Keelan Taylor Care Ltd v Ofsted [2025] UKFTT 1404 (HESC)

Neutral Citation Number: [2025] UKFTT 01404 (HESC)First-tier Tribunal Care StandardsThe Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care) Rules 20082025-01682.EY-MOUHearing Heard on 19 November 2025 remotely via video
Before
Mr SJW Lewis (Tribunal Judge)Ms D Horsford (Specialist Member)Mr M Green (Specialist Member)
Between
Keelan Taylor Care LtdAppellantv
Between
OfstedRespondentDECISIONDate 2025-11-24

The Appeal

[1]The Appellant is a small organisation registered under the Care Standards Act 2000 (“the Act”) to carry on a supported accommodation service. It brings this appeal (“the Appeal”) against a decision (“the Decision”) by the Respondent, set out in a written notice dated 9 October 2025 (“the Notice), to restrict accommodation with immediate effect until 1 January 2026 under section 22B of the Act (“the Restriction”). The Decision has the effect that no child may be accommodated by the Appellant at any of its premises unless the child was being accommodated at the time the Notice was served and has continued to be accommodated since.[2]A supported accommodation provider, so far as relevant to this case, is a provider which accommodates one or more children aged 16 or 17 who have been placed by a local authority under the Children Act 1989. The general aim of such accommodation is to support children (or young people) to develop independence and prepare them for adult life while keeping them safe in a homely and nurturing environment. On application, the Appellant had three premises listed – but, at the time of the Decision, only one young person was under its care.[3]The Respondent opposes the Appeal.

The Hearing

[4]The hearing (“the Hearing”) took place, over the course of a full day, on video. The Appellant did not have the benefit of legal representation. It was represented by Michael Ferguson. Mr Ferguson has three main roles in relation to the Appellant: the sole company director; the Nominated Individual; and the Registered Service Manager. The Registrant was represented by Ms Wilsden of counsel. We are grateful for the assistance of Mr Ferguson, who presented the Appellant’s case well in what must have been difficult, novel and challenging circumstances for him personally, and Ms Wilsden.[5]The Appellant called two witnesses: Mr Ferguson and (his wife) Kelly Ferguson. The Respondent also called two witnesses: Jo Stephenson (a social care regulatory inspection manager, and the individual who made the Decision) and Kendra Bell (who has a more senior role at the Respondent and was engaged in what might be referred to as quality assurance in relation to these types of regulatory decisions). Two other individuals attended on behalf of the Respondent to observe: Jack Taylor and Toby Buxton (both members of its legal team).

Documents, Evidence, Submissions

[6]A main bundle of documents (“the Bundle”), running through to page J71, had been prepared and provided for us. The Bundle included among other things:(1) the formal appeal application form;(2) the formal response form, with a response document attached;(3) case management orders;(4) a witness statement for each witness; and(5) relevant extracts from the Act. We also had two important videos clips (see below), three WhatsApp voice messages, and a further video of a what seems to be a US comedian. Further, we had skeleton arguments. The Appellant’s skeleton was provided a little late, and (objectively viewed) was part submissions and part additional evidence, but none of that created any real difficulty for the Respondent or the Tribunal and was all fully considered.

Restricted Reporting Order

[7]While no restricted reporting orders were expressly applied for before or during the Hearing, we considered whether we ought to make any. Primarily, we considered the position in relation to children/young people accommodated by (or otherwise under the care of) the Appellant at material times. We concluded, in all the circumstances, and with consent from the parties, that we should make an order, under rules 14(1)(a) and (b) of the rules governing the Tribunal and these proceedings, to prohibit the disclosure or publication of any document or matter likely to lead members of the public to identify any such children/young people, so as to adequately protect their private/family lives. That order extended to the one child in particular who had been accommodated at the time of the Notice (“Child A”). As already stated, Child A was in fact the only child being accommodated at material times. At the time of the Hearing, Child A remained (the sole person) under the Appellant’s care.

