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	England and Wales Care Standards Tribunal
You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> C v OFSTED [2002] EWCST 0087(EY) (22 April 2003) URL: http://www.bailii.org/ew/cases/EWCST/2003/0087(EY).html Cite as: [2002] EWCST 0087(EY), [2002] EWCST 87(EY)

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C v OFSTED [2002] EWCST 0087(EY) (22 April 2003)

C v OFSTED
[2002] 0087EY

His Honour Judge David Pearl (President)
Mrs Wendy Stafford
Mr Christopher Wakefield
Heard on April 8^th, 9^th, 10^th, 11^th 2003

DECISION

Introduction

1. The applicant (Mrs C) appeals against the decision of Her Majesty’s Chief Inspector of Schools (OFSTED) communicated by letter dated 24^th July 2002 that her registration as a provider of day care for children under eight on two premises, one at M and the other at W be cancelled.
2. The decision of OFSTED was taken under s 79G(1) of the Children Act 1989 (hereafter CA) that provides: "The registration authority may cancel the registration of any person if (b) in the case of a person registered for providing day care on any premises, the authority is of the opinion that the person has ceased or will cease to be qualified for registration for providing day care on those premises…"
3. An appeal lies to the Tribunal by virtue of s 79M CA, and on an appeal the tribunal may (a) confirm the taking of the step…or direct that it shall not have, or shall cease to have effect and (b) impose, vary or cancel any condition. We shall return to s 79M CA in paragraph 20 of this decision.
4. At the hearing before us, Mr C Sheldon of Counsel appeared on behalf of the respondent, and Mr J Hamey of Counsel appeared on behalf of the applicant. In a direction dated 6^th December 2002 a restricted reporting order was imposed under Regulation 18 prohibiting the publication of any matter likely to lead members of the public to identify the applicant or any members of her family. The Tribunal heard submissions at the conclusion of the hearing on whether it was appropriate to continue the Regulation 18 restriction. Mr Hamey urged the Tribunal to continue the order indefinitely, and Mr Sheldon did not resist this application. The Tribunal is of the view that this approach is appropriate. Thus this decision uses letters for each of the non-professional witnesses.

