Bright Horizons Family Solutions Limited v Ofsted [2026] UKFTT 00988 (HESC)

First-tier Tribunal Care StandardsThe Tribunal Procedure (First-tier Tribunal)(Health, Education and Social Care) Rules 2008NCN: [2026] UKFTT 00988 (HESC)2026-01917.EY-SUSHearing Heard on 26 June 2026, remotely via video, on the papers only
Before
Mr SJW Lewis (Judicial Member)Ms L Owen (Specialist Member)
Between
BRIGHT HORIZONS FAMILY SOLUTIONS LIMITEDAppellantOFSTEDRespondentDECISIONDate 2026-07-01

The Appeal

[1]The Appellant brings this appeal (“the Appeal”) against a decision (“the Decision”) by Ofsted, set out in a written notice dated 26 May 2026, to suspend the Appellant’s registration to provide childcare at Bright Horizons New Southgate Day Nursery and Preschool in London (“the Nursery”), for a period of 6 weeks from 26 May 2026 to 6 July 2026 (“the Suspension”). The Appeal is brought under regulation 12 of the Childcare (Early Years and General Childcare Registers) (Common Provisions) Regulations 2008 (“the Regulations”). The Respondent opposes the Appeal.

The Hearing

[2]The hearing (“the Hearing”) took place remotely and on the papers, in line with an order dated 18 June 2026 made with the consent of the parties.

Documents, Evidence, Submissions

[3]The bundle of documents ran to 169 pages. It included:(1) the appeal application form, with a document setting out the Grounds of Appeal;(2) the response form, with a document setting out the Response to Appeal;(3) case management orders dated 9 June 2026;(4) witness statements, with supporting evidence attached; and(5) extracts from relevant legislation/regulations.[4]The Appellant relies on two witness statements: a relatively brief statement from Anne Sheldon, the Appellant’s nominated individual, dated 16 June 2026; and a very brief statement from Philip Smith, the managing director of the Appellant, dated 5 June 2026. The Respondent relies on a relatively detailed statement dated 15 June 2026 from Jenny Gordon, a manager of a team of early years regulatory inspectors and the individual who, in practice, made the Decision.[5]Both parties provided skeleton arguments. The Appellant’s was settled by Sarah Hannet KC, of Matrix Chambers; the Respondent’s by Louise Price, of Doughty Street Chambers. In summary, the Appellant submits that:(1) there is no relevant risk – given, in particular, that it had decided, itself, to temporarily close the Nursery in light of concerns, and has gone on to offer undertakings in relation to its future plans for the Nursery – that is sufficient to entitle Ofsted (or, in the course of the Hearing, the Tribunal) to make/confirm the Decision; and(2) further or in the alternative, the Suspension is disproportionate. The Respondent submits, on the other hand, that there is such a risk and the Suspension is proportionate.[6]Given that the Hearing proceeded on the papers, we did not have an opportunity to test evidence with witnesses directly, or to test with the parties the submissions set out in their respective skeleton arguments.

Legal Framework and Principles

[7]Section 69(1) of the Childcare Act 2006 (“the Act”) provides for regulations to be made dealing with the suspension of the registration of providers: Regulations may provide for the registration of a person registered under Chapter 2, 3 or 4 in the early years register or the general childcare register to be suspended for a prescribed period in prescribed circumstances.[8]The same section provides that the regulations must include a right of appeal to the Tribunal.[9]Regulation 8 of the Regulations provides: The registration of a [person who is registered under Chapter 2, 3 or 4 in the early years register or the general childcare register] may be suspended[, generally or only in relation to particular premises,] by the Chief Inspector, by notice, in the circumstances prescribed in regulation 9 for the period prescribed in regulation 10.[10]Regulation 9 provides: The circumstances prescribed for the purposes of section 69(1) of the Act are 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]Regulation 13 provides that “harm” has the same meaning as in section 31(9) of the Children Act 1989. In other words, harm is a reference to:
“ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another.”
[12]Pursuant to regulation 10, the initial duration of suspension is six weeks. Such a suspension may, however, be extended, in circumstances set out in regulations 10(2) and (3). Suspension may also be lifted at any time, if the circumstances referred to in regulation 9 cease to exist.[13]Regulation 12 provides the right of appeal to the Tribunal. On such an appeal, the Tribunal must either confirm the decision to suspend the registration or direct that it shall cease to have effect.[14]In our judgment, the correct approach in considering the Appeal is as follows:(a) 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 the continued provision of childcare by the Appellant to any child mayexpose such a child to a material risk of harm. In this sense, we are to “step into the shoes” of the Chief Inspector of Ofsted and make the Decision afresh, rather than reviewing Ofsted’s earlier decision. As such, we can consider information/evidence that may not have been available to Ofsted at the time of the Decision. The burden of proof 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, at this stage in the analysis, is relatively low. The Tribunal does not need, for example, to be satisfied that there has been any actual harm, or that harm is likely in future. That said, having regard to the Upper Tribunal decision (see paragraph 20) in GM & WM v Ofsted [2009] UKUT 89 (ACC), the contemplated risk needs to be one of “significant” harm. Being focused on assessing current/future risk, we do not need to make conclusive findings of fact (or resolve associated disputes of fact).(b) Second, if satisfied that the above test/threshold relating to risk is met, we need to consider whether, objectively viewed, the relevant regulatory intervention (i.e. the Suspension) is proportionate, in all the relevant circumstances of this particular case. The Respondent, in our view, bears a persuasive burden in relation to this second issue. We set out our approach to considering this proportionality question further below.[15]We had careful regard to these principles, and to the evidence and information before us, approaching the matter with an open mind.

