Best Friends Private Day Nursery Ltd v OFSTED [2009] UKFTT 1 (HESC) (13 January 2009)

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First-tier Tribunal (Health Education and Social Care Chamber)

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URL: http://www.bailii.org/uk/cases/UKFTT/HESC/2009/1.html
Cite as: [2009] UKFTT 1 (HESC)

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January 2009)

THE TRIBUNAL SERVICE

Case [2008] 1247.EY

CARE STANDARDS

Between:

BEST FRIENDS PRIVATE DAY NURSERY LTD

Appellant

-and-

Ofsted

Respondent

Before:

Mrs Carolyn Singleton (First Tier Tribunal Judge)

Mrs. Pat McLoughlin

Mr. John Hutchinson

DECISION

Heard at Manchester Civil Justice Centre on 3^rd, 4^th, 6^th and 7^th November 2008

Representation

The Appellant appeared in person in the form of Mr. David Grant who owns a 75% share in the Appellant company. The Respondent was represented by Ms. Leventhal of counsel.

Burden of Proof

The burden of proof lies with the Respondent.

Standard of Proof

The standard of proof is "on the balance of probabilities."

Background to the case

Best Friends Nursery Limited ("BFNL") is the registered person under the Childcare Act 2006. However it was accepted that since late 2001 and early 2002 Mr. Grant had been the only person in control of the Appellant Company and, therefore, of the Nursery itself. For the purposes of the legislation and, therefore, this appeal, Mr. Grant is the "nominated individual".

On 9^th January 2008, the Respondent issued a decision to cancel the Appellant's registration on the Early Years Register and both parts of the General Childcare Register maintained by the Respondent under Part 3 of the Childcare Act ("the 2006 Act"). That cancellation decision was made under Section 79(1)(b) of the Children Act 1989 on the basis that Mr. Grant no longer complied with the requirements of Part XA of the 1989 Act, the Day Care and Child Minding (National Standards) (England) Regulations 2003 and the National Standards made under them and that, therefore, he had ceased to be qualified for registration for providing day care on those premises (the Nursery) under s.79B(4) of the 1989 Act.

This cancellation notice followed the issue of a notice of intention to cancel dated 15^th October 2007 which raised 24 issues, and following an oral hearing before an Ofsted Objection Panel on 4^th January 2008. The notice of the decision to cancel states:

"…The panel considered that you consistently fail to comply with the necessary requirements and the panel are of the opinion that you are unable to maintain compliance with the national standards over a sustained period of time. This is evidenced by three successive inadequate inspection judgements, on 9 October 2006, 8 March 2007 and 4 September 2007, detailed in the notice of intention, each of which has resulted in Ofsted taking enforcement action.

………Based on all the information available to the panel, they were of the opinion that you do not meet the requirements of the national standards, In particular, you have failed to ensure that day care is consistently provided in a safe and suitable environment, you have failed to recognise potential risks to children and you have not complied with the relevant Regulations and National Standards. Ofsted are of the opinion that you are no longer qualified for registration as a day care provider."

Mr. Grant appealed under s. 79M of the 1989 Act on 21^st February 2008.

With effect from 1/09/2008 the 1989 Act provisions were replaced by Part 3 of the 2006 Act. Under transitional provisions (the Childcare Act 2006 (Commencement No. 5 and Savings and Transitional Provisions Order 2008, Schedule 2, para 18)an appeal under S.79M made, as this appeal is, before the transfer date (1/09/08) is to be treated as an appeal under s.74 of the 2006 Act, as though it were an appeal against a decision to cancel taken under the 2006 Act.

Under s. 74, on an appeal against cancellation, the Tribunal must either confirm cancellation or direct that it shall not have effect. If directing that the cancellation shall not have effect, the Tribunal may impose conditions on the registration of the person concerned, or vary or remove any condition previously imposed on his registration.

Evidence for the Respondent

Simon Hutchings is Operations Manager for Ofsted and has been so since April 2008. Prior to this he was a Field Area Manager for Ofsted. He provided two statements which appear at tab 6 and tab 7 of the bundle. As Area Manager since 2006, his Inspectors have undertaken inspections of the BFNL and he has been the decision maker in respect of the outcomes of those inspections. He gave the Tribunal an overview of the history relating to the inspections of BNFL culminating in an inadequate outcome in 10/06, 3/07 and 4/09/07. It was his decision to issue a notice of intention to cancel the Appellant's registration on 15/10/07.

Following the receipt of Mr. Grant's letter objecting to the intention to cancel, Mr. Hutchings sat on the Objection Panel which was heard on 4^th January 2008. Notes of that hearing appear at page 370 of the bundle. Mr. Grant had raised a number of objections to the 24 issues raised in the notice of intention to cancel. Some of those objections were accepted by the panel but concerns remained in that Mr. Grant had failed to demonstrate how he could maintain national standards given that he had previously met issues identified at inspections on other occasions but had been unable to maintain the required standards once monitoring visits had ceased.

Mr. Hutchings told the Tribunal that, having regard to all the material available, he took the view that Mr. Grant's registration should be cancelled. This decision was based on 3 inadequate inspections and a history of consistent failure to meet National Standards. His view was that Mr. Grant only improved whilst Ofsted monitored regularly and that the nursery was not a viable provision.

A further monitoring visit took place in March 2008. Nine actions relating to National Standards were raised. On 29/04/08 another inspection was carried out, the outcome of which was inadequate and 6 compliance notices were issued. On 9/06/08 a monitoring visit took place, followed by a case review on 12/06/08. A monitoring visit took place in July and then further visits on 16/10/08, 21/10/08 and 28/10/08.

Whilst some improvement in meeting National Standards was acknowledged, Mr. Hutchins' view remained the same. Mr. Grant had been unable to show that improvements could be maintained and the registration should be cancelled.

