S Dos Santos v Ofsted

BEFORE

Tribunal Judge Dawn Hyland

Specialist Member Ms L Owen

Specialist Member Ms H Reid

BETWEEN:

Mrs S Dos Santos

Appellant

-v-

OFSTED

Respondent

DECISION

Attendance at hearing:

Appellant:

Mrs S Dos Santos

For Ofsted:

Ms S Milligan, Counsel

Miss S Qureshi, Solicitor

Miss H Olufawabi, Paralegal

Ms K Hustava, witness

Ms J Wildman, witness

Type of Appeal:

1. This is an appeal against the decision made by Ofsted on 24/04/2025 to refuse to waive Mrs Dos Santos’ disqualification from providing childcare which requires registration under Chapter 4 of the Childcare Act 2006.

Procedural and preliminary matters:

Form of hearing:

2. Although described as a hybrid hearing, the digital link was not used by any person, and the parties appeared in person. Prior to beginning the session, Mrs Dos Santos spoke to the Clerk/Usher outside the courtroom and indicated that she felt unable to enter, due to feeling upset. Several attempts were made to encourage her to join the hearing. She was advised that if her request to sit at the back of the room as an observer only were to be granted, there may follow an application to strike out her appeal on the grounds that there would then be no reasonable prospect of success if the Panel was not to hear from her.

3. Mrs Dos Santos then accepted the invitation to come into the room with only the Panel and Ms Mulligan present. The Panel was able to reassure and explain the process to her, upon which she agreed to remain in the hearing, which she managed for the rest of the day, including giving evidence. She was also reassured that there would be breaks throughout the day and that she could request more if required. She made no such requests.

Evidence:

4. The Tribunal had documentary evidence in the first bundle of 109 pages and the later supplementary bundle of 34 pages. The late evidence contained in the supplementary bundle had previously been admitted by the Tribunal. Paper copies of the bundle were provided to Mrs Dos Santos prior to the hearing commencing, to avoid her struggling on her mobile telephone, which was the only device upon which she would have been able to access her papers.

Background to the Appeal:

5. The Appellant had been registered with Ofsted as a childminder on two separate occasions, first between 13/01/2015 and 10/03/2020 and again between 22/03/2021 and 22/06/2022. On each occasion, her registration was cancelled as a result of her not paying the prescribed fee.

6. In October 2021, which falls within the second period whilst still registered, the Appellant’s husband was arrested and later convicted and sentenced for engaging or attempting to engage in sexual behaviour with a child. This fact had not been communicated to Ofsted and only came to light when the Appellant sought to re-register, in order to facilitate her employers paying for the childcare she provided by way of vouchers.

7. At the point of her registration application, in the section entitled ‘suitability details’, the Appellant answered ‘no’ to each question. This means that she indicated that she was not disqualified for any reason, there were no other circumstances that might affect her suitability and that she had not ever been involved with social services in respect of her own children.

8. The Application triggered background checks on the Appellant and her husband’s offence then came to light. It is accepted that his offence automatically disqualifies him and that according to the Regulations, the Appellant is thereby also disqualified by association.

9. Ofsted then invited the Appellant to attend a waiver interview. This was so that consideration could be given to her application to waive her disqualification, in accordance with the discretionary power afforded to Ofsted’s Chief Inspector. If granted, the waiver would then allow the initial application for registration.

10. The interview was with Ms K Hustava, an Early Years Regulatory Inspector (EYRI) and took place on 05/03/2025. The results of that meeting were considered during a subsequent review of the decision by Ms J Wildman, Early Years Senior Officer (EYSO) and confirmation of the decision to refuse the waiver was sent on 24/04/2025. Ofsted learned of the appeal on 09/05/2025.

11. On 14/10/2025, Ofsted was notified that Mrs Dos Santos had been providing after-school childcare at her home address. At that time, she was disqualified and unregistered to provide childcare, and her appeal had been submitted. Mrs Dos Santos was served with an enforcement notice, which reminded her that it was an offence to continue providing childminding for children under 8 while an enforcement notice is in place.

12. Mrs Dos Santos responded to the enforcement notice, indicating that there had been ‘a miscommunication regarding the rules which meant I was unclear.’

Issues to be determined by the Tribunal:

13. Ms Milligan outlined the legal position to the hearing. She reminded the Panel and the Appellant that the onus fell upon the Appellant, to show that the facts she relied on were more likely than not true. This was required to persuade the Panel to allow the waiver previously refused by Ofsted.

