IN THE FIRST TIER TRIBUNAL
HEALTH, EDUCATION AND SOCIAL CARE CHAMBER
[2009] 1670.EY

Between:

                                           DONNA MARIE LAMBERT                           Appellant
 
and

                            OFFICE FOR STANDARDS IN EDUCATION         Respondent

Before:
Mr Andrew Lindqvist
Ms Heather Reid
Dr Surendra Kumar

Heard on the 15th and 16th November 2010

The appellant was represented by Mr. J. Crosfill of Counsel.
The respondent was represented by Mr. S. Murray of Counsel instructed by the Treasury Solicitor.

1. The appellant, Mrs Donna Marie Lambert, appeals against the refusal of the respondent’s Chief Inspector on the 20th October 2009 to waive her disqualification from being employed in childcare, and against the Chief Inspector's decision of the 18th December 2009 to grant her a limited waiver.  The appellant's contention is that she should have been granted an unconditional waiver on the 20th October 2009.

2. Mr Murray, for the respondent, suggested that the appeal against the first decision (refusing any waiver) had been overtaken by the amendment of the grounds of appeal on the 5th February 2010.  Mr Crosfill for the appellant, wished to keep appeals alive against both decisions because of a possible argument that the automatic disqualification regime of the Childcare Act 2006 was incompatible with the Human Rights Act. The Tribunal found itself unable to read the amendment of the grounds of appeal as a withdrawal or abandonment of the appeal against the first decision and saw no reason to deprive the appellant of any possible further argument and accordingly treated the proceedings as an appeal against both decisions.

3. The Tribunal heard oral evidence of Mrs Karen de Lastie and Mr William Good for the respondents, who, by agreement, although the appellant carried the burden of proof, through Mr Murray opened the case and called its evidence first, and of Mrs Lambert the appellant and Mr Tony Lambert, her husband.  It was agreed that the hearing was effectively de novo, and that the Tribunal ' stood in the Chief Inspector's shoes ' and should make a fresh decision rather than conducting an examination and review of the decisions under appeal.

4. There was very little factual conflict for the Tribunal to resolve; it is perhaps right to record the Tribunal's impression of the two major witnesses, Mrs de Lastie and the appellant. Both struck the Tribunal as honest and accurate witnesses, Mrs de Lastie being perhaps a little defensive and unwilling to make concessions.  The criticism that she was unnecessarily fearful of using the word ' yes ' had some justification.  

The Law

5. The appellant was employed as a manager of Acorns Preschool in Great Yeldham, Essex.  On the 20th June 2009 she was cautioned by Essex Police for an offence of assault occasioning actual bodily harm.  According to reg 2(2)(d) of the Childcare (Disqualification) Regulations 2007, the appellant was, by reason of the caution,          ' found to have committed ' the offence.  The offence of assault occasioning actual bodily harm is mentioned in paragraph 2 of schedule 4 to the Criminal Justice and Court Services Act 2000, and therefore under regulation 3(1) and (8), the appellant is disqualified from registration.

6. Regulation 8(1) gives the Chief Inspector the power to waive the disqualification and regulation 8(2) makes it clear that a waiver may be granted either unconditionally or to a limited extent. The regulations themselves give no guidance as to how the Chief Inspector’s discretion to grant a waiver is to be exercised, but guidance is to be found in Ofsted's Compliance, Investigation and Enforcement Handbook (Disqualification).

7. Amongst the matters to be considered are,  a) the risk to children,  b) the nature and severity of the offence,  c) the age of the offence,   d) repetition of the offence,  e) the attitude and explanation of the disqualified person,  f) any other information and 
g) any mitigating circumstances.

8. It should perhaps be noted that during the hearing reference was made to the Childcare (Disqualification) Regulations 2009, which did not come into force until the 1st September 2009 and which therefore do not apply to the appellant’s offence and caution of the 20th June 2009.  It was however accepted that the relevant provisions of the 2007 and the 2009 regulations are in identical terms.

The background

9. The appellant is now 36 years old.  On leaving school, she trained as a beauty therapist for about a year, then began a series of jobs, all of which were related to caring to the young, sick, vulnerable or disadvantaged.  She worked as a care assistant in care homes, and as an auxiliary nurse, and after that with adults with learning difficulties.  That was followed by work with children, first as a Beaver Scout leader, then with a mother and toddler group and, after completing a course at NVQ level 3, at nurseries of which Acorns Preschool was the third or fourth.  It was accepted that until the events with which the Tribunal is concerned, there had been no complaint about the appellant's work or conduct.