He confirmed that on 21/10/08, Ofsted had received applications from Victoria and Rebecca Taylor to be the "registered persons" in respect of the nursery and an application from Leanne Devlin on 27/10/08 to be the manager. They were being processed and, whilst efforts would be made to deal with them as quickly as possible, Ofsted have up to 6 months to register.

He confirmed to the Tribunal that Ofsted had never received a CRB check in respect of Mr. Grant. He had been deemed to be suitable when Ofsted took over responsibility in 2001 from the Local Authority in accordance with policy at the time. He said that no PNC checks had been done on Mr. Grant in the six years since 2001.

As to the availability of alternative childcare provision in the area, Mr. Hutchings' understanding was that nursery places were readily available.

Shirley Monks-Meagher is a Childcare Inspector for Ofsted. Her statement is at page 57 of the bundle. Her involvement with the nursery had been an inspection in 9/10/06 and two monitoring visits in December 06 and April 08. Her inspection report for October 06 is at page 229 of the bundle. The outcome of this inspection was that the quality and standards of care at the nursery were inadequate, such that compliance notices were issued relating to NS 6, 7 and 14. These contained 15 actions which were required to be taken by Mr. Grant to meet National Standards and mandatory requirements in the Regulations. Issues were raised concerning, inter alia, a hole in the ceiling with overflowing tubs beneath it to catch water, dirty toilets, no hot water, blocked fire exits, hazards in the porch area and no indication that the gas and electrical appliances had been checked. In addition, there were no written procedures as to what should be done in the event of a child not being collected and information relating to child protection was very basic, including the absence of a written complaints procedure, which is a mandatory requirement. Overall, Mrs. Monks-Meagher's opinion was that there were serious causes for concern.

Mrs. Monks-Meagher visited the nursery again on 4/12/06, by which time 12 of the 15 actions had been addressed by Mr. Grant such that the relevant National Standards were met. By a further visit on 18/12/06 the remaining 3 actions had been dealt with and National Standards were met.

Mrs. Monks-Meagher had no further involvement until April 2008 when she carried out another inspection of the nursery. Again, the overall standard of care was found to be inadequate. Her report appears at page 389 of the bundle. This inspection post dates the notice that had been issued to cancel Mr. Grant's registration. Issues were raised as to NS1 (suitable person), NS3 (care learning and play), NS6 (safety),

NS13 (child protection) and NS14 (documentation) and 6 compliance notices were issued.

Her next involvement was a monitoring visit on 16/10/08 in company with Susan Heap. She told the Tribunal that, on this visit, the first thing she noticed was that there had been a complete change of staff. By this time Mr. Grant had 2 volunteers working for him, Rebecca and Victoria Taylor, and their hand was very evident in the improvement in NS3. She stated that there is a much warmer environment now with children's work displayed. The staff are clear about child protection but there is still some way to go. She told the Tribunal that the improvements were down to Victoria and Rebecca Taylor, not Mr. Grant. He had failed to notify Ofsted of the fact that there is a new manager in place and he had failed in his responsibility to ensure that all members of staff are CRB checked. At a meeting with Victoria and Rebecca Taylor it became apparent that no member of staff had an enhanced CRB check. Staff were asked if they were under any restriction in their work and they stated that they were not allowed to be left alone with children but, according to Mrs. Monks-Meagher, this was obviously not the case. Mr. Grant had again failed to complete the form for a CRB check despite several previous requests to do so.

Following this visit, a telephone conference concluded that a decision to suspend would be made unless improvements relating to NS13 (child protection) were evident on the next visit due on 21/10/08

Mrs. Monks-Meagher made no further visits to the nursery. She told the Tribunal that, in her opinion, Mr. Grant listens to what he is told by Ofsted, tries to address some of the issues, but lacks the understanding to sustain and maintain a safe, secure and happy environment for the children.

Judith Horsfall is a Childcare Inspector for Ofsted. Her statement is at document 73 of the bundle. She undertook 2 inspections of the nursery. Her inspection report from 8/03/07 is at document 275 of the bundle. This inspection followed the first "inadequate" inspection carried out by Mrs. Monks-Meagher in October 2006. Issues were raised with NS 4, NS6, NS7, NS 8, NS9, NS12 and NS13. Again there were issues with hygiene, both in the toilets and the kitchen. Cots and toys were grubby and Ms. Horsfall was so concerned that she raised the matter with Environmental Health. She also spoke to the Fire Officer since the fire extinguishers were a year out of date in terms of annual checks and fire exits were obstructed by bricks and leaves. She reported hazards in the area outside the nursery and, inter alia, was critical of Mr. Grant's organisation and records. Child protection still appeared to be an issue, with staff members' knowledge being very limited. A complaints procedure had been set up but had not been kept up to date.

As a result of the case review following this inspection, 4 compliance notices were issued relating to NS 4 (physical environment), NS 6 (safety), NS 7 (health) and NS 12 (working in partnership). In addition, 3 further actions were raised as to drinking water, equal opportunities and child protection issues.

In May 07, Ms. Horsfall carried out a monitoring visit. She told the Tribunal that hygiene in the toilets had improved but toys and cots were still grubby and there was evidence of snail and slug trails. The kitchen was still stained and greasy with uncovered food in the fridge and food past its sell-by date. Also a kettle was plugged in with its flex hanging down. Ms. Horsfall had serious concerns. There was still no policy for ill and infectious children, there was no readily available drinking water for the children and the roof still leaked. The front door did not self-close and there were still hazards outside. Overall, there was a malodorous smell and the paintwork and carpets were stained. Such was Ms. Horsfall's concerns that Mr. Grant was cautioned for failure to comply with the notices under Regulation 10.

She attended a case review on 16/05/07, following which compliance notices were issued under NS 4 (physical environment), NS 6 (safety) and NS 7 (health). Four actions were also raised as to drinking water, equal opportunities, child protection issues and a named deputy.

