Chief Inspector of Schools v Spicer

This is an appeal by Her Majesty’s Chief Inspector for Schools against the decision of the Care Standards Tribunal given on 24 September 2003 allowing the Respondent’s appeal against the cancellation of her registration as a child minder under Part XA of the Children Act 1989 as amended by the Care Standards Act 2000. I shall refer to the Children Act 1989 as amended as “the Act”, to Her Majesty’s Chief Inspector for Schools as “the Chief Inspector” and to the Respondent as Mrs Spicer. I was told that this is the first appeal to the High Court from a decision of the Care Standards Tribunal.

Before Part XA of the Act came into force, child minders and day care providers were regulated by local authorities under Part X of the Act. The Act constituted the Chief Inspector as the registration authority for England for (among others) child minders, and imposed on him regulatory functions in relation to child minders. He is supported in the exercise of his statutory functions by the Office for Standards in Education (“Ofsted”). The Act defines child minding as looking “after one or more children under the age of eight on domestic premises for reward”: section 79A(2). Section 79D(1) prohibits a person from acting as a child minder in England unless he is registered for child minding by the Chief Inspector. Section 79C empowers the Secretary of State for Education and Skills to make regulations governing the activities of child minders on premises in England. Regulations made under that section may deal with among other matters suitability to look after or to be in regular contact with children under eight; qualifications and training of child minders, the maximum number of children who may be looked after, the suitability of premises and equipment and the keeping of records and the provision of information. A person wishing to be registered as a child minder must give prescribed information about prescribed matters and any other information that the Chief Inspector reasonably requires. Section 79F provides, so far as is relevant:

The registration of a child minder may be cancelled by the Chief Inspector under section 79G or suspended under section 79H. Refusal of registration, cancellation of a registration under section 79G, and steps taken by him in relation to the conditions of a registration, are the subject of the procedural steps required by section 79L:

As can be seen, section 79L imposes a delay before the steps referred to in subsection (1) can take effect. The powers of the Chief Inspector in cases where he considers that action should be taken urgently are contained in section 79K:

Appeals against cancellation of a registration, action taken with regard to conditions and an order made under section 79K are provided for in section 79M:

These Regulations, to which I shall refer as “the Regulations”, require a registered childminder to comply with their requirements, to meet the requirements of the National Standards for under-eights day care and child minding published by the Department for Education Skills, and to have regard to specified supporting criteria. Regulation 4(3) provides that any allegation that a registered person has failed to comply with the requirements of the Regulations, or those of the National Standards, or to have regard to the criteria, may be taken into account in any proceedings under Part XA of the Act. Regulation 6 requires a registered person to notify the Chief Inspector of the occurrence of specified events, such as changes in any person looking after children on the premises and any accident to a child. Regulation 7 requires a registered childminder to keep specified records. Regulation 8 authorises the Chief Inspector, if he considers that a registered person has failed or is failing to comply with the requirements of regulation 4(2) or regulation 7, to give notice to the registered person specifying his failure, the action he should take to comply, and the period during which he should take that action. Regulation 8(2) requires a registered person to comply with the terms of the notice within the period specified in it. A registered person who, without reasonable excuse, fails to comply with the requirements of regulation 5 (which prohibits corporal punishment) or of regulation 6 or with a notice served under regulation 8 is guilty of an offence.

Paragraph 2.2 of the National Standards is as follows:

6 children under 8 years of age;

Of these 6 no more than 3 children may be under 5 years of age;

And of these 3, normally no more than 1 child may be under 1. However, a childminder may be registered to care for 2 children under 1 where they can demonstrate that they can meet and reconcile the varying needs of all the children being cared for.

Exceptions to these ratios can be made for siblings and to provide continuity of care in certain circumstances approved by Ofsted.

Any care provided for children aged 8-14 is not allowed to adversely affect the care provided for children under 8.”

