First-tier Tribunal (Health Education and Social Care Chamber)

 

 

The Tribunal Procedure Rules (First-tier Tribunal) (Health, Education and Social Care) Rules 2008

 

 

Tracy Dawn Williams

 

v

 

Welsh Ministers

 

[2012] 1971.EY-W

 

Before

Mrs Meleri Tudur, Tribunal Judge

Mr Brian Cairns, Specialist Member

Ms Heather Reid, Specialist Member

 

DECISION

 

Heard on 7-9 November 2012 at the Cardiff Magistrates Court, Cardiff.

 

Attendance

Mrs Williams attended the hearing with her husband, Mr L Williams and her daughter, Ms Bethan Williams, who both gave oral evidence.

 

Ms T Lakin Solicitor represented the Respondents. Ms M Belcher Edwards and Ms A Williams gave oral evidence.

 

Appeal

 

1.               The Appellant appeals against the decision issued on the 9 May 2012 to cancel her registration as a Childminder pursuant to paragraph 2 of Part 1 of Schedule 1 of the Child Minding and Day Care (Wales) Regulations 2010 (“the Regulations”).

 

Interlocutory Applications

 

2. Further documentary evidence was added to the Tribunal bundle at the start of the hearing, namely a letter from Mrs Williams dated 17 October 2012 addressed to the Secretary of the Tribunal and a statement by Ms D Hayes.

 

3. Both Parties made applications in the course of the hearing for submission of further documentary evidence and the Tribunal issued directions at the end of the first day for the disclosure of further information from the Criminal Records Bureau (CRB).  Further information was received in the form of an email and added to the Tribunal bundle.

 

4. The Respondent’s Representative made an application for permission to add an email from the Respondent’s Human Resources department confirming the dates of employment of Mr Marcus Williams by Care and Social Services Inspectorate Wales and the response of the CRB to the directions issued.  The Appellant did not object to the applications and the Tribunal allowed the requests.

 

5. The Appellant produced a document on the second day of the hearing that recorded application numbers and telephone numbers which she sought to have clarified by the CRB Office.  Further queries regarding the application numbers were submitted electronically to the CRB Office and the email response was admitted in evidence.

 

The Law

 

6. By virtue of Part 2 section 21(1) of the Children and Families (Wales) Measure 2010 (“the Measure”) a person must not act as a Childminder in Wales unless that person is registered as a Childminder by the Welsh Ministers.

 

7. Section 31(2) of the Measure provides that the Respondents may cancel the registration of a person registered under that Part if it appears to them (among other things) that the requirements for registration that apply in relation to the person’s registration under section 25 of the Measure have ceased or will cease to be satisfied.

 

8. Section 37(1)(e) provides that a registered person may appeal to the First-tier Tribunal against the cancellation of registration.

 

9. Section 37(3) provides that on an appeal, the First-tier Tribunal must either confirm the decision to cancel or direct that it does not have or ceases to have effect.

 

10. The requirements for registration are set out in the Child Minding and Day Care (Wales) Regulations 2010 (“the Regulations”).

 

11. Regulation 6(2) of Part 3 of the Regulations provides that a person is not suitable to look after childfree under eight unless, that person satisfies the requirements set out in paragraph 3.

 

12. The Requirements are that in relation to child minding, the person who acts as child minder satisfies the requirements prescribed in paragraphs 2 to 7 of Part 1 of Schedule 1 and there is full and satisfactory information or documentation available in relation to that individual in relation to each of the matters specified in paragraphs 2, 16 and 17 of Part 1 of Schedule 2.

 

13. Regulation 6(3)(a)(1) and Schedule 1 paragraph (6) of the Regulations require a Childminder to provide the CSSIW with an enhanced CRB certificate.

 

14. “Enhanced Criminal Record Certificate” is defined under Part 1 Regulation 2(1) of the Regulations as “an Enhanced Criminal Record Certificate issued under section 113B of the Police Act 1997 which include suitability information relating to children (within the meaning of section 113BA(2) of that Act) in respect of which less than three years have elapsed since it was issued.”

 

15. Paragraph 2 of Part 1 of Schedule 1 provides: “The Applicant is of suitable integrity and good character to look after children under the age of eight”.

 

Background

 

16. The Appellant was first registered as a Childminder in 1999 and has remained registered as such until the decision to cancel her registration in 2012.

