Adegoroye (The School Day Nursery) v Ofsted [2009] UKFTT 10 (HESC) (02 March 2009)
 Schedule 2 cases: Childminders and Day Care Providers for children - Cancellation of registration

In the First Tier Tribunal (Health, Education and Social Care)

Ms Adegoroye (Appellant)

-v-

OFSTED (Respondent)

    Re: The School Lane Nursery

[2008] 1244.EY

-Before-

Tony Askham (Nominated Tribunal Judge)
Jennifer Cross (Specialist member)
David Cook (Specialist member)

Decision

Appeal 

Ms Adegoroye appeals the Respondent’s decision dated 16 January 2008 to cancel her registration under Section 79G(1)(b) of the Children Act 1989 on the basis she was not able to comply with the requirements of Part XA of the 1989 Act, the Day Care and Child Minding (National Standards) (England) Regulations 2003 (the 2003 Regulations) and the National Standards made under them and that, therefore she has ceased to be qualified for registration providing day care on the premises at School Lane Ramsgate (the nursery) under Section 79B(4) of the 1989 Act.  

Attendance

On behalf of the Respondent:

Samantha Broadfoot (Counsel) – Representative
Susan Scott – Ofsted Inspector 
Tracy Larnach – Kent County Council Early Years Foundation Stage Consultant (previously Ofsted Inspector)
Joan Mansfield – Field Area Manager at Ofsted
Demi Rousiou – Case Officer at Ofsted

On behalf of the Appellant:

The Appellant in person

Preliminary issues

At the commencement of the hearing we made a restricted reporting order under Regulation 18(1) prohibiting the publication (including by electronic means) in a written publication available to the public, or inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any child, which should continue until this Tribunal ordered to the contrary.

Facts

1.	Ms Adegoroye became a nursery nurse in 1972 and for the past thirty years has worked in a variety of placements in London including being the manager of a day care nursery in the early 1990’s. 

2.	Seven years ago the Appellant who by then was living in Kent decided to return to Kent to work and from then on has been determined to open a day care nursery in Kent.  Trying to organise the funding, find the appropriate premises and to set up the nursery took her some three or four years to achieve.  Her first effort to obtain registration of the nursery was unsuccessful but she applied again in 2005.  That application took a long time to resolve.  Much of the delay in the registration process appears to have occurred because Ofsted were requiring evidence from the Kent Fire Authority, the Environmental Health Officer and the Planning Authority on a number of issues relating to the nursery premises.  In the course of the Appeal hearing we obtained from the representative of Ofsted the records of the registration.  It is apparent from those that in November 2005 the Kent Fire Authority found the proposed day care provision “deeply unsatisfactory”.  Ultimately the Planning Authority and the Environmental Health Officer were satisfied as to the premises and the registration of the Appellant to run the nursery at the premises was passed and registration was finally granted on 29 June 2006.  The Appellant says as a result of the delay in registration a number of the members of staff who she had hoped to employ had obtained employment elsewhere and the number of children she hoped to have initially registered at the nursery was substantially lower than would have been the case but for the delay.  Importantly at this stage we noted that it appeared that the fire officer was never satisfied that the premises were suitable for use as a day nursery at the time of registration.  

3.	The only importance of this issue is that in the course of various inspections carried out by Ofsted over the period of time that the nursery has been open and registered it became apparent that there were a number of concerns about fire safety.  This resulted in the fire officer inspecting the premises in October 2007 and identifying a number of areas which required attention before he could be satisfied that the fire safety measures were satisfactory.  It appears to us that this was a substantial risk during the first year of the nursery’s existence which should not have occurred had Ofsted dealt fully and properly with the registration application. 

4.	Indeed part of the Appellant’s case could fairly be said to rest on her conviction that nothing about the physical premises or her fitness to be a provider had changed substantially since the initial registration.  If both she and the premises had been judged to be suitable on registration, why were these issues now being used to justify cancellation and closure?  

5.	The notice of intention to cancel the registration was made by Ofsted on the 9 November 2007.  The letter containing the notice of intention of cancellation identified fifteen reasons for that intention.  In the Appeal before us and in closing submissions by Counsel for Ofsted, Ofsted’s case was put that the Appellant was simply unable to understand the regulatory framework in which the nursery must operate and as a result the nursery has been unable to provide the standard of care which is required.  Furthermore it was submitted to us that there was little prospect that it would do so in the future.  

6.	The first two concerns expressed by Ofsted were that children were being cared for by staff, who had not been properly vetted.  This resulted in a visit by Ofsted to the nursery on 8 November 2006 when the inspectors found that the Appellant failed to comply with National Standard One in this respect.  As a result an action was raised for the Appellant to develop rigorous and robust recruitment procedures to ensure that effective systems were in place for checking that staff were suitable for working with children and to ensure that effective procedures were in place so that adults, who had not been CRB vetted, were not left alone with children.  In December 2006 the Appellant assured Ofsted that a new recruitment policy was in place and it was then the case that no one, who was not CRB checked, could be left unsupervised with children. 