The Care Standards Tribunal was created pursuant to the Protection of Children Act 1999. The President of the Tribunal is legally qualified, as is the panel of persons who may serve as chairman of the Tribunal. A Tribunal consists of 3 persons, the chairman and two lay members. Other provisions as to the constitution the Tribunal and its procedure are contained in the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (“the Tribunal Regulations”). The requirements for membership of the lay panel are specified in regulation 3, and include “experience in managing or inspecting childminding and day care provisions for children under 8 years of age”. The members of a tribunal to hear a case are nominated by the President, and by regulation 5(5) he is required to “nominate members of the lay panel who appear to him to have experience and qualifications relevant to the subject matter of the case”. Evidence is the subject of regulation 22, paragraph 1 of which provides that the Tribunal may consider any evidence, whether or not such evidence would be admissible in a court of law. Regulation 23 requires written reasons to be given for the decision of a Tribunal. Regulation 25 provides for review by the President of a decision of a Tribunal on the application of a party on grounds that include that “the decision was wrongly made as a result of an error on the part of the Tribunal’s staff” (paragraph (1)(a)) and that “there was an obvious error in the decision” (paragraph (1)(c)).

The Tribunal set out the history of the case in paragraphs 4 to 13 of its decision.

The Tribunal set out the basis of its determination as follows:

Neither party has taken issue with paragraphs 20, 21 and 23 of the Tribunal’s decision. Whether the approach of the Tribunal as set out in paragraph 22 was correct is the main issue of principle to be determined on this appeal.

The Tribunal summarised the Chief Inspector’s case in paragraph 24 of its decision and the factual issues falling for decision in paragraph 25:

The extent of overminding on the 11^th March 2003;

The effect of the presence of non-minded children;

The quality of supervision exercised by the Appellant:

The safety of the premises;

The Appellant’s control of the minded children;

The Appellant’s control of the whereabouts and actions of the children;

The Appellant’s awareness of the identities and number of children minded;

The control of access by the Appellant to the minded children

The accuracy and availability of the information that should have been obtained in relation to the children and their parents;

The Appellant’s knowledge of National Standards;

The significance of the Appellant understanding the need to comply with an action plan in respect of each child;

The Appellant’s demonstrated level of co-operation with the Respondent;

The significance of the finding of children at the Appellant’s home on the 1^st May 2003.”

The Tribunal summarised the Chief Inspector’s factual case and then set out that for Mrs Spicer:

The Tribunal also referred to evidence given on behalf of the Mrs Spicer as to her character and as to the circumstances on 11 March and 1 May 2003.

It is necessary to set out paragraphs 47 to 58 of the Tribunal’s decision in full:

As indicated above, the main issue of principle raised by this appeal is whether the Tribunal was entitled to have regard to (as put in Miss Lieven’s skeleton argument) “matters which took place after the (Magistrates’) order was made”. The Chief Inspector submits that it was not: that the Tribunal is limited to considering matters relating to the correctness of the order as made by the Magistrates’ on the evidence that was, or could have been, before them. This submission is based in part on the wording of section 79M(2)(a). It is argued that, if Parliament had intended the Tribunal to consider matters arising after the date of the magistrates’ order, it would have included wording such as “the Tribunal may decide whether the registration should be reinstated or not”.

The second objection to the Tribunal’s approach put forward on behalf of the Chief Inspector is that it “effectively stepped into the shoes of the registration authority and (acted) as a first instance decision maker rather than an appellate body. Ofsted has not considered whether Mrs Spicer should be returned to the register on the basis of any fresh material she has produced and/or any change of circumstances. This is a matter which should be considered first by Ofsted as registration authority, rather than by the Tribunal”.

Miss Lieven submitted that, since the Tribunal had accepted that the Order as made by the magistrates cancelling Mrs Spicer registration had been correctly made, it had erred in law in allowing her appeal. If it be right that the Tribunal was limited to considering matters as at the date of the magistrates’ order, this consequence would appear to follow as a matter of logic.

