England and Wales Care Standards Tribunal

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Cite as: [2003] EWCST 212(EYSUS)

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Walkes v OFSTED [2003] EWCST 212(EYSUS) (27 October 2003)

Walkes v H.M. Chief Inspector of Schools (Ofsted)
[2003] 212.EY SUS

BEFORE

Mr John Reddish (Chairman)
Mrs Margaret Williams
Mr David Griffiths

17^th September and 14^th October 2003

Appeal

1. On 19th August 2003 Mr Walkes appealed under regulation 8 of the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003 against the decision of Her Majesty's Chief Inspector of Schools (Ofsted) to suspend his registration as a person providing day care from 5th August 2003.

Representation

2. At the hearings Mr Walkes represented himself and Miss Freeborn of Counsel appeared on behalf of the Respondent.

Preliminary

3. The Tribunal made an order, pursuant to regulation 18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to the identify any child involved in the case.

The evidence

4. The Tribunal heard oral evidence from Ms Patricia Edward, a Child Care Inspector employed by Ofsted and from Mr Walkes.

5. The Tribunal read all of the witness statements, reports and other documents contained in the bundle prepared and submitted by the Respondent's solicitors and perused the original photographs copies of which were included in the bundle. Page references in this decision are to the numbered pages in that bundle.

Facts

The material facts found by the Tribunal are as follows:

6. In July 1999 Mr Walkes was registered by the London Borough of Wandsworth to provide day care for up to 26 children in 3 rooms on the ground floor of the premises known as "The Nursery" in Elmbourne Road, Tooting, London SW17.

7. In December 1999 Mr Walkes and his wife opened the Nursery and began receiving children.

8. On 4th August 2000 the terms of the registration of the Nursery were varied. The permitted number of children was reduced to 24.

9. On 1st September 2001 responsibility for the regulation of child minding and day care passed from local authorities to Ofsted and new National Standards were adopted.

10. On 13th February 2002 Ofsted received a complaint from a former member of the staff that the Nursery was not safe for children.

11. On 12th April 2002 Ms Marnie Downs, a Child Care Inspector, spoke to Mr Peter Reddell, an Environmental Health Officer with the London Borough of Wandsworth. Mr Reddell reported that he had "very serious concerns" about the Nursery and about Mr Walkes, who, he said, used to be an Environmental Health Officer and could be intimidating and had "a negative attitude". Mr Reddell expressed the view that Mr Walkes was operating "on the edge of legality".

12. On 22nd April 2002 Ms Downs inspected the Nursery and identified 8 matters that required attention, including the state of repair of the equipment in the outdoor area.

13. On 30th April 2002 Mr Reddell inspected the premises at Elmbourne Road. He found several items that needed attention and served 6 notices under the Food Safety (General Food Hygiene) Regulations 1995 requiring, amongst other things, the removal of the dirty carpet in the nappy changing area, the installation of a new floor surface in the children's WC cubicles and the re-fixing of loose or damaged tiles on the walls in the hand washing area [pp.228-9].

14. On 18th December 2002 the Respondent received a further complaint from a prospective customer of the Nursery to the effect that there were "several very obvious problems" including open bags of cement in the children's toilet, dried vomit in one of the cots and dirty and threadbare carpets [pp.134-5].

15. On 10th January 2003 Ms Edward and her Team Manager, Ms Sheila Harris inspected the Nursery. They found that repairs to the floor in the children's toilet and changing area had been completed but that the toilets were dirty and the linoleum needed replacing; that some of the children's equipment was dirty and that there were several other potential hazards for children. Ms Edward identified 8 actions which had to be completed by 31st January 2003 [p.242].

16. On 20th February 2003 Mrs Walkes telephoned Mr David Hitching of Wandsworth Council Technical Services Department. She accused Mr Hitching and his colleagues of "making her and her husband sick". In response to Mr Hitching's inquiry as to why the bathroom floor had not been finished, Mrs Walkes said that she had been ill and that her husband had "other things to do". [p.271]. Mr Hitching subsequently reported these and other matters to the Respondent's Area Manager, Ms Jennifer Wilson [pp.263-4].