Legal Framework and Principles

[8]Section 22B of the Act is the key statutory provision. It provides (as far as is relevant): 22B Notice restricting accommodation at certain establishments(1) The [registration authority] may serve a notice on a person who is registered in respect of an establishment to which this section applies imposing on that person the requirement in subsection (2) in relation to that establishment.(2) The requirement is to ensure that no child is accommodated at the establishment unless the child – (a) was accommodated there when the notice was served; and (b) has continued to be accommodated there since the notice was served.[9]Section 22B does not expressly impose or otherwise set out explicit conditions regarding when a notice restricting accommodation may be served. The position adopted by the Respondent is that it will only serve such a notice where it considers children may be exposed to a risk of harm.[10]“Harm” is a term defined – and given a wide definition – in section 31(9) of the Children Act 1989 as:
“ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another.”
[11]In our judgment, the correct approach for the Tribunal to take to the consideration of the Appeal is as follows. First, we must ask ourselves whether, as at the date of the Hearing (rather than, for example, the date of the Decision), we are satisfied that there is reasonable cause to believe that any child will or may be exposed to a material risk of harm if the registration is not restricted so as to prevent further children being accommodated. The burden of proof in the Appeal is on the Respondent. The standard of proof (“reasonable cause to believe”) falls somewhere between “the balance of probabilities” and the lower threshold “reasonable cause to suspect”. The relevant belief is to be judged by whether a reasonable person, assumed to know the relevant law and be in possession of the relevant information, would believe a child may be put at a material risk of harm. The threshold, therefore, is relatively low. The Tribunal does not need, for example, to be satisfied there has been any actual harm, or that harm is likely in the future. That said, as we consider was made sufficiently clear by the Upper Tribunal (see paragraph 20) in Ofsted v GM [2009] UKUT 89 (ACC), the contemplated risk must be one of “significant” harm. As the Tribunal is focused on assessing current/future risk, we do not need to make conclusive findings of fact (or resolve any associated disputes of fact).[12]Second, if satisfied that the above test/threshold relating to risk is met, we also need to consider whether, objectively viewed, the relevant regulatory intervention (i.e. the Restriction) is proportionate in all of the relevant circumstances. The Respondent, in our view, bears a persuasive burden in relation to that issue.[13]We have had careful regard to the principles set out above, and all written/oral evidence and information before us, and approached this matter with an open mind.

Chronology

[14]Given the broad principle that our role is primarily to assess risk (and then to consider the overall proportionality of the intervention being appealed), rather than to resolve factual disputes, nothing in this section (or anywhere else in this document) ought to be taken as any conclusive finding of fact. However, it is nonetheless important that we set out what appears to us to be the most relevant context.[15]The basic chronology appears to include the following:(a) On 27 July 2025, the Appellant registered with the Respondent in relation to the relevant service. For reasons we do not need to go into, that registration process was relatively lengthy and took longer than usual.(b) On 7 October 2025, two video clips involving Mr Ferguson were sent to the Respondent (“the Videos”). The first involved an interaction between Mr Ferguson and an individual, who the parties both agree was an adult man we consider it appropriate and sufficient to refer to as Mr Y, seated inside a car (“the Car Incident”). The second involved a subsequent incident, on a different day, involving another interaction between Mr Ferguson and Mr Y (and others) outside a primary school (“the School Incident”). Although it was not clear to us, it seems likely that: the Car Incident took place mid-to-late September 2025 and that the School Incident early October 2025; and the Videos were taken by Mr Y, on his phone, and sent to the Respondent by him (or with his knowledge and consent).(c) On 8 October 2025, the Respondent held a case review, in which it considered the Videos (and some other information), and made the Decision. The Decision was based, primarily, on the content of the Videos. On 9 October 2025, the Respondent served the Notice on the Appellant. On 30 October 2025, the Appeal was brought.

Summary of the Parties’ Positions

[16]The Respondent’s position is that the test in relation to risk is readily made out. It is clear, it says, from the content of the Videos in particular, that children/young people would be put at material risk of harm without the Restriction. It is similarly clear, it submitted, that the Restriction is proportionate in all the relevant circumstances.[17]The Appellant, on the other hand, submitted that there is no or no sufficient risk to children/young people within the relevant service provided by it. While the content of the Videos may well be a source of concern, it reflects an issue relating to (and limited to) the private life of Mr Ferguson and his family, and has no or no sufficient link with his professional role(s) relating to the Appellant. As such, the Restriction is not necessary or otherwise justified. Moreover, it will have a disproportionate impact. Conclusions with Reasons Summary

