Ajibewa v Ofsted [2005] EWCST 539(EY) (March 21 2006) 

Oluremi Ajibewa
v.
Ofsted

[2005] 539.EY

Women Intercessors (UK) Ltd
v.
Ofsted

[2005] 645.EY

Before:
Mr Mark Rowland
Mrs Susan Howell
Dr James Lorimer

Mr Colin Onwuegbu, of South Bank Solicitors, appeared for the Appellants.

Ms Wendy Outhwaite of counsel, instructed by Bevan Brittan, appeared for the Respondent.

DECISIONS

1.	Both appeals are dismissed.  We confirm the decisions of the Respondent to cancel the registration of the Appellants for providing day care at St Mark’s Church Hall, London Road, Northfleet, Kent.

REASONS

The events leading to the two appeals

2.	Mrs Ajibewa, the Appellant in the first appeal, is a director of, and the moving force behind, Women Intercessors (UK) Ltd, the Appellant in the second appeal.  There are two appeals before us because Ofsted appears to have issued certificates of registration for providing day care at St Mark’s Church Hall, Northfleet to both Appellants.  Mrs Ajibewa told us that what happened was that the first certificate was issued in her name on 22 August 2002 and, when she pointed out that it was the company that had applied for registration, a second certificate with the same date on it was then issued in the company’s name.  Ofsted had no better explanation to offer.

3.	Quite how any certificate of registration came to be issued in May 2002 is a mystery, because Mrs Ajibewa did not obtain her advanced certificate in playwork until February 2003, but nothing turns on the point because day care was not in fact provided until September 2003.  It was “out of school care”.  During term-time, there was a breakfast club open from Monday to Friday from 7 am to 9 am and an after-school club open from 3 pm to 6 pm.  During school holidays, day care was provided from 8 am to 6 pm.  The clubs operated at the church hall under the name of Winter Childcare.  The children were drawn from a number of local infant and junior schools.

4.	The first inspection took place on 4 November 2003, when it was recorded that the registered provider was the company.  The inspector considered the day care provision to be “satisfactory” but required “action” on seven points, by various dates from 6 November to 1 December, and made another recommendation.  Ofsted did not carry out a further inspection to ensure that the actions required were in fact carried out but instead accepted written assurances and simply issued another certificate in the company’s name on 11 December.  It was planned that the next inspection would take place after 21 months, which would have been in about August 2005.

5.	However, in November 2004, the company sought registration of similar day care provision at a local school and, on 5 January 2005, Ofsted arranged a pre-registration visit to Mrs Ajibewa.  A week later, that proposed visit was cancelled because Ofsted had received a complaint about the care provided for children at the church hall.  In its place, a visit to investigate the complaint was planned for 8 February 2005 but, when a message was left on Mrs Ajibewa’s telephone, her husband rang back to say that she was away on holiday.  The inspectors decided to go ahead with the visit anyway, in order to find out how Winter Childcare was functioning in Mrs Ajibewa’s absence.

6.	There was no-one there when the inspectors first arrived but, after they had visited the company’s address (which they wrongly believed to be Mrs Ajibewa’s home address) and found that empty too, they returned to the church hall and found seven children in the care of a single person who they thought was unknown to Ofsted, who had not been checked by the Criminal Records Bureau and who did not have access to the children’s records.  Moreover, she appeared to the inspectors not to know what she would do in the event of an emergency, other than ring 999, and the activities available to the children appeared inappropriate.

7.	On the following day, notice of suspension of the registration in Mrs Ajibewa’s name was served on Mr Ajibewa.  Mrs Ajibewa appealed but her appeal was dismissed on 23 March 2005, the last day of the six-week suspension.  On 24 March 2005, a second notice of suspension for six weeks was issued.  Meanwhile, Mr and Mrs Ajibewa were interviewed, as were various other people, and the original complaint and others unearthed by the investigation were looked into.

8.	On 3 May 2005, Ofsted wrote to Mrs Ajibewa as follows –

“We write further to the Notice of Suspension which was served on you on 24 March 2005.

“The child protection investigation being undertaken by Ofsted, relating to the allegations which have been made against you in respect of your management behaviour techniques, continues.  Ofsted has been advised that the Police and Social Services are actively pursuing some further interviews before they conclude matters.  Ofsted considers that it should wait until these lines of enquiry are undertaken before it is in a position to conclude its own investigation.

“In addition, Oftsted further notes that it is incumbent upon a Registered Provider to ensure that sufficient staff work at a registered provision, that those staff members have been correctly vetted and that there are sufficient contingency arrangements in place at the Provision to deal with emergencies.  During the visit on 8 February 2005, Ofsted inspectors noted that you had failed to comply with these requirements.  It is noted that since this date, you have continued to fail to address these issues.

“Ofsted is not in a position to lift your suspension as the grounds giving rise to the suspension continue to exist.  The current suspension will therefore continue by virtue of regulation 4(3) of the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003.”

9.	Shortly afterwards, Ofsted issued a notice of intention to cancel Mrs Ajibewa’s registration on the grounds that she had ceased to be qualified for registration for providing day care because (a) she had failed to ensure that every person other than herself looking after children was suitable to look after children under the age of eight, (b) she herself was not suitable to look after children under the age of eight, (c) she was not complying with the Day Care and Child Minding (National Standards) (England) Regulations 2003.

10.	Mrs Ajibewa’s objections were dismissed at a hearing before an objections panel on 12 July 2005 and the registration in her name was cancelled on 19 August 2005.  By a notice dated 12 August 2005, she appealed to this tribunal.  A directions hearing took place on 24 October 2005 and it was as a result of disclosure in compliance with the directions given then that Ofsted rediscovered that a certificate in the name of the company had been issued.  Ofsted issued a notice of intention to cancel that registration.  One ground was that the company no longer had use of the church hall.  The company objected on the ground that it did but the objection was not accepted and the registration was cancelled and the second appeal was brought. The President of the Care Standards Tribunal directed that the hearing bundle in respect of the first appeal should be adopted as the hearing bundle for the second appeal.  The events leading to the first appeal can, for practical purposes, be taken to be events leading to the second appeal.

11.	Meanwhile, on 4 January 2006, Ofsted wrote to Mrs Ajibewa to lift the suspension of the registration in her name on the ground that she too no longer had use of the church hall.  Mrs Ajibewa told us that she did not receive that letter and she and her solicitor were plainly under the impression that the suspension was still in force at the beginning of the hearing of the appeal before us.

Dismissal of the first appeal

12.	It appears that, due to an administrative error when the case was transferred from one Ofsted office to another, Ofsted had by 2005 entirely forgotten that it had ever issued a certificate in the name of the company until it was reminded by the production of the certificate. 

13.	Plainly the registration in Mrs Ajibewa’s own name should have been formally cancelled when the first certificate in the company’s name was issued, or else it should have been formally recorded that one name had been substituted for the other.  As Mrs Ajibewa does not seek registration in her own name, we can simply dismiss the first appeal (which, in the circumstances, does not involve any prejudice to Mrs Ajibewa) and deal with all the issues raised in it in the context of the second appeal instead.

The legality of the third period of suspension

14.	Strictly speaking, this is not a matter before us but it is an important issue, both in relation to practice in other cases and also because the case before us would have been rather different if day care was still being provided at the time of the hearing.

15.	Regulations 3 and 4 of the Child-Minding and Day Care (Suspension of Registration) (England) Regulations 2003 provide –

“Power to suspend registration

“3. - (1) The Chief Inspector may, in accordance with regulations 4, 5, 6 and 7, 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 of the 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).

“(2) 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.

“Period of suspension

“4. - (1) Where the Chief Inspector exercises his power to suspend the registration of any person in accordance with these regulations, the suspension shall have effect for a period of 6 weeks beginning on the date specified in the notification of suspension given to the registered person in accordance with regulations 5 and 6.

“(2) Subject to paragraph (3), the exercise of the Chief Inspector's power to suspend a person's registration shall not prevent any further exercise of that power, at any time, on the same or different grounds and, in particular, where-
(a) the investigation being carried out or the steps to be taken under sub-paragraphs (2)(a) or (2)(b) respectively of regulation 3 are incomplete; or
(b) the Chief Inspector has decided to take action against the registered person under section 79K (emergency application to court).

“(3) 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 sub-paragraphs (2)(a) and (2)(b) respectively of regulation 3.”

16.	There is no doubt that the first two periods of suspension in this case were legitimate.  However, the purported extension of the second period by the letter dated 3 May 2005 was unlawful on several grounds.

17.	First, regulation 4(1) has the effect that a registration may be suspended for only six weeks at a time.  Regulation 4(2) permits suspension for further periods of six weeks, subject to the limitations imposed by regulation 4(3), but there is no general power to extend a suspension indefinitely.

