England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th March 2004

Mr Justice Stanley Burnton:

Introduction

1. This is an appeal by Her Majesty's Chief Inspector for Schools against the decision of the Care Standards Tribunal given on 24 September 2003 allowing the Respondent's appeal against the cancellation of her registration as a child minder under Part XA of the Children Act 1989 as amended by the Care Standards Act 2000. I shall refer to the Children Act 1989 as amended as "the Act", to Her Majesty's Chief Inspector for Schools as "the Chief Inspector" and to the Respondent as Mrs Spicer. I was told that this is the first appeal to the High Court from a decision of the Care Standards Tribunal.

The legislation: (a) the provisions of the Act

2. Before Part XA of the Act came into force, child minders and day care providers were regulated by local authorities under Part X of the Act. The Act constituted the Chief Inspector as the registration authority for England for (among others) child minders, and imposed on him regulatory functions in relation to child minders. He is supported in the exercise of his statutory functions by the Office for Standards in Education ("Ofsted"). The Act defines child minding as looking "after one or more children under the age of eight on domestic premises for reward": section 79A(2). Section 79D(1) prohibits a person from acting as a child minder in England unless he is registered for child minding by the Chief Inspector. Section 79C empowers the Secretary of State for Education and Skills to make regulations governing the activities of child minders on premises in England. Regulations made under that section may deal with among other matters suitability to look after or to be in regular contact with children under eight; qualifications and training of child minders, the maximum number of children who may be looked after, the suitability of premises and equipment and the keeping of records and the provision of information. A person wishing to be registered as a child minder must give prescribed information about prescribed matters and any other information that the Chief Inspector reasonably requires. Section 79F provides, so far as is relevant:

"79F.—(1) If, on an application by a person for registration for child minding—

(a) the registration authority is of the opinion that the applicant is, and will continue to be, qualified for registration for child minding (so far as the conditions of section 79B(3) are applicable); and

(b) the applicant pays the prescribed fee,

the authority shall grant the application; otherwise, it shall refuse it.

(2) ….

(3) An application may, as well as being granted subject to any conditions the authority thinks necessary or expedient for the purpose of giving effect to regulations under section 79C, be granted subject to any other conditions the authority thinks fit to impose.

(4) The registration authority may as it thinks fit vary or remove any condition to which the registration is subject or impose a new condition.

(5) ….

(6) A registered person who without reasonable excuse contravenes, or otherwise fails to comply with, any condition imposed on his registration shall be guilty of an offence."

3. The registration of a child minder may be cancelled by the Chief Inspector under section 79G or suspended under section 79H. Refusal of registration, cancellation of a registration under section 79G, and steps taken by him in relation to the conditions of a registration, are the subject of the procedural steps required by section 79L:

79L.—(1) Not less than 14 days before—

(a) refusing an application for registration;

(b) cancelling a registration;

(c) removing or varying any condition to which a registration is subject or imposing a new condition; or

(d) refusing to grant an application for the removal or variation of any condition to which a registration is subject,

the registration authority shall send to the applicant, or (as the case may be) registered person, notice in writing of its intention to take the step in question.

(2) Every such notice shall—

(a) give the authority's reasons for proposing to take the step; and

(b) inform the person concerned of his rights under this section.

(3) Where the recipient of such a notice informs the authority in writing of his desire to object to the step being taken, the authority shall afford him an opportunity to do so.

(4) Any objection made under subsection (3) may be made orally or in writing, by the recipient of the notice or a representative.

(5) If the authority, after giving the person concerned an opportunity to object to the step being taken, decides nevertheless to take it, it shall send him written notice of its decision.

(6) A step of a kind mentioned in subsection (1)(b) or (c) shall not take effect until the expiry of the time within which an appeal may be brought under section 79M or, where such an appeal is brought, before its determination.

(7) Subsection (6) does not prevent a step from taking effect before the expiry of the time within which an appeal may be brought under section 79M if the person concerned notifies the registration authority in writing that he does not intend to appeal.

4. As can be seen, section 79L imposes a delay before the steps referred to in subsection (1) can take effect. The powers of the Chief Inspector in cases where he considers that action should be taken urgently are contained in section 79K:

"79K.—(1) If, in the case of any person registered for acting as a child minder or providing day care—

(a) the registration authority applies to a justice of the peace for an order—

(i) cancelling the registration;

(ii) varying or removing any condition to which the registration is subject; or

(iii) imposing a new condition; and

(b) it appears to the justice that a child who is being, or may be, looked after by that person, or (as the case may be) in accordance with the provision for day care made by that person, is suffering, or is likely to suffer, significant harm, the justice may make the order.

(2) The cancellation, variation, removal or imposition shall have effect from the time when the order is made.

(3) An application under subsection (1) may be made without notice.

(4) An order under subsection (1) shall be made in writing.

(5) Where an order is made under this section, the registration authority shall serve on the registered person, as soon as is reasonably practicable after the making of the order—

(a) a copy of the order;

(b) a copy of any written statement of the authority's reasons for making the application for the order which supported that application; and

(c) notice of any right of appeal conferred by section 79M.

(6) Where an order has been so made, the registration authority shall, as soon as is reasonably practicable after the making of the order, notify the local authority in whose area the person concerned acts or acted as a child minder, or provides or provided day care, of the making of the order."