Conclusions with Reasons

[18]We came to the following conclusions:(a) First, in our judgment, there would, at present, be a material risk of harm to children/young people if the Restriction was not in place. We are, therefore, satisfied that the relevant (and relatively low) threshold relating to risk is met.(b) Second, the Restriction, in our view, is, at present, objectively justified as both reasonable and proportionate.[19]We set out further reasoning below. What follows is not designed to cover all the matters touched on in the documents before us or within the Hearing. It is, however, designed to be sufficient to clarify the core reasons why we reached our decision. Our Decision Regarding Risk Summary

Our Decision Regarding Risk

[20]Bearing in mind the principles set out further above, and without going as far as to find facts, we reached the views set out below on the limited evidence before us. Stepping back and trying to look at things in the round, we are satisfied that, as of today, there are reasonable grounds to believe that the provision of the relevant service by the Appellant may expose children to a material risk of significant harm. We rely on the following in support of this view.

Context

[21]Context can often be crucial – in life and in legal proceedings – and, in our judgment, it is important in this particular case.[22]The relevant context is (perhaps inevitably in proceedings such as these) not entirely clear to us. Significant aspects of it may well be disputed, including by people we have not heard from. We keep well in mind, to take one obvious example, that we have not heard directly from Mr Y (and that he has, in effect, had no opportunity to challenge views or actions that may have been attributed to him). As a consequence, we restate and re-emphasise that we are not in this document making any findings of fact. But it seems to us, doing the best we can, that relevant context includes the following or something similar to it:(a) Mr and Mrs Ferguson had, for some time, been relatively good friends with Mr Y and his wife. Their children had, for example, played at their respective houses (or similarly spent time together). It is suggested that Mr or Mrs Ferguson had considered providing financial or similar assistance to Mr Y or his wife at some point, or considered going into business together.(b) That relationship, however, came under serious strain and appears in the end to have broken down irrevocably. Mr and Mrs Ferguson’s submissions are to the effect that, in summary, Mr Y has held and expressed views – in relation to politics or race or other sensitive matters – and/or done various things which they found to be deeply offensive.(c) Matters seem to have come to a head after Mr Y is said to have posted or liked on Facebook (or similar) a video in which a US comedian makes a joke about “the N-word”, which Mr and Mrs Ferguson, for reasons we have some considerable sympathy for, found to be highly inappropriate and offensive. To put it frankly, they considered it to be racist, and to reflect a highly-problematic mindset more generally in relation to race. This was particularly concerning for them as Mr Ferguson is black and their children (who had been round to Mr Y’s house shortly before he seems to have posted or liked the video) are mixed race.(d) We are told that the post referred to above was not an isolated incident. Far from it. There was, according to the Fergusons, a series of comments or posts or other actions by Mr Y which, collectively, indicated to the Fergusons that Mr Y (and others associated with him) held views and/or acted in ways which they, for reasons we can understand, genuinely found to be inappropriate, shocking, and offensive.(e) It seems that Mrs Ferguson raised her/their concerns about Mr Y and his (alleged) views and conduct with Mr Y’s wife. That would appear to have been an entirely reasonable step. Following some messages via WhatsApp, they met in a coffee shop to discuss the situation. The evidence before us indicates that, following that meeting, Mr Y called Mrs Ferguson. He may, it seems, have been unhappy (for some reason) that Mrs Ferguson had contacted his wife with such concerns rather than him directly. The Fergusons’ evidence is that Mr Y was unreasonable with her and shouted (or otherwise raised his voice) at her during that call. Mr Y’s wife, in WhatsApp messages, appears to have encouraged her and/or Mr Ferguson to discuss the matter with Mr Y directly. That said, by the end of the WhatsApp messages, it would appear that the two women – who appeared to take a very different perspective to each other on some key points – agreed that it would be best, in all the circumstances, to end their relationship.(f) Mrs Ferguson’s evidence seems to be, however, that Mr Y continued, thereafter, to be difficult with her: predominantly at school pick-up or drop-off time (the children all attended the same primary school). Among other things, she says, for example, that he had a tendency to push past her or otherwise make contact with her and to (albeit unintentionally) to “spit” on her when he spoke.[23]It is said that the Car Incident and the School Incident arose from the alleged issues referred to above (“the Issues”), and associated matters, which form a highly relevant part of the overall context. The Respondent, for reasons we understand and respect, cautions us against placing too much weight on such context when considering what is a regulatory decision designed to protect children/young people. But, in the end, we think, as we’ve indicated, that context is relevant and important in this particular case.

