X Nursery Limited v Ofsted [2026] UKFTT 00971 (HESC)

First-tier Tribunal Care StandardsThe Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care) Rules 20082026-01908.EY-SUSNeutral Citation Number: [2026] UKFTT 00971 (HESC)Hearing by video-linkOn 23 June 2026
Before
Tribunal Judge S GoodrichSpecialist Member S Jacoby
Between
X Nursery LimitedAppellant(Restricted Publication Order made under paragraph 14 of the Rules)Appellant-v-
Between
OfstedRespondentDECISION ON APPEAL AGAINST SUSPENSIONAppellant: Mr T in person, supported by Mrs T. for in personRespondent: Mr Buxton, Ofsted Legal Services.The AppealDate 2026-06-30
[1]By notice of appeal dated 2 June 2026 the Appellant company appeals against the Respondent’s decision, made on 26 May 2026, to suspend the company’s registration as a nursery provider on the Early Years Register for a further period of six weeks from 26 May 2026 to 8 July 2026.[2]The Appellant is registered with the Respondent as a provider of childcare on non-domestic premises.[3]The initial suspension decision was made on 22 January 2026 to last until 4 March 2026. Subsequent decisions were thereafter made to continue the suspension. The appeal before us relates to the fourth period of suspension made on 26 May 2026 for a period of six weeks until 8 July 2026.[4]The right of appeal lies under regulation 12 of the Childcare (Early Years and General Childcare Registers (Common Provisions) Regulations 2008.[5]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[6]At the outset of the hearing on 23 June 2026, 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, we decided to anonymise the names of the parents and the minor children, adopting initials where necessary.[7]We have since decided that we should not name the company because of the risk that ordinary search, if made, might lead to the identification of the minor children. The Background and Chronology[8]The key matters appear to be as follows: a) The Appellant company was first registered with Ofsted in 2025. The Nominated Individual is Mr T. At the relevant time Mr T was the director of the company. b) On 20 January 2026 Ofsted received a notification of concern from the Local Authority Designated Officer (LADO). On the evidence before us this concerned an allegation made at school by T, the 9 year-old (and eldest) child of Mr and Mrs T. Initial concerns shared by the police with the LADO included that T said that when she was being hit at home her mother did not do anything to stop Mr T. c) A decision to suspend the registration of the Appellant was first made by the Respondent on 22 January 2026 for a period of six weeks. This was thereafter extended on a number of occasions. d) The decision to suspend which is the subject of this appeal is contained in the notice of decision (NoD) dated 26 May 2026. The Respondent’s reasons were said to be based on the reasonable belief that the continued provision of childcare may expose children to the risk of harm. The purpose of suspension was to allow further time for enquiries to be made and/or for steps to be taken to eliminate or reduce any risk of harm. e) The circumstances that gave rise to the belief were set out in the NOD. They include: i. A serious allegation was made on 20 January 2026 that Mr T had caused physical harm to his own children. The LADO and Children’s Services were involved. ii. On 5 February 2026 Mr T’s children, T and A, became the subject of child protection plans: T under the category of physical harm and A under emotional harm. iii. Mr T had admitted, to agencies with safeguarding responsibilities, to slapping T as a method of chastisement. iv. Following a Child Protection conference on 29 April 2026 the child protection plan had been changed to the category for emotional harm for both children. v. The Respondent remained concerned that Mr T continued to have oversight of, and potential access to, the setting. vi. The Respondent was not satisfied that sufficient or effective steps have been taken to reduce or remove the risk of harm to children at the setting. The Hearing[9]The judge explained at the outset that the panel had read the indexed e-bundle consisting of 102 pages (PDF) in advance (the contents of which are fully set out in the index to that bundle).[10]The panel had noted that the Appellant had made an application regarding late evidence which had been considered by Judge Khan on 16 June 2026. The order made records that unfortunately neither the witness statement nor the exhibits were attached to the application. The application was effectively deferred because the evidence on which the Appellant wanted to rely had not been provided.[11]Subsequently a number of documents were uploaded to the portal. These had been provided by the Appellant as a series of exhibits (AT) albeit with some duplications. The panel had read the contents of all of the multiple items of additional material lodged by the Appellant and individually uploaded to Sharepoint. The descriptions of the contents of most of the exhibit provided by the Appellant were inaccurate, but we considered all the material that had been lodged. These were largely directed to a wide range of improvements which have been made regarding the setting which included matters such as: Level 3 safeguarding training for all staff; camera surveillance; updated governance structure, scheme of delegation and reporting flowchart; strengthened designated safeguarding lead (DSL) oversight, and Mr T being barred from the premises.[12]The Respondent did not object to the reception of the late evidence and we agreed that it was fair to receive it.[13]At the hearing we had also further documentation before us which included:• skeleton arguments from both parties.