M v Ofsted [2026] UKFTT 821 (HESC)

First-tier Tribunal Care Standards

The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care) Rules 2008

NCN: [2026] UKFTT 00821 (HESC)

01879.EY-SUS

Between

Mrs MAppellant

(Anonymity Direction made)Appellant

-v-

Between

OfstedRespondent

Before

Tribunal Judge S Goodrich

Specialist Member A Jinabhai

Hearing by video-link

on 29 May 2026

DECISION ON APPEAL AGAINST SUSPENSION

Representation

Appellant: Mr Owusu Abebrese of counsel, instructed by Samuel Ross Solicitors.

Respondent: Mr Toby Buxton, Ofsted Legal services.

The Appeal

Date 2026-06-03

[1]By notice dated 6 May 2026 the Appellant appeals against the Respondent’s decision made on 29 April 2026 to suspend her registration as a childminder on the Early Years Register, and the compulsory and voluntary parts of the Childcare Register, for a period of six weeks until 9 June 2026.

[2]The right of appeal lies under regulation 12 of the Childcare (Early Years and General Childcare Registers) (Common Provisions) Regulations 2008. The Appellant 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]During the hearing the Tribunal made a restricted reporting order under Rule 14 (1) of the 2008 Rules, prohibiting the disclosure or publication of any documents or matter likely to lead members of the public to identify a minor child. Accordingly, in this decision we anonymise the name of the Appellant and family members, adopting the initials understood by all parties. The Appellant and her husband are Mrs and Mr M. One of their children is B (also referred in evidence by a nickname beginning with K). The Background and Chronology

[4]The key matters are as follows: a) The Appellant is registered to provide childminding at her home address. She was first registered with Ofsted in 2021. The Appellant’s husband, Mr M, is an associated household member, and is also registered as one of Mrs M’s two assistants. b) At inspection in October 2023 the outcome was that of “Good”. There have been no adverse regulatory history or significant events regarding the Appellant. c) On 12 February 2026 an inspection of Mr M’s registration on the Voluntary Childcare Register (VCR) was undertaken by Ms Hayley Marshall-Gowen, an Early Years Regulatory Inspector (EYRI). Ms Marshall-Gowen raised concerns about: Mr M’s knowledge and understanding of (childminding) requirements; his provision of conflicting and inconsistent information; his becoming angry and defensive when asked questions. The inspector considered that Mr M was intimidating and prone to anger. Mr M subsequently resigned his registration on the VCR. However, Ofsted held concerns regarding his suitability to be a household member and registered assistant to Mrs M. A regulatory case was started. d) On 1 April 2026 Mrs Clare Perry, EYRI, reviewed the case and highlighted it to her senior officer, Jayne Godden. Ms Godden considered that a regulatory visit without notice was appropriate and that a second inspector should attend the setting alongside Mrs Perry. e) Mrs Perry and Mrs Mandy Cooper attended the Appellant’s home/setting on 29 April 2026. Suffice to say that there is very substantial dispute regarding the events that day. We will return to key aspects of this later within this determination. f) In light of the concerns held by Mrs Perry and Ms Cooper on 29 April 2026, a decision to suspend the registration of the Appellant was made that day by Mrs Paula Sissons, Early Years Senior Officer (EYSO) for a period of six weeks. g) Decisions were also made to make a referral to the Multi-Agency Safeguarding Hub (the MASH) on behalf of B, and a safeguarding referral was made to the Local Authority Designated Officer (the LADO) in respect of Mrs and Mr M. The Parties’ respective positions

[5]The Appellant says that she received a visit from a social worker following the referral made by Ofsted. The outcome of the meeting was positive, and no further steps were proposed by the MASH.

[6]In essence the Appellant’s primary position is that:(a) the evidence provided and relied on by the Respondent does not discharge their evidential burden and/or meet the threshold test.

(b) The decision to suspend the Appellant is not proportionate in the circumstances.

