Marcia Janice Steele v Ofsted [2024] UKFTT 899 (HESC)

First-tier Tribunal Care StandardsThe Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care) Rules 20082024-01236.EY-SUSNeutral Citation Number: [2024] UKFTT 00899 (HESC)Hearing by video-linkon 1, 8 and 9 October 2024
Before
Tribunal Judge Siobhan GoodrichSpecialist Member Ms Harris
Between
Marcia Janice SteeleAppellantv
Between
OfstedRespondentREASONS for DECISION ON APPEAL AGAINST SUSPENSIONPreambleThe panel issued a short form decision on 10 October 2024 by which we dismissed the appeal. We now provide the panel’s reasoning.Appellant: Ms Steele in person (on 1 and 8 October 2024 only) for in personRespondent: Ms Louise Price, counsel, instructed by Ofsted LegalThe AppealDate 2024-10-23
[1]By notice dated 11 September 2024 the Appellant appeals against the Respondent’s decision made on 29 August 2024 to suspend her registration as a childminder on the Early Years and the compulsory and voluntary parts of the Childcare Register for a further period of six weeks.[2]The right of appeal lies under regulation 12 of the Childcare (Early Years and General Childcare Registers (Common Provisions) Regulations 2008. The Applicant seeks a direction that the suspension shall cease to have effect. The Respondent resists the appeal and requests that the decision to suspend registration is confirmed. Restricted Reporting Order[3]At the outset of the hearing on 1 October 2024 and with the express agreement of the parties the Tribunal made a restricted reporting order under Rule 14 (1) (a) and (b) of the 2008 Rules, prohibiting the disclosure or publication of any documents or matter likely to lead members of the public to identify any minor child or the parents of any minor children in order to protect the privacy and best interests of the children involved. Accordingly, in this decision we anonymise the name of the minor children and their parents, adopting the initials previously employed.[4]On 6 and 8 October 2024 the Appellant lodged T109 applications seeking a restricted reporting order regarding the identity of her family members. We will return to this in due course. The Background and Chronology[5]The key matters appears to be as follows: a) The Appellant was first registered with Ofsted in March 2011. There have been three inspections, all with “good” judgment outcomes, the last being in 2022. b) On 12 March 2024 Ofsted received notification of concern from the LADO at Central Bedfordshire. Hereafter all references in this Chronology are to 2024 unless we state otherwise. c) On 13 March Ofsted received a notification from a parent that the Appellant had been evicted from her home at 3 Steele Walk, Wooton, Bedfordshire on 12 March and that minded children had been present throughout a prolonged eviction process and had not been safeguarded. d) A decision to suspend the registration of the Appellant was made by the Respondent on 13 March for a period of six weeks. e) On 15 March Ofsted received additional concerns from a parent regarding the Appellant’s conduct on 12 March. f) Joint Evaluation Meetings (JEM(s)) were convened by the Local Authority Designated Officer (LADO) at Bedford Borough Council. Amongst other matters, Information was shared about disputes between the Appellant and neighbours in 2021, 2022 and 2023. It was said that there had been a previous eviction apparently involving bailiffs and the police. g) A further decision to continue suspension for a further six weeks was made by the Respondent on 24 April and was due to expire on 4 June. At this time the investigation by the statutory agencies (i.e. the Police and the LADO) was ongoing. h) On 14 May the Appellant notified Ofsted that she wanted a break from childminding for eight weeks and was looking to complete on a house purchase. In these circumstances the Respondent considered that the risk of harm was low and decided on 31 May that a continuation of suspension was not necessary or proportionate. i) On 19 July the LADO convened a JEM at which the police body camera footage was shared. The LADO decided that the safeguarding allegation i.e. that the Appellant had “behaved in a way that has harmed a child or may have harmed a child and/or behaved or may have behaved in a way that indicates that they may not be suitable to work with children”, was substantiated. The LADO decided to make a referral to the Disclosure and Barring Service (DBS). j) There were indications that the Appellant wished to resume childminding. In these circumstances the Respondent decided on 19 July to suspend the Appellant’s registration for a period of six weeks. The Appellant exercised her right of appeal. k) On 23 July the Respondent received and reviewed the HCEA BWV footage. l) On 22 August the hearing of the appeal was held, following which the panel, (Judge Brownlee and members) confirmed the decision in a decision issued on 28 August 2024. m) On 29 August the Respondent made the decision to further suspend the Appellant’s registration. n) On 10 September the Respondent sent to the Appellant a Notice of Proposal (NoP) to cancel her registration. o) On 11 September the Appellant lodged her appeal regarding the suspension decision made on 29 August 2024. p) On 23 September the Appellant lodged her objections to the NoP. q) On 26 September the Appellant met with Ms Stephens online. The Parties’ respective positions[6]In essence the Appellant’s position is that the threshold test in regulation 9 is not satisfied so the suspension should be lifted. Suspension is not necessary, or justified, and is disproportionate.[7]We noted that in her case summary (see D4) the Appellant contended, amongst other matters, that she was the victim of criminal actions by the bailiffs and the police. Her action was “lawful, reasonable, and aimed at safeguarding the children in her care”. The suspension is disproportionate in light of “the remediation she has undertaken, including months of reflection, moving to a new home, completing safeguarding training and receiving support from parents of children in her care, the vast majority of whom would like to resume care with her.” She contends that suspension is retaliatory following a complaint she made against an ex-employer and the LADO at Central Bedfordshire. Ofsted’s decision on 19 July 2024 was biased.[8]In her witness statement dated 27 September 2024 the Appellant maintains, amongst other matters, that:
“a) The video evidence shows that I was the victim of criminal actions by the high court bailiffs at approximately 18:15 on 12th March 2024. It is unreasonable for Ofsted to penalize me when my responses were proportionate and within the law. b) If the children in question were, as Ofsted contends, ‘distressed and distraught’, the available video evidence and testimonies clearly demonstrate that this distress was directly caused by the actions of the police officers, not by me. c) At no point did I cause harm or distress to the children, and as the Respondent concedes, any upset was a direct result of the police’s actions of placing the unaccompanied four-year old children into a dark police car, not mine. d) The Respondent has failed to prove injury. e) The Respondent has also failed to prove liability under the “But for Test”. f) It is therefore inappropriate for the Respondent to suggest that the Appellant’s actions caused children to be harmed.”
[9]The Appellant relies on the fact that she attended risk assessment training on 21 September and has provided a reflective journal regarding the events of 12 March 2024.[10]The Respondent’s position is that the suspension decision was and remains necessary, justified and proportionate. It contends that there are three pieces of evidence that indicate the current level of risk is that there may be exposure to a risk of harm.• The interview with the Appellant on 26 September 2024• The risk assessment produced by the Appellant; and• The Appellant’s evidence before the panel. The Legal Framework[11]The statutory framework for the registration of nursery provision is provided under the Childcare Act 2006. Section 69(1) of the Act provides for regulations to be made dealing with appeal against the suspension of a person’s registration: see regulations 8-13 of the Childcare (Early Years and General Childcare Registers) (Common Provisions) Regulations 2008 (hereafter “the 2008 Regulations”).[12]When deciding whether to suspend registration the applicable test is that set out in regulation 9 of the 2008 Regulations. It is that:
“…the Chief Inspector reasonably believes that the continued provision of childcare by the registered person to any child may expose such a child to a risk of harm.”
[13]“Harm” is defined in regulation 13 as having the same definition as in section 31(9) of the Children Act 1989 which, (as amended by s 120 of the Adoption and Fostering Act 2002) provides as follows:
“ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill treatment of another; “development” means physical, intellectual, emotional, social or behavioural development; “health” means physical or mental health; and “ill-treatment” includes sexual abuse and forms of ill-treatment which are not physical.”
[14]The immediate duration of suspension under regulation 9 is for a period of six weeks. It may, however, be extended to 12 weeks under regulation 10. This provides that: “Suspension of registration: further provisions[10]—(1) Subject to paragraph (2), the period for which the registration of a registered person may be suspended is six weeks beginning with the date specified in the notice of suspension given in accordance with paragraph (4). (2) Subject to paragraph (3), in a case in which a further period of suspension is based on the same circumstances as the period of suspension immediately preceding that further period of suspension, the Chief Inspector’s power to suspend registration may only be exercised so as to give rise to a continuous period of suspension of 12 weeks. (3) Where, however, it is not reasonably practicable (for reasons beyond the control of the Chief Inspector)—(a) to complete any investigation into the grounds for the Chief Inspector’s belief referred to in regulation 9, or(b) for any necessary steps to be taken to eliminate or reduce the risk of harm referred to in regulation 9, within a period of 12 weeks, the period of suspension may continue until the end of the investigation referred to in sub-paragraph (a), or until the steps referred to in sub-paragraph (b) have been taken.”[15]Under regulation 11 suspension “must” be lifted by Ofsted if the circumstances described in regulation 9 cease to exist. This effectively imposes an ongoing obligation upon the Respondent to keep the need for suspension under review.[16]The first issue to be addressed by the panel is whether it reasonably believes that the continued provision of childcare by the registered person to any child may expose such a child to a risk of harm (the threshold test).[17]The burden of satisfying us that the threshold test under regulation 9 is met lies on the Respondent. The standard of proof ‘reasonable cause to believe’ falls somewhere between the balance of probability test and ‘reasonable cause to suspect’. The belief is to be judged by whether a reasonable person, assumed to know the law and possessed of the information, would believe that a child may be exposed to a risk of harm.[18]We are guided by Ofsted v GM and WM [2009] UKUT 89 (AAC) at [21]:
“Although the word “significant” does not appear in regulation 9, both the general legislative context and the principle of proportionality suggest that the contemplated risk must be one of significant harm.”