7.	On 8 December 2006 there was an inspection by Annie Williams, an Ofsted inspector.  The inspection can only be described as “damning”.  On the basis of the evidence collected during the inspection the quality and standards of care were said to be “inadequate”.  The Appellant did not meet the national standard for under eight’s day care and child minding.  The quality and standards of nursery education were inadequate.  The evidence produced to reach those findings was compelling and overwhelming.  In particular we noted that despite the assurance given by the Appellant as to the CRB checking the inspection found that on occasions un-vetted adults were left alone with children. 

8.	Many of the basic issues raised by Ofsted at the inspection were subsequently the focus of ongoing support from the Kent County Council’s early year’s advisory teachers (EYAT).  Ele Curtis, an advisor from the service, frequently visited the nursery from the time of the December inspection throughout 2007 to attempt to make improvements into the setting.  The Appellant uses the notes of those visits to identify what she says was improvement.  We note however that in early January 2007 the notes from the Advisory Service go to support the complaints being made by the Ofsted inspectors in the December inspection. 

9.	On 22 February 2007 Ms Larnach visited the nursery again by way of investigation.  The initial purpose of the meeting was to ascertain whether or not the Appellant had met the compliance notices served on her.  At the time of this visit there was also a visit by the Environmental Health and Health & Safety Officers. Ms Larnach was concerned that the compliance notice regarding the complaints procedure had not yet been addressed and her concerns as to the staffing ratios and behaviour management remained outstanding.  We noted that on 28 February that the Advisory Service visited and that the Appellant told them that the Ofsted visit had been “positive”.  The advisor however suggested a whole range of simple, basic recommendations to further improve the setting.  It is apparent from the inspection that Ms Larnach continued to have major concerns on the issue of behaviour management and the need for all staff to have behaviour management training.  Despite this the evidence before us shows that whole staff training on behaviour management did not take place until 10 June 2008 when it was delivered by Charlotte Thompson the early years SENCO of Kent County Council.

10.	On 21 March 2007 Ms Larnach carried out a further inspection of the nursery.  The outcome of the inspection was that the quality and standards of care were inadequate and that the Appellant did not meet the national standards for under eight’s day care and child minding.  The quality and standards of nursery education were also deemed inadequate.  At the date of the inspection the nursery had seventeen children on the roll, of whom five received funding for early years education.  The nursery employed three members of staff, of these two members of staff and the Appellant held appropriate early years qualifications.  The inspection showed that children’s health and safety continued to be compromised because the staff member with a first aid certificate was not always on the premises.  Children’s individual needs were not being adequately met due to the mixed age grouping and low staffing.  In fact due to the organisation and low staffing in the nursery the foundation stage curriculum was not being delivered appropriately and the staff’s knowledge and understanding of the foundation stage and the early learning goals were poor and they awaited further training.  The staff’s knowledge and understanding of supporting children with learning difficulties and disability was described as weak.  The partnership with parents and carers was inadequate. 

11.	On 2 August 2007 a potential parent visited the nursery as she was interested in looking for a place for her daughter.  She was so disgusted with the nursery that she emailed Ofsted to express her concern.  Her concerns were as to staffing ratios, health & safety and cleanliness.  She told Ofsted that she was a parent with four children who had been in nurseries previously and the state of the nursery “shocked her”.  She said she felt the place was “dirty, un-educational, unsafe and generally not a healthy place to have your children”. 

12.	As a result of this complaint Ms Larnach and Annie Williams, another Ofsted inspector visited the premises again on 9 August 2007.  From the records that Ms Larnach examined at the nursery she concluded that minimum standards of staffing were not always being maintained and that there were no staff with suitable first aid qualification on duty on a particular day and the volunteers on duty had not been CRB checked.  An inspection of the toilets concluded that children could not access the toilets independently because the gate through which they had to go was poorly fixed and had to be lifted to secure it.  The toilets were not appropriate for independent use because there was a toilet brush accessible and paint was stored in an insecure cupboard.  The sleeping area was dirty.  As a result of the inspection further actions were required of the nursery relating to the suitability of staff and volunteers; vigorous and effective cleaning procedures; ensuring the nursery was at an adequate temperature; ensuring positive steps were taken to promote safety and to ensure there were operational procedures in place for the safe conduct of outings.
 
13.	On 24 August 2007 there was an investigation visit by Sue Scott, an Ofsted inspector.  Ms Scott concluded on the evidence that she found that the minimum staffing ratios were not met.  When she arrived the four children, who were in attendance, were at the park where they had been accompanied by one member of staff, who was qualified and checked, and the Appellant’s daughter, who was a volunteer but has not been qualified or checked.  Ms Scott concluded that although the premises were adequately clean in appearance there were other areas which she described as “grubby”.  She was not satisfied with the evidence produced about cleaning rotas and cleaning generally.  She was concerned about the fact that two fire exits were not easy to open and the fire extinguisher did not appear to have been properly maintained.  She saw a two year old using a large slide of approximately five foot high without supervision.  She remained unconvinced from her inspection that there were in place operational procedures for the safe conduct of outings. 