The Car Incident

[24]The interaction captured on the video is short – around 25 seconds or so.[25]It seems relatively clear from the video that Mr Ferguson approached Mr Y’s parked car and knocked (relatively lightly) on the window next to Mr Y’s seat (the driving seat) to gain his attention. Just before this, a child (presumably Mr Y’s) appears to say “I’m scared” from the back of the car (though it is not clear what the child may have seen or heard, and Mr Ferguson would, it seems to us, have been very unlikely to have heard those words as they were said at low volume). Interestingly: Mr Y, for whatever reason, had already activated his camera and was filming away (though the camera does not appear to be focused on anything, initially, other than the steering wheel). We presume the footage is taken on his mobile phone (it is jerky). Music is playing, on the car radio it seems, in the background. The light is good.[26]Mr Ferguson appears at the start of the interaction to basically be trying to engage Mr Y in a conversation (about the Issues). He seems to be trying to encourage Mr Y to come out of the car in order to do that more easily. He can be seen (as Mr Y turned his phone to start filming him directly) trying to talk to Mr Y through the closed window (though it’s not possible to hear much of what he’s actually saying). Mr Y declines the invitation to talk or go outside, saying “don’t wanna talk to you” a couple of times.[27]Mr Ferguson can be heard saying “course you don’t, course you don’t” a little more forcefully. He can be seen pointed towards Mr Y and heard saying “you’re a racist, you’re a fucking racist”, with his body and face quite close to the window. Mr Y says “OK”. The child in the car says (with an elevated voice this time): “no you are, you’re an idiot” (though again it’s not clear whether Mr Ferguson would have heard that, or for that matter that he necessarily would have known any child was present). Mr Ferguson then seems to say, “can’t wait til I catch you” (possibly adding “you’re a bitch”, though it’s not entirely clear), before walking away.[28]Overall: objectively viewed, it seems to us that Mr Ferguson’s approach, as this short interaction developed, became moderately aggressive in nature. But, on the face of it, we would not put it higher than that. The subsequent incident captured by the second video is, in relative terms, the more concerning one.

The Involvement of Police

[29]While not entirely clear, it seems that Mr Y or someone connected to him involved the police after and presumably in response to the Car Incident. It seems that the police tried to visit Mr Ferguson to discuss something in relation to the matter but that the Fergusons were not in at the time. There seems to have been some discussion between the police and Mrs Ferguson via a video doorbell or similar. The School Incident[30]The video capturing this incident is also short: about 90 seconds. It is again well-lit.[31]In the first 18 or so seconds, Mr Y appears to be walking along a path with one or more of his children at the end of the school day. They are talking to each other. They appear to be in good moods. There are plenty of other children and parents walking the same path or otherwise nearby. Mr Y is again, for reasons unclear, already recording on (it appears) his mobile phone. For this initial period, however, the camera is facing the floor.[32]At around 19 seconds, as the path appears to reach a road outside the school premises, Mrs Ferguson comes into shot approaching Mr Y. She can be heard talking to him. She seems to be challenging him about engaging the police when he had asked them to talk to him directly about the Issues. Before he has an opportunity to respond, Mr Ferguson appears from behind her and asks what he’s saying to his wife. Someone, probably Mr Y, says “oi – get your hands off me” (though it’s not clear there was any significant contact made by Mr Ferguson). At this point, other children (and parents) can be seen in the video looking at the scene developing in front of them.[33]Mr Ferguson starts to raise his voice a little. He invites Mr Y to “talk about it”, inviting him to do that “now”. He adds:
“let’s talk about you sending police to my house”
. Mrs Ferguson can be seen trying to gently pull Mr Ferguson back or restrain him, but also seems at the same time to be saying “you’re an idiot” to Mr Y.[34]Mr Ferguson then starts to raise his voice a little further. He accuses Mr Y (as he had in the Car Incident) of being a racist. About 40 seconds in, he appears to say:
“you’re a racist and I should fucking knock you out”, before again saying “let’s talk about it”
. Mr Y says “should ya”, in response to the knock-you-out comment, and “come on then”, in response to the let’s-talk-about-it comment. Both comments may, it would appear to us, to have been said in a tone designed to wind up Mr Ferguson. Mr Y then says, “no” and “can I go to my car now”. He does not sound, on the face of it, to be in fear or distress. He sounds like someone who knows he has an element of control over the matter, due to the fact he is filming it all.[35]Around this time, Mr Ferguson has been pulled away a couple of metres or so by his wife, but soon returns back towards Mr Y. A child can be heard saying “get away from him now”. Mr Ferguson does not appear to hear that and says to Mr Y, “I don’t care” and “what have you got to say?”, as he seems again to gets close to Mr Y. Mr Y can be heard saying “stop pushing me”. It is not clear whether there was any contact at that point, but another man steps in and places his hand on Mr Ferguson’s chest, in an apparent attempt to create some further distance between him and Mr Y. Mr Ferguson accuses Mr Y of “shouting” (or having shouted) at his wife. Mr Y asserts that he is not.[36]Mr Ferguson says “come on then” to Mr Y, in a relatively forceful tone, and, in a similar tone, repeats “say it again, say it again what you posted on Facebook, say it again, say in again”. Mr Y does not reply but says:
“move out the way” and then “get out the way”
. At that point, it is possible that Mr Ferguson pushes Mr Y a bit – but that is not clear from the video. What does seem clear is that Mr Ferguson then says, “I will knock you the fuck out, I will knock you out”, while pointing his finger towards Mr Y. Equally, it also seems clear that no such violence was carried out by Mr Ferguson.[37]Around this time, Mr Y says, “there’s kids here” (albeit perhaps again with a tone that may be more indicative of someone trying to wind Mr Ferguson up rather someone being genuinely concerned for any child’s welfare). Mr Ferguson says:
“I don’t care about those kids, I care about my kids”
. Mr Y can be heard saying “do ya”, with what may be a sarcastic tone. Mr Ferguson then says: “say it again, say it again, I dare you to, I dare you to” (which we presume to be reference to content of his Facebook post). Mr Y again says, “there’s kids here”, though, again, perhaps without genuine concern. Mr Ferguson calls him “a prick” and walks off and away, with Mrs Ferguson. Mr Y says “thank you”, sarcastically it seems to us, as Mr Ferguson turns and leaves. Further Analysis of the Car Incident and