Mr Smith, for Mrs Spicer, disputed this submission. He rejected the submission that the wording of section 79M supported the Chief Inspector’s case. He also relied on regulation 22 of the Tribunal regulations, and on the authorities cited by the Tribunal.

Miss Lieven also submitted that:

the Tribunal had erred in law in imposing a condition (namely that set out in sub-paragraph 2 of paragraph 56 of the Tribunal’s decision) which was subject to Mrs Spicer’s consent.

the Tribunal erred in law in making recommendations which appear, on their terms, to have been intended to be mandatory.

Mr Smith submitted that condition 2 in paragraph 56 of the decision should be read as indicating that Mrs Spicer had agreed to be bound by it, rather than that compliance with the condition was dependent on her consent. If so read, the condition is effective. So far as the recommendations are concerned, Mr Smith submitted that it was clear that the Tribunal intended them to be such; that their subject matter was covered by the Regulations, so that it had been unnecessary to make compliance with them mandatory; and that they gave rise to no grounds for interfering with the Tribunal’s decision.

Two further issues arose during the course of argument. The first relates to the meaning of the second sentence of paragraph 55 of the decision, and whether it provides a rational motivation for the Tribunal’s order. The second arises only if Miss Lieven’s submission that the recommendations in paragraph 57 were intended to be binding is rejected. In that event, did the decision of the Tribunal give adequate reasons for the decision to make non-binding recommendations set out in paragraph 57, instead of imposing additional conditions of the Appellant’s registration?

Miss Lieven put in evidence, without objection from Mr Smith, a witness statement of the Chief Inspector explaining his concerns at the decision of the Tribunal and his views as the proper application of the relevant provisions of the Act. The CPR contains no provision for such evidence, and advisedly so. This is an appeal on a question of law. The concerns of a public authority raised by the decision of a tribunal may be communicated by the advocate instructed on its behalf. Submissions as to the correct interpretation and application of statutory provisions, as to Parliament’s objects in enacting legislation and the like, are all matters for submission and presentation of documentary material (such as a relevant White Paper or Law Commission report) rather than witness statements. Moreover, such matters should have been put before the Tribunal whose decision is the subject of appeal. The presentation of such evidence is in my judgment to be discouraged.

I confess to having some difficulty in identifying the matters that, according to the Chief Inspector’s submissions, should have been excluded from the purview of the Tribunal. There had been no relevant occurrence between the date of the Magistrates’ decision and the hearing before the Tribunal, other than the inspection of 1 May 2003, evidence of which was put before the Tribunal by the Chief Inspector. Apart from that, all that had happened was that Mrs Spicer had admitted that she had been at fault, and given assurances that she would comply with her obligations. That was, as Miss Lieven accepted, a change of circumstances rather than any new event or events.

The Chief Inspector accepts that the proceedings of a Tribunal in a case such as the present are a true rehearing rather than a review of the Magistrates’ decision. It would in my judgment be a curious appeal process that excluded from its consideration matters such as the appellant’s acceptance of fault and his or her proposals for remedying the fault, even if he or she had previously denied being at fault. I see nothing in the wording of section 79M to justify the Chief Inspector’s submission on this point.

Contrary to the Chief Inspector’s submission, the structure of the Act points away from acceptance of his submission. An order may be made by a justice of the peace under section 79K(1) without notice being given to the registered person, presumably in cases of real urgency: see section 79K(3). In such a case, the registered person would have no opportunity to make representations or to give evidence as to his compliance with the obligations of registration or his proposals for dealing with the problems found by Ofsted. Section 79K(5) does not require the registration authority to serve on the registered person a copy of any written statement of the authority’s reasons for making the application for the order until after it is made. On an appeal the registered person could not be restricted to matters as they were before the justice without a real risk of, if not actual, injustice that Parliament could not have intended. If the Tribunal is not limited in the matters to which it may have regard where an application was made to a justice without notice, it cannot be limited as a matter of jurisdiction where the application to the justice was made with notice, since section 79M does not distinguish between appeals against orders made without or with notice.