10. On the 20th June 2009, the appellant with her husband Tony, their two children aged 13 and 6 and the appellant's parents, Keith and Kathleen Dungate were staying at Mrs Dungate's caravan at Clacton on Sea. At about 1:30 a.m. there was a confrontation between the occupants of the caravan and a group of three adults and a 12-year-old boy, who were passing the caravan on their way from the site club to their own caravan.

11. The accounts of the confrontation differ very considerably and it will be necessary to return to the circumstances.  It is, however, common ground that the appellant released a glass from her grasp and that it subsequently struck a 50-year-old man (one of the four passers-by), causing him injury to his face.  Two police officers attended and the appellant was arrested and taken to Clacton police station.  There, after receiving advice from the duty solicitor, she agreed to accept a caution and duly signed the appropriate form, having spent the night in a police station cell.

12. On the 26th June 2009 the appellant, mindful of the need to inform her employer about the incident, reported it to her colleague and co-manager, Ms Sophie Reddan.  The appellant told Ms Reddan that she had been reprimanded, and that the matter was now closed and she could return to work.  They jointly decided that the only other person who might be concerned was Mrs Jane Pinnock, the chairman of Acorns Preschool Committee, but that, as Mrs Pinnock had family problems at the time it was not necessary to trouble her with it. When Ms Reddan later mentioned the matter to Mrs Pinnock, the latter understood and approved of the decision not to trouble her at the time.

13. The appellant therefore returned to her job, until, presumably, the school summer holidays intervened.  On the 17th August 2009, Essex Police in accordance with Home Office procedures, reported the appellant's caution of the 20th June 2009 to Ofsted.  The letter reached the Midlands Compliance, Investigation and Enforcement Division of Ofsted on the 3rd September.  On the 7th September, Ofsted telephoned the appellant to discuss the situation with her.  She was evidently surprised at the report of a caution, being under the impression that the whole matter had been dropped.  However, the appellant agreed to inform Mrs Pinnock, and it was established that the appellant was indeed disqualified.  She was advised about applying for a waiver and the forms were sent to her on the 8th September.  Mrs Pinnock took advice to the effect that the appellant could fairly be dismissed as she was disqualified, but she was reluctant to dismiss the appellant until the waiver application had been dealt with.  Mrs Pinnock confirmed that in the interim, the appellant was suspended.

14. The appellant's waiver application was considered on the 15th October and a decision was made to refuse it.  A major factor in the decision appears to have been that the caution had been issued in the very recent past.  A letter was sent to the appellant on the 20th October informing her of the decision, though she was informally told by telephone before the letter arrived

15. The appellant, still somewhat confused, telephoned the Ofsted helpdesk to ask what, in practice, the disqualification meant (it having not been waived) and was told that it meant that she could work in childcare, but not as a manager.  The appellant asked her informant to check that that information was indeed correct and she received the requested confirmation.  Much relieved, the appellant returned to work in a non-managerial role.

16. On the 5th November, Mr William Good of the Compliance, Investigation and Enforcement Team wrote to Mrs Pinnock to inform her of the refusal of a waiver and that it would be an offence to employ the appellant in connection with the provision of childcare. Mr Good’s letter evidently came as something of a shock to Mrs Pinnock, who had continued to employ the appellant on the basis of Ofsted’s earlier advice. She wrote to the appellant immediately on receipt of Mr Good’s letter, summoning her to a disciplinary hearing on the 11th November.  Her letter does not specify the appellant’s offence, but when Mr Lambert telephoned to enquire, he was told that it was gross misconduct.

17. The appellant made further enquiry of Ofsted about its conflicting communications, and, on the 23rd November, received an apology for the erroneous advice that she could work in a non-managerial role.  An Ofsted inspector explained the circumstances to Mrs Pinnock, and that, presumably, saw the end of the disciplinary proceedings.

18. The appellant, however, remained disqualified and suspended.  Mrs Pinnock further considered the position and on the 4th December, wrote to the appellant that section 76(3) of the Childcare Act 2006 made it an offence to employ disqualified person, even if that person were suspended.  For that reason, Mrs Pinnock gave the appellant notice of termination of her contract of employment.

19. The appellant was reluctant to accept that.  She had spoken with another Ofsted officer on the 26th November and was told that, so long as she was not working with children or in connection with the business, the committee at Acorns Preschool could legally await the outcome of the appeal and continue the appellant's suspension. In the light of that information, the appellant telephoned Ofsted again on the 8th December after receipt of Mrs Pinnock's letter ending her employment.  It will be necessary to examine later the details of her enquiry; the gist of it was whether it was illegal for Acorns Preschool to employ her if she were suspended and the answer given was that Ofsted would take no action so long as the appellant was not working with children at the setting and was not involved with setting.

