RC v OFSTED, Court of Appeal, January 21, 2009, [2009] UKFTT 5 (HESC)

Resolution Date:January 21, 2009
Actores:RC v OFSTED

First-Tier Tribunal (Care Standards)


First-Tier Tribunal (Care Standards)


In the First-Tier Tribunal (Health, Education and Social Care)

RC (Appellant)


OFSTED (Respondent)

[2008] 1339.EY

- Before -

Tony Askham (Nominated Tribunal Judge)

David Cook (Specialist Member)

Judith Wade (Specialist Member)


Heard on 16, 17 and 18 December 2008 at the Tribunal Service, Dukes Keep, Marsh Lane, Southampton.


The Appellant appeared in person.

For the Respondent: Simon Murray (Counsel) Alexandra Lewenstein (Solicitor, Treasury Solicitors).


  1. The Appellant appeals under Section 79M of the Children Act 1989 against the decision of the Respondent to cancel her registration as a child minder. This appeal proceeds under the transitional provisions relating to the Childcare Act 2006 which came into force on 1 September 2008. The appeal proceeds as provided for in the Childcare Act 2006 (Commencement number 5 and Savings and Transitional Provisions) Order 2008 paragraph 18.

    Preliminary Issues

  2. At the commencement of the hearing we concluded and ordered that the hearing would be held in private in accordance with Regulation 29.

    The Evidence heard (16 December 2008)

  3. We heard evidence of JC, a Child Minder, who gave evidence for the Appellant.

  4. We heard evidence of CS, a Child Minder, who gave evidence on behalf of the Respondent.

  5. We heard the evidence of JV, a Child Minder, who gave evidence on behalf of the Respondent.

  6. We heard evidence of Debbie Turner, the Field Area Manager of the Respondent.

    The Evidence heard (17 December 2008)

  7. On 17 December 2008 we heard evidence from TG (a child minder) on behalf of the Respondent.

  8. We heard evidence from GC (a child minder) on behalf of the Respondent.

  9. We also read the witness statements of:

    · Lorraine Sparey, a Child Care Inspector of the Respondent.

    · Michael Dwyer, a Case Officer of the Respondent. This Statement had attached to it a number of interview notes of interviews he had conducted with witnesses in this case. We read those Statements which were from CS (a child minder) AC and LC (who are child minders) MP (a parent) JC (a child minder) GP (a parent) an anonymous Statement from a child minder, an anonymous Statement by a parent and from Heidi Rehman (a Child Care Coordinator with NCMA).

    · Tonia Chillcott, a Child Care Inspector for the Respondent.

    · Lisa Ellis, a Child Care Inspector for the Respondent.

  10. We commenced hearing the Appellant's evidence.

    18 December 2008

  11. We completed the Appellant's evidence.

  12. We read the Witness Statement of ST, a Child Minder, who gave evidence on behalf of the Appellant.

    The evidence before the Tribunal

  13. Before her suspension which gives rise to this appeal, the Appellant had been registered initially as a Child Minder by the Local Authority in 1998. Registration inspection duties transferred from the Local Authority to the Respondent in September 2001. The Appellant's registration allowed her to care for no more than five children under eight years old, of these no more than three may be under five years old, and of those no more than two can be under one year at any one time.

  14. The Appellant was formally inspected by OFSTED in July 2005 when her provision of child care was deemed to be good and her provision of nursery education satisfactory. The evidence suggested that as nursery education was a new area and there was no evidence of the Appellant having delivered it, that was the standard assessment outcome awarded at that time.

  15. From June 2004 through to March 2008 a number of issues were raised which primarily related to the Appellant's behaviour management methods. In this Decision we will set out each of those incidents and the facts which we heard and our conclusions on the facts. It is worth recording in the overview of the evidence that in addition to the formal inspection which OFSTED carried out in 2005, for the last two or three years the Appellant was also seen every three months at her home and at a group situation once a month by Heidi Rehman, the NCMA Coordinator, so it is apparent to us that the Appellant was in recent years subject to a fair degree of oversight and supervision.

