In the First-Tier Tribunal (Health, Education and Social Care)Considered on PapersOn Friday 28th December 2012
Before
Deputy Chamber President Judge John Aitken Specialist Member Mr Graham HarperSpecialist Member Ms Michele Tynan

Ms DQ 
Appellant

v.

OFSTED
Respondent

Decision

1. This matter was listed for consideration on the papers. That is permissible under rule 23 however not only must both parties consent, which they have but the Tribunal must also consider that it is able to decide the matter without a hearing. In this case we have a good picture of the allegations made, the response, and the level of risk present from the papers, there appears to be no substantial factual dispute which might affect our decision and we consider that we can properly make a decision on the papers without a hearing.	
2. The appellant appeals to the tribunal against the respondent’s decision dated 6th December 2012 to suspend her registration as a child minder on the General Childcare Register under Section 69 of the Childcare Act 2006, for six weeks until  17th January 2013. 	
3. The Tribunal 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, children or their parents in this case so as to protect their private lives.   

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

4. The Appellant is a registered childminder on the Early Years Register and Childcare Register. 

5. About 7.30am on 5th December 2012 a father called to drop off his child with the appellant. He received no answer at her door but could hear a television and was concerned enough to call the Police.  They attended at 11:55 am and after 5 to 7 minutes of knocking the appellant answered the door. She was intoxicated, swaying from side to side and did not appear to understand much of what was said to her.  She was soaked with urine and vomit.  She was able to explain that she had drunk a bottle of wine the previous evening and taken some sleeping tablets hence her condition.7. By way of explanation in her appeal the appellant indicates that she had not realised that the mix of anti depressants, co-codamol, Sominex and alcohol would have this effect upon her.  She also explains that she is going through a period of particular difficulty regarding the death of her sister and is receiving counseling. She avers that the whole situation is embarrassing and out of character.
8. On 6th December 2012 a decision was taken by Ofsted to suspend the registration of the appellant pending an investigation and she was notified accordingly on 7th December 2012 at which time she gave the above explanation.
Events following the suspension

9. Ofsted indicate they are not presently able to give a realistic appraisal of any continuing risk and will be seeking expert medical assessment. We have seen two references supporting the appellants usually responsible and caring attitude.	

The Law

1.	10. 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 persons’ registration. The section also provides that the regulations must include a right of appeal to the Tribunal.
11. 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.”

12. The suspension is 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.	
“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”. 
13. The powers of the tribunal are that it stands in the place 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.	
14. 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

15. We have to consider what risk may arise if the appellant is behaving in a way which as she describes as being out of character and whether that is likely to reoccur.

Conclusions

16 . We consider that the situation created by the appellant could disclose a risk to any children which may be in her care. We note in particular that she was plainly unfit to care for children some 4 hours after she was due to care for a child, and that she was apparently unable to function even to the extent that she cancelled the arrangement.  In the event however we note that she did not at any time accept any child into her care and so the risk remained a theoretical one.17. If a medical practitioner either with expert knowledge or perhaps with sufficient knowledge of the appellant were able to indicate that this was a one off incident, for which the appellant was seeking appropriate treatment or guidance it might well be the case that the risk would be obviated and the suspension lifted. However although we have seen good references from the people who are best able to judge the appellant in her work, that is parents of children she has looked after, it cannot be said that the assurances of the appellant, and those references alone are sufficient to ensure that there is no reasonable belief of risk of harm to a child.18. We consider that the suspension is justified, however we would also point out that this is a case in which the enquires which need to be made are clear, that the appellant can help speed matters along by giving access to her medical records if she so wishes, and is a case in which a decision as to whether to remove should be resolved one way or another very quickly.

Decision
The appeal against interim suspension is dismissed.

Judge John AitkenDeputy Chamber PresidentHealth Education and Social Care Chamber
 Friday 28th December 2012