(c) The decision of the Respondent to suspend should cease immediately as there is no basis for its continuance and the Appellant continues to suffer financially as she has been prevented from carrying out her business.

[7]The Respondent’s position is that the suspension decision was, and remains, necessary, justified and proportionate. As to the purpose of the continued suspension, this is to allow time for further enquiries to be made and for steps to be taken to eliminate or reduce any risk of harm. The MASH was asked to re-assess at the request of the LADO. A Child and Family assessment regarding B is ongoing. One social work visit has taken place since the decision to re-assess, and another is scheduled in the near future, after which it is anticipated that a report will be available.

[8]The child and family assessment will relate to the welfare of B. However, it appears to us that the assessment might inform the overall consideration of whether substantive regulatory action is necessary and proportionate so as to protect minded children. The Respondent’s concerns are far wider than its concerns regarding the health, safety and well-being of the child of the family, B. The Respondent relies on the concerns of the inspectors regarding the care of minded children, and the risks to which they were exposed. We recognise that the statutory process has to take place before the Respondent can make a substantive decision on whether enforcement action is needed to mitigate or reduce risk for minded children in the care of the Appellant and Mr M, who is a household member, and also a registered assistant for the setting. The Legal Framework

[9]The statutory framework for the registration of childcare 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”).

[10]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.”

[11]“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.”

[12]The immediate duration of suspension under regulation 9 is for a period of six weeks. It may, however, be thereafter extended to 12 weeks under regulation 10. These provisions need not concern us because the appeal before us is against the decision made on 29 April 2026 which expires on 9 June 2026.

[13]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.

[14]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).

[15]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.

[16]We are guided by Ofsted v GM and WM

[2009] UKUT 89 (AAC)

at [20]:

“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.”

[17]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

[18]The judge explained at the outset that the panel had read the indexed bundle consisting of 198 pages (PDF) in advance. We had also received and read skeleton arguments from both parties.

[19]There were some difficulties in video connection during the hearing in that the judge’s connection was lost on a number of occasions. The first time this happened the evidence of Mrs Perry had continued for a few minutes until the judge’s absence was noted. This was resolved because the notes of Dr Jinabhai were thereafter read out in the hearing. All parties agreed that these were accurate. When further episodes of loss of connection occurred thereafter it was soon noted and evidence ceased until the judge was able to rejoin. Both parties’ representatives agreed that the connection difficulties, which had included the judge attending by audio only for a period, had not had an impact on the fairness of the hearing.

[20]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 April 2026, to impose suspension for a period of six weeks. 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. We must make our own risk assessment and consider proportionality in the context of our assessment of current evidence.

[21]We heard oral evidence from the following witnesses: For the Respondent: Mrs Perry, EYRI – as she then was Ms Cooper, EYRI Mrs Sissons, EYSO. For the Appellant: Mrs M. Our consideration

[22]We have taken all the evidence and the material before us into account including the skeleton arguments from each party, the oral evidence and the closing statements/submissions. 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.

[23]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 regulation 9, and on the basis of the information available today.

[24]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.

[25]Applying Ofsted v GM and WM (above), 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.

[26]The evidence regarding the events on 29 April 2026 have been described by a number of witnesses in their witness statements. There are a few matters that are common ground. Suffice to say, however, that there are some stark conflicts between the factual accounts provided by Mrs Perry and Ms Cooper, and that provided by Mrs M. We do not set out an exhaustive list, but will describe the key areas of conflict in overall context below:(i) When the inspectors arrived, there was no answer to the doorbell or door knocker. Mrs Perry and Ms Cooper then returned to the car and Mrs Perry spoke to Mrs M by telephone. Mrs Perry’s account includes that Mrs M said that she was working alone with four children present. Mrs Perry states that Mrs M confirmed that she was not working with an assistant that day. Mrs Perry states that: she asked Mrs M what exceptions were being applied (i.e. regarding child/carer ratio under the requirements of the early years foundation stage statutory framework for childminders (EYFS)); Mrs M said she had three early years children and her own child; She said that her son was 6 and she then said that she had 4 children in the early years group present that day.

