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	England and Wales Care Standards Tribunal
You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> AG v OFSTED [2003] EWCST 232(EYSUS) (11 November 2003) URL: http://www.bailii.org/ew/cases/EWCST/2003/232(EYSUS).html Cite as: [2003] EWCST 232(EYSUS)

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AG v OFSTED [2003] EWCST 232(EYSUS) (11 November 2003)

AG v OFSTED
[2003] 232.EYSUS

Heard on 7th November 2003

His Honour Judge David Pearl
(President)
Ms C Joffe
Dr J Low

DECISION
1. Her Majesty’s Chief Inspector of Schools (OFSTED) suspended the registration of AG as a child minder as from 10th October 2003, under the powers contained in paragraph 3 of the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003 (SI 2003 No 332). AG appealed by virtue of paragraph 8 of those Regulations on 14th October 2003. We heard the appeal on 7th November 2003 in accordance with the Protection of Children and Vulnerable Adults and Care Standards Tribunal (Amendment) Regulations 2003 (SI 2003 No
626) that inserted a new Schedule 7 into the original Regulations.

2. At the hearing before us, Miss S Freeborn of Counsel appeared on behalf of OFSTED and the appellant appeared in person. We are satisfied that the presentation of her case was not disadvantaged by the fact that she was not represented by a lawyer, and the Tribunal ensured that she was able to present her case to us clearly and succinctly. However, the Tribunal is very aware of the fact that the appellant in this case, as in most of the other cases it has now heard under Schedule 7, has not had the benefit of lawyers advising her prior to the hearing and representing her at the hearing. It is a matter of some concern that public funding is available in Schedule 4 appeals (persons placed on lists as unsuitable to work with children) yet is not available in Schedule 7 appeals. Some way must be found to enable child minders who are suspended to obtain expert legal advice speedily.

3. The Tribunal made a Restricted Reporting Order (Regulation 18) and an Order Excluding the Press and Public (Regulation 19), with the approval of both parties. Accordingly, the appellant, her two witnesses, her child, and the Child Care Inspector will all be referred to through initials to protect the private life of the appellant, her child, and her witnesses and their children.

4. Before we deal with the facts of the case it is necessary to set out the statutory framework. The Suspension Regulations came into force on 1st April 2003.

5. Regulation 3 states: “The Chief Inspector may,…suspend the registration of any person acting as a child minder or providing day care if he has reasonable cause to believe that the continued provision of child minding or day care by that person exposes or may expose one or more children to whom it is or may be provided to the risk of harm and the purpose of the suspension is for one or both of the purposes set out in paragraph (2). Paragraph (2) states that the purposes of the suspension are (a) to allow time for the circumstances giving rise to the Chief Inspector’s belief to be investigated; (b) to allow time for steps to be taken to reduce or eliminate the risk of harm.

6. Regulation 4 makes clear that the suspension shall have effect for a period of six weeks, but that the power can be exercised for a further period if the investigations are incomplete or if the Chief Inspector has decided to take emergency action under s 79K of the Children Act 1989.

7. Regulation 4(3) is an important provision. It states “Where a further period of suspension is based on the same grounds as the period of suspension immediately preceding that further period of suspension, the Chief Inspector’s power to suspend a person’s registration shall not be exercised so as to give rise to a continuous period of suspension exceeding 12 weeks in aggregate unless it has not been reasonably practicable (for reasons beyond the control of the Chief Inspector) to complete the investigation or carry out the steps under Regulation 3(2)(a) or Regulation 3(2)(b)”.

8. Regulations 5 and 6 deal with notification of the suspension. Regulation 6(1) allows for notification by being delivered personally, sent by post in a registered letter or by the recorded delivery service or by being transmitted electronically.

9. Regulation 7 places an obligation on the Chief Inspector to lift the suspension at any time where he is satisfied that the grounds for suspension no longer apply.

10. In Mrs L.M. v OFSTED [2003] 181.EYSUS, the Tribunal set out the appropriate standard of proof that has to be applied as follows:
“We are of the view that ‘reasonable cause to believe’ falls somewhere between the balance of probability test and ‘reasonable cause to
suspect’ in s 47 Children Act 1989. We agree [with Counsel] that 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.”