17. On 19th May 2003 Ms Edward and Ms Harris visited the Nursery again. On arrival they found Mr and Mrs Walkes sitting in their car, about to drive away. On seeing them, Mr Walkes got out of the car and spoke to them. He told them that he was closing the Nursery in 2 weeks and therefore did not need an inspection. Ms Harris said that she would nevertheless like to carry out an inspection.

18. On entering the premises, Ms Edward and Ms Harris found that there was only one member of staff present (Ms Judith Thomas) with 5 children under the age of 5 years. The children were not directly supervised because Ms Thomas was preparing lunch in the kitchen. Ms Harris pointed out that this was a serious breach of standards. Mr Walkes continued to insist that an inspection was unnecessary since he was preparing the Nursery for closure.

19. Ms Harris consulted Ms Wilson by telephone. Ms Wilson advised that the inspection should proceed and that, if it appeared that concerns about breaches of standards were well founded, Mr Walkes should be invited to agree to voluntary suspension. When Mr Walkes explained to his wife that the inspectors were concerned that there was a risk of harm to the children on the premises, Mrs Walkes collapsed and fell to the floor, breathing heavily and calling out. Mr Walkes later explained that his wife had suffered an asthma attack. After about 5 minutes Mrs Walkes revived and went to sit in the large playroom, where she remained while Ms Edward and Ms Harris completed their inspection.

20. Ms Harris asked Mr Walkes whether he would agree to "suspending the provision in order to put things right". She explained that, since April 2003, Ofsted had had the power to suspend a provision but that if he agreed to voluntary suspension, it would not be necessary for her to invoke that power. Feeling that he had no alternative, Mr Walkes agreed to a voluntary suspension and signed and agreement to that effect, written out by Ms Harris [p.144]. In her manuscript document Ms Harris recorded 5 breaches of standards: children left with one staff member; inappropriate activities for age group; cleanliness of the premises; hazardous materials in the outside area and administration of medication policy not in place.

21. On 20th May 2003 Ms Sheila Walker of Ofsted wrote to Mr Walkes confirming that he had agreed to voluntary suspension of his provision and setting out the ways in which children were alleged to be exposed to risk of harm [pp.245-6].

22. On 20th June 2003 the Respondent received notification from Ms Karen Barrett that her twins had been attending the Nursery from 2nd June 2003 but that she had found the premises closed on 20th June 2003.

23. On 24th June 2003 the Chief Inspector suspended the registration of Mr Walkes as a person providing day care. On the same day, Ms Edward and Ms Harris visited the Nursery to serve the Notice of Suspension upon Mr Walkes. They found that the premises were closed.

24. On 26th June 2003 the Respondent received a letter from Mr Walkes dated 24th June 2003 in which he asked for answers to a number of questions concerning the inspection on 19th May 2003 and confirmed that, on that date, "the Officer-in-Charge went on long term sick-leave" and that he had not provided care for any children, except his own, since then [p.255].

25. On 3rd July 2003 Mr Walkes appealed against the suspension to the Tribunal under regulation 8 of the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003.

26. On 8th July 2003 Ms Edward and Ms Judith Scott visited the Nursery. No one was present but Ms Edward and Ms Scott were able to see that necessary work to make the outside area safe had not been completed.

27. At the hearing of his appeal on 25th July 2003 Mr Walkes stated that, having reached agreement with the Respondent as to the date of a further inspection, he no longer wished to pursue the proceedings.

28. In accordance with regulation 33(1) of the 2002 Regulations, the Tribunal dismissed the proceedings. The Respondent made no application for a costs order.