[19]If the threshold test is met, the Respondent bears the overall burden of persuading the panel that the decision under appeal is in accordance with the law, justified in terms of a legitimate public interest objective, and is proportionate in all the circumstances. The Hearing on 1 October 2024[20]The judge explained at the outset that the panel had read the indexed e-bundle consisting of 841 pages (PDF) in advance, the contents of which are fully set out in the index and which includes reference (in red type) to video footage sent separately which we had viewed. We had also viewed all the footage provided by the Appellant for this appeal. We had received the bundle lodged by the Respondent with regard to its strike out application. We had also received skeleton arguments from both parties.[21]The parties confirmed that they had received the bundles/documents referred to. There were no issues raised at the hearing regarding the bundle, exhibits or lack of access to any documents and/or video footage.[22]There were no significant/enduring difficulties with the video connection on 1 October.[23]At the outset of the hearing the judge explained that our task was to decide the appeal against the Respondent’s decision, made on 29 August 2024, to continue the suspension for a further six weeks. Whilst the reasons given by the previous panel regarding the appeal before them are highly relevant, we are not bound by their decision. Further, we are not conducting an appeal against the decision of that panel. The Appellant has exercised her right of appeal against the Respondent’s decision made on 29 August 2024 and that is the only matter before us. We must make our own risk assessment and consider proportionality. We take into account evidence available as at today’s date, and not least because of the ongoing obligation imposed on Ofsted (and therefore this panel standing in Ofsted’s shoes) to actively consider the need for suspension an ongoing basis. Additional Evidence and other preliminary matters[24]Each party had lodged a T109 application seeking to adduce late evidence. The Respondent’s new evidence was an updating statement from Early Years Senior Officer Sarah Stephens (EYSO) which exhibited the documents provided by the Appellant at interview with Ofsted on 26 September 2024. The Appellant’s new evidence was her witness statement which she had brought up to date as at 27 September. The parties were in agreement that the late evidence from each side should be received by the panel. The panel agreed to do so. The Respondent’s T109 application dated 13 September 2024 to strike out the appeal[25]On 20 September 2024 it was directed by Judge Khan that the Respondent’s strike out application be considered by the panel at the hearing of the appeal. Soon after the hearing began we indicated that it appeared to us that the threshold for a strike out (i.e. no reasonable prospects of success) is, as a matter or law, a high one and, further, this seemed a difficult concept to establish when the essential issue engaged by the right of appeal is an up to date assessment of risk and proportionality, taking into account further evidence and developments since the decision was made.[26]Following a brief adjournment to enable instructions the Respondent decided not to pursue the strike out application.[27]The panel heard opening statements from both parties. We heard oral evidence from the following witnesses: For the Respondent:• High Court Enforcement Agent (HCEA) Darris Thomas• HCEA Karen Dover• Early Years Inspector (EYI) Emma McCabe• Early Years Senior Officer Sarah Stephens For the Appellant:• Ms Marcia Steele. The Adjournment on I October[28]In the event the cross examination of the Respondent’s witnesses meant that the Appellant began her evidence in the late afternoon. Ms Price was not able to complete her cross examination of the Appellant by 5pm on 1 October 2024. Having ascertained that both parties were available to attend a video hearing on 8 October between 12.15 and 1.15pm we adjourned the hearing part heard to that date and gave directions. The Appellant’s further T109 applications[29]After the hearing on 1 October the Appellant lodged T109 applications on 6 October 2024 seeking: a) a variation of the directions given on 1st October. The relief sought was that the Respondent should not be allowed to complete cross examination of the Appellant on the grounds that this was unfair and disproportionate and that the allotted one hour on 8 October should be devoted to closing statements. b) “Remove the Respondent’s videos, including the 3 high court enforcement officer body worn videos from the bundle as the Respondent has in effect failed to file and serve these.” The Resumed Hearing on 8 October[30]The Appellant’s application made on 6 October (see para 29 (a) above) effectively sought a direction that the Respondent be prevented from further cross-examining the Appellant. We did not consider that the Respondent’s cross-examination on 1 October was unfair. We did not consider that the length of time involved in cross examination of the Appellant was disproportionate. The overall impression created by the Appellant’s responses to questions asked was that she was unwilling or unable to answer the questions asked.[31]We also considered the Appellant’s application against a wider context. Much of the hearing on 1 October was taken up by the Appellant’s questions of the Respondent’s witnesses, many of which were not directed to the issue of risk assessment or proportionality. We had allowed considerable latitude given that the Appellant was in person. We noted that the Appellant announced at the end of her cross-examination of Mrs McCabe that the purpose of her questions was to “get her on record” for the purpose of disciplinary action and her complaint.[32]As to the first part of the Appellant’s application (i.e. preventing cross examination) we decided that it would waste the limited court time available to address this with the parties. It was not necessary to do so: the extent of cross examination is a matter for the panel to decide as questions are asked. Further, we considered that the overriding objective, including the fair management of time and resources, was best served by completing the Appellant’s evidence before dealing with her other application about the removal of videos from the bundle. We were very mindful of the risk that the limited hearing time available might otherwise “run out”.[33]In the event when the hearing resumed at 12.15pm on 8 October there were difficulties in video connection, initially with the Appellant and then with Ms Price. These were not resolved until about 12.30pm when Ms Price resumed her cross-examination of the Appellant. At about 12.52pm, when Ms Price was still cross-examining, the connection to the Appellant, which was via her mobile phone, suddenly ceased. Continuing and persistent attempts made by the video clerk to ring the Appellant on her mobile phone from 12.53 until the end of the hearing at 1.15pm, went to voicemail.[34]In considering the way forward, the reality was that the suspension order was shortly due to expire. Ms Price reminded us that regulation 12 (3) provides that:
“(3) In a case where the suspension of a registered person's registration ends before the Tribunal determines the appeal in accordance with paragraph, the Tribunal must dismiss the appeal.”