14.	The next inspection incurred on 7 October 2007 and was undertaken by Beth Kingsland, an Ofsted inspector.  On the basis of the evidence she collected she concluded that the quality and standard of care were inadequate and that the Appellant did not meet the national standards for under eights day care and child minding.  She concluded that procedures for ensuring that all areas of the nursery were clean and well presented had not been implemented.  She found due to persistent leaks that the carpet was damp and large sections were stained.  The children were stripped to their underwear, did not wear shoes and walked on the carpet which was damp and not sanitised.  She found that the children were not provided with healthy meal choices and she discovered there was also a lack of detail within the medicine records. 

15.	 She concluded that children’s developmental needs were not being met and staff had an insufficient knowledge of how children learn and develop.  Her report suggested that the organisation of the nursery was ineffective resulting in activities not being appropriate to meet children’s individual needs.  In looking at the compliance notices from the previous visit she concluded that minimum staffing ratios had not been met and the documentation to record this was poorly organised and did not comply with regulatory requirements.  She was satisfied however that enough staff had been trained in first aid to ensure at least one member of staff was on duty at all times who had been appropriately trained.  As a result she advised that Ofsted should take enforcement action to safeguard the welfare of the children.  It was this inspection and advice which led to Ofsted making the decision to cancel the registration. 

16.	Before the inspection of 7 October 2007 Ofsted had been greatly concerned about the nursery.  As a result they took the unusual step following an internal case conference of 12 September of inviting the Appellant to a meeting with its area manager and inspection team manager on 27 September.  It is clear from the minutes of that meeting that the area manager of Ofsted made it clear to the Appellant that there were three possible outcomes.  These could be the cancellation of registration, prosecution or the third option, which was being pursued at that meeting, which was to ensure that the standards and regulations were being met at all times. 

17.	Throughout the meeting the Appellant maintained that all outstanding issues had already been addressed.  The notes of the meeting were sent to the Appellant and it appears to us that they were a fair and accurate reflection of what was said at that meeting. In the light of that meeting and the assurances given by the appellant, the outcome of the inspection on 7 October was very disturbing for Ofsted.  Ms Kingsland’s evidence to us was that she also privately discussed the matter following the feedback with the early year’s team representative, who had attended the feedback.  Ms Kingsland told us that the representative agreed with the outcome of the inspection and was worried by it. 

18.	Following that inspection a series of monitoring inspections took place.  The first was on 10 October 2007 which was a visit by Ms Larnach and Mr Wallace the inspection team manager.  The purpose of the visit was to ensure the children were safe and not to inspect to produce a report.  There was some evidence that activity had taken place in that the nursery sleep room had been rearranged and the wooden partitions had been painted and nails knocked in.  However a bolt was falling off the gate, car mats were still being used at the base of the larger slide and there had been a leak under the sink so as a result the carpet area was again wet.  The fire doors now opened, panic hardware slipped out as previously reported and the monitors had been installed but there was still a strong smell of damp.  As a result Mr Wallace asked the fire officer to visit.  The fire officer subsequently reported to Ofsted that fire evacuation doors could be opened but were difficult to open and that he had required the Appellant to carry out a number of actions and planned to revisit in one month.  Mr Wallace also requested that the Environmental Health Officer inspect.

19.	A further visit took place on 22 October 2007.  At that visit Ms Larnach identified that the register was not accurate and the nursery continued to smell of damp.  Some of the nails previously knocked in were protruding again.  She considered that individual needs of children were not being met. 

20.	She carried out a further monitoring visit on 1 November 2007.  The carpet was still wet and the building smelt of gas.  There was a further monitoring visit carried out by Beth Kingsland on 2 November.  On that visit the Appellant was the only member of staff or volunteer, who had a CRB check and was qualified.  Ms Kingsland report concluded that the “quality of care was appalling, children are un-stimulated and unsupported.  As a result many are left to play alone”

21.	On 7 November 2007 there was a meeting between Bill Wallace and Tracy Larnach representing Ofsted and the Kent County Council attended by Ele Curtis, the EYAT.  The meeting had been called by the local authority to ask Ofsted if they could share any information and conclusions from their recent visits.  At the meeting there was a discussion as to whether or not there was sufficient evidence to apply to cancel the nursery’s registration immediately but Ofsted’s view was that there was insufficient evidence to enable it to do so under the emergency provisions.  However it was Ofsted’s intention to cancel the registration.  Actions were agreed around co-ordinating visits and ensuring that there was as much support given by the local authority to the nursery as possible.  Ms Larnach’s evidence to us suggested that the local authority was anxious for Ofsted to get on with enforcement action.  Two days after that meeting on 9 November 2007 Ofsted wrote to the Appellant giving notice of intention to cancel registration to which the Appellant responded in a letter of 20 November 2007.

22.	Further monitoring visits then took place.  The first was on 21 November 2007 by Ms Larnach.  On the day of her visit there were fifteen children present and Ms Larnach concluded that given the staff on duty the ratios were only minimally covered but there was no staff member present to prepare lunch, clean up, escort children to the toilet or talk to parents.  As a result she concluded children were left unsupported.  The staff were only able to manage routine tasks.  She expressed an ongoing concern about a new member of staff, who did not speak English well and who was responsible for the under three’s.  When this was discussed with the Appellant, the Appellant said that the staff member’s English was improving and that the Appellant had placed her with the younger children. So far as Ms Larnach was concerned this implied that the Appellant did not understand the importance of language and interaction for under threes.  She saw this as a further illustration of the appellant’s poor knowledge and understanding of working with under three’s. 
 
