Thorley & Anor v Her Majesty’s Chief Inspector of Schools in England, Court of Appeal - Childminders and Day Care Providers for children, August 31, 2007, [2007] EWCST 834(EY)

Resolution Date:August 31, 2007
Issuing Organization:Childminders and Day Care Providers for children
Actores:Thorley & Anor v Her Majesty’s Chief Inspector of Schools in England
 
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Care Standards Tribunal18 Pocock Street, London SE1 0BW. Tel: 020 7960 0668 Fax: 020 7960 0661 Email: cst@tribunals.gsi.gov.uk 1John ThorleyVictoria Kathleen ThorleyAppellants-v-Her Majesty's Chief Inspector of Schools in England (OFSTED Early Years Directorate)Respondents[2006] 0834.EY[2006] 0835.EYCare Standards Tribunal 2Before:Mrs Meleri TudurMrs Bridget GrahamMr Ronald RadleyDECISIONHeard at the Stoke on Trent Combined Court Centre on the 23rd - 30th July 2007.1. This is an appeal, brought by Mr John Thorley and Mrs Victoria Kathleen Thorley (``the Appellants'') under section 79M of the Children Act 1989 against a notice of decision to cancel registration, dated the 20 October 2006, sent to each of the Appellants by the Respondent, Her Majesty's Chief Inspector of Schools in England (Ofsted Early Years Directorate) (``Ofsted''), confirming a decision that each of the Appellants was no longer qualified to be registered as a childminder because they had failed to demonstrate that they could comply with the requirements of Part XA of the Children Act 1989, the Regulations made under the Act, including the Day Care and Child Minding (National Standards) (England) Regulations 2003.THE LAW2. Pursuant to section 79A(2) of the Children Act 1989 (``the Act''), a childminder is a person who looks after one or more children under the age of eight on domestic premises for reward. Section 79B(3) provides that a person is qualified for registration for childminding if:(1) he or she is suitable to look after children under the age of eight;(2) every other person looking after children on any premises on which the person is or is likely to be childminding is suitable to look after children under the age of eight;(3) every person living or employed on the premises in question is suitable to be in regular contact with children under the age of eight;(4) the premises in question are suitable to be used for looking after children under the age of eight, having regard to their condition and the condition and appropriateness of any equipment on the premises and to any other factor connected with the situation construction or size of the premises; and(5) he or she is complying with the Day Care and Child Minding (National Standards) (England) Regulations 2003 (``the Regulations''); and(6) he or she is complying with any conditions imposed by Ofsted.3. Regulation 4(2) of the Regulations provide that a registered person who acts as a childminder shall comply with the requirements of the Regulations, shall meet the requirements of the national standards and shall have regard to the relevant supporting criteria set out in the national standards document, namely the ``National Standards for Under 8s: Day Care and Childminding'' (``National Standards'').4. Sections 79D to 79F require a childminder to register with Ofsted and make provision for granting such registration, including the imposition and variation of conditions on a registration. 5. Section 79G provides that Ofsted may cancel a registration of a person registered for childminding if it is of the opinion that the person has ceased or will cease to be qualified for registration.6. Section 79L makes provision for the procedure to be followed before a registration may be cancelled, including the right to object and for an objection hearing to be arranged and 79M provides a right of appeal to the Care Standards Tribunal (``the Tribunal'') against a cancellation of registration.7. On an appeal, the burden of proving on a balance of probability that the Appellant has ceased or will cease to be qualified for registration lies on Ofsted. Where the Tribunal is satisfied that the Appellant has ceased to be qualified for registration, it has a discretion as to the decision that it reaches on the appeal. The Tribunal may confirm the cancellation or direct that it shall not have effect and it may impose, vary or cancel any condition on the registration as it may see fit. Background8. The Appellants are husband and wife and were, on the 6 January 1994, jointly registered by Staffordshire County Council as childminders pursuant to Section 79 of the Children Act 1989. The Appellants together minded children at premises known as ``The Manor Nursery'' (``The Manor'') at Blythe Bridge in Staffordshire. Prior to the original registration, both Mr and Mrs Thorley attended a pre-registration course and obtained certificates of attendance on a First Aid course. 