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

CF (Appellant)

-v-

OFSTED (Respondent)

[2010] 1722.EY

- Before -

Miss Maureen Roberts (Nominated Tribunal Judge)
Mrs Sally Derrick (Specialist Member)
Ms Linda Redford (Specialist Member)

Decision

Heard on the 24th May 2010 at Stockport Magistrates Court Stockport.

The Appellant represented herself.

The Respondent was represented by Miss G Ward of Counsel instructed by Mr. Rossiter of the Treasury Solicitor. 
Prior to the hearing the tribunal read the bundle which included the pleadings from the parties, the report from the Respondent’s Regulatory Inspector, statements from the Appellant and the Respondent’s witnesses, Thomas O’Neill, Hazel Hudson-Green and Elaine White  all Senor Officers in the Compliance Investigation and Enforcement Team, for the Respondent.
The tribunal heard evidence from Mr. O’Neill, Ms White and the Appellant.

1. The Appellant appeals to the tribunal against the Respondent’s decision dated 10 February 2010 refusing to waive the Applicant’s disqualification from providing childcare.

2.  The tribunal makes an order under rule 14 (1) (b) of the Tribunal Procedure (First-tier Tribunal) (Health Education and Social Care Chamber) Rules 2008 that the Appellant in these proceedings shall be referred to as CF. The order prohibits the disclosure or publication of any matter is likely to lead members of the public to identify the Appellant or any members of her family.
The background
3. The Appellant has worked at a Pre-School located in her local primary school for nearly 12 years. She has an NVQ level 3. In July 2008 she was appointed as the manager for the pre-school and is about to complete the first year of a university course; a foundation degree in Early Years Education.
4. The Appellant is a married woman with two children aged 10 and 14. On the evening of the 25 April 2009 the Appellant was involved in an argument with her husband. Both parties had consumed two beers and half a bottle of Cava wine each. The argument was about the behaviour of one of the children and the Appellant admits that she lost her temper because her husband would not stop talking and that she hit him with the empty wine bottle. The bottle did not break but the blow caused severe bleeding. The children were in the house, but not present in the room, when the incident happened. The older child called for an ambulance and the Appellant's husband was taken to hospital.
5. The ambulance service notified the police who came to the property that night and arrested the Appellant. She was taken to the local police station and held overnight. On 26 April 2009 she was cautioned for an assault occasioning actual bodily harm. This is an offence mentioned in paragraph 2 of schedule 4 to the Criminal Justice and Courts Service Act 2000. It is a matter that leads to an automatic disqualification. The Appellant has always maintained that she was unaware of the caution. The incident was reported to the Respondent by the Local Safeguarding Children Board. After the report to them the Respondent discussed the incident and other matters to do with her work with the Appellant. In the summer of 2009 they conducted a Suitable Person interview, in respect of her appointment as the manager. All these matters had been concluded satisfactorily and the interview (17.8.2009) concluded that she was a suitable person. At a further visit to the preschool on 20.11.2009 the Respondent’s officer recorded, “Ms F has been deemed suitable following our updated checks”. 
6. As part of the Suitable Person procedure a CRB check was requested. The caution came to light in the CRB check when it was received on 15 January 2010. The Appellant immediately stopped working when she was told she was automatically disqualified. The Appellant requested a waiver from the disqualification. The Respondent’s Regulatory Inspector had a lengthy interview with the Appellant on the 20 January 2010. The report from the Respondent’s Regulatory Inspector concluded, “I feel it would be proportionate to waive the disqualification for non domestic childcare. I feel that if she, (the Appellant), were to work for a different setting she would need to reapply for a waiver and we would need to consider that waiver request at that time.”
7. The Respondent’s reviewing panel met on 9 February 2010. They had all the documents before us except the computerised records and reports by the local officers for the months of July and August 2009 when the incident was investigated and the Suitable Person interview conducted. Subsequently they saw those reports and recorded that it did not alter their decision. The panel concluded that the disqualification for the applicant was not to be waived.
8. The decision of the panel read as follows.
“The panel members, individually and collectively, expressed concern that there has been a history of situations where the police have had to be called to domestic disputes within the family home.
Rather than reduce over time, the situation escalated to the point where Mrs. F recently assaulted her partner with a weapon, in front of their children. This occurred in an admitted fit of anger and she has acknowledged that it was their 14-year-old son who took control and had to take responsibility for calling the emergency services. 
The panel is not satisfied that she has shown an ability to control her reactions in any situation where she is provoked to anger and as such we do not agree to waive the disqualification.”
 It is against this decision that the Appellant appeals.

