Ms Hayley Lennon v Ofsted

There shall be a Restricted Reporting Order under Rule 14(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care) Rules 2008 prohibiting the publication (including by electronic means) in a written publication available to the public, or the 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 or its family mentioned in the appeal.

This is the appeal of Ms Lennon. She appeals against a decision of Ofsted dated 6 December 2013, to refuse to register her on the Early Years Register including both the compulsory and voluntary parts of the Childcare Register.

The appeal was heard over the course of a full day. The panel then met on the second day for deliberations.

The parties had helpfully worked together to prepare a comprehensive bundle of documentary evidence.

At the beginning of the hearing Mr Toole clarified the key issues of concern as arising from CCTV footage from 12 January 2011 when the appellant was working at a nursery. He also indicated that this together with the appellant’s explanations for her behaviour and failure to demonstrate insight, made her unsuitable to be registered as a childminder.

We first heard evidence from Ofsted’s two witnesses: Ms Bishop, an Inspector who acted as the investigating officer in the case and Ms White, a Senior Officer and the decision-maker in this case. Ms White was asked to point out her concerns by reference to CCTV footage that had been taken of the appellant when she worked at a nursery in 2011. Both witnesses were cross-examined by Mr Williamson.

We then heard from Ms Lennon herself. She also explained her behaviour at the nursery by reference to the CCTV footage.

We heard helpful submissions from both representatives before reserving our decision, which we now give with reasons.

The legal framework for the registration and regulation of childminders is to be found in Part 3 of the Childcare Act 2006. It is uncontroversial that these new provisions elevate and regularise the standard of childminding. The demands now made on childminders are wide-ranging and significant and the standards are high. Childminders are required to comply with the Statutory Framework for Early Years Foundation Stage (‘EYFS’) in a similar way to nurseries and other early years providers.

The requirements for registration are prescribed by the Childcare (Early Years Register) Regulations 2008 and include “the applicant is an individual who is suitable to provide early years childminding”. In assessing suitability it is relevant to consider the willingness and ability to comply with the EYFS. There are similar provisions within the Childcare (General Childcare Register) Regulations 2008.

Section 74(1) of the 2006 Act provides a right to appeal to this Tribunal. The legal burden remains vested in Ofsted, which must establish the facts upon which it relies to support a refusal to register. It must also demonstrate that the decision to refuse the application for registration is proportionate and necessary. The standard of proof to be applied is the balance of probabilities. We must make our decision on the basis of all the evidence available to us at the date of the hearing and we are not restricted to the matters available to Ofsted when the registration decision was taken. Mr Williamson directed our attention to inadequacies in the Ofsted decision-making process. We accept that it may have been more helpful for Ofsted to have considered references, the appellant’s employment history and the reasoning for the Independent Safeguarding Authority concluding that the appellant could still work with children. However we have considered the issue of suitability afresh and in light of all the relevant evidence.

Further, the Tribunal may either confirm Ofsted’s decision to not register or direct that it shall not have effect. If the Tribunal decides Ofsted’s decision not to register should not have effect, it may impose conditions on the appellant’s registration.

The appellant is 31 years of age. She has spent the vast majority of her adult working life in childcare. She worked at Grafton House Nursery for many years and before this she worked at a variety of different nurseries. The appellant also successfully obtained an NVQ Level 3 in child care and was therefore suitably qualified to be and indeed was, a room leader.

The appellant had been working at Grafton House Nursery before she was dismissed on 12 January 2011 for many years. There were never any complaints against her whilst there or at any other nursery up until that day. On the contrary, we have been provided with numerous glowing positive references regarding the appellant’s commitment to childcare over a number of years.

In September 2010 the appellant became pregnant with her first child. We were told and we accept that there were complications with the pregnancy. This meant that the appellant had a large amount of contact with the medical services at this time. This included hospital attendance and a major operation.

On 12 January 2011 the appellant was working at Grafton House as room leader. She knew that CCTV cameras covered the areas that she worked in. We have been provided with and have viewed CCTV footage of a room when it was used as a sleeping room for babies and toddlers from around 11am on 12 January 2011. This footage clearly shows the appellant and other members of staff putting children to sleep. Ofsted contends that the footage shows the appellant employing inappropriate practices to put a particular child (‘C’) to sleep. This includes the appellant placing her leg over C’s legs and pulling her by the ankles and legs to bring her closer. We deal with this in more detail when we make our findings of fact below. This was viewed by the management of the nursery and the appellant was dismissed for gross misconduct.

The police interviewed the appellant in relation to the footage and charged her with assault on C. Although the appellant was convicted by magistrates she successfully appealed this conviction in the Crown Court. HHJ Lever made it clear that he rejected “in the most forthright terms” any suggestion that the appellant was deliberately assaulting or restraining C in a cruel or unreasonable way, and found there was no case to answer on 13 January 2012. We have also been told that the Independent Safeguarding Authority have provided the appellant with clearance to work with children. She has a clear enhanced criminal record certificate dated 14 September 2012.

