In the First-Tier Tribunal (Health, Education and Social Care)
Manor Court Newcastle upon Tyne
26th August 2011
Before
Deputy Chamber President Judge John Aitken 
Ms Margaret Diamond 
Mr David Braybrook

Mr Robert Howe 
Appellant

v.

OFSTED
Respondent

Decision

1.	On 11th August 2011 the appellant filed an appeal under Section 21 of the Care Standards Act 2000 against the decision of the respondents to impose conditions upon a children’s home operated by the Appellant under Section 22B of the Act.	

2.	In short the Respondent has issued a notice to restrict the accommodation in question, Howestead Lodge, on 19th July 2011. The purpose of such a notice is to safeguard the welfare of children and young people where there is reasonable belief that there is a risk of harm to a child or young person. In particular in this case the Respondent claims to have issued the notice whilst Police enquiries are being carried out into allegations of ill treatment and assault are carried out by the Police. There are a number of procedural requirements in serving the notice, no point is taken with regard to them. The test applied is not found within statute, but the guidance to Ofsted on the issuing of such notice is explicit at paragraph 6:
“We should serve a notice restricting accommodation where we reasonably believe that there is a risk of harm to a child or young person, if we do not restrict the accommodation.” 

3.	The notice served is within our papers at B18. it restricts the home from accommodating any child who was not resident at the time of the notice. Since the current residents were re-accommodated on a temporary basis by Northumberland County Council on hearing of the allegations and Police Investigation, it has the effect of preventing the home from operating. The notice expires on 30th August 2011.	

4.	An anonymous letter of denunciation appears to have been sent to the press and the NSPCC, alleging ill treatment at the home it was passed to the Police, Ofsted and Local Authorities but not the appellant. There is a suggestion by the appellant that a copy of the letter should be disclosed to him to enable him to answer the allegations. We have considered whether the appellant can meet the allegations without the letter. We consider that possession of the letter itself would not assist the appellant, it merely recites allegations, matters have moved on since then and indeed since the appellant filed his appeal. At the time the appeal was filed the appellant knew no more than scant details of allegations made. He was unaware of how seriously they were being treated by the Police or whether they were to be investigated in any great detail, merely that preliminary investigations had taken place.	

5.	The current situation is neatly summarised by PC Defty who gave evidence before us in the absence of the investigating officer and although not in charge of this investigation, was largely familiar with it. Within her statement at page 107 of the bundle she had this to say “The letter made reference to long term inappropriate behaviour by staff towards children. Allegations included that the children had been threatened and assaulted as well as being subject to sexualised comments.” She went on later to say that the staff and children had been interviewed, then this “Subsequent enquiries resulted in six current and former residents of Howestead Lodge making complaints of assault against four staff members. Five of the allegations were new and not previously disclosed to the Police.” Before us she explained that in the next two weeks discussions will take place with the Crown Prosecution Service to guide progression of the investigation. She made enquiries and was able to establish that none of the four persons under investigation had been told they would not be proceeded against, merely that following interviews as voluntary attendees they were told that there would not yet be proceedings.  In cross examination she revealed that some of the allegations made appeared to be corroborated by other witnesses.	

6.	We also heard from Clare Deary Compliance officer for Ofsted, she explained the circumstances of the notice, which are summarised above and agreed with Mr Gibson on behalf of the appellant that they had not consulted with the appellant before deciding to issue the notice.	

7.	Steven Pearson, Social Care inspector gave evidence, restricted mainly to an account of his visit in which he formed the impression that Mrs Howe’s daughter was heavily concerned in running the home.	

8.	We heard from Mr Howe about the difficulties he was being caused by this notice and the history of the home and how well it sought to comply with all inspections, and of its good history in this regard. He explained that his wife was still running the home, although she had deafness problems and was ill at the time of Mr Pearson’s visit and that was why she had relied upon her daughter.	We were very impressed by Mr Howe as a witness, he was plainly a man in a very difficult position seeking to behave to the very highest ethical standards. Having heard the evidence himself of the investigation, he paused very long and hard over whether he felt the notice as appropriate at this time, before eventually explaining that he did not think it was.	

