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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> EXPLORE LEARNING LTD, NOTE IN APPLICATION FOR LEAVE TO APPEAL BY EXPLORE LEARNING LTD AGAINST A DECISION OF THE SHERIFF APPEAL COURT [2019] ScotCS CSIH_53 (12 November 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSIH_53.html
Cite as: [2019] CSIH 53, [2019] ScotCS CSIH_53, 2019 GWD 37-594
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Lord Brodie
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2019] CSIH 53
XA89/19
NOTE BY LORD BRODIE
in the application for leave to appeal
under section 113 of the Courts Reform (Scotland) Act 2014
by
EXPLORE LEARNING LIMITED
against
a decision of the Sheriff Appeal Court
Applicant
Applicant: Lindsay QC; Shepherd & Wedderburn
Respondent: Logan; Harper MacLeod LLP
12 November 2019
[1] The applicant, Explore Learning Ltd, wishes to appeal a decision of the Sheriff
Appeal Court (SAC) dated 31 May 2019 in a summary application to the sheriff brought
under section 75 of the Public Services Reform (Scotland) Act 2010 and accordingly seeks
permission to do so. The respondent, Social Care and Social Work Improvement Scotland
(otherwise “the SCSWIS” or “the Care Inspectorate”), opposes the grant of permission.
[2] The respondent is a statutory body constituted by section 44 of the 2010 Act. It is the
statutory successor to the Scottish Commission for the Regulation of Care. The 2010 Act
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2
replaces and materially re-enacts the Regulation of Care (Scotland) Act 2001. The 2001 Act
made and the 2010 Act makes, provision for the registration formerly by the Scottish
Commission for the Regulation of Care and now by the respondent, of care services,
including the day care of children.
[3] The summary application in terms of section 75 of the 2010 Act was an appeal by the
applicant against the cancellation, in terms of section 64 of the 2010 Act, of the registration of
certain services provided by the applicant at specified locations. The sheriff refused the
applicants’ appeal by interlocutor dated 9 October 2018. The SAC refused the applicant’s
appeal against the sheriff’s decision on 31 May 2019.
[4] A number of grounds were put forward in the appeal by the applicant to the sheriff
and then again in the appeal to the SAC. However, the applicant now seeks to appeal
against the decision of the SAC of 31 May 2019 on one ground only which is set out in the
Application for Leave to Appeal as follow:
“a. The Sheriff Appeal Court erred in law to a material extent at paragraphs [37]
to [41] of the Opinion of Court when it held that the respondent did not have
a discretion to continue to register a ‘non-care provider’. The Court ought to
have held that the respondent erred in law to a material extent when it was
considering whether or not to cancel the applicant’s registration by failing to
take into account that it had a discretion to continue the applicant’s
registration even if it considered that the applicant had never provided
registered day care of children services. The respondent was not obliged to
cancel the applicant’s registration in such circumstances. It merely had a
discretion to do so. Although a person cannot provide a registerable care
service without first being registered with the respondent, the 2010 Act does
not state that only persons providing a registerable care service may be
registered: see section 59 of the 2010 Act. There is no prohibition on persons
not providing a registerable service from being registered by the respondent.
This discretion to register persons that are not providing a registerable care
service is explicitly recognised by section 64(4) of the 2010 Act. Maintaining
the applicant’s registration in such circumstances would not have been ultra
vires. This general discretion helps the respondent to fulfil its aims and
general principles which are set out in sections 44 & 45 of the 2010 Act. The
respondent’s discretion requires to be exercised reasonably after all relevant
and material circumstances had been taken into account: Donaldson v
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3
Renfrewshire Council [2011] CSIH 66 at paragraphs [17] and [18]. It also
required a recognition that the decision making process in respect of a
decision whether or not to grant a registration for the first time, as the
relevant and material considerations would differ in each case. As the
respondent had a discretion to grant or maintain a registration even where no
registered care services were being provided, it was incumbent upon the
respondent to consider how to exercise its discretion in the particular
circumstances of this appeal. The respondent did not consider how to
exercise its discretion. It was not inevitable that the respondent would have
exercised its discretion against the applicant. This is a material error of law
which vitiates the Decision. For this reason alone, the appeal should have
been allowed by the Court”
[5] In terms of section 113(1) of the Courts Reform (Scotland) Act 2014 an appeal may be
taken to the Court of Session against a decision of the SAC constituting final judgment in
civil proceedings but only if (a) with the permission of the SAC, or (b) if that Court has
refused permission, with the permission of the Court of Session. Where an application for
permission is made to the Court of Session it falls to be considered, in terms of RCS 40.2, by
a procedural judge.