The Law

5. It is common ground that s 79B(4) CA is a key provision. This provides that a person is qualified for registration for providing day care on particular premises if (a) every person looking after children on the premises is suitable to look after children under the age of eight;… (d) he is complying with regulations under s 79C and with any conditions imposed by the registration authority. The Regulations made under s 79C relevant to this case are the Day Care and Child Minding (National Standards)(England) Regulations SI 2001/1828. Regulation 3(1) states that in exercising his functions under the Children Act (Part XA) the Chief Inspector shall have regard to the national standards and supporting criteria. By virtue of Regulation 3(2), a registered person shall meet the requirements of the national standards and have regard to the supporting criteria applicable to the child care category in which he falls.
6. The Department of Education and Skills published the national standards in a document known as the "National Standards for Under Eights Day Care and Childminding: Full Day Care". Guidance to these National Standards has also been published, in September 2001. They are referred to as the "Red Books".
7. Mr Sheldon submitted that if the registered person fails to meet the national standards, then that person will be in breach of the 2001 Regulations and in consequence will not be a "qualified" person under s 79B(4)(d)CA.
8. It is agreed by both Mr Sheldon and Mr Hamey that the burden of proof rests on the respondent. Mr Sheldon did not challenge the approach that the standard of proof is the balance of probability as enunciated by Lord Nicholls in Re H (Sexual abuse: standard of proof) 1996 AC 563. Thus, to adopt a phrase from Lord Nicholls, more is required than suspicion, however reasonably based.
9. The respondent submitted that Mrs C has ceased to be "qualified" for registration for providing day care on both premises M and W because (a) she is in breach of the 2001 Regulations in that she has failed in a number of particulars to meet the national standards and (b) she is in breach of a condition imposed by OFSTED.
10. We deal first with the legal issues arising from (b). The respondent says that the condition that is referred to is the one imposed by a Magistrate on 18^th October 2001. The Magistrate, in an exparte hearing, imposed a requirement on the two registration certificates in respect of M and W issued to Mrs C that (i) Mrs C shall take all reasonable steps to ensure that Mr C (her husband) does not enter or attempt to enter [M or W] and (ii) that Mrs C shall not permit Mr C to have access to the records of, or engage in any business relating to the nursery.
11. In closing submissions, respective counsel took a different approach as a matter of law as to whether the Magistrate’s imposition of a requirement on a provider of day care was a condition imposed by OFSTED. Mr Sheldon was of the opinion that the requirements imposed by the Magistrate constituted a "condition" for the purposes of s 79B(4)(d) CA. Mr Hamey, in contrast, submitted that the "condition" was imposed in this case by the Magistrate not by OFSTED, and therefore did not fall within s 79B(4)(d) CA. Mr Hamey submitted further that had OFSTED wanted to make compliance a criterion for qualification under s 79B(4)(d) they should have begun the procedure under s 79L.
12. The Order of the Magistrate was made on 18^th October 2001. At that time, some of the many new provisions of the Children Act 1989 as set out in the Care Standards Act 2000 had not been brought into force (see Care Standards Act 2000 (Commencement No 7 (England) and Transitional, Transitory and Saving Provisions Order 2001, SI 2001/2041). Article 16(5) of the Commencement No 7 Order, in summary form, states that where a person’s registration is transferred any requirements that were imposed upon him in relation to the registration shall have effect as if such conditions had been duly imposed by the registration authority.
13. A detailed analysis of Commencement No 7 Order is not necessary in this case because as Mr Hamey himself admitted, s 79(4)(a) is wide enough to disqualify a person for registration as being "unsuitable" if there has been a failure to comply with conditions imposed by the Magistrate on 18^th October 2001.
14. Before we consider the facts of this case it may be of assistance to set out, albeit in brief, our view of the law that now governs this particular issue, given that all of the provisions are now in force. We agree with Mr Hamey that s 79B(4)(d) is very clear; namely that the "conditions" referred to are those imposed by the registration authority and do not include "conditions" imposed by a magistrate under what is now s 79K CA.
15. Mr Sheldon referred us to the now repealed s 75(5) CA. This provision has not been re-enacted. This section stated that the imposition of a requirement by a magistrate was expressly deemed to have been treated "as if it had been imposed…by the authority concerned." That provision was necessary, as Mr Sheldon agreed, because there was no right of appeal other than by way of judicial review or case stated. Since April 1^st 2002, there is now a right of appeal to the Tribunal. Any condition imposed by a magistrate under s 79K to protect a child or children in an emergency can be appealed to the Tribunal under s 79M.
16. Thus it is our view that if OFSTED wish to take steps under s 79L, praying in aid the second part of s 79B(4)(d), it cannot rely on conditions imposed by a magistrate under s 79K.
