Best Friends Private Day Nursery Ltd v OFSTED, Court of Appeal, January 13, 2009, [2009] UKFTT 1 (HESC)

Resolution Date:January 13, 2009
Actores:Best Friends Private Day Nursery Ltd v OFSTED

[2009] UKFTT 1 (HESC)

January 2009)


Case [2008] 1247.EY









Mrs Carolyn Singleton (First Tier Tribunal Judge)

Mrs. Pat McLoughlin

Mr. John Hutchinson


Heard at Manchester Civil Justice Centre on 3rd, 4th, 6th and 7th November 2008


The Appellant appeared in person in the form of Mr. David Grant who owns a 75% share in the Appellant company. The Respondent was represented by Ms. Leventhal of counsel.

Burden of Proof

The burden of proof lies with the Respondent.

Standard of Proof

The standard of proof is ``on the balance of probabilities.''

Background to the case

  1. Best Friends Nursery Limited (``BFNL'') is the registered person under the Childcare Act 2006. However it was accepted that since late 2001 and early 2002 Mr. Grant had been the only person in control of the Appellant Company and, therefore, of the Nursery itself. For the purposes of the legislation and, therefore, this appeal, Mr. Grant is the ``nominated individual''.

  2. On 9th January 2008, the Respondent issued a decision to cancel the Appellant's registration on the Early Years Register and both parts of the General Childcare Register maintained by the Respondent under Part 3 of the Childcare Act (``the 2006 Act''). That cancellation decision was made under Section 79(1)(b) of the Children Act 1989 on the basis that Mr. Grant no longer complied with the requirements of Part XA of the 1989 Act, the Day Care and Child Minding (National Standards) (England) Regulations 2003 and the National Standards made under them and that, therefore, he had ceased to be qualified for registration for providing day care on those premises (the Nursery) under s.79B(4) of the 1989 Act.

  3. This cancellation notice followed the issue of a notice of intention to cancel dated 15th October 2007 which raised 24 issues, and following an oral hearing before an Ofsted Objection Panel on 4th January 2008. The notice of the decision to cancel states:

    ``...The panel considered that you consistently fail to comply with the necessary requirements and the panel are of the opinion that you are unable to maintain compliance with the national standards over a sustained period of time. This is evidenced by three successive inadequate inspection judgements, on 9 October 2006, 8 March 2007 and 4 September 2007, detailed in the notice of intention, each of which has resulted in Ofsted taking enforcement action.

    .........Based on all the information available to the panel, they were of the opinion that you do not meet the requirements of the national standards, In particular, you have failed to ensure that day care is consistently provided in a safe and suitable environment, you have failed to recognise potential risks to children and you have not complied with the relevant Regulations and National Standards. Ofsted are of the opinion that you are no longer qualified for registration as a day care provider.''

  4. Mr. Grant appealed under s. 79M of the 1989 Act on 21st February 2008.

  5. With effect from 1/09/2008 the 1989 Act provisions were replaced by Part 3 of the 2006 Act. Under transitional provisions (the Childcare Act 2006 (Commencement No. 5 and Savings and Transitional Provisions Order 2008, Schedule 2, para 18)an appeal under S.79M made, as this appeal is, before the transfer date (1/09/08) is to be treated as an appeal under s.74 of the 2006 Act, as though it were an appeal against a decision to cancel taken under the 2006 Act.

  6. Under s. 74, on an appeal against cancellation, the Tribunal must either confirm cancellation or direct that it shall not have effect. If directing that the cancellation shall not have effect, the Tribunal may impose conditions on the registration of the person concerned, or vary or remove any condition previously imposed on his registration.

    Evidence for the Respondent

  7. Simon Hutchings is Operations Manager for Ofsted and has been so since April 2008. Prior to this he was a Field Area Manager for Ofsted. He provided two statements which appear at tab 6 and tab 7 of the bundle. As Area Manager since 2006, his Inspectors have undertaken inspections of the BFNL and he has been the decision maker in respect of the outcomes of those inspections. He gave the Tribunal an overview of the history relating to the inspections of BNFL culminating in an inadequate outcome in 10/06, 3/07 and 4/09/07. It was his decision to issue a notice of intention to cancel the Appellant's registration on 15/10/07.