(ii) According to Mrs Perry Mrs M was reluctant to let the inspectors in but, after being reminded of the power of entry and the possibility of prosecution for obstruction, she agreed that they could come to the house in 5 minutes time. The inspectors returned to the property and rang the doorbell. Ms Cooper saw that there was a gate to the side of the property and went over to it. Ms Cooper then called out to Mrs Perry that she had seen a male jump over the garden fence. She describes this (the jump) in her witness statement as having occurred by the corner of the Appellant’s conservatory into the next-door neighbour’s garden.

(iii) Ms Cooper said that, whilst standing on her tip toes, she saw Mrs M lift a young girl with blonde hair and wearing a pink jumper and jogging bottoms towards the top of the fence towards the outstretched arms of the man who had jumped over the fence. Another older child was standing by Mrs M’s legs. Ms Cooper says that she shouted to Mrs M to stop as this was dangerous. Mrs M looked at her and immediately lowered the child and went inside with both children.

(iv) After about 5 minutes the Appellant came down the garden side entrance and let the inspectors in.

(v) We will return to other aspects of the evidence below but note here that Mrs M’s position, both then and now, is that the alleged jump and attempted handover never occurred. She says that she was only ever in the vicinity of the fence in order to place a soiled nappy in the bin storage unit. Whilst she was doing this, she was holding a child (as described above) on her shoulder.

(vi) The evidence of the inspectors is that Mrs M denied that anyone had jumped over the fence. However, the child seen by Ms Cooper being lifted across the fence later asked her why “Uncle George” had jumped over the fence. Mrs Cooper later saw Mr M upstairs at the setting. He appeared to be the same man who had jumped over the fence. Ms Cooper states that she asked him if he was the man who she had seen jump over the fence earlier that day. Her account is that he became agitated and said:

“I cannot answer that.”

On her own oral evidence Mrs M encouraged her husband not to answer questions.

[27]As we emphasised during the hearing 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 apparent substance and cogency of the evidence before us. Assessing the issue of risk requires us to consider the disputed evidence before us so as to assess whether the concerns/allegations raised by either side have apparent substance, and to consider the nature, seriousness and/or potential impact of the allegations made, if true. This is a different exercise to fact finding.

[28]It is common ground that if there was an attempt to pass a child over the fence, then this would have posed a risk of harm to that child. In our view the risk involved in a child being dropped or falling was obvious, and the risk involved was that of significant harm. In our view this allegation, by itself, meets the threshold test.

[29]This is not, however, the only issue of concern. In our view the following matters also posed a risk of harm to the children minded that day:a. On the evidence before us it appears that four children (two aged 3 years, one aged 2 years and one aged 1 year), were left alone eating during their snack time. The risks of this are obvious and serious. As Mrs Perry said, the risk of silent choking are such that an adult must be present whenever young children are eating.

b. A large knife (said to be a bread knife by Mrs M) was left on the windowsill next to the children’s water bottles, bags and coats – see the photograph. Mrs M said was that she had used this bread knife to cut up an apple, in front of the inspectors, for the children’s snack. It was only because she was being asked to provide documents by Mrs Perry that she left it on the windowsill next to children’s belongings. In our view the presence of this knife within the reach of children posed an obvious risk of significant harm.

