England and Wales Care Standards Tribunal

SB v OFSTED (Finding on Preliminary Point) [2004] EWCST 291(EYSUS) (12th July 2004)

SB -v- Her Majesty's Inspector of Schools (OFSTED) [Costs Application] [2004] 291.EYSUS -Before- His Honour Judge David Pearl (President) Ms B Chatfield Mrs S Howell DECISION
1. SB appealed on 31^st March 2004 against the decision of the Chief Inspector of Schools (OFSTED) to issue her with a notice of suspension as a child minder. The Chief Inspector responded to the appeal on the appropriate form received by the Tribunal on 7^th April 2004. The President gave Directions that day and set down the case for an oral hearing on 23^rd April 2004.
2. In the Directions, the President directed that all witness statements and any other material upon which either party intended to rely should be sent to the Tribunal with a copy to the other party by no later than 16^th April 2004.
3. The President directed that the case be heard either at the Care Standards Tribunal Hearing Centre in London or at a convenient location in Birmingham if the Applicant informed the Tribunal no later than 16^th April 2004 that a hearing in London was not possible.
4. The Applicant was represented by Maurice Andrews Solicitors. The Chief Inspector is represented by Anthony Collins Solicitors.
5. The Applicant failed to file and serve her witness statements in accordance with the Directions of 7^th April 2004. Anthony Collins wrote to the Tribunal dated 19^th April 2004 stating that "we have attempted to make contact with Messrs Maurice Andrews Solicitors …without success". They sought an "unless order". The Application for that Order included a paragraph that "The Appellant shall pay the Respondents costs of the appeal to be assessed if not agreed."
6. On considering the application, the President made an unless order in accordance with Regulation 10 of the Care Standards Tribunal Regulations on 19^th April 2004 stating "I now ORDER that unless the Applicant within twenty four hours of receipt of this ORDER which is sent by fax at 4.45pm on 19^th April 2004 files the witness statement and any other material with the Secretariat, the case may be determined in favour of the Respondent."
7. Mr M Andrews of Maurice Andrews Solicitors wrote to the Secretary to the Care Standards Tribunal on 20^th April 2004 stating "…we had difficulty in obtaining our client's instructions. She has now advised us that she wishes to withdraw the application before you."
8. In consequence of receiving this letter, on 20^th April 2004 the President dismissed the appeal under Reg 33(1) of the Care Standards Tribunal Regulations. It would appear that the Respondent was not aware of the letter of withdrawal until the following day, namely 21^st April 2004. Anthony Collins was informed by the Care Standards Tribunal Secretariat on that day that a letter had been received the previous day, that the President had dismissed the appeal, and that he had directed that if the Respondent sought an Order for Costs, the Respondent must within fifteen working days of receipt of the Decision, set out the reasons why he considers that the Applicant has acted unreasonably in bringing or conducting the proceedings and provide a Schedule of Costs in respect of the proceedings.
9. The Respondent has sought an order for costs in the sum of £2747.45p. The Schedule and the Summary of Reasons were sent to the Applicant by Order of His Honour Judge Swift on 12^th May 2004. He directed that the Applicant must submit a Response by 21^st May 2004 and he stated that unless both parties indicated that they were content that the matter be dealt with by way of written submissions there should be an oral hearing by the Tribunal on 12^th July 2004. The Respondent has replied to say that it is content for the matter to be dealt with on the basis of the papers.
10. Not having received a reply from the Applicant, the Secretariat, on instructions, wrote to Maurice Andrews on 25^th May 2004 reminding them of Judge Swift's Order. The letter stated: "If no response arrives within five working days of receipt of this letter [the President] is minded to rule that the costs application will be placed before the Tribunal on the basis of the Respondent's application for costs and summary reasons alone."
11. No reply was received within the time scale set down. Accordingly, the President directed on 15^th June 2004 that the matter would be placed before the Tribunal on 12^th July 2004 on the basis of the Respondent's application for costs and summary of reasons.
12. Prior to considering the papers on 12^th July 2004, the Tribunal was provided with a letter from Maurice Andrews dated 7^th July 2004 that is stamped as having been received by the Secretariat on 12^th July 2004.
13. We have read the Respondent's summary of reasons and the statement of costs for the period 6^th April – 21^st April 2004. We have no doubt whatsoever that Applicant's legal advisor failed totally to comply with the Directions dated 7^th April 2004. Suspension appeals must be heard, for obvious reasons, as quickly as possible. Indeed the Care Standards Tribunal Regulations state that the case must be heard not later than ten days after the Secretariat receives the Response from the Respondent. Directions must be complied with, and there is no room for complacency on the part of anyone, be it the Applicant and his or her legal adviser, the Respondent or indeed the Care Standards Tribunal Secretariat.
14. We are left in no doubt whatsoever that the Applicant through her legal adviser in this case, having lodged the appeal, simply ignored all Directions and deadlines up until the appeal was withdrawn on 20^th April 2004.
15. We agree with the Respondent who submits that the Applicant through her legal adviser behaved unreasonably in the conduct of this appeal.
16. We have looked at the Statement of Costs. We have not of course had access to the Respondent's file. From our experience of other suspension appeals that have been brought before the Care Standards Tribunal, however, we are satisfied that the statement represents a reasonable and fair amount of time and cost that would have been spent on the preparation for this case up until being made aware that the matter had been withdrawn.
17. The Applicant has had an opportunity to consider the schedule of costs and she has chosen not to reply, again ignoring all Directions, until the letter dated 7^th July 2004. This letter does not address the question of the quantification of the costs contained in the Schedule.
18. We are under an obligation to consider whether the Applicant is able to comply with any order we may make (Reg 24(2)(b)). Having read the letter dated 7^th July 2004, we have arrived at the conclusion that the Applicant is almost certainly a lady of limited means and that in all probability she will be unable to pay the costs that we would otherwise direct to be paid. In addition, we have been told in the letter of withdrawal that "her husband is on low income, she is unable to afford representation before the Care Standards Tribunal and the cost of travelling to the hearing." Accordingly, we adopt the approach taken by our colleagues in Walkes v OFSTED [2003] 212.EYSUS and have decided not to make an award of costs.
19. We take the view that the Solicitor acting on behalf of the Applicant in this case has not provided the level of service that one would have expected. There is no excuse for failing to meet the deadlines set down by the Care Standards Tribunal, especially in a case such as this where time is of the essence. Attempts to contact the Solicitor both by the Respondent and by the Care Standards Tribunal Secretariat met with constant failure. The Care Standards Tribunal file note states "Left numerous messages for Applicant's solicitor without success."
20. This area of the law is a new and fast developing area. However, the standard practitioners' textbooks have information on the legislation and statutory instruments and the developing case law. The Care Standards Tribunal website contains a wealth of information. The Bar Pro Bono Unit offers help, assistance and representation for litigants who would otherwise struggle to obtain expert legal advice. There is no indication that Maurice Andrews attempted to apply for public funding for their client. Indeed, there is no indication that Maurice Andrews did anything at all for their client during the period when witness statements and documents should have been obtained, namely from 7^th April until 16^th April 2004.
21. It may be that the Law Society needs to consider this area of the law and form a view as to whether an accreditation scheme should be introduced. It is for this reason that this decision is being sent to the Law Society for any appropriate action.

NO ORDER FOR COSTS

His Honour Judge David Pearl

(President)

Ms B Chatfield

Mrs S Howell

12^th July 2004.