23.	There was a further monitoring visit by Ms Larnach on 7 December 2007 when she again identified concerns relating to staff checks, qualification and suitability.  

24.	There was a further monitoring visit on 12 December 2007 by Beth Kingsland and Ms Larnach.  On this occasion they noted a smell of gas.  Both had concerns that the care and support of the children was very poor that day and that this was the worst they had seen since the last formal inspection. They recorded their ongoing concerns about behaviour management techniques. 

25.	In accordance with Ofsted procedures there was an objection hearing on 17 December 2007.  The purpose of the meeting was for a Panel to hear submissions from the Appellant as to why her registration should not be cancelled.  The Appellant made submissions which are entirely consistent with the approach that she has adopted throughout this case and indeed adopted in front of us.  At the end of the Appellant’s submissions the Panel were in no doubt that the registration should be cancelled and that there was sufficient evidence to corroborate the issues about unchecked staff, staff ratios, behaviour management, premises and lack of hygiene.  However, the Panel did not believe the child protection was a serious issue.  

26.	There was a further monitoring visit on 20 December 2007 by Tracy Larnach.  She noted some improvement in staff members handling of children.  It transpired that there had been a gas leak that at the time of the previous visit and that had now been repaired.  Ms Larnach discovered that at time there was a five year old child on the premises, which appeared to be a breach of the Appellant’s registration conditions. 

27.	A further visit took place on 8 January 2008.  Whilst the inspector noted that there had been a technical breach of the regulations about registration and that some children were unsupervised the overall outcome of the inspection was that the inspector, Beth Kingsland, noted “improvement”.  However the inspection again noted some non compliance and a standard letter was written to the Appellant on 11 January.  On 16 January Ofsted sent the Appellant’s its decision to cancel registration following the objection hearing. 

28.	There was a further monitoring visit by Beth Kingsland on 23 January 2008.  At the beginning of the inspection it was clear there was a fault with the fire alarm system which was persistently bleeping.  Ms Kingsland recorded that staff’s interaction with children was “erratic and poor”.  When Ms Kingsland went with the Appellant to the Appellant’s office the Appellant would not allow her into the office although when Ms Kingsland did ultimately go into the office the office was in “disarray” and children’s files were stored in a plastic bag.  She recorded that children were still being left alone with unchecked staff; equipment was left strewn on the floor; there were problems with nappy disposal and with children being shepherded to the toilet at the same time. 

29.	On a further inspection on 11 April 2008  the inspector recorded that there had been improvement but listed a range of concerns relating to the checking of staff suitability: documents available for inspection; safety checks; health routines; staff’s knowledge and understanding the skills and the quality of interaction; and meeting individual needs. Again all the children being taken to the toilet together was noted.  This visit led to a compliance letter being sent to the Appellant.  

30.	Ms Larnach visited the nursery again on 14 May 2008.  She again identified problems about the nappy bin which was described as “half full and smelly”.  She noted that on the daily activity sheets certain days had no activities in them and again identified health hazards around screws protruding from gates.  

31.	The next inspection incurred on 7 July 2008.  Again the inspector noted improvement but expressed a range of concerns including health and safety issues for example a toilet brush and mops easily accessible and a musty smell.  But the nappy bin was empty.  More importantly she concluded the staff still struggled with behaviour management and interaction.  This visit resulted in a further compliance letter of 18 July 2008.

32.	The next visit occurred on 4 August 2008 because of reported concerns which had been raised about the adult /child ratio and was undertaken by Sue McCourt and Ms Larnach.  The inspectors noted that the staffing ratios were being met and on some occasions surpassed.  The inspectors noted improvement and no overall concern.  

33.	Sue Scott undertook a monitoring visit on 8 September 2008.  Her inspection showed that planning for the children was inadequate to meet the needs of the range of children.  However staff were on hand to supervise and satisfactorily support play but that there were a number of examples where the behaviour management policy was not effective. 

34.	A further monitoring visit took place on 9 October 2008.  Sue Scott, the inspector, noted that the Appellant appeared to have little understanding of the new Early Years Foundation Stage (EYFS) and what she had to do to meet its requirements.  She could see the staff had a better grasp although without a strong lead coming from the Appellant their work would be unsupported and not sufficiently well managed.  

35.	There was a further monitoring visit by Sue McCourt on 30 October 2008 and of all the visits it most probably records the most improvement in the nursery.  The physical environment had greatly improved and there was a new planning format on the wall.  There was evidence that staff were going on EYFS training and that children had responded well and were more relaxed and quieter.  The inspector noted staff modelling a good range of vocabulary.  The inspector found that one member of staff were clearly well skilled and that there was no health and safety concerns existing.  When this feedback was given to the Appellant, the Appellant indicated that she had still not had her EYFS training; she would be more in a position to answer fully once she had.  The inspector explained to her that the lead had to come from her to her staff.