As can be seen, the power to make an order cancelling a registration or taking other emergency steps under section 79K is exercisable only if a child is suffering, or is likely to suffer, significant harm.

5. Appeals against cancellation of a registration, action taken with regard to conditions and an order made under section 79K are provided for in section 79M:

"79M.—(1) An appeal against—

(a) the taking of any step mentioned in section 79L(1); or

(b) an order under section 79K,

shall lie to the Tribunal.

(2) On an appeal, the Tribunal may—

(a) confirm the taking of the step or the making of the order or direct that it shall not have, or shall cease to have, effect; and

(b) impose, vary or cancel any condition.

The Tribunal referred to is the Care Standards Tribunal.

The legislation: (b) the Day Care and Child Minding (National Standards) (England) Regulations 2003

6. These Regulations, to which I shall refer as "the Regulations", require a registered childminder to comply with their requirements, to meet the requirements of the National Standards for under-eights day care and child minding published by the Department for Education Skills, and to have regard to specified supporting criteria. Regulation 4(3) provides that any allegation that a registered person has failed to comply with the requirements of the Regulations, or those of the National Standards, or to have regard to the criteria, may be taken into account in any proceedings under Part XA of the Act. Regulation 6 requires a registered person to notify the Chief Inspector of the occurrence of specified events, such as changes in any person looking after children on the premises and any accident to a child. Regulation 7 requires a registered childminder to keep specified records. Regulation 8 authorises the Chief Inspector, if he considers that a registered person has failed or is failing to comply with the requirements of regulation 4(2) or regulation 7, to give notice to the registered person specifying his failure, the action he should take to comply, and the period during which he should take that action. Regulation 8(2) requires a registered person to comply with the terms of the notice within the period specified in it. A registered person who, without reasonable excuse, fails to comply with the requirements of regulation 5 (which prohibits corporal punishment) or of regulation 6 or with a notice served under regulation 8 is guilty of an offence.
7. Paragraph 2.2 of the National Standards is as follows:

"The maximum numbers of children for whom a childminder may care are as follows:

6 children under 8 years of age;

Of these 6 no more than 3 children may be under 5 years of age;

And of these 3, normally no more than 1 child may be under 1. However, a childminder may be registered to care for 2 children under 1 where they can demonstrate that they can meet and reconcile the varying needs of all the children being cared for.

Exceptions to these ratios can be made for siblings and to provide continuity of care in certain circumstances approved by Ofsted.

Any care provided for children aged 8-14 is not allowed to adversely affect the care provided for children under 8."

The legislation: (c) the Care Standards Tribunal

8. The Care Standards Tribunal was created pursuant to the Protection of Children Act 1999. The President of the Tribunal is legally qualified, as is the panel of persons who may serve as chairman of the Tribunal. A Tribunal consists of 3 persons, the chairman and two lay members. Other provisions as to the constitution the Tribunal and its procedure are contained in the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 ("the Tribunal Regulations"). The requirements for membership of the lay panel are specified in regulation 3, and include "experience in managing or inspecting childminding and day care provisions for children under 8 years of age". The members of a tribunal to hear a case are nominated by the President, and by regulation 5(5) he is required to "nominate members of the lay panel who appear to him to have experience and qualifications relevant to the subject matter of the case". Evidence is the subject of regulation 22, paragraph 1 of which provides that the Tribunal may consider any evidence, whether or not such evidence would be admissible in a court of law. Regulation 23 requires written reasons to be given for the decision of a Tribunal. Regulation 25 provides for review by the President of a decision of a Tribunal on the application of a party on grounds that include that "the decision was wrongly made as a result of an error on the part of the Tribunal's staff" (paragraph (1)(a)) and that "there was an obvious error in the decision" (paragraph (1)(c)).

The facts leading to the appeal found by the Tribunal

9. The Tribunal set out the history of the case in paragraphs 4 to 13 of its decision.

"4. The Appellant is a registered childminder having been approved in 1989 to child mind up to five children under eight years old. This was extended in 2000 to a registration to child mind up to six children. Of those no more than three should be under five and not more than one under 12 months old.

5. In September 2001 the Respondent assumed responsibility for the registration of childminders in England and undertook "transitional" inspections during the first six months following take-over.

6. Prior to an arranged "transition" inspection the Respondent received a complaint in relation to the Appellant. Accordingly, on the 6^th September 2001 the Appellant was visited in relation to the complaint, which was alleged that she was failing to properly supervise children that she was minding.

7. On the 12^th December 2001 a "transitional" inspection took place. Mrs Alexandra Brouder, childcare inspector, visited. Unusually for a "transitional" inspection, she decided to visit the Appellant again and this was done on the 17^th January 2002. Records were made in respect of the two visits. Mrs Brouder recorded concerns in relation to a number of apparent failures on behalf of the Appellant relating to compliance with National Standards.

8. The Respondent received a further complaint in August 2002 and a visit took place. The complaint was that the Appellant had thirteen children in her care and was thus over minding. When visited, the Appellant explained that she had had a birthday party for her son. No further action was taken. It was recorded that the Appellant still had failed to comply with certain National Standard requirements and was given a further notice to comply. These related to not obtaining a first aid certificate, not having written agreements with the parents of the children she was minding, failing to have secure locks in the kitchen and lacking child protection information.