• A yet further T109 application from the Appellant dated 22 June 2026. This concerned a supplemental statement from Mrs T dated 22 June 2026 regarding the relief sought in the context that Ofsted, following an interview of Mrs T on 15 June 2026, had decided that she was not suitable to be the nominated individual for the company.• The Respondent’s response to the 22 June T109 described above.[14]During the hearing reference was made to the records maintained by the local authority: the Child Protection Review Conference Worker's Report completed on 23 April 2026 and the Core Group Outcomes made on 8 June 2026. Both parties had these documents. It was agreed that copies should be provided to the panel. The Parties’ respective positions[15]In essence, the Appellant’s position is that the threshold test in regulation 9 is not met and so the suspension should be lifted without more. He denies that he had slapped his daughter. Even if, contrary to the Appellant’s case, the threshold test is considered to be met, suspension is not necessary or justified and is, in any event, disproportionate. We will return to examine the Appellant’s case in more detail at a later stage.[16]The Respondent’s overall position is that the suspension decision was and remains necessary, justified and proportionate. In essence it contends that: a) a risk attaches to Mr T, based on the allegations against him. The Respondent does not know whether those allegations are true, or whether they will be substantiated by LADO. The truth or otherwise of the allegations is not a matter for the Tribunal to determine in a suspension hearing. There will be a substantive hearing of the matter, given that cancellation appeal proceedings are ongoing. b) it is not clear that Mr T is no longer exerting control over the Appellant’s company. While there is a possibility that he is, there is a risk of the Appellant operating in a way that does not keep children safe. There is a risk that children would either be harmed by physical chastisement, suffer emotional harm from seeing such chastisement applied to another, or not be safeguarded from a risk of physical chastisement that may be present within their own family or similar. c) The risk attached to Mr T attaches to Mrs T in much the same way. The allegations include that Mrs T was present when the alleged physical chastisement took place. The allegations are that Mrs T’s response to those events was not to intervene, and not to raise the matter externally, which calls into question her understanding of safeguarding and her attitude toward children’s safety. d) While the allegations remain under investigation, there is a risk that if the Appellant were not suspended, Mrs T would oversee operation of the setting in such a way that safeguarding risks, such as evidence of physical chastisement, would not be reported externally as they ought to be, which would compromise children’s safety. The Legal Framework[17]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 an 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”).[18]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.”
[19]“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.”
[20]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,(c) 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.”[21]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.[22]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).[23]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.[24]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.”
[25]Even 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 Evidence[26]We heard oral evidence from the following witnesses: For the Respondent:• Mrs Rowley, Early Years Senior Officer (EYSO) For the Appellant:• Mr T[27]It had been envisaged that Mrs T would give evidence. In the event Mrs T said that she had nothing to add to the evidence given by her husband. The judge explained that if she did not give sworn evidence we would take into account the contents of her witness statements, although these might be considered to be of lesser weight, given that there had been no opportunity for the Respondent to ask her any questions. She decided that she would not give sworn evidence. She answered a few questions from the judge about her background. She works full time (37 hours a week) as a HR adviser. She had had a role in the setting as HR director between its acquisition in August 2025 and January 2026. She was not a director of the company then but is now. She owns the company now. The Tribunal’s consideration of the appeal[28]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 oral 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.[29]There were no significant difficulties with the video connection during the hearing.[30]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 as at today.[31]We noted that Mr and Mrs T consider that the conduct and outcome of the very recent interview conducted by Ofsted on 15 June 2026 regarding Mrs T’s request to become the NI, was unfair/unlawful and that this is relevant to the outcome of this appeal. Mr T sought that the panel should treat the refusal of the NI application as part of the appeal “given the panel’s de novo jurisdiction”, and, amongst other matters, should consider imposing conditions of joint governance with the NI by a representative from the Local Authority’s Early Years team.[32]In our view the Respondent’s refusal to accept that an individual is suitable to be a nominated individual is not a decision that gives rise to any statutory right of appeal. Further we are not engaged in judicial review. The only powers we have are those provided under the Act and in the secondary Regulations made thereunder. Our role is to determine the appeal against the decision made on 26 May 2026. Standing in the shoes of the Chief Inspector, we must make our own assessment of both risk and proportionality in the light of the evidence as at today’s date. We also take fully into account the ongoing obligation imposed on Ofsted (and therefore this panel standing in Ofsted’s shoes) to actively consider the necessity and justification for suspension on an ongoing basis.