17. However, as in this case, the rather literal interpretation of s 79B(4)(d) does not cause any injustice to the registration authority, because s 79B(4)(a) is wide enough to ensure that failure to comply with emergency conditions imposed by a magistrate may well be evidence that could lead the registration authority, and on appeal the Tribunal, to decide that a person is not qualified for registration because he is "unsuitable."
18. The next matter we wish to address on the law concerns the approach that should be adopted by the Tribunal. The applicant submitted that the Care Standards Act lays down two separate criteria. Thus there may be cases where a person is unsuitable (s 79B(4)(a)) even though he has complied with regulations under s 79C (the national standards). Likewise, it is argued that the converse must also be true. We agree with this approach of the reading of s 79B(4). A failure to comply with the national standards may make an applicant unsuitable and in many cases will do so. However it does not necessarily follow that this will be the case. S 79B(4)(a) and s 79B(4)(d) are not mutually exclusive, but in our view are logically interconnected.
19. Mr Hamey went on to say that both OFSTED and the Tribunal have a discretion, and thus the consequence of being disqualified under s 79B(4) is not automatic cancellation. Mr Sheldon acknowledged in his closing submissions that OFSTED has discretion, but he sought to persuade us that the Tribunal did not have any discretion. Thus he urged on us the proposition that if as a matter of fact we find that there has been a breach of s 79(4)(d) CA then the Tribunal does not have discretion at that point of time and must dismiss the appeal.
20. We must say that we find Mr Sheldon’s analysis unattractive. He appeared to have departed from his opening remarks to us when he said that the function of the Tribunal was "to step into the shoes of OFSTED". We see no reason to disagree with Mr Shelton’s opening submission. OFSTED has a discretion (s 79G uses the language "may" cancel registration), and the section of the Act giving jurisdiction to the Tribunal (s 79M CA) provides the Tribunal with wide powers stating that on an appeal, the tribunal may – (a) confirm the taking of the step…or direct that it shall not have, or shall cease to have, effect; and (b) impose, vary or cancel any condition.
21. We cannot overlook the importance of the Human Rights Act 1998. The decision of OFSTED is taken by a panel that cannot by itself be said to be human rights compliant if tested against a strict analysis of Article 6 of the European Convention on Human Rights. This is not an issue in this area of law, however, because the right of a full merits appeal to an independent Tribunal makes the procedure human rights compliant. If Mr Sheldon’s closing approach (the absence of discretion by the Tribunal) were right, then the procedure would necessarily be open to a human rights challenge. We read s 79M in such a way as to ensure that it is compatible with the European Convention, as we are obliged to do by virtue of s 3(1) Human Rights Act 1998.
22. Mr Sheldon then urged on us a secondary argument, namely that we should give due deference to the decision-maker and, unless the Tribunal thinks the decision of OFSTED irrational, the Tribunal ought to follow it.
23. The Tribunal accepts that any appellate body, including ours, must look carefully at the decision taken by the decision-maker. However, the Tribunal is not engaged in reviewing the decision, rather it is engaged in a total examination of all the evidence. In some areas, the due deference doctrine will be extremely important (see for example issues relating to national security as set out in Rehman v Secretary of State for the Home Department, HL [2001]UKHL 47.) In this area, with a Tribunal containing two lay members appointed because of their expertise in the field, the due deference doctrine should not play such a crucial role. We are engaged in a merits appeal, not a judicial review.
24. As an additional legal issue, Mr Sheldon submitted that s 79M(2)(b) CA was restricted to appeals relating to conditions either imposed by OFSTED or as a result of an order under s 79K. He said that there was no power to impose a condition in a case where there was an appeal against the intention to take a step under s 79L(1)(b). (cancelling a registration). We must say that this approach is a restrictive reading of s 79M. If Parliament had intended the Tribunal’s jurisdiction to impose, vary or cancel conditions to be limited to those cases where there was an appeal against a condition, then it would have said so. It has not. The power contained in s 79M(2)(b) covers all appeals against the taking of any step mentioned in s 79L(1) or an order under s 79K.
25. The final legal matter that we address is whether the Tribunal has power to consider evidence subsequent to the decision which is being appealed against, in this case subsequent to the letter dated 24^th July 2002. Counsel were in agreement, albeit after an early difference of opinion, that the correct approach is that laid down in Lyons v East Sussex County Council (1988) 86 LGR 369. This case dealt with the Registered Homes Tribunal, but it seems to us that it is the approach that should be applied in this case. We are dealing with the care and welfare of children, and it is only right that post-decision facts should be made available to the Tribunal.