 

17. She was first inspected for compliance with the requirements in 2002 and a requirement made for her to produce an enhanced CRB check certificate for herself and any member of her family living with her who was over the age of 16.

 

18. The Appellant and her provision was inspected annually from 2003 to 2007 and copies of the inspection reports produced in evidence to the Tribunal.

 

19. On inspection in 2005, no enhanced CRB check was available for inspection by the inspector and a requirement to update enhanced CRB certificates for all family members over the age of 16 was issued to the Appellant after the inspection.

 

20. The requirement was noted as not having been complied with in the 2006 inspection report.

 

21. At the inspection held on the 12 September 2007, the Appellant was recorded as informing the Inspector that the applications for enhanced CRB checks had been submitted and the records confirmed that certificates for both the Appellant and her husband Mr L Williams had been produced in October 2007 and it was noted that this action was “seriously overdue” and a good practice recommendation recorded to ensure that a standard check is undertaken  in relation to Bethan when she reached the age of 16 years.

 

22. In 2008, following a restructuring of the inspectorate body, inspections became biannual rather than annual, and the Appellant was the subject of an inspection in 2010 and 2012.

 

23. On the 23 December 2008, the Appellant’s eldest daughter, Bethan, attained the age of 16 and to comply with the registration requirements, the Appellant was required to have a valid CRB certificate for her.

 

24. At the inspection on the 8 March 2010, it was recorded by the Inspector that the Appellant had confirmed that an enhanced CRB certificate application  for Bethan was being processed.

 

25. The CSSIW records confirmed that a copy of the enhanced CRB certificate was received for Ms Bethan Williams on the 9 April 2010.

 

26. At the inspection in March 2010, it was noted that the Appellant’s CRB certificates were in place for Mr and Mrs Williams valid until October 2010.  A good practice recommendation was made that she should renew the CRB disclosures prior to expiry dates.

 

27. On the 8 April 2011, the CSSIW record states that two enhanced CRB application forms were posted to the Appellant.

 

28. At the pre-arranged inspection held on 24 February 2012, the Appellant told the Inspector that she had valid enhanced CRB certificates and showed the Inspector photocopies of her and Mr Williams’ certificates.  The Inspector noted some of the details but her suspicions were aroused that there had been tampering with the dates and made her suspicions known to the Appellant.

 

29. On the 1 March 2012, CSSIW received an envelope in the post from the Appellant that did not contain any documents. It was an agreed fact that the envelope had been received without any documents in it.

 

30. A Notice of Intention to cancel registration was issued to the Appellant on the 13 March 2012.

 

31. In March 2012, the Appellant made written representations against the Notice of Proposal, received at CSSIW on the 3 April 2012.

 

32. The written representations and supporting documents were considered by the CSSIW Regional Director, Ms A Williams and on the 9 May 2012, she concluded that the grounds for cancellation of registration were satisfied and issued the decision notice, cancelling the Appellant’s registration.

 

33. The decision letter specified that in the view of the Regional Director, the Appellant had failed to comply with the requirements set out in the regulations.

 

34. The Appellant appealed against the decision.

 

Evidence

 

35. The Tribunal read the documentary evidence submitted by the Parties in the form of witness statements.

 

36. Inspection reports submitted by previous Inspectors indicated a pattern of non compliance within required timescales for recurring requirements or recommendations, although the reports were generally positive about the Appellant’s care of children.

 

37. In her witness statement and in oral evidence at the hearing, Ms M Belcher Edwards, the CSSIW Inspector with responsibility for the Appellant’s provision, gave evidence firstly about the inspection process, where the CSSIW send out a pre-inspection pack to the registrant with instructions to complete and return a self-assessment form within 28 days of receipt, in advance of the inspector’s visit so that it is available to the inspector prior to the visit.

 

38. She further clarified the Appellant’s history of non-compliance with Inspectors’ requirements and recommendations post-inspection of the provision. For instance, the requirement to provide enhanced CRB check certificates had been made of the Appellant after the inspection of the 15 March 2006 but that it had not been complied with within the specified timescale and had not been completed until October 2007.

 

39. In the inspection report in 2004, included in the immediate requirements was the need to attend child protection training.

 

40. In the report dated 28 March 2005, two requirements were recorded, the first to update enhanced CRB checks and to attend First Aid Training and a good practice recommendation that the Appellant should attend child protection training.

 

41. The report issued on the 5 April 2006 also recorded requirements relating to both enhanced CRB checks and First Aid training, neither of which had been implemented since the previous inspection.

