Care Standards Tribunal
The Tribunal Procedure Rules (First-tier Tribunal) (Health, Education and Social Care) Rules 2008

NA

-v-

Ofsted

[2012] 1977.EY

Decision

Panel:

	John Burrow	Judge
Michael Flynn	Specialist Member
John Williams	Specialist Member

1.	The hearing took place on 10 December 2012 at Pocock Street.  Mrs A who gave evidence, was represented by Mr A her husband, and an interpreter Mr Kataria, was present to assist Mrs A.  Ofsted were represented by Mr Toole, a Solicitor, and he called Mr Tom O’Neil, a senior officer in the Compliance Office and Enforcement Team with Ofsted.  Ms Julie Whitelaw, a Regulatory Inspector with Ofsted, was on the witness list and provided a statement, but was not called because Mr A did not have any questions for her.  Ms G. Joseph, also on the witness list, was also not called as she had no relevant evidence.

2.	The bundle ran to three hundred and sixty-seven pages.  A chronology of two pages was sent prior to the hearing and a plan of Mrs A’s house was admitted by agreement during the hearing.  We had regard to all this documentary evidence, along with oral evidence given at the hearing and submissions by the Parties.  We also had regard to the relevant sections of the Childcare Act 2006.

3.	An order was made under Rule 14 of the Tribunal Procedure (FtT) (HESC) Rules 2008, that there should be no disclosure or publication of any matter likely to identify the alleged victim or her mother or the alleged perpetrator.

4.  Mrs A. was a child-minder who was on the Early Years Register and Child
     Care Register.  There were three conditions to her registration: 

a.	Not to care for more than six children under 8 years, not more than three of which may be in the early years age group of which not more than one may be under one year at any one time;

b.	when caring for 4 & 5 year olds who were in full time education she may increase the number in the early years group by the number of children in full time education providing the maximum number is not exceeded;

c.	may provide overnight care for one child from birth to under 8 years.

4.	On 15 August 2011 Ofsted was contacted by a Local Authority Development Worker (LADW) who said an offence of a sexual nature had allegedly occurred at Mrs A’s house on 12 August 2011.  The LADW had in turn been contacted by the mother of the alleged victim, a 5 year old child.  Mrs A’s registration was suspended on 16 August 2011.

5.	On 18th August 2011, the child-minders’ son F, was arrested for causing or initiating a child under the age of 13 to engage in sexual activity.  It was alleged F had shown the child his penis in the bathroom and asked the child to touch it. After interview F was released on bail.  Subsequently on 28 November 2011, the Police informed Ofsted that they were not going to charge F.  The notification to Ofsted of no further action said that “while there is no dispute in the veracity of the account of the victim, and that there is evidence to dispute the suspect and his mother’s, Mrs A’s, account that the child only attended the address on one occasion, the Crown Prosecution Service decided that due to her young age and the fact that the actual offence is uncorroborated, there would not be a realistic prospect of conviction.” 

6.	Mrs A’s registration remained suspended while investigations were carried out and on 20 December 2011, Ofsted served a Notice of Intention to cancel her Registration, and after consideration by an Ofsted Objection Panel on 26 January 2011, the objection was upheld and Mrs A’s registration was not cancelled.

7.	Her suspension continued, however, and on 14 March 2012 Ofsted sent Mrs A Notice of Intention to impose a condition on her registration in the following terms:
	“You may not act as a child minder at your home address when F is present on the premises and may not act as a child minder when in his company.”  
The reason given for imposing the condition was “to ensure that children are safeguarded from a potential risk of harm.”

8.	Mrs A appeared to initially accept the proposed condition, but later objected to it.  The objection was heard by the Ofsted Objection Panel on 27 April 2012, and Mrs A’s objection was dismissed.  She subsequently appealed against this dismissal to the F & T on 1 July 2012, pursuant to Section 74 Childcare Act 2006.

9.	The grounds of appeal were:

a.	Any discrepancies in Mrs A’s and F’s accounts were explained at the Ofsted Objection Panel hearing.

b.	The ground floor of the house is open plan and does not lend itself to inappropriate sexual activity.

c.	F was only in the presence of the child for seconds and was in the presence of the mother Ms C the whole time.

d.	The fact the mother Ms C took 4 or 5 days to lodge the complaint is suspicious, giving time to coach the child.

e.	Ms C had a motive for a false complaint, in that Mrs A had rejected her request to partake in a scheme to defraud the Child Care Payment System.  The mother was angry and had made threats.

These grounds were largely repeated in Mrs A’s witness statement (undated).  In respect of ground ‘c’ she said it was Ramadan, F was fasting and asleep.  When he woke up he directly left the house through the front door without going to the bathroom.