The facts

26. Having set out the legal framework, as we understand it, we turn now to the facts of this case. Mr and Mrs C moved to M in 1997 and the following year Mrs C opened a full time day care provision. This was registered on 14^th March 1998. There was an inspection by the former registration authority on 17^th March 1999. In February 2000, Mr C gave up his job to help in the nursery. He started NVQ2 in childcare and worked 14 hours a week in the nursery. The second facility, W, was opened in October 2000. We concentrate on M as most of the evidence we heard dealt with M and it was agreed that our decision, whatever it was, relating to M would inevitably also extend to the second facility at W.
27. There were a number of allegations made against Mr C of a sexual nature concerning children at the nursery. We have read and heard evidence about these allegations. Suffice it to say that Mr C has always denied any improper conduct, and no prosecution has ever taken place. No findings of fact have ever been made by any official body, and it was agreed that it was not relevant for our decision to form any view on these matters.
28. However, in October 2001 the allegations raised understandable concerns, and a strategy meeting took place on 16^th October involving Social Services, the Police and OFSTED. The following day, Mr C signed a form agreeing not to go to the nursery. After further consideration, OFSTED decided that such an agreement was not really sufficient, and OFSTED decided to seek exparte orders from a Magistrate. On 18^th October 2001, three OFSTED officers (Ms Smith, Ms Good, and Mr O’Neill, the area manager) visited M and met Mrs C informing her that OFSTED intended to seek orders that afternoon. The orders were obtained under s 79K(1)(iii) CA imposing the requirement that Mrs C (i) shall take all reasonable steps to ensure that Mr C does not enter or attempt to enter [M] [W] and (ii) that Mrs C shall not permit Mr C to have access to the records or engage in any business, relating to [M] [W].
29. The three officers returned to M at 5.05pm that afternoon and copies of the orders were handed to her. Mr O’Neill in his witness statement says that he explained to Mrs C that OFSTED would be carrying out a full inspection during the week 22^nd-26^th October 2001.
30. Ms Smith, Ms Gascoyne and Ms Good carried out an inspection (known as a transitional inspection) on 22nd and 23rd October 2001. The inspection resulted in a letter from Mr O’Neill, the area manager, to Mrs C dated 13^th November 2001 setting out "Actions Needed". This letter set out 15 actions needed to be completed by specified dates, the latest being 14^th December 2001. We set out a summary of these action points here:

• Standard 1: make arrangements for all staff to complete and return relevant OFSTED forms to assist with decisions as to their suitability to work in the nursery.
• Standard 2: Prepare and submit a plan showing how a keyworker system will be established and how it will be in operation before June 30^th 2002.
• Prepare and submit a plan showing how you will manage staffing and training and how long this process will take to put fully into effect. The plan should show how staff would develop necessary skills, practices and knowledge to meet the Standards.
• Standard 3: Make a selection of toys and activities available so that they are readily accessible to children.
• Standard 4: Ensure that the under 2 room is organised in such a way that provision is made for children who need to sleep or relax at any time.
• Standard 4: Ensure that action is taken to maintain suitable levels of heating and ventilation.
• Standard 5: Put in place a programme to ensure that all equipment and play materials are checked regularly to ensure their safety and suitability for use.
• Standard 6: Undertake a risk assessment and make a copy available to OFSTED.
• Standard 6: Put in place a system of recording.
• Standard 7: ensure systems are put in place and operated by staff to ensure good hygiene practice and standards of cleanliness. In particular the systems need to address potential dangers of cross infection.
• Standard 7: Make arrangements for the appropriate storage of medicines.
• Standard 8: Make fresh drinking water available to all children throughout the day.
• Standard 9: Increase the range of positive images and resources.
• Standard 11. Review staff practices and show how staff will receive training in relation to the management of behaviour and the appropriate responses for children.
• Standard 14: review all of [M]’s policy and procedure documents to ensure that they contain adequate information as required by the national standards.

[The letter ends as follows: "A further visit will take place shortly in order to assess the progress made towards completing these actions."]