Ms. Horsfall conducted another monitoring visit on 5/06/07. Many of the issues had been addressed but some had not. There were still some problems in the kitchen and a caution was issued with regard to the flooring in the nursery. More power tools were in the car park and a fence panel was missing. On 8/06/07 a warning letter was issued relating to NS 4 (physical environment).

On 22/06/07 Ms. Horsfall visited again. Flooring had been replaced but there were still some power tools and, now, two old vacuum cleaners in the car park. The fence panel had not been replaced. Two actions were raised about the tools and the fencing.

On 4/09/07 Ms. Horsfall conducted an inspection. Her report is at document 342 of the bundle. She told the Tribunal that some things had improved but others had deteriorated. The outcome of the inspection was "inadequate" with concerns over, inter alia, safety, achievement, organisation and documentation. Mr. Grant assessed himself as inadequate in this matter in the self-evaluation form. Issues were raised under NS 2, NS 3, NS 6, NS 9 and NS 14. It was noted that any improvement was short-lived and that Mr. Grant had not shown that he is capable of sustaining improvements. Furthermore, there was no proper leadership to support the staff who were overstretched.

Following this inspection, the notice of intention to cancel the Appellant's registration was issued.

Ms. Horsfall told the Tribunal that, overall, on her inspections, the quality of care and learning had been very poor. The environment was not safe and pleasant and the staff had been unaware of the individual needs of the children. At the time of the decision to cancel the Appellant's registration, the general view had been that Mr. Grant was incapable of maintaining National Standards. There had been a consistent failure to comply with them. Issues were raised, addressed by him for a short time, but then were raised again. In her opinion, Mr. Grant could not rise above the minimum as new and serious issues arose and should have been addressed, but were not. Ms. Horsfall was asked by the Tribunal if, at the case review meeting on 16/05/07, it was considered that there was a risk of significant harm to the children and she replied that there was.

Christine Myerscough is an Inspector (Early Years) for Ofsted. Her statement is at document 85 of the bundle. On 22/01/2007 she carried out an investigation visit at the nursery following the receipt of a complaint from a parent relating to staff ratios. Her visit revealed that staff ratios were not being maintained under NS 2. An action was subsequently raised and Mr. Grant provided a written response which was satisfactory. However, Mrs. Myerscough pointed out that staff ratios were still an issue at the inspections carried out by her colleagues on 4/09/07 and 29/04/08.

Her next involvement was a monitoring visit on 26/11/07. This was the first visit after the issue of the notification to cancel. Concerns were raised once more as to NS - 6 (safety) in that the outside area was not secure and NS-7 ( health) relating to the cleanliness of the kitchen. However, there had been some improvements and this was reported to her team manager. The purpose of her visit had been to ensure that children were not at risk of significant harm and, overall, she had concluded that they were not.

Simon Hutchings was recalled to give further evidence to the Tribunal. He said that the issue was one of sustainability. He felt that no improvements could be sustained by Mr. Grant over a long period, without continuous monitoring by Ofsted. He said that the panel's decision to give notice of intention to cancel was based on the view that Mr. Grant had consistently failed to comply with National Standards. He was asked why emergency steps were not taken and he explained that Ofsted operate an escalating tariff consisting of actions, compliance notices, prosecution, cancellation and emergency cancellation. Every case review would have considered all the options and whether to escalate or lower the tariff. He said that emergency cancellation is an extreme measures; it is used only rarely and would mean closure of the nursery. Ofsted would prefer the provider to make the improvements and use the escalating tariff for monitoring and inspection to achieve those improvements. He expressed his view that it was still appropriate to cancel registration in the light of the inspections and monitoring visits of 2008 as he maintained his opinion that Mr. Grant cannot sustain improvements in National Standards. He felt it was not right for the nursery to continue with so many inadequate outcomes.

He was asked by the Tribunal about the opinion of Mrs. Monks-Meagher that matters were improving although there was still some way to go. Mr. Hutchins said that, in order for Ofsted to step back, there would have to be some monitoring visits with no concerns and with discernible improvements across the board.

The issue of the outstanding CRB checks noted on 16/10/08 was a cause for serious concern and that had caused the intention to suspend the registration.

He was asked by the Tribunal for his view of the improvements made by the Taylor sisters. He said he understood that they had made a difference. He was asked if their presence and impact had any bearing on Ofsted's decision to cancel registration in the light of Mr. Grant's decision to step back from the nursery and hand over to the Taylors. He said that his decision remained the same because Mr. Grant is the registered provider. The situation had occurred before, when Ofsted stopped monitoring. Key staff leave and the nursery could go into decline.

Judith Kerr is a Childcare Inspector for Ofsted. Her statement appears at page 104 of the bundle. Her involvement with the nursery was limited to one visit on 19/03/08. Her notes from that visit are to be found from page 380. Her visit followed the decision in January 2008 to cancel the Appellant's registration and following the receipt of a complaint from a parent. The details of the complaint are set out on page 380 of the bundle. Mrs. Kerr attended with Anne Drinkwater. She investigated the complaint and Mrs. Kerr monitored Mr. Grant's compliance with National Standards. Concerns were noted leading to the writing of a letter on 15/04/08 raising 9 actions. These related to NS 2 (organisation), NS 3 (range of activities, suitable for development), NS 6 (safety), NS 7 (health), NS 8 (food and drink), NS 9 (equal opportunity), NS 12 (working in partnership), NS 13 (child protection) and NS 14 (documentation).

One of the concerns raised by Mrs. Kerr was that there was no keyworker system in place at the nursery. It was put to her in cross-examination that such a system did exist but was informal. She was asked if she had seen the diaries for the children aged 0-2 years and the logbooks which detail a child's day for the 3 to 5 year olds. She had not. She told the Tribunal that she had asked for evidence of how the keyworker system operated but that Mr. Grant had said he did not understand. When asked if she had seen the diaries she would have been satisfied, she responded that it would have contributed to satisfying NS 14.