 

42. At the inspection on the 12 September 2007, the CRB disclosures were still not available to inspect, although the Appellant confirmed that the applications had been made.  She further confirmed that she had attended a First Aid Course in March 2007 in compliance with the previous requirement. A further good practice recommendation was included that the Appellant should attend child protection training.

 

43.   At the inspection on the 8 March 2010, the Appellant was unable to produce a copy of a valid CRB disclosure for Ms B Williams and did not have a copy of the First Aid Certificate available.  She was therefore required to send a copy of the certificate to CSSIW by 31 March 2010.  She was required to quality assess her service by the 12 April 2010 and provide the CSSIW with a copy of the quality assurance report. The requirement was complied with and the evidence received on the 19 September 2010.

 

44. A further good practice recommendation suggested that the Appellant should attend child protection training and forward a copy of the certificate to the CSSIW by 1 June 2010 and evidence of risk assessments were to be forwarded by the 31 March 2010.  There was no evidence of these matters being addressed by the Appellant.

 

45. The self assessment form had not been received by CSSIW prior to the inspection in 2010 although the Appellant maintained that it had been sent.  She had retained a copy and was able to provide that for the Inspector.

 

46. On the 18 March 2011, an inspection pack was posted to the Appellant but not returned within the 28 day deadline, nor received prior to the inspection which eventually took place in February 2012.

 

47. Ms Belcher Edwards visited the Appellant’s home at about lunchtime on the 17 January 2012 in an attempt to undertake an unannounced visit.  Her evidence was the Appellant told the Inspector that she was not working on that day and was due to go to her other job.  She informed the Inspector that she would be child minding from the 23 January 2012 on Mondays, Wednesdays and Fridays from 9.30am to 12 noon.  As she spoke to the Appellant at the front door, the inspector reported seeing two children peering through a glass paneled door.  The Inspector asked the Appellant who they were and the Appellant said that they were her relatives.  Later the same day, the Inspector received a message from the Appellant informing her that she would not be available the following week because she was off work, but would be available on the week after that.

 

48. On the 30 January 2012, the Inspector contacted the Appellant to check her availability for an inspection.  The Appellant informed her that her mother was ill and that she was not child minding that week.  She asked the Appellant to let her know when she would be returning to work and she subsequently received a message that Mrs Williams would be back at work from the 21 February 2012.

 

49. On the 21 February 2012, Ms Belcher Edwards called the Appellant to check if she was child minding.  The Appellant reminded her that she did not child mind on Tuesdays and the inspector suggested an inspection visit on Wednesday.  The Appellant explained that she had to take her daughter to the hospital and would not be at home all day.  The Inspector offered to visit on Friday, but the Appellant stated that she would not be minding on that day as she was going on holiday.  The Appellant offered the visit to take place on the following Monday.  The Inspector took the view that the Appellant was not engaging with her or the inspection process and because of the timescale, would discuss the Case with her Line Manager and contact her again.

 

50. Following discussion with her Line Manager, the Inspector was advised to inform the Appellant that she could voluntarily suspend or cancel her registration or make herself available for an inspection.  When informed of her options, the Appellant stated that she did not wish to voluntarily suspend or cancel her registration and would make herself available for inspection.

 

51. The announced inspection took place on the 24 February 2012 with no children present.  The Appellant did not have her First Aid Certificate available and stated that she was sure she was covered until September 2012.

 

52. According to the CSSIW records, the enhanced CRB certificates were due for renewal in October and November 2010 and renewal forms had been sent to the Appellant on the 8 April 2011.  The Appellant confirmed that she had valid certificates and showed the Inspector two photocopies of CRB disclosures.  She stated that the originals were in the attic as they had been decorating.  The Inspector checked the dates on the copies and noted that the year looked as if it had been handwritten, with the zero imperfect and not typed.  She mentioned this to the Appellant who told her that they were right, and that her husband had photocopied them at work.  She noted the dates of the photocopies, being the 23 October 2010 for Mrs Tracy Williams and 29 October 2010 for Mr Lyndon Williams and the name of the countersignatory as being Mr Marcus Williams.  The Inspector did not take note of the disclosure numbers or take the copies, but asked the Appellant to provide copies of the CRB certificates and Bethan’s certificate.

