England and Wales Care Standards Tribunal

MS v Secretary of State for Education and Skills [2006] EWCST 660(PC_Costs) (26 June 2006)

MS
V
SECRETARY OF STATE
[2006] 0659 PVA [2006] 0660 PC
1. On the 16^th February 2006 the Appellant lodged Notice of Appeal against a decision of the Secretary of State to include her name on The Protection of Children Act and the Protection of Vulnerable Adults Act Lists dated 17^th November 2005. By a lengthy and detailed Response dated the 20^th March 2006 the Secretary of State gave notice of an intention to resist the Appeal.

2. The Appellant's name was referred to the Secretary of State by her former employers, Oxfordshire Learning Disability NHS Trust. The Appellant had been employed by Oxfordshire Learning Disability NHS Trust as a Home Support Team Manager in the residential care and support of vulnerable adults including adults with learning and/or mental health problems.

3. The Appellant was employed in the management of a care home at 3 Cottshill. In April 2003 Oxfordshire Learning Disability NHS Trust commenced investigations concerning allegations that the Appellant had intimidated a vulnerable adult, administered drugs when it was unsafe to do so and failed to ensure that residents at 3 Cottshill attended healthcare appointments. The Appellant was told of the complaints that had been made. The allegations related to incidents said to have occurred in 2001 and 2002. The Appellant was interviewed on 13^th May 2003. The investigation resulted in evidence being obtained by Oxfordshire Learning Disability NHS Trust over a period to January 2004.

4. On 7^th January 2004 the Appellant resigned her employment with Oxfordshire Learning Disability NHS Trust. At the date of the Appellant's resignation the Oxfordshire Learning Disability NHS Trust had obtained evidence from witnesses in relation to the allegations but no disciplinary hearing had taken place.

5. On the 10^th December 2004 the Oxfordshire Learning Disability NHS Trust referred the Appellant's name to the Secretary of State for inclusion on The Protection of Children Act and the Protection of Vulnerable Adults Act Lists. The Oxfordshire Learning Disability NHS Trust reported that the Appellant had been employed as a Manager in charge of a small team and that in April 2003 a member of staff had drawn attention to concern which was followed by a service user complaint. At the time the Appellant was on maternity leave and there were delays in the completion of the investigation. The Oxfordshire Learning Disability NHS Trust indicated that disciplinary proceedings were contemplated but that the Appellant had resigned her employment before disciplinary proceedings could take place. Oxfordshire Learning Disability NHS Trust indicated that, after consideration of the complaints made and the investigations undertaken, it was appropriate for the file and the Appellant's name to be placed before the Secretary of State for inclusion on The Protection of Children Act and the Protection of Vulnerable Adults Act Lists.

6. On the 15^th March 2005 the Appellant's name was provisionally included on The Protection of Children Act and the Protection of Vulnerable Adults Act Lists. The Appellant made submissions thereafter. The Secretary of State considered those submissions and the investigations conducted by the Oxfordshire Learning Disability NHS Trust. The Appellant's name was confirmed on The Protection of Children Act and the Protection of Vulnerable Adults Act Lists. It is submitted by the Secretary of State that this decision was not unreasonable. The Appellant was told of her right to appeal. Having regard to the serious nature of the allegations and the information available to the Secretary of State I do not consider that the listing of the Appellant was unreasonable.

7. Following the Appellant exercising her right to appeal to this Tribunal the Secretary of State undertook further detailed investigation in the light of the grounds set out in the Appellant's Notice. The Appellant contended that there were staffing and management problems at 3 Cottshill over a period. The Appellant denied that she had intimidated or behaved inappropriately towards the vulnerable adult. She further denied responsibility for administering drugs when it was unsafe to do so and failing to ensure that residents at 3 Cottshill attended healthcare appointments. There was a need to communicate with witnesses and obtain statements of evidence for use in the Tribunal in relation to matters that had arisen some 4 years earlier. The Secretary of State submits that these enquiries were complicated by the fact that some were ill whilst others had retired or left the employment of the Oxfordshire Learning Disability NHS Trust.

8. The Secretary of State provided the Tribunal with further information on 24^th April 2006 at which time not all the witnesses traced had been interviewed as a result of illness or leave. On the 27^th April the Tribunal directed a Preliminary Hearing to take place on 12^th May 2006 to consider Directions for the disposal of the Appeal including Directions as to disclosure and evidence.

9. The Secretary of State submits that, prior to that Preliminary Hearing, at the first opportunity to review all the evidence the decision was taken to withdraw opposition to the Appeal.

10. The Appellant seeks an order for the costs of and occasioned by her Appeal under Regulations 33(2) and 24 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002. The Appellant set out her grounds for such an Order in a letter from her solicitors dated 23rd May 2006 submitting that it was unreasonable to confirm her name on The Protection of Children Act and the Protection of Vulnerable Adults Act Lists and further submitting that the Respondent's conduct of the Appeal had been unreasonable. By letter dated 31st May 2006 the Secretary of State responded that the conduct of the case as a whole was reasonable in all the circumstances including the nature of the allegations and those matters set out above.

11. The Appellant contends that following her resignation of her employment by the Oxfordshire Learning Disability NHS Trust on 7^th January 2004 she commenced work on a self employed basis with an Agency but it appears that work ceased in June 2005 shortly before the birth of her second child in July 2005. The Appellant maintains that she has lost the benefit of earnings, calculated at the Agency rate of £1500 per month, over the period from June 2005 until May 2006, a total of £15,000. She further contends that as a result of the allegations and her resignation thereafter she does not feel able to continue to live in the locality and the cost of moving from Oxfordshire to Warwickshire is said to be £11,000.

12. The jurisdiction of the Tribunal to award costs to a successful party arises under Regulation 24 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002. The Tribunal may order a party found to have acted unreasonably to make a payment to cover the "costs" incurred by the other party in bringing or conducting the proceedings. Such "costs" must be reasonable and may include legal costs, disbursements or loss incurred in preparation for or attendance at hearings. Only those "costs" incurred in the conduct of the proceedings after the proceedings have been commenced can be awarded. Such losses as may have occurred as a result of the loss of the Appellant's employment and/or any restriction in her ability to seek employment as a result of her name appearing on The Lists are not "costs" incurred in bringing or conducting the proceedings and cannot be the subject of an Order for costs.

13. The "costs" incurred in bringing or conducting the proceedings are set out in a schedule produced by the Appellant's solicitors totalling £3438.05.

14. The Tribunal has determined 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).

15. 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 witnesses. Difficulties in tracing and interviewing witnesses resulted in delay for which it cannot be said the Respondent was responsible. No final decision as to the conduct of the Appeal by the Secretary of State could be taken until the available evidence had been considered. Once the issues raised had been considered and the evidence available to deal with those issues became clear there was, in my judgment, no delay in making and communicating the decision to withdraw opposition to the appeal.

17. 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.

    No Order for Costs

    His Honour Judge David Swift

    Chairman

26. ^th June 2006