9. A further complaint was received on about the 7^th March 2003 in relation to over minding. On the 11^th March Mrs Brouder, Ofsted Inspector, visited her home.

10. The inspector found a number of matters, which caused her concern in relation to the Appellant's childminding. She had sixteen children in the home (including two of her own children and one other who was a friend of one of her children). She did not know how many children were in her care and appeared to not know all their details.

11. Mrs Brouder went to her car to report her findings to the office by mobile phone and as she was in her car, saw a child cartwheel across the road. As a result of this information passed back to the Respondent's office an urgent meeting was convened and a decision made to take emergency action.

12. The Respondent made an application to cancel the registration of the Appellant. This was heard at Leicester Family Proceedings Court and an order was made on the 24^th March 2003 cancelling the registration.

13. A further report was received of the Appellant childminding post cancellation. A visit was made to her home on the 1^st May 2003 and nine children were found to be present. The Appellant explained that the circumstances were unusual as this was polling day and she was helping out but not exceeding looking after any child for more than two hours (the limit beyond which registration is required). She mistakenly believed that the limit applied in respect of each child rather than in relation to her."

The basis of determination by the Tribunal

10. The Tribunal set out the basis of its determination as follows:

"20. The Tribunal is not considering the merits of the decision of the Family Proceedings Court but is considering afresh the test contained within section 79K of the 1989 Act.

21. The Respondent must prove that the grounds contained within section 79K of the 1989 Act are made out. Further, because the section empowers rather that requires the court to make an order, the Respondent must show that such an order should be made.

22. In determining this appeal, the Tribunal decided to adopt and follow the decision of C v Ofsted [2002] 87.EY (adopting Lyons v East Sussex County Council (1988) 86 LGR 369) as "we are dealing with the care and welfare of children… It is only right that post-decision facts should be made available to the Tribunal". Indeed both parties introduced evidence of subsequent events.

23. On appeal the Tribunal is not only able to allow the appeal it is able to allow the appeal (and hence registration) but impose conditions upon the registration under section 79M(2) of the 1989 Act."

11. Neither party has taken issue with paragraphs 20, 21 and 23 of the Tribunal's decision. Whether the approach of the Tribunal as set out in paragraph 22 was correct is the main issue of principle to be determined on this appeal.

The issues before the Tribunal

12. The Tribunal summarised the Chief Inspector's case in paragraph 24 of its decision and the factual issues falling for decision in paragraph 25:

"24. The Respondent asserted that the Appellant failed to comply with National Standards, in relation to each of the following standards:

1. SUITABLE PERSON: leaving some children in the care of her husband, an unregistered person;

2. ORGANISATION: exceeded the maximum number of children permissible (on 11^th March)

3. CARE LEARNING AND PLAY: having few toys and activities available to meet children's needs;

4. PHYSICAL ENVIRONMENT: having insufficient space available;

5. EQUIPMENT: there were few toys or activities;

6. SAFETY: children being allowed to play unsupervised in the kitchen and in the street;

7. HEALTH: the Appellant's husband smokes and was rolling a cigarette when the inspector arrived on the 11^th March;

8. PARTNERSHIP WITH PARENTS: the Appellant could not produce an attendance book recording the presence of the children.

25. The Respondent's case summary highlighted the factual issues for the appeal:

The extent of overminding on the 11^th March 2003;

The effect of the presence of non-minded children;

The quality of supervision exercised by the Appellant:

The safety of the premises;

The Appellant's control of the minded children;

The Appellant's control of the whereabouts and actions of the children;

The Appellant's awareness of the identities and number of children minded;

The control of access by the Appellant to the minded children

The accuracy and availability of the information that should have been obtained in relation to the children and their parents;

The Appellant's knowledge of National Standards;

The significance of the Appellant understanding the need to comply with an action plan in respect of each child;

The Appellant's demonstrated level of co-operation with the Respondent;

The significance of the finding of children at the Appellant's home on the 1^st May 2003."

13. The Tribunal summarised the Chief Inspector's factual case and then set out that for Mrs Spicer:

"36. The Appellant said that she had established a good working relationship with social services. She accepted that she was unfamiliar with the National Standards when introduced and indeed when she was visited for a 'transitional inspection'. She also explained that she did not like to let people down, many of whom had become friends and accordingly she had on occasion been guilty of overminding.

37. The Appellant explained that she now fully understood the seriousness of the situation, accepted that in fact there was a real possibility that with all the children in her home on the 11^th March 2003, a child might have suffered serious harm and that if she was allowed to continue to childmind she would look after fewer children. She also explained that she needed to attend some training courses to familiarise herself with National Standards but had previously been reluctant to do so because she would be letting down the parents and children she normally minded when doing so.