18.	Secondly, it does not appear to us to have been accurate to state that “Police and Social Services are actively pursuing some further interviews before they conclude matters”.  The child protection investigation had been wound up by the social services department at a strategy meeting on 25 April 2005.  The police liaison officer had not been present and had not returned a telephone call, but no-one chased him up. Had they done so, they would have discovered that the Police were not carrying out any further investigations either.  We accept that Ofsted may have believed there to be some loose ends to be tidied up but all that seems in fact to have been outstanding was a query arising out of a record of a concern some years earlier about Mr and Mrs Ajibewa’s own children.  That was not “actively” being pursued by anyone at the beginning of May and was only resolved in November following a single telephone call to the children’s school.  We observe that the pressure of having to renew a suspension every six weeks would require Ofsted to ensure that investigations by other agencies did not drift and get forgotten about.  We also observe that Ofsted can hardly be said to have been carrying out any further relevant investigation of its own after the notice of proposal to cancel registration had been issued.

19.	Thirdly, the failure of Mrs Ajibewa to address to Ofsted’s satisfaction its concerns about staff was not a ground for suspending the registration for a third period of six weeks.  Regulation 4(3) permits such a third suspension only where “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 sub-paragraphs (2)(a) and (2)(b) respectively of regulation 3.”  In this case, the steps to be taken under regulation 3(2)(b) were presumably (having regard to the third paragraph of the letter of 3 May 2005) employing sufficient suitable staff and ensuring that it would be possible to deal with emergencies.  It was not Ofsted’s case that it had “not been reasonably practicable” for Mrs Ajibewa to have done that in the twelve weeks since she had been informed of the reasons for the first suspension.  Its complaint was simply that she had not done it.  That, in our judgement, is not sufficient to bring regulation 4(3) into play.

20.	When one looks at regulation 4(2), it is plain that suspension is to be for such period as is required to enable any investigation to be completed or to enable steps to be taken to reduce or eliminate a risk of harm and that, once that period has passed, Ofsted must either make an emergency application to a justice of the peace under section 79K of the Children Act 1989 or else accept that the registered provider is again entitled to offer day care for young children.  Ms Outhwaite told us that Ofsted considered that, if a third period of suspension was not allowed when a person could have, but had not, taken adequate steps to reduce or eliminate a risk, there would be a lacuna in the legislation because section 79K provides for an order cancelling registration to be made only where “a child who is being, or may be, looked after … is suffering, or is likely to suffer, significant harm”.

21.	We do not accept that there is any such lacuna.  Suspension of the registration of a day care provider is a very serious step.  It can cause very considerable inconvenience and disruption to the lives of parents who make use of the service and can even lead to them having to give up employment.  It also leads to the laying off of staff.  The legislation, rightly in our view, circumscribes its use in cases where a child is not actually suffering, or is likely to suffer, significant harm.

22.	It seems to us that Ofsted could have secured the adequate provision of staff and contingency planning by informing Mrs Ajibewa what it was that would satisfy it.  Thus, it could have asked Mrs Ajibewa to provide it with an up-to-date list of staff, with their qualifications and records of any checks by the Criminal Records Bureau.  It could have asked her to undertake to have the necessary number of staff on duty at all times and not to have a person who had not been checked by the Criminal Records bureau left alone with children.  It could have asked her to show that staff had sufficient training and access to information about the children to be able to respond to any emergencies.  We see no reason why Mrs Ajibewa would not have responded to such requests and, had she done so, the risk to the children would have been reduced, even if it was not eliminated, because it would have been relatively easy for her to abide by her undertakings and she would have had the threat of almost certain cancellation hanging over her if she did not.  Ofsted should have monitored the situation.

23.	Ofsted, however, does not regard it as its function to make such specific requests because to do so amounts to giving advice.  This point arose several times during the hearing in different contexts.  The Day Care and Child Minding (Functions of Local Authorities: Information, Advice and Training) (England) Regulations 2001, made under section 79V of the Children Act 1989, provide for local authorities to give advice to day care providers.  Ofsted’s view is that its role is to regulate rather than to advise and that it is important that the two roles are kept separate so that inspectors are not regulating their own advice.

24.	The principle behind the separation of those roles is an important one, but the separation can be taken too far.  Inspectors told us that they do not give advice in case anyone relies on it when the advice has become out-of-date.  That suggests to us a lack of a sense of proportion.  Ofsted’s failure to say anything that might imply advice often makes it appear to be uncooperative and sometimes makes it appear to be obstructive.  In our judgment, the duty imposed on local authorities to provide advice does not prevent Ofsted from also providing advice that is necessary or desirable in furtherance of its role as a regulator.  Such advice may seldom be required when Ofsted is inspecting institutions in the public sector or large corporate providers in the private sector, but Ofsted’s refusal to say anything that might imply advice seems to us to be quite inappropriate when regulating individuals or small-scale providers in the private sector.

25.	This is particularly so where suspension is involved.  It is highly desirable that Ofsted should do all it can to reduce a period of suspension and if there are steps it feels should be carried out to reduce or eliminate a risk to children that has been sufficient to justify suspension, it should ask for those steps to be carried out, even if that implies advice.  This is essential when the grounds for suspension are running out or a second six-week period of suspension is coming to an end.  If Ofsted’s view, following whatever investigation has been carried out, is that registration should be cancelled but that there are no grounds for making an application to a justice of the peace, it seems to us to be Ofsted’s responsibility, as well as the provider’s, to manage whatever risk is perceived, particularly as Ofsted will often perceive the risk rather more clearly than the provider and, indeed, Ofsted’s reason for considering that registration should be cancelled may be precisely the provider’s lack of perception.

26.	On that approach, there is no lacuna in the legislation.  Most providers will comply with a reasonable request from Ofsted to take certain action because, if they do not, the likelihood of avoiding cancellation of the registration will be slim.  Most who do not wish to comply with such a request are likely to recognise that they are unable to provide day care satisfactorily and will agree not do so.  Where a provider deliberately refuses to comply with a reasonable request or is too incompetent to do so, it may be rather easier to persuade a justice of the peace that there is a likelihood of a child coming to harm than it would be if no request had been made.  Alternatively, users can be advised of the risk.  In practical terms, we consider that the legislation properly applied would work perfectly well if Ofsted were rather more proactive than it has hitherto been prepared to be.  Managing a risk while enforcement proceedings are being taken is a proper role for a regulator.

27.	We appreciate that a competent, or competently represented, provider could have recognised what Ofsted’s concerns were in the present case and have worked out how to address them and how to persuade Ofsted to lift the suspension.  However, the terms of regulation 4 of the Regulations require Ofsted to be more proactive in a case where a provider is not so competent but can be prevented from actually being dangerous without undue effort on Ofsted’s part.  Ofsted has a role, albeit a limited one, in ensuring that a provider meets the most basic standards during the cancellation process so that the users of day care provision are not prematurely inconvenienced.  Taking that action does not mean that cancellation will cease to be appropriate.  The fact that Ofsted has had to show the provider what to do will still imply a concern about the qualification of the provider.  Compliance with any requirement imposed by Ofsted will, of course, be relevant when a tribunal is considering whether to uphold a cancellation decision but, in reality, concerns serious enough to justify consideration of suspension are seldom the result of isolated errors.

28.	If Ofsted does wish to avoid taking the initiative in imposing requirements that might be construed as advice, it needs to take rather more positive action to point a provider in the direction of the local authority adviser.  The leaflet given to a person when suspension is imposed is not written with suspension particularly in mind and does not suggest that a local authority would be a good source of advice if the provider wishes to have the suspension lifted.  Moreover, Ofsted would still have to be prepared to discuss with the provider the sufficiency of any action that the provider proposed to take with a view to having the suspension lifted. 

29.	We also add that there might be some scope for speeding up the process of appealing against a cancellation where there has been a previous suspension, on the basis that much of the work needed to prepare an appeal will already have been done.  The procedural rules under which the Care Standards Tribunal must labour appear not to have been drafted with speed in mind but the parties can agree with each other and the nominated chairman to move more quickly than the rules require.

The ground of cancellation

30.	The effect of various provisions in Part XA is usually clear enough but the drafting is somewhat circuitous in places.  Apart from cases where an annual fee has not been paid, registration for providing day care on any premises may be cancelled under section 79G(1)(b) only if Ofsted “is of the opinion that the person has ceased or will cease to be qualified for registration for providing day care on those premises”.  Mr Onwuegbu argued out that the company was no less qualified than it had been when the last certificate of registration had been issued in November 2003.  In particular, Mrs Ajibewa still had her playwork qualification.  However, section 79B(4) gives a somewhat artificial meaning to the phrase “qualified for registration for providing day care on particular premises”, so that it embraces the suitability of every person looking after children under the age of eight or otherwise living or working on the premises, the suitability of the premises themselves and whether or not the provider is complying with the Day Care and Child Minding (National Standards) (England) Regulations 2003 or any conditions imposed by the registration authority.  Those Regulations make further provision as to the suitability of those looking after, or in regular contact with, children under the age of eight and impose various requirements on providers.  In effect, a person ceases to be qualified if he or she ceases to be regarded as competent or otherwise fails to comply with the Regulations.  We must therefore look in more detail at the grounds on which Ofsted has submitted that the company, and in particular Mrs Ajibewa, is not competent and has breached the Regulations.  We must also consider whether it has suitable premises.

Lack of premises

31.	It is quite clear that, as a strict matter of law, the company does not currently have any right to occupy the church hall.  Such licence as there was appears to have been terminated.  On the other hand, we are not entirely sure that, if this appeal were allowed, the premises might not again become available.  The licence has been terminated at least in part because the breakfast club and after school club have not in fact been operating and because the church was told that registration had been suspended (unlawfully for much of the time).  Moreover, the church has also been told that another body has applied for registration. If this appeal were to be allowed before that application for registration were determined, the premises might well become available again to Women Intercessors (UK) Ltd.  

