Adegoroye (The School Day Nursery) v Ofsted, Court of Appeal, March 02, 2009, [2009] UKFTT 10 (HESC)

Resolution Date:March 02, 2009
Actores:Adegoroye (The School Day Nursery) v Ofsted
 
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Adegoroye (The School Day Nursery) v Ofsted [2009] UKFTT 10 (HESC) (02 March 2009)

Schedule 2 cases: Childminders and Day Care Providers for children - Cancellation of registration

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

Ms Adegoroye (Appellant)

-v-

OFSTED (Respondent)

Re: The School Lane Nursery

[2008] 1244.EY

-Before-

Tony Askham (Nominated Tribunal Judge)

Jennifer Cross (Specialist member)

David Cook (Specialist member)

Decision

Appeal

Ms Adegoroye appeals the Respondent’s decision dated 16 January 2008 to cancel her registration under Section 79G(1)(b) of the Children Act 1989 on the basis she was not able to comply with the requirements of Part XA of the 1989 Act, the Day Care and Child Minding (National Standards) (England) Regulations 2003 (the 2003 Regulations) and the National Standards made under them and that, therefore she has ceased to be qualified for registration providing day care on the premises at School Lane Ramsgate (the nursery) under Section 79B(4) of the 1989 Act.

Attendance

On behalf of the Respondent:

Samantha Broadfoot (Counsel) – Representative

Susan Scott – Ofsted Inspector

Tracy Larnach – Kent County Council Early Years Foundation Stage Consultant (previously Ofsted Inspector)

Joan Mansfield – Field Area Manager at Ofsted

Demi Rousiou – Case Officer at Ofsted

On behalf of the Appellant:

The Appellant in person

Preliminary issues

At the commencement of the hearing we made a restricted reporting order under Regulation 18(1) prohibiting the publication (including by electronic means) in a written publication available to the public, or inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any child, which should continue until this Tribunal ordered to the contrary.

Facts

  1. Ms Adegoroye became a nursery nurse in 1972 and for the past thirty years has worked in a variety of placements in London including being the manager of a day care nursery in the early 1990’s.

  2. Seven years ago the Appellant who by then was living in Kent decided to return to Kent to work and from then on has been determined to open a day care nursery in Kent. Trying to organise the funding, find the appropriate premises and to set up the nursery took her some three or four years to achieve. Her first effort to obtain registration of the nursery was unsuccessful but she applied again in 2005. That application took a long time to resolve. Much of the delay in the registration process appears to have occurred because Ofsted were requiring evidence from the Kent Fire Authority, the Environmental Health Officer and the Planning Authority on a number of issues relating to the nursery premises. In the course of the Appeal hearing we obtained from the representative of Ofsted the records of the registration. It is apparent from those that in November 2005 the Kent Fire Authority found the proposed day care provision “deeply unsatisfactory”. Ultimately the Planning Authority and the Environmental Health Officer were satisfied as to the premises and the registration of the Appellant to run the nursery at the premises was passed and registration was finally granted on 29 June 2006. The Appellant says as a result of the delay in registration a number of the members of staff who she had hoped to employ had obtained employment elsewhere and the number of children she hoped to have initially registered at the nursery was substantially lower than would have been the case but for the delay. Importantly at this stage we noted that it appeared that the fire officer was never satisfied that the premises were suitable for use as a day nursery at the time of registration.

  3. The only importance of this issue is that in the course of various inspections carried out by Ofsted over the period of time that the nursery has been open and registered it became apparent that there were a number of concerns about fire safety. This resulted in the fire officer inspecting the premises in October 2007 and identifying a number of areas which required attention before he could be satisfied that the fire safety measures were satisfactory. It appears to us that this was a substantial risk during the first year of the nursery’s existence which should not have occurred had Ofsted dealt fully and properly with the registration application.

  4. Indeed part of the Appellant’s case could fairly be said to rest on her conviction that nothing about the physical premises or her fitness to be a provider had changed substantially since the initial registration. If both she and the premises had been judged to be suitable on registration, why were these issues now being used to justify cancellation and closure?

