The burden is on Ofsted to justify cancellation of a childminder’s registration

In a recent case, Mrs LR (a Childminder) v Ofsted, Markel Law represented LR (a Childminder) in her appeal against Ofsted’s decision dated 13 June 2019 to cancel her registration as a childminder on the Early Years Register and both parts of the Childcare Register.

At the conclusion of the 5 day hearing on 24 – 28 February 2020 the appeal was allowed and the notice to cancel had no effect.

This case serves as a reminder that in these appeal hearings the Tribunal “stands in the shoes” of Ofsted and make the decision afresh and based on all of the evidence up to and including the dates of the hearing and that the burden is on Ofsted to justify cancellation.

The persuasive factors in this case included the most recent inspection (September 2019) ‘Requires Improvement’; Ofsted’s own guidance within the Inspection Handbook and a lack of suspension.

Background

LR registered as a childminder in 1996 on the Early Years Register and both parts of the General Childcare Register. LR is also a foster carer to a 12 year old child with complex needs.

Since 2001 she was regulated by Ofsted and between 2004 and 2015 LR was consistently rated as ‘Good’ (2004, 2007, 2011 and 2015).

In September 2018 LR received her first ‘Inadequate’ rating. A subsequent inspection in March 2019 was also rated ‘Inadequate’.

Cancellation

Following the inspections in September 2018 and March 2019, Ofsted issued a Notice of Decision to cancel LR’s registration on the basis that she was no longer suitable to remain registered as she no longer met the requirements for registration.

Ofsted took no steps to suspend LR’s registration and she continued to operate as a childminder.

In September 2019 an inspection took place which resulted in an overall rating of ‘Requires Improvement’ with a ‘Good’ rating in Personal Development. Despite this, Ofsted continued to pursue cancellation.

The issues in relation to LR’s suitability spanned a Scott Schedule of 39 allegations pleaded by Ofsted as either ‘on-going’ or ‘remain-concerned’. Those familiar with Ofsted appeals may not recognise the latter classification, but which was defined as either a repeat concern or so serious as to remain a concern in the future.

Hearing

The hearing took place in February 2020. Counsel Emma Waldron (3PB) was instructed on behalf of LR.

LR’s case was, in summary:

-        Appropriate admissions could be made to some of the allegations, but these were sufficiently historic;

-        LR had taken appropriate action at the time some allegations had arisen; they were of short duration, remediable and subsequent inspections had rendered them dealt with;

-        The most recent inspection in September 2019 concluded she ‘Requires Improvement’ (with one aspect ‘Good’); and

-        With no suspension deemed appropriate, LR had continued to operate, without incident, after the notice to cancel was served, and throughout these proceedings.

Outcome

The Appeal was upheld. The Panel were “not satisfied that it was necessary and proportionate for Ofsted to have issued the Notice of cancellation….” and therefore found that cancellation was not proportionate.

The Panel reminded parties that the burden was on Ofsted and that the regulator had failed to prove to the requisite standard that the cancellation of LR’s registration was justified and necessary.

The Panel recognised that there had been breaches but concluded that they were all (or mostly) historical in nature. They were satisfied with the evidence presented that LR had remedied the breaches and/or had learnt the appropriate lesson and that they are no longer a matter of concern.

Importantly, Ofsted had not conducted an inspection between September 2019 and February 2020 (the date of the hearing) and therefore the latest evidence available was LR’s own and that of the Local Authority, which was supportive.

The only concerns arising out of the September 2019 inspection had been in relation to learning and development; there were no safeguarding issues and no outstanding WRNs. In those circumstances and in considering Ofsted’s own inspection handbook the Panel considered the classifications of ‘Good’, ‘Requires Improvement and ‘Inadequate’ and whether the first two could properly justify cancellation.

Finally, it was an important consideration that LR had continued operating as a child minder and Ofsted had not thought it necessary to suspend her registration.

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.