10.	She says the suggested condition is disproportionate, saying she has lost her livelihood as a child minder, the family has suffered stress and their good standing in the community has been impugned.

11.	Ofsted’s response, dated 1 September 2012 suggests they are relying chiefly on two grounds:

a.	Discrepancies between accounts given by Mrs A and F.

b.	The opinion of the CPS that there was no dispute as to the veracity of the account of the victim, while there was material which undermined Mrs A and F’s account.

The Case for Ofsted

12.	Consistent contemporary accounts.  YK, the 5 year old complainant, first mentioned the matter to her mother when she returned home on 12 August 2011, the day of the incident.  According to her mother she mentioned F’s name, although slightly mispronouncing it.  She said he had asked her to touch his penis.  She commented on the size of the penis.  The mother contacted a friend who worked in a nursery, who in turn contacted the LADW at Waltham Forest, who in turn contacted Ofsted on 16 August 2011.

13.	Police attended at YK’s house on 16 August 2011.  YK reiterated to the Police that F had shown her his penis and asked her to touch it. She said she had gone to Mrs A’s “who looks after children” all last week.  She said she liked F.  She said he had asked her to come to the bathroom and showed her his penis and asked her to touch it.
YK was taken to the local Police Station and ABE interviewed.  There was no full transcript of the interview in the bundle, but there were verbatim extracts.
She said F had been upstairs sleeping then came down and went to the toilet downstairs, washed his penis using a tap in the bathroom, asked her to touch it, which she refused, and he urinated.  She commented again on the size, colour and shape of the penis.

14.	Interviews of F.   F was arrested and interviewed by Police on 16 August 2011.  There were detailed contemporaneous notes of interview in the bundle, although no full transcript.  F said he sleeps until 12 or 1.  If his mum was busy he would look after children, making sure they were safe in the front room.   He confirmed there was a toilet downstairs, although he said the children don’t go in there.  He accepted they sometimes go in the kitchen.  He said he has seen YK “on a few occasions” when her mother brought her round.  He was introduced to her.  He said she had been round twice, although he said his mother had never looked after her.  He denied the allegation against him, but he accepted he washed his penis after going to the toilet.

15.	Interviews and statements of Mrs A.  Mrs A gave a witness statement to the Police on 16 August 2011.  She said she looked after three children under 3, in accordance with the conditions of registration.  She denied looking after YK.  She says YK and her mother came round on 12 August 2011, after Ms C phoned Mrs A about looking after her two children.  When she came round Mrs A asked the ages of her children, one of which was 2 ½ and one was 5, so Mrs A said she couldn’t look after them as she could only look after three.  She said the mother asked about a fraudulent scheme to claim back childcare charges and splitting it 50/50 with Mrs A.  Mrs A said she refused, the mother got angry and threatened to report her.  Mrs A said Ms C stayed for two hours, with the children in the front room.  She said YK didn’t go to the kitchen or toilet.  She said F was out of the house on this day and YK would therefore never have met her.  Mrs A said the mother threatened to break her door.
 
16.	Mrs A was interviewed by the Police on 20 August 2011.  She accepted on this occasion that F was in the house on 12 August 2011.  She said he had left then come back to get a book he had forgotten and then left again.

17.	Mrs A was interviewed further by Julie Whitelaw on 2 November 2011 at Mrs A’s house.  Mrs A questioned why, if the incident happened on 12 August 2011 the Police only came on 16 August 2011.  She accused the mother of brainwashing the child.  She denied seeing the Ms C before 12 August 2011 at all.  In this interview she again accepted F was in the house, and had been sleeping.  She again said he went out, then came back for a book, then went out again.  She said he used the bathroom upstairs.

18.	Mrs A provided a statement (undated) as part of her appeal to the F & T.  She described her son sleeping and then left the house.  She said the allegation by YK was uncorroborated.

Statement of Ms C

19.	Ms C is the mother of YK the complainant.  She said in her statement that she had been taking her children, including YK, to Mrs A’s to be looked after twice a month for the last six months.  She said F often picked her up from her home.  She said Mrs A was very good to her and her children.  On one occasion she went to F’s bedroom because the children were in there making a lot of noise and waking him up.  She said the children wanted to see F and they are very attached to him.

20.	Ms C said she went to Mrs A’s house on 12 August 2011 and left her children, including YK, in Mrs A’s care.  She picked them up at about 6.00 pm and took them home.  She described how YK spoke to her about F when having her bath.  YK said F called her to the bathroom and showed her his penis.  He washed his penis and asked her if she wanted to touch it.  She commented about the size.

