In the First-Tier Tribunal (Health, Education and Social Care)
Birmingham Magistrates Court 8 May 2012

Before
 Judge Nancy Hillier 
Ms Judith Wade
Ms Linda Elliot

H A-H 
[2012] 1958.EY-SUS
Appellant

V.

OFSTED
Respondent

DECISION

1.	The appellant appeals to the Tribunal against the respondent’s decision dated 12 March 2012 to suspend her registration as a child minder. This suspension has subsequently been extended to 3 June 2012. 

2.	The Tribunal of it’s own motion makes a restricted reporting order under Rule 14 (1) (a) and (b) of the Tribunal Procedure (First tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, prohibiting the disclosure or publication of any documents or matter likely to lead members of the public to identify the appellant or her son and directing that reference to them shall be by their initials so as to protect their private lives pending consideration of the case by Ofsted.  
3.	Ms A-H represented herself. Ms Elsom represented the Respondent. 

The background
4.	The appellant is a registered child minder under Chapters 2, 3 and 4 of the Childcare Act 2006 providing services from her home address where she lives with her adult son and daughter. 

Events leading to the issue of the notice of statutory suspension.

5.	On 9 March 2012 Birmingham Safeguarding team notified Ofsted that the appellant’s son, Y, has a conviction for manslaughter.  This information came to light from an Enhanced Criminal Records Bureau ("CRB") check which Birmingham Local Authority Child minding Co-ordinators had requested in relation to the appellant, who has been providing home schooling under their aegis.  That CRB check showed that Y was convicted of manslaughter in July 1999 and was sentenced to four years at a Young Offender's Institute. Y was aged 17 at the time the offence was committed in December 1998 and the victim was also 17.  
6.	A member of the Ofsted Regulatory Inspector team, Inspector Yvonne Johnson, visited the child minding premises the same day. The appellant was not there and Ms Johnson arranged to visit again on 12 March.
7.	During Ms Johnson's visit on 12 March the appellant confirmed that her son Y lived at the premises and had done so since at least the end of 2011. She also accepted that she had not informed Ofsted that Y had moved into her home. 
8.	On the same day Ofsted held a case review and took the decision to suspend Ms A-H so that the circumstances surrounding her son's conviction could be investigated.  She was notified of the suspension that day.

Events following the suspension

9.	Ofsted explained to the appellant that she was a disqualified person due to living in the same house as her son, and explained that she could apply for a waiver. She therefore applied to Her Majesty’s Chief Inspector to waive her disqualification on 21 March 2012 and the Waiver Panel met on 12 April 2012 to review the application.  The Panel was unable to make a decision whether or not to grant the waiver request because Y’s CRB check had not been completed and full details of his conviction were not available. 
10.	The main obstacle to obtaining the CRB for Y is that although the appellant had filled in the EY” form which triggers the CRB check, Ofsted had not received a fully completed CRB form from Y at the time of the Waiver panel or at the date of this hearing.  The effect of this is that, regardless of the Tribunal decision on suspension, under the Regulations, the appellant is currently disqualified and cannot lawfully act as a child minder.  
11.	 The initial suspension period ended on 22 April and was renewed on 20 April until 3 June 2012. Ofsted have indicated an intention to continue renewing the suspension until the Waiver panel can meet to determine the application.

The Law
12.	The statutory framework for the registration of childminders is provided under the Childcare Act 2006. This Act establishes two registers of childminders: the early years register and the general child care register. Section 69 (1) Act provides for regulations to be made dealing with the suspension of a registered person’s registration. The section also provides that the regulations must include a right of appeal to the tribunal.
13.	 Since Y has a conviction for manslaughter of a person under 18 he is disqualified from registration under section 4(1) and (4) of the Childcare (Disqualification) Regulations 2009 (“the Regulations”) and section 26(1)(b) of the Criminal Justice and Court Services Act 2000.  This means that Ms A-H is also disqualified from registration under section 9(a) of the Regulations because she lives in the same household as another person who is disqualified from registration.
14.	Under the Childcare (Early Years and General Childcare Registers) (Common Provisions) Regulations 2008 when deciding whether to suspend a childminder the test set out in regulation 9 is:	
 
“that the chief inspector reasonably believes that the continued provision of childcare by the registered person to any child may expose such a child to a risk of harm.”

15.	The suspension shall be for a period of six weeks. Suspension may be lifted at any time if the circumstances described in regulation 9 cease to exist. This imposes an ongoing obligation upon the respondent to monitor whether suspension is necessary.	

16.	“ Harm” is defined in regulation 13 as having the same definition as in section 31 (9) of the Children Act 1989:	

 “ ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill treatment of another”. 

