Quigley (Kinderland Montessori Nursery School) v OFSTED, Court of Appeal - Childminders and Day Care Providers for children, January 28, 2005, [2004] EWCST 0285(EY)

Resolution Date:January 28, 2005
Issuing Organization:Childminders and Day Care Providers for children
Actores:Quigley (Kinderland Montessori Nursery School) v OFSTED

Quigley (Kinderland Montessori Nursery School) v OFSTED [2004] EWCST 0285(EY) (28 January 2005)

DECISION Case No: [2004] 0285.EY

Miss Elaine Quigley (Kinderland Montessori Nursery School) Applicant


OFSTED Respondent

- Before -

Ms Liz Goldthorpe (Chair)

Ms Linda Redford

Ms Sallie Prewett

Hearing at the Care Standards Tribunal

Pocock Street, London

On 20th and 21st July, 18th, 19th, 22nd, 23rd, 25th, 26th, 30th November and 1st and 2nd December 2004


  1. The Applicant (Miss Quigley) appealed against the decision of Her Majesty’s Chief Inspector of Schools (OFSTED), pursuant to Section 79 (l) of Part XA of the Children Act 1989 ("the Act") and communicated by letter dated 11th February 2004, that her registration as a provider of day care for children under eight in respect of Kinderland Montessori Nursery School ("the Nursery") at 47 Palace Court, Queensway, London W2 4LS be cancelled.


  2. Ms Lisa Sinclair of Counsel, instructed by Davies and Partners, represented the Appellant and Miss Susan Freeborn of Counsel, instructed by Messrs Bevan Ashford, represented the Respondent.

    The Law

  3. The decision of OFSTED was taken under s.79G(1) of the Children Act 1989 (hereafter ‘the Act’) that provides: the registration authority may cancel the registration of any person if ‘(b) in the case of a person registered for providing day care on any premises, the authority is of the opinion that the person has ceased or will cease to be qualified for registration for providing day care on those premises…’

  4. An appeal lies to the Tribunal by virtue of s.79M(2) of the Act as amended by the Education Act 2002. On appeal the tribunal must examine the evidence for cancellation afresh and may consider post-decision facts, and may:

    ‘(a) confirm the taking of the step or the making of the order [or determination] or direct that it shall not have, or shall cease to have, effect; and (b) impose, vary or cancel any condition.’

  5. Under s.79B(4) of the Act, a person is qualified for registration for providing day care on particular premises if every person looking after children on the premises is suitable to look after children under the age of eight; or if or living or working there, is suitable to be in regular contact with such children, the

    premises are suitable to be used for such children, having regard to their condition and the equipment there, and to any other factor connected with the situation, construction or size of the premises; and the person is complying with regulations under s.79C and with any conditions imposed by the registration authority.

  6. The Regulations made under s.79C relevant to this case are the Day Care and Child Minding (National Standards) (England) Regulations SI 2001/1828. Regulation 3(1) states that in exercising his functions under Part XA of the Act the Chief Inspector shall have regard to the National Standards and supporting criteria. By virtue of Regulation 3(2) a registered person must meet the criteria applicable to the child care category in which he falls.

  7. Up to September 2001 each separate local authority was responsible for regulating and inspecting the provision of day care in its area. In this case the responsibility for Kinderland lay with Westminster City Council, which, by virtue of the Day Care and Child Minding (Functions of Local Authorities: Information, Advice and Training) (England) Regulations 2001, retained the function of advising day care providers of improvements in relation to day care provision and child minders when OFSTED took over the regulatory functions in September 2001. When OFSTED assumed this responsibility by virtue of Part XA of the Act, as inserted by s.79 of the Care Standards Act 2000, it undertook ‘transitional’ inspections during the ensuing 6 months.

  8. The National Standards and accompanying guidance were published in 2001 by the Department of Education and Skills in two documents entitled, respectively, ‘National Standards for Under Eights Day Care and Childminding: Full Day Care’ and ‘Full Day Care: Guidance to the National Standards.’ The Standards applied to existing providers with effect from 1st September 2001 and the introduction to these states ‘good quality care and education in the early years raise educational standards and opportunities, and enhance children’s social development’ and that the Standards ‘represent a baseline of quality below which no provider may fall’ and, as is made clear:

    • Providers are expected to demonstrate how they aim to achieve these requirements against which they are registered and inspected.

