Whyatt v OFSTED [2002] EWCST 73(EY) (21 October 2002)

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Rosemary Whyatt v OFSTED
2002.73.EY
Monday 21st October 2002
Stewart Hunter (Chair)
Heather Reid
David Braybrook

1. Rosemary Whyatt ("the Applicant") appeals under the Children Act 1989 Section 79M against the decision of the Office for Standards and Education, ("Ofsted") made on the 17th May 2002 and communicated to the Applicant by a letter dated 22nd May 2002. The decision of Ofsted being to uphold a Notice of Intention issued on the 11th March 2002, refusing an application by the Applicant to vary a condition of her registration as a childminder.

2. The Applicant requested the Tribunal, pursuant to Regulation 7 (1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, to determine her application without a hearing. Accordingly the case was dealt with on the basis of the papers submitted to the Tribunal by the parties.

3. The Applicant has been a registered childminder for 21 years, having been first registered in 1981. The applicant’s Certificate of Registration as a childminder states that she is entitled to mind 3 children under the age of 5 and 3 children between the ages of 5 years and 8 years.

4. The Applicant wrote to Ofsted on the 30th January 2002, asking if she could look after an additional child, being the sister of a child already being minded by the Applicant, from the end of August 2002 until 11th July 2003. On the 8th March 2002, the Applicant was informed that this variation to her registration certificate from 6 up to 7 children would be allowed by Ofsted, for the limited period sought by the Applicant. The officer dealing with the matter at Ofsted, Ms Linda Owen then took further advice, and on 14th March 2002 a letter was sent to the Applicant reversing the earlier decision, and refusing the Applicant permission to increase her registration numbers.

5. On the 11th April 2002, Ofsted issued a formal Notice of Intention to refuse to vary the applicant’s conditions of registration. The reason given in their notice was as follows:-

"The National Standards lay down the maximum number of children under 8 years old, which cannot be exceeded except in temporary, emergency situations.".

6. The Applicant wrote to Ofsted on the 10th May 2002, giving written objections to the Notice of Intention to refuse to vary her conditions of registration. Those objections contained a number of submissions, including the importance of continuity of care, the need for siblings to be kept together, and the limited child care alternatives available locally. In addition, that the parents of the additional child concerned, were in full agreement with the variation being sought by the Applicant. The Applicant’s public liability insurers confirmed that if Ofsted were to grant a variation to the Applicant’s registration certificate this would then be covered under the terms of the Applicant’s policy.

7. The Applicant’s objections were considered by Ofsted at a meeting held on the 17th May 2002. The minutes of that meeting indicate that the Applicant’s submissions were rejected. The Ofsted panel did not consider that there were any continuity of care issues, as the child in question was not at that time in the applicant’s care. The request was not for a short term emergency and there were potentially safety issues to be considered escorting 7 children under 8 years home from school.

It was also noted that the Applicant had in fact been overminding by 1 child since September 1st 2001 with the agreement of the local authority who were then responsible for childminding in the Applicant’s area.. The ruling of the panel was that the decision to refuse the Applicant’s request to vary numbers should be upheld. The Applicant was notified of the outcome of this meeting by a letter dated 22nd May 2002, the reasons specified in that letter were that a registered childminder was required to meet the National Standards, and that those standards proposed a maximum number of children that a childminder could care for as being 6 children under the age of 8 years.

8. The issue to be determined by the Tribunal in this case is whether to confirm the decision of Ofsted not to vary the Applicant’s childminding registration certificate or to direct that such decision shall cease to have effect.

9. In this case the Applicant sought a variation to her registration certificate to allow her to take an additional child from August 2002 until July 2003. The effect would be to allow the Applicant to care for up 7 rather than up to 6 children.

The Day Care and Child Minding (National Care Standards) regulations 2001 state at paragraph 3 (2) that:-

"a registered person who acts as a childminder, or provides day care, on premises shall -

(b) have regard to the supporting criteria applicable to the child care category into which he falls.

The National Standards for under Eights, Day Care and Childminding state in their introduction that they "represent a base line of quality below which no provider may fall." There are 14 standards which the childminder is required to meet. Standard 2 dealing with Organisation states at paragraph 2.2:-

"The maximum numbers of children for whom a childminder may care are as follows:-

The relevance to this case is that if the Applicant were to succeed in her application, she would have a registration certificate allowing her to take up to 7 children.

10. The Applicant has been a registered childminder for 21 years and all the evidence suggests that she provides excellent care of the children that she looks after. However that is not the issue in this case. In our view, the regulations make it absolutely clear that a registered childminder must meet the requirements of the National Standards, which include a provision as to maximum numbers. We cannot see that Ofsted have any discretion to allow a variation that would potentially allow a childminder to care for more than the maximum number specified in the National Standards namely 6.

Whilst a registration authority may have some discretion to decide whether a registered childminder has a reasonable excuse for not complying with the condition on their registration certificate under Section 79F(6) of the Children Act 1989 inserted by section 79(1) of the Care Standards Act 2000, this does not in our view allow a registration authority to agree conditions which would in themselves breach the National Standards. Therefore we must conclude that the registration authority’s decision not to vary the applicant’s existing conditions should be upheld.

It is extremely unfortunate that confusion arose in this case when the Applicant was originally told by Ofsted that permission would be given to vary, but then that decision was subsequently changed. We note from the papers that this was the subject of a complaint by the Applicant to Ofsted. It is not however within our jurisdiction to comment any further on this particular aspect of the case.

The decision of the Tribunal is to confirm the decision of OFSTED not to vary the Applicant’s conditions of registration.

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You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Whyatt v OFSTED [2002] EWCST 73(EY) (21 October 2002) URL: http://www.bailii.org/ew/cases/EWCST/2002/73(EY).html Cite as: [2002] EWCST 73(EY)

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