In the First-Tier Tribunal (Health,
Education and Social Care)
[1886].EY-SUS
JG - appellant
v.
OFSTED - respondent
Before
Mr Brayne
Mrs Rabbatts
Mrs Lowcock
Heard on the 28th April 2011 at the Care
Standards Tribunal Mowden Hall, Darlington.
The appeal
- The appellant appeals against the respondent’s decision
dated 15th April 2011 to suspend her registration as a child
minder for six weeks until 26th May 2011.
The legal framework
- The statutory framework for the registration of
childminders is provided under the Childcare Act 2006. This Act
establishes two registers of childminders: the early years register and
the general child care register. Section 69 (1) Act provides for
regulations to be made dealing with the suspension of a registered persons’
registration. The section also provides that the regulations must include
a right of appeal to the tribunal.
- Under the Childcare (Early Years and General Childcare
Registers) (Common Provisions) Regulations 2008 when deciding whether to
suspend a childminder the test set out in regulation 9 is
that the chief inspector reasonably believes that the
continued provision of childcare by the registered person to any child may
expose such a child to a risk of harm.
- The suspension shall be for a period of six weeks. Suspension
may be lifted at any time if the circumstances described in regulation 9
cease to exist.
- “ Harm” is defined in regulation 13 as having the same
definition as in section 31 (9) of the Children Act 1989, “ ill-treatment
or the impairment of health or development including, for example,
impairment suffered from seeing or hearing the ill treatment of another”.
- The powers of the tribunal are that it stands in the
shoes of the Chief Inspector and so in relation to regulation 9 the
question for the tribunal is whether at the date of the respondent’s
decision the respondent reasonably believed that the continued provision
of child care by the registered person to any child may expose such a
child to a risk of harm.
- The burden of proof is on the respondent. The standard
of proof ‘reasonable cause to believe’ falls somewhere between the balance
of probability test and ‘reasonable cause to suspect’. The belief is to be
judged by whether a reasonable person, assumed to know the law and
possessed of the information, would believe that a child might be at risk.
The hearing
- The appellant asked for a determination on the papers.
The respondent agreed to proceed without a hearing. We applied Rule 23
Tribunal Procedure (First-tier Tribunal)(Health, Education and Social
Care) Rules 2008 and proceeded to make a decision without a hearing. The
panel met and determined the appeal on 28th April 2011.
- The tribunal had a bundle of papers including the
decision to suspend, the appeal, the response to the appeal, witness
statements from the respondent, with exhibits, and letters from parents of
children minded by the appellant
- The appellant submitted after the latest date for
providing written evidence a response to the documents received from the
respondent. The Tribunal copied these to the respondent, who then
consented to the Tribunal taking into account this late evidence.
- The Tribunal makes a restricted reporting order under
Rule 14 (1) (a) and (b) of the Tribunal Procedure (First-tier
Tribunal) (Health, Education and Social Care Chamber) Rules 2008,
prohibiting the disclosure or publication of any documents or matter
likely to lead members of the public to identify the appellant, any child minded
by the appellant, or any member of the families of these individuals, so
as to protect their private lives.
The background
- The appellant was registered with the respondent in April
2007. She is, according to the evidence in the witness statement of the
respondent’s witness RF, registered on the Early Years Register for
provision for children under 5; Part A of the General Register for
provision for children aged over 5 and under 8; and Part B of the General
Register, for children aged 8 or over. There is no evidence of previous
concerns as to her suitability. She has not been inspected since
registration.
- The conditions of registration (according to the
witness statement of the respondent’s senior officer KD) were:
- she may provide care for no more than six children
under eight years, of these not more than three may be in the early years
age group and of these not more than one may be under one year at any
time;
- when working with another childminder [at her
premises] may care for no more than eight children under eight years; of
these not more than six may be in the early years age group and of these,
not more than two may be under one year at any one time
- she must not use the first floor, except for the
bathroom and bedroom;
- must not provide overnight care
- The appellant operates her childminding business from
her home address.
Events leading to the issue of the notice of statutory
suspension.
- The respondent’s case is set out in the response, and
is based on the evidence of witness RF and witness KD and supporting
documents referred to in these statements. This is summarised in
paragraphs 16 to 18 below.
- The respondent’s Local Authority Designated Officer,
witness KD above, and inspector, witness RF above, on 5th April
2011 received information from a nurse at the B Hospital. The information
was that on 22nd or 23rd January 2011 the appellant
had attended the Accident and Emergency Department at the hospital,
appeared to be drunk, was abusive to the nurse, told the nurse she had an
alcohol problem and was seeing her GP. The appellant had also said she
was a childminder.
- The appellant was visited by RF on 13th
April 2011. She told RF that she was currently minding children. She
said that she did not remember being in hospital in January 2011. She
said that she did not drink alcohol during the day when she was minding
children, but only in the evenings and at weekends. She said that she had
sought help from an organization which provided alcohol abuse support as
she considered that she had developed an alcohol dependency. A nurse from
this organization had visited her at home, and the appellant had undergone
a five day detoxification programme at home under the organisation’s
support.
- The respondent held a Compliance, Investigation and
Enforcement Case review the following day. The respondent recorded
concerns that the appellant had not notified them that she had an alcohol
dependency problem, had been admitted to hospital, and had since undergone
detoxification treatment under the care of an independent agency. They
were concerned that she might have minimised the scale of her dependency
and the help she had sought. She had not appeared to understand the
impact this might have on her suitability to mind children and her role in
a position of trust. The respondent recorded that it felt unable to
assess the appellant’s ongoing suitability in relation to her physical and
mental health and that as a result, children in her care may be at risk of
harm. It felt further investigations were necessary, which would include
a professional medical opinion, via a health check from a practitioner
appointed by Ofsted, further contact with the staff nurse who raised the
original concerns, and contact with the nurse from the independent
organisation. It decided to suspend the appellant during the course of
these investigations.
