RC v OFSTED [2008] EWCST 1272(EY-SUS) (6 May 2008)

RC 
v 
OFSTED

[2008] 1272.EY-SUS

-Before-

Mr A Wadling
(Nominated Chairman)
Mrs S Derrick
Mr R Winn

Heard on April 9th 2008

DECISION

INTRODUCTION

1.	Her Majesty’s Chief Inspector of Schools (OFSTED) suspended the registration of RC acting as a child minder as from 14 March 2008 to 24 April 2008.  The reason given for this decision was that Ofsted had received information that RC had been observed using inappropriate behaviour management techniques with minded children, including inappropriate use of physical force.  The Chief Inspector concluded this gave reasonable cause to believe that children in her care were, or may be, exposed to a risk of harm.

2.	 By a letter dated 15 March RC wrote to OFSTED asking that the suspension be lifted.  OFSTED refused to lift the suspension and this was communicated to her by letter on17 March 2008.  She appealed to the Care Standards Tribunal on the nineteenth of March 2008.

3.	This appeal concerns the initial decision to suspend RC’s registration and OFSTED’s refusal to lift the suspension.

4.	At the hearing before us, Mr Baldwin of Counsel appeared on behalf of the Applicant and Mr Murray of counsel appeared on behalf of the Respondent.

5.	Orders were made at the commencement of the proceedings under Regulations 18 and 19 restricting the reporting of the proceedings and excluding members of the public and the press.  We are satisfied that these Orders are necessary in this case to safeguard the welfare of children and to safeguard the private life of the people involved in this matter.  We believe that the Orders should continue, and thus individuals, other than professional witnesses, are referred to by initials only, and the written decision will be published in accordance with Regulation 27 in this form.

6.	We heard live evidence from the following officers employed by OFSTED: Debbie Turner (Field Area Manager) and Lisa Ellis (Childcare Inspector).
THE FACTS
7.	The first allegation in time concerned a child about one year old who was being newly minded by RC.  She was left alone to play with a toy for one and a half hours and cried continuously but RC made no effort to comfort her.

8.	The second allegation was that at the premises where the children were being minded, RC had told off a two year old for accidently spilling his drink and made him sit facing the wall for fifteen minutes.  He was distressed and kept trying to turn round and RC shouted at him.  After fifteen minutes he was stood up and RC attempted to make him drink water out of an ordinary beaker without a lid.  He was made to finish it although he was visibly distressed.  After this incident he appeared to be frightened of RC.

9.	The third allegation was that a week later a similar incident had taken place in the presence of the Area Child Minding Coordinator Heidi Rehman who apparently intervened and spoke to RC about what had taken place.

10.	Other matters concerning the behaviour of the Appellant have been investigated by OFSTED between 2004 and 2007 but “remained satisfied with the standard of care provided by RC”.

EVIDENCE
11.	Ms Turner gave evidence on oath and adopted her witness statement.  She is employed by OFSTED as a Field Area Manager and has been so for two years, prior to this she was an Inspection Team Manager for three years.  She summarised the history of four previous matters of concern relating to the conduct of RC between June 2004 and the present.  These were a complaint that in 2004 her daughter had bullied a child and that RC had not dealt properly with the situation, in 2005 that she left a child on a potty for an unreasonable time, made a child walk an unreasonable distance and a complaint of the adoption of inappropriate potty training.  These matters were investigated and resulted in RC undertaking an action in order to “devise and implement an action plan identifying ways to manage children’s behaviour which respect their individual level of understanding and maturity.”  The outcome was considered satisfactory and no further steps were taken.

12.	On 13 March 2008 the decision was made to suspend RC’s registration.  She responded with a written request for the suspension to be lifted acknowledging that the allegations had to be investigated but that they were unfounded and malicious.  RC’s account of the two matters set out in her letter did not agree with those of the complainants.  The request was refused on the ground that the Children’s Services had not completed their investigation and neither had OFSTED.  Statements had now been obtained from two witnesses confirming their allegations and further time was needed to complete the necessary inquiries.

13.	In cross examination Ms Turner listed what she considered to be OFSTED’s options; these were:
	(1) to lift the suspension with early inspection of all minimum standards;
	(2) apply an action to see if it was met and test all minimum standards;
	(3) serve a compliance notice so as to give RC a chance to prove her 
         compliance with all minimum standards;
	(4) carry out an Inspection visit;
	She concluded “we are not considering cancellation of the Appellant’s 	registration at present.”  Ms Turner added that she had obtained information 	from the Local Authority that was required for the investigation and that had 	now begun.

14.	She was cross examined and was asked about the progress of the inquiry, from whom had statements had been obtained and the test to be applied by the Tribunal in reaching its decision.  In re-examination she confirmed the correct test to be satisfied as set out in L M v OFSTED [2003] 181.EY SUS.

15.	Lisa Ellis also gave evidence in accordance with her statement.  In cross examination she stated that her purpose in going to see RC was to obtain her version of events.

16.	RC did not give evidence but three letters in her support were taken into account in reaching our decision.

THE LAW

17.	Section 79D of the Children Act 1989 provides as follows,
(1)	No person shall-
(a)	act as a child minder in England unless he is registered under this part for child-minding by the Chief Inspector.

Under section 79 H of the Children Act 1989 (the Act), the Secretary of State has a power to make regulations to provide for the registration of any person for acting as a child minder or providing day-care to be suspended for a prescribed period by the registration authority in prescribed circumstances.
In England the registration authority is her Majesty’s Chief Inspector of Schools in England acting by OFSTED, Section 79B (1) of the Act.  The Regulations which have been made under section 79 H (1) of the Act are the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003.
18.	Regulation 3 provides:
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 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 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.

19.	We adopt the reasoning in the decisions of LM v OFSTED [2003] 181.EY SUS and S. B. v OFSTED [2005] 605.EY-SUS and asked ourselves whether there is reasonable cause to believe that the continued provision of child minding may expose a child being minded by her to the risk of harm.  The belief is to be judged by “whether a reasonable person, assumed to know the law and possessed of the information, would believe that a child might be at risk.”  As in other hearings we agree that post decision facts should be made available to the Tribunal.  

20.	On the evidence heard and seen at this hearing we are satisfied that until the investigation is completed the suspension should continue.  We informed the parties of our decision on the day of the hearing.

21.	Our decision is unanimous. 

APPEAL DISMISSED

Mr A Wadling
(Nominated Chairman)
Mrs S Derrick
Mr R Winn
6 May 2008