England and Wales Care Standards Tribunal

LW v Her Majesty's Chief Inspector of Schools in England (OFSTED) [Legal Argument on appropriate disposal] [2004] 270.EYSUS -Before- His Honour Judge David Pearl President Heard at the Care Standards Tribunal Pocock St London On 7^th April 2004.

Background.

1. On 29^th January 2004, the Respondent, as the Registration Authority for Childminders and Day Care Providers, gave notice to the Appellant (LW) of the decision to suspend her registration as a childminder for a period of six weeks from the date of the notice, that is until 11^th March 2004. This notice was served under s 79H of the Children Act 1989 and the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003, SI 2003/332 (the Suspension Regulations).
2. Paragraph 4 of the Notice explains the right of appeal. It states that "your appeal must be made to the Care Standards Tribunal in writing within 10 working days of receiving this notice."
3. The Notice also states that an application may be made at any time in writing to the Chief Inspector for the suspension to be lifted, and that acting as a childminder in contravention of the Notice without reasonable excuse is a criminal offence.
4. LW appealed to the Care Standards Tribunal on the appropriate form (D1) against the decision to suspend her registration as a childminder on a form that was received by the Secretariat of the Care Standards Tribunal by fax on 4^th February 2004.
5. The Respondent submitted a Response to the application on 10^th February 2004 and the matter was accordingly set down for a hearing, and both parties were informed.
6. On 17^th February 2004, the Respondent concluded that the grounds giving rise to the suspension no longer existed and, accordingly, the Respondent notified the Appellant of this fact by telephone with confirmation by letter. The letter to the Appellant states: "Further to our telephone conversation today, I am writing to confirm for you that Ofsted's investigation in connection with your child minding service is now concluded. The suspension is therefore lifted from today's date."
7. A letter was written to the Secretariat at the Care Standards Tribunal by the Solicitors acting for the Respondent on the same date. This letter states: "We write to inform the Tribunal that Ofsted has today lifted the suspension in respect of the Applicant. The basis for lifting the suspension is that Ofsted is satisfied that the grounds giving rise to the suspension no longer apply. Ofsted has notified the Applicant and her solicitor of this. In accordance with Regulation 8(3) of the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003, we respectfully ask the Tribunal to dismiss the appeal."
8. The Secretariat placed the papers, including the letter from the solicitors for the Respondent, in front of me on 17^th February 2004, and I dealt with it by making a provisional disposal in accordance with Regulation 33(2) of the Protection of Vulnerable Adults and Care Standards Tribunal Regulations 2002 (The Care Standards Tribunal Regualtions). Paragraphs 3 and 4 of my Decision dated 17^th February 2004 read as follows:

3. There would appear to be an apparent inconsistency between Regulation 8(3) of the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003 [the Suspension Regulations] and Regulation 33(2) of the Protection of Vulnerable Adults and Care Standards Tribunal Regulations 2002 [The Care Standards Tribunal Regulations]. Under the latter Regulation, if the Respondent notifies the Secretary that he does not oppose the proceedings, the President must determine the case in the applicant's favour.

4. Unless the Respondent, within 10 working days of the receipt of this Order wish to argue to the contrary, I resolve this apparent inconsistency by giving precedence to Regulation 33(2). No restriction is made to the operation of Regulation 33(2) by any other Regulation, and Regulation 8 of the 2003 Regulations in my view refers to a case where the period of suspension is no longer in effect because it has expired as a result of the operation of Regulation 4 of the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003.

9. Solicitors acting on behalf of the Respondent wrote to me on 24^th February 2004 disagreeing with the disposal by way of Regulation 33(2). The letter states that at no point did the Respondent inform the Tribunal that it did not oppose the appeal. The letter states that Regulation 8 of the Suspension Regulations was activated. The letter gives three reasons for this contention:

1. The appropriate Regulations in relation to this case are the Suspension Regulations. Regulation 33(2) of the 2002 Regulations came into force in April 2002. At this time, the Respondent was not afforded the powers of suspension but was given these in 1^st April 2003 by virtue of the Suspension Regulations created in accordance with s 79H of Part XA of the Children Act 1989. Regulation 8(3) is specific and clear in its terms and should not be displaced by Regulation 33(2). Regulation 33(2) is clearly for other purposes. Treasury Solicitor has confirmed to the Respondent that the above interpretation of the law is correct and underpinned discussions around the drafting of Regulation 8.