31. In the week beginning November 19^th 2001, her managers informed Ms Smith that information had been received from a Social Worker that Mr C had been seen transporting children from M to W or one of the nurseries and local schools. On 26^th November 2001, Ms Smith, accompanied by Ms De-Lastie, visited M and W to observe the transportation and to talk to staff. No evidence was found to substantiate the allegations.
32. Ms Smith and Ms Gascoyne completed the transitional inspection of W on December 3rd 2001. The Notebook of this inspection sets out a number of concerns, and an "Actions Needed" letter was written to Mrs C on 23^rd January 2002, signed by Mrs Goodey, of the applications team. Ten specific actions are set out, all to be completed by 17^th January 2002 dealing with Standards 2,4,6,7,8,9,11,12,13,14. It would seem that Mrs C had agreed that the steps needed to be taken at the verbal feedback.
33. Ms Smith returned to M on December 18^th 2001 accompanied by Ms Good. In her witness statement, Ms Smith indicates that she saw changes on December 18^th in the following areas namely Standards 1,2,3,4,5,6,8,11, and 14. Ms Smith makes the important observation of her recollection at this time in her witness statement: "Following discussion with my managers it was agreed that, should all the changes made be maintained as well as the planned changes be implemented, then M would meet the national standards. It was not thought necessary that further action needed to be taken in relation to the national standards at this time."
34. What then happened was that on January 21^st 2002, OFSTED was informed that Social Services and Police investigations into Mr C had been completed. OFSTED was therefore free to conduct its own investigation focussing on the suitability of Mrs C to protect the health, safety and wellbeing of the children. Ms Smith sent a letter to the current and previous staff members asking for their assistance and in February 2002, Ms Smith and a colleague Mr Kilburn interviewed 6 previous staff members and 13 staff members working there at the time. Ms Smith produced an interim report in February 2002 to report back the findings of the investigation.
35. There was a further strategy meeting on March 20^th 2002 at which the child protection concerns were discussed. After this meeting Ms Smith and Mr Kilburn interviewed two other former members of staff and four parents. There was a further interview with three members of staff who requested an additional interview (we shall refer to them as A, B and D). They were seen together.
36. Two OFSTED officers, Ms Gascoyne and Ms Dewsbury visited M on April 30^th 2002 to conduct an additional visit. The purpose of this visit, as set out in Ms Gascoyne’s witness statement was to follow up on the actions identified at the transitional inspection on October 22^nd 2001 and to establish whether the national standards were being met and maintained. Mrs C was not present, but the Deputy Manager was present. Ms Dewsbury concluded that M had not initiated actions to ensure it met national standards in the following areas 2, 3, 4, 5, 6, 7, 8, 9, 11. It was not possible to follow up on Standard 1 in Mrs C’s absence. OFSTED took the view, in the words of Mr O’Neill’s witness statement, that matters had deteriorated and the care was seen as seriously inadequate.
37. A notice of intention to cancel registration was sent on 6^th June 2002; reasons were set out in a letter from Mr Gould, area manager, dated 10^th June 2002. The three reasons are set out as

• That you have failed to meet and maintain the National Standards for day-care
• That you have failed to comply with both parts of the Court Order issued by Magistrates Court on 18^th October 2001
• That you have failed to protect the children in the care of M in terms of their health, safety and well being.

38. The objection panel took place on 23^rd July 2002 and on 24^th July 2002 Mr O’Neill wrote to Mrs C to confirm the decision to cancel the registration.
39. There was a further monitoring inspection on 22^nd August 2002 to see whether there was any reason for not putting the decision into effect. This was carried out by Ms Turner and Ms House. It seems that two members of staff had not been checked (E and F) and one, (E) had not been notified to OFSTED.
40. On November 20^th 2002, Ms Dewsbury and Ms Gascoyne visited M and undertook a full inspection of the facility against the National Standards. We have seen a copy of the Notebook. The Action needed letter dated 11^th December 2002 deals with Standard 1, 2, 4,5, 8, 9, 11, and 14. Mrs C said that the feedback to her suggested considerable improvements and that there was no reason why she should not remain registered as she had gone a long way towards meeting the standards. Mr O’Neill suggested that whilst there had been some improvements there were still considerable areas of concern and the decision therefore to cancel should be maintained.

Breaches to the "Mr C condition"

