Conditions imposed on a childminder’s registration – a rare outcome in court

In SB (a Childminder) v Ofsted Markel Law represented SB (a Childminder) in her appeal against Ofsted’s decision dated 28 March 2019 to cancel her registration as a childminder on the Early Years Register and both parts of the Childcare Register.

After some 15 months from first notification of allegation to the final hearing, the matter was successfully concluded with a finding that cancellation was disproportionate.

In an interesting outcome; conditions were imposed upon SB’s registration. This is a power that is seldom used in this sector.

Background

SB registered as a childminder in 1998. Her previous involvements with Ofsted were unremarkable having only been inspected on four occasions: 2005 (‘Satisfactory’), 2008 (‘Good’), 2015 (‘Requires Improvement’) and 2016 (‘Good’).

On 3 December 2018, concerns were reported to Ofsted that SB had been witnessed inappropriately and roughly handling a child in her care on Friday 30 November 2018. The incident was alleged to have occurred at a school from SB was collecting a minded child.

SB’s registration was suspended immediately to allow Ofsted to investigate. Ofsted conducted enquiries into the incident and obtained statements from six witnesses who were present at the school during the incident; a statement from the mother of the child involved in the incident and interviewed SB regarding both the incident and her practice more generally.

Cancellation

Following their investigation, in March 2019, Ofsted issued a Notice of Decision to cancel SB’s registration on the basis she had breached the requirements for registration and she was not suitable to remain registered.

Issues in the case now included:

1)     Whether SB was physically and verbally aggressive to a child in her care;

2)     Whether SB met the requirements in respect of appropriate behaviour management; safeguarding practice, knowledge and understanding; adequate supervision; and maintaining appropriate confidentiality. 

3)     Whether SB complied with the welfare requirements of the three Registers; and

4)     Whether SB lacked honesty, integrity and the ability to work openly with Ofsted; lacked compassion and was emotionally stability to provide childcare.

Hearing

The hearing took place in March 2020, 15 months after the initial allegation was made. SB remained suspended throughout this period. Counsel Jennifer Agyekum (3PB) was instructed on behalf of SB.

Each of Ofsted’s nine witnesses provided oral evidence.

SB denied the 30 November allegation and provided two factual witnesses in rebuttal. SB also provided oral evidence to the Tribunal.

Of note, SB was able to collate and submit over 100 testimonials from parents. The Tribunal recognised that they had “…to give some weight to the sheer quantity”

Outcome

The Tribunal did not find that on 30 November 2018 SB was physically and verbally aggressive to a child in her care. They were satisfied that she met the requirements in respect of the appropriate behaviour management of children; could adequately supervise the children in her care; and could maintain appropriate confidentiality in respect of matters concerning children in her care and their families

Ofsted’s case was made out only insofar as it related to SB’s safeguarding practice, knowledge and understanding, in relation to her honesty, integrity and her ability to work openly with Ofsted.

However, despite this, the Tribunal did not find these concerns to be of such importance as to undermine SB’s suitability to be a childminder.

It was concluded that it would be disproportionate to cancel SB’s registration in the circumstances.

Conditions

The Tribunal has the power to make a fresh decision; this includes imposing conditions upon the Appellant’s registration.

The power to impose conditions is under s.38 of the Childcare Act 2006. This power has existed since before the inception of the EYFS and when its predecessor, the National Standards, did not have such specific requirements. Conditions were utilised to give clarity to providers on particular aspects of registration (e.g. number or ages of children that may be cared for).

The EYFS took effect in September 2008 and it set out specific legal requirements for a provider. As a result, Ofsted no longer needed to impose conditions as the EYFS clearly set out all of the standards that registered childcare providers are required to meet. The power, while still in existence, was no longer used.

Despite this, the Tribunal in this case utilised the power and imposed positive conditions upon SB’s registration. This included a duty to undergo further safeguarding and behaviour management.

If you have any queries please get in touch with our specialist Regulatory team at Markel Law via Debbie Nicholson (Head of Regulatory) - Deborah.nicholson@markel.com, Lauren Wilson (Solicitor) – Lauren.Wilson@Markel.com or Gareth Martin (Solicitor) – Gareth.martin@markel.com.