Mrs. Kerr was asked by the Tribunal, in detail, about the failure to satisfy NS 7 (health). She stated that, as far as she could recollect, one toilet was blocked and they all looked like they needed scrubbing. They were stained because of urine and faeces and looked like they required "copious amounts of bleach and scrubbing." They looked like they had not been cleaned for a very long time. She also told the Tribunal about a piece of trellis fencing which was insecure and when she touched it with her toe it fell over. During cross-examination she confirmed that her notes showed that Mr. Grant had pointed out that the problem had been as a result of high winds.

She was also able to give the Tribunal some information relating to the complaint letter that had been investigated by Anne Drinkwater. Mr. Grant had agreed that he, occasionally, used the nursery kitchen for his personal ablutions. Ms. Drinkwater's notes are at page 381 of the bundle. In discussion with her, Mr. Grant had agreed that, on occasion, he would use the nursery sink for a wash and shave at the end of the day. Mr. Grant did not see a problem with it but, as he only lives across the road from the nursery, he would, in future, deal with his personal hygiene there.

Mrs. Kerr was asked if she had formed a view following her visit. She replied that she felt the nursery should close. She had discussed immediate closure with her manager but that had not been her responsibility.

Caroline Barr is an Inspection Team Manager for Ofsted. Her statement is at page 92 of the bundle. Her first visit to the nursery was on 9/06/08. This was in company with Susan Heap and was in the form of a visit to monitor Mr. Grant's compliance with the 6 notices issued following the inspection on 29/04/08 by Shirley Monks-Meagher referred to above. NS1 (suitable person) continued to give cause for concern. Mr. Grant had still failed to complete a CRB check for Ofsted. He told Ms. Barr that he had sent it to Capita but was asked to complete one for Ofsted. At the date of Ms. Barr's statement on 13^th October 2008, it still had not been received. Ms. Barr explained that the issue was that the safety of children was paramount and that it was essential to ensure that those people working with children were suitable to do so.

Nonetheless at the case review on 28/07/08 NS 1 was deemed to be met.

As to NS 2 (organisation), Ms. Barr was aware that the keyworker system had been raised previously with Mr. Grant but she saw no improvement. She talked to Victoria and Rebecca Taylor about the system and she concluded that Rebecca Taylor had a good understanding of what the system would entail. However, during feedback with Mr. Grant she felt that he had no understanding.

As to NS 3 (care, learning and play) she felt that the children's activities were very basic. There was nothing about extending children's understanding and knowledge. She would expect to see a long term plan with staff being able to say what the benefit of each activity was. Therefore, NS 3 was not met and further monitoring was required.. On 18^th July she went back to monitor NS 3 and progress was still needed.

NS 13 (child protection) was not met. Her main concern was that Mr. Grant had a very limited understanding of child protection. This was worrying, particularly given that the nursery had been operating for a long time. In particular, he failed to understand the need to tell Ofsted of allegations made against him or his staff.

Ns 14 (documentation) was met. Mr. Grant had said that he found it hard to keep records and had, therefore, made arrangements for Victoria Taylor to do it.

Following a case review meeting on 13/06/08 2 compliance notices relating to NS 3 and NS 13 were reissued.

A further monitoring visit was carried out on 18/07/08 by Ms. Barr and Susan Heap. Some improvement was noted in respect of NS 3 but the Standard was still not met overall. Ms. Barr told the Tribunal that good progress had been made but it takes along time for a nursery to meet this Standard. As to NS 13, a number of staff had done training but there were still some inconsistencies. She talked to Mr. Grant about them but felt that he finds it hard to follow systems.

She discussed with Mr. Grant the problems regarding the recruitment of a manager. He told her that he was due to interview someone and felt the matter would be resolved. He was asked to ensure that Ofsted were notified once an appointment had been made so that the clearance process could start. He was also asked to inform them if no appointment was made.

Ms. Barr commented that she had seen some progress but there were still some chronic issues, such as outstanding CRB checks which remained unresolved.

In response to questions from the Tribunal, Ms. Barr stated that where there are so many problems as had been identified in this nursery, Ofsted had to focus on those of major concern. She confirmed that she had visited the toilets which had been the subject of concern on previous visits and inspections but saw no significant problems. She was asked about the case review on 12/06/08 and what her view was of the findings compared with the previous inspection in April 2008. She considered that the nursery had improved in some areas but slipped back in others. Whilst the picture in June was not as dire as that in April, the provision was still inadequate. She felt that Mr. Grant does not have the capacity to improve and to introduce new systems. However, when she was asked which areas had slipped back she was unable to identify any, saying that her involvement had been limited. She acknowledged that the improvements she had seen stemmed from the involvement of Rebecca and Victoria Taylor but had fears that, in the long term, the improvements could not be maintained.

She was asked what had triggered the enquiry about Mr. Grant's CRB check, given that Ofsted had relied on the fact that he had been deemed to be suitable in 2001 when responsibility was transferred from the Local Authority to Ofsted and no clearance had been obtained since. She replied that Ofsted had received information that he may have a conviction. This was a matter of great concern in June 2008 but, despite this, NS 1 was still deemed to be met and no further compliance notices in respect of this Standard were issued.

Susan Heap is an Inspector for Ofsted. Her statement is at page 104 of the bundle. She undertook 5 monitoring visits. On 9/06/08 and 18/07/08 she visited in company with Caroline Barr. On 16/10/08 she visited with Mrs. Monks-Meagher. Leanne Devlin had been appointed manager but Ofsted had not been informed. Mr. Grant had not completed his CRB form. What was evident from her previous visit was that there had been virtually a complete change in staff. The only people still there from July were Rebecca and Victoria Taylor and Emma Brown. There were no CRB clearances for most of the staff. Furthermore, a check on the Ofsted database revealed that Leanne Devlin had been cancelled as a child minder for non payment of fees.

