Managers of a pre-school stripped of its Outstanding status after reported failings with mobile phone safeguarding claim that they had a formal policy with which parents were happy.
Cindy and Steve Fox, a married couple who together run Cherubs Pre-School from a village hall in Kent, are challenging Ofsted’s Inadequate rating, which seemingly resulted from the nursery sending photos of children to parents with their signed consent.
Cherubs has now referred the complaint to the Ofsted ombudsman after the decision was upheld at stage three of a four-stage complaints procedure.
The couple described suffering stress and ill-health as a result of the inspection, and said they are worried about how their business will survive the funding hit. The setting may not be able to open this September because the rating means they cannot apply for the free entitlement for children registering after December last year. They are due to lose 27 children to school in the summer, and said they cannot register replacements unless Ofsted re-inspects before Easter.
The case has been reported in newspapers and on television news, with much of the coverage focusing on the apparent unfairness of the downgrading when in many other areas the setting received praise. Cherubs was previously rated Outstanding following its 2009 inspection.
Mr and Mrs Fox claimed that contrary to Ofsted’s statement that the nursery allowed staff to take photos on personal mobiles, the photos were taken by a manager using the setting’s handset.
The contention centres around a photo of a child sent to a mother’s mobile by Mrs Fox, which the nursery claimed was part of the setting’s practice of reassuring parents of their children’s well-being.
There is no regulation which bans use of mobiles, but having a policy on their use – which Cherubs insisted it had in writing, with consent signed by all parents – has been a requirement since 2014, following the serious case review of Plymouth nursery worker Vanessa George. Ms George was jailed for a minimum of five years for sexually abusing youngsters in her care at Little Ted’s nursery in Devon and making and distributing indecent images of children.
The EYFS spells out the need for a policy under the heading Child Protection. It states, ‘The safeguarding policy and procedures must include an explanation of the action to be taken in the event of an allegation being made against a member of staff, and cover the use of mobile phones and cameras in the setting.’ The common inspection framework also requires professionals to demonstrate an understanding of the risks.
While the Cherubs case highlights the careful balance to be struck between technology use and safeguarding, the facts behind Ofsted’s decision have not been made public, either in the inspection report or subsequently.
Mr Fox, Cherubs’ admin manager, said that on the day of the visit to the pre-school in Linton in October last year, the inspector invited parents to discuss their experience of the nursery with her.
‘One of the parents said one of the best aspects was that when she brought her child in, she had anxiety, and within ten minutes she saw a picture of her looking settled doing a puzzle or a painting,’ said Mr Fox.
He claimed the parent told the inspector, ‘They send photos via phone.’ The mother had meant ‘Cherubs as an organisation’, he said, but the assessor took this to mean ‘all members of staff’.
‘This is what we feel may have led to a misunderstanding,’ added Mr Fox. ‘We are unaware if any other parents mentioned this, only one made us aware and the inspector did not tell us how many parents mentioned it.’
Mr Fox said the inspector asked his wife if she was aware of the Vanessa George case, a question that made her feel ‘uneasy’ and like she was being compared to a paedophile.
The inspector went on to report that the children were ‘not safeguarded effectively’ at the setting. This was said to be because, ‘Staff use personal mobile phones to photograph children at the setting, such as for observations and sending messages to parents.’
In addition, the report stated that Mrs Fox lacked ‘understanding of the risks to children’ and it judged that the nursery does not ‘monitor the use of mobile phones effectively to ensure children’s safety’.
The couple described the report as ‘incorrect’ and claimed personal mobile phones are not allowed in the setting ‘at all’. In addition, they insist that the inspector ‘did not see anyone using a mobile phone’. Mr Fox said the assessor did not ask his wife or the supervisor if other staff send photos to parents, to which the answer would have been ‘no’.
Regarding the nursery’s written policies, he said the inspector asked for them but only ‘flicked through’, and ‘did not mention any issues with any of the policies’.
An Ofsted spokesman told Nursery World, ‘The key word [in the report] is “monitor”.’ When asked to clarify this, the spokesman directed the magazine to the same words of the report. Asked about the evidence against Cherubs, the spokesman said, ‘The inspection report is based on what the inspector knew and saw when she was in the setting.’
The spokesman added, ‘It is vital that young children are safe in pre-schools. Early years settings determine their own policies about mobile phone use, but inspectors will want to be assured they are being used properly. As the EYFS states, early years providers must ensure they take all reasonable steps to ensure children in their care are not exposed to risks and must be able to demonstrate how they are managing risks. An early years provider’s safeguarding policy and procedures must cover use of mobile phones and cameras.’
Mr Fox said, ‘The report states that staff used personal mobile phones to take pictures of children and send them to parents, and that mobile phones had not been identified as a safeguarding issue.
‘That is untrue. We don’t take pictures on personal mobile phones and we did have a policy and procedure in place. Staff have to put their mobile phones in a box in a kitchen away from the main setting.
‘There is only one mobile phone in the setting. We have to use a mobile because there is no landline, because we’re in a village hall.