32.	We agree with Ms Outhwaite that a person cannot be registered in the abstract because registration must always be in respect of particular premises.  That much is clear from sections 79A(6), 79B(4) and 79F(2) of the Children Act 1989.  Ms Outhwaite referred us to six other provisions in the Act, six in the Regulations and four in the National Standards that reinforce the point.  This appeal could therefore not be allowed in the absence of any premises.  However, if we were otherwise minded to allow this appeal, we would adjourn it so that the church could be informed and the question whether the premises would become available could be considered in the light of our desire to allow the appeal.

33.	Notwithstanding her submission that premises were not available, Ms Outhwaite was no more keen than Mr Onwuegbu that we should determine this appeal on that point alone. This is an issue that arises time and again, partly due to the length of time cancellation decisions and appeals take.  Ms Outhwaite referred us to Hall v. Commission for Social Care Inspection [2003] 242.EA, which raised a similar issue under Part II of the Care Standards Act 2000 but where the tribunal declined to determine it, because the case before them was merely an application to strike out an appeal rather than a full hearing.

34.	We did not invite the parties to make more detailed submissions on the issue because they, and we, were agreed as to the approach that we should take.  However, we think it right to explain why we consider we should hear evidence on issues that might have been regarded as unimportant if the church had confirmed that the appellant could not expect to be able to use the church hall in respect of which it is registered.

35.	Registered homes tribunals and magistrates deciding cases under earlier legislation (Parts I and II of the Registered Homes Act 1984 and Parts VII, VIII and X of the Children Act 1989) often had to consider the effect of a registered person ceasing to have use of the premises in respect of which he or she was, or hoped to be, registered.   At least five cases reached the High Court, one of which went on to the Court of Appeal.  None of the cases provided comprehensive guidance.  In those circumstances, it is disappointing that neither Part II of the Care Standards Act 2000 nor Part XA of the Children Act 1989 (introduced by Part VI of the 2000 Act) gives a clear indication as to how appeals are to be determined when premises have ceased to be available, although we accept that the case before the Court of Appeal under the old legislation and the last case before the High Court were not decided until after the Act had been passed. 

36.	Under the old legislation, the issues that arose were slightly different from those that arise under the new legislation.  In particular, the old legislation provided no statutory means by which registration could be brought to an end other than by way of cancellation on grounds of the lack of fitness of the provider or the premises or non-payment of a fee.  Those also were the only statutory grounds upon which registration could be refused.  The new legislation does make provision for resignation of registration.

37.	Another feature of the old legislation was that, in most cases, the registration authorities were local health authorities or local social services authorities, which had the consequence that the Department of Health maintained distinct lists of those whose registration had been cancelled so that registration authorities considering applications for registration from people who had previously had a registration cancelled would know about the cancellation.  The list of people who had had registration cancelled under the 1984 Act had no statutory basis and the mere fact that a person’s name was included on the list did not necessarily mean that another application for registration would be refused.  There was, however, no mechanism, other than perhaps an application for judicial review, by which a person could have his or her name removed from the list.  Under Parts VII, VIII and X of the 1989 Act, the scheme was different.  Cancellation of registration had the effect that a person was statutorily barred from being registered as a provider of childcare or from privately fostering a child, unless consent was obtained.  That was so even if the ground of cancellation had nothing to do with the general suitability of the provider to care for children.  Under the new legislation, the registration authorities are national organisations.  Cancellation of registration does not automatically lead to inclusion on any statutory list, although the circumstances of cancellation may prompt a referral to the Secretary of State so that consideration can be given to the provider being added to the statutory lists of those unsuitable to work with children or with vulnerable adults.  On the other hand, the registration authorities no doubt keep their own records of cancellations and the reasons for them and are able to consult those records whenever a new application for registration is received and to that extent the position may be comparable to that that previously existed under the 1984 Act, save that the registration authorities can themselves form a view as to whether the circumstances of cancellation might have any relevance to future applications made to them. 

38.	Until the decision of the Court of Appeal, the case law in the superior courts under the old legislation was relatively clear.

39.	Because a person could not be registered if he or she did not have, or expect to have, access to identifiable premises, the lack of such premises when a person was applying for registration was bound to lead to a refusal of registration, even though that was not expressly included in the statutory grounds for refusing registration (Woodard v. North Somerset District Council [1998] 1 F.L.R. 950).

40.	However, once a person was registered, it did not follow that loss of premises entitled a registration authority to cancel registration.  On the contrary, there was no power to cancel registration once a person ceased to be a provider (Craig v. Shropshire County Council (unreported, February 18, 2000).  However, if a person lost premises after registration had been cancelled but before an appeal was determined, it was held in Jenkins v. Essex County Council [1999] 1 F.L.R. 420 and Sanjivi v. East Kent Health Authority (unreported, November 13, 2000) that a magistrates’ court or a tribunal, as the case might be, was entitled to dismiss an appeal before it on the simple ground that the fact that premises were no longer available meant that the appellant could not be registered.  The consequence was that the magistrates’ court or tribunal was not obliged to express any view as to the appellant’s fitness to be a provider.

41.	The case that went to the Court of Appeal was Kowlessur v. Suffolk Health Authority (unreported, November 16, 2000). The home in question had dual registration under Parts I and II of the Registered Homes Act 1984 and registration under both Parts was cancelled by, respectively, the health authority and the local social services authority.  By the time the case came before the tribunal, the homeowners had ceased to offer, or to wish to offer, care within the cope of Part II (nursing homes) but they did wish to remain registered under Part I (residential care homes).  They succeeded on their appeal before the tribunal in relation to the registration under Part I but not under Part II.  In relation to the Part I appeal, the tribunal took the view that the cancellation decision had been appropriate at the time it was given but that, in the light of subsequent events, the appellants were not unfit to carry on as a provider of residential care at the date of the tribunal’s decision.  In relation to the Part II appeal, the tribunal rejected a submission that the appeal should be allowed on the ground that the appellants had surrendered the registration before it was cancelled and instead dismissed the appeal on the ground that the appellants had been unfit to carry on as a provider of nursing care when the notice of proposal to cancel the registration was issued.

42.	On appeal from the tribunal’s decision on the Part II registration, the appellants first contended that the tribunal had been wrong to reject the submission that the appeal should be allowed on the ground that, before the health authority had adopted the proposal to cancel registration, the homeowners had already agreed that they would no longer provide nursing care.  Given that the appellants had not in fact ceased to provide nursing care at the date of cancellation, it is not surprising that that ground of appeal failed, both in the High Court and in the Court of Appeal.  Sedley LJ, however, went further and suggested that it would not have mattered if the surrender of registration had in fact taken place before the cancellation, due to the lack of any statutory provision for surrender, which he noted would change when the Care Standards Act 2000 came into force. All the members of the Court were concerned about homeowners being able to avoid having their names put on the non-statutory list that was kept by the Department of Health of people whose registration had been cancelled.

43.	The second ground of appeal was that the tribunal had misdirected itself by considering the fitness of the appellants at the date the notice of proposal to cancel was issued.  In the High Court, Gibbs J rejected that ground of appeal because there had been no evidence of any material change of circumstances after that date.  That point appears not to have been pursued in the Court of Appeal at any length.

44.	Despite, or perhaps due to, the fact that counsel for the Appellant in Kowlessur was counsel for the Respondent in Sanjivi, neither Court considered the issue that arose in the other case.  There is, in our judgment, some tension between the two decisions, although, given the particular facts of Kowlessur, they are not actually inconsistent.

45.	If, as the Court of Appeal clearly reasoned, part of the importance of a cancellation decision lay in the fact that the provider’s name would be added to the Department of Health’s list, there was a strong argument that a tribunal hearing an appeal against such a decision should have considered the provider’s fitness so that the appeal acted as an appeal against the name being included on the list.  That, of course, is the opposite of what was decided in Jenkins and Sanjivi.  On the other hand, as the list in issue in Kowlessur was non-statutory and not conclusive evidence as to a person’s fitness to carry on a home even at the date of the cancellation decision and far less so at any later date and in respect of different premises, taking the Jenkins and Sanjivi approach would have allowed the appellants in Kowlessur to invite the tribunal to dismiss the Part II appeal simply on the ground that they had ceased to offer nursing care and not to express a view as to their fitness.  The Court of Appeal did not consider that possibility and, even more importantly, did not consider what decision the tribunal could have given if it had disagreed with the health authority and had found the appellants not to have been unfit when the notice of intention to cancel had been issued.  That issue would have been brought into greater focus if the Court had not been so dismissive of the second ground of appeal.  It is not entirely clear why the appellants’ ability to demonstrate greater competence in respect of the Part I registration was not regarded as relevant to their fitness for registration under Part II and the logic of the Court’s reasoning suggests that allowing the appeal to the extent of permitting the registration to continue would have been permissible even though the appellants had no intention of providing nursing care.  In particular, Sedley LJ’s reasoning throws some doubt on the reasoning in Craig and even Woodard.  