Background and Chronology

[16]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 elsewhere 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.[17]The Appellant is a relatively large organisation. It has nearly 250 settings attached to its registration. The Nursey is one of those. It is a childcare on non-domestic premises setting, providing full day care. It is registered on the Early Years Register, Compulsory Childcare Register and Voluntary Childcare Register. It registered in 2003. The Nursery has operated under the Appellant’s registration since 2016.[18]The Nursery was most recently inspected by Ofsted on 5 February 2026, 26 March 2026, and 28 April 2026 (“the Inspection”). It was graded “urgent improvement” in “leadership and governance”, “behaviour, attitudes and establishing routines”, “children’s welfare and wellbeing”, and “inclusion”. It was graded “needs attention” in “achievement” and “curriculum and teaching”. “Safeguarding standards” were “not met”. Ofsted identified what it considered to be serious concerns regarding the Nursery. These included allegations of inappropriate treatment of children and of systemic failings in safeguarding practice. These are set out in detail in the Respondent’s witness statement and the documents introduced by it.[19]The basic background and chronology (without seeking to be comprehensive, and without finding facts conclusively) appears likely to include the following:(a) Between 15 March 2024 and 4 September 2025, Ofsted received four notifications and one concern relating to the Nursery. One concerned an unexplained injury.(b) On 19 November 2025, Ofsted undertook a regulatory visit. The Nursery’s records indicated to Ofsted that safeguarding practices were insufficient. For example, they indicated: that repeated incidents of a child pulling the trousers of other children down had not been identified as potential abuse; and that a parent’s concerns that a staff member had been shouting regularly at and “bullying” their child had neither been identified as an allegation of potential emotional harm nor referred to the LADO (Local Authority Designated Officer) or Ofsted. Further, Ofsted formed a view that staff supervision arrangements and processes regarding the investigation of complaints were ineffective. On 20 November 2025, given its concerns, Ofsted issued the Appellant with a Welfare Requirements Notice. In other words: it formally notified the Appellant it was failing to comply with relevant requirements and, in order to remain suitable for registration, must become compliant; failure to take the actions set out in the notice could constitute an offence and lead to prosecution.(c) On 11 December 2025, Ofsted carried out a second regulatory visit, to monitor compliance. The actions set out in the notice were considered to have been met. On 16 December 2025, however, Ofsted was notified that a member of staff had alleged physical harm by colleague (it was alleged they had pinched a child on their neck). On the same day, Ofsted was notified that a child’s nappy had not been changed for six hours. On 8 January 2026, a case review was held to consider the concerns. On 23 April 2026, Ofsted was informed by a LADO that the staff member alleged to have pinched the child had been charged with assault and was due to attend court in June.(d) On 5 February 2026, Ofsted carried out an unannounced inspection at which it found the quality of teaching and learning across the setting to be variable, with concerns staff were not sufficiently responsive to the needs of children.(e) There were then a series of further notifications. On 13 February 2026, a notification was received which included this:
“on 9 February 2026, the Third in Charge reported that she entered the pre-school room after hearing that support was needed. Upon entering, she heard a member of staff say ‘Just stay in your poo then’ to a child who was in the bathroom. The Third in Charge stated that the child was crying at the time and did not want the member of staff to change him. The Nursery Manager placed the member of staff on non-contact duties while initial fact-finding was carried out. The Nursery Manager informed the LADO of the incident.”
On 6 March 2026, Ofsted was notified of a parental concern relating to poor communication regarding their child and food, and that the child went home with a significant bruise which had not been communicated or reported. On 10 April 2026, the Appellant notified Ofsted that “a parent notified the nursery that they had noticed a bruise on their child's toe on 04/04/2026 and suggested that this may have occurred at the nursery. Initial fact finding found that no accidents or injuries had been observed or recorded within the nursery.” On 16 April 2026, the Appellant notified Ofsted that “on 8 April 2026, a member of staff alleged that they witnessed an agency member of staff, appear to be asleep whilst on duty/working.” (f) On 28 April 2026, Ofsted conducted a “Gathering Additional Evidence” inspection. It found there to have been a deterioration in the quality of care and learning at the Nursery. Two (out of five) staff were not aware of processes to follow if they were to witness a colleague handling a child roughly. It is recorded that staff were seen to be moving and handling children physically, on multiple occasions, when that was unnecessary, and that children’s behaviour was not supported positively/effectively. On 15 May 2026, as a result, Ofsted issued a second Welfare Requirements Notice.

