A recent report showed a huge increase in the number of childcare providers suspended in 2020/21. Should Ofsted be using this power so freely?
An Ofsted suspension notice prohibits any work as a childcare provider for a period of at least six weeks, effective immediately. According to a report published by Ofsted’s Chief Inspector, there were 290 suspensions in 2020/21 – compared with 200 in 2019/20.
This is a major increase. However, recent case law has established that suspension should not be used automatically as an interim measure if cancellation is pursued. The same tribunal also highlighted that there are alternative measures available to Ofsted that allow it to protect children’s safety as well as those who provide childcare. With that in mind, we explore whether Ofsted should be using its power to suspend so freely.
Suspension
Under the Childcare Act 2006 and the Childcare (Early Years and General Childcare Registers) (Common Provisions) Regulations 2008, Ofsted has the power to suspend a provider’s registration if they “reasonably believe that the continued provision of childcare may expose a child to a risk of harm”.
Suspension is therefore allowed not only where harm has occurred, or even where a risk of harm exists, but simply where there may be a risk of harm. Those suspended are prohibited from working with immediate effect, and those requiring childcare must make alternative arrangements with no notice.
A route to appeal exists, and if the provider has access to legal advice and/or is willing to take on the challenge themselves, they can take their case to a First Tier Tribunal. The suspension remains in place while the case is heard, however.
For such a serious step, the threshold is exceptionally low, and Ofsted is required to justify very little. For years, providers have seldom succeeded in challenging suspension decisions, and will often feel there is no alternative but to simply wait for the outcome of any investigation.
A review of publicly available tribunal decisions shows around 150 appeals against a suspension have been lodged since 2003, the majority of which were dismissed. More recently, however, more decisions seem to be falling in favour of providers, and Ofsted has come in for some criticism over the use of its power to suspend. Here are two examples:
CW v Ofsted [2021] 4368.EY-SUS (V)
This case highlighted the particular need for Ofsted to both weigh up all the available evidence and to keep its decisions under review.
CW had been a registered childminder since 8th June 2010. On 15th March 2021, she notified Ofsted of an incident involving herself and a four-year-old five days earlier, which included minor physical contact. After conducting a visit on 16th March, Ofsted decided to suspend CW’s registration. The suspension was extended three times before CW lodged an appeal.
While the 10th March incident appears to have triggered the initial visit and subsequent suspension, Ofsted sought to rely upon other factors to justify the continued suspension, including knowledge of ratios, health, and record keeping. Although CW was able to produce evidence challenging Ofsted’s initial findings and conclusions, it did not lift the suspension.
At appeal, the tribunal found that CW’s continued suspension was not justified. “This would appear to be a one-off incident. We conclude that Ofsted has, in our view, not taken sufficient account of what are a considerable weight of positive factors, when balancing the current risk to children”.
Notably, this case established that it should not be a given that taking steps towards cancellation will justify continued suspension: “We have in mind that a suspension must not be a ‘stopgap’ or pre-judgement. Cancellation is a separate process”.
SD v Ofsted [2021] UKFTT 0411 (HESC)
This case distinguished the finding of the threshold test from the necessity and proportionality of imposing a suspension order. The decision also referred to a rarely used power: imposition of conditions upon registration. Although conditions were not imposed in this case, the tribunal appeared to give guidance to Ofsted to consider using them.
SD had been a registered childminder since 7th January 2008. On 26th June 2021, an allegation was made relating to SD’s husband that concerned a rape/sexual assault approximately 30 years earlier. The allegation was subject to a police investigation.
Between June and October 2021, SD agreed to restrict her husband’s access to the house between 8am and 6pm. One day in October, she allowed her husband into the house with her own child. On 22nd October, she was issued with a suspension notice, and subsequently lodged an appeal.
The tribunal found that although the threshold test had been satisfied, “it does not necessarily follow that a suspension order is necessary and proportionate”. “In our view, the protection that is necessary can be achieved by means other than suspension in this case”, it continued. “It is common ground that it is open to the respondent to impose conditions on the appellant’s registration”.
Again, the tribunal commented on the use of suspension as an interim measure where cancellation is sought. “We do not, however, consider that suspension is necessary to protect minded children pending Ofsted’s consideration of [the appellant’s] suitability on a substantive basis, or pending further investigation by the police and/or social services. We say this because there is a reasonable alternative – i.e. the imposition by Ofsted of a condition… In our view, this would meet the legitimate public interest aim pending further decision-making or investigation.
What can providers do?
Typically, Ofsted will immediately take steps to suspend a childcare provider and begin an investigation once a concern or allegation is reported. Indeed, the Chief Inspector’s annual report notes that “most suspensions relate to alleged abuse by someone living or working on childminder premises, and other serious concerns such as providers not taking the right action to notify relevant agencies of concerns about children, and unsuitable people having access to children”.
Only time will tell whether Ofsted will reconsider its approach. For now, providers should seek legal advice immediately if they are suspended. They should remind themselves of guidance regarding notifications to Ofsted, and should ensure that only those who are deemed suitable have access to premises where childcare is provided.