[35]We were therefore faced with automatic dismissal of the appeal if a decision was not made before the expiry of the suspension, or doing what we reasonably could do to complete the hearing in a fair manner. We did not know what had happened to render the Appellant unreachable. We decided that it was in the interests of justice to further adjourn to provide a further opportunity for the Appellant to attend. The only suitable time for the panel was at 4pm on 9 October 2024. We issued directions accordingly. Further applications made by the Appellant[36]On 8 October 2024 the Tribunal received further applications from the Appellant as follows: At 16:26. Email containing the Appellant’s closing statement/submissions. At 16:27. Email with application that (the Appellant’s) father and daughter are vulnerable individuals and asking that they are not identified in the proceedings by name or by relationship to (the Appellant). At 23:06 and 23:08. Emails with application to vacate the hearing on 9 October as unfair and disproportionate, to vary order dated 8 October as it was unfair, and to allow closing submissions to be submitted on the papers only. The Resumed Hearing on 9 October 2024[37]The Appellant did not attend the video hearing at 4pm or seek to join at any time thereafter. The issue therefore was whether the panel should proceed in her absence. We reminded ourselves that if a decision on the appeal were not to be made before the expiry of the suspension (which we calculated would take effect at 00.01 hours on 11 October) the appeal would automatically be dismissed. We decided it was in the interests of justice to make a decision on the merits of the appeal rather than effectively permitting the appeal to be dismissed on a mandatory/administrative basis.[38]We decided that, desirable though it was that the Respondent should be able to complete cross examination and/or that the Appellant should attend her own appeal, there was simply insufficient time left to accommodate further adjournment. We recognised the potential disadvantage to both parties. We decided that it was appropriate to proceed with the hearing in the Appellant’s absence. We heard Ms Price’s oral submissions and agreed to receive written closing submissions from the Respondent. We had already received the Appellant’s closing statement on 8 October. Further correspondence from the Appellant regarding restricted reporting order/anonymity[39]On 12 October at 08.22 am the Appellant sent an email to the Tribunal as follows:
“My 23-Oct-2024 request for anonymity for my vulnerable father (Re: 2024-01192.EY-SUS - Ms Marcia Janice Steele v Ofsted) was accepted by the Tribunal. Please confirm that my 08-Oct-2024 application (attached) for anonymity for vulnerable individuals has also been accepted.”