Other considerations point in the same direction. There are two questions to be considered by a justice of the peace on an application under section 79K:

whether it appears to them that a child who is or may be looked after by the registered child minder “is suffering, or is likely to suffer, significant harm”;

if so (but not otherwise) whether one of the orders specified in subsection (1)(a) and applied for by the Chief Inspector should be made.

On an appeal to the Tribunal, it must first consider question (i). If it satisfied on issue (i), it must then consider whether the justice’s order should be confirmed, varied or should not have effect. It would be unfortunate if, in the exercise of its judgment on issue (ii), it were precluded from taking into account matters arising after the date of the justice’s order. Take, for example, unlawful child minding by a person after the cancellation of his registration under section 79K (which actually happened in the present case), or an accident to a child unlawfully in his care after such a cancellation. For a Tribunal to ignore such events would be to require it to exercise its discretion on a false factual basis. Ms Lieven’s response was that in such a case the Chief Inspector could take steps under section 79K based on the new event; but this would be an unnecessary and cumbersome process. If the Tribunal can take into account matters adverse to the registered person, it must be similarly entitled to take into account matters in his favour.

Furthermore, although the Chief Inspector and Ofsted must be taken to be highly qualified and experienced, the Tribunal is a specialist tribunal, and unless it is to act as rubber stamp for the decisions of the Chief Inspector, it must exercise its own judgment on the matters that come before it.

It follows that, even apart from authority, I would reject the submission of the Chief Inspector on the issue of principle. There is little relevant authority, but such authority as there is supports the view I have arrived at. Lyons v East Sussex County Council, an unreported decision of Farquharson J and a decision of the Court of Appeal reported at (1987) 152 JP 488 and 86 LGR 369, concerned the decision of a Registered Homes Tribunal under the Registered Homes Act 1984. That Act contained similar provisions to those in the Children Act 1989 to which I have referred. In particular, a local authority could apply to a justice of the peace for an order cancelling the registration of a home, and the justice might make such an order if it appeared to him that “there will be a serious risk to the life, health or well-being of the residents of the home unless the order is made”. There was also provision similar to that in section 79L of the 1989 Act for cancellation of a registration in less urgent cases. There was an appeal to the Registered Homes Tribunal against a decision of a justice under the urgent procedure or of the local authority under the normal procedure, and on an appeal against an order made by a justice “the tribunal may confirm the decision or direct that it shall not have effect”. At first instance, one of the questions considered was whether, on an appeal to the Tribunal, the registration authority “may adduce evidence which tends to establish a serious risk to life, health or well-being of the residents” where either “such evidence … was not referred to in the Registration Authority’s written Statement of Reasons” even though it was available, alternatively it “relates to events arising after the (justice’s) Order was made”. Farquharson J answered that question “Yes, subject to the Tribunal’s discretion”. Unfortunately, I do not have a transcript of his judgment. His answer was non-contentious before the Court of Appeal. The issue before the Court of Appeal was whether the Tribunal might confirm the order of the justice to cancel a registration where it was not satisfied that they was a serious risk to the life, health or well-being of the residents, but concluded that the registered person was not a fit person. The Court of Appeal upheld the decision of Farquharson J that in such circumstances the Tribunal was required to allow the appeal and to set aside the justice’s order. The remedy of the registration authority in such a case was to implement the ordinary procedure for cancellation of registration, which could be done concurrently with the urgent procedure.

The decision of Farquharson J is persuasive authority for the proposition that where a statute makes provision for procedures similar to those in the Act, an appellate tribunal may have regard to evidence of matters arising after the date of a justice’s order in deciding whether the condition for the exercise of the power under section 79K is met, i.e. whether a child is suffering or likely to suffer significant harm. If that is right, there is no justification for excluding from the tribunal’s purview subsequent facts relevant only to how the power conferred by section 79K and on the Tribunal under section 79M should be exercised. The decision of the Court of Appeal is authority only for the proposition that a Tribunal cannot uphold an order made under section 79K unless the condition for its exercise is satisfied, i.e. it is satisfied as to the suffering or likelihood of suffering by a child of significant harm.