  16. The final incidents occurred in March 2008. They both involved a two year old boy who has learning difficulties and communication difficulties. Debbie Turner first became aware of the situation on 13 March 2008 when OFSTED received a phone call from a Child Minder who at that stage wished to remain anonymous expressing her concerns about two separate incidents which had occurred at the local toddlers group. These two incidents had occurred on 6 and 13 March 2008. Ms Turner was able, with the aid of the OFSTED computer system, to review the history of the previous concerns regarding the Appellant and, having considered all of these previous concerns and the March allegations, Ms Turner told us she was alerted to the fact that the Appellant's behaviour demonstrated a pattern of possible non compliance with National Standard 11 (behaviour). As a result she made the decision to suspend the Appellant's registration in order to allow time for OFSTED to investigate the matter fully and to protect children from the risk of harm. In addition, in accordance with the protocol, the investigation was carried out by the Local Authority's Children Services Department with whom it was decided to share information. The Appellant was notified of her suspension in a letter of 14 March 2008. The Appellant immediately requested the lifting of that suspension by letter on 15 March 2008. Rather than in any way dispelling Ms Turner's concerns about the situation, the Appellant's letter of 15 March 2008 raised further concerns because the letter failed to acknowledge that the Appellant might have used inappropriate behaviour management methods towards the child concerned in the March incident. Ms Turner's Statement said ``the Appellant did not recognise the force used to make the boy drink was unnecessary: in fact she denied any force was used at all in relation to the child.'' As a result Ms Turner made the decision to refuse the request to lift the suspension. Consequently the Appellant appealed to this Tribunal against the suspension. As there had been no possibility of a full inspection by OFSTED, given that under the protocol Social Services were investigating, it was decided by OFSTED to oppose the appeal. There were a number of case conferences and case reviews. In our view OFSTED were right to suspend the Appellant at the time.

  17. The Appellant's appeal against her suspension was heard before this Tribunal (differently constituted) [RC -v- OFSTED [2008] 1272.EY/SUS] when this Tribunal adopting the standard reasoning of this Tribunal concluded that the suspension should continue until the investigation was completed. We note in that Hearing Ms Turner, having listed the options which might be available to OFSTED, concluded ``we are not considering cancellation of the Appellant's registration at present.'' That Hearing took place on 9 April 2008.

  18. That Hearing fell in the middle of a case review which had been commenced on 8 April 2008 and was completed on 10 April 2008. It appears that on or about 8 April 2008 the Children Services Department of the Local Authority communicated to OFSTED that they were taking no further action as, in its view, there were no child protection issues arising.

  19. At the case review on 8 and 10 April 2008 Ms Turner told us that those present examined a Report prepared by Lisa Ellis and Lisa Cupples, both Officers of OFSTED, of their visit to the Appellant and discussed several avenues of enquiry. Ms Turner told us they did not come to any conclusions at the case review but they had already formed the view that all allegations had built a history of similar concerns which specifically related to managing children's behaviour appropriately by the Appellant and indicating that emotional distress to the children was involved. She went on to say that at that case review they considered that the Appellant appeared to maintain her practice with children was the best way of doing things so there was a low chance of adjusting it. As a result, OFSTED decided to continue their investigation. It appears strange to us looking at the notes of that review, and hearing and reading Ms Turner's evidence that Ms Turner was able to tell this Tribunal on 9 April 2008 that OFSTED were not considering the cancellation of the Appellant's registration at that time. Whilst we accept that no formal inquiry had in fact been undertaken by OFSTED Ms Turner's view of the situation appears to us to have been clear from that time onwards.

  20. Rightly given the information which had been provided by the Appellant, OFSTED put in hand a number of enquiries. Two of its Officers Gillian Noble and Michael Dwyer interviewed two Child Minders who had attended the same toddler group as the Appellant and spoke to a parent of a minded child. Having discussed the results of these interviews OFSTED thought they needed further information and continued the Appellant's suspension.

  21. By 2 May 2008 Mr Dwyer had taken Witness Statements from members of public, parents, child minders and the Child Minding Support Worker and OFSTED concluded that their investigation was completed. The case review was held to consider the evidence which had been gathered and to conclude the matter. We had read the Minutes of that meeting and heard Ms Turner's evidence about it. OFSTED considered a number of options. First they considered whether a Compliance Notice could be issued but they felt this avenue had already been exhausted without a long term positive effect. They noted that in 2005 they had recommended the Appellant devise an action plan and in 2007 they had set out actions in relation to National Standards 3 and 11. Although The Appellant had previously met actions and completed several...

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