8. Letter from Mr David Bell,
HM Chief Inspector of Schools to the Chairman of the Committee
EARLY YEARS: COMPLAINTS ABOUT PROVIDERS
I note from an article on page 4 of The Times,
dated 28 April 2003, that you intend to ask the Select Committee
to look into the issue of disclosure of information to parents
following a complaint about a child minder or day care provider.
I thought I should write to you to explain the legal position
in more detail.
As Her Majesty's Chief Inspector of Schools
(HMCI), I am the registration authority for day care and child
minding for children under the age of eight in England. My powers
in this respect are set out in Part XA and Schedule 9A of the
Children Act 1989, as inserted by the Care Standards Act 2000.
Under these powers, I am under a duty to ensure that providers
of day care and child minding are, and continue to be, "qualified"
for registration. In determining whether or not someone is qualified
for registration, I must ensure that every person looking after
children, and all those living or working on the premises, are
suitable to be in contact with young children.
I am therefore a statutory office holder, and
must ensure that any action I take is within my statutory powers.
Investigations into complaints made by parents or other members
of the public are an important element of my regulatory functions.
My purpose in investigating such complaints is to ensure that
registered providers continue to be fit for registration, and
to consider if any action is required. All complaints are dealt
with in accordance with set procedures and action taken where
this is necessary. Any person who has a concern about a childcare
provision can telephone Ofsted's national helpline, and all complaints
received through this helpline are routed to one of Ofsted's eight
Regional Centres. Complaints are passed to the Complaints, Investigation
and Enforcement Team ("the CIE Team"), in the Regional
Centre and reported to the Area and Team Managers for the area
within which the provider is based. The Area Manager takes a decision,
in discussion with the CIE Team, on the way in which a complaint
should be looked into, and this can take one of several forms.
Ofsted may ask providers to investigate an issue themselves and
report back, and childcare inspectors may conduct inspection visits.
These visits may be announced or unannounced, depending on the
nature of the concern.
As a result of looking into a concern raised
by a parent or other member of the public, I must make a decision
as to whether or not the person remains qualified for registration.
Even where a provider remains qualified, Ofsted may still agree
specific actions with the child care provider to address particular
issues. If I take the view that the person is no longer qualified
for registration, then I will take action to cancel their registration.
This can be done through the issue of a notice of intention to
cancel, which allows the provider to continue to operate until
they have had an opportunity to make representations as to why
their registration should not be cancelled. In cases where a child
is, or is likely to be, at risk of significant harm, Ofsted can
seek an emergency order through the courts to cancel the registration
with immediate effect. In both cases, the provider has the right
of appeal to the Care Standards Tribunal.
Part XA of the Children Act gives me express
powers to make information I hold about registered child care
providers available more widely to the public. These powers cover
two areas. First, I am permitted in law to publish reports of
the regular prescribed inspection, which currently takes place
every two years. Secondly, I have express powers to make available
to the public a register of those providers who are registered
to provide day care and childminding. Subject to these provisions,
a duty of confidentiality is owed to registered persons who provide
information to Ofsted—even where such information is provided
as part of an investigation of a complaint. Given that the law
expressly provides for me to make information available in two
ways, Ofsted's legal advice is that making information publicly
available in any other circumstances (without the consent of the
registered person) is likely to be outside its legislative powers.
This would be the case unless there is either an overriding public
interest justifying such disclosure (such as a real risk of harm
to any person if such disclosure is not made), or such disclosure
can necessarily and reasonably be implied from a statutory provision.
This view is further strengthened by other legislative
provisions. These include the Data Protection Act 1998, which
governs the processing (including disclosure) of any personal
data Ofsted holds. Under this Act, information that Ofsted holds
is likely to include some personal data and in many cases, sensitive
personal data. As such, Ofsted must be able to point to a lawful
basis upon which it is able to disclose that information. As stated
above, the law does provide express powers for me to disclose
information from prescribed inspection reports, and to publish
a register. But my lawyers believe that this does not extend to
the publication of any reports on enforcement or investigation
activities or inspection outside the regular inspection reports.
Another potential legal barrier to making information
more widely available is the Human Rights Act 1998. In cases such
as this, there are competing rights, namely those of the child,
the parents and the provider. Under this Act, Ofsted must ensure
that a registered person's right to privacy is not compromised
unless such interference with this right is lawful, necessary
in a democratic society, in the interests of the protection of
the rights and freedoms of others, and proportionate to the ends
to be achieved by such publication. Again, legal advice is that
a policy under which information is made available other than
that provided for through statute or where there is an overriding
public interest is likely to be unlawful.
Whilst decisions must be made on a case by case
basis, for all the reasons outlined above, the starting presumption
must be that I should not disclose information other than my legal
powers allow for. The law makes express provision for me to make
information available via a public register and through prescribed
inspection reports. In the absence of any other express provision
in law relating to disclosure of information, then I am advised
that there is no legal power for me to disclose other information.
I fully recognise the concern this causes for
some parents, who want to ensure that their children are safe
and well cared for in child care provision. This is the primary
purpose of my regulatory powers and duties under the Children
Act, which are to ensure that only those providers who continue
to be suitable remain registered to provide day care or child
minding. But I do understand that some parents want to know more,
and are not willing to rely alone on the fact that a provider
is registered with Ofsted. In view of this, I am currently considering
two measures that could make the situation easier for parents
who do want such information.
First, I am putting in place measures that will
allow for information about previous complaints to be disclosed
to parents with the child care provider's written consent. My
legal advice is that any such arrangements must relate only to
specific requests for disclosure. In other words there can be
no "blanket" disclosure to all parents—each request
will have to be handled separately, if it is to meet the requirements
of data protection legislation. Secondly, I am currently considering
with DfES Ministers what steps we could take to deal with cases
where the child care provider does not consent, but where I believe
there is information that a parent may need to know. Any such
proposals would clearly have wide-ranging implications for data
protection and human rights, and will have to be subject to full
consultation.
I hope this letter helps to explain my position
and also reassures you that I am doing what I can, within the
legal parameters expressed in my powers, to make information available
to parents. I would be most happy to explain this to the Select
Committee further, if that would be helpful.
30 April 2003
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