46.	Given that the Court of Appeal left so many questions unanswered and has left the authority of the previous decisions of the High Court in some doubt, we feel free to take a relatively fresh approach to the new legislation.  Unsurprisingly, Part II of the Care Standards Act 2000, which replaces the 1984 Act and Parts VII and VIII of the 1989 Act, has a similar structure to the new Part XA of the 1989 Act, which replaces Part X of the same Act.  In this case, we are concerned only with the new Part XA of the 1989 Act and it is to that Part that we shall refer.

47.	There is now provision for the resignation of registration.  Section 79J of the 1989 Act provides:

“(1)	A person who is registered for acting as a child minder or providing day care may by notice in writing to the registration authority resign his registration.

“(2)	But a person may not give notice under subsection (1) –

(a)	if the registration authority has sent him a notice under section 79L(1) of its intention to cancel the registration, unless the authority has decided not to take that step; or

(b)	if the registration authority has sent him a notice under section 79L(5) of its decision to cancel the registration and the time within which an appeal may be brought has not expired or, if an appeal has been brought, it has not been determined.”

48.	Thus, there can be no resignation once cancellation proceedings have been set in motion, unless the registration authority considers that resignation is more appropriate than cancellation and either decides not to adopt a proposal to cancel registration or, if a decision has already been made, agrees not to oppose an appeal on the basis that the registration will then be resigned.

49.	However, the new legislation is no more specific than the old legislation about the effect of a person having no premises, if an application for registration is not abandoned or if registration is not resigned.  As we have said, we are satisfied that a person must have, or expect to have, access to the premises in respect of which he or she is registered or applying to be registered.  The scheme of the legislation makes that clear.

50.	In relation to the provision of day care, section 79B(4) has the effect that a person cannot be regarded as qualified for registration save in respect of identifiable premises and section 79F(2) therefore has the effect that a person cannot be granted registration if there are no relevant premises at the time the decision is made.  Equally, where a registered provider ceases to have access to premises and has no expectation that he or she will regain access, section 79G(1)(b) must allow registration to be cancelled on that ground alone if the registration has not already been resigned.

51.	So far as an application for registration is concerned, the position under the new legislation is therefore the same as under the old legislation as interpreted in Woodard.

52.	However, so far as the cancellation of registration is concerned, regard must be had to the impact of section 79J, making statutory provision for resignation.  Of particular importance is subsection (2), prohibiting resignation while cancellation proceedings are under way.  The only purpose we can see in subsection (2) is to allow a registration authority to cancel registration, or a tribunal to confirm a cancellation, on grounds that are different from those causing the provider to resign, because cancellation on the same grounds achieves nothing that resignation would not achieve.  Parliament presumably considered that a registration authority should be able to continue cancellation proceedings on other grounds so that there was a clear record of the finding that, say, the provider was not suitable to look after children under the age of eight.  In other words, the registration authority’s internal records replace the lists previously kept by the Department of Health.

53.	Thus, if a provider ceases to have access to premises after a notice of intention to cancel has been issued, the registration authority has a number of options open to it.  First, if the provider is content to resign the registration, the registration authority may decide not to cancel the registration but to accept the registration instead.  Secondly, whether or not the provider would be content to resign, the registration authority may decide to cancel the registration on the sole ground that no premises are available.  In practice, it seems to us that it would be unlikely to take that course if the provider was prepared to resign, because accepting a resignation is likely to be simpler than cancelling the registration and, as we have said, achieves just as much.  However, the existence of the option is important, because the tribunal presumably has a similar power on appeal.  Thirdly, whether or not the provider would be content to resign, the registration authority may adopt the proposal to cancel registration on the original, or amended, grounds.

54.	If a provider appeals to a tribunal against a cancellation decision given after he or she has ceased to have access to premises, it seems to us that the tribunal must, in principle, also have the same option as the registration authority had of either cancelling registration on the sole ground that the premises are no longer available or on other grounds.  Allowing the appeal would not be an option unless the tribunal were persuaded that the provider had retained, or could be expected to regain, the premises in question.  The parties also have options open to them.  Under regulation 33 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, an appellant can withdraw proceedings and a respondent may withdraw opposition to proceedings and, in either event, the tribunal or the President is obliged to determine the appeal in favour of the other party, irrespective of the merits of the appeal.  An appellant can therefore withdraw an appeal and thereby prevent a tribunal from giving a decision as to the merits of the local authority’s grounds for cancellation.  Alternatively, an appeal may be compromised by the respondent agreeing to withdraw opposition to the appeal on condition that the appellant then resigns the registration (which is more or less what happened in Walters v. Ofsted [2004] 292.EY, where a tribunal had made findings before adjourning consideration of an appeal and Ofsted took the view that the public interest would not be served by a further hearing after the premises in question had been sold). 

55.	If a provider ceases to have access to premises after a cancellation decision has been given, he or she may decide not to appeal and may ask the registration authority to record that the reason for there being no appeal is that access to the premises has been lost.  If there is an appeal, the tribunal must have the same options it would if the premises had been lost before the registration was cancelled.  Equally, the parties have the same rights of withdrawal.

56.	The first question for a tribunal hearing an appeal after premises have been sold (apart from any issue there may be as to possible access to the relevant premises) is therefore whether to cancel registration on the simple ground that the provider does not have access to the relevant premises or to consider other issues.  We consider that a pragmatic approach should be taken.  If the parties cannot persuade the tribunal that there is some practical advantage to be gained from considering other issues, the tribunal should cancel registration on the sole ground of lack of premises.  If the parties can persuade the tribunal that there is some practical advantage in giving a decision on other issues, the tribunal should do so.

57.	It seems to us to be unlikely that there will be any practical advantage in considering other issues unless the appellant is a registered provider in respect of other premises or intends, or is likely in the future to wish, to make a further application for registration.  We doubt that a mere wish by an appellant to clear his or her name will be enough if there is no prospect of him or her seeking registration in the future.  However, it is unnecessary for us to decide that point.

58.	In the present case, both parties wish us to consider other issues and there are sound practical reasons for that.  The company still wishes to provide day care somewhere, even if the church hall is unavailable, and the grounds upon which Ofsted cancelled the registration in this case would obviously be relevant to an application by the company in respect of any other premises.  The issues arising in respect of those grounds could, in theory, be determined in an appeal against a refusal of another application for registration, but that would be unsatisfactory because it would take some time.  Memories fade, staff move on and, in any event, it is not always easy to hang on to premises while an appeal against a refusal of registration is pending so that the same problem might arise again.  Moreover, all the other effort involved in making and considering a fresh application would be wasted if the appeal were unsuccessful.

59.	In all these circumstances, it would plainly be wrong for us to confirm the decision to cancel registration on the sole ground that the church hall is not, and will not be, available to the company, if that proved to be the case.  We therefore turn to the other grounds for cancellation.

Staff

60.	A large proportion of the Ofsted’s grounds for opposing this appeal relate to the numbers and quality of the staff employed by the Appellant and the records kept in respect of members of staff.

61.	Section 79B(4) provides that a person is qualified for registration for providing day care on particular premises only if, inter alia, “every person looking after children on the premises is suitable to look after children under the age of eight”.  National Standard 1 repeats that and requires staff to submit to a vetting procedure, including a criminal record check, and the provider to ensure that staff who have not been vetted are never left alone with children.  It also requires that the manager have at least a level 3 qualification appropriate to the work and that staff all have appropriate experience, skills and ability to do their jobs.  Standard 2 requires, inter alia, that half of all staff hold a level 2 qualification, that there be a minimum staff ratio of 1 to 8 but a minimum of two adults on duty at any one time and that accessible records of staff should be kept.  Standard 7 requires that those responsible for the preparation and handling of food are fully aware of, and comply with, regulations relating to food safety and hygiene (which effectively means that they must hold a food hygiene certificate) and that at least one member of staff on the premises has a current first aid training certificate, including training in first aid for infants and young children.  Standard 14 requires Ofsted to be informed of any changes in members of staff.  The requirement to notify Ofsted of changes in members of staff is statutory (regulation 6 of, and paragraph 2(1)(b) of Schedule 2 to, the Day Care and Child Minding (National Standards) (England) Regulations 2003 (S.I. 2003 No. 1996).  So is the requirement to keep records of the staff on the premises or in another place agreed with Ofsted (regulation 7(1)(a) and paragraph 7 of Schedule 3).

62.	The tribunal asked Mrs Ajibewa to produce all the staff records, which she did.

Formal qualifications

63.	Mrs Ajibewa was the “person in charge”, or manager, of Winter Childcare throughout the period of registration.  Accordingly, only she needed to have a level 3 qualification, which she did have.  She is also a graduate.  The only complaint made about her personal formal qualifications was that her first aid qualification does not appear to have included the necessary training in first aid for infants and young children.  Mrs Ajibewa seemed genuinely surprised that the qualification was not regarded as adequate and, although she should have known that, the defect is easily remediable and is one of the least serious allegations in this case.