11. This approach was adopted by the Tribunal in K v OFSTED [2003] 191.EYSUS.

12. We can formulate the approach that the Tribunal should take in these cases as follows. The Tribunal should look at the facts as they exist at the time of the hearing. When considering these facts, the Tribunal should ask itself two questions. The first of these questions is whether there is reasonable cause to believe that the continued provision of child minding or day care by the appellant exposes or may expose one or more children to whom it is or may be provided to the risk of harm. The second question is whether the suspension is to allow time for circumstances giving rise to the Chief Inspector’s belief to be investigated and/or to allow time for steps to be taken to reduce or eliminate the risk of harm. In our opinion, the Tribunal should consider the questions separately.

13. The first question. This question raises issues of fact to which we now turn. The facts in this case are not in dispute, although the appellant would place a different interpretation on them. The appellant (AG) was born in 1978 and she has one son “A” who was born in August 1999. She was first registered as a child minder by a local authority in November 2000, and her registration was transferred to
OFSTED in September 2001. She was registered to provide care for two children, of whom only one can be under five years old. Of these only one may be aged under one.

14. There was a complaint to OFSTED in October 2002 by a parent of a minded child relating to the appellant permitting a convicted “paedophile” to be on her premises and also to physical chastisement by her of the child. There were investigations by both Social Services and the police, and indeed the appellant was interviewed under caution in November 2002. No further action was taken, although it would
appear that D.C.French informed the Child Care Inspector from OFSTED (Miss H) at that time that there were concerns about the expectations AG had in relation to children’s behaviour.

15. Miss H visited the appellant in November 2002. The Summary Notes of this visit state “I found [the appellant] to be immature and am concerned about her suitability for the following reasons: her inappropriate expectations relating to children’s behaviour and her management techniques; allowing a person into her home knowing that the person may not be suitable to be with children and encouraging him to hide his vehicle to avoid trouble when visiting her; Health – Diazepam twice a day.” As to the visit by the convicted “paedophile” AG told us, and we accept her evidence on this, that he only came into her house on this one occasion and she has never seen him again.

16. On 9th December 2002, Miss H undertook an additional investigation visit to the appellant in the premises to which she had by then moved. In paragraph 9 of her Statement, Miss H states that “during this visit, we…discussed the need [for the appellant] to learn more about appropriate expectations of children and how to manage their behaviour appropriately according to each child’s understanding.” Miss H states that the appellant informed her that she no longer takes Diazepam. However, “she had not completed and taken the Health Form I had previously requested she complete to her new GP.”

17. Miss H told us in evidence that she concluded during this visit that AG lacked experience and some basic knowledge relating to childcare. For example, in her Report of this visit Miss H wrote: “AG described giving the 6 and 8 year olds lines to write saying such things as “I must be good”. Apparently, AG stated to Miss H during this visit that she intended to discuss her needs with the Early Years Development and Childcare Partnership (EYDCP) and agreed to Miss H contacting them. Miss H told us in evidence that she made a telephone call to
EYDCP on behalf of AG to arrange a referral for advice and training. This was never taken up.

18. There were telephone conversations between Miss H and AG on 26th March 2003 and 10th June 2003. In March, Miss H advised AG to contact EYDCP for advice and support in relation to behaviour management techniques. In the June telephone conversation, Miss H told AG that the Post Transitional Inspection would take place as soon as the health clearance had been received. During this telephone conversation, AG told Miss H that it was her intention to move to her father’s house within three or four months. Miss H advised her to write to
OFSTED to notify them of this intention and also to instigate CRB clearance for both her father and her partner (who was moving into the father’s house with her).

19. On 2nd October 2003, Miss H contacted AG to arrange the Post Transitional Inspection, having obtained clearance for this notwithstanding the outstanding health check. Miss H comments on this telephone conversation as follows: “I noted that during my conversation with her she sounded very tired and this was evident throughout my thirty five minute conversation with her. I was informed by
AG that she had been sleeping prior to my call to her as she was currently working night shifts as well as minding children and caring for her four year old child.”

