YW v Ofsted [2009] UKFTT 232 (HESC) (29 September 2009)<BR>Schedule 7: Suspension of child minders/day care registration<BR>Suspension of registration

In the First-Tier Tribunal (Health, Education and Social Care)
	[2009] 1600.EYSUS

YW - Appellant

v.

OFSTED - Respondent

Before
 Ms. Maureen Roberts 
Ms Christa Wiggin
Mr. John Williams

Heard on the 11th September 2009 at Witney Magistrates Court, Witney, Oxfordshire.

The Appellant appeared in person. We heard evidence from the Appellant and her husband Mr. W.

The Respondent was represented by Ms C-P Hoskins of Counsel instructed by Ms N Cohen of the Treasury Solicitor. For the Respondent, the tribunal heard evidence from, Ms S Will Senior Officer Compliance Investigation and Enforcement Team. The tribunal had a bundle of papers including the decision for the suspension the appeal, a statement from Ms Will and note of the Respondent’s meetings with the Appellant and its internal Case Review meetings.

1. The Appellant appeals to the tribunal against the Respondent’s decision dated 21st August 2009 to suspend her registration, as a child minder for six weeks until 2nd October 2009.

The background
2. The Appellant, is a married woman in her twenties, who is registered as a childminder. She was registered on 8 July 2008. The conditions of registration were, inter alia, that she may provide overnight care for one child under eight years, and may care for no more than five children under eight years, of these not more than two may be in the early years age group and of these not more than one maybe under one year at any time.

3. At the time of registration the Appellant was living with her husband and baby daughter. For various personal reasons the Appellant did not start childminding when she was first registered. The family moved house in April 2009 and the appellant started childminding shortly after this date.

Events leading to the issue of the Notice of statutory suspension.

4. On 20 August 2009 a parent phoned OFSTED (the Respondent) to make a complaint about the Appellant after she had provided three nights overnight care for her two children aged five and two. The parent said that while the children were in the Appellant's care, the Appellant had phoned on a number of occasions asking for the fees to be paid in full and threatening to report the parent to social services because she had forgotten to leave the child's asthma inhaler. The parent said that the Appellant's husband had been quite abusive during these calls.

5. The parent said that when she had called to pick up the children at 10 am. She had been kept waiting for five minutes and had heard one of her children in a distressed state in a downstairs room. She said the children were not properly dressed and their belongings were not packed up. Later on her eldest child told the parent that the Appellant had hit them on the face and told them that she hated them. The child also said that the Appellant had thrown them from a sofa to the floor. The child said that he had slept in a cot rather than a bed; his parent had requested that he have a bed. 

6. On that day the Respondent made a referral to the relevant social services department (SSD). The SSD arranged an initial review and strategy meeting for the 21st of August 2009. At this meeting, which was attended by a representative of the Respondent, it was confirmed that the SSD had information which indicated that the complaint itself should be treated with caution. However it was noted that the Appellant was known to the SSD and the police as a result of significant domestic violence against her by her husband. The Appellant's husband had received a police caution for criminal damage in January 2009 when it was believed he had broken down the front door of the house. SSD also had records of other incidents of domestic violence. Both the police and SSD were aware that the Appellant's husband was a cannabis user.

7. It was agreed at the strategy meeting that the police would investigate the concerns raised in the complaint. Both the police and SSD supported the decision to suspend the Appellant's registration whilst the investigations were being carried out. The Respondent’s carried out a case review later on 21 August 2009, when the decision to suspend the Appellant was taken. This decision was given to the Appellant on 21 August 2009 by an officer from the respondent who had a brief discussion with her about it.

8. The reasons for the suspension were as follows
a) that serious domestic violence had taken place at the Appellant’s property in January 2009 and generally, and that her husband remained at the address
(b) the fact that the Appellant's husband was a known user of cannabis
(c) the specific concerns raised by the parent in the telephone call of 20 August 2009 
(d) the failure of the Appellant to notify the Respondent of her husband's caution
(e) the breach of the condition on registration in providing overnight care to two children between the 16th and 19th of August 2009.
And that the Respondent wished to investigate it concerns and that the test for regulation 9 had been met. 

9. The Appellant wrote to the tribunal on 22 August 2009 indicating that she wished to appeal against the decision to suspend her. In short she indicated that she denied the content of the complaint being made and that any domestic problems had been resolved. She noted all the efforts that she had made to provide a good and safe childminding service, and the upset the suspension would cause to parents who planned to use her child minding service. 

The Law.