On 20/10/08 a telephone conference took place at which these concerns were raised. A decision was made to issue a suspension notice. Mr. Grant was spoken to by telephone and warned that if he did not put appropriate procedures in place, his registration would be suspended on Ofsted's next visit.

That visit took place on the following day, 21/10/08. By this time the children at the nursery had been regrouped and additional staff taken on. Lorraine Taylor, the mother of Victoria and Rebecca was working there and had an enhanced CRB disclosure. Emma Brown and Leanne Devlin also had CRB clearances. A decision was made not to suspend in these circumstances.

On 28/10/08 a further visit was made. Mrs. Heap told the Tribunal that children and staff had been redeployed. Another member of staff had received her CRB clearance. The question of Mr. Grant's CRB form was raised again with him at this visit but he said he had not completed it. At this point Mrs. Heap asked him to produce identification, complete the form and she countersigned it. Mr. Grant told Mrs. Heap that he wished to withdraw as registered provider and put forward Victoria and Rebecca Taylor in his place.

As to NS 3, Mrs. Heap felt this was much improved although she did have some reservations as to how staff were deployed. As to NS 13, the staff's understanding of child protection was much more secure. However, there was still no designated person with responsibility for this and this had been raised at a previous inspection. Four members of staff had attended child protection training. However, whilst there had been improvements, there were still some concerns, particularly over the absence of CRB clearances for some members of staff. Apparently, forms had been completed incorrectly and returned.

Her impression of the nursery on this visit was that there had been a definite improvement. The staff were much more positive and innovative and secure in their environment. She felt it was a positive sign and a reason for optimism. However, in Mrs. Heap's view, although Rebecca and Victoria Taylor have great influence in the nursery and are responsible for the improvement, Mr. Grant is still in charge.

Evidence for the Appellant

David Grant owns 75% of the shares in the Appellant Company and is, to all intents and purposes, the registered provider. He provided the Tribunal with recent photographs of the nursery and a file with his response to the inspections of 8/03/07, 4/09/07 and 29/04/08. He also provided detailed responses to the matters raised in the cancellation notice.

In cross examination he told the Tribunal that he had been convicted of dangerous driving in 1999 for which he served four weeks of an eight week custodial sentence. He accepted that he had repeatedly failed to complete a CRB form for Ofsted. However, he felt that it was more than coincidence that the question of a check was not raised until the issues which ultimately led to this appeal arose. Quite simply, the delay in completing the form was because his day was filled with his duties at the nursery and matters such as these have been pushed to one side. Filling in forms is a struggle for him and organisation is not his strong point. He pointed out that, whilst he had not notified Ofsted of the position relating to the appointment of a manager, verbal communication had taken place on monitoring visits and this had arisen whilst he was preparing for the Tribunal hearing. It has been a huge task which he has had to undertake alone, so some of the detail had to be passed on to Rebecca and Victoria Taylor in October. He agreed that it was his responsibility to ensure that staff are vetted and that they have the appropriate skills and qualifications. However, to some degree he goes on trust. He believes it is not the basis for a good working relationship to doubt what someone tells him until it is checked. He had decided that he needed new staff and had pushed a lot of recruitment over to the Taylors. Because new staff had CRB checks from college he felt it was reasonable to assume they were ok. He has since been told that everyone needs a new check every time they change jobs. However the priority was to get better, more committed staff.

He told the Tribunal that Rebecca and Victoria Taylor were both parents of children registered at the nursery. In April 08, Victoria was assisting with administrative tasks and recruiting staff. She was not working with children. Whilst he did not have a CRB check for her, she had been known to him as a mother for about 6 months and that familiarity was acceptable. Both she and Rebecca were working there in April 08 as volunteers. Rebecca was working with children and staff. He was aware she had a Level 3 Child Care qualification and had been known to him for 2 years as a parent of a child in the nursery. He did not carry out a CRB check for her. He did not notify Ofsted because he did not think it necessary to do so because she was working voluntarily. There had been no formal interview or taking up of references. Currently Victoria has a clear CRB check and Rebecca's is still awaited..

Mr. Grant was taken through the CRB status of each employee and confirmed that he was aware that those without a clearance could not be left alone with children. He pointed out that the problem was alleviated to some extent by the design of the nursery which means that people are on view to each other at all times.

Mr. Grant was asked why he did not wish to continue as registered provider. He told the Tribunal that, physically, he would not be able to do so. The Taylors have energy and if they took over, it would take away from him the regulatory matters and leave him to deal solely with financial matters. He cannot see himself as being able to fulfil the requirements of the Regulations in the future. "I have had problems in box-ticking and form-filling". He would not mind continuing to cook for the children but he has no desire to continue with the Regulations. He accepts, however, that, for the time being, he has to but told the Tribunal that, in taking on board Victoria and Rebecca Taylor, he has two people who counter-acted his deficiencies "very well indeed".

Mr. Grant commented about the allegations that the front door was not self-closing. He accepted that it did not close without someone physically turning the lock but said that at entry and exit times he sat at a desk in the lobby recording all entries and exits on his computer. He was always there at premium times of entry and exit. If someone came at other times, the door would be locked and staff would have to open it. Whilst this meant they would leave children unattended, it would only be for a few seconds and it happened only very infrequently. He did accept, however, that remedying the problem had been a simple job which he, personally, carried out, but not for a long period of time.

He disputed the comments about the state of the toilets in the nursery. One of the toilets had caused repeated problems requiring major work to remedy. It necessitated the reconfiguration of the pipes. He could not recall that Shirley Monks-Meagher raised this as a serious issue in her inspection of October 2006 but accepted that he had felt she gave a fair report and had not objected.