29. On 1st August 2003 Ms Harris and Ms Edward visited the Nursery by prior arrangement with Mr Walkes. They "checked the issues of suspension" and advised Mr Walkes that they proposed to take each point in turn. Ms Harris first raised "the staffing issues". Mr Walkes said that he would be working at the Nursery with his wife and Ms Thomas. Ms Harris pointed out that Ofsted had no record that the necessary checks had been carried out on Ms Thomas but Mr Walkes insisted that he had always "taken up police checks". He was unable to find that relating to Ms Thomas but said that he would forward it to Ofsted when he found it.

30. Ms Harris then asked about the qualifications of the staff. Ms Edward confirmed that she had seen evidence of Ms Thomas' NVQ qualification. Mr Walkes produced his wife's Certificate in B Tec Nursery Nursing and his own Diploma in Science and Health Studies. Ms Harris questioned whether this was a child care qualification but Mr Walkes insisted that it was.

31. Ms Harris then raised the question of Mrs Walkes' health. She reminded Mr Walkes that his wife had collapsed during the inspection on 19th May 2003. Ms Edward said that Ofsted would need to carry out a health check to ensure Mrs Walkes' suitability as a manager and that he would not be able to re-open the nursery until it was suitably staffed. Mr Walkes then asked whether there was any point in continuing the inspection.

32. During their inspection of the premises on 1st August 2003 Ms Harris and Ms Edward found several potential hazards to children including trailing wires, an uncovered electrical socket and medication that was within reach of children, including blood test strips and bottles of liquid. Mr Walkes explained that these were used by his wife in connection with her diabetes. Mr Walkes later confirmed both in writing [p.17] and orally at the hearing, that his wife is diabetic.

33. On checking the toilet facilities, Ms Harris and Ms Edward noted that the floor tiles were loose and uneven and there was no soap, toilet paper or paper towels. Inspection of the outside area revealed several more hazards including a gap beneath the fencing with sharp edges, animal faeces, a low trellis with sharp spikes, a dirty sand tray, a water tray containing dirty water and a concrete block with a 4-inch metal tube protruding from it. Ms Harris advised Mr Walkes that, while he had apparently attended to some of the hazards previously noted, there were now further hazards that he would have to rectify before he could re-open the nursery.

34. Finally on 1st August 2003, Ms Harris reminded Mr Walkes that Ofsted would need to ensure that he was "meeting the standards, in particular those relating to the staffing of the nursery".

35. Ms Harris formed the view that Mr Walkes had not demonstrated that "he had an understanding of health and safety" and that therefore children would be at risk of harm if they attended the Nursery.

36. Accordingly, on 5th August 2003 Ms Wilson issued a further Notice of Suspension [pp.104-7] citing the potential problems with the health and qualifications of the staff and the many and various environmental hazards noted by the inspectors as the bases for the Chief Inspector's belief that the continued provision of day care by Mr Walkes would or might expose one or more children to the risk of harm.

37. On 5th August 2003 Mr Walkes telephoned Ms Wilson. He said that he had received "the legal notice" and that he was upset because "it was all lies". He threatened "legal action". Shortly thereafter, Mrs Walkes telephoned Ms Wilson. She asked for a "health declaration form". Ms Wilson promised to send her the appropriate form and said that Ofsted would pay any fee demanded by her GP for completing it. Mrs Walkes then became agitated. She said that her GP was angry because the inspectors had caused her to have an asthma attack on 19th May 2003 when they came in "screaming and shouting that they were going to close the nursery down".

38. On 6th August 2003 Ms Wilson wrote to Mr Walkes enclosing a health declaration form and details of how to obtain a health reference from his wife's GP. Ms Wilson also recorded that Mrs Walkes had told her at the telephone that Mr Walkes was more concerned about his reputation than opening the Nursery and that plans for the Nursery were "unclear". Ms Wilson also commented upon the arrangement whereby Ms Thomas had apparently moved into the premises in Elmbourne Road to undertake child minding there on her own account.

39. On 6th August 2003 Ms Harris and Ms Edward visited the Nursery to explain to Ms Thomas why she could not lawfully care for a child or children on the premises. Ms Thomas was present with one child but refused to admit the inspectors, apparently on the instructions of Mr Walkes.