‘For the 12 years we have been open, our policy states that if a child is unsettled, we take a photograph of just that child and send it to the parent’s mobile phone. The photo is then deleted so it’s not stored anywhere.
‘The policy is shown to parents and they are asked to consent to that. If they don’t consent, we don’t take a photo. All the parents here have signed up to this.’
After the downgrade, Mr Fox said Cherubs sent parents a questionnaire asking them if they were aware of the mobile phone policy and if they agreed to it. He added that the setting had been inundated with responses supporting its procedures, with one mother stating, ‘I back this policy 100 per cent’.
Another mother, Chantelle Bourne, who previously received a mobile photo of her child from Cherubs (right), has launched an online petition calling for the Ofsted decision to be overturned. It has gained almost 2,500 supporters. Mr Fox said, ‘Not one parent has taken their child out of the setting as a result of this report.’
He added that despite the support, since the downgrade the pre-school has changed its mobile policy so that photos are no longer sent to parents.
Ofsted is required to return to the setting to re-inspect within six months of the downgrade, in this case before the end of April.
At the time of going to press the inspector was unavailable for comment.
• View the Ofsted report here: http://bit.ly/1Vjr0Wl
PROFESSIONALS DEBATE THE ISSUE
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Debbie Alcock, managing director of training company Influential Childcare and a former Ofsted inspector, says that having read the Ofsted report, she understands the Inadequate rating was down to the ‘provider’s lack of knowledge of the risk’, rather than mobile phone use.
She adds, ‘The last inspection was carried out in 2009 – that is a gap of nearly seven years, and with providers who are graded as Outstanding they get little help or updates. For me the problem still is lack of training in the regulations and what they really mean. Since this provider got their Outstanding there has been a new publication of the Statutory Framework. I would like to know if she had help to interpret this or was left alone.
‘For me the bottom line is that children were not safeguarded due to poor knowledge.’
A LAWYER’S VIEW ON CHALLENGING OFSTED’S JUDGEMENTS
A provider faced with an inspection judgment of an early years setting which it wants to challenge is in an invidious position. The only formal legal challenge is Judicial Review which is a very high bar to cross evidentially. That leaves Ofsted’s complaints process which in my experience lacks transparency and basic fairness. Following an inspection, the provider can make a step 2 complaint but this means that Tribal or Prospects will investigate its own inspector.
When the complaint is not upheld, the provider can seek a review of the step 2 outcome by Ofsted - step 3. In the event of an unsuccessful step 3 review, the provider can refer the complaint to the Independent Complaints Adjudication Service for Ofsted (ICASO) but their remit is so limited, being unable to reverse any Ofsted decision.
Ofsted publishes extensive inspections guidance such as the Common Inspection Framework referring to evaluations being based on “clear and robust evidence” ensuring that “judgments are fair and reliable”. Despite this, neither Tribal/Prospects nor Ofsted will ever disclose their inspection evidence during a complaint. Ofsted treats requests for disclosure of the inspection evidence as Freedom of Information requests and refuses, citing exemptions. It is possible to request a Decision Notice from the Information Commissioner on this refusal, but this is unlikely to conclude within the complaint timescales.
This lack of transparency has been made yet more opaque by Ofsted stripping down its reports to a few pages thereby providing no detail of the evidence base for judgments. Ofsted was not obliged to operate a formal complaints process but once it adopted such a procedure it must be operated according to the principles of fairness. Disclosing this evidence would allow a complainant to make informed representations in support of its complaint and would allow the complainant to understand whether Ofsted had fairly reached the conclusion that there was nothing in a complaint. It is very hard to see how the provision of this evidence which is a pre-existing record, could cause it operational difficulties or create unnecessary expense.
This should be seen in the context of the impact of Ofsted’s judgments, especially inadequate judgments, with providers losing their Local Authority funding. This commercial impact is manifestly relevant to what amounts to a fair procedure.
ADVICE FROM PROFESSIONAL BODIES
Jo Baranek, NDNA’s lead early years adviser, said childcare workers should ‘never use their own mobile phones to take, store or transmit photos of children’. She added, ‘If pictures are being taken for pre-determined purposes, with the relevant parental consent, staff should use a camera, tablet or phone that belongs to the setting and is securely kept there. Managers should be checking and monitoring what photos have been taken and any emails or social media activity undertaken. Images should not be stored on devices. Any needed for the longer term should be moved to a secure computer drive location.’
Lisa Graham, lead safeguarding adviser at Pre-school Learning Alliance, said, ‘While it’s understandable that staff may wish to take photos of activities at their setting which include children, to reassure parents, it is important that a procedure is in place to ensure any risks are addressed. Alliance guidance for our settings states that staff should not use their personal mobile phones or cameras – normally they are switched off and locked away to assist this.’
Liz Bayram, chief executive at PACEY, said member childminders are advised to have a ‘clear safeguarding policy’ on mobiles and cameras, and are provided with access to free templates for EYFS compliance. She added that parental permission should be in place before activities are recorded and shared, and photos deleted from the device after use. She added, ‘All early years professionals need to ensure they are registered as a data controller with the Information Commissioner's Office, we also recommend that they have written policies, and that copies of these are given to parents and carers.’