36.	There was a further visit on 17 December 2008.  The inspector noted that the carpeted floor in the main nursery room was “very grubby” and there were visible stains on it.  Toys and resources were stored in a haphazard way and were scattered across seats.  The table of the door to reception was covered in papers and lunch debris was still everywhere.  The purpose of the visit was to investigate concerns that had been expressed that the Appellant had been away from the nursery through ill health and this had not been notified to Ofsted.  It transpired that the Appellant had been away in hospital.  When the inspector looked at the attendance records in December she concluded there was a clear breach of requirements of staffing ratios because three staff were required, two of whom who must have appropriate qualifications and this had been breached.  The inspector noted in any event records were incomplete, some were missing and the data was wrong on certain fact sheets.  The inspector decided that actions were required to ensure that adults had appropriate qualifications and that half the staff working with children under two had received specific training in the care of babies and there was in place contingency arrangements to cover staff absences and emergencies.  

37.	A final inspection occurred on 14 January 2009.  Whilst this was an inspection under the Act it was clear to us that its main purpose was to give this Tribunal up to date evidence of the nursery immediately prior to the hearing before us.  Whilst the inspection carried out by Susan Scott and Jeanette White acknowledged that there had been some improvement, their summary of the nursery was that children’s progress was limited due to the staff’s lack of knowledge of child development and inadequate planning for early years foundation stage.  They identified that some safeguarding and safety issues had still not been addressed and that children did not experience sufficient outdoor activities.  They concluded that children’s behaviour was not being managed effectively and that this restricted the delivery of activities to meet their individual needs.  They also concluded that the Appellant did not demonstrate ability to self evaluate and promote continuous improvements and that some previous actions had not been adequately addressed.  They advised that the Appellant demonstrated an inadequate knowledge and understanding of the importance of maintaining documentation within her setting in order to support practice.  Some procedures were not available at the time of inspection and much of the documentation was not organised securely, increasing risk to children.  Overall they concluded the early years provision required immediate action and that Ofsted needed to take enforcement measures to ensure children’s safety in compliance with the welfare learning and development requirements or it should cancel registration.  
38.	

The parties’ submissions 

1	The Appellant’s case
1.1	The Appellant’s case is that Ofsted were wrong to give notice to cancel the registration of School Lane Day Nursery with the Appellant as the provider.  She maintains that she has a good understanding of the regulatory framework within which the nursery must operate and that she is fully capable of applying this knowledge to achieve the required standards.  The Appellant believes that Ofsted unfairly rated the nursery as inadequate, because whether areas for improvements have been highlighted by Ofsted these have been made and sustained.  

2	On each of the Standards she submits
2.1	As to suitability. 
2.2	She is a suitable person and that her evidence showed she was a conscientious, caring, responsible and dedicated childcare professional who has always worked to ensure children are well cared for in a safe, clean and emotionally supportive environment.
2.3	She maintained that the evidence showed that the nursery could sustain improvements made although initially when first opened she accepted the staff were not fully trained.  However the Appellant has highlighted to the tribunal that during the time prior to having the registration confirmed, the nursery lost two qualified staff, who were interviewed and processed to start. 
2.4	The Appellant maintained that she has shown knowledge and understanding of the recently implemented Early Years Foundation Curriculum and explained commitment to continuous development – even though it may have not always been possible to undertake training in as timely a manner as the Appellant would have wished.  
2.5	Additionally, the Appellant relied on the fact that the nursery is also a setting which supports local colleges and schools to send their pupils for work experience placements.  These schools and colleges have robust processes to check the organisations that they are sending their students to.
2.6	The Appellant maintained that she had implemented robust recruitment processes in the nursery; 
2.7	With regards to CRB checks the Appellant maintains she has demonstrated that staff are suitably CRB checked and where they are not yet CRB checked because they have only recently started and their CRB checks have not yet been returned, that suitable measures are in place to ensure that these staff are supervised at all times.  

3	Organisation  
3.1	The Appellant accepted that the Behaviour Management policy was not available at the time of the January 2009 inspection.  The Appellant said it had been taken out of the file to be read and not replaced in the correct place.  However, the Appellant maintains she did explain at the time of the inspection, that the nursery did have an up to date policy and Ofsted were aware that it had been working over an extended period of time with Charlotte Thompson so it would be difficult to believe that it did not have an up to date policy in place.
3.2	In relation to Organisation, the Appellant acknowledged that records of attendance have not always been maintained as required but maintained that record keeping was up to date within the nursery.
3.3	In relation to the requirements in relation to Care, the nursery has worked closely with the EYAT over an extended period of time to improve its standards and sustain good practice.  She submitted that the evidence presented to the Tribunal  showed that  the nursery does plan appropriately and schedule both adult-led and child-initiated activities to ensure that a range of activities are available for the children to support their educational development.  The Appellant also highlighted that staff within the nursery had been on the training and she had also attended the EYFS training and that tutors confirmed to the various settings present that their understanding and implementation of the new EYFS would improve over time.  
3.4	The Appellant believed that the issues around environment, namely Health and Safety, Fire and Food and Hygiene have been resolved to the satisfaction of the external statutory officers responsible for these standards and had been maintained.  In relation to Fire Safety, the Appellant says she demonstrated that the safety issues that were raised were taken seriously and any actions highlighted by the relevant Fire, Health & Safety or Food & Hygiene inspector, were actioned in a timely manner.  
3.5	The Appellant asserts that the nursery has a robust behaviour management policy in place, which has been developed in association with Charlotte Thompson.  Charlotte had delivered onsite training to the entire staff group and parents, which was organised by the Appellant which shows how seriously the Appellant take this area and expects her staff to understand the Standard of behaviour management, the Appellant expects in the nursery.  Where some of Charlotte Thompson’s recommendations may appear to be basic, this should be taken in the context of the Appellant’s requesting the majority of her visits and these recommendations reassured the Appellant that it had suitable policies in place.

