Care Standards Tribunal
The Tribunal Procedure Rules (First-tier Tribunal)
(Health, Education and Social Care) Rules 2008
In
the First-Tier Tribunal (Health, Education and Social Care)
Considered
on Papers
On
Wednesday 12th December 2012
Before:
Deputy Chamber President Judge John Aitken
Specialist Member Mr Graham Harper
Specialist Member Mr T John Williams
Mrs Ishrat Nazir
Appellant
-v-
OFSTED
Respondent
[2012] 2001.EY-SUS
Decision
- This matter was listed for consideration on the
papers. That is permissible under rule 23 however not only must both Parties
consent, which they have, but the Tribunal must also consider that it is
able to decide the matter without a hearing. When this matter was listed
on 28th November 2012 we declined to consider the matter on the
papers because the allegations were not disclosed to us. Since that time
the allegations have been disclosed and the Appellant has sought an
adjournment to properly prepare her response, which was granted, to have
this matter considered today following a direction to file further
information.
In this case now we have a good picture of the allegations made, the
response, and the level of risk present from the papers, there appears to
be no substantial factual dispute save the central allegations which might
affect our decision and we consider that we can properly make a decision
on the papers without a hearing.
- The Appellant appeals to the Tribunal against
the respondent’s decision dated 13th November 2012 to suspend
her registration as a child minder on the General Childcare Register under
Section 69 of the Childcare Act 2006, for six weeks until 23rd
December 2012.
- 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 children or their Parents
in this case so as to protect their private lives.
Events
leading to the issue of the Notice of Statutory Suspension.
- The Appellant has been a registered
childminder on the Early Years Register and both parts of the Childcare
Register since 24th February 2009. Her husband Shaukat Nazir
works with her as an assistant.
5.
In addition the
Appellant is a foster carer, from the 16th October 2012 there were
two children in her care under a fostering arrangement through Harrow
Children’s Services and the Sunbeam Fostering Agency, a girl aged 5 “L” and her
brother “M” aged 9.
6.
During a contact
visit on 16th October 2012 “L” disclosed to her mother that the
Appellant had pinched her on the cheek hard which hurt her. This was reported
to the child’s social worker and “M” was spoken to and provided corroboration.
7.
A number of
other issues were raised relating to standards of care of the foster children;
dirty clothing, generally not being cared for well, the school having asking
the Appellant to clean the children’s school uniforms which she had refused to
do, the children being unwashed, “L” being sent to school on two occasions
without underwear, the children having inappropriate shoes, “M” not being taken
to a medical appointment, both being sent to their rooms when the Appellant’s
own child had a party. Ofsted were advised that there was also concern for the
welfare of the Appellant’s own two children and it had been decided that an
initial assessment was to be completed by Children’s Services.
8.
As a result of
the allegations of assault, neglect and poor standard of care, the children
were removed from the Appellant’s care on 19th October 2012 as the
relevant agencies believed they may be at risk of harm from the Appellant.
9.
A multi-agency
strategy meeting was convened on 2nd November 2012 at the offices of
Harrow Borough Council Children’s Services and a child protection investigation
was commenced led by the police. At that meeting it was resolved that Ofsted
should be informed.
- On 13th November 2012 a decision was
taken by Ofsted to suspend the registration of the Appellant and she was
notified accordingly.
Events
following the suspension
- The Appellant was interviewed and after reading
a prepared statement declined to answer questions, she has however filed a
detailed statement refuting the allegations. .
The
Law
- 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 is for a period of six weeks.
Suspension may be lifted at any time if the circumstances described in
regulation 9 cease to exist. This imposes an ongoing obligation upon the
respondent to monitor whether suspension is necessary.
- “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 place of the Chief Inspector and so in relation to regulation 9 the
question for the Tribunal is whether at the date of its decision it
reasonably believes 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.
Issues
- The Appellant indicates in her appeal that she
absolutely denies the allegations. We are not however directly concerned
with that, we are not in a position to decide whether the allegations are
well founded or not. We are in a position to consider the risk to the
children who are present when the Appellant is childminding, given the
allegations which are made.
Conclusions
- We consider that the allegations fall into two
categories, the allegation of physical harm, pinching a cheek on one
occasion, and those related to quality of care on a more sustained basis,
failing to ensure “L” and “M” were clean and properly clothed, treating
them differently from their own children and the like. We have also
considered the references which the Appellant has filed from the Parents
of the children she has cared for, they are glowing and speak of a very
well controlled environment.
- With regard to the “physical” allegation. If
proven there is a risk that this show of temper could be replicated on a
child being cared for, but given the references and the period for which
the Appellant has already been looking after children and of course that
the Appellant might be expected to carefully consider her behaviour during
an investigation we consider that the risk is theoretical rather than
actual.
- With regard to the care allegations, these are
not directly relevant to the children who attend her childminding because
they are if established illustrative of poor longer term care. Given the
references the Appellant has provided we again consider that in respect of
childminding that the level of risk is theoretical rather than actual.
- We are also aware that the children who are
using this provision are settled and need to have stability, they are also
closely observed daily by their Parents, which is closer observation than
for a fostered child. Balancing the risk of harm which may be caused by
disruption to their usual routine, and the levels of risk identified by
Ofsted we consider that given the allegations as we are aware of them at
present, the Appellant remaining on the register until these matters are
resolved does not amount to placing the children who are in her day care
at risk of harm.
Decision
- The
appeal against interim suspension is allowed.
- By
virtue of Section 74(4)(a) Childcare Act 2006 we direct that
the suspension shall cease to have effect.
Judge John Aitken
Deputy Chamber President
Health Education and Social Care Chamber
Thursday 13h December 2012