9.	Mr Howe also explained that he believed that some of the allegations were not new, and had previously been made and withdrawn or resolved in other ways, that allegations were widespread and did not always indicate that anything had happened. He did however accept that at least two matters were not recorded within the homes records and were new.	

10.	Mr Howe was specifically asked if the people concerned in the police enquiries could be suspended and home still run, he explained that they were key to the legal requirements of the home at present, but it may be possible to obtain temporary staff to cover those positions, it was not possible at present though.	

11.	Mr Gibson on behalf of the appellant raised the failure of Ofsted to contact the appellant to see if they had any information at all which might have a bearing upon the notice. He also stressed the good record of the home and suggested that it had not been taken sufficiently into account.	

12.	We are acutely aware of the damage such an investigation does to the reputation of Howestead Lodge, that no person has been charged, much less convicted of any crime or wrong doing. We have seen documentation that the home has passed numerous inspections without difficulty. Indeed at the meeting between the appellant and Mr Mark Douglas the Head of Safeguarding for Northumberland he acknowledged that his dealings with the appellant had always been satisfactory. There is an Ofsted inspection report dated April of this year in which the home is described as “good at keeping children and young people safe and feeling safe.”	

13.	The appellant has filed evidence that some former residents of the home have spontaneously on Facebook written of how they have great affection for their time there and are deeply grateful to staff members who have helped them. There are references from other sources such as Dr Podogrocki and Dr Black who have visited the home regularly and speak well of the way it was conducted, and have no concerns. Assistant Headmaster Paul Grabbitus also writes of the very high regard in which he holds the appellant and his wife for their work.	

14.	The appellant has costed the effect of this temporary closure of the home, it is almost £3,000 per day, we have no reason to doubt that figure, in the period since the appeal was filed on 11th August 2011, the home has lost in the region of £45,000. It is further said, and we entirely accept that this is ruinous, that the home is unable to withstand this and may have to close whatever the result of the investigation.	

15.	We do not consider that in this case a failure to contact the appellant before issuing the notice could have made any difference to Ofsted’s actions, here the appellant was in the dark and knew nothing of the detail of matters, we find that at the time of the rapidly developing situation that faced Ofsted the notice was issued appropriately. That is of course not to say that it is always appropriate not to contact the persons against whom the notice is served, unless there is a reason not to do so, they should be contacted and their views considered with all of the other evidence, that is surely the effect of paragraph 12 of Ofsted guidance on issuing a notice in such matters:	
“Where we are considering restricting accommodation, we must take into account any action that the provider may take to reduce the risk of harm, before serving the notice”.	

16.	We do not underestimate how difficult it must be for someone in the appellant’s position to prove the negative, that is that there is nothing properly described as a “risk” to the children at the home. Nonetheless given that the Police are now in possession of evidence in the form stated, the balance falls firmly on the side of protecting those who are most vulnerable in this situation. When this appeal was filed there was one anonymous letter, there is now evidence upon which a prosecution may be mounted, there are 6 allegations from young people at or formerly at the home, some of which appear to have corroboration. We apply the test within the Ofsted guidelines as of our hearing today on the facts as we have found them That is a basis upon which we find there is no doubt that without any judgement as to what has happened at the home, or may happen in the investigation there exists at this stage a reasonable belief that a risk of harm to a child or young person, if the accommodation is not subject to the restriction.	

17.	At present the Respondent relies upon the Police investigation, it is ongoing and has developed, there are now 6 firm allegations. In that way the respondent is able to discharge its duty to justify the notice. In the words of the Upper Tribunal in Ofsted v GM & WM [2009] UKUT 89 (AAC) at paragraph 27:	

“…a suspension imposed on the ground that there is an outstanding investigation can, in our judgement, be justified only for so long as there is a reasonable prospect of the investigation showing that such steps are necessary”

18.	It is plainly necessary for the respondent to satisfy itself that the Police are actively investigating the case to continue to hold their reasonable belief.

Decision

The appeal is dismissed the notice served is confirmed.

Judge John Aitken
Deputy Chamber President
Health Education and Social Care Chamber
30 August 2011