The School Incident

[38]Mr and Mrs Ferguson gave relatively persuasive evidence that they had formed a genuine view, both individually and collectively, that Mr Y had held and expressed what they considered to be racist and other highly-offensive views in the run up to these two incidents.[39]There is a record of WhatsApp communications between the two wives, in the run up it seems to the Car Incident, on or around 13 September 2025. The messages and voice messages in that chain appear to indicate that the relationship between the adults has, in effect, come to an end due to concerns arising out of the Issues.[40]Despite it seeming like the adults had, in effect, agreed to end their relationship, Mr Ferguson decided to approach Mr Y in the Car Incident and then again in the School Incident. The Fergusons say there were additional issues that led to that. Mrs Ferguson referred to a matter she reported to the police.[41]However, irrespective of the context, the evidence in the Videos suggests that Mr Ferguson has, on at least two recent occasions, struggled to contain his emotions and acted in ways that, objectively, would likely appear to other reasonable people present to be aggressive and threatening. He sought to assure us, with his wife, that he would never have actually followed through on the threats of serious physical violence made in the School Incident and has no history of any such conduct. We cannot know what was in his mind that day, but his behaviour was such that, in our view, it would likely put reasonable people in fear of him committing some kind of physical attack (a punch or similar) on Mr Y, in response to the latter’s purported attitudes or acts etc.[42]Moreover, Mr Ferguson appears to have engaged in such conduct in circumstances where he would have known, at least in relation to the School Incident, that he was in the presence of primary-school-aged children. He was either not concerned about the potential adverse impact (psychologically, emotionally, or developmentally) on those children or was otherwise unable to self-regulate his behaviour.[43]In short, the evidence indicates that Mr Ferguson was, especially in the School Incident, unable or unwilling to stop himself from becoming aggressive and threatening, even in the presence of vulnerable people (i.e. the children). While the apparent context helps to explain his conduct, it does not appear, objectively, to be sufficient to justify it was reasonable or proportionate. Among other things: there appeared to be no immediate risk posed by Mr Y at the relevant points in time (i.e. at the time of the Car Incident or the School incident).