20. Armed with that information from Ofsted, the appellant wrote to Mrs Pinnock on the 9th December, appealing against her dismissal and asking her to defer any decision until the outcome of her appeal against the Chief Inspector's refusal to waive was known.  On the 18th December, Ofsted granted the appellant a limited waiver; it did not apply to registering as a childcare provider, or as part of an organisation set up to provide childcare or to having management involvement in the provision of childcare.  On the basis of that limited waiver, Ofsted invited the appellant to withdraw her appeal against the refusal of the 20th October.

21. The appellant sought clarification of the meaning of the limited waiver and was told by Mr William Good on the 23rd December that she could work in a preschool setting as a deputy but not as a manager.  The appellant wrote to Mrs Pinnock with that information and wrote to inform Ofsted and the Tribunal that she intended to continue with her appeal.

22. On the 7th January, Mrs Pinnock wrote to Ofsted to seek clarification of the limited waiver. Her particular query related to the situation where the appellant was one of two staff members on duty and the other had to leave temporarily.  On the 11th  January, the appellant telephoned Ofsted for confirmation that she could work as a deputy, though not as a manager and eventually learned that she could not work as a deputy if, at any time, it involved working as a manager.  That was contrary to the view expressed by Mr Good on the 23rd December -- Ofsted's letter of the 19th February 2010 contains an apology for any lack of clarity. On the 2nd March, Mr Good replied to Mrs Pinnock's enquiry of the 7th January, saying that the appellant could be left in sole charge of children provided that the management of the setting was in the hands of another staff member who was elsewhere on the premises. By that time, it appears that the appellant's employment had irrevocably ended.  Her appeal continued.

23. On the 5th February 2010, The Principal Judge of the Tribunal gave directions for amendment of the grounds of appeal and an amended response (and further matters)  in the light of the grant of the limited waiver.  The appellant’s amended grounds make it clear that she is appealing against the limited waiver and contains no suggestion that she abandons or withdraws her appeal against the refusal of the 20th October 2009.

24. In its amended response, Ofsted supports its decision to grant a limited waiver  only, on three grounds, a) the gravity of the offence for which the caution was given, b) the appellant's failure to inform her employer or Ofsted and c) the appellant’s misleading Ofsted on the 8th December by failing to make it clear that she had been dismissed rather than suspended.

25. It is necessary to examine these three matters in some detail.

The gravity of the offence

26. As has been stated, there are widely differing accounts of the confrontation which occurred on the 20th June 2009 at St Osyth Beach Holiday Park. According to the 50-year-old male who alleges that he was struck by the glass (anonymously and neutrally referred to as ' the aggrieved '), he was going from a concert back to his caravan with a male friend, a female friend and her 12-year-old son, when, at about 1:30 a.m. they heard shouting and screaming coming from a caravan. A child ran from the caravan and a female and a male appeared in the doorway.  The aggrieved’s adult friends spoke with the couple in the doorway, he himself took no part in the discussion.

27. The woman in the doorway went back into the caravan and reappeared with a glass in her hand, though the aggrieved cannot recall whether she had the glass before she went back inside.  The woman then threw the glass and it hit him just below the left eye causing a 2 cm cut which started to bleed.  The aggrieved remembers saying,  ' That's going to cost you five grand '.  He recalls the woman's husband as remaining calm and collected, he also remembers an older couple coming out of the caravan.

28. The Police Constable who attended says that he and his colleague were called by radio and on arrival saw a group of people in the car park.  One of the males from the group identified himself, he had, said the police officer, a large bruise and graze on his left cheek and stated that he had been struck by a glass which was thrown from the caravan, which he indicated. Another person in the group said that it was the female from the caravan who had thrown the glass, and also had a baseball bat.  The police officers went to the caravan to be met by a male who appeared drunk.  A female appeared, who fitted the description of the thrower of the glass, and at 1:51 a.m., the officer arrested her on suspicion of assault occasioning actual bodily harm and 20 minutes later seized three juggler’s batons.

29. The appellant's account of the incident is different.  She says that she and her husband, her parents and her children were in the caravan.  The children were still up though it was very late, as they had taken part in talent show. The appellant was giving the children some food and drink before bed, when they heard a noisy group of people nearby. The appellant's husband and father went out to ask the group to be quiet, but the response was drunken abuse.  The appellant went to the door (which was open because it was hot), and said, ' Stop it, stop it ', whereupon two men from the group came towards the caravan shouting obscenities at her.