10. The statutory framework for the registration of childminders is provided under the Childcare Act 2006 (the 2006 act) which came fully into force on 1 September 2008. The act establishes two registers of childminders: the early years register and the general child care register. Section 69 (1) of the act provides for regulations to be made dealing with the suspension of a registered persons’ registration. The section also provides that the regulations must include a right of appeal to the tribunal.

11. The Childcare (Early Years and General Childcare Registers) (Common Provisions) Regulations 2008 (the 2008 Regulations) provide that a registered person may be suspended in circumstances prescribed by regulation 9 for the period prescribed in regulation 10.

12. The test for the Respondent consider when deciding whether to suspend a childminder is set out in regulation 9 as follows
“ that the chief inspector reasonably believes that the continued provision of childcare by the registered person to any child may expose such a child to a risk of harm “.
The suspension shall be for a period of six weeks. But the suspension may be lifted at any time if the circumstances described in regulation 9 cease to exist.

13. “ Harm” is defined in regulation 13 as having the same definition as in section 31 (9) of the Children Act 1989, “ ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill treatment of another”. 

14. The powers of the tribunal are that it stands in the shoes of the Chief Inspector and so in relation to regulation 9 the question for the tribunal is whether at the date of its decision it reasonably believes that the continued provision of child care by the registered person to any child may expose such a child to a risk of harm.

15. The burden of proof is on the Respondent.

16. Counsel for the Respondent referred us to the decision of Ofsted v GM and WM [2009] UKUT (AAC) decided by the Upper tribunal in April 2009 which gave some helpful guidance as to the approach to be taken by the tribunal in suspension cases. It said ‘the suspension in the present case was for the purpose of allowing time for an investigation to be completed and it is necessary for us to consider how the power to suspend should be exercised in such a case’. That test applies to this case. It went on (Ofsted) “ needs to make it clear to the first tier tribunal what the investigations are and what steps it might wish to take depending on the outcome of the investigations…. the tribunal must consider whether any continuation of the suspension has a clear purpose and therefore is capable of being proportionate having regard to the adverse consequences not only for the childminder but also for the children being cared for and their parents”.

The Evidence

17. We read the statement and papers provided and heard from the witnesses listed above. 

18. Ms Will on behalf of the Respondent confirmed the concerns of the Respondent and the procedure for the investigations being carried out by them. The trigger for this matter had been the complaint by the parent who had placed her two children with the Appellant. However the Respondents were concerned by the other matters which had come to light at the strategy meeting, namely of considerable domestic violence and cannabis use in the house. She noted that the Appellant had called the Police to the incident of domestic violence in January 2009 and had taken advice afterwards from a solicitor about leaving her husband. The caution received by Mr W had not been reported by the Appellant to them. She also outlined considerable further information, about other incidents of domestic violence which had been given by the Appellant to the respondent's officers when they had called on the 26th of August this year and spoken to her.

19. Ms Will said that they were quite surprised at the level of information disclosed by the Appellant and were extremely concerned for the safety and well-being of children who would be minded. She acknowledged that the Appellant had been very open with the respondent's officers.

20. Ms Will said that there were still investigations to be carried out by the Respondent. The SSD and police have said that they are not taking any further action in respect of the original complaint. However Ofsted are intending to continue to investigate their concerns and to speak to the parent/complainant  and to the Appellant and her husband about the incident. They are also waiting for the minutes of the strategy meeting and for confirmatory paperwork from the SSD and police about the various incidents which have been referred to in meetings regarding the domestic violence and cannabis use. 

21. Ms Will said that the Respondents had been informed that Mr W was having counseling and would want to discuss with him what this covered.

22. Ms Will also outlined the alternatives to suspension which had been considered by the Respondent. We noted that the Appellant had offered not to have children to mind overnight and to only care to children when her husband was not on the premises. However the Respondents did not think that this was sufficient safeguard as clearly Mr. W lives on the premises where the child minding takes place and it would be unreasonable to stop him coming into his house.

23. Mr. W gave evidence to the tribunal. He acknowledged that he had been a cannabis user and that there had been incidents of domestic violence between himself and his wife. He said that after the parties had got married there had been a period of considerable stress because of their financial circumstances and his wife becoming pregnant and he was embarrassed and ashamed of his behaviour towards his wife. After the incident in January 2009 when he received a police caution for criminal damage he sought help from his GP which had led to his current drug counseling course. 

24. The family had moved house in April 2009 and this had been a fresh start for them. In July 2009 he had started drug counseling and this is due to finish at the end of September 2009. He has also been promoted at work which has considerably helped the family’s financial circumstances he spoke frankly about his drug use and the change in his life for the better since he has stopped using cannabis, although he said that he had relapsed in July 2009. He spoke of his marriage being much stronger now. 