4	Care, Learning and Play 
4.1	In relation to Education and Care Standards, the Appellant maintains she has demonstrated how the nursery has worked proactively to achieve and improve on the relevant standards with the advice and support of external advisors such as Ele Curtis - EYAT and Charlotte Thompson - SENCO, whose notes of visits detail room for improvement but also show where clear progress has been made.
4.2	The Appellant maintains that in addition to the positive praise of these agencies, the nursery and staff have received positive praise from parents and that the only reason the Appellant did not submit witness statements or letters of support from parents and staff is purely down to the Appellant’s lack of knowledge about the legal process, rather than the fact that parents and staff do not support this appeal.

4.3	The Appellant acknowledged that the number of visits from EYAT may have been high in relation to the visits with some other settings, but the Appellant argued that the high number of visits reflected the number of visits Ofsted made to the setting. 
4.4	Food & Drink
4.5	The evidence presented to the Tribunal the Appellant says had supported the fact that improvements have been made since the first ever inspection, which in some cases involved considerable financial input, and sustained in relation to the environmental concerns – these have been acknowledged by the professionals who inspect these standards.

5	Behaviour Management
5.1	The appellant argued that Charlotte Thompson had highlighted improvements made in the behaviour of some the children she was particularly working closely with and has credited the nursery in her reports.  Other outside agencies (Assessment Centre, Child Health Advisor) have also highlighted the good work the nursery has done with parents, specifically in relation to behaviour management.  

6	Conclusions
(A)	The Appellant believes that Ofsted’s rating of “inadequate” is totally out of line with the reports of other professionals and shows a lack of consistency.  The Appellant submitted that she is fully capable of understanding and implementing the standards required under the EYFS and the Appellant believed her intention to undertake a degree in Early Years Education would allow her to gain an even deeper knowledge to result in the nursery achieving good and very good ratings following future Ofsted inspections, providing the inspection team can undertake fair and unbiased inspections.
(B)	Whilst the Appellant does believe that there are several improvements that the nursery can still make to offer an even better child care provision, the Appellant does feel that significant improvements have been made in relation to the staff retention problems, staff’s understanding and knowledge of good practice in relation to the care and behaviour management standards and of course the environmental issues.  
(C)	The nursery is a caring childcare setting to 19 children and families who are deeply satisfied with the provision that is being given; it is a key resource to the community, and is a responsible employer, especially in the state of the current financial climate.

7	The respondent’s case
7.1	Ofsted reminded the Tribunal that this case covers a transitional period, with National Standards being replaced by the Early Years Foundation Stage (“EYFS”) which became mandatory in September 2008, although there is a considerable overlap in the two schemes.  For the purposes of assessing past breaches, it submitted that the correct approach is to consider the facts in light of the standards applicable at the time.  In terms of assessing the prospects of future compliance, it is submitted that the Tribunal will have to have regard to the EYFS document, since this is now the applicable standard.

8	Issues
8.1	The specific provisions upon which Ofsted rely are the ones contained in the Notice of Cancellation as this translates in the EYFS.
8.2	In summary, the Respondent’s case is that the registered provider of School Lane is simply unable to understand the regulatory framework in which the nursery must operate and, as a result the nursery has been unable to provide the standard of care that is required.  Furthermore, it is submitted that there is little prospect that it will be able to do so in the future.  
8.3	Ofsted invited us to accept its evidence in its entirety.  It was submitted that the EYAT evidence is largely consistent with the Ofsted evidence and supports it.  
8.4	On the issue of evidence generally, it should be noted:
(a)	The plans now produced at a very late stage by the Appellant only covered a very short period of time;
(b)	It should be noted that they become progressively less detailed;
(c)	The Appellant accepted that these documents alone are only part of the picture, one would need to see the observation and files of the children to see whether this was just a paper exercise or used as a tool as it should be.  The Tribunal had none of this evidence.
(d)	None of her staff have given evidence whether in writing or orally to support her version of events insofar as they conflict with those of Ofsted.
8.5	Furthermore, the Respondent submitted that the following particulars of the Appellant’s evidence were especially striking:
(a)	That, although she could accept that ‘there was room for improvement’, she would only accept that in the general sense, namely ‘there is always room for improvement, no nursery is perfect’.  She was not able to accept that at any point at all the nursery provision was inadequate.  This lack of insight is an extremely concerning facet of her character and by itself would make Mrs Adegoroye unsuitable to run a nursery.
(b)	Her lack of understanding was demonstrated in her assessment of the EYAT and SENCO reports.  It was her case that the Ofsted Inspectors only sought out the negative, did not highlight the positive and that if matters had been as bad as they said, this would have been picked up by the EYAT on their visit.  As will be demonstrated above, even when her attention was drawn to specific and on-going matters in the EYAT reports, she was unable to accept that there was either any express or implied criticism.
(c)	The lack of insight or inability to take on board criticism was also noticeable in her description of her staff as always having been good.  It was her case that she always picked ‘good staff’.  Their difficulties in implementing and sustaining the standards required, has been extensively documented in the Ofsted reports and also by the EYAT.  The appellant’s limited concession that some staff needed behavioural management training would have been more to her credit if it had not been so grudgingly given.
(d)	Her limited ability to explain in any detail even the old regulatory framework is of considerable concern: the documents produced by her on the last day of the evidence, refer to various acronyms in conjunction with a specific activity.
(e)	These are concepts that should have been completely familiar to the Appellant and being used on a daily basis (and according to Mrs Adegoroye they were following the standards).  It is extraordinary that she did not know them and indicative of her lack of a sufficient understanding of the modern day childcare requirements.
9		Conclusion
Ofsted therefore maintained that the evidence clearly demonstrated that there remained considerable difficulties with this nursery.  Despite a striking amount of hands on support from the EYAT and others from the local authority, the registered provider does not appear to be able to demonstrate the understanding and leadership qualities which would be required to steer this into a provision that meets the Standards that all children should be able to access so that they can fulfil their potential.  There has been ample opportunity to demonstrate sustainable and significant improvement.  Regrettably, this opportunity has not been taken and it is submitted that this is not through want of trying, but rather want of professional capacity. 