2. Regulation 8(3) relates to all circumstances where the suspension is no longer in effect. If it was only meant to refer to expiry of a suspension that would have been specified in the Suspension Regulations. In practice, it is unlikely that a suspension will ever expire by reason of effluxion of time in the context of appeal proceedings.

3. In accordance with its duty under Regulation 7…the Respondent must ensure that it keeps a suspension under review at all times and to lift the suspension when the grounds giving rise to the suspension no longer exist. The Respondent contends that in light of this duty, it is difficult to perceive of a situation in which a suspension would expire as the Respondent would either lift the suspension within the six week period or alternatively extend the suspension should there be a continued risk of harm to children after the six week period. Therefore, to have a practical effect in the context of appeal proceedings, Regulation 8 has to relate to the lifting of the suspension.

10. On receipt of this letter, I made an ORDER dated 9^th March 2004 stating, in paragraph 4, that the issue relating to whether the appeal should be properly allowed or dismissed is one of some importance, and directed that there be an oral hearing on the matter.
11. The hearing took place on 7^th April 2004 when the Appellant was represented by Mr S Calhaem of Counsel and the Respondent was represented by Mr S Freeborn of Counsel.

The Regulations

12. The Suspension Regulations, 7(1)(3) and (5) and 8(3) read as follows:

7(1) Without prejudice to regulation 4(2), where the Chief Inspector has suspended a person's registration, he shall, whether or not a written request has been made under paragraph (2), lift the suspension at any time where he is satisfied that the grounds for suspension no longer apply

7(3) Where the chief Inspector makes a decision to lift or refuse to lift the suspension of a person's registration, he shall, within 24 hours and in accordance with regulation 6, send a notice of his decision to the registered person

7(5) Any decision by the Chief Inspector to lift suspension shall take effect as from the date specified in the written notice referred to in paragraph (3)

8(3) If the suspension of a person's registration against which an appeal has been made under paragraph (1) is no longer in effect, the Tribunal:

(a) shall dismiss the appeal; and

(b) may make a costs order

13. In the interpretation paragraph, 'the tribunal' means the Tribunal established by s 9 of the Protection of Children Act 1999. The schedule to that Act states that the Tribunal shall consist of a chairman nominated by the President from the chairman's panel and two other persons nominated by the President from the lay panel. Regulation 5 of the 2002 Regulations states that the President shall, at such time as he considers it appropriate to do so, nominate a chairman (who may be himself) and two members of the lay panel to determine the case.
14. Regulation 33(2) of the Care Standards Tribunal Regulations (2002) reads as follows:

If the respondent notifies the Secretary in writing, or states at the hearing, that he does not oppose or no longer opposes the proceedings, the President (or at the hearing, the Tribunal) –

(a) must without delay determine the case…in the applicant's favour

(b) subject to regulation 24(2) and (3) may make a costs order; and

(c) must consider making one.