38. By her 'grounds of appeal' the Appellant accepted that on the 11^th March 2003 she had been 'overminding'. There were specific problems on this day, which caused this. The mother of child M asked her to collect him from school because of a hospital appointment. The child O who was found at her home should have been collected early but her mother was late. The parents of K and J were also late and were delayed in traffic. This was also true of the child B. In support of these assertions the Appellant produced documents from the parents of M and O. The Appellant also asserts in the 'grounds of appeal' that her two children came home from school with another child, who she was not minding but was a friend. The Appellant asserts that she is well regarded as a childminder and maintains good records. Her evidence to the Tribunal was that she was unable to use a particular buggy that she had for two children and thus, in what she considered was an emergency she chose to leave them with her husband for the short time that it took her to walk to school to collect the other children. It was whilst walking back from school that the inspector arrived. She had also been told that two of the children's parents were and so she was minding them for longer than expected. She accepted that a child had 'cartwheeled' into the road. She said that this was her own son. He was trying to show what he had seen earlier and went from the pavement but not into the road. She immediately told him off and was with him as he did this.

39. In relation to the allegation of overminding on the 5^th September 2002 the Appellant explained that she had had a birthday party on the 22^nd July for her son and a complaint had been made in relation to that. This had been accepted and no further action taken. Following the visit on the 5^th September the Appellant accepted that there were four outstanding points that she was required to attend to. She said that she had sent a photocopy of her first aid certificate to Ofsted and rang to report her repairs to the kitchen sink unit within a few weeks of the visit. She explained that she had entered into contracts with the parents of the children she was minding but was rather vague about precisely what records she was keeping up to the 11^th March 2003 or why they were not immediately available to show the inspector.

40. In relation to the visit on the 1^st May 2003 the Appellant explained that she had agreed to help out some of the parents of children that she had previously minded but not for reward. She had continued to look after one particular child but only for two hours each day and was being paid to do so. She had received advice that this was not contrary to the requirements of the Children Act 1989.

41. The Appellant accepted in her evidence that she had been overminding. She explained that she found it difficult to say no when asked because of the local difficulties in there being a shortage of childminders. She said that she always tried to operate within the legal requirements but would always go to the limit. Accordingly, reluctantly the Appellant accepted that the grounds were made out in respect of the events of the 11^th March 2003."

14. The Tribunal also referred to evidence given on behalf of the Mrs Spicer as to her character and as to the circumstances on 11 March and 1 May 2003.
15. It is necessary to set out paragraphs 47 to 58 of the Tribunal's decision in full:

"47. There is no dispute that on the 11^th March 2003 when Mrs Brouder visited the Appellant's home she had sixteen children in her care. She did not know exactly who was with her and was unable to look after them properly. Hence on that day grounds for an order cancelling her registration were made out.

48. In relation to earlier reports of overminding (resulting in the visit on the 5^th September 2002) these were not substantiated. In relation to the allegation of acting illegally on the 1^st May 2003 there is no evidence to contradict the Appellant that she was looking after children but in accordance with her understanding of what was acceptable. There is evidence to support her stated wish not to act contrary to the provisions of the Act. Nevertheless it is likely that she was in fact childminding contrary to the provisions of the Act despite the cancellation of her registration and thus acting illegally.

49. It follows that the Respondent acted quite properly in bringing these proceedings and indeed in issuing an enforcement notice following the visit on the 1^st May 2003.

50. There is clear evidence that the Appellant is a very caring person who has a special affinity with children. Probably through being too kind or indeed perhaps wishing to avoid upsetting people, she has been prepared to look after children in what she considered was the very extremes of her registration and hence at times in excess.

51. She has been a childminder since 1989 and prior to the involvement of the Respondent in 2001, in her own words, had an unblemished record.

52. The Tribunal is unable to find that the Appellant regularly overminded but are suspicious that this might have been so. The only evidence of overminding comes from the visits on the 11^th March, the 1^st May and the acknowledgement by the Appellant herself in her letter of the 11^th March 2003. There is a suggestion of such in an earlier report in September 2001 but this is not sufficient to make a finding to this effect.

53. The result of these findings is that the Appellant is a caring, well regarded childminder who has not kept up to date with National Standards and is at risk of overstretching herself to the point of not being able to provide proper care for children she is looking after.

54. There is no doubt that the Appellant needs to better familiarise herself with the National Standards in particular to keep and maintain proper records and agreements with the parents of children minded.

The decision

55. The decision of the Tribunal is that the Appellant would not cause or allow a child in her care to be likely to suffer significant harm in the future. With a restriction upon the number of children that she can look after there is an additional safeguard to prevent her from going to the limit of her registration and thus risk overminding and placing herself in danger of not being able to provide proper care. The Tribunal therefore allow this appeal, re-instate the Appellant's registration but with the following conditions:

Conditions:

56. It shall be a condition of the Appellant's registration that:-

1. She shall be registered to childmind no more than four children under the age of eight. Of those not more than two should be under the age of five. Of those under five not more than one should be under the age of one;

2. So as not to adversely affect her care of the children she is childminding (to comply with National Standard 2.2) and with her consent, she shall not care for more than four children aged eight or over (irrespective of reward).