30. The two men then approached the caravan, one came up the steps towards the door and grabbed the baby gate in the doorway.  The appellant, in seeking to ensure that the gate was in position so as to deny the intruder access, cast away the glass she was holding (it contained a drink for her younger child) in order to have two hands free for the gate.  It was the second man behind the man grappling with the gate, who claimed to have been struck by the glass.  The two men walked off, leaving the appellant to restore calm in the caravan.

31. According to the aggrieved, it was the 12-year-old who called the police.  The appellant was arrested and taken to Clacton police station where she was detained overnight and visited by a duty solicitor the following afternoon.  The appellant was advised that she could accept a caution or deny the allegation.  In the latter event, everyone would be called to the police station for questioning.  She readily agreed to accept a caution and, duly reprimanded, left the police station at about 5:30 p.m. with the advice that she should inform a member of the management team at work about a caution.

32. The appellant's account is supported by her husband and her mother and father, all of whom refer to the appellant holding the baby gate in order to prevent an incursion into the caravan.

33. It is quite clear to the Tribunal that the prospect of a detailed and possibly protracted and inconvenient investigation into the events of the early hours of the 20th June did not commend itself to any of those involved.  The police faced the prospect of interviewing half a dozen or so witnesses, many of whom were alleged to be the worse for drink, and whose accounts differed widely.  The aggrieved’s bleeding cut was not noticed by a police officer a few minutes after it was alleged to have been inflicted, but the officer noticed bruising, highly unlikely to have arisen in the few minutes between incident and observation.  Moreover, no one suggests that the glass was broken; the likelihood of an intact glass from which a child was about to drink inflicting a cut must be extremely low.  The appellant did not want her family called in for questioning but wanted to resume her holiday with them without further disruption.  It is possible that even the aggrieved and his companions, in the cold light of the next day, lacked enthusiasm for participation in a prosecution.

34. The idea of a caution was therefore likely to have been greeted with approbation on all sides.  It is apparent that it was conducted without great attention to detail.  The nature of the actual bodily harm to the aggrieved is not recorded, the caution form records only the offender's details and the identity of the cautioning officer.  The impact of the whole process on the appellant was such that, only 10 weeks later, she did not recall that she had been cautioned at all until it was confirmed by Essex Police.

35. It is the Tribunal's view that no conclusion can safely be drawn about the gravity of the offence.  The evidence leaves some room for doubt about whether the glass ever struck the aggrieved’s face at all and very considerable room for doubt about any injury inflicted if it did strike him.  If those two assumptions are made in the aggrieved’s favour, it still appears likely that the aggrieved and his companion were acting aggressively in trying to enter the caravan and that the appellant may well have been acting in defence of herself and her children when the injury occurred.  The respondent, understandably, relied heavily on the appellant's admission by accepting the caution, but examination of the incident casts doubt on whether her admission was a true reflection of the circumstances

The appellant's failure to inform Ofsted or her employer

36. The Tribunal accordingly finds that, in the sphere of crime and punishment, the altercation of the 20th June was rightly seen as a matter of relatively small weight.  That undoubtedly led to a failure to appreciate its consequences under, in particular, the Childcare (Disqualification) Regulations 2007.  The automatic disqualification of the appellant under those regulations meant that she could not return to her job, indeed that as things stood, her career in childcare was effectively at an end.  It is clear that the appellant was unaware that that was the case, and it is not reasonable to hold the duty solicitor at fault for not being familiar with the impact of a caution under the regulations relating to childcare.

37.  The appellant, however, had been told at the police station that she should inform her employer.  Her employer was in fact, a management committee and the point of contact seems to have been the chairman, Mrs Jane Pinnock. On her return to work on the 26th June 2009, unaware of her automatic disqualification, the appellant told her colleague and co-manager, Ms Sophie Reddan what had happened.  According to Ms Reddan they discussed the incident in detail and the appellant informed her that she had been reprimanded for the incident, that no further action was to be taken and that it would have no impact on her work, the latter, as the Tribunal finds, being the appellant’s genuine but erroneous understanding of the situation.

38. Ms Reddan and the appellant decided that the only other person who should perhaps be made aware of the situation was Mrs Jane Pinnock, but they both knew that she had serious family problems to contend with, and they decided that it was not necessary to add to her burdens.  When, later, Ms Reddan did tell Mrs Pinnock, she said that she understood and fully supported the decision not to trouble her at the time.

39.  It is clear that Mrs Pinnock was not aware of the impact of the caution until Ofsted contacted her after receiving information from Essex Police. There is nothing to suggest that the appellant was aware of her duty to inform Ofsted. The appellant is criticised for her lack of awareness of her responsibilities.  She should, it is said, have known instinctively, if not by knowing the rules, that admitting a serious criminal offence might well affect her work and that her employer should be informed.  It was an inadequate response to discuss the matter with a colleague and to reach the conclusion that it need go no further.