40. On 19th August 2003 Mr Walkes lodged his appeal in Form D1 [pp.1-5] and also lodged detailed Grounds of Appeal [pp.6-20], drafted by solicitors acting on his behalf. It was submitted in the Grounds of Appeal that the Notice of Suspension dated 24th June 2003 was "ultra vires" as the contents were "not in accordance with the Voluntary Suspension of Registration signed by the Appellant dated 19th May 2003". It was further submitted that the Appellant "did not realise that he would be subjected to a full inspection" on 1st August 2003 and, as a result, "there were issues that were not up to standard".

41. In paragraph 32 of the Grounds of Appeal Mr Walkes' solicitors said that "Mrs Walkes has confirmed that she is happy to complete a health check through her GP to confirm that she is completely suitable to care for children". In paragraph 41 they said that "once the Nursery has re-opened action will be taken to remedy all the risks found" and concluded, in paragraph 42, that "the Nursery will remain closed until the matter is resolved at the Care Standards Tribunal or to the satisfaction of Ofsted".

42. On 26th August 2003 the President gave directions for the filing of evidence by 10th September 2003 and for the setting down of the appeal for a hearing on 17th September 2003.

43. On 12th September 2003 Mr Walkes' solicitors wrote to the Tribunal requesting an adjournment of the hearing on the grounds that they had not received the directions and needed further time to prepare the case. The Chairman declined to grant an adjournment without hearing further from both parties and directed they should attend the hearing on 17th September 2003.

44. On 16th September 2003 Mrs Walkes signed her witness statement [pp.317-23]. She disputed the evidence of Ms Harris, Ms Edward, Ms Barrett and Ms Wilson and referred to her asthma attack on 19th May 2003 but said nothing about her health or her suitability to act as manager of the Nursery.

45. On 16th September 2003 Mr Walkes also signed his witness statement [pp.296-316]. He similarly disputed the evidence of Ms Harris, Ms Edward, Ms Barrett and Ms Wilson and confirmed that he had not allowed Ofsted Inspectors access to the Nursery because he had "no faith" in them. He referred to "an agreement at the Tribunal hearing" on 25th July 2003 and said that the inspection on 1st August 2003 was "very unfair" because the inspectors not only inspected the items listed in the Notice of Suspension of Registration dated 24th June 2003 but also "inspected other things which were then listed in the Notice of Suspension of Registration dated 5th August 2003".

46. On 17th September 2003 Mr Walkes' solicitor, Ms Hurloll, informed the Tribunal that she proposed to withdraw because Mr Walkes had declined to accept her advice to persist with an application for an adjournment and wanted to proceed on that day. After the Chairman explained the procedure and the nature of the issues that the Tribunal had to determine, Mr Walkes said that he wished to apply for an adjournment. He said that his solicitors had failed to obtain photographs and letters from the doctor; had failed to assist him in dealing with the "items on the notice" and had advised him that a "breach of agreement" could be relied upon. Mr Walkes also said that he wished to seek "other legal advice". Miss Freeborn, on behalf of the Respondent, drew attention to the fact that Mr Walkes had had the form relating to medical information since 6th August 2003 but had failed to deal with it and also pointed out that Mr Walkes had failed to respond to the open invitation issued to him by Ms Wilson on 6th August 2003 [p.291] to contact her to arrange for a further inspection or to clarify any matter.

47. The Tribunal granted the adjournment requested since it was satisfied that refusing the adjournment would prevent the just disposal of the case (regulation 7(6) of the 2002 Regulations). The Tribunal also gave directions for the filing of further evidence by Mr Walkes, not later than 4 p.m. on 7th October 2003 and for a further inspection of the Nursery on 8th October 2003 in the event that Mr Walkes sought to rely upon improvements to the premises. Miss Freeborn gave notice that, in due course, she would make an application for an order that Mr Walkes should pay the costs "thrown away".

