Samantha Broadfoot acted for Ofsted in one of the first ever appeals to the Upper Tribunal (Administrative Appeals Chamber).
The case concerned the correct test to be applied when considering the exercise of Ofsted’s power to suspend the registration of childminders pending investigations into the harm that may have occurred to a child in the childminder’s care. The Upper Tribunal constituted itself as a three-judge panel, including the President of the Tribunals Service, Lord Justice Carnwath, in light of the issues which were stated to be of general importance.
The Upper Tribunal agreed with Ofsted’s submissions that regulation 9of the Childcare (Early Years and General Childcare Registers) (Common Provisions) Regulations 2008 (SI 2008/976), as amended, sets a low threshold, and lower than thresholds for intervention in the Children Act 1989. It also held that the general legislative context and the principle of proportionality meant that the risk of harm referred to in regulation 9 meant a risk of significant harm to a child.
Regarding the exercise of the power to suspend, the Upper Tribunal held that although regulation 9 set a threshold, the mere fact that the threshold was passed did not necessarily mean that the power to suspend in regulation 8 must be exercised. Regulation 11 required the suspension to be kept under review and a suspension imposed on the ground that there is an outstanding investigation could only be justified for as long as there was a reasonable prospect of the investigation showing that such steps were necessary. It was not the case that the suspension should automatically be maintained until the formal completion of a police investigation.
However the Upper Tribunal also emphasized that where investigations were carried out by other agencies, for example the police and the local authority children’s services, Ofsted was entitled to expect to be kept abreast of developments and assisted in its function of deciding whether it needed to take any action under the 2006 and the 2008 Regulations.
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