9. Before becoming a childminder, Mr Thorley had, until its sale in 1994, run his own business. It had been the intention of the Appellants to register The Manor as a day nursery but they had been unable to do so because of difficulties relating to the toilet facilities and the minimum qualification for staff requirements. On the advice of the Early Years Adviser from Staffordshire County Council, they applied instead to register as childminders.10. Pursuant to the Care Standards Act 2000 and Part XA of the Children Act 1989, regulation and inspection of child care facilities transferred to Ofsted on the 1 September 2001.11. On transfer to Ofsted, Mr and Mrs Thorley elected to be separately registered as child minders, each in their own right.12. The Manor was the subject of a Transitional Inspection on the 26 April 2002. As a result of the inspection, several concerns were raised but Ofsted confirmed by letter dated 3 July 2002 that they did not propose to take any further action in relation to those issues but recorded that the Appellants should adhere to the conditions of their registration at all times, and that due to the changes in the legislation, that they should now keep a record of any medication administered to the children in their care.13. A further inspection was undertaken on the 4 December 2003, following which new certificates of registration were issued to Mr and Mrs Thorley under cover of letters dated 7 April 2004 and 23 March 2004, respectively. 14. The conditions identified on the new certificates of registration, issued on the 7 April 2004, were identical for both Appellants and specified that the childminder must display the registration certificate; must not provide overnight care; can work with an assistant, who may, at times agreed and when confirmed in writing by parents, be left in sole charge of the children; may care for no more than six children under eight years, of those, not more than three may be under five years and of those, not more than one may be under one year at any one time; when an assistant is present, may care for no more than six children under eight years, of those, not more than two may be under one year at any one time; when working with another childminder at the premises, does not care for more than six children under eight years, of those, not more than two may be under one year at any one time. 15. On the 24 February 2004, an investigation visit was undertaken by Ofsted inspectors in response to a complaint made by a parent against the Appellants. As a result of the investigation, a Notice of Failure to Comply with the Regulations was issued dated 15 April 2004. The Notice identified the breaches and required that all the conditions of registration were complied with and that the registered numbers of children cared for is not exceeded at any time.16. The report following the investigation visit also detailed other breaches of the National Standards, which were not subject to Notices of Failure: they were, however, the subject of action notices.17. On the 28 April 2004, the Appellants confirmed in writing that they would undertake all the actions identified in the Notice.18. On the 30 November 2004, a further inspection was undertaken by Ofsted inspectors, namely Mrs Lorraine Lawton, Team Manager and Mrs Jacqueline Gerrard. On arrival, the inspectors found that two children present when they arrived at the setting, had not been entered in the register as present on that day. By letter dated 2 December 2004, Mr and Mrs Thorley wrote to Ofsted to explain that the children had been entered by an assistant on a fresh sheet and placed in a part of the file not seen by the inspectors. They also submitted applications for the vetting as assistants, of both Mr David Emery and his wife, Mrs Dorothy Emery, who were helping as emergency cover when the usual assistants were not available.19. As a result of the visit, Ofsted decided to change the Appellants' conditions of registration. By letters dated the 23 December 2004, they notified both Mr and Mrs Thorley that it was their intention to limit the number and ages of registered children in their care, to no more than three children from two to five years and when working with another childminder at the premises, not to care for more than six children under five years, of those, not more than three may be aged under two years and of those, not more than one may be under one year at any one time. It was also proposed to remove the condition allowing the Appellants to work with an assistant. 20. By a separate letter dated 23 December 2004, both Mr and Mrs Thorley were informed of actions required following a visit by the inspector, Mrs Lorraine Lawton, on the 9 December 2004.21. By letters dated 14 January 2005, the Appellants confirmed that they would comply with the request and indicated their intention to object to the change of conditions on the registration.22. On the 7 February 2005, a further inspection was undertaken by Mrs L Lawton and Mrs V Thomas. On entering the premises, they found Mrs Thorley in the kitchen with eight children, of those, five were aged under two years, one aged two and two aged three. A further two children were found unsupervised in the small playroom. This made a total of ten children under five with no assistants present. The Appellants were cautioned in respect of the offence of exceeding the number of children cared for when assistants were not present. 23. During a further visit on the...

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