[6] Section 113(2) of the 2014 Act provides:
“(2) The Sheriff Appeal Court or the Court of Session may grant permission under
subsection (1) only if the Court considers that—
(a) the appeal would raise an important point of principle or practice, or
(b) there is some other compelling reason for the Court of Session to hear
the appeal.”
[7] What, in relation to appeals from the SAC, is set out in section 113(2) of the 2014 Act
is usually referred to as “the second appeals test”. Discussion of and guidance in relation to
the application of the second appeals test is to be found in the opinion in Politakis v Spencely
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[2019] CSIH 35 (referred to in the respondent’s answers to the application in support of the
proposition that whether a proposed appeal was arguable was a relevant consideration)).
For present purposes it is sufficient to note that permission can only be granted if either the
section 113(2)(a) or the section 113(2)(b) criterion is satisfied; satisfaction of one or the other
is a necessary condition for a grant of permission. However, satisfaction of one or the other
criterion is not necessarily a sufficient condition for a grant of permission. Satisfaction of
either criterion only means that the relevant court (the SAC or the Court of Session) may
grant permission. In considering the exercise of its power in that situation it accordingly
appears to me that the court must have regard to the prospects of success in the proposed
appeal and the suitability of the particular case as a vehicle with which to advance such
point as it is intended to make (in so far as such a requirement is not already implicit within
the statutory criteria). I would see that as illustrated in the court’s approach in Politakis and
Aldabe. It is consistent with the submissions I heard both from Mr Lindsay QC, on behalf of
the applicant, and from Mr Logan, on behalf of the respondent.
[8] Here the SAC has refused permission by interlocutor dated 23 July 2019. The
applicant has therefore renewed its application before this court. As far as the statutory
criteria are concerned the applicant relies on the section 113(2)(a) criterion: that the appeal
would raise an important point of principle or practice. In the Application this contention is
developed as follows:
“a. The appeal raises an important point of principle or practice because it is
concerned with the existence of a general statutory discretion that the
respondent has to register, and to continue register, persons who are not
providing registerable care services; and the circumstances in which this
discretion falls to be exercised. This is an important point of principle which
is of general application. It is not limited to the particular facts and
circumstances of this appeal. It is important that the existence and extent of
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this statutory discretion, if any, is clarified by the Court of Session as it will
have a considerable impact on the manner in which the current system of
registration is operated by the respondent. The respondent contends that it
has no such discretion whereas the applicant submits that it does have. This
issue of statutory interpretation has not been authoritatively determined by
the courts. The applicant is not merely contending that an established
principle or practice has not been correctly applied.”
[9] Mr Lindsay QC advanced his submission that I should grant permission by reference
to four propositions: (1) the SAC had erred in law; (2) the section 113(2)(a) criterion was
met; (3) it was for the procedural judge to consider the matter de novo; and (4) should the
court be against him it should not pronounce an interlocutor to that effect before allowing
the applicant four weeks’ grace in order to allow the applicant and its clients to disengage
from current arrangements and to give notice to the relevant authorities, including HMRC.
[10] As to Mr Lindsay’s proposition (1), it was his submission that, having decided that it
had power in terms of section 64(4) to cancel the applicant’s registration and having decided
that the applicant was not providing a registrable care service in the form of the day care of
children, the respondent had erred in proceeding on the basis that it was accordingly
obliged to cancel the applicant’s registration. The power conferred by section 64(4) was
discretionary: “the SCSWIS may cancel the registration of the service”; and not mandatory.
The respondent should therefore have given consideration to whether, in all the
circumstances of the case, the power should be exercised or not. The process should have
been carried out in two stages: (1) determining whether the power was available and
(2) determining whether it should be exercised; and not one stage, which had been the
approach of the SAC. A two-stage approach was consistent with the general scheme of
registration. The background was that the applicant had been providing a high quality and
well-regarded service for a long period of years which had proved popular with parents.
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[11] Turning to his proposition (2), Mr Lindsay reiterated what appeared in the
Application: the proposed appeal raised an important point of principle or practice in that it
related to the correct interpretation and application of a statutory provision which had not
been the subject of consideration by the Inner House. If the applicant was correct this would
have a significant impact on the respondent’s practice not only in relation to its regulation of
day care for children but also the other care services listed in section 47 of the 2010 Act.