 

53. In the course of the inspection, the Appellant was asked about the children present at her home in January 2012.  The Appellant told the Inspector that the children were her niece’s children and in oral evidence Ms Edwards confirmed that the Appellant had referred to her “niece’s children” in the plural and not in the singular and that she had seen two children playing and the shapes of two children through the glass in the porch door, with one child’s hand being put on the glass.

 

54. In the inspection report dated 1 April 2012 following the inspection, the Appellant was required to provide CSSIW with a copy of the First Aid certificate, provide a copy of the annual quality assurance report, hold a valid enhanced CRB certificate together with all members of her household, attend child protection training and provide CSSIW with a copy of the certificate and undertake a written risk assessment of all aspects of her child minding service.  A good practice recommendation was that she should ensure that her First Aid Certificate was renewed prior to its expiry in September 2012.

 

55. On the 27 February 2012, the CSSIW received a faxed copy of the Appellant’s First Aid Certificate dated 5 September 2009.

 

56. On the 28 February 2012, the Inspector called the Appellant to tell her that the CSSIW had not received any further documentation from her and the Appellant informed the inspector that she had posted the documents to the Carmarthen CSSIW office on Sunday 26 February 2012 first class and had not kept any copies.  In oral evidence, she confirmed that she had asked the Appellant to send her copies of the disclosure certificates shown at the inspection and the First Aid Certificate, and had not asked for Bethan Williams’ CRB certificate to be sent at all.

 

57. In her witness statement, Ms Belcher Edwards recorded that in the course of the telephone conversation on the 28 February 2012, the Appellant told the Inspector that she had processed the applications through the CSSIW Swansea office sometime in December 2010 and that she recalled visiting the office with her mother in the car outside, but could not recall whether the person she met was male or female.

 

58. Ms Angela Williams gave evidence about the review process and explained that she had read all of the Appellant’s representations and supporting documents and sought legal advice to ensure that the decision was proportionate, reasonable and within the law, before reaching her conclusion on the review.  She had familiarized herself with the previous history and read the case files to obtain background information about the Appellant prior to making her decision on the 9 May 2012. She confirmed that by the time of the review she was satisfied that it had been established that the Appellant did not hold valid CRB certificates and she considered the Appellant’s conduct around the matter.  She concluded that there was a lack of credible explanation of the certificates seen by the inspector and the receipt of the empty envelope did not allow her to conclude that a mistake had been made.

 

59. Ms Williams acknowledged that the absence of a CRB certificate between 2004 and 2007 had been allowed for an inexplicably long time without any enforcement action being taken.  She confirmed that the regulator had been very lenient in the past in response to breaches of requirements.  She concluded however that in view of the issues arising in the present case around the Appellant’s honesty and integrity she had to uphold the cancellation.

 

60. She confirmed that Mr Marcus Williams had been a countersignatory in the Swansea office, but that he had left on a secondment to another Welsh Government appointment in July 2009 and had then been appointed to a more senior post and had not returned.  The information was confirmed by email from the Human Resources Department. She concluded that if Marcus Williams had been the countersignatory on the photocopy CRB certificates then it was likely to be a copy of the 2007 certificate.  Ms Williams confirmed that the process had changed between 2007 and 2010 and that by 2010, staff were required to carry out a face to face meeting with applicants for CRB certificates to ensure that the application referred to the correct person.

 

61. Turning to the receipt of the empty envelope on the 1 March 2012, she described the events leading to the envelope being opened outside the normal arrangements, being opened in her office, in the presence of several witnesses, who all saw that the envelope was empty on receipt.  There was no Sellotape on the envelope and no evidence that it had been opened or tampered with or damaged in any way.  She produced the original envelope for inspection at the hearing.  Having seen the envelope she concluded that it had been empty on posting and that cancellation was the only option available to her.  She confirmed that there was no question about the quality of care by the Appellant and that parents clearly valued her services.  The important issue was about her integrity and honesty, dating back to the attempted inspections in January 2012, the conducted inspection and looking back at the history of failure to comply with requirements.  The receipt of the empty envelope had led Ms Williams to the conclusion that it had been posted empty and the Appellant’s conduct had been such as to cast sufficient doubt in Ms Williams’ mind in this set of circumstances to conclude that she was not a person of sufficient integrity to remain a Registered Childminder.

 

62. Ms Williams gave evidence to explain the contents of the screen shots presented to the Tribunal following a direction for further evidence from the QA+ database, and identified the dates of submitting the CRB check applications in 2007 and the date of receipt of the certificates at the office.  She explained that the documentation must be destroyed on receipt of a satisfactory certificate, hence why the service could not confirm the dates of issue of the 2007 certificates.