[40]This email was confusing because it referred to a request on “23-Oct-2024” which date has not yet occurred. We considered it probable that the Appellant meant to refer to the decision dated 28 August 2024 by Judge Brownlee and panel in 2024-01192.EY.SUS. Having considered the 28 August decision it is not, however, evident that a decision to anonymise the identity of the Appellant’s father was, in fact, made under rule 14 - although we did note that reference was made in the decision on 28 August to a “family member”.[41]It occurred to us that if a restricted reporting direction to protect the identity of the Appellant’s father and/or daughter(s) were to be made/granted by this panel then logic might suggest that, in order to be effective, the restriction would necessarily extend to the Appellant herself because all concerned bear the same family name.[42]In our view an application for a restricted reporting order is a matter that falls to be considered by the judge/panel at the start of the appeal under consideration. We dealt with a restricted reporting direction at the start of the hearing and the Appellant did not mention such a direction for the benefit of her family members. However, we have decided to consider this very late application on its merits.[43]The assertion is that the Appellant’s father is vulnerable. We have not seen any evidence that provides objective support as to how and why the Appellant’s father is vulnerable, or how or why identification in these proceedings will impact upon his interests.[44]We noted also that the Appellant seeks an order to protect the identity of one of her adult children. Her adult children were employed as assistants in the Appellant’s setting. They were involved in the events of 12 March 2024. It is not at all clear to us why the Appellant considers that there is any basis to seek that the identity of her adult child/children should be protected under paragraph 14 (2).[45]We have considered the issues by reference to Article 8 of the ECHR. This is a qualified right. We are prepared to assume for the purposes of dealing with this application that Article 8 rights are engaged. We are satisfied that our decision not to make an anonymity direction regarding the Appellant’s family members is in accordance with the law, and is justified and necessary in the public interest. These are public proceedings. In terms of proportionality we consider that the strong public interest in the principle of open justice outweighs the impact on the private and family life interests of the Appellant’s family members. The Appellant’s application dated 6 October 2024 for the exclusion of the video footage of the HCEAs[46]In essence the Appellant seeks the removal of “the Respondent’s videos, including the 3 high court enforcement officer body worn videos from the bundle as the Respondent has in effect failed to file and serve these.”[47]As set out above the Appellant did not raise any issues with the panel regarding the videos referred to in the Bundle index including the body worn video footage (BWV) of the three HCEAs at the outset of the hearing, or when the HCEAs Thomas and Dover gave evidence. Indeed, in her questions of Mr Thomas the Appellant made reference to specific timed events on the HCEA BWV footage. In our view it is very odd that, if the Appellant had an still unresolved issue with disclosure or access, she did not raise it at the start of the hearing on 1 October.[48]The Appellant did not attend the hearing on 9 October so we could not ask her to explain why she contends that “in effect the Respondent has failed to file and serve” the Respondent’s videos. The Appellant has not satisfied us that she has not been provided with access to the Respondent’s videos.[49]In any event, even if we were to remove the Respondent’s videos from the bundle, and from our consideration, there is still a great deal of written and oral evidence regarding the events of 12 March 2024. There are detailed witness statements of:• HCEA Thomas and• HCEA Dover,• Ms A• Mr B all of whom describe events at particular times, and from different perspectives. The Appellant cross examined Mr Thomas and Ms Dover on 1 October (and on 22 August 2023).[50]We are aware that the Appellant considers that the witness statements of Ms A and/or Mr B should be disregarded because they did not attend to give evidence on 1 October. In our view the fact that a witness has not been called/ attended goes to weight. We remind ourselves that this is not a substantive hearing and we are not finding facts. We are assessing the nature and substance of the concerns and allegations on the basis of the apparent evidence as a whole. The Tribunal’s consideration of the appeal[51]We have taken all the evidence and the material before us into account including the skeletons arguments from each party, the oral evidence and the closing statements/submissions.[52]So far as video footage is concerned the material provided to us by the parties is as follows: Respondent’s footages[1]MDY 12.03.24[2]KAD 12.03.24[3]DRT 12.03.24[4]Conversation between parents - filmed by Mr A and exhibit 1 to his statement[5]Appellant losing composure – distressed child - filmed by Mr A and exhibit 2 to his statement Appellant’s footages[1]Audio recordings (4 items) produced by the Appellant[2]Video Footage (5 items) that Appellant relies on in the current appeal.[53]If we do not refer to any particular piece of evidence, argument, or particular submission, it should not be assumed that these have not been considered.[54]We add that whilst reference is drawn from case law to our “placing ourselves in the shoes of the Chief Inspector”, we are an independent panel making a risk assessment against the threshold set out in paragraph 9, and on the basis of the information available today.[55]Although the word “harm” in Regulation 9 is not qualified by the word “significant”, we consider that the significance of any potential harm is relevant to the issues of necessity, justification and proportionality.[56]Applying Ofsted v GM and WM, we remind ourselves that Regulation 9 sets a low threshold. However, the mere fact that the Regulation 9 threshold is met does not necessarily mean that the exercise of the power of suspension is necessary, justified or proportionate.[57]The evidence regarding the events during 12 March 2024 has been described by a number of witnesses in lengthy witness statements. These include the written statements of a number of witnesses, in addition to those from whom we heard oral evidence.[58]It needs to be emphasised that we are not today involved in making any findings regarding any disputed facts. Our task is that of a risk assessment in the light of the nature and substance of the evidence regarding the concerns/allegations before us.