In the First-Tier Tribunal (Health, Education and Social
Care)
Manor Court Newcastle upon Tyne
26th August 2011
Before
Deputy Chamber President Judge John
Aitken
Ms Margaret Diamond
Mr David Braybrook
Mr Robert Howe
Appellant
v.
OFSTED
Respondent
Decision
- On 11th August 2011 the appellant
filed an appeal under Section 21 of the Care Standards Act 2000
against the decision of the respondents to impose conditions upon a
children’s home operated by the Appellant under Section 22B of the
Act.
- In short the Respondent has issued a notice to
restrict the accommodation in question, Howestead Lodge, on 19th
July 2011. The purpose of such a notice is to safeguard the welfare of
children and young people where there is reasonable belief that there is a
risk of harm to a child or young person. In particular in this case the
Respondent claims to have issued the notice whilst Police enquiries are
being carried out into allegations of ill treatment and assault are
carried out by the Police. There are a number of procedural requirements
in serving the notice, no point is taken with regard to them. The test
applied is not found within statute, but the guidance to Ofsted on the
issuing of such notice is explicit at paragraph 6:
“We should serve a notice restricting accommodation where we reasonably
believe that there is a risk of harm to a child or young person, if we do
not restrict the accommodation.”
- The notice served is within our papers at B18.
it restricts the home from accommodating any child who was not resident at
the time of the notice. Since the current residents were re-accommodated
on a temporary basis by Northumberland County Council on hearing of the
allegations and Police Investigation, it has the effect of preventing the
home from operating. The notice expires on 30th August 2011.
- An anonymous letter of denunciation appears to
have been sent to the press and the NSPCC, alleging ill treatment at the
home it was passed to the Police, Ofsted and Local Authorities but not the
appellant. There is a suggestion by the appellant that a copy of the
letter should be disclosed to him to enable him to answer the allegations.
We have considered whether the appellant can meet the allegations without
the letter. We consider that possession of the letter itself would not
assist the appellant, it merely recites allegations, matters have moved on
since then and indeed since the appellant filed his appeal. At the time
the appeal was filed the appellant knew no more than scant details of
allegations made. He was unaware of how seriously they were being treated
by the Police or whether they were to be investigated in any great detail,
merely that preliminary investigations had taken place.
- The current situation is neatly summarised by PC
Defty who gave evidence before us in the absence of the investigating
officer and although not in charge of this investigation, was largely
familiar with it. Within her statement at page 107 of the bundle she had
this to say “The letter made reference to long term inappropriate behaviour
by staff towards children. Allegations included that the children had been
threatened and assaulted as well as being subject to sexualised comments.”
She went on later to say that the staff and children had been interviewed,
then this “Subsequent enquiries resulted in six current and former
residents of Howestead Lodge making complaints of assault against four
staff members. Five of the allegations were new and not previously
disclosed to the Police.” Before us she explained that in the next two
weeks discussions will take place with the Crown Prosecution Service to
guide progression of the investigation. She made enquiries and was able to
establish that none of the four persons under investigation had been told
they would not be proceeded against, merely that following interviews as
voluntary attendees they were told that there would not yet be
proceedings. In cross examination she revealed that some of the
allegations made appeared to be corroborated by other witnesses.
- We also heard from Clare Deary Compliance
officer for Ofsted, she explained the circumstances of the notice, which
are summarised above and agreed with Mr Gibson on behalf of the appellant
that they had not consulted with the appellant before deciding to issue
the notice.
- Steven Pearson, Social Care inspector gave
evidence, restricted mainly to an account of his visit in which he formed
the impression that Mrs Howe’s daughter was heavily concerned in running
the home.
- We heard from Mr Howe about the difficulties he
was being caused by this notice and the history of the home and how well
it sought to comply with all inspections, and of its good history in this
regard. He explained that his wife was still running the home, although
she had deafness problems and was ill at the time of Mr Pearson’s visit
and that was why she had relied upon her daughter. We were very
impressed by Mr Howe as a witness, he was plainly a man in a very
difficult position seeking to behave to the very highest ethical
standards. Having heard the evidence himself of the investigation, he
paused very long and hard over whether he felt the notice as appropriate
at this time, before eventually explaining that he did not think it was.