In C v Ofsted [2002] 0087EY, a Care Standards Tribunal considered an appeal against a decision of the Chief Inspector made under section 79G of the Act. At paragraph 25 of its decision, the Tribunal stated:

In the present case, the subsequent evidence related not to the issue whether the ground for the exercise of the power to make an order under section 79K had existed: the Tribunal found that it had. It went only to the question of the exercise of the power conferred by section 79K and section 79M. I have no doubt that subsequent evidence and events may be taken into account by a tribunal on that issue.

For the sake of completeness, I should mention that I derive no assistance from Regulation 22(1) of the Tribunal Regulations. That provision is concerned with adjectival law, the admissibility of evidence adduced to prove facts, and does not bear upon the issue as to what facts a tribunal is entitled or bound to take into account in making its decision.

In my judgment, the complaint of the Chief Inspector should relate not to the jurisdiction of the Tribunal (in which expression I include those matters which it is entitled to take into account as relevant to its decision) but to the exercise by the Tribunal of its powers in the instant case. While the Tribunal must exercise its own judgment, it should pay due regard to the experience, knowledge, functions and powers of the Chief Inspector and his staff. Where, as in the present case, serious failures have been established on the part of the registered person, such that either a child has suffered or is likely to suffer significant harm, the Tribunal should be cautious before accepting assurances from the registered person that the Chief Inspector has no opportunity to monitor. On appeals against orders made under section 79K, the Tribunal should give substantial weight to the importance of persons wishing to mind children for reward demonstrating to the Chief Inspector their fitness for registration before they undertake or resume child minding rather than while carrying out child minding. There is much to be said for the contention of the Chief Inspector that persons who could not qualify for registration (because, for example, they are in need of training) should not, in general, act as child minders until they have demonstrated to the satisfaction of the Chief Inspector that they should be registered, for example that they have in fact successfully undertaken the requisite training.

I have to say that I have found the Tribunal’s decision in the present surprising. The facts found as to 11 March 2003 as summarised in paragraph 47 of the decision were serious. Paragraph 48 is a finding that, notwithstanding the cancellation of her registration, on 1 May 2003 Mrs Spicer minded children illegally. At paragraph 53 the Tribunal stated that she was “at risk of overstretching herself to the point of not being able to provide proper care for children she is looking after”, but the facts of 11 March 2003 demonstrated not just a risk that she had so overstretched herself but that she had in fact done so.

However, if the only issue on this appeal was whether the Tribunal was entitled to have regard to matters subsequent to the Magistrates’ order made under section 79K, I should have upheld the Tribunal’s decision.

The decision of the Tribunal is to be benevolently construed. Nonetheless, I have not been able to understand the second sentence of paragraph 55 of its decision. A limitation on the number of children aged under eight who may be cared for by a child minder may be effected by a condition attached to her registration. “Overminding” is a term of art: it means minding more children than is permitted, i.e., in excess of the number stipulated by a condition or, in the absence of a relevant condition, permitted by the National Standards. In the present case, the Tribunal imposed a condition that reduced the number of children under eight who could lawfully be minded by Mrs Spicer from 6 (her original registration) to 4. I do not understand how that reduction provided “an additional safeguard to prevent her from going to the limit of her registration”. As a result of the decision of the Tribunal, 4 is the limit of her registration, and if exceeded there would be not the risk of overminding but actual overminding. To mind more than 4 children under eight without reasonable excuse would render Mrs Spicer guilty of an offence under section 79F(6). Furthermore, I cannot read the restriction referred to in the second sentence of paragraph 55 as the condition imposed in relation to children over the age of eight: that condition is irrelevant to her going to the limit of her registration for children under eight. It is significant that Mr Smith was unable to explain to me the meaning of the second sentence of paragraph 55 of the decision.