48. Following the hearing, Mr Walkes had a discussion with Ms Wilson and Ms Harris "to look for a way forward". Ms Harris made notes [p.295r]. On 19th September 2003 Ms Wilson wrote to Mr Walkes to confirm the matters discussed [pp.295 e-f]. She recorded, amongst other things, that Mr Walkes had said that it was always his intention that his wife would be "the person in day-to-day charge of the nursery" and that he had been reminded "about obtaining a health check" for his wife.

49. Mr Walkes failed to file any further evidence by 4 p.m. on 7th October 2003. On 8th October 2003 the Chairman made an "unless order" pursuant to regulation 10 of the 2002 Regulations to the effect that unless Mr Walkes filed his evidence by 4 p.m. on 10th October 2003, the case might be determined in favour of the Respondent without more.

50. On 8th October 2003 Ms Harris and Ms Edward visited the Nursery and spoke to Mr Walkes. Ms Harris first raised with him "the staffing issues". Mr Walkes said that Ms Thomas had "disappeared" after receiving a letter from Ofsted threatening her with prosecution. He added that he would be working at the Nursery with his wife and that he had no plans to employ any additional staff. He also said that he had sent his wife's health declaration form to her GP on 1st October 2003.

51. Ms Harris then turned to "the safety issues". Mr Walkes said that he had removed the trailing wires and had made the garden safe. Ms Harris and Ms Edward noted that the premises were dirty and dusty and that many of the hazards previously seen were still present. They concluded that, although Mr Walkes had attempted to clear some of the hazards both inside and outside, others remained which would place children at risk of harm.

52. On 10th October 2003 Ms Harris and Ms Edward visited The Nursery again, at Mr Walkes' request. They found that Mr Walkes had attended to all of the environmental hazards and that the premises were clean and tidy both inside and outside. However, they reminded Mr Walkes that he had still not dealt with the form relating to his wife's health.

53. Shortly after the completion of the inspection on 10th October 2003, Mr Walkes collected another copy of the appropriate health declaration form from Ofsted's offices.

54. On 10th October Mr Walkes delivered to the Tribunal a videotape recording of part of the inspection conducted earlier that day.

55. On 13th October 2003 Ms Loraine Hickson, assistant to the Medical Adviser at Ofsted's London Region Centre, telephoned Mrs Walkes' General Practitioner, Dr Uddin and discovered that the health declaration had been placed before his secretary on that day. Later on the same day Ms Hickson discovered that Dr Uddin had been unable to complete the form because it was not signed by Mrs Walkes.

56. At the hearing Ms Edward confirmed that Mr Walkes had told her on 8th October 2003 that only himself and his wife would be working at The Nursery and said that he had not mentioned agency staff at all.

57. At the hearing Mr Walkes said that he intended, if and when he re-opened The Nursery, to employ his wife, who was well able to undertake the work, as the manager. She had, he said, had diabetes since she was a child and her condition was "well controlled". She had suffered from asthma for several years but did not have regular or frequent attacks. He also said that he intended to make use of agency staff or trainees from the Job Centre as required. He denied telling Ms Harris and Ms Edward that he did not intend to employ anyone other than himself and his wife.

The law

58. Regulation 8(2) of the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003 provides that, on an appeal under paragraph 8(1) the Tribunal may (a) confirm the Chief Inspector's decision to suspend registration and/or (b) direct that the suspension shall cease to have effect. The Regulation further provides, for the avoidance of doubt, that, in any case in which the Tribunal exercises its power under (a) it may also exercise its power under (b) if at the time of making its determination it is satisfied that the conditions for suspension are no longer met.

59. Regulation 3(1) of the 2003 Regulations provides that the Chief Inspector may suspend the registration if he has reasonable cause to believe that the continued provision of child minding or day care by any person exposes or may expose one or more of the children to whom it is or may be provided to the risk of harm and the purpose of the suspension is for one or both of the purposes set out in Regulation 3(2).

60. Regulation 3(2) provides that the purposes of the suspension are: to allow time for the circumstances giving rise to the Chief Inspector's belief to be investigated or to allow time for steps to be taken to reduce or eliminate the risk of harm.