57. Further, the Tribunal make the following recommendations:

1. In order to comply with the Day Care and Child Minding (National Standards) (England) Regulations 2001 Schedule 3 and National Standards, standard 14 the Appellant should use and maintain records produced or recommended by either the National Child Minders Association or social services early years team and have such records easily accessible within the home, as soon as possible but in any event within one month of the date of this decision;

2. The Appellant should make contact with the National Child Minders Association and seek guidance and training on the operation of National Standards and of Child Minding, including as a minimum attend a pre-registration course as soon as possible and in any event within six months of the date of this decision;

3. In order to comply with National Standards, standard 4 (physical environment), standard 5 (equipment), standard 6 (safety), standard 7 (health), standard 8 (food and drink) the Appellant should seek guidance from Ofsted or social services early years team in relation to matters she needs to attend to, and attend to those matters as soon as possible.

58. The Appellant now understands that a further failure to comply with the National Standards or with the conditions of her registration may cause further action to be taken by Ofsted."

The parties' submissions on the present appeal

16. As indicated above, the main issue of principle raised by this appeal is whether the Tribunal was entitled to have regard to (as put in Miss Lieven's skeleton argument) "matters which took place after the (Magistrates') order was made". The Chief Inspector submits that it was not: that the Tribunal is limited to considering matters relating to the correctness of the order as made by the Magistrates' on the evidence that was, or could have been, before them. This submission is based in part on the wording of section 79M(2)(a). It is argued that, if Parliament had intended the Tribunal to consider matters arising after the date of the magistrates' order, it would have included wording such as "the Tribunal may decide whether the registration should be reinstated or not".
17. The second objection to the Tribunal's approach put forward on behalf of the Chief Inspector is that it "effectively stepped into the shoes of the registration authority and (acted) as a first instance decision maker rather than an appellate body. Ofsted has not considered whether Mrs Spicer should be returned to the register on the basis of any fresh material she has produced and/or any change of circumstances. This is a matter which should be considered first by Ofsted as registration authority, rather than by the Tribunal".
18. Miss Lieven submitted that, since the Tribunal had accepted that the Order as made by the magistrates cancelling Mrs Spicer registration had been correctly made, it had erred in law in allowing her appeal. If it be right that the Tribunal was limited to considering matters as at the date of the magistrates' order, this consequence would appear to follow as a matter of logic.
19. Mr Smith, for Mrs Spicer, disputed this submission. He rejected the submission that the wording of section 79M supported the Chief Inspector's case. He also relied on regulation 22 of the Tribunal regulations, and on the authorities cited by the Tribunal.
20. Miss Lieven also submitted that:

(1) the Tribunal had erred in law in imposing a condition (namely that set out in sub-paragraph 2 of paragraph 56 of the Tribunal's decision) which was subject to Mrs Spicer's consent.

(2) the Tribunal erred in law in making recommendations which appear, on their terms, to have been intended to be mandatory.

21. Mr Smith submitted that condition 2 in paragraph 56 of the decision should be read as indicating that Mrs Spicer had agreed to be bound by it, rather than that compliance with the condition was dependent on her consent. If so read, the condition is effective. So far as the recommendations are concerned, Mr Smith submitted that it was clear that the Tribunal intended them to be such; that their subject matter was covered by the Regulations, so that it had been unnecessary to make compliance with them mandatory; and that they gave rise to no grounds for interfering with the Tribunal's decision.
22. Two further issues arose during the course of argument. The first relates to the meaning of the second sentence of paragraph 55 of the decision, and whether it provides a rational motivation for the Tribunal's order. The second arises only if Miss Lieven's submission that the recommendations in paragraph 57 were intended to be binding is rejected. In that event, did the decision of the Tribunal give adequate reasons for the decision to make non-binding recommendations set out in paragraph 57, instead of imposing additional conditions of the Appellant's registration?
23. Miss Lieven put in evidence, without objection from Mr Smith, a witness statement of the Chief Inspector explaining his concerns at the decision of the Tribunal and his views as the proper application of the relevant provisions of the Act. The CPR contains no provision for such evidence, and advisedly so. This is an appeal on a question of law. The concerns of a public authority raised by the decision of a tribunal may be communicated by the advocate instructed on its behalf. Submissions as to the correct interpretation and application of statutory provisions, as to Parliament's objects in enacting legislation and the like, are all matters for submission and presentation of documentary material (such as a relevant White Paper or Law Commission report) rather than witness statements. Moreover, such matters should have been put before the Tribunal whose decision is the subject of appeal. The presentation of such evidence is in my judgment to be discouraged.

Discussion

(a) The limitation contended for by the Chief Inspector on the matters to be considered by the Tribunal