Paragraph 55 is central to the Tribunal’s decision, and if it were the only matter of complaint its lack of sensible meaning would render its decision liable to be set aside.

Compliance with a condition of registration is mandatory. A condition expressed to be subject to the registered person’s consent, or which is expressed to make compliance subject to her consent, is not a condition. Furthermore, a condition must be clear, since a failure to comply with it without reasonable cause is a criminal offence. The condition contained in paragraph 56.2 of the decision is either subject to Mrs Spicer’s consent, and therefore unenforceable, or is too unclear to be enforceable.

There is an obvious link between the second sentence of paragraph 55 and the condition in paragraph 56.2: both concern the risk of Mrs Spicer minding more children than she can safely manage. The centrality of this risk to the issues before the Tribunal and to its decision means that the decision must be set aside.

I also have some concern as to whether the second condition is restricted to times when Mrs Spicer is minding children under eight. Any such condition should be expressed to be so limited. I assume that, read purposively, it should be so construed.

I cannot accept Ms Lieven’s submission that the recommendations in paragraph 57 of the decision are to be construed as conditions. The Tribunal clearly distinguished between a condition and a recommendation and must have intended compliance with the latter not to be mandatory.

I am nonetheless very puzzled by the recommendations, which are couched in terms appropriate to mandatory requirements. Recommendation 1 went beyond the requirements of the Regulations in specifying the form of the records to be maintained by Mrs Spicer. However, a registered person must always keep the records required by the Regulations, and this recommendation might easily be read by Mrs Spicer as permitting some delay, up to a month, before she did so.

It follows from the second recommendation that the Tribunal accepted, as did Mrs Spicer, that she required training. The importance of training is such that some explanation was required from the Tribunal as to why this matter was the subject of a recommendation rather than a mandatory condition. The decision contains none. The same comment applies to recommendation 3, although if it had been made a condition it would have been necessary to identify the “matters she needs to attend to”.

Recommendation 2 would also give the mistaken impression to Mrs Spicer that had up to 6 months in which to attend a pre-registration course in order to comply with National Standards. I find it difficult to understand why, if Mrs Spicer did need to attend a pre-registration course, her registration was revived by the Tribunal with immediate effect.

Mr Smith suggested that the recommendations were made such by the Tribunal because it was unnecessary to make compliance with National Standards mandatory, since such compliance is made mandatory in any event by the Regulations. If that was the Tribunal’s motivation, it should, I think, have been stated in the decision. If that was the Tribunal’s motivation, I have some difficulty in understanding why they felt it necessary to make the recommendations as such, and why, for example, a period of 6 months was included in recommendation 2.

Mr Smith suggested that if the decision was defective, the Chief Inspector could and should have proceeded under regulation 25 of the Tribunal Regulations for the decision to be reviewed. In my judgment regulation 25 has no application to the defects in the present decision. The Tribunal staff referred to in paragraph (1)(a) of that regulation do not include the Tribunal itself. An “obvious error” within paragraph (1)(c) does not include an error of law, including a failure to give adequate reasons for an order or defective reasoning such as that in paragraph 55.

In my judgment, the decision of the Tribunal is liable to be set aside by reason of the defects in paragraph 55 and paragraph 56.2 of the decision to which I have referred, and it should be set aside on that ground. I do not therefore have to decide whether the failure to explain or the inclusion of the recommendations would have led to the quashing of the decision. However, in my judgment a future Tribunal considering whether to make recommendations of this kind should consider whether a mandatory requirement is not required, and if not explain why. Furthermore, a Tribunal should take care not to make a recommendation that may be seen as detracting from the obligations of the child minder to comply with the Regulations and to meet the requirements of the National Standards.

The Tribunal’s decision will be quashed and Mrs Spicer’s appeal to the Tribunal be remitted to be heard by a differently constituted Tribunal.