41. Having considered the factual background, we now look at the evidence, beginning our examination with the evidence relating to breaches to the "Mr C condition". Mr Sheldon submitted that there is clear evidence of breach relating to Mr C going on to the premises. This refers first to the evidence of a Mr G. He gave a statement to OFSTED in July 2002. He has a daughter (M). It would seem that M attended at the M nursery during the period that Mr C worked there "on occasions" and that she continued in the nursery until June 2002. Mr G was not able to say how often she attended prior to October 2001. He said that he did not meet Mr C during this earlier period, but that he was introduced to Mr C after February 2002 in M nursery when he went to collect his daughter. The other evidence that Mr C was on the premises from time to time before Christmas 2001 but after the court order appears in the joint statement of witnesses A, B and D.
42. We have to say that this evidence is not convincing on the standard of proof that we need to apply; namely the balance of probability. Mr C denies ever going on the premises after he has been served with the court order, and indeed refers in his evidence to the telephone call he made to OFSTED to ask whether he can go to see his son perform in the Christmas play. He is told that he would be in breach, so he does not go.
43. We did not find Mr G to be a credible witness, and think he may well have been confused with the date when he saw Mr C or possibly may have confused Mr C with Mr C’s twin brother. At least one witness (L) told us that she has seen Mr C’s brother, who apparently has a similar build to Mr C, in the nursery on at least one occasion.
44. The evidence of A, B and D in this context is also less than satisfactory. All three gave individual formal statements and the allegation relating to Mr C being on the premises is not repeated there. When they gave individual separate statements during the early part of the inquiry all three were quite enthusiastic about Mr C and certainly did not mention Mr C being on the premises after the court order. Being interviewed together, when the allegation is made, is highly unusual and it is difficult to know who made the allegation relating to Mr C being on the premises. A, B and D were not called to give evidence before us. We know that they have all left M and set up a separate nursery in the vicinity. To that extent they are now competitors. No other witness has even suggested that Mr C was on the premises after the court order. We have heard in great detail how he drops his son off in the morning in the car and phones from his car on his mobile for someone to come from the nursery to take him inside. He seems to have taken steps to ensure that he is not in breach of that part of the court order.
45. The other part of the order relates to engaging in the business of the nursery. On his own evidence and the evidence of Mrs C, Mr C has been involved in a few activities of the nursery. These are buying ant killer, bringing some pebbles for the garden, mending, off site, the heating element of the tumble drier, assembling shelves off the premises, bringing over some toilet paper that Mrs C had left at home, and (according to Mrs C) on one occasion taking back to the house a bag of washing. These are breaches of the order, Mr C was unwise to get involved in any way, and Mrs C should not have asked Mr C to help out in these ways. However, we agree with Mr Hamey who submitted that none of these activities are linked to the business of the nursery in the sense of the business being the care of children. Taken by itself, without more, we cannot accept that these breaches are sufficient to justify cancelling the registration.

