In the First Tier Tribunal (Health Education and Social Care)    [2012] 1969/EY-SUS

Between

					YA					Appellant

					V.

			   	       Ofsted					Respondent

Before:
Judge John Burrow
Ms Jenny Cross   Specialist Member 
Ms Claire Trencher   Specialist member 

At Taylor House, London on 12th June 2012

				   DECISION

1.	 A restricted reporting order is made under Rule 14(1)(a) and (b) of the Tribunal Procedure (First Tier Tribunal) (Health, Education & Social Care Chamber) Rules 2008, prohibiting the disclosure or publication of any documents or matters likely to lead members of the public to identify the appellant, or any child minded by the appellant, the complainant, or any member of the families of these individuals, and directing that reference to them must be by initials so as to protect their private lives.

2.	 In her Appeal Application Form the appellant indicated she wished the matters to be dealt with on the papers.  However, she subsequently requested an oral hearing, and witnesses Champa Miah, Thomas O’Neill and Margaret Ferris appeared on behalf of Ofsted, who was represented by Ms Juliette Smith of Harvey Ingram Borneos Solicitors. In the event the Appellant indicated she did not wish to cross examine any of the Ofsted witnesses, and the matter proceeded on the papers so far as Ms Miah and Mr O’Neill were concerned.  Ms Ferris gave brief evidence about the progress of the investigation.

3.	The appellant appeared with one witness D.P., but in the event the appellant said she did not wish to call her.  Ofsted indicated they did not wish to cross-examine her, and the panel relied on her witness statement, so far as it was relevant.  The appellant was unrepresented.  She gave evidence and made submissions.  She was not cross-examined by Ofsted.

4.	 The bundle ran to 121 pages and contained both parties’ cases.  The appellant served a late bundle of papers containing her own statement, statements of D P, A. A., and  C. E. who were the appellants witnesses, documentation about child minding fees and extracts from the appellant’s daily diary.  Ofsted challenged the relevance of the documents, but did not object to their inclusion in the bundle.  We allowed the documents in, subject to relevance.

5.	 In this matter the appellant is appealing under regulation 12 of the Childcare (Early Years and General Childcare Registers) (Common Provision) Regulations 2008, against the decision of Ofsted to suspend her registration as a child minder.  Our powers under Regulation 12 are either to confirm the inspector’s decision to suspend registration or to direct the suspension shall cease to have effect.

6.	 The appellant registered as a child minder on 28th March 2001, on all 3 registers – the Early Years Register, and Parts A and B of the General Register.  The conditions attached to her registration are:
a)	She may care for no more than four children, of these not more than one may be in the early years group, and none may be under 1 year at any one time.
b)	She must not provide overnight care
c)	When caring for 4 or 5 year old children who are in full time education, may increase the number in the early years group by the number of children in full time education, providing the maximum number is not exceeded.
d)	Must not use the master bedroom.

7.	 An inspection of the premises was scheduled for September 2011, but the appellant had not notified that she had any children on roll.  On 27th February 2012, the appellant notified Ofsted she had commenced child minding and in March 2012 an inspection was scheduled to take place over the next three months.
 
8.	 However on 29 March 2012, Ofsted received a telephone complaint from the parent of two children who were being cared for by the appellant.  The complaint alleged that the children had been picked up from the childminder with unexplained bruises and scratches on their arms and face on about 6 or 7 occasions.  It was alleged the childminder had been asked how they had occurred, but had said she did not know. 

9.	 Other allegations were that the childminder had on one recent occasion forgotten to pick the children up from school, had failed to notify the parent of this fact, with parent only being notified later by the school itself.  It was further alleged the children were brought to the school 30 minutes or more late.  No explanation had been provided by the childminder.

10.	 It was further alleged the children were left with the childminder’s husband on occasion and with a friend on other occasions during the day, when the childminder went shopping.  A further allegation was that the children’s dietary needs were not being met. Other concerns were the use of a photo on the child minder’s website without permission of the mother. The child has also alleged he was pulled by the ear and beaten on the bottom by the child minder on one occasion.