[59]Some of the evidence includes basic matters about which has been little or no real disagreement. Assessing the issue of risk requires us to consider the disputed evidence before us to assess whether the concerns/allegations raised have apparent substance, and to consider the nature, seriousness and/or potential impact of the allegations made, if true, to the issue of risk. This is a very different exercise to fact finding.[60]We have considered all the material before us. In our view the evidence before us causes grave concern regarding the Appellant’s ability to make appropriate risk assessment regarding the needs of children in her care. We say this because the evidence suggests that: a) The Appellant knew in advance that the HCE agents would be attending to seek to evict occupants from the premises at Steele Walk on 12 March 2024. b) It appears that the writ of possession had been scheduled to be executed by HCEAs on 26 February 2024 but this had apparently been deferred because it was communicated by the Appellant, or someone on her behalf, that a person (or persons) in the house had communicable infection. c) There is seemingly credible evidence that the Appellant had informed parents that she had to cancel her childcare services due to be provided on 26 February 2024. This communication with parents was, seemingly, not conveyed on the basis that an eviction might take place, but rather that the Appellant had an appointment to do with planning. d) It appears to be common ground that the Appellant had not taken any steps to cancel arrangements to care for children at her home in advance of 12 March 2024. e) It is apparent that the Appellant knew that HCEAs would attend to enforce the writ of possession on 12 March 2024 because they had served notice and she applied to the High Court District Registry at Luton County Court for a stay of the writ of possession. Her application was dated 11 March but was apparently submitted on the morning of 12 March. It is unclear why the Appellant’s application for a stay was made so late. It appears from the preamble to the court’s order on 12 March the Appellant had been aware of the possession proceedings since at least November 2023. f) The evidence supports that from the time of their arrival at about 10 am on 12 March 2024 and thereafter across the day, the HCEAs asked the Appellant to call parents to request that they come and collect their children as soon as possible. g) The Appellant maintains that she sent a group WhatsApp message to all parents to this effect “Please collect your children asap” at 10.29 (I320). The evidence as to the extent to which this was communicated to all parents is in issue. h) There is no clear evidence to support that the Appellant directly telephoned any parents to request that they collect their child/children. i) There is (disputed) evidence from some parents, Ms A and Mr B, to the effect that they were not called and did not receive any WhatsApp communication from the Appellant during the day requesting that they attend to collect their child/children. j) The Appellant attended a video hearing with the Judge sitting at Luton County Court at about 4pm. Her application for a stay of the writ of possession was refused. k) The evidence suggests that at 16.58 the Appellant contacted Ms A asking if her child A could stay an hour longer than her usual time. Ms A says she was surprised by this request. l) Ms A says that she then received a further message from the Appellant asking if her child could stay on a “sleep-over”. This surprised Ms A because she had made plain that a “sleep-over” for her child was not something that she would ever want or request. (We note the appellant’s case that a “sleep-over” in this context does not refer to staying the whole night. We note that it appears to involve children staying late and wearing clothes suitable for sleeping). m) Ms A says that she was concerned by the Appellant’s messages and so went to pick up her child. The Appellant came out to her car. Ms A wanted to collect her child and was confused and distressed by what was going on. When the front door was opened by the HCEA to enable Ms A to collect her child the Appellant sought to gain access to the property. A physical altercation between the Appellant, the HCEAs and others then ensued. Ms A managed with some difficulty to collect her child, who was wearing an adult tee short and underwear. n) Mr B had collected his child at about 5.15 which was the usual time. He says that after he had done so he was approached by a lettings agent who was present outside the house and who told him that bailiffs were in the house. Mr B returned home and made enquiries of the police. He later returned the Appellant’s house, remained outside the Appellant’s house and made two videos which are exhibited to his statement. o) The panel notes the terms in which the Appellant wrote to both Ms A and Mr B on 17 March 2024. In summary the letter to Ms A indicated an intention to sue her in defamation in the sum of £54,000 and a further sum of £7,500 for Harassment. However, the Appellant offered Ms A the opportunity to issue a full public apology and retract her statements. The letter written to Mr B on the same day referred to his “conduct on the evening of 12 March” and to his “disseminating false information about me”. It did not specify the amount of damages sought but in general terms was in the same tone as the letter sent to Ms A. p) Suffice to say that in our view the nature and tone of each of these letters is such as to cast very serious doubt on the Appellant’s insight and attitude regarding the events of 12 March 2024. These letters raise serious issues about the quality of the Appellant’s judgement. The contents may also engage concerns regarding the Appellant’s integrity given the nature of the offer made.[61]The core of the Appellant’s case appears to be that she has no real responsibility for the events of 12 March 2024. Amongst other matters, she contends that the eviction was illegal because she had not been named in proceedings and/or had not been given notice as an occupier. She contends any harm caused was the responsibility of the HCEAs and/or the police. She contends that Mr Munn of Bedfordshire Social Services had made a risk assessment, over the telephone. Her case is that he had decided that the children were in a safe place and that he had said that eviction should not take place whilst children were present. The extent or import of Mr Munn’s views is in issue. The Appellant maintains that the HCEAs acted unlawfully and she was entitled to act as she did because their actions were illegal. She maintains that she was assaulted by the HCEAs and acted in self-defence. She contends that some police officers who attended in the evening acted unlawfully. She also contends that a “but for” test should be applied when considering the events of 12 March 2024. She considers that she has been treated unfairly and has been racially discriminated against by the Respondent. She contends that the decisions made by the Respondent are due to institutional racism. She relies upon an extract from the Baroness Casey Review Final Report March 2023 and also the Children Commissioner Report on strip searching of children in England and Wales (August 2024).