 

63. In her written statement dated 12 September 2012, the Appellant confirmed that her recollection was that that the family received the required papers to apply for CRB checks and that they were completed, signed and delivered to the CSSIW to submit to the CRB.  She confirmed that neither she nor her husband had tampered with the photocopies produced on the 24 February 2012 and explaining that the original documents and copies had been posted to CSSIW on the 28 February 2012.  She further explained that “in an attempt to resolve matters, I obtained a CRB check from the Chief Inspector of Police for both myself and my husband.”

 

64. The Appellant gave oral evidence to supplement the contents of her written statement and explained that she had no recollection of where she had obtained the CRB application forms in 2010, but that she had returned the completed forms for herself and her husband by hand to Swansea in about October 2010.  A gentleman in the office had taken photocopies of her original documents and returned the originals to her.  She then received documents through the post which she thought that her husband had checked for her to ensure that they were correct and they had been placed in her file. She confirmed that they had arrived at about the end of October, or the beginning of November 2010.

 

65. When she sent the pre-inspection pack back to the CSSIW office in 2011, the Appellant had received a telephone call from a member of staff there enquiring where it was.  She had told him that it had been posted, and he had told her that if she heard nothing further then she could assume that the documentation had been received.  It had not therefore occurred to her that the documents hadn’t arrived.  She confirmed that there had been a similar occurrence in 2010 when the forms had not been received by CSSIW but on that occasion, she had retained a copy.

 

66. Turning to the events in January 2012, she confirmed that she did not work as a Childminder on Tuesdays and Thursdays and that on the day in question, she and her daughter had been in the house.  There had been a visit by the Parent of a child who she had previously minded, and only one child in the house on the 17 January 2012.  She confirmed that the person was not related to her but was a very good friend.  Her youngest daughter calls the boy her brother because they are so close.

 

67. The Appellant confirmed that she had another job as a cleaner with Eurocommercials for 10 hours per week and she normally went in at 5.30am every morning to clean.  She works in this job every day but not at fixed times and has done for the last 10 years alongside her child minding.

 

68. The Appellant explained that she had arranged to have photocopies made of the CRB certificates because about ten months earlier, she had considered applying for another job as a Dinner Lady in a local school, so she had photocopied all of the CRB certificates including Bethan’s because she was doing work experience with South Wales Police and they required a copy of her certificate as well.

 

69. The Appellant confirmed that Ms Belcher Edwards had immediately questioned the date on the documents, but the Appellant believed that they contained a smudge from the photocopying that had been done at her husband’s work.  She went on to explain that about half an hour after she left, Ms Edwards had phoned to say that the office had no record of the CRB certificates and asked if the First Aid Certificate could be sent in as soon as possible otherwise, the Appellant would be suspended.  The Appellant told her that she was going away for the weekend and would deal with it first thing on Monday morning.

 

70. On Monday 27 February 2012, the Appellant gave evidence that she had phoned Ms Belcher Edwards to ask if the First Aid Certificate had been received.  It was confirmed that it had been received by fax.  The Appellant confirmed that she had posted the other documents as soon as she had returned on Sunday afternoon.

 

71. At about 5pm on the 13 March 2012, the Appellant had received a telephone call when she was in the middle of preparing tea for her family informing her that the notice of intention to cancel had been posted out to her and that the envelope had arrived totally empty.  The Appellant asked why she had not been told of this previously and the Inspector confirmed that she had left a message on her mobile phone on the 1 March 2012.  The Appellant gave evidence that her mobile had been in for repairs at that time and had subsequently been destroyed and replaced as it was irreparable, so that she had never received the message.  She was told that there was no-one who could discuss the situation with her at that time, that Louise Morgan was on leave for two days and any further consideration of the situation would have to be on paper.

 

72. The Appellant denied that the envelope had been posted empty.  She confirmed that the following documents had been placed in the envelope: the original CRB certificate for herself and her husband as well as the photocopies, the original First Aid Certificate, Bethan’s original CRB certificate and the risk assessment.  She confirmed that Bethan had put the document in the envelope with the others, checked against the checklist and the Appellant had sealed the envelope with Sellotape.  The Appellant had then taken the envelope and posted it at Verlands Way.

 

73. On cross-examination, the Appellant confirmed that she could not challenge the information contained on the CRB’s database as confirmed by Mr Christopher Held in his statement and email.  She maintained however that she had photocopies of documents that she believed were valid CRB certificates and that they had been posted to CSSIW.