He accepted that hygiene was raised as a problem by Judith Horsfall in March 2007 and that there was an improvement by September 2007. He did not accept Judith Kerr's comment that by March 2008 the toilets were ingrained with dirt. She had been mistaken. As to his use of the nursery kitchen sink for washing and shaving, he said that shaving is not a "germ-ridden exercise" and this is the only time it happened. He felt that, for someone to contact Ofsted about this showed that "we have a complainer on hand". He believes he knows who the author of the complaint was; someone who is a mother and was a member of staff.

Child protection was discussed with Mr. Grant. He accepted that there had been no safeguards in place and it had been raised by Mrs. Monks-Meagher in October 2006 but that, following this, a policy was developed to remedy it. For new members of staff there is an induction pack and policies and procedures are dealt with two at a time because there are many to go through. However, insofar as child protection is concerned, that is gone through with new staff at the interview stage. That is in order to establish their depth of knowledge. If it is considered to be deficient, it would be the first thing to be dealt with. He accepted that child protection was still an issue in March 2008 when Judith Kerr visited and that an action in respect of it was raised. Also Shirley Monks-Meagher's inspection in April 2008 raised child protection as an issue because, at that time, the designated person for child protection had left. A compliance notice was issued but at Caroline Barr's visit in June 2008 there was still no compliance, leading to the issue of another compliance notice. Mr. Grant accepted these points and that the Taylors were assisting at this time. However he could not recall whether or not he had specifically informed them of the receipt of the compliance notices. He agreed that, in fact, there was no improvement in the situation until October 2008 and that there was still, at that stage, a question over the designated person.

In answer to questions from the Tribunal, Mr. Grant acknowledged that he had had some difficulty in understanding the importance of the points raised by Ofsted and the National Standards but pointed out that, throughout the relevant period, his reaction to inspections had become "almost Pavlovian". He has developed a conditioned reaction to them and has pushed things out of his mind. However, over the six months prior to the hearing, he and the Taylors had been able to begin a period of transition. He accepted that, in some areas, Ofsted had been right to criticise him. He had fallen down in areas of administration. However he felt that issues in respect of hygiene had been correctly addressed by them at times but had been exaggerated at others. He readily accepted that the concerns expressed by Ofsted regarding policies and procedures were appropriate but that the issues raised by the Respondent relating to physical matters were overstated.

As to the current situation, he explained that the involvement of the Taylors in the running of the nursery had evolved over a period of time. They were a very enthusiastic team. Their achievements with the nursery had been significant and they were keen to sustain those improvements and progress. Mr. Grant's intention is to hand over the running of the nursery to them. He would like to make meals, if allowed, but, otherwise, he would not be on the premises. He intends for the Taylors to run the nursery on a day to day basis. He acknowledged that they are going in the right direction and felt they must be allowed to continue unhindered.

As to the importance of CRB checks which had been a major issue in the appeal, he accepted that they are an essential part of childcare but felt that the importance attached to them had been brought about by the tragic events of recent years such as the events in Soham and that everyone now had to bear the consequences of a knee-jerk reaction by the Government to prove it is doing something about it. He had had a CRB check with the Local Authority in about 1996. No one from Ofsted had ever asked whether he had any criminal convictions.

As to his ability to sustain improvements, Mr. Grant stated that he had only become involved in the day to day running of the nursery in 2002-2003 when his former partner had walked out and left him with responsibility for it, taking much of the administrative material with her. At the same time, the nursery started to suffer from vandalism because of a skate park which had opened nearby. Mr. Grant described his situation as a "finger in the dyke". He was constantly playing "catch-up". The tipping point for him was the Notice of Cancellation and he realised that dramatic remedial action was required. A virtual complete change of staff had taken place. Looking at the reports from Ofsted some members of staff had clearly been weak links in terms of performance and child care. The decision to employ new staff had been a collective one.

In terms of the care currently provided by the nursery, there are approximately 30 children who attend, spending an average of 8 hours in the building. He handed to the Tribunal photographs of the facilities that now exist in the nursery.

Victoria Taylor is one of the sisters who are applying to be registered persons for the nursery. She has no child care qualifications. Her child has been enrolled at the nursery since September 2007. Her daughter is deaf and a teacher of sound from the audiology department of the hospital attends the nursery every month to teach staff how to insert her hearing aids and how to work with her to aid her development. She told the Tribunal that, from the outset she had known who her daughter's keyworker was and a diary of her daughter's day at the nursery was always included in her school bag. She was asked about her level of commitment to the nursery and explained that she originally went in to the premises as part of her daughter's development. She had two days spare each week and wanted to ensure that everything was done properly. Things progressed from there. If her application to be one of the registered persons is successful, she will attend full time. She and her sister are keen for the nursery to attain the required standard and beyond. They have many plans for the nursery, including day outings, parents evenings and fun days involving the children. They want to "push it forward". She currently is studying for a qualification in holistic therapies at college but can condense this to an evening class. She has a clear CRB check. She confirmed that she and her sister were very keen to continue the improvements they had already been able to bring about and she has now familiarized herself with Ofsted's rules and regulations. Her proposed role will be on the administration side. She understood the concerns which had been expressed in previous visits and inspections and she and her sister had already implemented a lot of changes. She felt that things could only get better and stated that they were aiming for an "excellent" standard. She had read the recent reports and accepted that radical changes were required. Improvements in cleanliness, observations and planning had already been made. There are 2 members of staff in each room at all times, there is a "floater" to go from room to room so that no-one is left alone with children, children's art work is shown on the walls, the rooms are much brighter and she referred the Tribunal to photographs handed in which showed how the rooms were set up by evening staff ready for the following morning. She and Rebecca had conducted a survey of parents to see if they were getting things right and the feedback had been positive.

