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Neutral Citation Number:	2009 89
Reported Number:
File Number:	C 119 2009
Appellant:	Ofsted
Respondent:	GM and WM
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	28/04/2009
Date Added:	28/05/2009
Main Category:	Care standards
Main Subcategory:	Other
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2010] AACR 21 Care standards – registration of childminders – suspension pending an investigation The respondents were husband and wife and well-regarded childminders registered with Her Majesty’s Chief Inspector of Education, Children’s Services and Skills, who acts through members of the staff of Ofsted, under the Childcare Act 2006. A child for whom they had been caring was taken to hospital by his parents and a non-accidental injury was suspected. The parents and the childminders were the four people who had had the care of the child. The childminders’ registrations were suspended by Ofsted under regulation 8 of the Childcare (Early Years and General Childcare Registers) (Common Provisions) Regulations 2008 on 16 October 2008 while the police and social services considered the case. On 24 October the suspension was reviewed but not lifted and the childminders appealed under regulation 12. On 30 October 2008 the child was taken into care under an interim order. On 4 November 2008 the childminders were interviewed under caution by the police and by 10 November 2008 the police investigation was complete save that some medical evidence was awaited. On 12 November 2008 the First-tier Tribunal allowed the childminders’ appeals. Ofsted appealed to the Upper Tribunal, being chiefly concerned about the test to be applied by the First-tier Tribunal considering an appeal against a suspension of registration. Held, by a three-judge panel, dismissing the appeal, that: 1. on an appeal the First-tier Tribunal stands in the shoes of Ofsted and must consider whether grounds for suspension exist at the date of the hearing (paragraph 10); 2. regulation 9 of the 2008 Regulations sets a low threshold – that there “may” be a “risk” – but the fact that the threshold has been passed does not necessarily mean that the power of suspension in regulation 8 must be exercised (paragraph 22); 3. it is difficult to see on what grounds a suspension can be justified other than for the purpose of investigating a belief that there may be a risk or to allow time for a risk to be reduced or eliminated (paragraph 23); 4. a suspension imposed on the grounds that there is an outstanding investigation can be justified only as long as there is a reasonable prospect of the investigation showing that further steps to reduce or eliminate a risk might be necessary (paragraph 27); 5. in the present case, by 12 November 2008 suspension was no longer justified because there was no longer a real possibility that evidence sufficient to support enforcement action against the childminders would emerge from any investigation (paragraph 35).
Decision(s) to Download:	[2010] AACR 21 bv.doc