[62]We noted that the Appellant has previously said that she believes that the suspension order on 19 July 2024 was made by Ofsted in retaliation to a complaint she had made regarding an inspector.[63]The Appellant also relies on two first instance FtT decisions which illustrate the Tribunal’s approach at first instance to the assessment of risk and proportionality in those particular cases. These decisions are not binding and are assessment specific. (The panel judge in one case cited was the judge in the instant appeal).[64]We recognise that the Appellant has said in her statement dated 27 September that she has reflected on what happened and has undergone further safeguarding training. She has provided a reflection on risk assessment. She has said that the eviction was an “extraordinary” situation, which we take to mean that her case is that an eviction situation it is unlikely to recur.[65]In our view the evidence suggests that there was always a clear and obvious risk that the writ of possession would be executed on 12 March and yet the Appellant did not make arrangements to ensure that minded children were not present that day. In our view the Appellant’s decision-making raises very serious issues indeed regarding her ability to safeguard the interests of minded children.[66]Even if we assume in the Appellant’s favour that she thought her application for a stay of the writ of possession might succeed, it was a serious error of judgment to have taken in children to be minded that day. Further, the evidence suggests that the Appellant knew by about 4pm on 12 March that her application for a stay of the writ had been refused. The evidence suggests that she messaged Ms A to seek her agreement that child A would stay with her for an hour longer than her usual collection time, and soon after, messaged Ms A again suggesting that child A stay on a “sleepover”.[67]If these facts are true it is a very startling picture indeed because it suggests that the Appellant was using child A as a means of frustrating the eviction. The evidence suggests that the Appellant’s requests to Ms A were motivated by the Appellant’s understanding that the HCEAs would not take possession until all the children had left. Given the fact that the application to the court had been refused by about 4pm it is very difficult to understand why the Appellant remained motivated to continue to resist enforcement of the order by encouraging Ms A to allow her child to stay, and with Ms A in ignorance of the facts.[68]It appears to us that there is substantial evidence that suggests that the Appellant’s focus on 12 March 2024 was to seek to protect her own interests. The evidence clearly tends to suggest that the Appellant did not consider the interests of minded children and, further, that she sought to use the presence of children to seek to prevent, frustrate or delay enforcement of the writ of possession. There came a stage, even on the facts as stated by the Appellant, where this lacked rationality.[69]In his witness statement Mr Thomas describes the atmosphere in the house from their arrival at 10 am. Amongst other matters, he says that the Appellant screamed insults at himself and Ms Dover. He says that she called him a paedophile and made remarks to the locksmith about him being a white man married to a black woman and she did not approve of this. Mr Harris says that the Appellant used foul and abusive language within earshot of the children. He says that she accused another HCEA, Mr Delaney, of sexual assault.[70]If what Mr Thomas is saying is true it suggests that the Appellant’s behaviour was erratic. For example, Mr Thomas says that at times she was confrontational and aggressive and at other times was nicely spoken and polite. He says that after the video court hearing she told them that she had won. However, the HCEAs had already been informed that her application had been dismissed.[71]The Appellant may or may not have had reason to question the validity of the possession order or the writ of possession. With respect, that is not our concern. The substance and nature of the allegation is that the Appellant accepted children into her care when she knew that High Court Enforcement Agents would attend that day to enforce the writ of possession. The evidence as a whole supports raises very serious and obvious issues about the Appellant’s judgement and her priorities.[72]The current circumstances on which the Appellant relies are that she has undertaken risk assessment training and has provided her reflective risk assessment about the events of 12 March in a document dated 21 September. It appears to us that this document and her evidence as a whole tends to show that she continues to seek to deflect or evade responsibility by blaming others.[73]The Appellant argues that the Respondent has not proved that there was “injury” to any child at the setting on 12 March. This suggests to us that the Appellant is unable to recognise that emotional harm may be caused to the health or development of young children exposed to a situation where adults, including care-givers, are engaged in physical and verbal conflict. In our view, this lack of insight, in itself, places children at risk.[74]There is clear evidence that supports that in the late evening on 12 March two children, C and D, were taken from the Appellant’s home by police officers and were placed in a police vehicle whilst the arrival of their parents was awaited. At least one of these children was extremely distressed. The Appellant blames the police for these events and offers no real reflection on why it was appropriate that she had allowed/encouraged children to be or stay in the setting when the court had refused her application for stay of the eviction process and HCEAs were seeking to secure possession under a court order.[75]We note that the Ms C, the mother of C and D, has provided a supportive statement and has concluded, having asked questions of one of her children, that her children were not harmed by events. On the other hand, other witnesses describe a volatile and chaotic situation to which, most would think, children should not have been exposed.