25. He also gave his account of the incident involving the complainant and stressed that at no time had he or his wife been threatening to the woman but that they had been very concerned that she had left her children to be minded without an asthma inhaler when one of the children had asthma.

26. Mr. W could see why the Respondents would be concerned about the family situation in light of what had been reported but said that the evidence would show that the complaint was without substance and that the domestic violence and cannabis use were things of the past.

27. Mrs W confirmed the contents of the letter of appeal and gave considerable detail about the incidents of domestic violence which had occurred between herself and her husband. She gave the tribunal information regarding more incidents of violence than she had previously declared. She confirmed that after the January 2009 incidents she had sought legal advice and considered leaving her husband. She said it had acted as a wake-up call for both her and her husband. The last incident was in February 2009 and after this the family had moved house and things had become much better.

28. She described fully the circumstances of what has happened with the parent who left her two children with her. She also confirmed that no threats were made to the woman and in no way had the children being smacked or ill treated; the older child had not slept in a cot. In fact she said the older child had hit her own young daughter.

Conclusions.

29. We accept that the Respondent’s witness gave us a fair and considered view of the Respondent’s reasons for the decision for suspension and outlined the investigations which were planned. We further accept that the Appellant and her husband were honest in giving their side of events to the Tribunal. 

30. The Tribunal reminds the Respondent that this is an appeal against suspension which is intended to be only an interim measure. Once the test under regulation 9 is made out then the period of suspension is, for the Respondents under regulation 10,‘to complete any investigation into the grounds for the Chief Inspectors belief’ or ‘for any necessary steps to be taken to eliminate or reduce the risk of harm referred to in regulation 9’.

31. The Respondents’ noted, in the case review of 27 August 2009, that they were going to defend the appeal and “are moving towards cancellation on the basis that we have concerns about the household “. Ms Will explained that this was minuted and the Appellant told of this proposal as part of the policy of openness between the Respondents and childminders. However the Tribunal trust that the Respondents, having heard the evidence of the Appellant and her husband today, will keep an open mind in their approach to the investigations that they are carrying out. 

32. A majority of the tribunal accepted that the continuation of the suspension was a proportionate response to the allegations that have been made and the concerns raised. They accepted that the Respondents did have further investigations to make and that the steps for those investigations had been outlined to the Tribunal; the complaint by the parent needed to be investigated and the incidents of domestic violence needed to be checked with police and social services records. The Respondent wished to speak to the Appellant about all these matters. The Respondent also said that they were not satisfied that the drug counselling course addressed the issue of anger management and domestic violence, and that as Mr. W had not completed the course they wished to consider the impact of this a part of their investigation. 

33. The decision was announced at the end of the hearing and it was indicated to the parties that it was a majority decision and some of the reservations of the dissenting member were outlined to the parties.

34. The Tribunal were aware that they had heard considerable evidence from the Appellant and her husband much of which provided ‘answers’ to the questions that the Respondents were going to investigate. The majority of the tribunal accepted that they could not expect the Respondent to hear that evidence in a tribunal forum and make a decision about the continuation of suspension at the hearing. 

35. The dissenting member took the view that the allegations made by the complainant parent were very dubious; that the Appellant and her husband denied the complaint in a plausible manner; the member noted that social services and the police were not taking further action and had reservations about the complainant. The member considered that the Appellant's husband had addressed the cannabis use, taken counseling, and that these steps had been taken before the Respondent was involved. The member considered the domestic violence was at a very low level and that to continue the suspension was disproportionate to any risk of harm to a minded child.

36. A majority of the tribunal considered that the allegations made in this case were of a serious nature. They noted that there had been domestic violence as recently as February 2009 and that Mr W had not yet finished his drug counseling course; this will be concluded within the six-week period of suspension. The Appellant has been registered for a relatively short time and only actively child minding since after April of this year. The Respondent’s first duty is to the children being cared for and those members accept that the threshold of regulation 9 is met. The Respondent wishes to conclude its investigations and, to get further information regarding the complaint and the domestic situation. On that basis we are dismissing the appeal and upholding the Respondent’s decision to suspend registration.

37. The tribunal expressed its view that the investigation should be completed within the six-week period if at all possible. It noted that the strength of the evidence from the Appellant and her husband about the complaint and the steps that they had taken to address their domestic situation. As noted above it reminded the Respondents that as it completed its investigations it should review, with impartiality, any future steps to be taken.

The appeal is dismissed. Our decision is a majority one.

Ms Maureen Roberts
Ms Christa Wiggin
Mr. John Williams

 28th September 2009