24. I confess to having some difficulty in identifying the matters that, according to the Chief Inspector's submissions, should have been excluded from the purview of the Tribunal. There had been no relevant occurrence between the date of the Magistrates' decision and the hearing before the Tribunal, other than the inspection of 1 May 2003, evidence of which was put before the Tribunal by the Chief Inspector. Apart from that, all that had happened was that Mrs Spicer had admitted that she had been at fault, and given assurances that she would comply with her obligations. That was, as Miss Lieven accepted, a change of circumstances rather than any new event or events.
25. The Chief Inspector accepts that the proceedings of a Tribunal in a case such as the present are a true rehearing rather than a review of the Magistrates' decision. It would in my judgment be a curious appeal process that excluded from its consideration matters such as the appellant's acceptance of fault and his or her proposals for remedying the fault, even if he or she had previously denied being at fault. I see nothing in the wording of section 79M to justify the Chief Inspector's submission on this point.
26. Contrary to the Chief Inspector's submission, the structure of the Act points away from acceptance of his submission. An order may be made by a justice of the peace under section 79K(1) without notice being given to the registered person, presumably in cases of real urgency: see section 79K(3). In such a case, the registered person would have no opportunity to make representations or to give evidence as to his compliance with the obligations of registration or his proposals for dealing with the problems found by Ofsted. Section 79K(5) does not require the registration authority to serve on the registered person a copy of any written statement of the authority's reasons for making the application for the order until after it is made. On an appeal the registered person could not be restricted to matters as they were before the justice without a real risk of, if not actual, injustice that Parliament could not have intended. If the Tribunal is not limited in the matters to which it may have regard where an application was made to a justice without notice, it cannot be limited as a matter of jurisdiction where the application to the justice was made with notice, since section 79M does not distinguish between appeals against orders made without or with notice.
27. Other considerations point in the same direction. There are two questions to be considered by a justice of the peace on an application under section 79K:

i) whether it appears to them that a child who is or may be looked after by the registered child minder "is suffering, or is likely to suffer, significant harm";

ii) if so (but not otherwise) whether one of the orders specified in subsection (1)(a) and applied for by the Chief Inspector should be made.

28. On an appeal to the Tribunal, it must first consider question (i). If it satisfied on issue (i), it must then consider whether the justice's order should be confirmed, varied or should not have effect. It would be unfortunate if, in the exercise of its judgment on issue (ii), it were precluded from taking into account matters arising after the date of the justice's order. Take, for example, unlawful child minding by a person after the cancellation of his registration under section 79K (which actually happened in the present case), or an accident to a child unlawfully in his care after such a cancellation. For a Tribunal to ignore such events would be to require it to exercise its discretion on a false factual basis. Ms Lieven's response was that in such a case the Chief Inspector could take steps under section 79K based on the new event; but this would be an unnecessary and cumbersome process. If the Tribunal can take into account matters adverse to the registered person, it must be similarly entitled to take into account matters in his favour.
29. Furthermore, although the Chief Inspector and Ofsted must be taken to be highly qualified and experienced, the Tribunal is a specialist tribunal, and unless it is to act as rubber stamp for the decisions of the Chief Inspector, it must exercise its own judgment on the matters that come before it.
30. It follows that, even apart from authority, I would reject the submission of the Chief Inspector on the issue of principle. There is little relevant authority, but such authority as there is supports the view I have arrived at. Lyons v East Sussex County Council, an unreported decision of Farquharson J and a decision of the Court of Appeal reported at (1987) 152 JP 488 and 86 LGR 369, concerned the decision of a Registered Homes Tribunal under the Registered Homes Act 1984. That Act contained similar provisions to those in the Children Act 1989 to which I have referred. In particular, a local authority could apply to a justice of the peace for an order cancelling the registration of a home, and the justice might make such an order if it appeared to him that "there will be a serious risk to the life, health or well-being of the residents of the home unless the order is made". There was also provision similar to that in section 79L of the 1989 Act for cancellation of a registration in less urgent cases. There was an appeal to the Registered Homes Tribunal against a decision of a justice under the urgent procedure or of the local authority under the normal procedure, and on an appeal against an order made by a justice "the tribunal may confirm the decision or direct that it shall not have effect". At first instance, one of the questions considered was whether, on an appeal to the Tribunal, the registration authority "may adduce evidence which tends to establish a serious risk to life, health or well-being of the residents" where either "such evidence … was not referred to in the Registration Authority's written Statement of Reasons" even though it was available, alternatively it "relates to events arising after the (justice's) Order was made". Farquharson J answered that question "Yes, subject to the Tribunal's discretion". Unfortunately, I do not have a transcript of his judgment. His answer was non-contentious before the Court of Appeal. The issue before the Court of Appeal was whether the Tribunal might confirm the order of the justice to cancel a registration where it was not satisfied that they was a serious risk to the life, health or well-being of the residents, but concluded that the registered person was not a fit person. The Court of Appeal upheld the decision of Farquharson J that in such circumstances the Tribunal was required to allow the appeal and to set aside the justice's order. The remedy of the registration authority in such a case was to implement the ordinary procedure for cancellation of registration, which could be done concurrently with the urgent procedure.
31. The decision of Farquharson J is persuasive authority for the proposition that where a statute makes provision for procedures similar to those in the Act, an appellate tribunal may have regard to evidence of matters arising after the date of a justice's order in deciding whether the condition for the exercise of the power under section 79K is met, i.e. whether a child is suffering or likely to suffer significant harm. If that is right, there is no justification for excluding from the tribunal's purview subsequent facts relevant only to how the power conferred by section 79K and on the Tribunal under section 79M should be exercised. The decision of the Court of Appeal is authority only for the proposition that a Tribunal cannot uphold an order made under section 79K unless the condition for its exercise is satisfied, i.e. it is satisfied as to the suffering or likelihood of suffering by a child of significant harm.
32. In C v Ofsted [2002] 0087EY, a Care Standards Tribunal considered an appeal against a decision of the Chief Inspector made under section 79G of the Act. At paragraph 25 of its decision, the Tribunal stated:

"The final legal matter that we address is whether the Tribunal has power to consider evidence subsequent to the decision which is being appealed against, in this case subsequent to the letter dated 24^th July 2002. Counsel were in agreement, albeit after an early difference of opinion, that the correct approach is that laid down in Lyons v East Sussex County Council (1988) 86 LGR 369. This case dealt with the Registered Homes Tribunal, but it seems to us that it is the approach that should be applied in this case. We are dealing with the care and welfare of children, and it is only right that post-decision facts should be made available to the Tribunal."