21.	Ms C said she called Mrs A on 12 August 2011 after YK made the allegation, and Mrs A said “no” and asked her to come round to discuss it with her and F.  The next day, the 13 August 2012, she took YK to the swimming pool where they met another child A, which was also being looked after by Mrs A.  YK recognised A.  Ms C told A’s father what had happened concerning F.  Later that day she told a friend who worked in a nursery about what had happened, who contacted Social Services.  On the 14 August 2012 Mrs A called her but Ms C hung up.  Mrs A called a further five times but Ms C did not answer. 

Statements of Parents with children being looked after by Mrs A

22.	The Parents of child A, (who was being looked after by Mrs A) both gave statements to the Police.  The mother of child A was at Mrs A’s house on 12 August 2011, when Ms C and YK and her brother arrived.  She believed Mrs A knew the children, who acted very much at home in the premises.  Ms C had said Mrs A was “like a mother to her”.  When the mother of child C went back to Mrs A’s house on 16 August 2011, Mrs A told her to tell Ofsted she only looked after three children, but she was unhappy about that.  The father of child A confirmed the incident at the swimming pool on 13 August 2011, when YK came over to talk to A.  He said it was clear they knew each other.  He confirmed Ms C had told him about the incident with F.

Case for Mrs A

23.	In her evidence to the Tribunal Mrs A said she had been present in the house for the whole day on 12 August 2011, looking after three children.  She said Ms C arrived with YK and her brother and asked her to look after them.  She said no, as she already had three children under 3 and Ms C suggested the 50/50 split of the child minding payments.  Mrs A refused, and Ms C threatened to complain.  Then F came downstairs and was introduced to everyone.

24.	She said the Police came to her house on 16 August 2011and Mrs A queried why Ms C had not gone straight to the Police.  She said F used the upstairs, not the downstairs bathroom, although she accepted there was nothing actually preventing her children, including F, from using the downstairs bathroom.  F was at university and was normally out of the house from 7am to 6pm at the earliest, and was often at the university library until 9pm or later.  At the weekends he worked from 10am to 5pm both Saturday and Sunday.  He often went away during the holidays.

25.	On 16 August 2011, Police arrested F and took him to the Police station.  They then took a witness statement from her at home while F was being interviewed at the Police station.  She first said in evidence that her Police witness statement, which she had read and signed as accurate, was in fact incorrect.  During the hearing she initially denied saying to the Police that F was not in the house on 12 August 2011.  She said at the hearing that she had said to the Police that F had come down, gone out, returned for a book and left again.  She didn’t know why it was incorrect in her statement.  She had been looking after three children at the time, and her English was poor.  She later accepted the words in the statement were the ones she had given the Police.  

26.	In her letter to Ofsted of 27 December 2011, written in respect of the proceedings concerned with the cancellation of her registration, she had said what does it matter if F assists whilst at home with the care of children.  Mrs A said this was merely a reference to F watching the children while she tidied up.  She said when F said to the Police he had seen the children twice this referred to twice on 12 August 2011, when he saw them first when he went out, and for the second time when he returned for his book.  It was pointed out F said in his Police interview that Mrs C had come round twice. It was suggested that her attitude to the involvement of F in the care of the children was unduly lax.

27.	She said F was not “looking after” the children on the 12 August 2011, merely making sure they were safe while Mrs A cleared up.  Mrs A said Ms C had told her the ages of the children only after Ms C had come round.  Ms C stayed 2 ½ hours because she was friendly.  Ms C had asked to split payments 50/50 after about one hour, but it was hard for her to just kick Ms C out.  N, Mrs A’s daughter, had eventually told Ms C to leave.  Mrs A said Ms C may have tried to call her on 12 August 2011 but Mrs A didn’t answer.  Mrs A denied trying to call Ms C on 14 August 2011.

28.	Mrs A said again that the first time she met Ms C was on 12 August 2011 when Ms C had banged the door and threatened to report her to Ofsted.  It was put to her that when Ofsted initially informed her they intended to add a condition to her registration about F, she signed a form to say she would accept it, but she changed her mind later that day when Mrs Whitehead returned.  She said this was because her husband did not agree to the condition, because it would mean F could not come into the family house.  Mrs A accepted that the effect of the condition (which was not to wholly prevent F from coming into the house) was fully explained to her, as was her right of appeal.

Proportionality

29.	Ofsted argued that the condition was proportionate.  F was out of the house, often until late, during the week, and worked at weekends.  Any remaining minor inconvenience resulting from the condition was reasonable when set against the potential risk to children.  While the purpose of the hearing was not to find F guilty of the allegations against him, the CPS had said there was no dispute as to the veracity of the account of the victim.  Further there were significant inconsistencies in F’s and Mrs A’s accounts.  The fact the CPS had not prosecuted F was a matter which bore little weight as the standard of proof was very high.  Ofsted and the Tribunal however were concerned about potential risk to children.