64.	Mrs Ajibewa’s husband has also cared for children in the church hall.  He is highly qualified academically but holds no childcare qualification and has only completed about half a modular teacher training qualification.  No evidence of teaching or childcare qualifications was produced for any other member of staff.  Ofsted submitted that neither Mr Ajibewa nor anyone else was qualified to be a “person in charge”, but that is immaterial as Mrs Ajibewa was the “person in charge”.  Ofsted inspectors still seem confused about the term “person in charge” (see Walters v. Ofsted [2004] 292.EY, at paragraphs 54 to 57).  What is more serious is that Mrs Ajibewa represented her husband to Ofsted inspectors as being a “well qualified teacher, researcher and consultant” in a context where that implied that he was qualified as a schoolteacher in the United Kingdom.

65.	Even more serious is Mrs Ajibewa’s apparent disregard of the exhortation in National Standard 2 to have half of her staff qualified at least to level 2 or, alternatively, her failure to keep proper records of their qualifications (either by having copies of certificates or having information from an agency who had seen the certificates).  We appreciate that it is not always easy to recruit qualified staff but she appeared to place no value on leading her staff towards qualifications.

66.	That is not to say that all her staff were unsuitable.  Ms Agboola appears to have had a teaching qualification from Nigeria, although we have not seen any concrete evidence, and Maria Monrose appears to have been a foster parent according to her enhanced criminal record certificate.  One agency worker appears to have had a social work qualification, but again we saw no copy of a certificate.  However, we heard evidence from one young member of staff, Theresa Rockett, who said she was told that she would receive training but did not do so in the nine months she worked there. We accept that Ms Rockett’s evidence was qualified in that she did say that she was shown by Mrs Ajibewa herself what to do at the church hall.  There may also be some force in Mrs Ajibewa’s suggestion that Ms Rockett failed an interview and took no adequate initiative herself as regards external training and could have been expected to do so, but Mrs Ajibewa could have provided her with more advice and it should have been regarded as being in the Appellant’s interest to have staff with formal qualifications.  

67.	Mrs Ajibewa also had Ms Rockett and her cousin, Elizabeth Fitzgibbon, preparing food, when neither of them had a food hygiene certificate or had ever had any formal training in food preparation.

Notification and vetting

68.	When new staff were employed, Mrs Ajibewa should have ensured that they completed Form DC2 and sent it to Ofsted.  Form DC2 serves two purposes.  First, it is notification that a new member of staff has been employed.  Secondly, it is that member of staff’s consent to undergo the vetting procedure.

69.	It is quite clear that no DC2 form was ever submitted in respect of Mr Ajibewa, Duppe Ayodele, Theresa Rockett, Elizabeth Fitzgibbon, Stella Omasora or Maria Joseph and we did not see one for Maria Monrose either.

70.	Ofsted appears also to have been unaware that DC2 forms had been sent in respect of Bola Agboola and Malik Miah.  However, on 29 November 2004, Ofsted received from Mrs Ajibewa an application by the company to open a new day care centre at one of the schools from where children came to St Mark’s church hall.  With that application on form DC1 were not only a DC2 and DC2A in respect of Mrs Ajibewa herself but also DC2 forms for Ms Agboola and Malik Miah.  They were included among the names of the staff intended to work at the new setting but in fact the forms were completed with the address of the church hall as the address of the setting.  Mrs Ajibewa appeared to regard those forms as adequate notification to Ofsted that the staff were working for the company and we are prepared to give her the benefit of the doubt on the basis that she may not have realised the extent to which Ofsted compartmentalise information about different settings run by the same business.  Moreover, the applications would have resulted in a CRB check which would obviously have amounted to clearance to work in either setting.  However, neither DC2 form was completed properly and so they were both returned and neither had resulted in a CRB check by the time the registration was suspended.

71.	Mr Ajibewa, Ms Ayodele and Ms Monrose did, however, have enhanced criminal record certificates obtained as a result of comparatively recent applications in connection with other providers.

72.	The fact of the matter is, though, that Mrs Ajibewa had failed to ensure that the company complied with its statutory duty to keep Ofsted informed of who was working with the children and she failed to ensure that proper checks were carried out on all her staff.

73.	In respect of Malik Miah, she appears to have thought that he did not require a check if he was working only as a driver, collecting children from school.  However, that is plainly not correct and Mrs Ajibewa should have known that.  Ofsted’s case was that he had, in any event, been recruited to work looking after the children in the church hall as well as driving.  We are not sure that Mrs Ajibewa was being deliberately dishonest in this instance.  Neither her records nor her oral evidence was particularly clear but it is plausible that he was recruited as a driver but very shortly afterwards started working in the church hall.  There was a suggestion that he had complained that employment for a mere five hours a week was insufficient and that, in any event, Mrs Ajibewa wanted a male member of staff.  He was one of the members of staff in respect of whom a DC2 was completed at the end of October 2004.  His application form for employment was signed in November 2004.

74.	There were also occasions when staff who had not had criminal record checks were allowed to work with children unsupervised.  Ms Agboola was found to be in that position on 8 February 2005.  It is true that a DC2 form for her had been submitted, even if there was confusion as to the setting to which that form related, but that form only amounted to consent to have the checks carried out.  Mrs Ajibewa knew that no certificate had yet been provided to show that the checks had been completed.  Her husband either also knew or he should have known.  The explanation for her working alone was that Mrs Ajibewa was abroad and her husband went to a meeting in connection with funding.  He pleaded an inability to find agency staff to cover for him.  His choice of attending the meeting rather than providing adequate attention for the children is indefensible and shows Mrs Ajibewa’s poor judgment in leaving him and Ms Agboola in charge of the setting.  What makes it even worse is that Ms Agboola appears to have had little concept of what was required of her.  We accept that she was not giving the children as much attention as she would have done had the inspectors not been there, but she appears not to have an adequate selection of activities out and, when the inspectors suggested she should get something else out, she set up a dart board and had some of the children playing with adult darts, until one bounced off a window and the inspectors put a stop to what was a manifestly dangerous activity for such young children, particularly in view of the lack of adequate supervision.

75.	This was not an isolated incident.  Theresa Rockett, who also did not have a Criminal Record Bureau check, told us she was often left alone looking after children in the afternoon while Mrs Ajibewa went out shopping and that she felt she really did not have enough experience, at least at first.  She also said that she was usually left alone in the morning session, when there were fewer children, and that was supported by the evidence of parents, although only one who gave oral evidence.  Mrs Ajibewa denied that Ms Rockett was ever left alone but we see no reason why Ms Rockett or parents should be fabricating their evidence.  We also accept that there were also some occasions when only one unchecked member of staff picked children up from school, although we are not satisfied that that was a regular occurrence.

76.	Two rules were broken here: the rule that unchecked staff should not be left unsupervised with children and the rule that there should be a minimum of two staff on duty.  Those, and the rule that Ofsted should be notified of all new staff, are simple straightforward rules that should be known to anyone carrying on a business as a day care provider. There is really no excuse for not organising staff so that the rules are not broken.

Collection from schools

77.	It is convenient to deal here with a number of issues about the arrangements for collecting children from schools.  Schools on up to four sites were involved and on some sites there were separate infant and junior schools.  The logistics of collecting the children appears not to have been easy, given the distances between the schools and the times at which the children were allowed to leave the schools.

78.	We appreciate that the arrangements will have had to change from time to time as children started or left Winter Childcare.  However, we were not impressed by the lack of any clear and consistent plan for collecting the children that could be simply explained to us.  

79.	Latterly, most children were collected in a minibus, usually driven by Malik Miah.  When that was used, there should have been an escort.  We accept that that was usually the case but there appear to have been cases when there was no escort, which would be consistent with the evidence of staff being left alone in the church hall when there were not enough of them.  In particular, there was one occasion when children were observed to have been locked in the minibus, presumably on the ground that there were insufficient members of staff for them to be looked after at the same time as other children were being collected from the school.  Other children appear to have been collected by Mrs Ajibewa in her car.  There was some evidence that, on some occasions, more children were collected by her than could be provided with seatbelts.  We see no reason to disbelieve that evidence.

80.	There was also evidence that at one time the collections from one school were late, that Malik Miah had driven into the playground on one occasion, nearly knocking down a child and that staff from Winter Childcare had not adequately supervised children when they were being collected.  Save insofar as that may be a reflection on the lack of training of staff or on their numbers, Mrs Ajibewa cannot be blamed for everything that the staff do when she is not present and there was some evidence that things did improve when the school contacted her.  We are not convinced that the evidence as to the collection of the children adds much to the other evidence suggesting that there were not always enough staff and that planning was very much ad hoc without sufficient regard to the legislation and National Standards.

Staff records

81.	We were not impressed by the staff records produced to us.  There were some members of staff, such as Ms Rockett and her cousin, for whom there was no record at all.  We also found it strange that Mrs Abijewa should be so vague as to who was employed when and for what purpose.  She was remarkably imprecise as to the number of people employed at any one time and the number of hours they worked and she appeared to have no scheme for determining how many people were needed as the numbers of children fluctuated.  This was at its most pronounced in relation to the arrangements for collecting children from schools.  There was no way of determining from any of the records we saw who was on duty on any particular day, because there was no “daily record of … the names of the persons who looked after [the children]”, as required by paragraph 4 of Schedule 3 to the Day Care and Child Minding (National Standards) (England) Regulations 2003.

