[2008] EWCST 1274(PC) (5 December 2008)

SS

-v-

Secretary of State

[2008] 1274 PC 
[2008] 1275 PVA

-Before-

Mrs Rosemary Hughes
(Nominated Chairman)
Mr Graham Harper
Mrs Sallie Prewett

D E C I S I O N

Heard on 25 and 26 November 2008 at the Birmingham Civil Justice Centre

Representation

The Appellant was represented by Mr Ian Wise of Counsel instructed by Bailey Wright & Co,. Solicitors of Birmingham.

The Respondent was represented by Ms Samantha Broadfoot of Counsel instructed by Treasury Solicitors.

Appeal
SS appeals against the two decisions of the Respondent dated 3 January 2008 confirming the inclusion of her name on the Protection of Children Act list (PoCA List) and also confirming her name on the Protection of Vulnerable Adults list (PoVA List).  She was listed also under List 99, for which there is no separate right of appeal.

Restricted Reporting Order

This was made under Regulation18 (1) at a preliminary hearing on 3 July 2008. It was the panel’s intention to continue this at the conclusion of the hearing and no application was made from either Counsel to the contrary.  We therefore publish this decision under Regulation 27 in an anonymised form. 

Preliminary Matters
Mr Wise told us at the beginning of the hearing that most of the evidence of the witnesses due to be called for the Respondent had been agreed between the parties apart from a small part of the evidence of Paula Hunt.  Janine Turner would also be called for the Respondent.  The Appellant had accepted the finding of misconduct and it was therefore possible to release four of the Respondent’s witnesses.

The Evidence on behalf of the Respondent

1.	On 25 November 2008, Ms Hunt confirmed her written statement of 24 October 2006.  She was an Ofsted Inspector called to investigate a complaint on 1 August 2006 at the premises of a Childcare Nursery run by the Appellant at her home in Winson Green. The hazards and poor condition of the premises were noted and the Appellant agreed to close the premises while building and other works were completed.  Following a second visit on 22 August when it did not appear that any action had been taken to improve the premises, Ms Hunt called again on 1 September.
2.	On that occasion, Ms Hunt was admitted to the premises by a young child who was not supervised and it was several minutes before SS appeared despite loud shouting by Ms Hunt to summon an adult.  The premises were still in an unsafe condition for children to be present and there was insufficient staff cover.  A vehicle being used to transport the children was not properly insured and was in an unsuitable condition for such transportation.  Concern was such that Ofsted suspended SS’s registration on 1 September.
3.	Ofsted monitoring visits on 18 and 19 September noted that children were still being cared for in breach of the suspension order.  On the 19 September visit, SS was seen to transport eight children in her car, with a number of adults, without having sufficient car seats or restraints. (New laws concerning child car seats had come into operation on 18 September).
4.	During a further monitoring visit by Ms Hunt on 21 September, SS was caring for two children who she said were relatives’ children.  In fact subsequent enquiries revealed that the relationship was too remote to qualify for unregistered care.  Ms Hunt was concerned that both children sustained separate minor injuries during her visit and she did not consider that SS had dealt appropriately with the children. She told us that SS had shown no concern and did not comfort either child as might be expected. She described SS as ‘disaffected’ with limited reactions to the children.  This comment was disputed by SS in her evidence; she told us that she took one child on her lap but was trying to talk to Ms Hunt at the same time.  Ms Hunt agreed that her visit would have been stressful for SS. 
5.	In view of the number and seriousness of the breaches of the suspension order, Ofsted then sought emergency cancellation of SS’s registration. After a three day hearing, the District Judge (Magistrates’ Court) ordered the cancellation so that children would be safeguarded.  The judgement stated that SS ‘had consistently failed to have regard for the safety of children in her care and taken a cavalier approach towards them. She had blatantly disregarded the suspension imposed by Ofsted and although her intention may have been to assist parents and she had tried her best to provide for the children, it had not been good enough.  Any child being looked after by her was likely to suffer significant harm’.
6.	Two Ofsted Inspectors visited SS on 26 March 2007.  This was an unannounced visit to check that SS was not in breach of the cancellation order.  It was alleged that SS was providing day care for children for more than the two hours permitted by law as an unregistered child minder.  SS was interviewed at length by Ofsted Managers on 11 May 2007.  During the interview she explained that she was helping out parents by looking after children after school until the parents could collect them.  She was aware of the two hour rule that had been explained to her after the cancellation hearing but she had understood it to refer to two hours at her premises.  She had not advertised for these children as she already knew the parents and was there to help them.
7.	We understood that SS was not prosecuted in respect of the situation found on 26 March.  She received a caution. However, Ofsted made a reference to the Department for Children Schools and Families on 30 May 2007 and SS was provisionally included on the PoCA and PoVA list and List 99 on 13 July 2007.  That inclusion was confirmed on 3 January 2008.
8.	Further evidence was given on 26 November 2008 by Jennifer Turner, Ofsted Inspector.  She described the transportation of children in unsuitable circumstances that she had witnessed on one of her visits to SS, emphasising the disregard for the law shown by SS.  When cross-examined by Mr Wise, she stated her opinion that SS was ‘not suitable to look after children in a nursery environment.’ That was the only environment in which she had met SS.
Evidence heard for the Appellant