Rebecca Taylor is Victoria's sister and has applied to be registered person for the nursery. She has two children registered at the nursery and is Level 3 qualified in child care. She volunteered in April 2008 to help along with her sister and has supported the nursery ever since. She attends the nursery 5 days a week. During her studies for Level 3 she completed 800 hours in placements in nurseries. She is very keen on training. She and all the staff are booked on training courses, including "Safeguarding – Next Step", "Movement Matters" and "Paediatric First Aid". She has organized monthly in house training on matters such as stress management, sensory workshops and "Let me tell you a story". She feels training is essential both for the welfare of the children and the staff.

In cross-examination she was asked about the need for CRB checks. She confirmed that she was aware of the need for checks. Her parents work in health care and the police so she is familiar with the requirements when working with children. However she had only worked with children unsupervised since June when 2 members of staff suddenly left and the children could not be left without adult care. She had submitted her CRB forms but they had originally gone to the wrong people. Forms had come back and forth and everything was new to her. She was going through the process to obtain a clear check but it was taking months to resolve. It was for that reason that staff had been redeployed to ensure staff awaiting clearance were no longer left unsupervised with children. She stated that even if her application to be registered is refused she will continue to be involved with the nursery.

In answer to questions from the Tribunal, she stated that she understood why there was a need for Ofsted to inspect and, having read the reports, she accepted some of the failings. From a parent's point of view she would be concerned and accepted that radical changes had been necessary. Now that she and her sister are involved she has no concerns. Other parents are very supportive of the improvements they have made. They have been at pains to make all the staff and parents of what is going on. Since reading recent Ofsted reports they have been aware of what is necessary. Some members of staff had been inadequate and, as parents, they voiced their concerns to Mr. Grant. Rebecca has been involved in the interviewing and selection of new staff and feels that there is now a good team in place. All are qualified to at least Level 2 and they are eager to learn and complete training. A member from the Early Years team attends the nursery to conduct training courses. She expressed herself as enthusiastic and has a sense of achievement about what has been achieved so far and wants to take it further.

Tribunal's Decision

The powers of the Tribunal in this case under s. 74 of the 2006 Act are set out earlier in this decision. In essence, in this appeal, the question for the Tribunal to decide is whether to confirm Ofsted's decision to cancel registration.

S.68 of the 2006 Act sets out the test which must be applied in this case: that is whether BFNL as the registered person and Mr. Grant as the nominated individual responsible:

(a) has failed to comply with requirements under the EYR Regulations and the WR Regulations or, as here, their relevant predecessors under the 1989 Act; and

(b) has ceased or will cease to satisfy the prescribed requirements under the EYR regulations.

The Tribunal can consider all matters up to and including the Tribunal hearing itself. The test under s.68 requires the Tribunal to consider past breaches as well as the current situation. In her final submission to the Tribunal, counsel for Ofsted submitted that the Tribunal needed to consider:

(a) the past failures to comply; their nature/ seriousness/ repetition;

(b) any recent/ongoing breaches and whether they may be likely to recur.

The Tribunal agrees that that is the necessary approach and takes the view that the consideration of Mr. Grant's suitability is of central importance.

Insofar as the decision to issue the Notice of Cancellation in January 2008 is concerned, the Tribunal is satisfied that the decision was justified. Mr. Grant had demonstrated a chronic failure to maintain National Standards as evidenced by a number of inadequate inspections. The Tribunal considered, after hearing all of the evidence, that Mr. Grant appeared to have a lack of understanding of what the National Standards are for, seeing them as something of an irritant. The Tribunal formed the opinion that Mr. Grant thought that he could run the nursery as a business and, as long as the children received basic care, that would suffice. He demonstrated very little understanding of child development and child protection. His comment about the reaction by the Government to the events in Soham being a "knee-jerk" was very telling so far as the Tribunal was concerned in that it indicated his opinion of Ofsted as unnecessarily bureaucratic. He is somewhat dismissive of National Standards and, as such, has clearly missed the point. The Tribunal accepts that Mr. Grant has worked very hard and is committed to the nursery. It is not suggesting that he is dilatory in any way but he has been overwhelmed by the demands of running a nursery to National Standards criteria and, on his own, the Tribunal is entirely satisfied that he cannot maintain any improvements. Up until notification of Ofsted's intention to cancel registration, Mr. Grant had consistently failed to grasp the reality of the situation. It is clear that a fundamental change was required.

The Tribunal has gone on to consider the current situation, particularly whether recent and ongoing breaches are likely to recur. The situation after the cancellation notice was issued has changed significantly from what prevailed before. The involvement of Victoria and Rebecca Taylor has had considerable impact. They have been included in the operation of the nursery since April 2008 and, whilst some breaches have continued, they have undoubtedly diminished in number and the overall picture is an improving one. It has been a steep learning curve for them. Indeed both Shirley Monks-Meagher and Susan Heap commented on the general improvements since the involvement of the Taylors, describing the warmer environment of the nursery and the good level of understanding of what was required demonstrated by both of them.

Rebecca and Victoria Taylor have applied to be joint registered persons. Their application was under consideration at the time of the hearing. They impressed the Tribunal as witnesses. They gave their evidence in a very genuine, straightforward way and came across as well-motivated and honest ladies and, in Rebecca, someone who is well-qualified in the area of child care. They admitted that they had been unaware of the seriousness of some of the breaches initially, but that, once they had been made aware, they had reacted immediately. They have made improvements in hygiene, displayed children's art work on the walls and have been involved in the appointment of a new staff team. Training and continuing education is of paramount importance to them and their evidence was that all staff are currently booked onto training courses and in- house training is a regular event also. The changes that the Taylors have brought about differ qualitatively from previous attempts by Mr. Grant to drag up the standards to a minimum to avoid further censure. They have embraced the need for improvements and have understood the purpose and requirements of inspections. They have new and exciting plans for the nursery and now realise what they need to aim for. The fact that training has been enthusiastically introduced demonstrates a desire on their part to set an altogether different aspiration, which is to be excellent.

