England and Wales Care Standards Tribunal

 


Ferndearle Childcare Services Ltd v Commission For Social Care Inspection [2004] EWCST 410(EA-JP) (14 July 2005)

Ferndearle Childcare Services Ltd

-v- Commission For Social Care Inspection [2004] 0410.EA-JP
His Honour Judge David Swift
ORDER FOR COSTS
1. On 23^rd November 2004 the Appellant lodged an Appeal to the Tribunal in Form B2 against an Order made at the Folkestone Magistrates Court on the 12^th November 2004 imposing Conditions on the Registration of the Ferndearle Children's home that the Registered Manager, Christine R Dearle leave the premises at 2 Radnor Park Road West, Folkestone, Kent not to return to the premises during the ongoing investigations into her conduct as the Registered Manager until she is either charged, bailed or released without charge and following the completion of the police and Social Care Inspection (CSCI) Investigations AND further that no new residents be admitted to the home until the completion of the police and Social Care Inspection investigations into the matter.
2. On the 20^th December 2004, within 20 working days of service of the Appeal, the Respondent served notice that the Appeal was opposed in Form B4 setting out the grounds for opposition.
3. On 23^rd December 2004 the Tribunal sought further information from both parties pursuant to Schedule 1(5)(1)(a)-(e) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002. The Respondent complied on 4^th January 2005 and the Appellant on 17^th January 2005.
4. On 25^th January 2005 the Tribunal directed a Preliminary Hearing. That Hearing took place by way of telephone conference on 31^st March 2005 at which time the Tribunal made Directions as to the future conduct of the Appeal through to a Hearing fixed for 19^th September 2005 with an estimate of 6 days. That Order provided for disclosure of documents by 6^th May 2005 and disclosure of witness evidence by 3^rd June 2005.
5. On 10^th May 2005 the solicitors for the Respondent wrote to the Tribunal indicating that the Respondent had completed its investigations and wished to withdraw its opposition to the Appeal. On the 10^th May, the Respondents having withdrawn opposition, the Tribunal allowed the Appeal.
6. The Appellant through its Solicitors, Messrs Kingsfords, seeks an Order for Costs in accordance with Regulation 24 as set out in the letter from the solicitors dated 25^th May 2005 and in the schedule annexed thereto.
7. In accordance with Regulation 24(2), before making a costs order against the Respondent the Tribunal invited representations from the Respondent on the 27^th May 2005 in order that the Tribunal might consider any representations the Respondent wished to make, consider whether the Respondent was able to comply with such an order and consider any relevant written information which the Respondent wished to provide. Representations were submitted by the Respondent with a letter to the Tribunal dated 13^th June 2005.
8. Pursuant to Regulation 33(2)(b) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 the Tribunal has the discretion to make an Order for Costs if the Tribunal is of the opinion that a party has acted unreasonably in bringing or conducting the proceedings and pursuant to Regulation 33(2)(c) the Tribunal must consider exercising that discretion in any case where the Respondent notifies the Tribunal in writing that it no longer opposes the proceedings. Accordingly I have considered the Appellant's application for an Order for costs, the case papers and the representations and information provided by both parties.
9. On 1^st April 2002 Fearndearle Child Care Services Limited was registered as the provider of a Children's home at Fearndearle 2 Radnor Park Road West Folkestone. Mrs Christine Dearle was the Registered Manager. The Childrens Home provided residential care for up to nine children from 4 to 14 years old and was subject to inspection by the Commission for Social Care Inspection. As a result of an inspection conducted on 6^th and 7^th July 2004 the Commission for Social Care Inspection became concerned about matters at the Childrens Home. These concerns gave rise to a child protection issue and an enquiry by Kent Social Services and the Police commenced. On 5^th November 2004 the allegations that had emerged concerning the welfare of the children were presented to a Kent Social Services Strategy Committee. As a result the Respondent considered the position and application was made to the Magistrates Court for an emergency Order pursuant to Section 20 (1)(a)(ii) of the Care Standards Act 2000.
10. The Application to the Magistrates Court supported by a statement of evidence and photographs was heard by the Magistrates Court on 12^th November 2004 when the Order referred to at paragraph 1 above was made the Magistrates Court being satisfied that there would be a serious risk to the health or well being of the residents unless the Order imposing Conditions was made. The effect of the Order was to exclude the Registered Manager, Mrs Christine Dearle, from the premises whilst the matter was subject to investigation and to restrict further admission to minimise risk to potential further residents.
11. The investigation of the child protection issues was conducted by Kent Social Services and the Police. That investigation was not concluded until 4^th February 2005, after this Appeal was lodged, when the police determined that no criminal proceedings were to be undertaken. It remained for the Respondent to consider what steps, if any, were to be taken with regard to the Registration of the Appellant and the Conditions imposed by the Magistrates Court on the 12^th November 2004. Such consideration required access to the enquiries undertaken by Kent Social Services and the Police and any evidence obtained in relation to those enquiries. In my judgment it would not have been reasonable for the Respondent to make decisions regarding the Registration of the Appellant and the Conditions imposed without seeking and considering that information and evidence.