9.	SS had submitted a written statement and she also gave oral evidence.  She was concerned to emphasise her past history of working with and teaching both children and adults in conventional educational establishments and in the Sikh Temple where she worshipped. She was highly qualified for teaching and had worked in a number of special schools. She also had training in teaching English as a Foreign Language and had experience in teaching in the Gurdwara (Supplementary School).  SS had recently completed training to be able to tutor work with patients with long term illnesses under the Expert Patient Programme.  Her voluntary work was extensive with much of it being carried out through the Temple and Gurdwara.
10.	SS had been working on a voluntary basis since 1999 to develop the Satnam Training and Education Project (STEP) based at her home.  She set up a community project to support ethnic, minority communities, especially the Sikh Asian families. Initially this involved adult education but SS started the nursery provision to help those families unable to find other child care.  She applied for nursery registration and the initial Ofsted visit was satisfactory in March 2006.
11.	SS fully admitted to us that she had failed in running the nursery properly.  She had wanted to refurbish the premises in the summer of 2006 but had not made adequate provision for the children while the work was being done.  She ‘overreached herself’ and felt that more support could have been given by the authorities.  The problem that arose with children continuing to attend after her registration had been suspended happened because she did not want to let down the parents who relied on her.  She knew now that she should have been firm and said ‘No’; she had learnt many lessons from the whole experience and realised the importance of observing the rules and regulations.  SS had never run her own establishment before and she thought it unlikely that she would ever want to run a nursery again.  She was now nearly 60 years old and would probably want to use her premises for the adult education in some form.
12.	In relation to the 2007 event when Ofsted Inspectors found she was providing out of school care, SS said that she had understood that the two hour limitation period only operated for the time the children were at her own premises.  She agreed that it would have been sensible to check with Ofsted as to the exact interpretation of the regulations but again she was only looking after those children as a favour to parents she already knew in order to help them out at a difficult time of the day.  Sometimes the two hours would be exceeded when she picked a child up from school first or when parents were late collecting a child because of heavy traffic.
13.	Mr Bahadar Singh gave evidence as to SS’s character, having known her for more than 15 years as a colleague in the Local Education Authority and in relation to the Gurdwara.  He is the oldest member of the congregation and preaches in the Temple.  He told us of SS’s commitment to the Sikh Temple with near daily attendance.  SS had taught adults and children of all ages at the Temple but could not now teach the children but only be present in a supervisory role.  Mr Singh knew that SS found it difficult to refuse help to those in need and she would overreach her responsibilities.  He knew of no complaints or concern about her care for children in all the years he had known her and he did not regard her as a risk to children or adults in the Temple.
14.	Mrs Ryatt told us that she was an experienced and qualified teacher as well as a lay magistrate.  She had known SS as a teaching colleague in 1989 and in recent times more as a friend when she helped SS with voluntary work in the Gurdwara. Mrs Ryatt described how the children ‘flocked to SS as to a Pied Piper’.  She had known that SS was trying to run a nursery in 2006 and thought that parents would have overwhelmed her with requests for child care because they knew and trusted her.  Mrs Ryatt had never been aware of any complaints about SS during the time she had known her.
15.	Dr and Mrs Earle both gave evidence on behalf of the Appellant having known her for about 15 years.  Their knowledge of SS came about through inter-faith activities and particularly through their involvement with the Gurdwara teaching programme including Youth Camps and activities.  They emphasised the vocation that SS had with her dedication and commitment to her work and teaching.  Mrs Earle described SS as ‘the backbone’ of the Gurdwara – everyone trusted her and the children called her ‘Auntie’.  She could understand how SS had made mistakes in running the nursery but her motives would always be good in trying to help the community.  Dr Earle agreed that SS had no experience of running a nursery and would have found the informality different to her organised and structured activities in the Gurdwara.  He was clear that SS would be suitable to work with children in a properly managed situation.
16.	The findings of the Tribunal on the evidence.
a)	We concurred with the finding of the District Judge that SS was guilty of mlsconduct which harmed a child or placed a child at risk of harm; 
b)	With regard to the incident when children were hurt and, in the Ofsted Inspector’s opinion, SS did not provide sufficient comfort, we considered her reaction to be reasonable in such stressful circumstances.  SS  was being distracted by needing to talk to the Inspector and with hindsight it might have been better for someone else to be supervising the children;
c)	 With regard to the 2007 two hour child daycare, we do not find these events to be critical in triggering the subsequent reference for listing.  SS was not prosecuted for the offence and indeed we found her explanation of the interpretation of the two hour rule to be entirely credible, if naïve;
d)	Overall, we found SS to be a credible witness.  She had been naïve in her efforts to run the nursery.  Her inability to refuse childcare to parents after her registration had been suspended demonstrated a weakness in her character that would not matter in voluntary situations but could not be tolerated in a regulated scheme;
e)	    We were very impressed by the character witnesses who spoke for SS.  They had all know her for a long time and had nothing but praise for her work with adults and children and her vocation within the Temple.