20. The Post Transitional Inspection took place on 9th October 2003 from 12.15pm. Miss H says in her witness statement: “When I arrived at AG’s home, she had been sleeping under the blankets on the settee. When I asked her where her fouryear- old son was, she informed me that he was upstairs in his bedroom. The house was in darkness upon my arrival. Ashtrays were overflowing in the living room, which was generally untidy. The kitchen was dirty, for example there was cat food on the work surfaces”.

21. Miss H relates in her witness statement that after forty-five minutes she heard “A” moving about upstairs. When she went upstairs, she noted that a stair gate was in “A”’s bedroom doorway and that it was locked shut with a chain and padlock. AG informed Miss H that her son had been in his room from 1.00pm until 6.00pm the previous evening. AG told Miss H that she had been offered a fifteen week parenting course but that she had refused this as she did not think this would help her because it is “my son who is the problem”. Miss H was concerned about AG’s understanding of the needs of young children and she told us in evidence that she informed the Social Services of her concerns immediately after she left the premises. She says in her witness statement that “ Social Services informed me that they could publish a small book about AG.”

22. Mr E Warburton, the Manager of the Complaints and Enforcement Team gave evidence before us that he decided to issue a Notice of Suspension immediately. It was served personally by Miss H at 3.05pm on 10th October 2003. There are two reasons stated for the suspension. The first is that “at a visit on 9th October 2003 an authorised inspector observed seriously inadequate care of your own child” and secondly, “the Local Authority Social Services Department notified OFSTED of serious concerns about your ability to provide adequate care for children.”

23. AG gave evidence before us. She described the difficulties she has with her son, “A”, and indeed admitted that she has difficulties coping with him. She explained why she had put the lock on the child gate, and she told us that “A” had got out himself about six times before she did this. Her doctor has given her advice about him, and she thinks that it may be that a different diet may help. She said in evidence “I see problems with “A” rather than with me”. Both of her witnesses, Miss RS and Mrs ES, confirmed that “A” was not an easy child. Miss RS (the
sister of AG) said: “”A” is a naughty child”. Miss RS did say, however, “he is manageable at my home”. In her view “A” “winds his mother up.” Apparently, whilst at school, AG confirmed that “A” was “as good as gold”.

24. In considering this evidence, we have concluded that AG has had considerable difficulty in bringing up her own child “A”. She has unrealistic expectations of “A” and stated in evidence that she preferred to treat him as an adult. She misinterpreted a health visitor’s advice about “time out” and she left him alone in his room for substantial periods. She felt that the help she had been offered was either inappropriate or inaccessible. It may well be that a dietary plan will be of considerable help, and we have no doubt but that a parenting course would also be of benefit. Nonetheless we were struck by how AG blamed her son for the problems, and we can fully understand the concerns felt by Miss H after the telephone conversation on the 2nd October 2003 and the visit on the 9th October 2003.

25. We were concerned also by the night time working from 1.00 am unto 6.30 am. AG told us that she was doing this 3 or 4 days a week. She seemed to fit her child care arrangements into this work, but we had difficulty in understanding how she would be able to care for her own child, and those that she minded, whilst at the same time working three or four nights a week.

26. The next matter that we consider is of concern is the medical evidence. AG told us that she was no longer on diazepam, but that it was given to her for her nerves. She said that she has taken antidepressants to help her with her son “A”.

27. We were shown a letter from Dr M Nye, the Medical adviser to OFSTED addressed to Mrs S Harris, the Child Protection Liaison Officer. This letter states:
“After reviewing all the evidence, I feel that [AG] should have a full psychiatric assessment by a consultant psychiatrist.” The letter is undated, but it was sent by fax on 6th November 2003. It illustrates the concerns of the Medical adviser about AG’s health.

28. We were rather worried about AG’s response to this letter, although it is understood that she was not aware of the letter prior to the hearing. She said: “I am not happy about a psychiatric assessment. I believe if I can get the right sort of help for “A” and his behaviour, I do not need to get any sort of psychiatric help.” Whilst we have every sympathy with AG, we do feel that her reluctance is an indication of her readiness to place the blame totally on the shoulders of her son.This troubles us.