Breaches to national standards

46. We turn our attention now to the national standards.
47. Standard 1 states that adults providing day care, looking after children or having unsupervised access to them are suitable to do so. The Guidance (the Red Book) highlights the fact that the registered person must tell OFSTED about any changes to the person in charge or to adults living or employed on the premises. In fact the Regulations (SI 2001/1828) paragraph 4(2) states that notification shall be made (b) …as soon as reasonably practicable, but not later than 14 days, after the event has occurred. It is perhaps unfortunate that the Guidance is not as specific as the Regulations about when notification should be made. Mrs C had copies of the "Red Books" and believes that she received them in August 2001. She accepted in evidence that the October inspection and the action letter that was drawn up after that inspection (See above para 30) was a fairly accurate reflection of the nursery at that time.
48. So far as Standard 1 is concerned, we heard evidence about the difficulties relating to E and F on 22^nd August 2002. Mrs C told us in evidence that the inspectors told her on that day that a DC2 form had not been filled in with regard to E. This form is an OFSTED declaration and consent form. This is a form used by OFSTED to decide whether someone is suitable to work or be in contact with children under 8. OFSTED verify the information contained in the DC2 to carry out checks with the appropriate authorities such as the CRB, the POCA list and the DepES List 99. Mrs C thought that E had filled in the form; in fact she had not. She said that E had brought her a police form from the local police and this in retrospect was not an enhanced person check. We accept her evidence that after being apprised of the situation, Mrs C got out the form on that day and filled it in. She accepted that it was an oversight, a mistake, but she said that since then new employees are given the DC2 and they are sent off immediately to OFSTED and CRB. She says that she completes the CRB form and asks the member of staff to phone CRB.
49. Witness F started work in the nursery in July 2002. She said in evidence that she was asked to fill in forms but she cannot remember when this was.
50. The November Inspection notebook states that several members of staff are still waiting for confirmation that CRB checks are clear, including F. Ms Gascoyne, in her supplementary statement, confirmed that not all staff had clearance and she identifies this as one of the six areas that were still below standard.
51. Standard 2 deals amongst other matters with the need for appropriately experienced and qualified staff. Ms Gascoyne in her supplementary statement states that at the November inspection she had concerns about staff being inadequately qualified. The action letter dated 11^th December 2002 states that Mrs C must ensure that there is a named deputy who meets the requirements of the standards in respect of qualifications and experience by 31^st January 2003.
52. The Deputy is witness H. She is at the present time training through the STS for level 3 NVQ and she is assessed at work to gain this qualification. She is currently level 2 and technically therefore as a team leader or supervisor she should hold a level 3 qualification. She told us that she had two roles; first she is there for Mrs C if "she needs to bounce ideas off me" and secondly she is also there for the staff: "They come to me if they have problems and I sort them out." She explained why she had not yet got the level 3 qualification. Apparently funding could not immediately be obtained for her, and STS (the training organisation) took some time to get organised because they were recruiting new staff. She was, in her own words, messed around for quite a long time. She has been team leader since February 2002.
53. Mrs C said in evidence that she was always aware that supervisors (such as H) should have a level 3, and the action plan was that H was working towards this level. Mrs C said that she gave the deputy job to H rather than to I, because I, although qualified to level 3, only worked part-time and she needed someone full-time. Other level 3 workers in the nursery did not want the special responsibility. Mrs C said that ideally it would have been better if H were level 3 but that she is working towards it and that, although not ideal, it was the most satisfactory solution.
54. We of course had an opportunity to hear H give evidence. We formed the view that she was someone who had the trust of Mrs C, and someone who also got on well with the other workers in M at the present time. There were clearly tensions last year when she was promoted over I who felt pushed out and then left. However, we were satisfied with the explanation given by Mrs C that she needed as her deputy someone who worked full-time.
55. Standard 4 deals with physical environment. The focus is defined in this way: "The environment should be warm and welcoming for children, staff and parents. It should be safe and secure, with well organised space, used appropriately to promote children’s development." Issues of cleanliness and warmth had been a feature of the October 2001 and the April 2002 reports. The November notebook identifies toilet/wash facilities and suitable outdoor play areas as problems, and draws specific attention to the dirty mat and grubby floor cushions in the 2-3 room, a dirty carpet in the 3-5 room, and loose tiles in the 3-5 toilet. Attention is drawn also to a non-working convector heater.
56. Mr Sheldon urged us to form a view that failures more than 13 months after they had been identified suggested that Mrs C was unable to maintain any short-term improvements. Mr Hamey asked us to look carefully at the notebook in relation to Standard 4. Although there are still some concerns, overall he urged us to adopt an approach that emphasised the good points. He is indeed correct to say that there are many good aspects in the notebook written after the November 2002 visit relating to Standard 4. For example 4.9 (the baby/toddler room) is described as "a bright and welcoming environment is created with the room set out with well arranged toys and equipment. The room is clean and there are attractive wall displays placed at a height where children can easily see them. Soft cushions provide a comfortable area in one corner with easily accessible books close by." There are also good things to say about the 2-3 room and the 3-5 room.
57. We accept the evidence presented to us that the convector heater broke down on that morning. Witness F cannot remember any other time when it was broken. We also accept the evidence of Mrs C that she has dealt with the issues on Standard 4 that were drawn to her attention in the Actions Needed letter. This is confirmed by the workers who gave evidence on behalf of Mrs C. For example witness J who works in the 2-3 room said that she accepted that they did not have cushions for a while, but that they do now. She also said that the mat is washed regularly. Witness F said that the children now have slippers and thus mud is no longer the problem it used to be. Witness K stated that there is now partial floor covering. The feedback seems to have been positive, and certainly a reading of the notebook on Standard 4 provides the impression of many more positive than negative points.
58. Standard 5 deals with equipment. The checks in the November notebook are all ticked with the word "Yes" and there does not appear to be any negative comment. The Action Needed letter refers to children having opportunities for large physical play when the outdoor area is not available and that the outdoor play area is clean and well maintained.
59. Safety (Standard 6) and Health (Standard 7) are given a clean bill of health in the November inspection. A comparison with the earlier inspections shows a dramatic improvement, in particular in the baby room.
60. Standard 8 (Food and drink) identifies the fact that water is not seen to be readily available in the 2-3 room. Mrs C said in evidence on this point that cups are available and that parents often bring drinks for the children.
61. Standard 9 deals with ensuring children are involved in opportunities to learn about racial, cultural and religious diversity. A reading of the notebook does not give any impression of any significant problem here. The comment "Posters in all rooms give positive images of diversity many are at child height. A limited range of books, dolls and toys also reflect images of cultural diversity and gender" can hardly been seen to be a failure to maintain the national standards in this field. We were impressed with the evidence of L. She works in the 2-3 year room, and has children of her own in the nursery that are of mixed race. She made it clear to us that catering for multicultural needs was very important to her as a parent, and that M did just that.
62. Standards 11 and 14 refer to incident books and documentation. We were shown copies of some of the documentation that Mrs C has now created. Standard 11 deals also with behaviour management. Adults caring for children must be shown to be able to manage a wide range of children’s behaviour in a way that promotes their welfare and development. The notebook identifies a newly qualified member of staff in the 3-5 room being not positive at first and trying to modify behaviour without moving. We heard evidence about this matter but the evidence was inconclusive. Mrs C told us that she has spoken with the training school about behaviour management courses. There are no new ones at the moment, but she said that she had appropriate practice documents for both 0-2 and 3-5 for redirecting children’s energies.