61. Accordingly, before it can dismiss an appeal the Tribunal must be satisfied, on the balance of probabilities, that the conditions for suspension were, and are, met. The burden of proof is on the Chief Inspector. The Tribunal has to look at the matter afresh as at the date of the hearing.

62. The Tribunal can confirm the decision to suspend the registration or direct that the suspension shall cease to have effect, or both.

Issues

63. It was argued on behalf of the Respondent that, on 5th August 2003, the Chief Inspector clearly had reasonable cause to believe that the continued provision of day care by Mr Walkes would expose or might expose children to whom it would or might be provided to the risk of harm, both because of the evident environmental hazards and the probable lack of proper staffing arrangements. Further, there was still reasonable cause to believe that there would be a risk of harm because, although Mr Walkes had belatedly dealt satisfactorily with the environmental hazards, there was still a very real risk that children would be left without proper supervision if the Nursery re-opened. There had been previous failures in that regard and there was every likelihood that Standard 1 of the National Standards would be breached in that there was still no evidence that the manager, Mrs Walkes, was "suitable, both mentally and physically, to care for children".

64. Mr Walkes argued that Ofsted seemed determined to close down the Nursery and placed further obstacles in his way every time he removed those that they had drawn to his attention. He suggested that if he had not made the video recording the inspectors might not have accepted that the environmental hazards had been removed and argued that all of the earlier complaints and reports had been malicious and unfounded; that he had a good record with Wandsworth Council and that he had provided satisfactory care for many children, including those of celebrities and other respectable people. If he had children at the Nursery he would obviously check the safety of the premises and maintain satisfactory levels of staff.

Conclusions and reasons

65. The Tribunal concluded that the conditions for suspension of Mr Walkes' registration were fully met on 5th August 2003.

66. The Tribunal accepted the evidence of Ms Harris and Ms Edward as to the existence of many environmental hazards at that time. There was also ample evidence of long-standing failures to attend to safety issues and to maintain standards of cleanliness and hygiene.

67. The Tribunal was also satisfied that, although there were no children being cared for on 5th August 2003, it was likely that children would be left without proper supervision, in clear and fundamental breach of the National Standards, if the suspension were lifted.

68. The Tribunal was further satisfied that the conditions for suspension were still met at the date of the hearing.

69. Although Mr Walkes had belatedly removed the environmental hazards and cleaned up the premises, he had not dealt with the "staffing issues". These issues had been drawn to his attention throughout both sets of proceedings and were not, as Mr Walkes contended, only raised after he had dealt with the other matters.

70. The Tribunal was unable to accept Mr Walkes' assurances concerning the employment of staff. He was an unreliable witness. His explanations as to the prevailing circumstances when Ms Harris and Ms Edward arrived at the Nursery on 19th May 2003 were not credible. He was plainly endeavouring to explain away his obvious failure to adhere to basic standards on that occasion. On 19th May 2003 he agreed to voluntary suspension of his provision but continued to provide care for at least 2 children until 20th June 2003. His declaration, made on 24th June 2003, that he had not provided care for any children, except his own, since 19th May 2003 was false. His facile attempt to explain away the continuation of child care at the Nursery after the voluntary suspension was wholly unimpressive.

71. Mr Walkes' repeated insistence that he could not be held responsible for potentially dangerous conditions caused by others was equally unimpressive. Only belatedly did he acknowledge that he had to take responsibility for making his premises safe for the children in his care and could not discharge that responsibility by, for example, blaming others for leaving their rubbish in his alleyway or throwing lumps of concrete on to his property or allowing their dogs to foul his garden.

72. Mr Walkes' failure to comply with the requirement that he should submit a health declaration in respect of his wife was wholly inexplicable if, as Mr Walkes maintained, Dr Uddin would readily confirm Mrs Walkes' fitness.