The Law 
The PoCA appeal is brought under s. 4 (3) of the Protection of Children Act 1999 and states:
‘If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely –
a.	That the individual was guilty of misconduct (whether or not in the course of his duties) which harmed a child or placed a child at risk of harm; and
b.	That the individual is unsuitable to work with children,
the Tribunal shall allow the appeal or determine the issue in the individual’s favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual’s inclusion in the list.’
The burden of proof rests with the Secretary of State to satisfy to the civil standard both that the Appellant was guilty of misconduct that harmed a child or placed a child at risk of harm, and that he is unsuitable to work with children.
The PoVA appeal is brought under s.86 (3) of the Care Standards Act 2000 and reads in similar terms substituting ‘vulnerable adult’ for ‘child.‘

In respect of the allegation that in March 2007 SS provided more than two hours unregistered childcare, the relevant law is contained in section 79A of the Care Standards Act 2000.  It begins by defining ‘acting as a child minder’ as meaning ‘looking after one or more children under the age of eight on domestic premises for reward.’  The Section later excludes ‘a person who acts as a child minder, or provides day care on any premises, unless the periods, in any day which he spends looking after children or (as the case may be) during which the children are looked after on the premises exceeds two hours’.

Conclusions
A.	In her summing up, Ms Broadfoot urged the Tribunal not to be distracted from the seriousness of SS’s misconduct by her admissions.  She described three areas of concern in relation to the appeal i.e. demonstrating SS’s ‘unsuitability to work with children’:
a.	The regulatory issues that had shown a lack of understanding of the risks being undertaken.
b.	The fact that SS had continued to child mind after her registration had been suspended showing at best a lack of insight and understanding and at worst a contempt for the rules.
c.	The provision of unregistered child care, allegedly for more than two hours in March 2007.  This again demonstrated a lack of insight and a negligent failure to check with the authorities.

B.	Taking these concerns in order, we were as disturbed as the Ofsted Inspectors had been to read of the condition of the premises and the lack of supervision found on visits during August and September 2006.  We agreed absolutely with the findings of the District Judge and the inevitable cancellation of SS’s registration in November 2006.  In our view that was a correct and proportional action to have been taken by the authorities but we would stress that it included consideration of the childcare provided during suspension. SS was clearly misguided and weak in her continuing efforts to help parents but we considered those efforts to be born out of naivety rather than a deliberate contempt for the rules.
C.	Looking at the March 2007 events, again we did not consider that there was a deliberate attempt to flout the rules. Clearly SS should have checked with the authorities but there was no harm or risk of harm to the children; it was a technical offence that was not even prosecuted as might have been expected had there been serious concerns about SS’s actions.
D.	Nevertheless, the March 2007 events appear to have been the trigger for the provisional listing and then final inclusion of SS on the PoCA list so that we now have to consider whether or not she is ‘unsuitable to work with children’ in the context of this appeal.
E.	As stated above, we have no illusions about SS’s suitability to run a nursery provision.  She does not have the business acumen as is well evidenced by the findings of the Ofsted Inspectors.  However, now that her registration as a childminder has been cancelled by the Court, she would not be able to provide such care in any event without applying for fresh registration and we doubt very much that it would be granted.
F.	We heard no evidence at all that SS posed a risk to children in any of the other settings in which she had worked either as an employee or voluntarily.  On the contrary, we heard glowing accounts of her work with children and adults in the Sikh Temple and going back over a career that spanned thirty years in teaching with no complaints or concerns registered about her at all.
G.	In our view, the PoCA listing in January 2008 was a blunt instrument, a sledge-hammer that took no account of SS’s career and the particular way in which her work with children and adults had developed in the Temple and Gurdwara context.  The character witnesses who spoke for her were unswerving in their appreciation for her work.  The nursery project was a disaster but we cannot agree that SS is ‘unsuitable to work with children’; putting her on the PoCA list was a disproportionate response to her actions.  She herself stressed that she had learnt many lessons and regretted what happened with the nursery.  We are confident that she would not embark on a similar course again and therefore determine to allow the appeal and direct the removal of her name from the PoCA list and the PoVA list.  In these circumstances the listing under List 99 falls away.

Accordingly it is our unanimous decision that both appeals should be allowed together with the appeal against List 99.

(Signed)

Rosemary Hughes
(Nominated Chairman)
Graham Harper	
Sallie Prewett

Date:      5 December 2008