Our Analysis of Future Risk

[44]However, while readily satisfied there was a risk that Mr Ferguson had put children at risk of harm in the past (i.e. in these two incidents), we thought long and hard about whether there was a sufficient risk of Mr Ferguson doing something like that again in the future, and, more specifically, of him doing it in the particular context of the service operated by the Appellant.[45]We had some significant sympathy for Mr Ferguson. On his account, and that of his wife, there is some potentially rather persuasive mitigation in this case. We have in mind the offence caused to Mr Ferguson (even if not intentionally) by the alleged acts/ views of Mr Y, associated concerns he may very well have had in relation to Mr Y, the importance of protecting his family, etc.[46]However, notwithstanding that, and notwithstanding other factors that might point in his favour, Mr Ferguson had other much better options to progress any dispute or grievance he had in relation to Mr Y and as stated above, on the evidence before us, there did not appear to be any imminent/immediate further threat posed by Mr Y. On the contrary, and while recognising that videos can often be misleading, Mr Ferguson appears to be the aggressive one in the Videos, effectively causing an unnecessary level of confrontation in front of children. As Ms Wilsdon put it: he was, it seems, escalating rather than de-escalating.[47]We had due regard to Mr Ferguson’s wider points that these matters relate to a personal or private matter, and would not (and could not) carry across into his professional work or life. He was adamant, for example, that he would never engage in such or similar conduct towards a young person actually supported by the Appellant in supported accommodation etc. He would understand, he submits, that they would be different and more vulnerable, and need help and support etc. He would continue to separate private and working life, as he always has in the past. He pointed to what he indicated was a background of working successfully with children and young people, in which there have never been any material concerns raised.[48]We formed the view that, while of course we could never be absolutely certain about this, it did seem very unlikely indeed to us that Mr Ferguson would lose (or partially lose) control/his temper in the kind of unreasonable and disproportionate way he appears to have done in the School Incident, in relation to such a young person directly (let alone physically assault them). We cannot rule that out entirely of course – it may be possible he would act in some similar way if that young person said something he found deeply offensive or threatening towards his family. But that is not a risk that we consider to be sufficiently likely or material to justify the Restriction.[49]However, we do think that, at present, there is a material risk that Mr Ferguson would or may engage in some similarly aggressive or threatening conduct, in circumstances where children/young people in the service operated by the Appellant were present and exposed to such conduct, towards another adult man (i.e. someone not under the care of the Appellant), if that man seriously offended him or appeared to pose a (non-immediate) risk of some harm to his family. The risk is that Mr Ferguson would (as he appears to have done in the School Incident in particular but also to an extent in the Car Incident) be either unable or unwilling to modify his conduct in the heat of the moment.[50]We also think that the harm that could result from witnessing that kind of conduct is more than trivial. It could well be significant, especially given that the young people at the Appellant would likely be relatively vulnerable already. It is foreseeable, for example, that they may have a history of experiencing (directly or indirectly) physical violence, aggressive conduct, threatening behaviour, etc. Seeing someone – perhaps especially someone in such a senior position at the organisation responsible for their accommodation/care – engage in some similar conduct, at or in connection with the place that’s meant to be safe and nurturing etc, could potentially cause them significant issues in relation to being triggered, for example, or worrying that such conduct might actually be directed towards them or someone they care about, etc.[51]There may also be a less direct risk. It is difficult at present to feel adequately assured that Mr Ferguson would likely take sufficient steps to manage a situation in which someone else (e.g. a support worker employed by the Appellant) acted in such a way in similar circumstances. Would he act as he should if, for example, a relatively serious conduct issue arose in relation to a support worker’s private life, so that it could be properly assessed (as a potential safeguarding risk etc) by a relevant third party?[52]Since the two incidents, Mr Ferguson does not appear to have taken any firm steps to improve his capability to manage his emotions/conduct in such potential situations. He has not, for example, engaged in any counselling, therapy, or anger management type sessions; or, it seems, done much (or sufficient) self-reflection or research on what actually caused his actions in these incidents or what he can do to learn from the situation and prevent any reoccurrence. That said, the fact that his apparent actions have led to the Restriction and to these proceedings may well act as a future deterrent or otherwise help to reduce the risk of any repetition.[53]We formed a view that, to his credit, Mr Ferguson appeared to be developing some additional levels of insight (e.g. into the seriousness of his conduct, the relevant risks, and the concerns that those tasked with regulation might reasonable have, etc) during the course of the Hearing. That kind of insight appears to be somewhat absent at earlier points, with Mr Ferguson coming across as notably defensive about things (albeit for reasons we can understand). It seems to us that, until part way through the Hearing, Mr Ferguson appeared set on the position that, in effect, he had not really done anything that wrong and/or that what he did had no relevance at all to his position of trust working in connection with vulnerable children. Sufficient insight is particularly important, in our view, in this case. We would describe Mr Ferguson as currently being in the process of developing it. The Respondent may be interested in assessing whether it has developed further and sufficiently, when it is able to carry out its monitoring visit etc. Any future Tribunal panel may well also be interested to see whether it’s developed and what steps Mr Ferguson has taken to assure others that similar conduct will not be repeated in future.