Law

1.	Mrs Adegoroye appeals the Respondent’s decision dated 16 January 2008 to cancel her registration under section 79G(1)(b) of the Children Act 1989 on the basis that she was not able to comply with the requirements of Part XA of the 1989 Act, the Day Care and Child Minding (National Standards) (England) Regulations 2003 (“the 2003 Regulations”) and the National Standards made under them and that, therefore, she had ceased to be qualified for registration for providing day care on those premises (the Nursery) under s.79B(4) of the 1989 Act.
2.	In order to qualify for registration, a person must meet the requirements set out in Section 79B (4) of the Children Act 1989.  This provides:
“(4) a person is qualified for registration for providing day care on a particular premises if - (a) he has made arrangements to ensure that - (every person) other than himself and the responsible individual) looking after the children on the premises is suitable to look after the children under the age of eight: and (every person) other than himself and the responsible individual living or working on the premises suitable to be in regular contact with the children under the age of eight
 b) the responsible individual is suitable to look after the children under the age of eight, or if he is not looking after such children is suitable to be in regular contact with them:
 c) the premises are suitable to be used for looking after children under the age of eight, having regard to their condition and the condition and appropriateness of any equipment on the premises and to any fact connected with the situation, construction or size of the premises: and 
d) he is complying with regulations under Section 79C and with any conditions imposed under this part”.
3.	Ofsted may cancel registration in certain circumstances and this includes Section 79G(1)(b) which provides:
“the registration authority may cancel the registration of any person if – (b) in the case of the person registered 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”.
4.	      With effect from 1 September 2008 the 1989 Act provisions were replaced by Part 3 of the Childcare Act 2006.  Under transitional provisions (the Childcare Act 2006 (Commencement No. 5 and Savings and Transitional Provisions Order 2008, Schedule 2, paragraph 18) an appeal under S.79M made, as this appeal is, before the transfer date (1 September 2008) is to be treated as an appeal under s.74 of the 2006 Act, as though it were an appeal against a decision to cancel taken under the 2006 Act.
5.	Under s.74, on an appeal against cancellation, the Tribunal must either confirm cancellation or direct that it shall not have effect. If directing that the cancellation shall not have effect, the Tribunal may impose conditions on the registration of the person concerned, or vary or remove any condition previously imposed on his registration.
6.	The burden of proof is on the Respondent and the Tribunal will consider the issue at the date of the hearing - C v OFSTED [2002] 87.EY, approved in HM Chief Inspector of Schools v Spicer [2004] EWHC 440 (Admin).  
7.	This case covers a transitional period, with National Standards being replaced by the Early Years Foundation Stage (“EYFS”) which became mandatory in September 2008, although there is a considerable overlap in the two schemes.  For the purposes of assessing past breaches, we have decided that the correct approach is for us to consider the facts in light of the standards applicable at the time.  In terms of assessing the prospects of future compliance, we have regard to the EYFS document, since this is now the applicable standard.

Tribunal’s conclusions with reasons 

1.	We have carefully considered all of the written and oral evidence that we have heard.  That evidence leads us to a clear conclusion that the Appellant has spent over thirty five years working in child care settings of which over 30 years was spent working in nursing, adolescent or children’s homes.  The evidence and all that we saw of her in her long stay in the witness chair would support the fact that she is a conscientious, caring and dedicated person who has always wanted to ensure children in her care are in a safe, clean and emotionally supported environment.  We do not consider that this case gives rise to any material child protection issues.