[33]It is also not our role to trespass into the substantive decision that has been made by the Respondent to cancel registration. That decision carries a separate right of appeal which has been exercised, and falls to be determined in accordance with the law and due process.[34]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.[35]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.[36]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.[37]Assessing the issue of risk requires us to consider the disputed evidence before us to assess whether the concerns/allegations raised do, or do not, have apparent substance, and to consider the nature, seriousness and/or potential impact of the allegations made, if true, to the issue of potential risk to children. This is a very different exercise to fact finding.[38]We have considered all the material before us. In our view the evidence before us regarding the core allegation that Mr and Mrs T have used physical chastisement at home causes significant concern regarding the ability of Mr T and/or Mrs T to safeguard the needs of their own children, but also regarding the suitability of either of them to be in a leadership role of a nursery setting.[39]We noted that in his letter (dated 3 April 2026) of Objections to the Notice of Intention to cancel Mr T acknowledged “…the seriousness of the risk and my unsuitability given the allegations against me, including the ongoing Child Protection investigations…”[40]It is also apparent to us that the significance of the alleged incident disclosed by T at school on 20 January 2026 was such as to lead to a strong safeguarding response by the statutory agencies. On 27 January 2026 a section 47 investigation (under the Children Act 1989) was commenced in order to safeguard the interests of the children of the family. A safety plan was agreed which included that Mr T could not see the children or live at the home at that time. In his evidence Mr T confirmed that he had been arrested and was prevented from any contact with his children pending police investigation. Mr T told us that after about three weeks he was told by the police that no further action was to be taken. He was then able to return home. Child protection plans were, however, in place regarding both children.[41]It appears that Mr T’s position at the time was that his actions towards his child, T, amounted to reasonable chastisement. His current position as per his witness statement appears to be that he denies that he has ever struck his daughter. He places particular emphasis on his experience since 2021 working as a Teaching Assistant across multiple schools, his knowledge of safeguarding and, effectively, his good character and reputation. He contends also that the allegation that Mrs T “did not object” to the alleged chastisement is speculative and unsupported. Mrs T categorically denies the allegations.[42]The Appellant also contends that the alleged risk was linked to solely one individual (Mr T). Mr T places emphasis on the fact that his alleged actions, which he denies, did not take place in the registered setting. He submits that the alleged risk is historic and external.[43]In our view, the allegation made by T that she had been slapped by her father, poses a risk that is transferable to the setting. At the time the allegations were made, Mr T held a pivotal leadership position at the setting. Further, on the evidence before us T disclosed/alleged that Mrs T did not step in to protect her. It is also alleged that Mrs T and her aunt had also beaten her at home. If the allegations are true they might tend to suggest that “chastisement” is acceptable to Mr and Mrs T and/or has been normalised.[44]Mr and Mrs T appear to say that there is a difference between the assessment of risk to children of the family, as opposed to risk to minded children. We do not consider that any attempt to draw a distinction between private/family behaviour and behaviour in the context of the provision of care at a nursery setting is of significant validity in the context of the risk assessment in which we are engaged.[45]We recognise that since March 2026 Mr T has taken steps to seek to divest himself of responsibility for the setting. His financial interest in the company has now been transferred to his wife. The reality is that he remains the NI unless and until a new nominated individual is considered suitable. After aborted attempts to secure the appointment of two other individuals as the new NI (Ms Sadia and Ms Eko), the Appellant seeks to rely on Mrs T as the new NI and owner. In our view the fact that Mrs T has been put forward as suitable to be the NI tends to show a lack of insight, understanding and a continuing inability to risk assess, given that T has alleged that Mrs T had been present when she was hit by her father, but did not intervene. She also alleged that Mrs T and her aunt also hit her.[46]The Appellant referred to two first instance First-tier Tribunal decisions which illustrate the Tribunal’s approach to the assessment of risk and proportionality. (The panel judge in at least one of the cases to which reference was made was the judge in this appeal).[47]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 is satisfied today. We consider that there is a current risk of the setting being led in a way that does not recognise the risk of real damage caused by physical chastisement, and that does not keep children safe from such risk.