11.	  Subsequently the complainant produced photos of injuries of one of the boys which  showed a linear scar around the nose. An injury to the nose of one child was seen by a social worker. It has also been alleged the child minder has threatened the complainant.

12.	 The school confirmed the boys had been dropped and picked up late on occasion and the appellant’s husband had picked them up on occasion.  They school had no complaint about the care of the boys.

13.	 The complaints were referred by Ofsted to the Local Authority Designated Officer on 30th March 2012.  Children’s Services at the Local Authority convened a strategy meeting on 4th April 2012 where it was decided they would lead an investigation. On 5th April Ofsted held a case review where it was concluded there was a risk of harm and the Appellant’s registration was suspended for 6 weeks to 16th May 2012 under Regulation 10 (1) of the 2008 Regulations.  On 20th April 2012 a further strategy meeting was held by Social Services, where it was agreed the police would now lead a joint investigation with the Local Authority.

14.	 On 16th May 2012, the day the suspension was due to lapse, Ofsted held a further case review.  The investigation was still on-going, and Ofsted determined that there was an undiminished risk of harm.  After considering whether alternative action would be appropriate, it was decided only further suspension would alleviate risk of harm, and the period of suspension was extended to 12 weeks (to 27 June 2012) under Regulation 10 (2) of the 2008 Regulations.

15.	 On 18th May 2012 a further strategy meeting was held by the Local Authority. It was notified the joint police/LA investigation was on-going, with the children being assessed for an ABE interview.  The childminder was to be interviewed jointly by police and social services, although in the event this was carried out by Social Services alone. Ofsted were given permission to interview the Appellant about compliance issues only.

16.	 On 25th May the childminder was interviewed by Ofsted about compliance issues.  A number of concerns were raised, including incomplete record keeping, use of unregistered assistants, lack of information provided to parents about the use of assistants, caring for more children than the conditions of registration allowed, having an inadequate knowledge of safeguarding and safeguarding reporting procedures, and having unsigned accident reports.  Ofsted have not yet decided what action should be taken in respect of these compliance issues and they are awaiting the outcome of the police investigation.

17.	 At the hearing we heard from Ms Ferris of Ofsted that a recent review of the investigation had been held where it was confirmed the investigation was still on- going.

The appellant’s evidence 

18.	 The appellant said in her written and oral evidence that she had commenced looking after the complainant’s two children on 28th September 2011.  There had been instances where, while playing at the childminder’s house the boys had received accidental injuries.  These incidents had been included in her accident book, and the parent had signed one such entry, accepting the account, but had refused to sign in respect of another incident.  Other bumps and bruises, sustained while the children were at school were discussed between the child minder and the parent, when she could not offer an explanation as it had not occurred on her premises.  In respect of an allegation that she had pulled the child’s ear, in fact the child had kicked the baby, was rubbing his ear and the childminder had merely removed his had from his ear.

19.	The Appellant said the parent was often late with payments for the childminding and often payment had to be chased.  There was a disagreement between parties about payment during the period the complainant and the boys were on holiday, with the childminder seeking full payment, the complainant half.  

20.	On 26th March 2012, the complainant gave four weeks’ notice she intended to withdraw the boys from the child minder’s care, referring to the dispute over payment and to other matters.  The child minder later received advice from the NCMA to write and give 14 days’ notice for payment.  She hand delivered the notice on 29th March 2012 for £1545 for the period of notice and the complainant had slammed the door in her face saying she would pay when she’s ready.  On that occasion the mother accepted the child sometimes does not tell the truth about incidents.  The appellant maintained the complaint was malicious, made to avoid payment.  The appellant denied threatening the mother about the bill.

21.	 Later when the child minder dropped the boys off for school, one fell and cut his lip making her late to deliver the second child.  Later that day the childminder was late to pick the child up.  The mother called her to say she was picking the children up, and thereafter they were withdrawn from the childminder’s care. 