Much evidence was given by both sides in this appeal relating to the absence of a CRB check for Mr. Grant. This is a matter which causes the Tribunal great concern. The evidence appears to be that he transferred from the local authority to Ofsted in 2001 and was deemed to be satisfactory until rumours of a conviction surfaced in 2007. The Tribunal was told that this system was used when Ofsted took over responsibility for nurseries in 2001. The Tribunal considers that it is a very flawed system which allows people who may be unsuitable because of an undisclosed conviction to continue without further checks until Ofsted get wind of something which may be relevant. In Mr. Grant's case the Tribunal was told by him that his conviction related to a driving offence. If that is the case then it will not affect his suitability to work with children, but what if it had been a more serious matter which, by its very nature, would have rendered him immediately unsuitable? Other workers in the field of child care and social work are required to renew their CRB clearances every three years, whether or not they change their employment. It is difficult to understand why this standard of checks does not apply to children's day care where children are left in the care of adults for long periods of time. The Tribunal questions the wisdom of Ofsted seeking to address the issue by asking Mr. Grant to complete a form. He repeatedly failed to do this and, yet, at a case review as late as June 2008, NS1 was deemed to be met. This seems to be at total odds with Ofsted's often-stated belief that the safety of the child is paramount. Why did no-one ask Mr. Grant the question as to whether or not he had any convictions, pending the receipt of his CRB report? Why, when the rumour of a conviction reached the ears of Ofsted, was a Police National Computer check not sought? The Tribunal considers that it does not sit well with Ofsted that they now stress the importance of CRB clearance for Mr. Grant when they have adopted what appears to be a cavalier attitude to it for a considerable time. Once they became aware of a possible conviction, if Ofsted accept their role in protecting children, they should have taken all necessary steps to clarify the situation, not just put the onus on Mr. Grant and then use it as a stick with which to beat him. This issue is of paramount importance and essential in assessing Mr. Grant's suitability. Ofsted should have addressed this issue long before the appeal hearing and, certainly as soon as a query arose over a possible conviction. In this hearing they have sought to "pin Mr. Grant to the mast" about the absence of CRB checks when they, themselves, have tolerated it for 6 years.

The view of the Tribunal is that Ofsted have effectively missed the point in this matter. In their inspections leading up to the consideration by them to cancel registration in December 2007, standards in the nursery had fallen very low. Children were, according to the Inspectors, at obvious risk of illness and accidents. So much so that both Environmental Health and Fire Standards were brought in at Ofsted's request. It is hard to understand, given the evidence, why Mr. Grant's registration was not suspended; a question which is further emphasised by the absence of CRB clearance at that time and the rumour of a conviction. Ofsted have been most zealous in their application of National Standards but, by concentrating on conditions in the nursery, the underlying purpose to ensure the safety and welfare of children has been missed. Allowing Mr. Grant to continue without CRB clearance meant that a basic tenet of child protection, adhered to by all agencies with safeguarding responsibilities, many of which are inspected by Ofsted, was not met.

In order to be a suitable person, a registered person does not need to be able to manage a nursery personally, but he does need to be someone who will appoint people who are capable of managing. The Tribunal's view is that Mr. Grant has now done that. In involving the Taylors in the nursery he has put in place people who are enthusiastic, honest and well-intentioned; people who are ambitious insofar as the nursery is concerned and who, in a relatively short period, have brought about fundamental improvements to the nursery. They, of course, still have some way to go but they are obviously aware of the areas they need to develop and are keen to listen to advice and act accordingly. Inevitably, there are still areas of concern for Ofsted but the Tribunal considers that the Taylors should be given credit for the significant progress made so far and an opportunity to continue to turn what was a failing nursery into a place which provides a safe and stimulating environment for the children in their care. The evidence given to the Tribunal is that they will run the nursery and Mr. Grant intends to withdraw, providing their application to be joint registered persons is successful. He acknowledges that he cannot maintain improvements if left to his own devices and is keen for the Taylors to take over. The evidence of Simon Hutching for Ofsted was that Ofsted operate an escalating tariff when dealing with breaches from raising actions and compliance notices to cancellation or emergency cancellation. His view was that Ofsted would much prefer a registered person to sort problems out themselves than Ofsted take heavy-handed action. The Tribunal acknowledges that it is not a foregone conclusion that Rebecca and Victoria Taylor will be accepted as registered persons, but the process should be allowed to take its course. So far, the job they have done is certainly indicative of a desire and an ability to bring about the sort of changes that they hope will meet National Standards.

The Tribunal does not consider, on balance, that, given the appropriate information and the opportunity and time to put things right, the Taylors will be likely to breach National Standards. Mr. Grant, whilst recognising the problem at a stage very late in the day, has demonstrated his suitability by involving Rebecca and Victoria and arranging to step back and allow them to run the nursery. This is a conclusion which the Tribunal feels is fair to everyone, including, most importantly, the 30 children who are currently at the nursery and who, now that the Taylors are in charge, seem to be well served.

However, the absence of CRB clearance for Mr. Grant is unacceptable. The unanimous decision of the Tribunal is that the cancellation notice issued on 9^th January 2008 in respect of Best Friends Nursery shall cease to have effect subject to a condition that Mr. Grant has CRB clearance. The appeal is allowed.

C.A. Singleton (First Tier Tribunal Judge)

Pat McLoughlin

John Hutchinson

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	First-tier Tribunal (Health Education and Social Care Chamber)
You are here: BAILII >> Databases >> First-tier Tribunal (Health Education and Social Care Chamber) >> Best Friends Private Day Nursery Ltd v OFSTED [2009] UKFTT 1 (HESC) (13 January 2009) URL: http://www.bailii.org/uk/cases/UKFTT/HESC/2009/1.html Cite as: [2009] UKFTT 1 (HESC)