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

Mrs Raliat Ikiebe 
Appellant
-v-

OFSTED
Respondent

Heard at: Pocock Street Hearing Centre
On: Friday 16th November 2012

Before:
Deputy Chamber President Judge John Aitken 
Specialist Member Ms Linda Redford
Specialist Member Ms Janice Funnell

DECISION

1.	The Tribunal had a bundle of papers including the decision to suspend, the appeal, and the response to the Appeal. In addition statements of the Appellant and her husband, and statements of Mr D Lawal and Ms B Akinpitan in support of her position were considered. We make it plain at the outset that our role is not to investigate or adjudicate on allegations made rather we evaluate the risks identified and consider whether investigation is proceeding appropriately.	

2.	The Appellant appeals to the Tribunal against the Respondent’s decision dated 12th October 2012 to suspend her registration, allowing her to provide services from Chrysolyte School Day Nursery for six weeks until 23rd November 2012. 	

3.	The Tribunal makes a restricted reporting order under Rule 14 (1) (a) and (b) of the Tribunal Procedure (First tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, prohibiting the disclosure or publication of any documents or matter likely to lead members of the public to identify the children or their parents in this case so as to protect their private lives.  
The background
4.	The Appellant operates the Chrysolyte School Day Nursery and was first registered with OFSTED on 29th January 2007, at the last published inspection the school was graded as “Good”. The Appellant is registered to care for children at the school including up to 12 children under 3 years (but none under 2, and not overnight), in fact we heard there were presently 2 children in the nursery. The school policy is that no physical punishment is used on children.	

5.	On 29th February 2008 concerns were raised about the school involving “inappropriate behaviour management including smacking and humiliation” and Ofsted required an action plan to demonstrate that no un-vetted person was ever left with children, a plan was produced and no further action was taken. 	

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

6.	On 17th July 2012 Ofsted received information from Southwark Social Services from a parent alleging that in January 2012 her 10 year old child had been punished by being struck with a ruler on her hand, had fallen off a chair then been struck on the head.  There are photographs of injuries to the child's scalp and to her hand. No action was taken at the time, but it is alleged that on 9th July 2012, the same child was forced to stand in a “stress position” for two hours by way of punishment. These incidents were reported to the Police and there are said to be corroborative reports of physical punishment at the school, including an admission by Mr I that he may have instructed children “to sit on an invisible chair for 5 minutes” [page 102].	 In total we were informed that by the time of this hearing 8 children had made allegations involving physical or inappropriate punishment.	

7.	A compliance review on 10th August concluded that there was no immediate threat or risk of harm to children as there was a bail condition preventing Mrs Ikiebe attending the Nursery. On 4th September Mr Ikiebe was also arrested and bailed with the same conditions. They remain bailed until 11th December 2012, the conditions include not to have any contact with any child of the School save in the presence of an adult who is not one of the accused.	

8.	At a meeting on 11th October 2012 the Police indicated that other members of staff were to be arrested and the investigation widened. On 12th October 2012 a decision was taken to suspend the registration of the appellant and she was notified accordingly.

Events following the suspension

9.	The Nursery Manager AA and another teacher were arrested on 17th October 2012, interviewed and bailed to 11th December 2012 pending further enquiries.	

The Law

10.	The statutory framework for the registration of childminders is provided under the Childcare Act 2006. This Act establishes two registers of childminders: the early years register and the general child care register. Section 69 (1) 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.	Under the Childcare (Early Years and General Childcare Registers) (Common Provisions) Regulations 2008 when deciding whether to suspend a childminder the test set out in regulation 9 is:	
 
“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.”

12.	The suspension shall be for a period of six weeks. Suspension may be lifted at any time if the circumstances described in regulation 9 cease to exist. This imposes an ongoing obligation upon the respondent to monitor whether suspension is necessary.	

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. The standard of proof ‘reasonable cause to believe’ falls somewhere between the balance of probability test and ‘reasonable cause to suspect’. 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.

Issues

16.	The Respondent’s view, based on the witness statements and records referred to, is that there is evidence of risk requiring investigation, and suspension and indeed enforcement were it not for the possibility that such action might prejudice the Police enquiry into these matters. Two matters were particularly drawn to our attention. Firstly that 5 adults have now been arrested and interviewed, and 8 children have made “disclosures” relevant to this. Secondly that the two persons who are directly responsible for ensuring the safety of nursery children Mrs Ikiebe and the Nursery Manager (AA) have both been arrested and are subject to bail conditions which do not allow them access to children whilst unsupervised, thus cannot fulfil their safeguarding roles in a proper manner.
 
17.	Mr Hyams on behalf of the Appellant argued that Ofsted should not have proceeded by way of suspension, rather cancelling registration would have been appropriate (as the Department of Education had sought to do), because that entitled an Appellant to have the Case considered properly and speedily by the Tribunal. He also pointed to the evidence of Mr and Mrs Ikiebe and that of their witnesses as demonstrating that the allegations were unlikely. He was able also to point to matters such as the implausible nature of the suggestion that pupils would be told that the school was entitled to inflict corporal punishment when everyone knew it could not.

Conclusions

18.	We of course make no findings of fact with regard to the allegations. There is plainly however more evidence than can be simply dismissed without full consideration given the multiplicity of allegations, the history of similar allegations (in early 2008) and the evidence of injuries within photographs. There is plainly therefore a need to investigate. The Police have assumed the role of lead investigating agency and have moved swiftly and it is not unreasonable to await the outcome of their enquiries before Ofsted proceed directly (they are still compiling information as it is received) with any investigation of their own.	

19.	We cannot accept Mr Hyams point that cancellation would be preferable because it enables a hearing about the facts, because we cannot easily envisage circumstances when 8 children would be required to give evidence in the Tribunal before they had given evidence before the Criminal Courts. There are a number of complicating features with regard to this, not only the requirement to give evidence twice, but the accounts which the Police have within their collected evidence which has not yet been disclosed to these Parties. This situation is no doubt why suspension exists as a mechanism open to Ofsted. We are in no doubt that the proper course in these circumstances is to suspend where risk of harm is present.	
20.	Looking at the risk involved we note as Mr Hyams pointed out that the allegations are against the school pupils rather than the nursery or early years children. However we must also consider that children of 2 or 3 may not be in a position to voice any complaint. We consider looking at all of the circumstances that the continued provision of childcare by the registered person to any child may expose such a child to a risk of harm.	

21.	We consider that there was a restrained and appropriate approach by Ofsted in this Case, they noted the allegations and commenced investigation quickly, only when it appeared that a number of widespread allegations were being made and effective supervision removed did they consider suspension was appropriate. There is presently a reasonable prospect of the investigation showing that the suspension is necessary. Equally refraining from enforcement is reasonably done in such circumstances because it may interfere with the investigation.	

22.	We understand that an investigation is complex and often difficult, but the livelihood of the Appellant rests upon a speedy conclusion, without such a conclusion a business could be damaged beyond repair and even vindication might not assist financially. There has been no appreciable delay in the investigation of this case no doubt however Ofsted will bear in mind the words of the Tribunal in Ofsted v GM & WM [2009] UKUT 89 (AAC) at paragraph 27:	

“…a suspension imposed on the ground that there is an outstanding investigation can, in our judgement, be justified only for so long as there is a reasonable prospect of the investigation showing that such steps are necessary”

Decision

The appeal against interim suspension is dismissed, the suspension is confirmed.

Judge John Aitken
Deputy Chamber President
Health Education and Social Care Chamber
 Wednesday 21st November 2012