England and Wales Care Standards Tribunal

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You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Ram & Anor, Re an Appeal by [2002] EWCST 100(EY) (25 April 2003)
URL: http://www.bailii.org/ew/cases/EWCST/2003/100(EY).html
Cite as: [2002] EWCST 100(EY)

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Ram & Anor, Re an Appeal by [2002] EWCST 100(EY) (25 April 2003)

In the matter of an appeal by
Makham Ram and Pushpa Ram

[2002]100.EY

FINDINGS

1. Mr and Mrs Ram had been registered under Part X of the Children Act 1989 to run a day care provision (Butterflies). Notice of intention to cancel the registration was served on Mr and Mrs Ram by the Wolverhampton City Council on 31^st August 2001 under s 77 (1) of the Children Act 1989.
2. A "hearing" subsequently took place before the Wolverhampton City Council Social Services Appeals Panel on 9^th and 10^th September 2002, and a "decision" was made on 10^th September 2002 to uphold the decision of the Social Services Registration Panel dated 24^th August 2001 to cancel the Registration.
3. Mr and Mrs Ram submitted an appeal form to the Tribunal signed 20^th November 2002, having initially submitted an appeal to the Wolverhampton Magistrates’ Court, and been told by the Senior Legal Adviser to the Clerk to the Justices by letter dated 23^rd October 2002 that the appropriate venue for such an appeal was the Care Standards Tribunal.
4. By letter dated 24^th December 2002, the Area Manager of OFSTED wrote to the Tribunal stating "It is OFSTED’s understanding that as the cancellation was begun by Wolverhampton City Council that they should also undertake the appeals process." OFSTED sought in the meantime more time to respond to the application "whilst the matter of who will act as respondent in this case before the tribunal is resolved."
5. OFSTED were granted an extension until 7^th February 2003. By letter dated 4^th February 2003, the Wolverhampton City Council wrote to the Tribunal "After consulting with OFSTED, I write to confirm this authority will conduct the case for the Respondent in the Tribunal." The Secretariat replied to Wolverhampton on 11^th February 2003 "I understand your letter to mean that the City Council will be acting on behalf of OFSTED."
6. The form B4 was returned by Wolverhampton on 13^th February 2003. The second paragraph states "…I cannot say that this Authority is responding to this appeal on behalf of OFSTED who have had no involvement in this matter. In my submission, this appeal is the continuation, through transitional provisions of this Authority’s action under s 77(1) of the Children Act (part X).
7. The B6 form (further information) was signed by Wolverhampton on 4^th March 2003, and the B5 form was signed by Mr Ford, Solicitor, on behalf of the applicants on 12^th March 2003.
8. A preliminary hearing was arranged for 25^th April 2003 at the request of Mr Ford in a letter dated 13^th March 2003. At the hearing before me, Mr E Dismorr of Counsel appeared on behalf of Wolverhampton, and Mr Ford appeared for the applicants, who were also present.
9. I had written submissions from the Assistant Treasury Solicitor, Mr C House on behalf of OFSTED dated 24^th April 2003, and a position statement from Wolverhampton dated 24^th April 2003.
10. Mr House’s written representations were to the effect that from 1^st September 2001, the appellants’ registration under Part X of the CA 1989 became, by operation of the transitional provisions, a registration under Part XA of the CA 1989 (inserted by s 79 of the Care Standards Act 2000).
11. Accordingly, Mr House submits that the purported cancellation by Wolverhampton dated 10^th September 2002 was a nullity because as from September 1^st 2001 only OFSTED had the power to cancel registration.
12. It therefore follows from Mr House’s submission that as the purported cancellation by Wolverhampton was a nullity, there was nothing from which Mr and Mrs Ram need appeal against.
13. Mr Dismorr agreed with Mr House’s written representations. He states that the effect of paragraphs 1(3), (4), 5(1) and 9(1) of the Schedule to the Care Standards Act 2000 (Commencement No 7 (England) and Transitional and Savings Provisions) Order 2001 (SI 2001/2041) is that a local authority may cancel a registration at any time up to 31/8/01 but not thereafter. Accordingly, Mr Dismorr acknowedges that the relevant registration authority since 1^st September 2001 has been OFSTED and that accordingly there is no decision for Mr and Mrs Ram to appeal.
14. Mr Ford’s position is the same as that of Mr House and Mr Dismorr.
15. I share the view on the law that is agreed by Mr House, Mr Dismorr and Mr Ford. The purported decision taken by Wolverhampton on 10^th September 2002 was a nullity, and thus there is no appeal before the Tribunal.

COSTS:

1. I considered whether I have jurisdiction in relation to costs under Regulation 24 of the Tribunal Regulations. I have formed the view that Regulation 24 does not cover a case such as the present where in fact there is no appeal and indeed there has never been an appeal before the Tribunal. Costs can be awarded only against a "party". Wolverhampton is not a "party" and has never been a "party". OFSTED also is not a "party" and has never been a "party".
2. It is clear to me that Mr and Mrs Ram are not to blame for the considerable expenses that they have undoubtedly incurred in this matter. OFSTED and Wolverhampton and their legal advisers as well as Mr Ford have all acted on the assumption that the procedure adopted in September 2002 was in accordance with law. This is not the case. The procedure was not in accordance with the law. It was a nullity. Significant costs have been incurred that should not have been incurred.

ORDER ACCORDINGLY:

THERE IS NO APPEAL BEFORE THE TRIBUNAL AND THE CASE WILL BE NOTED ACCORDINGLY IN THE RECORDS.

THERE IS NO POWER TO AWARD COSTS

 

His Honour Judge David Pearl
President

25^th April 2003.