On 4 January 2013 the appellant applied to register on the Early Years Register and the Child Care Register. The appellant fully disclosed that she had been dismissed for gross misconduct in 2011 for inappropriately handling a child when she worked at a nursery. There was some delay in dealing with this application. The appellant was interviewed by Ms Bishop in April 2013. Ofsted viewed the CCTV footage in July 2013. Following a case review at which both Ms White and Ms Bishop were present a decision was taken by Ms White to refuse registration. This is set out in a notice of intention letter dated 20 August 2013.

The appellant objected to the notice of intention letter. This was considered by Mr O’Neil after meeting with the appellant and considering the CCTV footage. In a letter dated 6 December 2013 the appellant was told that her objection to the notice of intention had not been upheld.

This is a case in which we found the evidence of all three witnesses we heard from to be broadly honest. This is not a case which particularly turned on competing versions of events. This is because the CCTV footage gave a contemporaneous visual account of what happened. Whilst opinions differed on precisely what could be seen and whether that amounted to inappropriate behaviour, we are satisfied that each witness provided an honest account of what they saw and what they did.

We have carefully considered all the evidence in the round. The CCTV footage has not been considered in isolation. It has been considered alongside the appellant’s account of the prevailing circumstances at the nursery that day. It is important to set these out. We wish to stress that we have only heard the appellant’s account of this. Ofsted have not provided us with any evidence from the nursery to rebut this account and we have no such evidence. On the evidence available to us, we accept the appellant’s account of the circumstances in the nursery as she perceived them. We make the findings below on the circumstances appertaining at the nursery having had the benefit of the appellant’s evidence together with observing the CCTV footage.

First, the appellant was left responsible for at least eight babies and toddlers with only the assistance of Shannon, a childcare student doing work experience, for part of the day. She understandably found this difficult to deal with and did not feel that she was supported by management. For a part of the day the appellant believed the nursery did not meet the requirements on staff: child ratios set out in the EYFS. The appellant also told us that this was not the first time this took place and it had happened many times in the past. We accept that for at least 15 minutes the appellant was left without support from any other staff save for Shannon, and that this meant that she had to look after too many children, in two different rooms, some of whom were sleeping, some of whom were playing and some of whom needed settling in order to go to sleep.

Second, the room that was used as a sleep room was also used as a play room. This necessitated laying out sleeping areas / blankets on limited and cramped floor space. Although rooms in child care settings often have a dual purpose this room seemed to be badly organised.

Third, the appellant was not feeling well that day. This combined with the difficult working circumstances made it particularly difficult for her to cope.

Fourth, the appellant had requested a risk assessment in light of the medical difficulties she was encountering at the time. This was not done. Although she had been told that she would be put on lighter duties because of her pregnancy, this did not materialise.

Fifth, there was a history of difficulties between the appellant and management since at least November 2010, when she claimed to feel victimised.

We have approached the CCTV footage on the basis that the appellant was placed in very difficult and challenging circumstances at a time when her ill-heath and pregnancy made her feel vulnerable. We have taken this fully into account when reaching our findings in relation to the appellant’s actions from the CCTV footage.

We entirely accept the observations of HHJ Lever that it cannot be said that the appellant assaulted C or deliberately restrained her in a cruel or unreasonable manner. We accept on the basis of the evidence available to us that C did not show any sign of discomfort or upset by reason of the appellant’s actions toward her. We accept that there is some evidence of the appellant showing care in comforting and calming C.

On the other hand, we find that the CCTV footage includes two serious incidents of inappropriate physical intervention on the part of the appellant.

In placing her leg over C’s legs for a period of some 40 seconds when she was trying to put her to sleep, the appellant demonstrated poor judgment. She simply should not have positioned her leg like that at all. It does not model good practice which is to be expected of a room leader. Whether or not the appellant’s leg made contact with the C’s body, we are of the clear view that the use of the appellant’s leg was restrictive and unjustified. We accept that C was wriggling and the appellant may have perceived that she needed to protect herself from being kicked given her pregnancy and the pain she was suffering. We also accept that as C’s key worker the appellant genuinely believed that C wished to sleep and that she needed assistance in doing so. We however consider there were a number of other options that the appellant could and should have considered, and it was not necessary or proportionate to use restrictive physical intervention at that time or in the manner that she did. As the appellant believed she was at risk of physical injury she should have made that clear to management and/or her co-worker Lexi. Lexi was another qualified member of staff in the room at the relevant time. As room leader the appellant could have instructed her to take over with C. The appellant could also have declined to put C to sleep at that time.

We are also concerned that the appellant has inappropriately repositioned C when she was trying to settle her to sleep by vigorously pulling and lifting her up by her ankles and legs in order to bring her closer to the appellant. We find that the appellant handled C too roughly at this time.