73. There are real doubts about Mrs Walkes' health. In February 2003 she herself reported that that she had been ill and unable to attend to problems at the Nursery. In May 2003 she collapsed and fell to the floor. It was not clear whether she suffered an asthma attack or a panic attack but she was certainly very unwell for several minutes. On 24th June 2003 Mr Walkes said that "the Officer-in-Charge" [presumably his wife] had gone "on long term sick-leave". When, on 1st August 2003, Ms Edward said that Ofsted would need to carry out a health check to ensure Mrs Walkes' suitability as a manager, Mr Walkes asked whether there was any point in continuing the inspection. Mr Walkes had every opportunity to obtain medical evidence but failed to do so. Save for a short period on 17th September 2003, Mrs Walkes did not attend the hearings.

74. The conditions from which Mrs Walkes suffers can readily result in physical collapses. If she were to fall ill whilst caring for children at the Nursery, Mr Walkes would naturally go to her aid and would probably leave the children unattended and at risk of harm.

75. Ms Thomas having left the area, Mr Walkes has no other staff on which to rely. His ability to cover any deficiencies by recruiting from the Job Centre or taking on agency staff is doubtful. He did not mention that possibility to the inspectors on 8th October 2003 and it appeared that he thought of the idea only when it became clear to him, during the course of the hearing on 14th October 2003, that he would need to rely on others, apart from Mrs Walkes, to provide adequate cover.

76. The decision of the Tribunal was unanimous.

Costs

77. At the conclusion of the hearing Miss Freeborn applied, on behalf of the Respondent, for a costs order in respect of the additional costs incurred by the Respondent or "thrown away" as a result of the application for an adjournment on 17th September 2003 and Mr Walkes' subsequent failure to take any of the steps that he said that he proposed to take if the adjournment were granted.

78. An application for a costs order is governed by regulation 24 of the 2002 Regulations. This regulation provides that, if in the opinion of the Tribunal a party has acted unreasonably in bringing or conducting the proceedings, it may make an order (a 'costs order') requiring that party ('the paying party') to make a payment to the other party ('the receiving party') to cover costs incurred by the receiving party.

79. Miss Freeborn argued that the application was "very far from being a standard application" and thus recognised that regulation 24 creates a presumption in favour of no order for costs and that costs orders do not simply "follow the event". However, Miss Freeborn submitted that this presumption can be rebutted by proof that the paying party has acted unreasonably and that it was clear that Mr Walkes had behaved unreasonably by doing nothing to advance the case, at least until just before the adjourned hearing. She pointed out that Mr Walkes had said, on 17th September 2003, that he wished to "obtain suitable proof" that the suspension of his registration was unnecessary; to produce photographs; to obtain a letter from his wife's General Practitioner and to produce "all items necessary" to support his appeal. Mr Walkes had, she submitted, produced no photographs other than the videotape recording made on 10th October 2003, no other evidence, no witnesses and no letter from Mrs Walkes' doctor and that, in those circumstances, all of the bases for the adjournment advanced on 17th September had been revealed as further prevarication.

80. Regulation 24(2) of the 2002 Regulations provides that, before making a costs order against a party, the Tribunal must invite the receiving party to provide a schedule of costs incurred by him and must invite representations from the paying party and consider any representations he makes; consider whether he is able to comply with a costs order and consider any relevant written information which he has provided.

81. The Tribunal came to the conclusion that Mr Walkes could not be said to have acted unreasonably in bringing the proceedings since there was a reasonable prospect that, if he took the steps necessary to deal with the problems identified by the inspectors, the Tribunal would be satisfied that the conditions for suspension were no longer met and would direct that the suspension should cease to have effect.

82. Further, the Tribunal was not satisfied that Mr Walkes acted unreasonably by seeking an adjournment of the hearing on 17th September 2003. His case was not ready for hearing on that date. Until the procedure and other matters were explained to him by the Chairman he mistakenly but genuinely believed that he would be able successfully to challenge the decision to suspend his registration by reference to the alleged breach of an alleged agreement with the inspectors as to the extent of the matters to be covered by their inspection. Having regard to the novelty of the procedures (the relevant Regulations only came into force on 1st April 2003) Mr Walkes failure to appreciate how he should proceed, while not being justifiable, was understandable.