c. The state of the garden/outside area at the setting on 29 April 2026 is apparent from the photographs taken by Ms Cooper that day. A Welfare Requirements Notice (WRN) was issued on 29 April 2026 regarding the need for robust risk assessment, amongst other matters. It is agreed that a subsequent monitoring visit has shown that the environmental risks have since been addressed. We note that this was in the context of the suspension and the WRN. In our view the core issue regarding our risk assessment is not whether the matters posing risk to minded children have been remedied: it is why this situation had arisen in the first place. There were multiple safety concerns in this regard which included broken paving stones, uneven surfaces, the presence of fence paint in tubs at ground level, loose electrical wires hanging vertically from a height presenting a strangulation risk, and household cleaning materials being accessible. Mrs M’s evidence includes that there is no evidence that there was actually any bleach in the blue bottle with the red top visible within one of the photographs taken by the inspectors, and that this, and other hazards, were only in areas of the garden where the children knew that they should not go. She relied on a photograph showing a number of plant pots and said this was a barrier preventing access to the hazards identified in an around the patio area. We remind ourselves that we are dealing with very young children indeed. In our view Mrs M’s evidence regarding the safety of the premises raises very significant concerns regarding her ability to assess risk. We consider that the risk engaged is one of significant harm.

[30]We considered Mrs Perry’s evidence regarding how Mr M interacted with B, who is autistic and non-verbal. B is home-schooled. How Mr B physically handled B was of such concern to Mrs Perry, in the context of her experience in childcare of over 35 years, that she made a referral to the MASH, and also to the LADO. A child and family assessment regarding B is now underway. We recognise that there is a transferable risk regarding the care provided in the setting to minded children. In our view there are also issues of concern regarding child/carer ratios in this setting, given that B’s care needs are special and distinct.

[31]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 threshold test was satisfied at the date of the decision under appeal and it remains satisfied today. In our view the nature and substance of the evidence regarding the events of 29 June 2026 raises very serious issues regarding the risks to which minded children appear to have been exposed at the setting. The Respondent has satisfied us that the threshold test in regulation 9 is met.

[32]We are satisfied that the Respondent has done what it can to progress matters in a timely way. The suspension has a clear purpose which is to enable further inquiries and investigation to take place.

[33]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 and decision-making. Proportionality

[34]We have little doubt that the fact of suspension, although intended to be a neutral act pending investigation and/or a substantive decision, has had a significant adverse impact on the income and livelihood of the Appellant and her husband. It has, no doubt, also had a significant reputational impact. We can understand why the Appellant feels that the decision is of punitive effect, but this is not the purpose of suspension.

[35]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. It can also impact on family life. A decision to suspend is never a decision to be taken lightly.

[36]We take into account the absence of any adverse regulatory history regarding the Appellant. We recognise that the outcome of past inspection in 2023 was a judgement of “good”.

[37]There is no provision under regulation 12 to enable this panel to impose conditions instead of suspension. The Tribunal’s only power on appeal against a suspension decision is to confirm the decision or direct that the suspension cease to have effect. (There is, however, the power to impose conditions (if appropriate) in the event of an appeal against a substantive decision to cancel registration – if such a decision were to be made and appealed.) Consideration of the prospects that any perceived risks might be capable of being mitigated in some way short of suspension is, however, a means by which it is possible for this panel to mentally cross-check the necessity for, and proportionality of, suspension. It is, for example, open to the Respondent to impose conditions on the Appellant’s registration.

[38]In our view there are no workable conditions that could realistically or meaningfully address the risks engaged. Further even if such might be devised, conditions would not be suitable in a case where there are plainly very significant issues regarding Mrs M’s honesty and integrity.

[39]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 investigation by other agencies, and Ofsted’s own consideration of what substantive enforcement action is necessary to protect minded children.

[40]Having considered the weight, cogency and apparent substance of the material before us we consider that the need to protect minded 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 overall weight of the apparent evidence is such that we consider that the decision made was/remains fair, reasonable and proportionate, having regard to the public interest in the protection of the health, safety and well-being of minded children.

[41]We confirm the decision made on 29 April 2026 to suspend the Appellant’s registration for the period of six weeks. Decision The decision made on 29 April 2026 to suspend registration is confirmed. The appeal is dismissed. Tribunal Judge S Goodrich First-tier Tribunal (Health Education and Social Care) Date issued: 03 June 2026