Submissions

15. Ms Freeborn submits, both in her skeleton argument and in her oral submissions before me, that the consequence of these provisions is that the decision was taken under Regulation 7(1) and communicated to the appellant by telephone the same day with written communication posted that day in accordance with Regulation 7(3). Accordingly it is her submission that suspension is no longer in effect as from 17^th February 2004, by virtue of Regulation 7(5). As the suspension is no longer in effect, the only course open to the Tribunal is the mandatory dismissal of the appeal under Regulation 8(3) with the option of making a costs order.
16. Ms Freeborn accepts that the power under Regulation 8(3) is not available to the President alone, because he does not constitute 'the Tribunal'. He would have to appoint a Tribunal under Regulation 5 for the purpose of dismissing the appeal and considering any costs order, in accordance with Regulation 24 of the Care Standards Tribunal Regulations.
17. Counsel submits that Regulation 33(2) of the Care Standards Tribunal Regulations is not applicable to the current factual situation because the Respondent at no time notified the Secretariat to the Care Standards Tribunal or stated at a hearing that he does not oppose or no longer opposes the proceedings. Such notification, Counsel submits, is a condition precedent to be satisfied before the power under Regulation 33(2)(a) – (c) can be exercised. My attention is drawn to Dr R.A.Fairburn (The Old Rectory Nursing Home, Barham, Ipswich) v National Care Standards Commission [2002] 76.NC where the Tribunal said at para 8: "The appellant urged on us that the appeal should be allowed. Regulation 33(2) is the only Regulation that imposes a duty on the Tribunal to allow the appeal, and this is when the Respondent notifies the Secretary in writing or states at a hearing that he does not oppose or no longer opposes the proceedings. This has not happened in this case." Ms Freeborn submits that it has not happened in this case either.
18. Mr Calhaem, on behalf of the Appellant, supports the provisional Decision made by me on 17^th February 2004. He submits that the Suspension Regulations are supplementary to the Care Standards Tribunal Regulations. He submits that Regulation 33(2) of the Care Standards Tribunal Regulations bites by virtue of the letter of 17^th February 2004, and therefore the decision to allow the appeal in the Appellant's favour must stand.
19. In support of this submission, Mr Calhaem points out the effect of Ms Freeborn's submissions. First, he argues that if Ms Freeborn's approach is correct, it would impose a positive obligation on the President to constitute a Tribunal of three for the sole purpose of dismissing the appeal. Secondly, the Chief Inspector would have a "latent power" to "stymie" an appeal by lifting a suspension. Thirdly, he suggests that it cannot possibly be right that Parliament has placed into the hands of one party, the power to lift a suspension that results in the dismissal of the appeal. The power of dismissal, he argues, should remain with the Tribunal as set out clearly in Regulation 33(1) of the Care Standards Tribunal Regulations.
20. Mr Calhaem submits that it cannot be just nor a proper approach for the Suspension Regulations to have the effect of overriding the Care Standards Tribunal Regulations.

Decision

21. There is an unfortunate drafting error between the two Regulations, and I have no doubt but that an opportunity must be taken at an appropriate time to reflect the policy intentions in the Regulations. Ms Freeborn was unable to show me the letter from the Treasury Solicitor referred to in the letter to me of 24^th February 2004 and I am therefore not aided in any way by information on what was intended to be the interrelationship between the two Regulations.
22. Having now had the opportunity of reading detailed submissions and having the benefit of Counsel's oral submissions, I am persuaded by Ms Freeborn's submissions on the matter. Regulation 7 of the Suspension Regulations is in my view the primary Regulation that I need to refer to in the context of the suspension appeals. Once the Chief Inspector has lifted the suspension and sent a notice of that decision to the Appellant, the suspension of that person's registration is no longer in effect, and the Tribunal shall dismiss the appeal.
23. I am satisfied that my initial response was not in accordance with the Suspension Regulations 2003. The Regulation in the Care Standards Tribunal Regulations that I relied on in my provisional decision, and the one relied upon by Mr Calhaem, deals specifically with the factual situation of the Respondent notifying the Secretariat that he does not oppose the proceedings. Ms Freeborn submits that the Respondent continues to oppose the proceedings. She submits that the letter of 17^th February 2004 is not a letter sent in accordance with Regulation 33; rather it is a letter that states that suspension no longer applies. I agree with Ms Freeborn on the interpretation of the letter, and therefore it must follow that Regulation 33 is not activated.
24. The Tribunal therefore has no alternative other than to dismiss the appeal. I have to say that I am unhappy about some of the implications. My primary concern is that this approach imposes on the President of the Care Standards Tribunal the obligation to form a Tribunal of three for the sole purpose of the paper exercise of dismissing the appeal. I cannot believe that this is a useful use of public funds, and it is contrary to the administrative and management powers given to the President in the Care Standards Tribunal Regulations generally. It is both unwieldy and disproportionate to constitute a Tribunal of a legal Chairman and two lay members for the paper exercise demanded of Regulation 8 of the Suspension Regulations.
25. Mr Calhaem's two other submissions set out in paragraph 19 above also have some force. The effect of Regulation 8 may well have the unfortunate result in some cases suggested by Mr Calhaem. However, if the Respondent has not notified the Secretariat in writing or stated at the hearing that he does not oppose or no longer opposes the proceedings then Regulation 33(2) of the Care Standards Tribunal is not relevant, and the only way to close the proceedings is to constitute a Tribunal under Regulation 8 of the Suspension Regulations to dismiss the appeal.
26. The matter has therefore been drawn to a close by the lifting of the suspension. However, I do not have the power as President to dismiss the appeal. This has to be done by the Tribunal. Odd as it may be, I must now exercise my power under Regulation 5 of the Care Standards Tribunal Regulations to nominate a Tribunal of three members (one legal and two lay) to dismiss this appeal under Regulation 8 of the Suspension Regulations.

