England and Wales Care Standards Tribunal

 


SC v Secretary of State for Education and Skills (Costs) [2004] EWCST 330(PC) (22 May 2005)

SC -v- Secretary of State for Education and Skills [2004] 330.PC
COSTS DECISION Mr A Wadling (Chairman)
1. This is an application by the Appellant for a Costs Order under Regulations 33 and 24 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002.
2. The Appellant's claim is based on the assertion that the Secretary of State has acted unreasonably in the conduct of the proceedings within the meaning of the Regulation by continuing to oppose the appeal at a time when it was apparent that the necessary evidence was not available. The claim is made for costs incurred from 24 September 2004, or in the alternative 20 December 2004, to 10 March 2005.
3. The Secretary of State's reply is that the matters which were relied upon to include the Appellant's name on the Protection of Children Act List took place in 1992. There were considerable difficulties in tracing either witnesses (some of whom were minors at the material time) or documentary records. It is also said that as a result of enquiries made, a fresh matter was discovered relevant to the issue of whether the Appellant's name should remain on the Protection of Children Act List.
4. In reaching my decision, I have read the letter from the Appellant's solicitors dated 16 March 2005, the reply from the Secretary of State dated 13 May 2005, the forms A1 and A4 including the attached documents and the Orders made by the President, HHJ Pearl.
5. The Appellant's name was placed on the Protection of Children Act List on 4 September 2000. An appeal against this decision was lodged on 15 June 2004.
6. Documents provided by the Respondent record in summary events taking place in 1992 which would have formed the substance of the appeal. It was alleged against SC that while she was employed as a member of staff at a residential centre for young persons she drank alcohol while on duty, gave alcohol to two residents and had allowed a child in her direct care to breach curfew arrangements. At about the same time, SC was also the subject of a Child Protection inquiry which concluded there was a "high probability" that she had engaged in a sexual relationship with a young boy in her care. Shortly after these events SC was arrested in her car in the company of the above boy who had absconded from the residential centre and two other adolescents.
7. Disciplinary proceedings were brought against SC arising from the above matters but she resigned three days before the hearing was due to take place on 16 November 1992. The letter of resignation denied all the allegations except those which gave rise to criminal proceedings. In the same month the above matters were brought to the attention of the Secretary of State who wrote to SC giving her the opportunity to make representations concerning the circumstances giving rise to her resignation but no reply was received. It may well be that SC had already changed her address and did not have her mail forwarded.
8. In March 2000 a Review Panel decided that SC's name should be included on the newly established Protection of Children Act List. A letter was written to SC inviting her to make representations but it appears that the letter did not reach her for the reason noted above. On 4 September 2000, SC's name was added to the list. In March 2004 SC's new address became known to the Secretary of State and she was notified by letter that her name was on the Protection of Children Act List and informing her of her right of appeal.
9. When reaching my conclusions I have had regard to the representations made by the parties in their letters and the approach adopted to the issue of awarding costs in previous decisions of the CST and in particular what was said in Fun Camps Ltd v OFSTED [2003] 124.EY. I agree that the burden of proof rests with the party making the application, that the standard of proof to be satisfied is a high one and that conduct as a whole must be looked at including matters prior to the commencement of the proceedings. However, there must be something found to be unreasonable in the bringing or conduct of the proceedings themselves before an order can be made.
10. The very serious nature of the allegations made against SC meant that it was entirely appropriate for the Secretary of State to make every inquiry possible to obtain evidence. SC stated in her Appeal Notice that her resignation in 1992 "was unconnected with these allegations". Given the passage of time since the events took place, it must have been an extremely difficult and time consuming exercise to try and trace prospective witnesses and documents. Three extensions of time for service of documents were applied for by the Secretary of State and granted by the President. However, in his Order dated 14 February 2005 the President noted "As this is the third such extension, no further extension is likely to be granted." By a letter of 7 March 2005, the Secretary of State withdrew her opposition to the appeal.
11. In the particular circumstances of this appeal as made known to me, I am far from satisfied that the Secretary of State has behaved unreasonably in her conduct of the proceedings and I dismiss the application.

Anthony Wadling

(Chairman)

22 May 2005