14. The right of appeal is to be found in Section 74(2) of the Childcare Act 2006. Regulation 11 of the Childcare (Disqualification) and Childcare (Early Years Provision Free of Charge) (Extended Entitlement) (Amendment) Regulations 2018 provides that the waiver decision is one that can be appealed.

15. We note that in considering the appeal, we must consider the evidence as at the date of appeal and that our powers are either to confirm Osted’s decision not to grant the waiver or to direct Ofsted that its decision shall not have effect.

16. Ms Milligan also referred the Panel to the guidance for waiver, which is available online and was used by Ofsted in its decision making process. It states that each request is considered on its own merits and will take into account the reasons why a person believes their disqualification should be waived and any risks to children from allowing them to provide work in early years and childcare provision.

17. These factors are reflected in Ofsted’s submissions, where its main concerns are listed as:

a. Mrs Dos Santos has not demonstrated an understanding of the risk posed by her husband’s conduct and offending, and how to mitigate the same.

b. Mrs Dos Santos has failed to communicate honestly and openly with Ofsted.

c. Since making her appeal, Mrs Dos Santos has been unlawfully providing childcare services at her home.

d. Mrs Dos Santos does not appear to have a sufficient understanding of safeguarding concerns and measures that would enable her to protect children within her care.

How the Tribunal decides the appeal:

18. We have decided to approach our decision in the same way as Ofsted, by use of the waiver guidance and by dealing with each of those areas listed above in turn as the issues to be considered. It was not suggested to the Panel by either party that there were additional issues for consideration. For each area, we will assess whether the facts presented by Mrs Dos Santos are probably true. Even if we do not mention a specific piece of evidence, the Tribunal carefully considered the written evidence submitted in advance of the hearing and the oral evidence given at the hearing, together with the law outlined above.

Issue 1: Mrs Dos Santos has not demonstrated an understanding of the risk posed by her husband’s conduct and offending, and how to mitigate the same.

19. In summary, we find that it remains the case that Mrs Dos Santos has not demonstrated an understanding of the risk.

20. We decided that although Mrs Dos Santos gave oral evidence that she has now discussed her husband’s offending with him, in fact she still seeks to minimise his responsibility for it. She began by saying that it was due to him feeling lonely in the relationship and wanting somebody to talk to, but in answer to questions from the Panel, she admitted that it was more than just talking, that it had become sexual. Despite this, she initially remained adamant that it would not happen again. However, we found that when she recognised that she was unable to support that assertion with any substance, she accepted that a recurrence was possible.

21. The Panel felt that her understanding of the risk had not improved since the date of the original waiver interview, when she blamed herself for her husband’s actions. During the waiver interview, she was also unable to answer how to protect children who find themselves in a similar situation to her husband’s victim. In her evidence, the Appellant accepted that she had not undertaken any safeguarding training since that interview, and importantly, accepted that she must do so.

22. Her lack of understanding of the risk is further accentuated we found, by the fact that she had allowed other children to come to her address to be minded, whether paid or not and discussed in more detail below.

Issue 2: Mrs Dos Santos has failed to communicate honestly and openly with Ofsted

23. We decided that Mrs Dos Santos has failed to communicate honestly and openly with Ofsted.

24. We found that she is aware of the consequences of failing to comply with the relevant Regulations and rules. For example, she stopped paying the fees for her registration on two occasions, leading to its cancellation. In uncontested oral evidence at the hearing, we heard that she would have been notified twice on each occasion of the results of failing to do so.

25. In her oral evidence, Mrs Dos Santos accepted that she had checked online what was meant by ‘disqualification by association’, but we were concerned that she did not appear to have had any thought at any stage that her husband’s conviction should be notified to Ofsted.

26. In her application for registration, she was prompted by the form, not just to inform Ofsted of any disqualification, but also to give other circumstances that may affect her suitability. The Panel was concerned that Mrs Dos Santos stated that she did not feel that her association and contact with her husband, who became a registered sex offender, convicted of a child sexual offence may be a circumstance that might affect her suitability.

27. The lack of contact with Ofsted at the time of her later childminding, dealt with below adds to this concern.

28. We note that the third question on her initial application for registration was whether she had ever been involved with social services in connection with her own children. We found her oral answers in relation to this to be confused and evasive. Although her memory of exact dates may be incomplete due to the passage of time, the Panel took the view that the involvement of social services in her family is something that the Appellant could be expected to remember well. We formed the view that there would have been social services input to protect her child at the time of her husband’s criminal proceedings, but that Mrs Dos Santos appeared to be unwilling to accept this. That view is supported by the presence of police, which was accepted by Mrs Dos Santos in assisting her to understand the implications of her husband’s sentence.