 

74. With the written representations, the Appellant had submitted a copy of a claim form sent to the Royal Mail claiming the loss of the documents contained in the envelope.  The claim was dated the 5 March 2012.  The Appellant gave clear evidence that she had been unaware of the loss of the contents of the envelope until 13 March 2012 and was unable initially to offer any explanation why the claim was dated 5 March 2012.  After considering the matter over the lunch break, she gave evidence that she had made the claim after the 13 March 2012 and had been advised by the postmaster to date the claim a few days after the date of posting to assist the Royal Mail in processing, because although posted First Class, there was no guarantee that it would be received the next day.

 

75. In her original written representations to the Regional Director of CSSIW dated March 2012, the Appellant had stated that she produced to the Inspector at the inspection on the 24 February 2012 what she believed to be a true copy of the current CRB enhanced disclosure and stated that “if it appears that the document has been altered in any way she, nor Lyndon Williams caused such alteration or tampering as alleged nor have I or Lyndon Williams authorized any persons to do so”  She did not accept that she had been without a valid CRB certificate since October 2010.  She produced a Police National Computer check from South Wales Police confirming that “my behaviour is such that my character is in line with regulations” and produced testimonials from Parents.  She went on to confirm that the application that she had submitted for the enhanced CRB is not in full compliance with the regulations, but that she had taken this action as an expedient response to the urgency of the matter”

 

76. The letter continued: “I wish to explain my circumstances surrounding the events in the last months of 2011, my mother was admitted to hospital in August 2011 and detained in critical care for sometime……..I do not recall the exact date I was required to provide a renewed enhanced disclosure and to submit the request to CSSIW.I am and was of the firm believe that this was towards the end of 2010, the previous one being issued I believe in 2007.  I however continue to maintain that on receipt of the request for renewal the relevant forms were completed and returned to CSSIW in or about the late part of 2010.”

 

77. Ms Bethan Williams gave evidence that she was present in the house on the 17 January 2012 when Ms Belcher Edwards had first visited her home to undertake an inspection visit.  She described her mother as being dressed all ready to go to her second job and confirmed that Jo aged three was the only child in the house, running around and playing with toys.

 

78. She described the events on Sunday 26 February 2012 when she had helped her mother to prepare her documents for the CSSIW, printing off the quality assurance report that her mother had pre-written and giving it to her to put in an envelope with her own CRB check certificate those of her parents dated 2010 and the First Aid certificate.  She described how her mother had put all of the documents in an envelope and had put Sellotape across the back of the envelope as she does with all important letters.  She inspected the envelope produced and confirmed that there were no Sellotape marks on the back.

 

79. Ms Williams explained that she is a Computer Science Student and expressed her view that when an organization updates its database, information can be lost from the screen although it remains within the system.  In her view, that may have happened to the CRB but she could not offer any explanation why the data might have been lost from both CRB and CSSIW databases.

 

80. Mr Lynden Williams gave oral evidence in support of his written statement.  He recalled that in about September 2010, he had completed CRB application forms and they had been hand delivered by his wife to the CSSIW office in Swansea.  He could recall seeing CRB forms being returned, that he had checked them to see that the information was correct.

 

81. Mr Williams confirmed that he had not been present during the inspection on the 24 February 2012, and that he had not discussed it further with his wife over the weekend because he wanted her to forget about it, as she had been very distressed about it.  She asked him to fax a copy of the First Aid Certificate from his work on Sunday and he had gone into the office on Sunday on return from the holiday sometime on Sunday morning.  The fax had been marked as sent from Airbus Procurement, because the fax machine was on loan whilst the other was being repaired. He did not wait to see whether the fax was sent, and explained the date and time on the received copy, which was marked 9.47am on Monday 27 February 2012 as being the result in a delay in the fax actually being sent until Monday morning.  It had not occurred to him to suggest that all the documents should be faxed although he had told his wife that there was no guarantee that the documents posted on Sunday would arrive on Monday.

 

82. He gave evidence that he did not pay much attention to what was put into the envelope but that his wife had taken the original First Aid Certificate and the document typed by Bethan as well as the current CRB disclosures and put them into the envelope.  He could offer no explanation how the envelope might have arrived at the CSSIW offices empty.