Costs

27. It is agreed that I do not as President have the power to deal with the question of costs as President, whether it be under Regulation 33 or Regulation 8.
28. Although not relevant to the present matter, it may be helpful to point out that Regulation 33 (2) states that the President in appropriate cases must consider making a costs order, but that this is subject to Regulation 24(2) and (3). Those Regulations specifically refer to the Tribunal rather than to the President. It is noteworthy that Regulations 24 and 33 are currently the subject of consultation and that a new provision is being proposed that reads: "Where the President or the nominated chairman dismisses the proceedings under para (1) or determines the case …in the applicant's favour under para (2), the references to "the Tribunal" in regulation 24 shall be read as if they were references to "the President or the nominated Chairman."
29. Such an amendment is welcomed. An opportunity should be taken also to amend the Suspension Regulations to enable the President or the nominated Chairman both to exercise the powers of dismissal under Regulation 8 and to consider the making of and, if appropriate, to make a costs order when the appeal is dismissed on the basis of the lifting of the suspension.

Directions relating to the Dismissal of the Proceedings and the Consideration of Costs

30. Ms Freeborn concedes for the purposes of this case that I have the power as President to issue Directions relating to the question of costs. The case of course has not been disposed of, and it is my view that Regulation 6A is wide enough for me to issue Directions that will have the effect of complying with Regulation 24 of the Care Standards Tribunal Regulations.
31. I therefore make the following Directions in accordance with Regulation 6A.

1. It is noted that the Appellant has submitted a Schedule of Costs in the sum of £1511.21p and that the Respondent has stated in the letter dated 17^th February 2004 that it does not make an application for costs. It is noted also that the Tribunal has jurisdiction to make an Order for Costs in accordance with Regulation 24 of the Care Standards Tribunal Regulations when dismissing an appeal under Regulation 8 of the Suspension Regulations.

2. The Appellant must submit to the Secretary to the Care Standards Tribunal a Position Statement addressing the issue as to how the Respondent has acted unreasonably in conducting these proceedings and to identifying with particularity the respects in which the conduct of the Respondent in conducting the proceedings is alleged to be unreasonable. Such a Position Statement must be submitted to the Secretary to the Care Standards Tribunal with a copy to the Respondent by 28^th April 2004.

3. The Respondent must submit a Response to this Position Statement to reach the Secretary to the Care Standards Tribunal with a copy to the Appellant by 12^th May 2004.

4. Unless both parties indicate by 2^nd June 2004 that they are content for the matter to be dealt with by way of submissions, there shall be an oral hearing by the Tribunal to dismiss the appeal and to consider the costs application, at the Care Standards Tribunal on 16^th June 2004 at 10.30am. If both parties are content for the matter to be dealt with by way of submissions, the Tribunal shall consider the matter on the 16^th June 2004 or at some other convenient day after 2^nd June 2004 but no later than 16^th June 2004.

ORDER ACCORDINGLY

His Honour Judge David Pearl

President

14^th April 2004.