29. We find that Mrs Dos Santos deliberately ignored all three prompts in her application to communicate honestly and openly with Ofsted.

Issue 3: Since making her appeal, Mrs Dos Santos has been unlawfully providing childcare services at her home

30. We decided that this is the case. The facts are not disputed by Mrs Dos Santos. However, she argued that she had not realised she was prevented from doing so and that much of this was to facilitate playdates for her son.

31. We found her to be less than believable. We took the view that she had deliberately used the word ‘miscommunication’ in her emails with the school about this topic, to create an impression that some permission had been granted to her, when in her oral evidence it was apparent that it was the Police she had spoken to and there was no connection with Ofsted or childcare regulations.

32. We found her written statement in response, to be indirect and muddled. On the one hand, she indicated that she believed informal support between parents did not fall under the legal definition of childminding, whereas she also accepted that she was being paid, but that she believed that was permitted as it was ‘more of an ad hoc situation’.

33. In the next paragraph of her response, Mrs Dos Santos refers to receiving an income from childcare during the summer holidays but also that her son could have fun with his friends. In her oral evidence, Mrs Dos Santos also relied on the childcare as relating to playdates for her son.

34. It was also difficult to establish the extent of this childcare. While the numbers of children looked after in this way does not alter the unlawful act, but may aggravate it, we found Mrs Dos Santos was trying to minimise what she had done by failing to be frank and forthcoming with the panel.

35. Also, in her written response to this, she referred to her use of the word ‘miscommunication’ as a reflection of her misunderstanding of what was allowed. We are of the view that being a person already disqualified from registration during this period, it is harder to accept that she acted in ‘good faith’ when no enquiries were made by her to ensure she was not disobeying childminding regulations.

Issue 4: Mrs Dos Santos does not appear to have a sufficient understanding of safeguarding concerns and measures that would enable her to protect children within her care.

36. We are concerned that her initial qualification is approximately 10 years ago and she appears to have done little to keep herself up to date since then, including a lack of knowledge of the primary safeguarding concerns of today, namely female genital mutilation, ‘County Lines’ drug dealing and the Prevent programme. Our view is that Mrs Dos Santos appears to be blinded by the fact that she considers the legislation causing her to be disqualified by association, to be unfair. In fact, there are a number of steps she could have taken and which she indicated would be taken to mitigate the risks and to protect children within her care, but it appears the situation has not altered since the original refusal of waiver, and if anything, has worsened.

37. In our view, Mrs Dos Santos confuses and gives more weight to her own trustworthiness and popularity with other parents and children, than the risks that may be presented by her association with her husband.

38. In addition, we found that Mrs Dos Santos’ primary concern appears to be one of finance and how she can find a way around the rules in order to continue working, without regard to the safeguarding of children in her care. We note here the advice given by Ofsted during the hearing that the Appellant could still work in a nursery, under supervision and that she could renew her application for waiver, perhaps after she has undergone training.

39. We were assured by Ms Wilman that her considerations in refusing to grant a waiver included those of Mrs Dos Santos’ financial situation, but a remedy was suggested and we do not find that these outweigh the safeguarding risks to children in her care.

40. At present, due to an absence of ongoing and recent training, coupled with her lack of open conversation with Ofsted, we find that Mrs Dos Santos does not appear to have sufficient understanding of safeguarding concerns.

Would a waiver with conditions be appropriate?

41. Although we were not specifically asked to consider this, we were made aware by Ms Milligan’s submissions that such a power exists. However, we were unable to consider any conditions that would be complied with by the Appellant, given that she had not sought to undertake safeguarding training in the time since the original waiver decision, despite appearing to have recognised its importance in her initial reasons for appeal.

In conclusion

42. We agree with Miss Mulligan’s submission that as a regulatory body, Ofsted is unable to keep close supervision of persons registered by it and it is for that reason that there is an obligation to comply with the standards expected by it. We find that each of the issues above also illustrate how Mrs Dos Santos has not complied with those standards. We agree with the decision to refuse the waiver and find that Ofsted’s decision was necessary and proportionate in all the circumstances, including the reasons we have set out above.