  5. The notice of intention to cancel the registration was made by Ofsted on the 9 November 2007. The letter containing the notice of intention of cancellation identified fifteen reasons for that intention. In the Appeal before us and in closing submissions by Counsel for Ofsted, Ofsted’s case was put that the Appellant was simply unable to understand the regulatory framework in which the nursery must operate and as a result the nursery has been unable to provide the standard of care which is required. Furthermore it was submitted to us that there was little prospect that it would do so in the future.

  6. The first two concerns expressed by Ofsted were that children were being cared for by staff, who had not been properly vetted. This resulted in a visit by Ofsted to the nursery on 8 November 2006 when the inspectors found that the Appellant failed to comply with National Standard One in this respect. As a result an action was raised for the Appellant to develop rigorous and robust recruitment procedures to ensure that effective systems were in place for checking that staff were suitable for working with children and to ensure that effective procedures were in place so that adults, who had not been CRB vetted, were not left alone with children. In December 2006 the Appellant assured Ofsted that a new recruitment policy was in place and it was then the case that no one, who was not CRB checked, could be left unsupervised with children.

  7. On 8 December 2006 there was an inspection by Annie Williams, an Ofsted inspector. The inspection can only be described as “damning”. On the basis of the evidence collected during the inspection the quality and standards of care were said to be “inadequate”. The Appellant did not meet the national standard for under eight’s day care and child minding. The quality and standards of nursery education were inadequate. The evidence produced to reach those findings was compelling and overwhelming. In particular we noted that despite the assurance given by the Appellant as to the CRB checking the inspection found that on occasions un-vetted adults were left alone with children.

  8. Many of the basic issues raised by Ofsted at the inspection were subsequently the focus of ongoing support from the Kent County Council’s early year’s advisory teachers (EYAT). Ele Curtis, an advisor from the service, frequently visited the nursery from the time of the December inspection throughout 2007 to attempt to make improvements into the setting. The Appellant uses the notes of those visits to identify what she says was improvement. We note however that in early January 2007 the notes from the Advisory Service go to support the complaints being made by the Ofsted inspectors in the December inspection.

  9. On 22 February 2007 Ms Larnach visited the nursery again by way of investigation. The initial purpose of the meeting was to ascertain whether or not the Appellant had met the compliance notices served on her. At the time of this visit there was also a visit by the Environmental Health and Health & Safety Officers. Ms Larnach was concerned that the compliance notice regarding the complaints procedure had not yet been addressed and her concerns as to the staffing ratios and behaviour management remained outstanding. We noted that on 28 February that the Advisory Service visited and that the Appellant told them that the Ofsted visit had been “positive”. The advisor however suggested a whole range of simple, basic recommendations to further improve the setting. It is apparent from the inspection that Ms Larnach continued to have major concerns on the issue of behaviour management and the need for all staff to have behaviour management training. Despite this the evidence before us shows that whole staff training on behaviour management did not take place until 10 June 2008 when it was delivered by Charlotte Thompson the early years SENCO of Kent County Council.

  10. On 21 March 2007 Ms Larnach carried out a further inspection of the nursery. The outcome of the inspection was that the quality and standards of care were inadequate and that the Appellant did not meet the national standards for under eight’s day care and child minding. The quality and standards of nursery education were also deemed inadequate. At the date of the inspection the nursery had seventeen children on the roll, of whom five received funding for early years education. The nursery employed three members of staff, of these two members of staff and the Appellant held appropriate early years qualifications. The inspection showed that children’s health and safety continued to be compromised because the staff member with a first aid certificate was not always on the premises. Children’s individual needs were not being adequately met due to the mixed age grouping and low staffing. In fact due to the organisation and low staffing in the nursery the foundation stage curriculum was not being delivered appropriately and the staff’s knowledge and understanding of the foundation stage and the early learning goals were poor and they awaited further training. The staff’s knowledge and understanding of supporting children with learning difficulties and...

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