Our Decision Regarding Proportionality

[54]In our view, once the risk threshold had been met, this second question (about proportionality) was relatively easy to answer. In the circumstances, we are satisfied that the Restriction is objectively justified as being both reasonable and proportionate.[55]First, we’ve formed a view that the harm contemplated is more than merely trivial or minor: it is, in our view, sufficiently significant/serious. It could, realistically, include a significant level of emotional, psychological, or developmental harm. We think that the likelihood of the risk materialising is not yet low enough: the evidence before us suggests a potential pattern of two actual issues in recent weeks; and there is no longer-term history, for this service, of strong and reliable previous compliance. We have, we stress, had regard to the positive evidence in relation to Mr Fergurson’s work regarding the Appellant; but, at this time, in light of the other evidence, those things are not sufficient to reduce the risk profile enough.[56]Second, there is a legitimate aim engaged in relation to the measure adopted. It relates, ultimately, to the protection of vulnerable children/young people from a risk of significant harm. The Restriction relates directly to the pursuance or achievement of that aim. The importance of the aim means that the Restriction is more readily justified as proportionate. Its immediate purpose is to keep children/young people safe during a period in which the Respondent can conduct a proper assessment of risk and/or the Respondent (and/or Appellant) can take steps necessary to reduce the relevant risk to an acceptable level. Importantly: the Respondent does not appear, at present, to be in an effective position to carry out a visit, to properly assess the risk and/or to manage any relevant risk, because of some ongoing police involvement. The Respondent told us, and we accept as likely, that the police have been in the process of actively investigating the Car Incident and/or the School Incident. That investigation is, it seems, ongoing. It may or may not be close to a conclusion. It may or may not result in some further police action (although Mr Ferguson indicated that he thinks the police, given what he’s been told, will take no further action against him). The Respondent is currently still waiting on the police providing consent for it to proceed with its regulatory assessment. It has been pushing for that. (We would expect it to continue to push for it and to consider whether it is necessarily required in this particular case.) The Restriction is justified, at present, until the Respondent can carry out an adequate risk assessment. That will be important: the Respondent will then be well-placed to properly asses the real risk level – once it has seen the setting, spoken to Child A, spoken to the support workers, spoken in more detail with Mr Ferguson about the incidents and any potential link to work, spoken more to relevant local authorities etc. The Respondent told us that such a visit/assessment is likely to take a day or so, and could be arranged rapidly once the police give the go-ahead. Further steps may or may not then need to be taken, by the Respondent, to manage any relevant risk (i.e. regulatory steps designed to reduce or eliminate the risk).[57]Third, we have tried to have careful regard to the adverse impact of the Restriction on the Appellant and any other relevant people, including Mr Ferguson and his family. We can see that the matter, generally, may well have an adverse impact on them. That said, there is at present a lack of direct or persuasive evidence from the Appellant about the nature and degree of any such impact. They told us the Appellant, with just one service user, is currently operating at a loss in a way that is not sustainable. Reasonable returns/profits can only be secured with additional service users. The Restriction is preventing that possibility. There is no sufficient evidence before us, however, that the Appellant, or any relevant children or others, are, as a result of the Restriction, disproportionately impacted. There is no financial evidence before us. There is no firm date by which it is said the Appellant will need to cease operating. Nor is there any firm evidence that the Appellant has not been able to take on new service users as a result of the Restriction (and the Respondent tells us, albeit again without support evidence, that there are sufficient “beds” in this particular geography at present for service users. Importantly, the Respondent decided to limit the intervention to a time-limited restriction on additional service users. It had initially considered a wider suspension but decided that the risk of moving Child A to new accommodation, in circumstances where Child A was relatively independent and settled, and where other support and checks were available to Child A, would make suspension unnecessary and disproportionate. Similar and sufficient assurances, however, could not and cannot realistically or reasonably be obtained in relation to other children who could be placed at the Appellant, from a large national pool of local authorities (who would not need to inform the Respondent before placing children there). Further, the relevant risk is higher, or less well mitigated, at the Appellant, due to the fact Mr Ferguson is in each of the three main positions of power/responsibility: sole director; Nominated Individual; and, perhaps most importantly, Registered Service Manager. The types of internal checks and balances that might often be present, with different people occupying some such position, do not seem to be present here. And we did not, for example, get to hear from any of the (three) support workers who appear to be engaged to work with Child A for the Appellant. Overall, we are content on the evidence currently before us that the importance of the legitimate aim being pursued outweighs the adverse impact at present. In forming that view, we had in mind the limited time period of the Restriction and the obligation to actively keep it under regular review (and to lift it should the Appellant demonstrate a sufficient material change in the situation etc).[58]Fourth, we are satisfied that the legitimate aim cannot realistically be achieved adequately by any less-restrictive measure. The evidence indicates that, in essence, other sufficient less-restrictive measures are not available at present (due mainly to ongoing police involvement and the lack of consent for the Respondent to proceed with its own regulatory assessment/investigation). It therefore appears appropriate and reasonably necessary to continue the Restriction for at least some additional time. Our decision is based, as it must be, at the time of the Hearing and on the basis the Restriction is due (in principle at least) to end relatively shortly (on 1 January 2026).[59]In our judgment, therefore, the Decision was rational, proportionate, and lawful; and it continues – for now at least – to be so.