The law
9. The appeal is brought under section 74(2) of the Childcare Act 2006 as provided by Regulation 10 of the Childcare (Disqualification) Regulations 2009 (the Disqualification Regulations).
10. Under regulation 4(8) (a) of the Disqualification Regulations, a person is disqualified if they have been found to have committed an offence against a person aged 18 or over, mentioned in paragraph 2 of schedule 4 to the Criminal Justice and Courts Service act 2000. The offence of an assault occasioning actual bodily harm is such an offence.
11. By virtue of section 2(2) of the Disqualification Regulations the fact that a person has been given a caution in respect of an offence by a police officer will lead to a finding that that person is found to have committed the offence.
12. Regulation 10(1) provides the Respondent with the discretion to waive the disqualification for the purposes of employment in connection with the provision of early years provision.
13. In the case of MM v OFSTED [2006] 846. EY the tribunal held that the burden is on the Appellant to prove that, on the balance of probabilities, consent should have been given to waive the disqualification. We agree with this approach.
Evidence to the tribunal
14. Although the Respondent outlined its case and gave evidence first at the hearing we are recording the Appellant’s evidence first in this decision. This reflects the fact that we had read the grounds of her application for the waiver, her grounds of appeal and the burden of proof.
15. The Appellant acknowledged that there was alcohol involved in the incident on 25 April 2009. She had outlined what had happened in her application for the waiver and confirmed it to the tribunal. On the evening in question, the family had had a takeaway meal and later in the evening she and her husband had had a petty argument about her husband's nagging of their oldest son. She said that she ‘saw red’ and got very upset. She picked up the Cava bottle and swung it at her husband. When the she realised she had hit him and that he was bleeding she said she was ‘frozen’ with remorse and concern. The children were not in the room when the incident happened; they were upstairs. She agreed that her older son had called the ambulance.
15. The Appellant said that while she had had a drink (the amount is noted above), she was not drunk. The police had taken her to the local police station. They interviewed her and then kept her in a cell overnight. She reported that the police said they were giving her time to cool off. She could not remember being offered legal advice and it was evident that she had not received any legal advice. She said she could not remember being the given a caution and had had no paperwork in respect of a caution given to her at the time or sent to her. This is corroborated by her husband who said in written evidence ‘I don’t know if C received a caution – she never mentioned it’. The family had a visit from the child welfare services after the incident and no further steps were taken by them.
16. When the Appellant was asked about the previous incidents she said that the first time the police were called happened in 1999 when the family  were living in a much smaller house. The neighbours called the police because they had heard shouting.  On that occasion she had had a drink but was not intoxicated and in fact the argument had been about her not wanting a drink. The second incident had happened in December 2007 or December 2008. The police had been called when she and her husband had a blazing row but that no violence had been involved. It had happened after a Christmas party and after some drinking in the morning at the weekend.
17. The Appellant explained that she had been working with children and the pre-school group for nearly 12 years and had been a manager for the past year. She said she had been interviewed by Ofsted after the incident and had had her Suitable Persons Interview in August 2009. Following the interviews that took place regarding of the incident of April 2009 and the Suitable Person interview, the Respondent recorded that it was satisfied that she was a suitable person. She knew there was criticism of her not mentioning the caution to the Respondent. As noted above the Appellant said that she did not mention the caution because she was unaware of it until she saw it on the CRB check in January 2010.
18. She went on to express her remorse about what had happened in the incident of April 2009; she accepted that she had been totally in the wrong, that her behaviour was unacceptable and that changes needed to be made in the family to make sure that nothing like that happened again. She said that in the past she had only consumed alcohol at a weekend or special occasion and that she had now made the decision not to drink at all. She said that as a family they had resolved to talk about things more. The Appellant is very proud of her two children who are doing well in school and in other activities; she said specifically that she wanted to be a good role model for them and did not want them seeing her consuming alcohol. She considered that she came from a close-knit family and whilst there would be arguments from time to time she feels has a lot of support from the extended family around her and her friends.
19. The Respondent’s panel and the tribunal had seen a number of testimonials and letters from colleagues and parents speaking very highly of the Appellant in the workplace. The Appellant herself said that she was passionately committed to working in child care and loved her job. She said she had obtained her NVQ Level 3 and had now started university course and was attending at the university locally; she has done well in that course. Clearly if the disqualification is not waived she will have to stop working and also cease her study as much of it is practice-based. 
20. Finally the Appellant acknowledged that she understood why the Respondent would be concerned about the incidents and her behaviour. In her own job she could see why someone would be concerned; she accepted that where children are looked after by professionals, they must act with the highest standards.
21. All three members of the Respondent's panel attended the hearing and we heard from two of them: Mr. O'Neill and Ms White. Mr. O'Neill confirmed the procedure of the panel and indicated that it met fortnightly to consider between 6 and 10 cases on each occasion. 