[76]The reality regarding care of young children in a domestic setting is that the regulator must have confidence that the registered childminder can be trusted to safeguard the best interests of children, and not least in any situation of challenge. Experience in this specialist area informs us that there are many and various situations that will arise which require the registered childminder to actively put the need to safeguard the interests of children first. The sorts of challenges that require the need to “do the right thing”, over and above self-interest, are relatively common occurrences in childcare. The need for trust and confidence is enhanced when children are minded in a private domestic setting because of the absence of other protection/oversight such as might be available in a nursery setting.[77]We have considered the evidence regarding the up to date position of the parties. The nature and substance of the material before us is such that we consider that the test was satisfied at the date of the decision and remains satisfied today. In our view the nature and substance of the evidence regarding the events of 12 March 2024 raises serious issues regarding the Appellant’s behaviour and the choices she made. On the basis of the material before us we have little or no confidence that faced with any challenge which impacts on her interests the Appellant would place, or would be able to place, the interests of children above her own interests.[78]For all the reasons we have given the Respondent has satisfied us that the threshold test in regulation 9 is met. Applying regulation 10 (2) we find that the suspension decision under appeal arises from the same circumstances as the immediately preceding suspension. Here, the period of suspension with which we are engaged is a continuous period of 12 weeks. We therefore considered whether the Respondent had satisfied the requirements of regulation 10 (3).[79]Mrs Stephens told us that the Respondent is still investigating matters relevant to substantive consideration of the Appellant’s suitability. She confirmed that in line with the regulatory process regarding consideration of cancellation the Respondent intends to carry out an interview with the Appellant before a substantive decision on the NoP is made. This will include ongoing consideration of whether any perceived risks can be adequately mitigated which is an essential component in proportionate decision making. We noted that the Appellant during her cross examination of Mrs Stephens said that she wants to meet with Ofsted again. We are aware that there has been difficulty in arranging with the Appellant since June 2024 but a meeting, albeit for a limited purpose, did take place on 26 September 2024. We are satisfied that it has not to date been reasonably practicable for the Respondent, for reasons beyond the control of the Chief Inspector, to complete its investigation by way of interview regarding the substantive issues, or for any necessary steps to be taken to eliminate or reduce the risk of harm. We are satisfied that the Respondent has to date done what it can to progress matters in a timely way.[80]We are satisfied that the decision made by the Respondent was/remains in accordance with the law and was/remains necessary to protect the public interest in the protection of the health, safety and welfare of children pending further investigation. Proportionality[81]Ms Price suggested that the decision should be viewed as proportionate because there was only one day left to run. Taken to its logical conclusion this argument would preclude any real consideration of proportionality in very many suspension appeals. This is because such suspension decisions when made are for periods of six weeks at a time, and appeals can often be heard towards the end of the suspension period. Whilst we make the decision based on evidence as at today our essential task is to decide whether the decision should be confirmed or set aside and that inevitably involves considering whether the decision made on 29 August 2024 was proportionate. We do not consider that the fact that the decision is about to expire means that we do not have to consider the issue of proportionality in the round.[82]We consider that the Respondent makes a better point regarding the Appellant’s inability to lawfully operate as a childminder. We agree that the Appellant has not provided unequivocal evidence to support that she is permitted under the terms of her current tenancy to operate a childminding business at the property. She told us in terms that the “landlord will only let her look after neighbours’ children”. The Appellant relies on an email from the property consultant engaged by her current landlord which effectively says the same. That is not the same thing as saying that the landlord permits her to operating a business as a childminder in the premises let.[83]Looking at the matter in the round we accept, of course, that the Respondent’s decision has obvious reputational implications. The Appellant is currently working as a lecturer in childcare. We have little doubt that the fact of suspension, although intended to be a neutral act pending investigation and/or a substantive decision, is likely to have had, a significant adverse impact on the Appellant’s reputation and on her income and livelihood.[84]We have carefully considered all the matters raised on the Appellant’s behalf. Suspension is always a very serious matter because of the adverse impact on livelihood, professional reputation, standing and business viability. A decision whether or not to suspend is never a decision to be taken lightly.[85]We bear fully in mind that the outcome of past inspections was a judgement of “good”. We take into account the evidence of those parents who, despite the events of 12 March 2024, value the service provided by the Appellant and have said that they wish her ability to childmind to be restored.[86]We balanced the harm to the interests of the Appellant and others affected against the risk of harm to children looked after by the Appellant as a registered childminder pending the completion of Ofsted’s investigation and its ongoing consideration of whether substantive enforcement steps are necessary.[87]Having considered all the weight and apparent substance of the material before us we consider that the need to protect young children against the risk of significant harm pending further investigation and decision making by the Respondent outweighs the adverse impacts of suspension on the Appellant and all others affected. The decision made was/is fair, reasonable and proportionate to the public interest in the protection of the health, safety and well-being of children.[88]We confirm the decision made on 29 August 2024 to suspend the Appellant’s registration for the period of six weeks from 30 August 2024. Decision The decision to suspend registration dated 29 August 2024 is confirmed. 1. Tribunal Judge S Goodrich 2. First-tier Tribunal (Health Education and Social Care) 3. Date issued: 23 October 2024