12. The Respondent has provided a chronology setting out the steps taken by the Respondent after the conclusion of the enquiries by Kent Social Services and the Police on 4^th February 2005. A request was made to the Kent Social Services on 8th February 2005 for disclosure of the evidence arising from the investigation. Social Services responded indicating that they did not hold the relevant evidence and that this should be obtained from the Police. The Respondent submits that there were difficulties in obtaining disclosure of that evidence from the Police due to the highly sensitive nature of the evidence. A letter requesting disclosure from the police was sent on 15th February 2005. There was no immediate response and chasing letters were sent on 9th March and 16^th March 2005. Having initially refused to disclose the evidence without obtaining the appropriate consents, the police then agreed to disclosure in the public interest. This agreement was later withdrawn and on the 23rd March 2005, confirmed by fax sent on 31^st March 2005, the police indicated that they would not disclose without an Order for disclosure. This order was made at the Preliminary Hearing before the Tribunal on 31st March 2005 and disclosure to the Respondent was ordered to be made by 22nd Apr11 2005. Documentary evidence and part of the video evidence was disclosed to the Respondent by 11th April 2005. The outstanding video evidence was served on 29 April 2005. Following receipt and consideration of the outstanding child protection evidence the Respondent offered to meet the directors of Ferndearle Childcare Services on 3 May 2005. The solicitor acting for Ferndearle Childcare Services was unable to attend at this appointment and a rescheduled meeting was set for 9 May 2005. That meeting concluded the investigations referred to in the emergency Order with the result that the prohibition in that Order lapsed. A decision was made at that meeting to confirm that The Respondent would no longer oppose the appeal although as a result of the completion of the investigation the Conditions imposed in the emergency Order had lapsed.
13. In addition to pursuing enquiries concerning the evidence from the residents the Respondent conducted enquiries with those employed at the children's home. Interviews with staff members were not commenced during the period of the police investigation into the conduct of individual staff members. Attempts were made by the Commission to set up meetings with members of staff from December 2004. The first meeting took place on 9th December 2004. Formal interviews to take evidence from six members of staff. were offered for 15th and 16th February 2005. The Appellants representative indicated that these dates were not convenient to them. It was therefore agreed that the interviews would take place on 22 and 23 February 2005.
14. The Appellant contends first that the Respondent acted unreasonably in seeking the emergency Order from the Magistrates Court and second that there was unreasonable delay by the Respondent in the conduct of these proceedings delaying the withdrawal of opposition to the appeal.
15. The allegations made were of a serious nature affecting the health or well being of the children resident and giving rise to a child protection issue. It was, in my judgment, essential that the allegations were properly considered and investigated. It was reasonable to report the allegations to the Kent Social Services and the Police in accordance with child protection procedures. It was reasonable to maintain the residency of those children already at the children's home to avoid potentially harmful disruption to them and equally reasonable to ensure that, whilst the matter was investigated, no further children should be admitted to the childrens home. In my judgment it was also reasonable to require the Registered Manager, Christine R Dearle, to leave the premises whilst the enquiries, which inevitably touched upon her management of the home, were completed. The decision to seek an emergency Order in the Magistrates Court to give effect to those decisions was taken by a Management Review Committee meeting following the Kent Social Services Strategy Committee meeting. The Magistrates Court was satisfied on the evidence presented that Conditions should be imposed.
16. The Tribunal has determined that that the conduct of a party before the institution of proceedings before the Tribunal cannot, per se, be treated as an act of unreasonableness in the conduct of those proceedings although the conduct of a party throughout would have relevance in determining whether that party's conduct of the proceedings was unreasonable. It is clear that conduct in general is a relevant factor (Funcamps v OFSTED [2003]124 EY).
17. Taking into account all the circumstances and the submissions made by both parties I do not consider that the decision to seek the emergency Order in the Magistrates Court was unreasonable.
18. The Appellant maintains that there was unreasonable delay on the part of the Respondent first in the interviewing of staff and then in the obtaining of evidence following the conclusion of the enquiries by Kent Social Services and the Police on 4^th February 2005. The sequence of events is set out at paragraphs 12 and 13 above. The Appellant submits that there was unreasonable delay in processing the matter pointing to the fact that some months passed between the emergency Order on the 12^th November and the conclusion of the enquiries by Kent Social Services and the Police on 4^th February 2005 on the one hand and the actual withdrawal of opposition on the 10^th May 2005. The Respondent does not accept that there was any unreasonable delay and submits that both the Tribunal and the Appellant were kept fully informed with regard to the progress in obtaining this evidence, at the directions hearings on 16 February 2005 and 31 March 2005. It is denied that there was unreasonable delay in interviewing staff or in seeking to obtain and consider the evidence.
19. The test is a high test for the Appellant to satisfy (Dr R A Fairburn v NCSC [2002] 76NC). Having considered the papers in the proceedings and the submissions made by both parties I am not satisfied that it has been shown that the Respondent acted unreasonably or that there was unreasonable delay during the conduct of the proceedings. Steps were taken to make arrangements to interview staff. Illness and lack of availability resulted in a little delay for which it cannot be said the Respondent was responsible. No final decision could be taken until the evidence in the hands of the Police had been considered. Once it became clear, confirmed by fax from the Police solicitor on 31^st March 2005, that the Police were not co operating voluntarily an Order was sought from the Tribunal at the Preliminary Hearing on that day. Even after that Order was made and served there was delay on the part of the Police in complying. Once there had been compliance and the evidence had been obtained there was, in my judgment, no delay in making and communicating the decision to withdraw opposition to the appeal.
20. I do not consider that the Appellant has shown that the Respondent has acted unreasonably in the bringing or conduct of this appeal and thus I do not consider an Order for costs to be appropriate.

ORDER ACCORDINGLY

His Honour Judge David Swift

Chairman

14^th July 2005