    • The purpose of the Guidance is to help providers meet the standards and explain how OFSTED inspectors will register and inspect against the Standards.

    The role of OFSTED therefore is to regulate day care providers and to ensure compliance with the Act, the Regulations and the National Standards. It is the responsibility of the registered provider to demonstrate compliance to OFSTED.

  9. The Day Care and Child Minding (National Standards) (England) Regulations 2001 and the subsequent 2003 Regulations (making similar provisions) place an obligation on a registered provider to

    • meet the requirements of the National Standards and to have regard to the specified supporting criteria

    • to notify the Chief Inspector of the occurrence of specified events, such as changes in those looking after children on the premises and any accident to a child.

    • to keep specified records

  10. These Regulations also provide that, in the exercise of his functions under Part XA of the Act, the Chief Inspector must have regard to the National Standards and supporting criteria. They also authorise him, if he considers that a registered person has failed, or is failing, to comply with the requirements of Regulation 4(2) or 7, to give notice to her specifying her failure, the action she should take to comply, and the period during which she should take that action. The registered person is required to comply with the terms of that notice within the specified period. Furthermore, any allegation that a registered provider has failed to comply with the requirements of the Regulations, or those of the National Standards, or to have regard to the criteria, may be taken into account in any proceedings under Part XA of the Act.

  11. The main National Standards relevant to this case, with the supporting criteria are as follows:

    (1) ‘Suitable Person’

    Adults providing day care, looking after children or having supervised access to them are suitable to do. The criteria include the registered person (RP) complying with all conditions of registration, ensuring that any person who has not been vetted is never left alone with children, and that all managers, staff and volunteers have the appropriate experience, skills and ability to do their jobs.

    (2) Organisation

    The RP meets required adult:child ratios, ensures that training and qualifications requirements are met and organises space and resources to meet the children’s needs effectively. This will include demonstrating staff have induction training, are deployed effectively within the premises to ensure children’s safety, welfare and development, a keyworker system and a named deputy able to take charge in the manager’s absence. The criteria also identify:

    • a maximum of 26 children in a group and minimum staffing ratios of 1:3 for children under 2 years, 1:4 for children aged 2 years, and 1:8 for children aged 3-7 years, with a minimum of two adults on duty, and a system for registering children and staff attendance on a daily basis.

    • an Operational Plan available to parents detailing staff deployment, activities, and how continuing training needs of staff will be met,

    • suitable contingency arrangements to cover emergencies and unexpected staff absences, and sufficient staff and volunteers to cover staff breaks, holidays, sickness and time spent with parents,

    • accessible individual records with staff and volunteer names and addresses.

    (3) Care, Learning and Play

    The RP meets children’s individual needs and promotes welfare, plans and provide activities and play opportunities to develop children’s emotional, physical, social and intellectual capabilities. The manager should demonstrate that she and her staff encourage children to be confident, independent and develop their self-esteem, observe and record what children do and use this to plan the next steps for the children’s play, learning and development, and that the RP gives children opportunities to be active, indoors and out.

    (4) Physical Environment

    The premises are safe, secure and suitable for their purpose with adequate space in an appropriate location, are welcoming to children and offer access to the necessary facilities for a range of activities which promote their development. Supporting criteria include clean premises maintained at an adequate temperature, with adjoining outdoor play space and if, exceptionally, this cannot be provided, children are safely escorted to local parks, playgrounds or the equivalent on a regular basis.

    (8) Food and Drink

    Children are provided with regular drinks and food in adequate quantities for their needs. Food and drink is properly prepared, nutritious and complies with dietary and religious requirements. The criteria include making fresh drinking water available to children at all times, and offering snacks and drinks routinely to children who stay for the whole day.

    (11) Behaviour

    Adults caring for children in the provision are able to manage a wide range of children’s behaviour in a way which promotes their welfare and development. Criteria include a written statement on behaviour management by the RP, stating the methods used to manage children’s behaviour, which “is fully understood and followed by all staff and discussed with parents.” “Adult handling of behaviour should be consistent and developmentally appropriate, respecting...

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