  8. Following the receipt of Mr. Grant's letter objecting to the intention to cancel, Mr. Hutchings sat on the Objection Panel which was heard on 4th January 2008. Notes of that hearing appear at page 370 of the bundle. Mr. Grant had raised a number of objections to the 24 issues raised in the notice of intention to cancel. Some of those objections were accepted by the panel but concerns remained in that Mr. Grant had failed to demonstrate how he could maintain national standards given that he had previously met issues identified at inspections on other occasions but had been unable to maintain the required standards once monitoring visits had ceased.

  9. Mr. Hutchings told the Tribunal that, having regard to all the material available, he took the view that Mr. Grant's registration should be cancelled. This decision was based on 3 inadequate inspections and a history of consistent failure to meet National Standards. His view was that Mr. Grant only improved whilst Ofsted monitored regularly and that the nursery was not a viable provision.

  10. A further monitoring visit took place in March 2008. Nine actions relating to National Standards were raised. On 29/04/08 another inspection was carried out, the outcome of which was inadequate and 6 compliance notices were issued. On 9/06/08 a monitoring visit took place, followed by a case review on 12/06/08. A monitoring visit took place in July and then further visits on 16/10/08, 21/10/08 and 28/10/08.

  11. Whilst some improvement in meeting National Standards was acknowledged, Mr. Hutchins' view remained the same. Mr. Grant had been unable to show that improvements could be maintained and the registration should be cancelled.

  12. He confirmed that on 21/10/08, Ofsted had received applications from Victoria and Rebecca Taylor to be the ``registered persons'' in respect of the nursery and an application from Leanne Devlin on 27/10/08 to be the manager. They were being processed and, whilst efforts would be made to deal with them as quickly as possible, Ofsted have up to 6 months to register.

  13. He confirmed to the Tribunal that Ofsted had never received a CRB check in respect of Mr. Grant. He had been deemed to be suitable when Ofsted took over responsibility in 2001 from the Local Authority in accordance with policy at the time. He said that no PNC checks had been done on Mr. Grant in the six years since 2001.

  14. As to the availability of alternative childcare provision in the area, Mr. Hutchings' understanding was that nursery places were readily available.

  15. Shirley Monks-Meagher is a Childcare Inspector for Ofsted. Her statement is at page 57 of the bundle. Her involvement with the nursery had been an inspection in 9/10/06 and two monitoring visits in December 06 and April 08. Her inspection report for October 06 is at page 229 of the bundle. The outcome of this inspection was that the quality and standards of care at the nursery were inadequate, such that compliance notices were issued relating to NS 6, 7 and 14. These contained 15 actions which were required to be taken by Mr. Grant to meet National Standards and mandatory requirements in the Regulations. Issues were raised concerning, inter alia, a hole in the ceiling with overflowing tubs beneath it to catch water, dirty toilets, no hot water, blocked fire exits, hazards in the porch area and no indication that the gas and electrical appliances had been checked. In addition, there were no written procedures as to what should be done in the event of a child not being collected and information relating to child protection was very basic, including the absence of a written complaints procedure, which is a mandatory requirement. Overall, Mrs. Monks-Meagher's opinion was that there were serious causes for concern.

  16. Mrs. Monks-Meagher visited the nursery again on 4/12/06, by which time 12 of the 15 actions had been addressed by Mr. Grant such that the relevant National Standards were met. By a further visit on 18/12/06 the remaining 3 actions had been dealt with and National Standards were met.

  17. Mrs. Monks-Meagher had no further involvement until April 2008 when she carried out another inspection of the nursery. Again, the overall standard of care was found to be inadequate. Her report appears at page 389 of the bundle. This inspection post dates the notice that had been issued to cancel Mr. Grant's registration. Issues were raised as to NS1 (suitable person), NS3 (care learning and play), NS6 (safety),

    NS13 (child protection) and NS14 (documentation) and 6 compliance notices were issued.

  18. Her next involvement was a monitoring visit on 16/10/08 in company with Susan Heap. She told the Tribunal that, on this visit, the first thing she noticed was that there had been a complete change of staff. By this time Mr. Grant had 2 volunteers working for him, Rebecca and Victoria Taylor, and their hand was very evident in the improvement in NS3. She stated that there is a much warmer environment now with children's work displayed. The staff are clear about child protection but there is still some way to go. She told the Tribunal that the improvements were down to Victoria and Rebecca Taylor, not Mr. Grant. He had failed to notify Ofsted of the fact that there is a new manager in place and he had failed in his responsibility to ensure that all members of staff are CRB checked. At a meeting with Victoria and Rebecca Taylor it became apparent...

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