Further Comments

[60]We wanted to make some wider comments. First, we were generally rather impressed with Mr Ferguson in the Hearing. He came across as a person who is genuinely committed to working hard to support and protect his family. He was described, by his wife, as a brilliant and loving father. That, in general, of course, is to his credit. He also came across as someone who was/is genuinely concerned about racism and how it might impact negatively on his particular family and that that – along with the urge to, as he saw it, protect his family – was a significant part of this motivation in the interactions captured on the Videos. While we can’t be sure, it seems entirely possible that Mr Ferguson was provoked or goaded intentionally by Mr Y (trying to wind him up with comments, tone of voice, filming him, perhaps pulling faces off camera etc).[61]Second, we recognise that he did not have the benefit of legal advice/ representation. Had he had, the Appellant’s case may have been advanced in a way that was more persuasive legally. That said, some of the evidence from Mr Ferguson and his wife did not seem to be entirely consistent with the video evidence, and that tended to reduce the reliance that we may have otherwise felt able to place on their evidence.[62]Third, while satisfied there is a material risk, that part of the decision was not easy. We came quite close to concluding the situation in relation to Mr Y was so particular – and that the incidents were so isolated – that there were too small a risk of repetition in any situation relevant to the Appellant. Had we done so, we would have been bound to lift the Restriction. Had Mr Ferguson been able to demonstrate a little more insight into the problematic nature of the conduct he appears to have engaged in (especially having done so in front of children), and the legitimacy and relevance of concerns relating to his roles/work at the Appellant, or been able to point to more evidence of steps taken to reduce or manage that risk (e.g. anger management work or perhaps someone providing oversight other than him in or in addition to his three key roles), or been able to point to more evidence from more independent sources about his previous record of dealing well with children and difficult circumstances, we may have reached a different decision, especially given the apparent fact that Mr Ferguson is likely to have relatively limited direct contact with the children and that none of them would ever realistically be living at his home.[63]Fourth, our decision is a decision very much limited to this point in time. The longer the Restriction is in place, the more difficult (other things remaining broadly equal) it would probably be to justify it. If for example, there is some lengthy delay in the police concluding its investigations or in giving express “consent” (to the extent that such consent is formally required, rather than merely expected or desirable, in the particular circumstances of this case), we would be concerned about the Respondent simply seeking to rely on that and not looking to proactively take further steps towards carrying out a more full risk assessment.

Outcome

[64]The Appeal is dismissed. The Decision is confirmed. 65. First-tier Tribunal (Health, Education and Social Care) Date Issued: 24 November 2025