82.	Nor was Mrs Ajibewa able to assist us through reference to any financial records.  She was unable to produce any records in relation to agency staff, although she claimed to use them.  Moreover, we asked for Ms Rockett’s pay records, because Ms Rockett had said she was being paid £50 per week for a 25 hour week, which was less than the statutory minimum wage.  It is fair to say that Ms Rockett was astonishingly vague herself as to how much she was actually being paid but £50 pw was what Mrs Ajibewa herself had said in one interview was what she was paying her.  Mrs Ajibewa produced a document showing payments of £112.50 pw, gross for every week from 12 September 2003 to 2 April 2004.  However, she was unable to explain how and why the document had been drawn up and we conclude that it was produced for the hearing and was not a contemporaneous record of what was actually paid.

83.	Mrs Ajibewa certainly did not attempt to use pay records to demonstrate that adequate numbers of staff were employed at all times.  Inspectors were told that some members of staff were volunteers, but there was no evidence of the terms on which they made themselves available.

84.	At our request, she produced some rotas purporting to show which staff were on duty on which days and what activities were available for the children.  At least one was shown to be inconsistent with other evidence but we accept Ms Outhwaite’s submission that the documents appear to have been of no practical value as working documents and to have been produced for the hearing.

Other records

Daily register

85.	Paragraph 4 of Schedule 3 to the Day Care and Child Minding (National Standards) (England) Regulations 2003 requires that there be kept a “daily record of the names of the children looked after on the premises [and] their hours of attendance”.  This was a matter that had been commented on by Ofsted at the inspection in 2003 and it had accepted an assurance that a register was being kept.  However, Ofsted did not ask to see it and the register produced to us was inadequate, although Mrs Ajibewa plainly thought it was what Ofsted had wanted.  It was inadequate because it did not record the times the children came in and went out, which was the result of using a book of a type designed for school registers.  It was designed simply to record presence or absence at a session on the assumption that children remained for the whole session, which is not always the case with day care.  The children at the after-school club were, we were told, ticked in and out in the boxes designed for morning and afternoon sessions.  This meant that no record was kept of attendance at the breakfast club.

86.	Rather more serious, because it cannot be due to a mistake, was the fact that the register could be shown to be inaccurate by other evidence.  For instance, in October 2004, the wrong week seems to have been entered as half term and the register failed to record the children who were being cared for at half term.  A further example is that one witness had a young daughter who was being cared for and her name did not appear on the register at all.  Other children who had left had been marked as attending and then had the ticks overwritten.  Mrs Ajibewa had no adequate explanation for that state of affairs.  She said that names were recorded on a piece of paper and the information was then transcribed into the book but she was not clear as to why that was being done and it did not explain the sorts of inaccuracies that we saw.  The truth is that the record was made up after the event in a way that meant that it could never have been expected to be accurate.  That defeats the whole object of the statutory requirement.

Accident records

87.	Paragraph 5 of Schedule 3 to the Day Care and Child Minding (National Standards) (England) Regulations 2003 requires that there be kept a record of accidents occurring on the premises.  The term “accident” is not defined but a member of staff accidentally trapping a child’s finger in a door should have been recorded, even if very minor bumps were not.  We accept the evidence of the child’s father that no written record was forthcoming until he demanded one.  That Mrs Ajibewa then provided a record shows that she knew what she ought to have been doing, but she should have been recording accidents as a matter of routine and she was clearly not doing so.  Ms Rockett was never told to record incidents in writing, although she did tell parents about them when they picked up their children, and there were references in the evidence to injuries that were not recorded.

Medication records

88.	Paragraph 6 of Schedule 3 to the Day Care and Child Minding (National Standards) (England) Regulations 2003 requires that there be kept a record of any medicinal product administered to a child on the premises.  Mrs Ajibewa said that no child had medication and so records were unnecessary.  Indeed, the policy was not to administer medication.  However, she was obliged to accept that one child had an inhaler due to his asthma and that his use of it with staff help had not been recorded and that there was no system for doing so.  That was a breach of the Regulations.

Emergency procedures

89.	Regulation 7 of, and paragraphs 1, 2, 8 and 9 of Schedule 3 to, the Day Care and Child Minding (National Standards) (England) Regulations 2003 require that there be kept on the premises (or at another location agreed with Ofsted) details of children and ways of contacting their parents and procedures to be followed in the event of fire or a child being lost or not being collected.  It appeared to the inspectors on 8 February 2005 that Ms Agboola did not have access to any material records and had no idea what to do in an emergency except dial 999.  However, Ms Rockett told us that she had always had a book with contact details for parents and we are not convinced that Ms Agboola did not have similar records and would not have been able to deal with at least some emergencies, although she would have been handicapped by the fact that she had been left alone with the children and had no first aid training.  Nonetheless, her rather lame answer to the inspectors does suggest a lack of any clear plan or instruction by Mrs Ajibewa and that is unacceptable.  

Play, homework, behaviour and safety

90.	The Respondent called some witnesses who were unhappy with the care provided for their children and the Appellant called witnesses who were happy with it.  In part, this reflected different expectations from parents.

91.	Our impression from the witnesses is that there were a fair number of activities for the children and that the children generally enjoyed themselves at Winter Childcare.  However, some of the play seems to have been fairly boisterous and degenerated into scuffles among the boys and also one girl and there were certainly times when they were not adequately controlled.  Older children swinging rockers intended for younger ones was one example.  Another was the extent to which two of the boys ran wild in the lavatories as though they were an extension of the play area.  It appears also that football was played inside and due care was not always taken of the children not participating.  A couple of parents referred to their sons getting more minor bumps and bruises at Winter Childcare than they ever got anywhere else.  One parent was particularly concerned that her son was not adequately persuaded to do his homework and she effectively blamed Winter Childcare for the decline in his reading standards.  Mrs Ajibewa retorted that parents had to provide their own time and that children expected to play at Winter Childcare and could not be made to do homework the whole time.  We have some sympathy with that and note that there were passing references to other children actually doing homework.  What Winter Childcare can be criticised for is giving way too readily to children’s short-term desires and not providing adequate encouragement to the less well-motivated of them to balance play with homework.  There was not a great deal of structure in the supervision as far as we can see.

92.	The lack of control was also accompanied by a lack of sympathy for the weaker children.  It was not appropriate for Mrs Ajibewa to respond to a parent’s complaint about aggressive behaviour by other children towards her son by calling her son a “softie”.

93.	This lack of control and the lack of structure are, of course, a reflection on the lack of training of the staff.  We are not, on the other hand, satisfied that there was inadequate equipment.  The only suggestion to that effect came from the inspectors who visited Winter Childcare on 8 February 2005.  We accept their judgment that an inadequate array of equipment had been got out.  However, they accepted that there was more equipment in the cupboard and that neither had checked to see what was there, because that would have involved separating Winter Childcare’s stock from that of a pre-school group that also used the church hall.  Ms Outhwaite was scornful of the suggestion that the stock in the cupboard might have been more interesting than the stock that had been got out but that depends on an assumption as to the competence of Mr Ajibewa and Ms Agboola, since Mrs Ajibewa was away at the time.  As Mr Ajibewa thought it acceptable to leave Ms Agboola by herself and as Ms Agboola apparently thought that playing with adult darts was a suitable activity for young children, we do not think the assumption justified.  We add that we are not satisfied that the adult darts were actually part of Winter Childcare’s stock of equipment.  It would have been extraordinary if they had been and they could well have been left in the cupboard after some other event in the hall.

94.	The extent to which the children ran about the premises was also made more serious the complaint of one parent that the front door could be, and indeed often was, opened by children.  It led to a busy main road.  Mrs Ajibewa denied that there was a problem but she was not convincing as to why children could not open the door and we see no reason to disbelieve the evidence that they did. 

95.	All these sorts of problems are exacerbated if there is an insufficient number of staff.

96.	Complaint was also made by Ofsted about Mrs Ajibewa’s use of a card system for inducing Child B to behave properly.  He would be given a yellow or red card at the end of the session if he did not behave well and a green card and perhaps some sweets if he did.  It was said that that a child as young as Child B needed a sanction that was more closely related to particular incidents.  Mrs Ajibewa said that a similar system was used at Child B’s school.  We accept that use of the cards would have been inappropriate as the only way of managing behaviour but we do not consider that it was inappropriate in conjunction with other methods and it plainly was not intended as the only measure.  Child B was spoken to at the time of any incident and might be taken out of the main hall.  We therefore reject this criticism of Mrs Ajibewa.  We also consider that her saying that Child B was “scared” of getting a red card was merely a way of saying that he did not want one and did not imply any underlying fear of physical punishment specifically associated with the card system.

Physical abuse

97.	There was some evidence that a few of the children had behavioural problems and one child in particular, known at the hearing as “Child B”, was a considerable handful at the age of five.  We heard evidence from the headteacher of his school, who described him as one of the most challenging children there.