[48]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 more than a continuous period of 12 weeks. We therefore considered whether the Respondent had satisfied the requirements of regulation 10 (3).[49]It is clear that the investigation by Children’s Services is ongoing. The immediate and appropriate focus has been on supporting the children of the family to live with their parents at home. In this overall context, drawing on our specialist expertise, we are not surprised that the LADO has not yet made a decision as to whether the allegations are, or are not, substantiated. According to the Core Group Outcomes document (completed on 8 June 2026) there are still areas outstanding including that the Allocated Social Worker (ASW) is to undertake direct work using tools to explore the children’s lived experience within the family home, and also to address the guilt that T is experiencing regarding the closure of the family nursery. So far as the ongoing Children’s Services investigation is concerned, we recognise the positive elements reflected in the records before us.[50]We are satisfied that it has not, to date, been reasonably practicable, for reasons beyond the control of the Chief Inspector, for any necessary steps to be taken to eliminate or reduce the risk of harm. In relation to 10(3)(b), the Respondent considers that, since both Mr and Mrs T are implicated in the allegations, a necessary step for the risk to be reduced is for mitigations to be in place by which both will not come into contact with children or assert control over the operation of the Appellant company. We agree with the Respondent that this step has not yet been taken by the Appellant: Mrs T was proposed as the replacement Nominated Individual for Mr T. It is open to the Appellant to put forward to the Respondent a different person to be the nominated individual.[51]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/or the LADO outcome regarding the safeguarding allegation and/or steps to be taken to eliminate or reduce risk. Proportionality[52]Whilst we make the decision based on evidence as at today (i.e. the date of hearing) our essential task is to decide whether the decision should be confirmed or set aside. This inevitably requires us to consider in our redetermination whether the decision made on 26 May 2026 is today proportionate. The fact that the decision is due to expire is, of course, irrelevant.[53]Mr T urged upon us that conditions could be imposed by the Tribunal and that suspension should be considered as a last resort. He submitted that the setting could be independently monitored. He told us that the local authority, whose offices are nearby, have offered to conduct monitoring visits but we have not any correspondence in this regard. Mr T also submitted that Ofsted could themselves inspect/monitor. He also submitted that he and Mrs T could be excluded from going to the premises.[54]We explained during the hearing the Tribunal’s power on appeal against a decision to suspend registration is either to confirm the decision or to direct that the suspension shall cease to have effect. There is no provision under Regulation 12 to enable this panel to impose conditions. By way of contrast, there is, however, the power to impose conditions in the event of an appeal against a substantive decision regarding cancellation - see section 74 (5) of the Childcare Act 2006.[55]As we explained in the hearing, as a matter of principle, consideration of whether the Respondent could itself impose written requirements can be relevant when assessing proportionality. However, we do not consider that any written requirements could realistically be devised by the Respondent that would be capable of adequately addressing or mitigating the risk in this case. We refer to paragraph 50 above. A written requirement cannot possibly dispense with the need for a suitable nominated individual.[56]Looking at the matter in the round we accept, of course, that the Respondent’s decision made on 26 May 2026 has very obvious reputational implications. We have little doubt that the fact of suspension, although intended to be a neutral act pending investigation/elimination or reduction of risk, has had a significant adverse impact on the reputation, income and livelihood of the Appellant company and all those involved.[57]We have carefully considered all the matters raised before us. A decision whether or not to suspend registration is never a decision to be taken lightly. Suspension is always a very serious matter because of the continuing adverse impact on livelihood, professional reputation, standing and business viability.[58]We have taken fully into account the very positive support of parents who have signed a petition supporting the nursery.[59]We balanced the harm to the interests of the Appellant and others affected against the risk of harm to the children looked after at the Appellant’s setting, pending a decision on outcome by the LADO and/or the progress of the continuing Child Protection Plans and/or other mitigation of risk.[60]Having considered 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 outweighs the adverse impacts of suspension on the Appellant company and all those affected.[61]The Respondent has satisfied us that the decision under appeal was/is fair, reasonable and proportionate to the public interest in the protection of the health, safety and well-being of children.[62]We confirm the decision made on 26 May 2026 to suspend the Appellant’s registration for the period of six weeks from 26 May to 8 July 2026. Decision The decision to suspend registration dated 26 May 2026 is confirmed. The appeal is dismissed. Tribunal Judge S Goodrich First-tier Tribunal (Health Education and Social Care) Date issued: 30 June 2026