[12] As for proposition (3) the SAC had been in error in refusing permission on the view
that a question of statutory interpretation “is not something which can be considered to be
novel”. The observation that:
“this is a fairly particular and quite rare case (it has been described as an oddity) and
that is because we do not know, nor has it been established, the basis on which
registration was originally achieved”
was irrelevant.
[13] I did not require Mr Lindsay to elaborate on his proposition (4). I was prepared to
accept, subject to anything said by Mr Logan, that cancellation of registration (the result of
refusing permission) would cause difficulty and inconvenience and that if that could be
avoided by granting a short period of grace it should be. As it turned out Mr Logan
presented no objection to what Mr Lindsay proposed.
[14] In making his submissions, Mr Logan adopted what was set out in the Answers to
the Application. The statutory test was a high one but his primary objection to Mr Lindsay’s
submission was that the proposed ground of appeal had no prospect of success. The idea
that registration, with its associated costs, should be maintained in respect of services which
were not registrable simply because it was “a good idea” to do so, was a startling one. The
applicant’s operations were attracting substantial amounts of public money on the basis of
their registration.
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[15] Agreeing with Mr Lindsay, I accept that the jurisdiction of the Court of Session to
grant permission or not arises de novo; it is not a question of reviewing the refusal by the
SAC on 23 July 2019. However, in exercise of that jurisdiction I shall refuse permission to
appeal the SAC’s decision of 31 May 2019 to the Court of Session. My reasons are as follows.
[16] I consider that Mr Logan was entitled to regard the proposition that the services
provided by the applicant should remain registered under chapter 3 of part 5 of the 2010 Act
even although they were not services that chapter 3 contemplated as being registrable was a
startling one. It may be that the applicant’s services are of a high standard and much valued
by those who receive them. It also may be that registration affords benefits, reputational
and otherwise, for the applicant. I do not see that as being relevant. The proposed ground
of appeal, that the respondent made a material error in law in not recognising that it had a
discretion not to cancel the registration of what are now accepted not to be care services and
therefore not exercising that discretion in a rational way has, in my opinion, no prospect of
success. I accept that section 64(4) of the 2010 Act is permissive in its terms rather than
mandatory; “may” means may. In that sense it can be said to confer a discretion but that is
rather different from saying, as I understood Mr Lindsay to say, that section 64(4) opens up
a “general discretion” requiring the respondent to consider all the circumstances which
might bear on a decision immediately to cancel or not to cancel the registration of a service
which has been found not to be a care service. Although it originally argued to the contrary,
the applicant now accepts that the respondent was entitled to conclude that the services
provided by the applicant did not constitute the “day care of children” as that expression fell
to be construed in terms of section 47(1)(l) of and schedule 12 to the 2010 Act, as modified by
the Scottish Ministers in terms of the Social Care and Social Work Improvement Scotland
(Excepted Services) Regulations 2012. The applicant further now accepts that the
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respondent accordingly had power to cancel the applicant’s registration by virtue of
section 64(4). The applicant does not now contend that the service it is providing is the “day
care of children”, or is otherwise such that it requires to or in terms of section 61 may be
registered. Rather, as appears from its proposed ground of appeal, it accepts that the service
it is providing is not “registrable”. Given these circumstances, while the power conferred by
section 64(4) is permissive or enabling in its nature, once it found that that the applicant was
not providing “day care of children” it became the respondent’s duty to exercise the
section 64(4) discretion by cancelling the applicant’s registration: cf Sheffield Corporation v
Luxford [1929] 2 KB 180 at 183. I agree with the opinion of the SAC at paragraph [39], taking
it to mean that section 64(4) does not create a discretion not to cancel a registration which is
found to be in respect of services which do not require to be registered and to which
section 61 does not apply. I see there to be no prospect of successfully arguing to the
contrary. For that reason I will refuse permission to appeal. Additionally, I would not
consider this appeal to “raise” an important point of principle or practice. What is in issue is
the interpretation and application of a statutory provision. The SAC has determined the
correct interpretation. As far as application is concerned, the existence and effect of a
discretion not to cancel a non-registrable service, was not a point raised in any of the
exchanges between parties prior to the respondent making its decision. It was not a point
put before the sheriff. It is therefore difficult to see that the supposed error in law was
material to the decision-making under review.
[17] As I have already indicated, Mr Logan had no objection to the applicant’s being
given a period of grace as asked for by Mr Lindsay. I accordingly agreed not to sign an
interlocutor refusing permission until four weeks had passed from the date of the hearing on
10 October 2019. The respondent is entitled to an award of its expenses from the applicant.