2.	Having heard and read the evidence of each of the Ofsted inspectors, we accept their evidence of what they found at each inspection and where there is conflict between their evidence and that of the Appellant we have preferred their evidence to that of the Appellant as it is objective, consistent and based on a very considerable body of professional testimony. We are satisfied that when Ofsted made the decision that registration should be cancelled they had sufficient grounds to do so and the facts that they had from the various inspections that we have set out at length in the Facts Section above fully supported that decision.  It is clear to us and we find that there had been persistent and ongoing breaches of the national standards as Ofsted maintained at the time.

3.	In only one area could one be critical of the facts relied upon to show that there was non compliance with the then National Standards.  That relates to the physical premises themselves.  In that respect it appears to us that there are two particular issues, the first of which relates to the physical layout of the premises themselves.  These premises were a former warehouse or workshop and they were not ideally suited for conversion into a children’s nursery.  It is quite apparent from the registration papers, which were produced to us during the hearing, that this was well known to Ofsted at the time of registration and it appears to us unfair and unjust then to criticise the Appellant for the premises themselves during the course of many inspections.  However in contrast there were many occasions where inspections revealed faults and disrepair to the premises which were quite rightly taken into account in considering whether or not the Appellant was complying with the National Standards. 

4.	We noted the very substantial amount of input which had been placed into the nursery both by the Kent early years advisor and by the Kent SENCO.  Having decided that Ofsted had more than sufficient grounds to justify the action they took in October 2007, the issue for us was when this matter came before us in early 2009  had there been sufficient evidence of improvement to enable us to uphold this Appeal and allow the nursery to continue to operate?  There was some evidence of that improvement in the various reports from the SENCO on individual children and the improvement in their behaviour and the behaviour management techniques used by the nursery with those children in the papers.  There was similarly some evidence of improvement shown in the Ofsted October 2008 Inspection Report. 

5.	However as so often has been the case in this matter any improvement which takes place seems not to have been maintained.  We listened carefully to and challenged the evidence of what happened at the January 2009 inspection.  We are satisfied from the evidence that we heard that that inspection report fairly and accurately records the facts on which the inspection outcomes were predicated.  We have no difficulty in deciding that the outcome of that inspection and the unsatisfactory result which was given is an accurate reflection of the nursery on the day the inspection took place.  We heard no evidence to support the contention of the Appellant that the outcomes of the inspections were unfair and biased.

6.	Despite the Appellant’s own evidence we cannot see that there is any secure framework within the nursery to ensure that there is a consistent implementation of what were the National Standards and now the Early Years Foundation stage.  In her evidence to us Tracy Larnach sums up the position as follows “in my professional opinion, serious breaches are likely to continue in the future.  Whether the provision remains poor will depend on the longevity of the staff and the leadership offered by Ms A as the registered proprietor in steering the organisation.  I have considerable doubts there will be significant and lasting improvements”. 

7.	Tracy Larnach proceeds in her evidence to point us to the meeting on 27 September 2007 when the Appellant gave very clear assurances to Ofsted that all of the matters on which they were concerned had been rectified.  The subsequent inspection proved that they had not been.  Ms Larnach goes on to say “I have visited and inspected over three hundred settings including nurseries.  I have carried out inspections on more than fifty nurseries.  In my professional opinion this is probably the worst setting I have ever inspected”.  She summarised her impression of the Appellant was that “she simply doesn’t get it”.  By this she meant that although the Appellant was in general always polite to the inspector she did not understand the requirements of running a nursery and she does not appreciate the importance of the issues which were raised with her. 

8.	From the Appellant’s evidence to us and in all the evidence that she has gathered and placed before Ofsted in the course of these long running proceedings we believe that statement is a fair reflection of the position.  We have seen no evidence to show that the Appellant has the capacity to properly manage a nursery setting to ensure there is compliance with the Early Years Framework.  It is quite clear to us that from the outset the Appellant made clear at the time of registration that she would rely entirely on experienced and expert staff to ensure the level of care and education which was required.  A lot of her problems have stemmed from the fact that she has been unable to afford to recruit a sufficient number of trained staff and to retain those staff, who had true expertise.  From the Autumn 2008 onwards there is some sign she is beginning to get a team together but the fact of the matter is that the leadership of the nursery has got to come from her and although it might be argued that Ofsted should have appreciated prior to registration that there was a danger that she would delegate all compliance issues to her staff, the fact of the matter is the law is clear that the obligation rests upon her. 

9.	Even when advice has been given, which the Appellant has acted on, for example the need to have learning plans and daily schedules of activity, there is very little evidence that they can be effectively implemented and translated into good practice consistently. 

10.	Given these conclusions we have no hesitation in dismissing this Appeal. 

11.	We have also concluded that there is no compelling reason why the Restricted Reporting order in this case should be extended as we do not identify by name any child and the risk therefore of identification is remote.  The interest of the public in understanding the reasons for this decision and the background facts outweighs in our view the case for such an order. 

Order

1.	The unanimous decision of the Tribunal is that the Appeal be dismissed. 
2.	That the Restricted Reporting order will cease with effect from the 27 February 2009. 

Tony Askham (Nominated Tribunal Judge)
Jennifer Cross (Specialist member)
David Cook (Specialist member)
Date: 27 February 2009