The Tribunal's reference is to the Court of Appeal decision in Lyons. As appears above, the Court of Appeal did not lay down any approach as to subsequent evidence: there was no argument and no issue before it concerning this issue. While the approach of the Tribunal in that case may well have been correct, the reliance on the Court of Appeal judgment in Lyons was misplaced.

33. In the present case, the subsequent evidence related not to the issue whether the ground for the exercise of the power to make an order under section 79K had existed: the Tribunal found that it had. It went only to the question of the exercise of the power conferred by section 79K and section 79M. I have no doubt that subsequent evidence and events may be taken into account by a tribunal on that issue.
34. For the sake of completeness, I should mention that I derive no assistance from Regulation 22(1) of the Tribunal Regulations. That provision is concerned with adjectival law, the admissibility of evidence adduced to prove facts, and does not bear upon the issue as to what facts a tribunal is entitled or bound to take into account in making its decision.
35. In my judgment, the complaint of the Chief Inspector should relate not to the jurisdiction of the Tribunal (in which expression I include those matters which it is entitled to take into account as relevant to its decision) but to the exercise by the Tribunal of its powers in the instant case. While the Tribunal must exercise its own judgment, it should pay due regard to the experience, knowledge, functions and powers of the Chief Inspector and his staff. Where, as in the present case, serious failures have been established on the part of the registered person, such that either a child has suffered or is likely to suffer significant harm, the Tribunal should be cautious before accepting assurances from the registered person that the Chief Inspector has no opportunity to monitor. On appeals against orders made under section 79K, the Tribunal should give substantial weight to the importance of persons wishing to mind children for reward demonstrating to the Chief Inspector their fitness for registration before they undertake or resume child minding rather than while carrying out child minding. There is much to be said for the contention of the Chief Inspector that persons who could not qualify for registration (because, for example, they are in need of training) should not, in general, act as child minders until they have demonstrated to the satisfaction of the Chief Inspector that they should be registered, for example that they have in fact successfully undertaken the requisite training.
36. I have to say that I have found the Tribunal's decision in the present surprising. The facts found as to 11 March 2003 as summarised in paragraph 47 of the decision were serious. Paragraph 48 is a finding that, notwithstanding the cancellation of her registration, on 1 May 2003 Mrs Spicer minded children illegally. At paragraph 53 the Tribunal stated that she was "at risk of overstretching herself to the point of not being able to provide proper care for children she is looking after", but the facts of 11 March 2003 demonstrated not just a risk that she had so overstretched herself but that she had in fact done so.
37. However, if the only issue on this appeal was whether the Tribunal was entitled to have regard to matters subsequent to the Magistrates' order made under section 79K, I should have upheld the Tribunal's decision.

Paragraph 55 of the Tribunal's decision

38. The decision of the Tribunal is to be benevolently construed. Nonetheless, I have not been able to understand the second sentence of paragraph 55 of its decision. A limitation on the number of children aged under eight who may be cared for by a child minder may be effected by a condition attached to her registration. "Overminding" is a term of art: it means minding more children than is permitted, i.e., in excess of the number stipulated by a condition or, in the absence of a relevant condition, permitted by the National Standards. In the present case, the Tribunal imposed a condition that reduced the number of children under eight who could lawfully be minded by Mrs Spicer from 6 (her original registration) to 4. I do not understand how that reduction provided "an additional safeguard to prevent her from going to the limit of her registration". As a result of the decision of the Tribunal, 4 is the limit of her registration, and if exceeded there would be not the risk of overminding but actual overminding. To mind more than 4 children under eight without reasonable excuse would render Mrs Spicer guilty of an offence under section 79F(6). Furthermore, I cannot read the restriction referred to in the second sentence of paragraph 55 as the condition imposed in relation to children over the age of eight: that condition is irrelevant to her going to the limit of her registration for children under eight. It is significant that Mr Smith was unable to explain to me the meaning of the second sentence of paragraph 55 of the decision.
39. Paragraph 55 is central to the Tribunal's decision, and if it were the only matter of complaint its lack of sensible meaning would render its decision liable to be set aside.

The condition in paragraph 56.2 of the Tribunal's decision

40. Compliance with a condition of registration is mandatory. A condition expressed to be subject to the registered person's consent, or which is expressed to make compliance subject to her consent, is not a condition. Furthermore, a condition must be clear, since a failure to comply with it without reasonable cause is a criminal offence. The condition contained in paragraph 56.2 of the decision is either subject to Mrs Spicer's consent, and therefore unenforceable, or is too unclear to be enforceable.
41. There is an obvious link between the second sentence of paragraph 55 and the condition in paragraph 56.2: both concern the risk of Mrs Spicer minding more children than she can safely manage. The centrality of this risk to the issues before the Tribunal and to its decision means that the decision must be set aside.
42. I also have some concern as to whether the second condition is restricted to times when Mrs Spicer is minding children under eight. Any such condition should be expressed to be so limited. I assume that, read purposively, it should be so construed.