(g) On 13 May 2026, the Appellant notified Ofsted that:

“on 12 May 2026, a member of staff has alleged that staff member who employed at New Southgate mishandled a child by pulling and lifting them by the left arm.”
On the same day, the Appellant shared that it had made a decision to temporarily close the Nursery from 18 May 2026. It explained that it had experienced staffing challenges for some time, including staff on long-term sick absence and unfilled vacancies. On 19 May 2026, Ofsted received information about staff and the other settings they had been re-located to during the temporary closure: that indicated, in Ofsted’s view, that staff (including an individual whose suitability had not been fully assessed in light of previous concerns) continued to work with children. (h) On 22 May 2026, the Appellant sent a “regulatory action plan”, which it described as its “formal response to the WRNs in compliance with the respective dates set out in the Notices”. (i) On 25 May 2026, Ofsted issued its written notice setting out the Decision. (j) On 4 June 2026, the Appellant wrote to Ofsted to request the Suspension be reconsidered and lifted. Among other things, it sought to persuade Ofsted that concerns the Nursey could, without the Suspension, re-open at any time were “not well founded”. The Appellant said it would inform Ofsted in advance of re-opening the Nursery, and comply with all “reasonable requests” from Ofsted in relation to re-opening. It proposed “undertakings” be entered into, including those requiring the Appellant to: give at least four weeks’ notice before reopening the Nursery; confirm the name of the manager and deputy manager; confirm the expected number of children and staff; and inform Ofsted of actions to address the pre-closure concerns. Absent an agreement, the Appellant made it clear it would appeal the Decision, supported by a draft consent order and the proposed undertakings. (k) On 5 June 2026, Ofsted issued a written decision to confirm it would not lift the Suspension. Ofsted referred, in support of its decision, to the cumulative nature of “serious and systemic weaknesses in safeguarding culture, leadership oversight, and staff practice” and to what it considered to be “entrenched failures in how safeguarding risks are recognised, managed and escalated.” It explained why the current closure, and the proposed approach regarding undertakings etc, was not in its view sufficient. (l) On 8 June 2026, the Appellant lodged the Appeal, with Mr Smith’s witness statement (which really just dealt with the draft consent order and proposed undertakings, in the sense of confirming the Appellant was “in agreement to making” them, and indicated a purported commitment to “continuing to work collaboratively with Ofsted” and to the importance placed on the “welfare and safety of the children” in the Appellant’s care). (m) On 12 June 2026, the Respondent filed its response to the Appeal. (n) The statement from Ms Sheldon “acknowledges and accepts” that Ofsted had serious concerns relating to the Nursery, and that the Appellant also had concerns (especially in relation to the stability of the staff working there at material times). It refers to the decision to close the Nursery temporarily, to the proposed undertakings, and attaches a copy of the Appellant’s proposed re-opening plan (“the Action Plan”). It indicated that the Appellant “will shortly recruit for a new permanent Nursery Manager”. The Appellant was not, and is still, not able to confirm a planned re-opening date. The Action Plan is in tabular form, over eight pages. It sets out steps the Appellant says it would take to “facilitate the reopening of the setting and ensure children’s safety and wellbeing remain paramount”. It lists, for example, as the first action: “Conduct a full pre-opening compliance check to ensure the nursery meeting all EYFS requirements prior to reopening”, indicating that there would then be “weekly monitoring” in relation to the same. It includes broad actions in relation to recruitment (e.g. “Recruitment of new team New Nursery Manager and as needed – Deputy Manager Third in Charge”), staff induction, training, etc. There are no dates. It is, on an objective assessment, a “high level” plan (rather than one with a significant amount of detail or supporting information).