98.	It was Child B’s mother who had made the complaint that had led to the cancellation of the pre-registration visit to Mrs Ajibewa in January 2005.  The exact terms of the complaint were not put in evidence before us but, on 4 March 2005, she signed an investigation statement saying that her son had told her “before Christmas” that Mrs Ajibewa had hit him and had also put him in a dark cupboard.  On 30 November 2005, she signed a rather fuller statement saying she had noticed her son becoming scared and withdrawn and had asked him if he was worried about anything, whereupon he had said that Mrs Ajibewa had pulled his ear to get him away from other children and had hit, punched and poked him and had also slapped him around the face, but not hard.  She said that he had also told her that he had been put in a dark cupboard or the hallway between the kitchen and main hall area.

99.	In any event, upon receipt of the complaint, the social services department and police established a child protection investigation.  On 2 February 2005, Child B was interviewed at his school by D.C. Jarvis, a police liaison officer with eight years’ experience in a child protection team.  A social worker was present and took notes.  Child B’s mother was also present and so, for part of the time, was his headteacher, but neither took any active part in the proceedings.    Neither Child B’s mother nor the social worker was able to attend the hearing before us, although both submitted signed witness statements.  D.C. Jarvis did give oral evidence, but he had not previously made a statement and understandably did not have a detailed independent recollection of the interview.  Unfortunately, the social worker’s notes are of very limited value as a record of exactly what was said.  In relation to these two allegations, the full note reads –

“Didn’t like [Mrs Ajibewa] ‘cos she kept hitting me ‘cos I was running around she was nasty and wouldn’t let us.

“She used to hit me in the stomach and face – punched me in stomach and slapped my face pointed at me in the stomach but I didn’t like it.

“She didn’t like me she kept slapping my bum.

“….

“Only lets me sit down not allowed to do nothing.

“She used to put me in the dark room.

“One of the grown-ups in there sometimes I was in there on my own – got frightened.”

100.	Mr Onwuegbu objected to us hearing evidence from D.C. Jarvis, who had not made a witness statement in these proceedings.  However, we decided to hear the evidence because the social worker’s note and witness statement had been in the bundle of evidence and so the Appellant was not being taken by surprise by a new allegation.

101.	D.C. Jarvis said that he recalled Child B as “quite an outgoing lad but he was a bit reticent to talk about the out-of-school [club]” (although the social worker said in her written statement that she had thought him “happy to discuss his time [there]”).  He said that he would usually have asked a child like Child B to demonstrate how he had been hit but he could not recall whether he had done so on this occasion.  His understanding of the reference to a “dark room” was simply that it was a room that was dark.

102.	Child B’s headteacher recalled that he had said that he had done something wrong and had a punch inflicted on him.  She said that he did not express himself well but was not capable of making things up.  He always owned up to misbehaviour and, as far as she could tell, told the truth.

103.	Mrs Ajibewa flatly denied ever having hit Child B or ever having put him in a dark room by himself, although she said that he was taken into another room with a member of staff if he was being very disruptive.  

104.	One illuminating piece of evidence came from Theresa Rockett, who felt uncomfortable at the rough manner in which Mrs Ajibewa grabbed children, including Child B and her own child, when reprimanding them.  She said that Mrs Ajibewa also shouted aggressively at the children.  Mrs Ajibewa denied being rough with the children or shouting at them.  We found Ms Rockett to be a straightforward witness with no particular axe to grind and we accept her evidence.  She was a young girl in her first job and had not been adequately trained and we do not find it surprising she did not stand up to Mrs Ajibewa.  We note that she did not recall any child being isolated in another room, although a child might be made to face the wall for a few minutes.

105.	Mr Onwuegbu suggested that D.C. Jarvis was not qualified to interview Child B or draw conclusions from what he said, but we reject that suggestion.  He is clearly very experienced in this sort of investigation and has been appropriately trained.  Moreover, he was a careful witness and made clear that there were matters that he simply could not recall.  Mr Onwuegbu also questioned the headteacher’s qualification for giving an opinion as to Child B’s honesty, but we consider she was entitled to speak from her own experience.

106.	We accept the social worker’s note of the interview, as far as it goes.  We also consider it most unlikely that Child B deliberately fabricated a story for the police officer and social worker.  However, we have some doubts as to the reliability of the detail of what he said, or is said to have said.  As Mr Onwuegbu submitted, the evidence is hearsay.  The social worker’s note is brief and, although it doubtless accurately records her understanding of the import of what was said, we are not convinced that it necessarily conveys an accurate impression of the context, which would be important in determining how much significance to attach to the precise words used by Child B.  Equally, we have not been able to ask Child B’s mother questions about what he said to her.

107.	Given how difficult Child B was, given Ms Rockett’s evidence as to Mrs Ajibewa’s behaviour towards him and her own child and given our finding that Child B was not fabricating a story, we have no doubt that there were occasions when Ms Ajibewa roughly handled Child B.  How often that was and whether there were occasions when she went further than what some parents would regard as reasonable, we are simply unsure.  A “punch” sounds serious but there does not appear to have been any injury to Child B that the mother had thought at the time was serious or the result of anything other than boisterous play.  That is not conclusive but it does suggest a limit to the level of violence that can have been used.  The evidence before us is not of sufficient quality to permit us to make any more precise finding.

108.	However, even on the finding we do make, Mrs Ajibewa behaved inappropriately.  Regulation 5 of the Day Care and Child Minding (National Standards (England) Regulations 2003 expressly forbids the use of corporal punishment.  Physical restraint is permissible only if it is a proportionate way of dealing with a risk of injury.  It is possible that Mrs Ajibewa used no more force than would be lawful if it were a case of a parent inflicting it on his or her own child, but parents are entitled to expect more gentle child care from registered providers.  

109.	As to the “dark room”, we are again unsure as to what happened.  It became clear during the hearing that the community room near the main church hall was regarded as being dark, even when in normal use.  Mrs Ajibewa did not deny that Child B was taken there; she only denied that he was left alone.  However, Child B’s mother referred in her last statement specifically to the corridor outside the main hall. Although the wording suggests that that may not have been Child B’s own description, it is not implausible that he was told to stand in the corridor outside the main hall, as the next step up from being made to stand facing a wall in the hall itself.  Winter Childcare’s published policy referred to isolating a child if behaviour was unacceptable.  It was not seriously suggested that taking Child B out of the main hall was wrong in itself; it was leaving him by himself and doing so in a dark environment that were the matters of complaint.

110.	We accept that there were occasions when Child B was left by himself because we consider that he would not have made that up or been mistaken.  This was plainly wrong, but we are not sure quite how serious it was because it may have been for only a few moments while, for instance, an instruction was given to the other staff.  We are not satisfied that the environment was deliberately made dark or that Child B was made to stand in the corridor with all the doors shut or that his being in a dark room was routine.

111.	As Mr Onwuegbu submitted, there was no properly proved link between Child B’s anxiety and apparent fear of the dark and this isolation.  The anxiety and fear of the dark might have been the result of family upheaval or the consequence of Mrs Ajibewa’s roughness towards him in the main hall.

Losing a child

112.	Child B’s mother also complained that her son had been lost in McDonald’s at the Bluewater shopping centre and that was investigated by Ofsted.  The incident appears to have happened in the October 2004 half-term holiday when Child B was being cared for all day.  On their return from Bluewater, Mrs Ajibewa told Child B’s mother that he had lost a toy at McDonald’s and it so happened that Child B’s mother went to Bluewater the next day to try and buy a replacement.  When she was unable to do so, she went to McDonald’s to see if, by any chance, the staff there had found the missing toy.  They had not but the manager spoke to her and expressed her concern at what had happened the previous day.  It was not, of course, until March 2005 that the manager was interviewed by Ofsted and it was over a year after the original incident that she gave evidence to us.  

113.	The manager told us that a member of staff had found a young boy crying in the lower seating area outside the toilet for disabled people.  He had said he had lost his toy in the toilet and they had searched for it unsuccessfully.  There was no sign of anyone with him but he had said he was with a childminder and the manager had waited with him for 20 minutes near the food counter before a woman with a buggy came up to her from outside McDonald’s to take the child from her without any explanation.  She was sure of the time because she had looked at the clock, as she frequently did in order to manage her staff.  She said that McDonald’s had not been busy and seldom was at that time of the afternoon.  She remembered speaking to the boy’s mother on the following day.  She was cross-examined by Mr Onwuegbu on the basis that the woman collecting the child was not Mrs Ajibewa and she said she could not be certain.

114.	Mrs Ajibewa’s account to us was that she had been to Bluewater with another member of staff and a total of four children, aged from 4 to 7.  They had been to see a film and had not had a buggy with them.  McDonald’s had been busy and the other member of staff had sat outside in the food court with the children, a short way from McDonald’s.  Mrs Ajibewa had queued for the food.  Child B had wanted to go to the toilet.  She thought the toilet was a men’s toilet and did not want to go into it.  She variously said that Child B would not let her in, that the boys would be joking about it and that it would have contravened a cross-gender policy.  She asked Child B whether he was confident and had then let him go by himself, keeping an eye out for him from the queue.  She had next seen him with two members of staff just outside the toilet and had gone to get him.  She did not think that he had been away for as long as 15 to 20 minutes.

115.	There are clear differences between those accounts.  We do not accept Ms Outhwaite’s suggestion that it would be difficult to find a film that would appeal to children with ages ranging from 4 to 7 and we find it difficult to see why Ms Ajibewa should lie about having been to the cinema.  We also find it difficult to see why she should deny having a buggy with her.  It is unfortunate that the manager was not cross-examined on the basis that she might have confused two incidents.  Nor was she cross-examined as to whether McDonald’s might in fact have been busy as it was the half-term holiday.