30.	 Mrs A’s Case was that F had no opportunity on 12 August 2011 to perform the alleged acts.  The house is open plan and visitors can see throughout the downstairs.  The delay in police intervention was enough time to coach and prime the child.  Ms C had a motive to give an untrue complaint – namely Mrs A’s rejection of her fraudulent scam of the benefit system.  Mrs A has lost her livelihood, the family has suffered stress and had their reputation tarnished.  The Police had dropped the Case after investigating it fully.  The description given by YK was inaccurate and there has been no physical identification by YK or Ms C.  F is of good character and the Case rests on inconsistencies.  There is no expert evidence of the alleged incident.

The Law

31.	Under Section 38(1) of the child Care Act 2008, the Chief Inspector may impose such conditions as he thinks fit on the registration of an early years provider.

32.	Under Section 73(3) of the 2006 Act the Chief Inspector must give reasons for proposing to impose a new condition on a person’s registration.

33.	Under Section 74 of the 2006 Act the registered person may appeal to the Tribunal against the imposition of a new condition.  Also Section 74 provides that the Tribunal has the power to quash the condition or approve it or amend it or impose new conditions. 

34.	In the current Case the proposed condition, and the reason for it, are set out at paragraph 7 above, namely “to ensure that children are safeguarded from a potential risk of harm”.  The basis on which the Case was put was for the Tribunal to consider whether there was a potential risk of harm and whether the condition as worded was reasonable and proportionate.

Consideration by the Panel

35.	We considered whether there was a potential risk of harm.  We accepted that if F had asked YK to touch his penis there was a potential risk of harm.  We noted the CPS opinion that “there was no dispute in the veracity of the account of the victim.”  We noted also the child had given consistent accounts of the allegation on three separate occasions, two of them to Police Officers.  We noted the detail of the accounts.  We thought it was highly unlikely that a 5 year old child could maintain such consistency and detail over three such accounts.  We thought the detail in the child’s account, for instance in describing the penis, made it unlikely that she had been coached.  We also thought it was unlikely that Ms C would use her 5 year old daughter as means of achieving revenge, as it would be too unreliable.

36.	We noted F was in the house on the 12 August 2011, making a brief incident, hidden away in the toilet, at least physically possible.  Of course if Ms C was correct, and YK had been going to the house for some time, the incident may have occurred at some earlier point.  We noted the evidence of the Parents of A who described YK as apparently being familiar with child A (both children attended Mrs A’s),  and that YK looked very much at home when the mother of child A saw YK on the 12 August 2011at Mrs A’s home.  Ms C said the children were fond of F, suggesting a longer acquaintance.  

37.	We noted the reference by YK to F washing his penis in the bathroom, and the fact that F agreed he did this when we went to the toilet.  This to our mind was too much of a coincidence and undermined the allegation of coaching.  We noted Mrs A’s account of her rejection of Ms C’s fraudulent proposal, but were unconvinced of this as a motive for revenge, particularly as Ms C had not directly notified Police or Ofsted to ensure revenge, but merely told a friend about it.  We noted the alleged delay in notifying Police (supposedly allowing time for coaching) but we noted Mrs C’s statement she called Mrs A on 12 August 2011 and discussed the matter with her, and the corroborated account that she told the father of child A about the incident on the 13 August 2011.

38.	We noted also the several inconsistencies in Mrs A’s account, some more significant than others.  We regarded her comment to the Police on 15 August 2011, at a time when F was at the Police station and she could not know what he was saying, that F was not on the premises on the 12 August 2011 and had never met Ms C or YK. We noted her change of account on 16 August 2011 after she became aware of F’s account to the Police that he was there on the 12 August 2012.  We regarded this as significant.  We felt it was highly unlikely that there would be an inadvertent mistake by Mrs A in such a central matter.  

39.	We also regarded as significant Mrs A’s claim that she had never looked after YK.  However there was substantial evidence, not only from Ms C, but other Parents with children being looked after by Mrs A, that Ms C’s children appeared to have been at the house before the 12 August 2011. The inconsistencies in Mrs A’s accounts and her apparent relaxed attitude to F’s involvement in child minding undermined our confidence that Mrs A would always take appropriate steps to safeguard children in her care.  

40.	We took all these matters into account, and concluded because of the likelihood of the account of YK being true and because of the several inconsistencies in the accounts of Mrs A and F there was a potential risk of serious harm to children from F’s presence in the house while they were being looked after by Mrs A.

41.	We then considered the proportionality of the condition.  We noted that Mrs A did not child mind any children over night.  We concluded because F was out of the house for the most part during child-minding hours during the day in any event, and because the condition did not prevent him living at the house outside of those hours, we concluded the condition was reasonable and proportionate to the potential risks involved.

Decision
We upheld the Inspector’s decision to impose the condition.

Judge John Burrow
Care Standards and Primary Health lists
14 December 2012