40.  The Tribunal finds some weight in that criticism.  There is a plain duty to be aware of the rules under which one works.  While a detailed knowledge of the regulations is not to be expected, an employee in a position of trust should know enough to know when further investigation, reporting or action may be required and should take steps in the appropriate direction.  On the other hand, it has to be borne in mind that the criminal law aspects of the incident were played down to a very considerable extent, that the intricacy of the regulations is such that the respondent itself gave the appellant wrong advice about the impact of the caution on her employment, when she was told (when disqualified without waiver) that she could continue to work but not as a manager and that there was much doubt and debate about the practical implications of the limited waiver granted on the 18th December 2009.  The Tribunal also notes that paragraph 5 of the caution form, says '  you (the police) might tell my employer '.

41.  In all the circumstances, although there is culpability on the appellant's part, the Tribunal finds that it has very little weight when considering her suitability for a responsible position in childcare in the light of the seven criteria set out in the handbook.

Misleading Ofsted

42.  The appellant, who had been dismissed by Acorns Preschool on the 4th December 2009, wanted to preserve her job and her career.  To that end she hoped to persuade her employer to keep her on their books until the appeal was heard, but as she was disqualified she could not do any work in childcare (and was suspended from all work by her employer until her dismissal). The appellant telephoned Ofsted on the 8th December 2009 to ask whether disqualification and suspension would make it illegal for her employer to continue to employ her.  The answer to that question is clearly 
' yes ',  by reason of section 76 (3) and (4) of the Childcare At the 2006.

43.  The complaint against the appellant is that when she made that enquiry on the 8th  December, instead of making it plain that she had been dismissed four days earlier, she pretended that she was still employed and was merely suspended.  The evidence against the appellant is contained in a short note of the conversation made by Mr William Good of Ofsted at 09.56 on the 8th December. The material part reads 
' Donna wanted to check whether it (i.e. her being employed) was illegal, even though she is suspended.  ' 

44.  In response to that enquiry, Mr. Good wrote a letter (wrongly dated 8/9/2009 -- probably written on the 8th December) in which he said ' We would not take action against the setting at this stage as long as you are suspended, not working with children at the setting and are not involved with the setting '. In a witness statement made on the day of the hearing and admitted in evidence, Mr Good said that he recalled the conversation, the appellant stated that her employer was concerned about the fact that she was still employed by them.

45.  The appellant's evidence was that her enquiry was hypothetical, she did not say that she was suspended but asked if it would be illegal to employ her if she were suspended.

46.  In the Tribunal's view, the point is almost trivial.  It is not suggested that the appellant could have gained any advantage at all by her alleged deception.  Her actual words may well have been, ' Is it all right for them to employ me if I'm suspended?’  
whereas strict observation of grammatical nicety would have prescribed ' Would it be all right to them to employ me if I were suspended?  '.  It may therefore be that Mr Good was misled by the appellant's use of the indicative rather than the subjunctive in her subordinate clause, but any claim that this was a deliberate deception on the appellant's part struck the Tribunal as disingenuous.  The Tribunal has no doubt that the appellant's enquiry was honest and without deceptive intent.

47.  In summary, the Tribunal finds that no reliable conclusion about the gravity of the offence can be drawn from the evidence, that the appellant is culpable in respect of her failure to report the incident but not in a way or to an extent that affects her suitability to provide childcare, and that there is no substance at all in the suggestion that she tried to deceive Ofsted on the 8th December 2009. For those reasons the Tribunal takes the view that the unfortunate incident of the 20th June 2009 and its various consequences should not have any impact at all on the appellant's work with children in any capacity, be it managerial, supervisory or ' hands on '.

48.  The Tribunal therefore, unanimously and, it is right to record, without any hesitation at all, allows the appellant's appeal against the respondent's decision of the 20th October 2009 to refuse to grant a waiver. The Tribunal finds that a full and unconditional waiver under regulation 10(1) of the Childcare (Disqualification) Regulations 2009 (reg. 8 of the 2007 regulations) is appropriate from that date.

49. At Mr Crosfill’s request, the Tribunal directs a detailed public funding assessment of the appellant’s costs.

50.  The Tribunal further directs that the Restricted Reporting Order under Rule 14(1)(b) made by the Principal Judge on the 5th February 2010 remain in force. It is accordingly prohibited to publish (including by electronic means) in a written publication available to the public, or to include in a relevant programme for reception in England and Wales, any matter likely to lead members of the public to identify any child. 

Andrew Lindqvist
Heather Reid
Surendra Kumar

30th November 2010