Summary of the Parties’ Positions

[20]The Respondent’s position is that the test in relation to risk is readily made out. It is clear, it says, from the evidence that there is reasonable cause to believe that children would or may be put at material risk of harm without the Suspension. There is a clear pattern, it says, of significant concerns/issues which, taken together, comfortably satisfy the low threshold relating to risk. It is similarly clear, it submits, that the Suspension, being relatively limited and targeted in nature, is proportionate in all the relevant circumstances.[21]The Appellant, on the other hand, submits that there is no, or no sufficient, risk to children within the relevant setting. Its core argument arises from the fact it temporarily closed the Nursery. It does not seek, in an extensive way, to challenge the existence of the underlying concerns identified by Ofsted. Its key submission is, however, that it cannot be said and sustained that, on a proper application of the principles, the threshold in relation to risk is met in circumstances where the Nursery is closed, and where it offers undertakings in relation to future plans. Further, it submits that, in the circumstances, the Suspension is not necessary or otherwise justified: it is disproportionate. Conclusions with Reasons Summary

Conclusions with Reasons

[22]We came to the following conclusions:(a) First, in our judgment, there would, at present, be a material risk of harm to children if the Suspension was not in place. We are satisfied that the relevant (relatively low) threshold relating to risk is met. In other words, we are satisfied that a reasonable person would believe that continued provision of childcare by the Appellant to any child at the Nursery may expose such a child to a risk of significant harm.(b) Second, in our judgment, the Suspension is, at present, objectively justified as proportionate.[23]We set out further reasoning below. What follows is not designed to cover all the matters touched on in documents. It is however designed to be sufficient to clarify the core reasons why we reached our decision.

Our Decision Regarding Risk

[24]Stepping back and trying to look at things in the round, we are satisfied that, as at the date of the Hearing, there are reasonable grounds to believe that the provision of the relevant service by the Appellant may expose children to a risk of significant harm. We rely on the following in support of this view.[25]First, we are satisfied that there was a sufficient risk of harm to children at the Nursey in the run up to the Decision. The evidence provided by the Respondent, setting out its concerns at and around that time, is sufficiently reliable and persuasive. The Appellant, to a large extent at least, does not seek to challenge it. Further, the Appellant’s decision to close the Nursery (on the basis that it did not consider “continued operation to the required standards to be sustainable at this time”) is further evidence that there were relevant and serious risks/issues at that time. This view from us on the existence of past risk, as it were, does not appear to be controversial. This is not a case of there being one or two particularly serious issues or risks. It is, rather, a case of there being a relatively wide range of issues or risks which cumulatively amount to an overall risk which is more systemic in nature and which is sufficient to reach the relatively low threshold we must have in mind under the Regulations. The evidence (limited though it is) demonstrates to a sufficient degree that over a period of a year or so:(a) A staff member may have caused actual physical harm to at least one child a at the Nursery (and that there may be a criminal trial in relation to the same).(b) There were multiple other reports of allegedly inappropriate staff interactions with children (e.g. physical handling, children left sitting in feces for too long).(c) There may well have been material inadequacies in: an investigation by the Appellant into potential incidents of harm; safeguarding processes and/or oversight arrangements; teaching practice; whistleblowing culture/processes; leadership; decisions to transfer staff, whose suitability to work with children at the relevant time was questionable, to other settings.[26]Second, we do not accept the submission by the Appellant that the temporary closure was or is sufficient to remove (or reduce sufficiently) the relevant risk. The closure was (and remains) a temporary one. This is not, for example, a case of an operator having reached a full and final decision to close permanently the relevant site/service. The Appellant actively wishes, and is planning, to reopen the Nursery. As things stand, there would, absent the Suspension, be nothing to stop it doing so. At that point, children would flow back into the Nursery, whether they be some of the same children who previously attended or new children. As indicated below, neither the closure, nor other related matters, address the underlying risk to a sufficient extent. In other words: without the Suspension, there would be a clear risk that the Nursery re-opens and, if so, a sufficient risk that children would or may be exposed to harm (physical, emotional, developmental, etc).[27]Third, the evidence indicates, on our assessment of it, that there has not been any or any sufficient material change in the level of risk to any such children. While recognising that the burden does not formally rest with it, the evidence relied on by the Appellant provides little if any assurance that such children would not still be exposed to a risk of harm for the same or similar reasons as at or around the time of the Decision. There is limited evidence in the statements, for example, other than to (in effect) blame staff working at the Nursery at the material time and to provide rather vague commitments to action plans, the importance of working with the regulator and of the welfare of children etc. The Action Plan lacks detail. There is, generally, an absence of insight into the wider leadership, systemic, and cultural concerns raised by Ofsted. There may also be lack of understanding about the realistic nature of the relationship between a registrant and a regulator, in circumstances where the latter has seemingly well-placed concerns.[28]Fourth, the consent order and associated undertakings are insufficient. They are not necessary, where the Act/Regulations expressly provide for suspension or other regulatory interventions. They do not have the same effect of the Suspension. The Suspension manages the relevant risk effectively. It is legally enforceable. It carries significant consequences in the event of a material breach – including, importantly, the commission of a potential offence. The consent order is not agreed. There would be questions about its enforceability. The first undertaking goes no further than to provide “notice” of the Appellant re-opening: nothing more. The second is simply about confirming the names of one or two managers. The third is merely about confirming “expected” child numbers and numbers (and perhaps names) of staff to be deployed. The fourth is limited to informing Ofsted of the Appellant’s “developmental action plan”.