29. Miss H itemised other concerns arising out of her visit of the 9th October 2003. There were failures to fulfil Standards 4, 6 and 7. The failures in environmental standards by themselves would not in our view have necessitated an immediate suspension in that such a response would not have been a proportionate one. However, again we were struck by how AG dealt with these concerns in her evidence to us. Miss H referred to the overflowing ashtrays. AG said in evidence “My ashtrays only have 7 or 8 butts in them and then get emptied.” As to general cleanliness AG said, “the house is not as bad as she made it out to be”. Once a week, she said that she blitzed the house. Her answers illustrated a further lack of insight.

30. Thus, when weighing all three factors: her treatment of “A”, the concerns about her health, and the environmental concerns – we are bound to decide that there is a reasonable cause to believe that the continued provision of child minding exposes or may expose one or more children to whom it is or may be provided to the risk of harm. We decide this after giving full consideration to the evidence of Mrs ES,
the mother of the currently minded children, who told us that her children “love AG to bits” and that “she has always been there for me.”

31. We turn therefore to the second question, namely the purposes of the suspension. The evidence that has been presented to us is to the effect that the Social Services must complete their investigation and there is a psychiatric assessment that needs to be made, prior to a further investigation by OFSTED. Mrs Harris told us that social workers had visited on 10th October 2003 and a child protection investigation has been initiated. On 28th October 2003, the Social Services told her that the investigation was ongoing.

32. It must be right that these investigations be allowed to proceed. In addition, the opportunity should be taken to obtain CRB clearance for AG’s partner, and for her father, and for the father’s premises to be visited. It is our view that both AG and OFSTED should use the period of suspension in a positive way. The time should be used to ensure that the issues surrounding “A”’s behaviour problems are dealt with in the context of help being provided to AG in parenting skills as well as dietary plans being introduced for “A”. Secondly, clearance should be obtained for the father and the partner and checks should be made of the father’s house if that is to be used for child minding in the future. Thirdly, AG should co-operate in the psychiatric assessment, and the investigations by the Social Services. One would hope that the Chief Inspector would have Regulation 7 very much in mind, and lift the suspension as soon as he is satisfied that the grounds for suspension no
longer apply.

33. We should wish to draw attention to two matters that did concern us when considering this case. We were not given any information relating to the Social Services investigation, and the evidence was limited to the anecdotal information that “Social Services told [Miss H] that they could write a book about their concerns” and Mr Warburton recounting to us in evidence that this type of comment was most unusual in his experience. Compulsory Suspension is a serious step, and one would expect more in the way of evidence to be provided to the Tribunal in future cases so that the Tribunal can satisfy itself that Compulsory Suspension was the appropriate and proportionate response. Whilst we are satisfied on the totality of the evidence that a decision under Regulation 3 was correct in this case, we would hope that more information would be forthcoming in future hearings.

34. The second issue that we draw attention to relates to the manner that the suspension was communicated to AG. It would seem that the suspension was handed personally to AG outside her front door and in full view of any neighbours who may have been watching. AG was most concerned about how this was done. We would hope that attention will be given by OFSTED to ensuring that the communication of a suspension is handled in a sensitive manner, and that emphasis is given to privacy. We can well see that communicating a notice of
suspension outside the front door is not the most sensitive way to handle this delicate matter.

35. For the reasons set out in this decision, we are satisfied that there is a reasonable cause to believe that the continued provision of childminding exposes or may expose children to the risk of harm, and that suspension is a proportionate response to allow time for steps to be taken to reduce or eliminate the risk of harm and for circumstances giving rise to the Chief Inspector’s belief to be investigated.

36. Accordingly, we dismiss the appeal in this case. We confirm the decision of OFSTED to suspend registration.

37. Our decision is unanimous.

APPEAL DISMISSED.

His Honour Judge David Pearl
(President)
Dr J Low
Ms C Joffe
11th November 2003.