Conclusion

63. We turn now to our conclusion. We heard quite a lot about the criticisms made by A, B, and D and to a lesser extent I. Mrs C suggested that A, B and D were involved in a conspiracy in effect to destroy the nursery. We have read all the statements made by these people. We have not had the opportunity to hear any of them give evidence, and thus the applicant has been unable through her counsel to cross-examine them. We do not know whether there was a conspiracy. We are satisfied however that the relationship between Mrs C and these other people was very poor. It may suggest that Mrs C is a poor manager, although she does not appear to have any problem managing all the other members of staff. We have read many testimonials in support of Mrs C and her work at M, and we heard evidence given in support by the following witnesses all of whom have children at M: O, P, and Q. Whilst it is of course the case that parents do not have the benefit of a detailed knowledge of the national standards, we cannot overlook the fact that parents are often the first to complain, and complain loudly, when things are seriously wrong. Likewise in the case of R, the head-teacher of a receiving school. She says that children she receives from M are usually well prepared, personally and socially, for the transition and they have a good range of basic skills.
64. Applying our understanding of the law that we have set out in this decision to the facts as we have found them, we have arrived at the conclusion that OFSTED has not satisfied us on a balance of probability that cancelling the registration is appropriate. Ms Smith spoke of a tariff of responses to perceived difficulties. We conclude that the highest of this tariff, namely to cancel the registration, is not proportionate to the defects that at present exist and which we have highlighted. We conclude that the many improvements in November 2002 illustrate that Mrs C is able to improve and to maintain this improvement
65. We therefore allow the appeal. We impose a condition that Mrs C take all reasonable steps to ensure that Mr C does not enter or attempt to enter M or W, and that she shall not permit Mr C to have access to the records of or engage in any business of any kind relating to the nursery. We have stated that the activities that Mr C has engaged in and that he has admitted to, such as mending the tumble drier or making shelves, would be a breach of this condition.
66. We wish to reinforce the requirement on Mrs C to ensure that all the minimum standards are achieved and maintained. It must be clear to her that any further breach noticed at a subsequent inspection would place her registration in jeopardy.

ORDER:

The appeal is allowed.

A condition is imposed on the registration as set out in para 65 above.

His Honour Judge David Pearl (President)
Mr Christopher Wakefield
Mrs Wendy Stafford

22^nd April 2003