22. He said that the panel had been concerned that this was the third incident where the police have been called. The panel were under the impression that the incident had taken place in front of the children. He accepted that it had not taken place in front of the children but that the children had been on the premises. He told the tribunal the information which the panel had, regarding the previous incidents when police had been called. The first time neighbours had heard shouting and called the police to attend. On the second occasion it appeared that both the Appellant and her husband were intoxicated and had had an argument. On that occasion the Appellant had phoned the police. On the last occasion, which was the incident which led to the caution, the police had not been contacted by the family or neighbours but by the ambulance service.
23. Mr. O’Neill took the view that the fact that the children were in the house when a serious assault took place was of concern and potentially damaging to them. He believed that the Appellant had problems with a lack of control when she had care of her own children and that it was not appropriate for her to continue to have care of children in her work setting. He accepted that all the incidents seemed to involve the consumption of alcohol and, whilst he accepted that there was no evidence that there had been any effect on the Appellant's work with children in the pre-school, he considered that there could be a risk to the welfare of children caused by her failure to control her anger.
24. Mr. O'Neill said that he considered that the Appellant was fully aware of the caution she had been given in the police station and was concerned that she had not disclosed it to the Respondents prior to it coming to light in the CRB check. He noted the steps the Appellant had taken to address the situation however he thought there should be a further passage of time with no concerns being raised; to show that the pattern of behaviour had been reversed.
25. Ms. White gave evidence to similar effect. She said that she viewed the incident in April 2009 as a very serious matter which called into question the Appellant's integrity to be in a position of responsibility with children. She said, she realised now that when the incident took place, the children were in the house but were not present in the room. The third incident was considered by the panel to be an escalation in the history of incidents where the police have had to be called. In addition the Appellant had not produced any evidence that she had taken help or advice in respect of alcohol consumption. Ms White was not convinced that matters would improve. She said that the April 2009 incident showed poor judgment and was concerned that children had been present on the premises.
Conclusions and Decision
26. The tribunal accept that the Appellant is a strong and forthright woman. In her evidence to us it was clear that she accepted why people would be concerned about the incidents that have occurred in her domestic circumstances and the possible impact on her work. The facts of what had occurred in April 2009 were not in dispute and the Appellant was clearly remorseful about what she had done. She said on more than one occasion ‘if I could turn the clock back’ I would not behave like that again.
27. Whilst the caution she received is a matter of record we accept that she was genuinely not aware that she had received a caution until she saw a copy of the CRB check in January 2010. She did not have legal advice when she was in the police station. Her belief is understandable bearing in mind that the matter did not go to court and she knew that her husband was not going to press charges. She concluded that she had been interviewed, kept in a cell overnight, told to cool off, sent home in a taxi, and that this was the end of the matter.
28. The tribunal further accept her genuine commitment to her work and to further her own education.
29. Whilst we note the reasons from the panel for not agreeing with the Regulatory Inspector (RI) and we appreciate that they have an independent role we find that their decision is not a fair reflection of the information they had. They talk of a’ history of situations’ when the police had to be called; when in fact there were three occasions (1999, 2007/8 and 2009). They referred to escalation and an assault with ‘a weapon’ and they should have made it clear that this was an empty wine bottle. The decision said that the matter had taken place in front of the children; this was not correct and had clearly influenced their decision. We accept that this error was corrected at the tribunal hearing. The conclusion that the Appellant had not shown an ‘ability to control her reactions in any situation where she is provoked to anger’ appeared to the tribunal to be an overstatement.
30. We find that the conclusions of the Respondent’s Regulatory Inspector (RI) who met and interviewed the Appellant are ones that we would endorse from the evidence that we have read and heard. They were as follows.
“I knowledge that the incident is less than a year ago -- however I feel through the applicant's response and her interview with RI that she has learnt a lot from the incident and has made lifestyle changes and behavioural changes to prevent a re-occurrence of such an incident.
SSD had no concerns and took no further action in respect of the care to her own child. In addition her home is not the child care setting.
She appears genuinely committed to providing care to children and there have been no previous concerns, she has a good awareness of Early Years Foundation Stage and safeguarding issues and is completing a degree in child care to further improve her own practice.
Although she admits the offence and it is disqualifiable, she was issued with a caution by the police and this did not go to magistrates or crown court for a conviction -- in addition the offence is not against a child.
She demonstrates through discussion with RI a good understanding of potential triggers in respect of her home life/disagreements and how she will overcome them in future to prevent re-occurrence of such a situation.”
31. We noted that the RI had suggested a condition that the waiver continue whilst the Appellant remained in non domestic childcare. In all the circumstances we are allowing the appeal without that condition. Our reasons for this are that firstly over a year has elapsed since the incident and there have been no concerns about the Appellant’s behaviour in that time. Secondly, it is evident that the Appellant is very committed to remaining in her present post.  Finally, in the event of any change of job by the Appellant, the CRB check would show the caution and the Appellant would have to be interviewed by a prospective employer and in certain circumstances by the Respondent.
Accordingly our unanimous decision is that the appeal is allowed. 
APPEAL ALLOWED. 
ORDER:  Ofsted do give its consent in writing to waive disqualification of CF from providing child care.

Maureen Roberts
Sally Derrick
Linda Redford
28th May 2010