could work. 

22.	The notes again confirm that there was no question of Mrs Jackson's ability to care, as she was well organised and resourced. It was noted that the children were chatty, engrossed in play activities and stimulated. They also record that the childminder had kept Ofsted informed and acknowledge that they had not been clear in their messages. There has never been any question of prosecution in this case.  Mrs Jackson was issued with a variation of her conditions allowing her 4 children under 5 providing an assistant was present.

23.	On 3 July 2006 Ofsted formally refused Mrs Jackson's application to vary her conditions and gave reasons, although they were not actually given in relation to the circumstances she had put forward. By letter dated 17 July 2006, Miss Carr apologised for Ofsted correspondence, which erroneously referred to a complaint being made against Mrs. Jackson. This was not the case. 

24.	On 4 August 2006, Mrs Jackson made formal objection. She again set out the arrangements she intended to make. She set out her case in relation to an assistant, which still holds. Whilst she did find the extra pair of hands helpful at times she did not always find an assistant useful. In essence she was well-organised and felt happier working on her own as she was not a good delegator or man manager. She did however give examples of where she had employed an assistant for the day, such as a museum outing. She would employ an assistant during school holidays, not least because her own children who are  older and at home, but because it would not be possible to care for that number and age range of children. It was clear the Objection panel on 21 September 2006 focussed on the issue of continuity of care for K, rather than considering an argument whereby continuity could apply to L.

25.	In her statement and in oral evidence, Mrs Mead clarified the approach of Ofsted. This could not be a 'continuity of care' case because Mrs Jackson had brought the position on by taking on child K in breach of her conditions. We queried how Ofsted dealt with 'changeover situations' such as was initially the case here. She was not really able to assist us with how they were dealt with, either in her area or more locally. The Inspectors could deal with requests within a day or two, for example where a parent is admitted to hospital or similar emergency. The target time was 2 weeks but she agreed that other cases, particularly if there was a child protection element, took priority. She agreed it was regrettable that it had taken some weeks before an inspector could visit. In her evidence, Mrs Mead emphasised that the way round this was for Mrs Jackson to employ an assistant. 

26.	When Mrs Jackson gave evidence she read out her written statement. This amplified all the reasons she had previously put before the Tribunal. 

Submissions

27.	Mrs Jackson emphasised that at all times she has acted in good faith. Moreover, she put the children's interests first and had acted at the request and with the support of all the children's families for whom she minded. It was the quality of her care that she considered should be looked at. Each case had to be looked at on its own facts otherwise there was no point in allowing exceptions. If necessary she would continue to employ an assistant. It was difficult to cover just a few hours a week and she was aware that her current assistant was likely to have activities of her own to pursue later in the year. In the holidays she had a number of assistants that she could employ, either because they were teachers or students. 

28.	Mr Buley submitted that the National Standards allowed only very limited exceptions. The case could not be about either criticism of Mrs Jackson or Ofsted, whom he agreed could have been more case sensitive in their response. He did not challenge Mrs Jackson's views as to whether she needed an assistant in term time. He was content for that to remain as a genuine disagreement.  However, the National Standards were a minimum baseline. The examples given in the guidance suggested that 3-6 months might be the relevant period, so any exceptions would be time limited.  Therefore, Mrs Jackson's request was at the outer limit. In March 2006 when the request had been made initially, no continuity of care argument could apply. When the changed application was made in May 2006, K had not been in place long. Mrs Jackson in continuing to employ an assistant had met the current situation and had complied with the minimum standards. She had put forward no real evidence that the current assistant would not remain in position or of any real difficulty in employing the assistant. She might not like it but that was not sufficient reason. 

Conclusions and Reasons

29.	We have decided to allow this appeal. It is a case which turns on its own facts. However, we have taken into account the purpose of the National Guidelines, which is to provide a baseline standard to promote the welfare of minded children.  The Guidelines were amended in 2003 to give some flexibility to Standard 2 as to the numbers of children that can be minded, possibly anticipating the Childcare Act 2006, which guarantees greater accessibility to childcare for working parents. We have also taken in account the Guidance but the examples given are just that. 

30.	In deciding this case we find it relevant to examine how the current situation arose. Ofsted accepts that Mrs. Jackson has acted in good faith at all times. We accept her concern that Ofsted needs to be able to respond quickly to requests and give clear messages even if they adhere strictly to being a regulatory not advisory body. The case of course must not be decided on the merits or otherwise of the parties. 