 

83. Mrs., Mr. and Miss Williams all examined the actual envelope, produced in evidence, confirmed that they believed it to be the envelope they had seen at their home on 26 February 2012, and could offer no explanation of why there was no trace of Sellotape having been affixed to it and removed.  On cross-examination, Mr Williams confirmed that he had seen a document that he believed to have been a 2010 CRB certificate and was adamant that he had not confused the 2007 application forms with the 2010 application.

84. In her letter to the Tribunal dated 17 October 2012, the Appellant, in the final paragraph stated: “I have said and reiterate that forms sent to me by CSSIW were completed by me and my husband, as stated in my first statement at paragraph 4 and returned to them to submit to the CRB office.  I have recall of receiving papers which I truly believed was the CRB check which I sent as said in paragraph 11 of my statement to the CSSIW”.

 

85. The email from Christopher Held dated 8 November 2012 confirmed the dates of the 2007 CRB certificates issued as being the 23 October 2007 for Tracy Dawn Williams and 29 October 2007 for Lynden Williams.  He further confirmed that the numbers produced by the Appellant, in the late evidence were customer reference numbers and that they were both related to the certificates issued in October 2007.

 

86. In his statement dated 21 August 2012, Mr Held confirmed that the only checks carried out in respect of Tracey Williams and Lyndon Williams were those completed in October 2007.  He further confirmed that the enquiry had referred to applications submitted by Care and Social Services Inspectorate Wales.

 

87. In oral evidence, Ms A Williams clarified that the practice is to record on the database the date on which the CSSIW has submitted the application for a disclosure certificate to the CRB and to further record the date on which the disclosure certificate is received, hence, neither of the dates in the database will be the date of issue recorded on the face of the disclosure certificate.

 

Tribunal’s conclusions with reasons

 

88. We considered all of the evidence presented, both in the papers and orally at the hearing, particularly the evidence of the Williams family regarding the existence or otherwise of the 2010 CRB certificates.

 

89. The evidence of Mr Held of the CRB is clear and it is that no other applications for CRB checks have been received in respect of the Appellant and Mr Lyndon Williams, other than those submitted and actioned in 2007 and this evidence was not directly challenged by the Appellant.

 

90.. There is no evidence contained within the CSSIW QA+ database that any completed CRB application forms were received from the Appellant and Mr Williams in 2010 or 2011.  The application form and receipt of Bethan Williams’ certificate in April 2010 is recorded however.

 

91. The Appellant has been adamant throughout that she had not made any application for a CRB certificate through any organization other than the CSSIW and in oral evidence claimed not to recall where the application forms had been obtained.  In her original written representations, she stated that the forms had been received from the CSSIW and completed and returned to the office to countersign and submit, then going on to acknowledge that the application was not in compliance with the regulations.  In her statement dated 12 September 2012, the Appellant states that the documents were completed, signed and delivered to the CSSIW and delivered by hand to their offices.  She further makes reference to producing a CRB check from the Chief Inspector of Police which appears to be a reference to the certificate relating to entries in the Police National Computer.

 

92. The facts set out above are irreconcilable and having considered the evidence, we have concluded that we did not accept the evidence of the Williams family regarding the existence of 2010 CRB certificates for a number of reasons.  First of all, they were unable to explain where the application forms had been obtained in 2010, there was no record of a request to CSSIW nor of forms being sent out. Secondly, the Appellant said in her written representations that she was unable to recall whether she had seen a man or woman at the Swansea office, but she was adamant in oral evidence that he had been a “gentleman”.  Thirdly, she appeared to acknowledge in the written representations that the application was defective, but this was not a position maintained at the hearing, with the Appellant insisting that she had valid CRB certificates.  Fourthly, there is the record of the photocopies from the inspector, which recorded the dates of the certificates as being the 23 and 29 October 2010 and the countersignatory being Marcus Williams. These were the exact dates and countersignatory of the 2007 certificates and Mr Marcus Williams left the employ of CSSIW in July 2009.  Fifthly, there was a change in the evidence about the date of submission from the Appellant’s “late 2010” in written evidence to September or October 2010 in oral evidence. Finally, there was the reference in the Appellant’s written representations to her obtaining CRB checks from the Chief Inspector of Police, suggesting that the Appellant is not clear about the meaning and definition of “Enhanced CRB Certificates”

 

93. We concluded that since the CSSIW and CRB are entirely separate organizations, with separate databases, we preferred the Respondent’s evidence of the absence of any valid CRB certificates to that of the Appellant and her family and that there were no CRB certificates for Mr and Mrs Williams in existence from 2010.