22.	 In an interview with Ofsted on 25th May, the childminder said accidents were noted down in the accident book and the parents asked to sign the entries.  On one occasion – 26 March 2012 – the parents had refused to sign.  She denied her husband or friend had ever had sole care of the children.  When the husband delivered the children to school she was also in the car.  She denied the children were not fed properly and mentioned a discussion about menus with the mother.  She said the children had only been delivered late to school once and picked up late twice in 6 months.  She accepted other children had been looked after on occasion, but she had not been paid for this.  She said she was not aware she had to keep records for children she was not being paid for.  Her witnesses A A and C E said in their statements they had never had any cause for concern about care provided by the Appellant for their children.

23.	 The appellant said the suspension has caused her stress and anxiety and has had a significant financial effect.  The bank has blocked her cards because of unplanned overdraft.  She has been unable to buy a first birthday present for her youngest child.  Her husband is not working only training. 

24.	 The appellant has frequently called Ofsted and the Local Authority to ascertain the progress of the investigation and do what she can to speed it up.  She said the investigating authority should try to facilitate the investigation more quickly.  The police had failed to attend her interview on 17th May 2012, which was eventually carried out by the Social Services alone.  The police had never once contacted her. She said her life had been turned upside down by the suspension and investigation.

Consideration by the Panel

25.	 The test for suspension is contained in Regulation 9 of the Childcare (Early Years and General Childcare Register) (Common Provisions) Regulations 2008:
“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.”

26.	 The suspension is initially for a period of 6 weeks if a risk of harm exists, which can be extended to 12 weeks if the risk persists.  The period can be further extended if it has not been possible to complete any investigation for reasons beyond Ofsted’s control (where for example a police investigation is continuing)  (See Regulation    10)

27.	 “Harm” is defined in Section 31(9) of the Children’s Act 1969 as “ill treatment or impairment of health or development, including for example impairment suffered from seeing or hearing the ill treatment of another”. “Development” means physical, intellectual, emotional, social or behavioural development. “Health” means physical or mental health.

28.	 On appeal the Tribunal steps into the shoes of the Inspector and the question becomes “as at the date of the decision, does the Tribunal reasonably believe continued provision of childcare by the appellant may expose the child to a risk of harm”.  The standard of proof lies on Ofsted between the balance of probabilities and a reasonable case to answer.  The belief is to be judged by whether a reasonable person assumed to know the law and possessed the information, would believe a child might be at risk.  The burden of proof is on Ofsted.  

29.	 Suspension is an interim act pending investigation of the allegations.  As such the Tribunal cannot make findings of fact.  Since the facts can only be ascertained by the investigation there should normally be an on-going investigation by either one or more of the police, the local authority, social services and Ofsted.

30.	 We considered the written and oral evidence provided to us. Ofsted’s case is that there are allegations of injuries to children who have been cared for by the appellant, not all of which are explained.  There is visual and photographic evidence to support the existence of injury.  There are concerns about dietary needs, the use of unregistered assistants, poor record keeping, and minding children in excess of numbers permitted.

31.	 Some of these allegations were disputed by the appellant, but, as set out above, we are not a tribunal who can resolve these disputes or make findings of fact.  We are limited to considering whether the continued provision of childcare may expose a child to a risk of harm.  On the basis of the allegations set out above and in view of the fact the investigation is on-going, we are satisfied to the requisite standard that a risk of harm, as defined, remains.

32.	 We reviewed the effect of the sanctions on the appellant.  We noted the stress and anxiety and the financial consequences for her.  However in considering the proportionality of a continued suspension in its adverse effect on the appellant, as against a risk of harm to a child we have concluded that the continuation of the suspension is proportionate and necessary.

33.	 However, while there is no clear evidence the police or other investigatory bodies are dragging their feet, we expect the investigation to be pursued as quickly as reasonably possible, and should this matter return on appeal, full evidence of progress must be given.

We ordered:- 

The decision of the inspector to suspend the registration is confirmed.  The appeal is dismissed.

John Burrow

Judge Care Standards 

15.6.12