Our Decision Regarding Proportionality

[29]Being satisfied that the risk threshold is met, we turn to this second question about proportionality. In all the circumstances, we are satisfied that the Suspension is objectively justified as proportionate.[30]First, 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 physical, emotional, psychological, or developmental harm. There is only limited evidence of insight. The action plan is not persuasive. The balance of the evidence suggests a likely pattern of problematic provision over a relatively extended period of time. At this time, in light of the other evidence, any positive points or plans are not sufficient to reduce the overall risk profile enough.[31]Second, there is a legitimate aim engaged in relation to the measure adopted. It relates, ultimately, to the protection of vulnerable children from a risk of significant harm. The Suspension relates directly to the pursuance or achievement of that aim. The high importance of the aim means that the Suspension is more readily justified as proportionate. Its immediate purpose is to keep children safe during a (limited) period of time in which the Appellant and/or Ofsted can carry out further assessment or take further steps necessary to reduce the relevant risk to an acceptable level. The Suspension is justified at present. Further steps may well need to be taken, by Ofsted or the Appellant, to manage any relevant risk. There are steps that can be taken, even though the Nursery is closed, such as the provision of stronger evidence in relation to insight, learning, future plans, etc. It may be possible for Ofsted to lift the Suspension, if satisfied at some future point, that the Appellant has taken adequate steps. Importantly, Ofsted is under a duty (pursuant to Regulation 11) to keep the Suspension under review.[32]Third, we have tried to have careful regard to the adverse impact of the Suspension, on the Appellant and any other relevant people. We can see that, generally, it may well have an adverse impact. It may well reduce the Appellant’s income, for example, or cause damage to its reputation, etc. That said, there is a lack of direct or persuasive evidence from the Appellant about the nature and degree of any such impact. There is no sufficient evidence before us that the Appellant, or any relevant children or others, are or will be, as a result of Suspension continuing, disproportionately impacted. There is, for example, no financial evidence before us. The Suspension is limited in both scope and time. Overall, we are content, on the evidence available, that the importance of the legitimate aim being pursued outweighs the adverse impact at present. In forming this view, we have in mind the limited period of restriction and, in addition, the obligation to actively keep it under review.[33]Fourth, in light of the above, we are satisfied that the legitimate aim cannot realistically be achieved adequately by a less-restrictive measure (whether that be the consent order with undertakings, or any other alternative possibility). Ofsted is not and should not be required, having made what is in our view a legitimate and lawful decision to suspend, to lift that suspension (on the basis of insufficient evidence and/or plans etc from the Appellant) with a view to potentially issuing another suspension in the context of this case (e.g. if on being notified by the Appellant that it intends to re-open the Nursery). It is both appropriate and reasonably necessary, in our view, to continue the Suspension at this point in time. Our decision is based, as it must be, at the time of the Hearing and on the basis that the restriction is now due (in principle at least) to end shortly.[34]We did not consider it necessary to, in addition, rely on the importance of the wider legitimate aim of maintaining public confidence in the overall statutory scheme. But, had we done so, that would have been a further factor supporting our decision.[35]In our judgment, the Decision was rational, proportionate, and lawful; and it continues, for now at least, to be so.

Outcome

[36]The Appeal is dismissed. The Decision is confirmed. SJW Lewis Date Issued: 1 July 2026