17.	The powers of the tribunal are that it stands in the shoes of the Chief Inspector and so in relation to regulation 9 the question for the tribunal is whether at the date of its decision it reasonably believes that the continued provision of child care by the registered person to any child may expose such a child to a risk of harm.	

18.	The burden of proof is on the respondent. The standard of proof ‘reasonable cause to believe’ falls somewhere between the balance of probability test and ‘reasonable cause to suspect’. The belief is to be judged by whether a reasonable person, assumed to know the law and possessed of the information, would believe that a child might be at risk.

Issues
19.	Ms De Lastie, the Ofsted decision maker in this case, gave evidence that there were 5 issues of concern to Ofsted which have given rise to the suspensions.
•	Ofsted had no record of Y living at the premises despite the obligation on the appellant to notify them of any changes to her circumstances under Regulation 8
•	The reason why Ms A-H had not notified them, given that she knew of her obligation to do so.
•	The fact that pending the CRB check, and despite requests to the police, there is very little independent information available about the circumstances of the manslaughter conviction.
•	The appellant is currently disqualified from registration and although she has applied for waiver the CRB check has not been completed by Y.
•	In the absence of sufficient information it is not possible to properly assess the risk from Y.
20.	Ms Johnson, an Ofsted regulatory inspector, gave evidence that she had explained the waiver process to the appellant on several occasions and had prompted her to return the relevant forms. She said that Ms A-H did not believe that Y could pose a risk to the children. Ms Johnson had completed the necessary interviews with Ms A-H and Y for the waiver panel to consider, so only the CRB check information regarding Y was outstanding.
21.	Ms A-H told us that she did know that she had to notify Ofsted about Y moving in, but that she had not got round to doing it. She stated that she struggled to understand Ofsted’s concerns, and that she had now sent the CRB information to Ofsted. She said that it had been sent “Some time last week” but was unable to say when.  The appellant also stated that she does not feel the children are at risk of harm, especially since she had had no complaints about her child minding service, and the offence happened a long time ago and Y had not been in trouble since. She said that she understood that she currently could not act as a childminder but asked the panel to lift the suspension “…so I can get on with my work.”
22.	Y gave evidence on his mother’s behalf. He said that he believes Ofsted have been heavy handed and had not considered the effect on the children which the suspension had had. Ms C, the mother of a minded child, explained that she had known the appellant for many years and trusted her to continue looking after children. 

Tribunal’s Conclusions with reasons

23.	We have considered the oral evidence of Ms Yvonne Johnson and Ms Karen De-Lastie on behalf of Ofsted, and the oral evidence of Ms A-H, her son Y and from Ms C, together with the written evidence and materials of over 400 pages contained in the bundle. We have applied the relevant law as set out above.
24.	We have concluded that on the date of the decision to suspend, March 12 2012, and at the date of the hearing there was and is reasonable cause to believe that the continued provision of child care by the appellant to any child may expose such a child to a risk of harm and that a reasonable person, assumed to know the law and possessed of the information we have, would believe that a child might be at risk.
25.	 At the time when the conviction came to light Ofsted had no record of Y living at the premises despite the obligation on the appellant to notify them of any changes to her circumstances under Regulation 8. It may be that she had simply not got round to it in the months (minimum) or years since he had moved back into her home, but there is a real possibility that she was trying to conceal information which would come to light when Y is CRB checked. Our concern about this is heightened because the form needed to obtain Y’s CRB check has not been received by Ofsted, and we were unimpressed by the appellant’s inability to remember when she had posted it, given its importance to her case.
26.	The current situation therefore is that pending the CRB check there is very little independent information available about the circumstances of the manslaughter conviction, or if there are any other criminal matters relating to Y, to enable Ofsted or the Tribunal to assess the potential risk he may pose to children. It may be that once that material is available it reveals a one- off incident which is very unlikely to be repeated, and that Y poses little if any risk to the minded children. The difficulty is that Ofsted and the panel just don’t have sufficient factual background verified by independent information at the moment, and until it is available the risk from Y remains unassessed and unassessable. It is therefore reasonable to say that a child exposed to that risk may be at risk of harm. Further, the appellant is currently disqualified from registration and cannot in any event provide child minding services.
27.	In the light of these circumstances a reasonable person would believe that a minded child, cared for by a person who is disqualified by reason of her son’s conviction, may be at risk from that man who is living on the premises and has been convicted of the manslaughter of a young person.
					
ORDER
The appeal against interim suspension is dismissed

Judge Nancy Hillier
Lead Judge Care Standards and Primary Health Lists
Health Education and Social Care Chamber
11 May 2012