31.	This appeal raises no issues about Mrs Jackson's competence as a child minder. We have evidence of three unannounced visits: two from Ofsted and one form her local co-ordinator. All three made positive observations. She is a qualified teacher, so we accept has training and experience of managing larger groups of children over and above that of other child minders.  We are satisfied that at all times she has put forward proposals as to how she would care for 4 children under 5 and that those proposals are in place. No parent has exercised their choice to remove their child.   We are satisfied that Mrs. Jackson needs to earn her living but she is a dedicated child minder who views the welfare of the children in her care as being paramount. That includes issues of safety.  She will employ an assistant in the school holidays and we accept on days when normal routines do not operate, for example when the children are on a special activity.   The issue is, therefore, a very narrow one.

32	We accept as did Mrs Jackson that at the point she took child K into her care on 13 March 2006, there was no argument for continuity of care. It is highly unfortunate that Mrs. Jackson’s letter of 4 March 2006 went missing and of greater concern that Ofsted were not able to respond more quickly to Mrs Jackson's initial request once the problem was identified. Even then it took Ofsted some weeks to respond and even then they were concerned with issues of compliance rather than specifically addressing the request and the supporting evidence. That situation was not helpful to Mrs. Jackson, the children in her care or their parents.

33.	That deals with the first case scenario. The second case scenario emerged after 18 May 2006 when Mrs Jackson sought to care for 4 children under 5 on a longer term basis. We conclude that in September 2005 on the second case scenario a ‘continuity of care’ case could be made out for both children; child L and child K.  

34.	The National Standards in this instance do allow for exceptions to be made. We do not accept the rigid interpretation Ofsted inspectors and the Objections panel placed upon the National Standards. Each case must be investigated on its own facts. It seems to us the exceptions are loosely worded and could apply to continuity of care of any child in the care of the childminder. Child L had been with her since January 2004 and even by May 2006 child K, we accept, was settled. He was only nine months old at placement and this was his first time placed away from his parents.  By the time the Objections panel met in September 2006, child K had been placed with Mrs Jackson for 4 months, a considerable part of his young life. 

35	The Guidance to the National Standards appears to be wrong, because it states that requests for variation will be time limited involving siblings and continuity of care for children from the same family, which would almost inevitably refer to siblings or at least children in the same household. It is not what is stated in the National Standards themselves. We were given no facts and figures as to how often variations for this reason are made or examples of what is accepted as continuity of care within this area or nationwide. We understand that even the most competent of childminders may not be able to stretch themselves sufficiently over a number of children. We found the factors to be considered that are listed in the Guidance helpful.  These include the length of time the children have been with the minder, the home, the equipment, the routines, and more particularly contingency arrangements. We conclude that these are the factors upon which children’s welfare should focus; not a rigid interpretation of ‘continuity of care’, which we find the National Standards allows us to interpret with some flexibility.  .

36	We must look at the situation as of today. Time has moved on. At this point in time, K has now been placed with Mrs Jackson for a year. The child L has been with her since January 2004 when she was 9 months old. In September 2007 she will go to school and leave Mrs Jackson. Providing appropriate arrangements are made we cannot see that it would be in either of those children's interests to move. Neither is it what their parents would wish. We have considered Mr Buley's strong argument that the way around this is for Mrs Jackson to continue to employ an assistant. We accept that  she cannot be allowed to take advantage of her own breach of the Regulations. However, the amount of hours in this case is extremely limited. If the hours had been more, we might have on balance found that an assistant was required. However, given the very narrow amount of hours we are not satisfied that Ofsted have made out their case that the variation should only be granted on condition that an assistant is employed. This is case specific. Mrs Jackson referred to a number of other childminders who had had that variation. Ofsted challenged the accuracy of that information and the facts may be very different.

37	We reject Mrs Jackson's argument that this should be a general variation. It is case specific and relates to the children currently in her care. The arrangements and regime that she can currently set up may be very different with different children. 

38.	It is regrettable that Ofsted’s regulatory role seems to have prevented at an early stage the initiation of a constructive exploration of possible solutions to this problem. It would be hoped that Ofsted could look actively at more speedy response times. Whilst standardised letters have their place, it would have been helpful if Mrs Jackson who wrote very clear letters could have had a personalised response. We were concerned that Ms. Walker had not read the full correspondence. We suggest that Ofsted inspectors who work from home should have access to all the written information by computer link. They should ensure that they are fully informed on all relevant issues before setting out on an inspection visit. On this occasion this led to increased frustration on the part of Mrs Jackson, albeit, her professionalism allowed her to continue to try to co-operate. We are concerned that on other occasions it could allow the inspector in different circumstances to be misled, possibly deliberately.

39.	This is the unanimous decision of the Tribunal

ORDER

The Appeal is allowed

The registration dated 18 October 2006 is amended to show that until 5 September 2007 the childminder may care for no more than 5 children under 8 years; of these, not more than 4 may be under 5 years, and of these, not more than 1 may be under 1 year at any one time save in school holiday time when an assistant will be present.

Melanie Lewis Chair
Bez Chatfield
Ray Winn