We have considered Ofsted’s concern that the appellant used inappropriate force when trying to prevent C from returning to the sleep room. Having viewed the CCTV footage on many occasions and having considered C’s explanations we are not satisfied to the requisite standard of proof that the appellant did more than manoeuvre C out of the room as safely as she could.

We have not considered the rough handling and the appellant’s leg over C’s legs in isolation but have considered the CCTV footage as a whole. As we have already said the appellant demonstrated some positive behaviour. However we are concerned that the atmosphere within the sleep room was chaotic and could have been organised with more care and in a more nurturing fashion. The appellant also demonstrated some signs of frustration and admitted that she was feeling upset and frustrated to us. There was insufficient room to walk carefully and children had to be stepped over / around as they lay on the sleeping mats. We observed the appellant to walk on to the sleeping mats with blankets on a few occasions. The appellant carelessly handled and arranged the blankets and sleeping mats, giving the impression of frustration at that time. The appellant had her head in her hands on some occasions and looked distressed.

We wish to stress that we do not believe that there was any intention on the part of the appellant to cause C harm or discomfort. We consider that the appellant was frustrated for a number of reasons and this caused or contributed to her use of unjustified restrictive physical intervention.

We appreciate that the appellant found the circumstances at the nursery very difficult to deal with for an extended period of time, and well before 12 January 2011. We are however concerned that the appellant has not demonstrated sufficient insight into the need to take a more robust approach in order to prevent the risk of harm to children, co-workers and herself. The appellant told us that the ratios were insufficient on numerous occasions before 12 January 2011. She raised her concerns with management but did not indicate that when nothing was done about it that she reported it or made a formal complaint. She told us that she considered resigning because of this but decided to stay to try to help the children. This is also relevant to the appellant’s suitability as a childminder. She will be expected to work on her own and take difficult decisions by reporting concerns when she becomes aware of information that may pose a risk of harm to children.

We find that on the evidence currently available to us, the appellant is unsuitable to be registered. We are concerned that it is more likely than not that when faced with challenging circumstances the appellant resorted to inappropriate physical intervention on 12 January 2011. We are particularly concerned that the appellant was unable to demonstrate insight into her approach to C on that day. She did not think there was anything she could do differently as she believed she had done nothing wrong. The appellant was given a number of opportunities to consider possible different approaches but consistently stated that she “could not say or do anything differently that day”. We are also concerned that the appellant felt powerless to address significant issues of concern that she had regarding ongoing issues (continuing failure to address staff numbers, failure to conduct a risk assessment and failure to implement lighter duties) and has not demonstrated a sufficient degree of robustness in order to try to address these matters. The appellant after all was a room leader with a NVQ level 3 with considerable experience in childcare.

We have taken into account the undisputed fact that there have been no complaints against the appellant over the course of a lengthy career in childcare. We have considered the very positive references that she has provided. We have noted the mitigating factors drawn to our attention by the appellant in order to explain her actions. We accept that the appellant has undertaken some additional coursework since January 2011. This includes a pre-registration course for childminders. We were told that this is a ‘taster’ or introductory course. We understand this is a mandatory course for childminding. The appellant also completed a foundation course in safeguarding. When asked questions about this course, the appellant was unable to clearly set out what she had learned from this course. We believe that the appellant needs to reflect more carefully on her approach to C that day and her failure to pursue the concerns she had about the nursery.

We are satisfied that on the evidence currently available the decision that the appellant is not suitable is a proportionate one when all the relevant circumstances are taken into account.

Mr Williamson invited us to consider imposing conditions on the appellant’s registration such as participation in further training. Mr Williamson also submitted that the appellant’s position is not “irredeemable”. Ms White agreed with this proposition but indicated that whilst the appellant might be suitable in the future she was not suitable now. We agree. We consider that the appellant needs to be able to evidence greater insight into what happened regarding C (including her use of restrictive physical intervention) and the alternative actions she could have taken to prevent the use of inappropriate physical intervention.

We do not consider that conditions are appropriate in this case. Mr Williamson urged us to find that training conditions would provide further education and was not relevant to the issue of suitability. It may be that further training will trigger greater insight but we simply cannot speculate at this stage, before the relevant training has been completed. We consider that on the evidence available, the appellant has the potential to be suitable but is not currently suitable. She has not even begun the process of demonstrating insight into what was inappropriate about her actions. Indeed, the appellant seemed to regret her behaviour because it led to criminal proceedings and the instant appeal, and not because of any understanding or insight that it was inappropriate. The Tribunal mooted the possibility of a condition restricting the number and ages of minded children. Upon reflection we are not satisfied that this is an appropriate condition in light of the lack of insight we have described above.

We dismiss the appeal.

There shall be no order as to costs.