83. However, the Tribunal came to the provisional conclusion, subject to any further evidence and/or representations that might be adduced and/or made by Mr Walkes, that he did act unreasonably in conducting the proceedings after the adjournment was granted on 17th September 2003. Despite his expressed wish to seek "other legal advice", he did not do so. He apparently failed to take any or any proper steps to deal with the issues raised by his appeal until after the Chairman made an "unless order". Despite all of the considerable efforts made by Ofsted to assist him to comply with their requirements relating to proof of his wife's physical suitability to act as manager of the Nursery, he failed to present the necessary certificate to her General Practitioner until 13th October. It appeared that Mr Walkes was irritated and despondent, feeling, as he said, that he "could not win". As a result, he adopted a policy of non-cooperation, obstruction and prevarication. He also sought to attribute blame for all of his perceived misfortunes to the inspectors and their allegedly oppressive behaviour. This was, in the provisional view of the Tribunal, neither rational nor reasonable. The Tribunal was satisfied that the Respondent's inspectors behaved properly in all their dealings with Mr Walkes and sought only to carry out their duty to protect children to whom day care might be provided at the Nursery from the risk of harm.

84. The Respondent, as the "receiving party", provided to the Tribunal a schedule of costs incurred by him in respect of the proceedings in anticipation of an invitation to do so pursuant to regulation 24(2)(a). This shows that the Respondent has spent £13,313.93 (including VAT) in dealing with the appeal and attending the hearings. A full breakdown of that figure is set out in the schedule.

85. The Tribunal felt that it was not appropriate to invite Mr Walkes to make representations or produce evidence in relation to the costs issue before he had had time for consideration. Having received no representations or relevant written information from Mr Walkes, in particular as to his ability to comply with an order (regulation 24(2)(b)), the Tribunal was not in a position to determine the matter.

86. Accordingly, the Tribunal decided to give further directions. Regulation 24(2)(b) refers to "representations from the paying party". It is envisaged that, in most cases, the Tribunal will deal with costs applications by way of written representations. A further hearing, convened to enable the parties to make representations orally would, of course, have the effect of further increasing the costs. However, the Tribunal was aware that Mr Walkes might encounter difficulties in preparing effective, written representations and so decided to give him the opportunity to make oral representations if he wished to do so.

87. Unless either party makes a request in writing, in accordance with the direction set out below numbered (5), for a further hearing, the Tribunal will consider any written representations and will determine the question as to whether there should be a costs order and, if so, the sum which it considers appropriate, without such a hearing.

Order

(1) The decision of the Chief Inspector to suspend the registration of the Appellant is hereby confirmed.

(2) The Respondent may provide to the Tribunal a written skeleton argument in support of his contention that the Tribunal should make a costs order against the Appellant and his contentions as to the appropriate sum and may, if so advised, provide a further schedule of the costs incurred by him in respect of the proceedings or any part of them and such argument and/or schedule shall be sent to the Tribunal to arrive within 10 working days of the date of the receipt of this decision.

(3) The Appellant may send to the Tribunal representations in writing as to why an order requiring him to make a payment to the Respondent to cover costs incurred by him in respect of the proceedings should not be made or as to the appropriate sum and such representations shall be sent to the Tribunal to arrive within 10 working days of the date of the receipt of this decision.

(4) The Appellant may send to the Tribunal representations in writing dealing with the issue as to whether he is able to comply with a costs order and may provide to the Tribunal any relevant written information in relation to that issue and such representations and/or written information shall be sent to the Tribunal to arrive within 10 working days of the date of the receipt of this decision.

(5) The Appellant and/or the Respondent may request that there should be a further hearing to enable them to make oral representations in relation to the costs issues and any such request shall be made in writing and shall be sent to the Tribunal to arrive within 10 working days of the date of the receipt of this decision.

Dated: 27th October 2003
Chairman: John Reddish
Margaret Williams
David Griffiths