The appellant’s case
- In her grounds of appeal the appellant confirmed that
she had told the respondent’s officer that she had attended hospital, but
was unsure why, and had been drinking on that night. She had told the
inspector that she only drank evenings and weekends when there were no
children in her care, and three weeks ago had undergone a detox and
therefore no longer consumed alcohol. She had decided to undergo a detox
because she had started to have a few alcoholic drinks to help her sleep
at night, and this had become a habit which she no longer wished to have.
The doctor had prescribed her sleeping tablets and therefore she no longer
needed to drink, so she therefore detoxed. She had stressed to the
inspector that she had not had an alcoholic drink at all in the past three
weeks. A statement from the nurse involved in the detox programme had
been taken by Ofsted, and it showed this person had visited her when she
had children in her care, that the appellant was not under the influence
of alcohol, and the nurse had no concerns for the children’s safety. She
had obtained written statements from the parents who had no issues while
their children were in the appellant’s care. In summary she could see no
evidence to suggest that the children were “in harm” or that she was not
suitable to care for them.
- In the information provided in response to the
respondent’s documentation, the appellant added the following evidence.
The date she had gone to the hospital had been a Saturday, which was her
personal time, and she was not looking after children. She had finished
the detox while on a holiday and not caring for the children. She had
been free from alcohol for a month (as at 27th April 2011).
She also referred to evidence which is contained in the respondent’s
witness statements, to which we have not yet referred, relating to
suggestions that she had been in hospital for an overdose of ibuprofen.
She had only taken two for headache, but her husband had rung for an
ambulance as he had concerns she may have taken more, having found an
empty packet, but her husband had later confirmed that this was
accompanied by a pack with only one missing, which showed she had taken
one from the end of a pack and one from a new pack. She had not
self-discharged from the hospital but had, according to her daughter who
was with her, been told she could go home without signing a discharge
form. She had not been visited by Ofsted since the suspension, and her
doctor had not been approached. She could not have been violent in the
hospital, as the hospital declared a no-tolerance policy and a violent
person would have been arrested.
Tribunal’s conclusions with reasons
- Some facts are not disputed. The appellant did have
what she herself perceived to be a problem with alcohol. She did visit
the Accident and Emergency Department on a Saturday night in January,
accompanied by her daughter. She was not detained. She voluntarily
arranged a detoxification programme, which she has successfully completed
at a time when she has not been responsible for minded chidlren. She
failed to inform Ofsted of the alcohol problem, or the detoxification.
- There is no evidence or suggestion that she has ever
been under the influence of alcohol, or suspected of such, during the time
she has childminded. There is no evidence of any failure to look after
children adequately. Parents have confirmed their high regard for her.
The nurse responsible for the detoxification has observed her while
childminding, taken alcohol readings of zero, and confirmed her own high opinion
of the appellant’s qualities as a childminder.
- The appellant herself described her alcohol problem as
a dependency when interviewed by the respondent’s officer. However, there
is no evidence to suggest a dependency or a condition of alcoholism in the
medical sense. The fact of her ability to stop drinking in a short space
of time indicates any alcohol problem was not severe.
- Evidence of abusive or drunken behaviour at the
hospital in January is at best unclear. It was supplied by a nurse, who
chose, for unknown reasons, to disclose the information three months after
the events, and who, subsequently, has failed to provide any confirmation
or to contact the respondent. In these circumstances it is difficult to
place much weight on the nurse’s evidence. The evidence came to light
more than a week before the suspension decision and during that week there
is no evidence of harm as a result of that delay. The respondent has not
(on the documents available to us) obtained medical evidence, so there is
no medical evidence suggesting the alcohol problem could be more serious
than the appellant admits.
- For all of the above reasons, the respondent might well
make a different decision as to the risk to children if the decision had
to be made now.
- However, we have previously explained that our task is
to decide only whether the respondent has shown that the original
suspension was justified. We do not have the responsibility of
determining whether its continuation or renewal is justified. We can only
look at the question: did the respondent reasonably believe when deciding
to suspend the appellant that the continued provision of childcare by the
registered person to any child may expose such a child to a risk of harm.
To answer this question, we have to look at the facts and information
known to the respondent at the date of the respondent’s decision
- The respondent, when making the decision to suspend,
had received information raising an allegation of drunken and disorderly
conduct. The appellant had been visited, and she had confirmed that she
had visited the hospital, that she had a drink problem, and had undertaken
a detoxification programme; there was evidence that she may have taken an
overdose of ibuprofen. The risk the respondent was concerned with was
that the appellant’s ability to look after children safely could be affected
by problems arising from abuse of alcohol. The respondent was concerned
in addition that the appellant had not told Ofsted about these drink
problems, and the respondent was reasonably concerned that failing to
disclose something of this importance could mean she had not disclosed the
true extent of her problems.
- We are satisfied that the respondent was entitled to
decide not only that this required investigation, but also to believe that
during the time it would take to conduct the investigation the children
might be at risk if the appellant continued to work as a childminder.
Mr Brayne, First Tier Tribunal Judge
Mrs Rabbatts, Tribunal Member
Mrs Lowcock, Tribunal Member
5th
May 2011