- Mr Howe also explained that he believed that
some of the allegations were not new, and had previously been made and
withdrawn or resolved in other ways, that allegations were widespread and
did not always indicate that anything had happened. He did however accept
that at least two matters were not recorded within the homes records and
were new.
- Mr Howe was specifically asked if the people
concerned in the police enquiries could be suspended and home still run,
he explained that they were key to the legal requirements of the home at
present, but it may be possible to obtain temporary staff to cover those
positions, it was not possible at present though.
- Mr Gibson on behalf of the appellant raised the
failure of Ofsted to contact the appellant to see if they had any
information at all which might have a bearing upon the notice. He also
stressed the good record of the home and suggested that it had not been
taken sufficiently into account.
- We are acutely aware of the damage such an
investigation does to the reputation of Howestead Lodge, that no person
has been charged, much less convicted of any crime or wrong doing. We have
seen documentation that the home has passed numerous inspections without
difficulty. Indeed at the meeting between the appellant and Mr Mark
Douglas the Head of Safeguarding for Northumberland he acknowledged that
his dealings with the appellant had always been satisfactory. There is an
Ofsted inspection report dated April of this year in which the home is
described as “good at keeping children and young people safe and
feeling safe.”
- The appellant has filed evidence that some
former residents of the home have spontaneously on Facebook written of how
they have great affection for their time there and are deeply grateful to
staff members who have helped them. There are references from other
sources such as Dr Podogrocki and Dr Black who have visited the home
regularly and speak well of the way it was conducted, and have no
concerns. Assistant Headmaster Paul Grabbitus also writes of the very high
regard in which he holds the appellant and his wife for their work.
- The appellant has costed the effect of this
temporary closure of the home, it is almost £3,000 per day, we have no
reason to doubt that figure, in the period since the appeal was filed on
11th August 2011, the home has lost in the region of £45,000.
It is further said, and we entirely accept that this is ruinous, that the
home is unable to withstand this and may have to close whatever the result
of the investigation.
- We do not consider that in this case a failure
to contact the appellant before issuing the notice could have made any
difference to Ofsted’s actions, here the appellant was in the dark and
knew nothing of the detail of matters, we find that at the time of the
rapidly developing situation that faced Ofsted the notice was issued
appropriately. That is of course not to say that it is always appropriate
not to contact the persons against whom the notice is served, unless there
is a reason not to do so, they should be contacted and their views
considered with all of the other evidence, that is surely the effect of
paragraph 12 of Ofsted guidance on issuing a notice in such matters:
“Where we are considering restricting accommodation, we must take into
account any action that the provider may take to reduce the risk of harm,
before serving the notice”.
- We do not underestimate how difficult it must be
for someone in the appellant’s position to prove the negative, that is
that there is nothing properly described as a “risk” to the children at
the home. Nonetheless given that the Police are now in possession of
evidence in the form stated, the balance falls firmly on the side of
protecting those who are most vulnerable in this situation. When this
appeal was filed there was one anonymous letter, there is now evidence upon
which a prosecution may be mounted, there are 6 allegations from young
people at or formerly at the home, some of which appear to have
corroboration. We apply the test within the Ofsted guidelines as of our
hearing today on the facts as we have found them That is a basis upon
which we find there is no doubt that without any judgement as to what has
happened at the home, or may happen in the investigation there exists at
this stage a reasonable belief that a risk of harm to a child or young
person, if the accommodation is not subject to the restriction.
- At present the Respondent relies upon the Police
investigation, it is ongoing and has developed, there are now 6 firm allegations.
In that way the respondent is able to discharge its duty to justify the
notice. In the words of the Upper Tribunal in Ofsted v GM & WM
[2009] UKUT 89 (AAC) at paragraph 27:
“…a suspension imposed on the ground that there is an outstanding
investigation can, in our judgement, be justified only for so long as
there is a reasonable prospect of the investigation showing that such
steps are necessary”
- It is plainly necessary for the respondent to
satisfy itself that the Police are actively investigating the case to
continue to hold their reasonable belief.
Decision
The
appeal is dismissed the notice served is confirmed.
Judge John Aitken
Deputy Chamber President
Health Education and Social Care Chamber
30 August 2011