116.	If the manager is correct, in particular as to the time she waited with Child B, it would appear that either Mrs Ajibewa was sitting outside and had forgotten how long Child B had been away at the toilet or else she had not even been sure he was in McDonald’s and had been searching for him outside.  Either way, she had clearly been inadequately supervising him.

117.	Even if Mrs Ajibewa’s account is to be accepted, she behaved inappropriately.  When describing the incident before photographs were produced at the hearing, she had implied that the toilet was very close to the food counter.  That is plainly not so and it is equally plain that Mrs Ajibewa did not go down to where the toilet was because, had she done so, she would have seen that it was clearly labelled as a toilet for the disabled and as having baby changing facilities.  Consequently, the whole question as to whether or not she should go into a mens’ toilet simply should not have arisen.  Even if she did not wish to be in the toilet while Child B was, she could have looked in it to check there was no-one there before he went in and she could have waited close to it.  Moreover, while she would no doubt have wished not to go into a mens’ toilet, there would have been no reason why she could not have taken Child B into a women’s toilet, given his age.  That is what she told the tribunal hearing her suspension appeal that she would have done had Child B been her own son.  Child B’s wish to be independent should not have been allowed to compromise his safety in this instance.  In any event, the view of the toilet door from the queue for the food counter was not a clear one and it would have been impossible to see the door at all once she was at the counter, even if the balloon tree had not been in its usual place.  Even on her account, she did not actually see Child B emerge from the toilet.  On any view, her supervision of such a young child was inadequate, particularly as he was known to be prone to running off.

118.	The risks may have been small, but they were serious.  One was the possibility of him being abused in the toilet.  The other was the possibility of him wandering out of the wrong door, which would have taken him to an outside play area immediately adjacent to a small lake.  Those risks could easily have been avoided.

119.	Mrs Ajibewa made much of the fact that Child B had not been removed from Winter Childcare immediately following this incident and that her son had subsequently been invited to Child B’s birthday party.  However, those are not material facts.  Happily, no harm had come to Child B and it would not have been easy for his mother to make alternative arrangements.  We therefore do not find Child B’s mother inconsistent with our finding that Mrs Ajibewa acted inappropriately.

120.	Had Mrs Ajibewa said that this was an isolated error of judgment in circumstances where McDonald’s had been busy and they had been in a rush and she had thought it necessary for one adult to keep a table with the children while the other did not lose a place in the queue for food, we might have had some sympathy with her.  As it is, she has sought to defend inappropriate behaviour.

Partnership with parents

121.	We heard evidence that Mrs Ajibewa had acted inappropriately in disputes with parents about fees.  That may not have been very professional and may have been in breach of National Standard 12, but we are not satisfied she was dishonest as regards fees and we do not regard these allegations as adding greatly to the case against her.

122.	It is also alleged that Mrs Ajibewa misled parents by claiming to have more, and more highly qualified and vetted, staff than was actually the case and was ready to agree to provide more in the way of supervision with homework or special supervision due to difficult behaviour or a restriction of diet than she was really prepared to deliver.  There is some force in these criticisms, although it may well be that they represented genuine aspirations that Mrs Ajibewa was simply unable, through lack of staff and poor organisation, to meet.

Integrity

123.	There was rather more carelessness in her holding herself out as a social worker.  In fact, she had been employed as a waking night attendant in a local authority care home and, although such a person might in the past have been regarded as a “residential social worker”, Mrs Ajibewa ought to have known that it was inaccurate to imply that she had any social work qualification.  To describe herself as “a social worker by profession” to the tribunal hearing her suspension appeal was plainly not true.

124.	We do not regard her failure to inform Ofsted of her name by deed poll or her apparent reluctance at one stage to tell Ofsted that she was about to move home as indicating a lack of integrity.  Even less do we think she can be said to have misled Ofsted by implying the registration was in her name.  Her change of name should have been declared but we accept that as an oversight.  If Ofsted’s own records had been properly kept it would have been well aware that the registered provider was the company and Mrs Ajibewa’s failure to use her home address is consistent with her correct understanding that it was the company that was registered rather than her.  Ofsted was entitled to have her home address for the purpose of carrying out checks but there is no evidence that it was ever refused that information when it asked for it.  The legislation required details of her address to be kept on the premises but there was no requirement to notify Ofsted directly of any change in her personal address, as opposed to the address of the company.

125.	Much, much more serious than those allegations have been Mrs Ajibewa’s failure to be frank with us and Ofsted and, in some instances, her actively misleading us.  She has been swift to deny allegations and accuse witnesses of lying in circumstances where they could not reasonably be thought to have any reason to lie.  For instance, we are satisfied that she was not telling the truth when she denied that Ms Rockett had ever been left alone in charge of children or that there had never been any instances when there had been no escort in the minibus.  She tried to mislead Ofsted in relation to losing Child B at Bluewater by implying that the toilet was close to where she said she was queuing for food.  She has produced recently created documents for the hearing and said that they were contemporaneous records.

Conclusion on the second appeal

126.	We have no doubt that Winter Childcare met a need among parents and that, for most of them, the need appeared to be met satisfactorily.  We also have no doubt that Mrs Ajibewa put a lot of energy into Winter Childcare.  She worked hard and was usually at the church hall for the afternoon sessions but not the morning ones.  This was at the same time as she was working long shifts in the local authority care home on three or four nights of every week, so that she did not have as much time to devote to Winter Childcare as she might have wished.  She is an intelligent person and had received the usual training and, although she told us she had not seen the booklets with the National Standards and Guidance in them until she had made her further application for registration in late 2004, she knew of the National Standards.

127.	The National Standards incorporate the statutory requirements but go further in setting standards that all day care providers must achieve.  Parents are not always in a position to judge whether those standards are being met but they are entitled to assume that they are and that Ofsted and tribunals will enforce them.  Breach of the National Standards does not necessarily mean that a registration should be cancelled, but where the breaches are significant and it is not clear that there will be no further breaches, cancellation must be considered if proper standards of childcare are to be maintained.

128.	We have already indicated our findings on the principal issues arising on this appeal.  We have by no means accepted all Ofsted’s allegations but we have accepted a considerable number of them.  It is noteworthy that Mrs Ajibewa has been unable to produce any evidence in support of her case, written or oral, from any member of staff apart from herself and her husband, although Ms Agboola gave evidence to the tribunal hearing the suspension appeal.  Her husband was a most unsatisfactory witness, who appeared always to be giving an answer he thought the tribunal might wish to hear.  Her own evidence was less obviously unreliable but we have indicated a number of instances in which we have been unable to accept it in the light of other evidence.

129.	We have found there to have been significant breaches of the National Standards relating to the organisation of day care and particularly to the requirement that there be a sufficient number of adequately trained and vetted staff.  More than once during her evidence, Mrs Ajibewa referred to the difficulty she had in recruiting staff.  That may well have been a real difficulty (although whether it was attributable to the amount she was prepared to pay them, we do not know) and may help to explain her reliance on her husband and other inadequately trained staff and to explain why there were not always enough staff on duty.  In fact, we consider that there normally were sufficient staff on duty, even though some appear to have been unpaid or inadequately paid.  However, Mrs Ajibewa was clearly prepared to ignore the standards insofar as qualifications such as first aid certificates and hygiene certificates are concerned and insofar as she was prepared to have insufficient staff on duty on some occasions and to have staff working unsupervised without adequate checks.  These were not unavoidable situations.  She simply did what was convenient rather than what she knew, or ought to have known, was right.  We can have no confidence that there would not be further breaches and the associated risks are not negligible.  Even if the Appellant had a list of suitably qualified staff who were prepared to start work at Winter Childcare now, we would not be satisfied that standards would be maintained once those members of staff started to leave.  Similarly, although we consider that the children were adequately cared for most of the time, Mrs Ajibewa’s own conduct towards Child B was not acceptable and, due to her failure to acknowledge it, we cannot be satisfied that there would not be similarly inappropriate conduct regarding another child in the future.

130.	We have considered whether Mrs Ajibewa might have been able to satisfy us of the company’s qualification for registration if the registration had not remained unlawfully suspended for eight months from May 2005.  It seems likely that she would not then have lost the use of the premises and she might well have been able to demonstrate a capacity to recruit adequate staff.  However, her failings in the past would still have left us in some doubt as to her commitment to maintaining proper standards and we would still have had the finding that she had behaved inappropriately towards Child B, both by handling him roughly and by failing adequately to supervise him at Bluewater, and that she had failed to acknowledge any wrongdoing in respect of those matters.  In those circumstances, we are satisfied that, insofar as the outcome of this appeal is concerned, the company has not been prejudiced by the unlawful continuation of the suspension.

131.	Regrettably, as long as Mrs Ajibewa remains the driving force behind the company, we consider that the company will not be qualified for registration for providing day care for children aged under the age of eight, even if it has access to suitable premises.

Both appeals are unanimously dismissed

Signed by the Chairman on this 21st day of March 2006.

Mr Mark Rowland
Mrs Susan Howell
Dr James Lorimer