 

94. We further accepted the evidence of the Respondent about the past failures in relation to the production of First Aid Certificates and child protection training certificates, which indicate past breaches of regulations and good practice recommendations by the Appellant. That said, it is also clear that the CSSIW practice of making findings on inspection of failure to comply and then failing to follow up the requirement will inevitably have led to a culture where compliance with the regulatory requirements was not seen as a necessity, nor indeed a priority by the service provider.

 

95. We therefore concluded on the evidence before us that the Appellant had been in breach of the requirements of the Regulations in regard to her registration as a Childminder.

 

96. Having concluded that the CRB certificates from 2010 did not exist, then we turn to the issue of the Appellant’s integrity.  If the CRB certificates from 2010 did not exist, then what were the documents shown to the inspector on the 24 February 2012 and what was in the envelope received by the CSSIW on the 1 March 2012?

 

97. Although the documents shown to the Inspector at the inspection were not produced in evidence, there was sufficient evidence from the Inspector, regarding the documents to enable a view to be taken.  The Appellant did not deny that the documents ever existed and confirmed that the Inspector had immediately queried the validity of their dates on the basis that they looked wrong, confirming the existence of the documents and the Inspector’s evidence. We have concluded on a balance of probability that the documents produced to the Inspector were doctored versions of the 2007 CRB certificates.

 

98. In passing, we would comment that the practice of sending out renewal forms five months after the expiry of the 2007 certificates, without any record of a request by the Appellant, again gives the impression that the CSSIW were not significantly concerned about the service provider’s compliance with the regulatory requirements.

 

99. However, an attempt by the Appellant to use false documents to persuade the Inspector that she was in compliance with the Regulations is a very serious issue which goes directly to the question of her integrity.

 

100. If the matter had ended there, there might have been some grounds for trying to explain some mitigating circumstances, however, there remains the question of the documents which were allegedly posted by the Appellant on the 26 February (or the 28 February according to her written statement) and which were not received by CSSIW.  We have considered the evidence carefully and we have tried to identify any other reasonable explanation for the absence of the documents from the envelope on its arrival at the CSSIW office on the 1 March 2012.  We could not see any evidence that the envelope had been tampered with or suffered damage and it is our conclusion that the envelope was posted empty by the Appellant.  If, as the other members of the family testify, documents were placed in an envelope and sellotape placed to seal it in their presence on the 26 February 2012, this was not the envelope that was received without contents by the CSSIW on 1 March 2012. The only explanation for such an action is that the Appellant was seeking to cover her tracks following her failed attempt to hoodwink the Inspector with the doctored CRB certificate photocopies on the 24 February 2012, and that conclusion is supported by the claim to the Royal Mail that the documents were missing dated 5 March 2012 which was a week before the Appellant claimed to have been told that the documents were never received.  We did not accept her explanation about the dating of the form and we conclude that the Appellant’s behaviour in this regard is inherently dishonest and deceitful.

 

101. Such a conclusion places such doubt upon the integrity of the Appellant as to make it impossible for the Respondent to have any faith in her truthfulness or ability to be honest in relation to other matters that might arise in the course of her Childminding activities.  The final conclusion is therefore that the decision of the Regional Director to cancel the Appellant’s registration as a Childminder should be upheld because she lacked integrity and despite the fact that the inspection reports over a period of ten years indicate that her childcare has been consistently satisfactory, her conduct in relation to the regulatory process has meant that she can no longer engage in that work.

 

102. There were disputed facts that we concluded were not relevant to the decision, such as the reason for the difference in date of receipt of the faxed First Aid Certificate and the issue of the number of children at the property on the 17 January 2012. These have been left without a conclusion, because they did not bear such weight one way or the other as to make a difference to the overall conclusion.

 

103. In the light of the evidence at the hearing that the Appellant did not appear to be clear about the difference between  a suspension and a cancellation, we set out here the impact of our decision: under the Children and Families (Wales) Measure 2010 section 19, a person acts as a Childminder if she looks after one or more children under the age of eight on domestic premises for reward and under section 21 of the Measure,  a person must not act as a Childminder in Wales unless that person is registered as a Childminder buy the Welsh Ministers and anyone acting as a Childminder without being so registered is committing a criminal offence.

 

 

Appeal dismissed

 

 

 

Tribunal Judge Meleri Tudur

 

Dated 20 November 2012