The recommendations

43. I cannot accept Ms Lieven's submission that the recommendations in paragraph 57 of the decision are to be construed as conditions. The Tribunal clearly distinguished between a condition and a recommendation and must have intended compliance with the latter not to be mandatory.
44. I am nonetheless very puzzled by the recommendations, which are couched in terms appropriate to mandatory requirements. Recommendation 1 went beyond the requirements of the Regulations in specifying the form of the records to be maintained by Mrs Spicer. However, a registered person must always keep the records required by the Regulations, and this recommendation might easily be read by Mrs Spicer as permitting some delay, up to a month, before she did so.
45. It follows from the second recommendation that the Tribunal accepted, as did Mrs Spicer, that she required training. The importance of training is such that some explanation was required from the Tribunal as to why this matter was the subject of a recommendation rather than a mandatory condition. The decision contains none. The same comment applies to recommendation 3, although if it had been made a condition it would have been necessary to identify the "matters she needs to attend to".
46. Recommendation 2 would also give the mistaken impression to Mrs Spicer that had up to 6 months in which to attend a pre-registration course in order to comply with National Standards. I find it difficult to understand why, if Mrs Spicer did need to attend a pre-registration course, her registration was revived by the Tribunal with immediate effect.
47. Mr Smith suggested that the recommendations were made such by the Tribunal because it was unnecessary to make compliance with National Standards mandatory, since such compliance is made mandatory in any event by the Regulations. If that was the Tribunal's motivation, it should, I think, have been stated in the decision. If that was the Tribunal's motivation, I have some difficulty in understanding why they felt it necessary to make the recommendations as such, and why, for example, a period of 6 months was included in recommendation 2.

Conclusion

48. Mr Smith suggested that if the decision was defective, the Chief Inspector could and should have proceeded under regulation 25 of the Tribunal Regulations for the decision to be reviewed. In my judgment regulation 25 has no application to the defects in the present decision. The Tribunal staff referred to in paragraph (1)(a) of that regulation do not include the Tribunal itself. An "obvious error" within paragraph (1)(c) does not include an error of law, including a failure to give adequate reasons for an order or defective reasoning such as that in paragraph 55.
49. In my judgment, the decision of the Tribunal is liable to be set aside by reason of the defects in paragraph 55 and paragraph 56.2 of the decision to which I have referred, and it should be set aside on that ground. I do not therefore have to decide whether the failure to explain or the inclusion of the recommendations would have led to the quashing of the decision. However, in my judgment a future Tribunal considering whether to make recommendations of this kind should consider whether a mandatory requirement is not required, and if not explain why. Furthermore, a Tribunal should take care not to make a recommendation that may be seen as detracting from the obligations of the child minder to comply with the Regulations and to meet the requirements of the National Standards.
50. The Tribunal's decision will be quashed and Mrs Spicer's appeal to the Tribunal be remitted to be heard by a differently constituted Tribunal.
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MR JUSTICE STANLEY BURNTON: For the reasons set out in my judgment which has been distributed in draft, the decision made by the Care Standards Tribunal on 24th September 2003 will be quashed. Copies of the judgment are available for public interest, counsel, and anyone else who is interested.

MS LIEVEN: My Lord, on behalf of the appellant, may I just indicate that we are not seeking our costs. I understand that the defendant is rather surprisingly seeking costs of us. Perhaps I shall deal with that when the application is made. May I just say at this stage that the decision not to seek our costs has nothing to do with any acceptance that your Lordship did not find for us on the bulk of the arguments. It is merely that we felt that it would be inappropriate, in a matter such as this, to pursue Mrs Spicer's costs.

MR JUSTICE STANLEY BURNTON: Mr Smith.

MR SMITH: My Lord, I think the starting point that I am thinking about is the fact that this appeal has heard four points of law, two of which your Lordship has described as being the main principle, ie issues one and two, and your Lordship rejected submissions on that basis. The only issue on which the appellant was successful is that relating to the issue of conditions.

MR JUSTICE STANLEY BURNTON: Well, you did not no do very well on recommendations, either.

MR SMITH: I accept that perhaps a complete recovery would be difficult at this time. What I am seeking is a proportion of the costs to be paid in relation to issues one and two, ie the main principle.

MR JUSTICE STANLEY BURNTON: Is there anything else that you would like to say?

MR SMITH: Apart from describing the situation of the respondent in terms of funding, no. I think that was an issue in terms of costs.

MR JUSTICE STANLEY BURNTON: Thank you very much.

The respondent seeks costs on the basis that I decided the decision on a principle raised by Her Majesty's Chief Inspector for Schools in their favour. However, she was the unsuccessful party in relation to the appeal, and the issues on which she failed were also important issues. I have no doubt the appropriate order to make in this case, having regards to the concession made by Ms Lieven, is that there be no order as to costs.

MS LIEVEN: I am grateful, my Lord.

MR JUSTICE STANLEY BURNTON: Thank you both very much.

MS LIEVEN: Thank you, my Lord.