First-tier Tribunal (Health Education and Social Care Chamber)

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URL: http://www.bailii.org/uk/cases/UKFTT/HESC/2009/175.html
Cite as: [2009] UKFTT 175 (HESC)

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Sass v General Social Care Council [2009] UKFTT 175 (HESC) (30 July 2009)
Costs
Awarded against either party

Bernd Sass

-v-

General Social Care Council

[2008] 1393.SW

[Decision on application for Costs]

-before-

His Honour Judge David Pearl

[Principal Judge, Care Standards]

The background to this application for costs by the Applicant can be found in the Decision of Deputy Principal Judge Simon Oliver dated 3^rd June 2009.

In summary, the Applicant was a student at the University of Brighton studying for an MSc in Social Work. He undertook a placement as part of his studies and during that placement, certain concerns were raised about his conduct. He attended a "Fitness to Practice" panel of the University on 28^th February 2008 where the allegations of misconduct were found proven. He was removed from the course.

He appealed this decision to the University Appeal Committee, and the Appeal Committee overturned the decision, he was reinstated, and the matter was remitted to a new panel so that there could be fresh consideration of all of the issues. A second panel reached a similar decision as the first, and in consequence he was again removed from the course.

This case concerns the decision of the Respondent to remove him from the Social Care Register (SCR). He was removed from the SCR on 18^th September 2008 although it would appear that he was not informed of this until a letter sent to him on 3^rd October 2008 "because he had been removed from an approved course."

He appealed this decision to the Care Standards Tribunal by way of an Appeal Form lodged on 20^th October 2008. The Respondent then applied to the Tribunal to strike out the case on the ground that "there is no reasonable prospect of the applicant's case, or part of it, succeeding." (Tribunal Procedure Rules 8(4)(c).

There then followed a hearing on 5^th March 2009 of the application to strike out before Deputy Principal Judge Simon Oliver. He dismissed the application to strike out. Mr Oliver said, at para 20 of his decision: "Whilst I accept that the GSCC cannot alter the decision of the University of Brighton, had the GSCC gone through the Conduct Committee process triggered by Rule 8(3) of the 2005 Rules or even the discretionary process under the 2008 Rules by having an investigation (or even a hearing), it is possible that the GSCC may have come to the conclusion NOT to remove Mr Sass from the Register."

Mr Oliver accordingly dismissed the application to strike out the case and directed that the case be listed for a directions hearing on the telephone to see what steps need to be taken to bring the case to a final hearing. The decision on the strike out was signed by Mr Oliver on 3^rd June 2009.

The Respondent's Solicitors then wrote to the Tribunal by letter dated 10^th June 2009 in which they invited the Tribunal to direct that the decision made by the GSCC on 18^th September 2008 shall have no effect, and to "dismiss the proceedings without a hearing".

By Order dated 30^th June 2009, Mr Oliver made the following Order: "I exercise the powers available to me under s 68(2) of the Care Standards Act 2000 and direct that the decision made on or about 18^th September 2008 to remove the applicant from the Social Care Register shall have no effect and that, therefore, he is restored to the Register."

Paragraph 4 of the Order dated 30^th June 2009 states that if the applicant has any application to make in respect of costs, he must inform the Tribunal within ten working days, and if he seeks an Order for Costs, he must address the issue of whether the Respondent has acted unreasonably in conducting these proceedings, and provide a Schedule of Costs incurred in respect of the proceedings.

Mr Oliver directed that if no reply is received in relation to costs within ten working days of 30^th June 2009, there shall be No Order as to Costs.

An Application for Costs, submitted by his representatives Celtic Knot, Solicitors and Social Workers, was received within the time scale, that the GSCC pay either (i) the Applicant's costs of the appeal; or in the alternative (ii) the Applicant's costs in defending the Respondent's application to strike out his appeal.

Rule 10(1) of the Tribunal Rules states that the Tribunal may make an order in respect of costs only – (b) if the Tribunal considers that a party or its representative has acted unreasonably in…defending or conducting the proceedings.

The Applicant submits that it is significant that the context is that the costs were incurred in defending an application brought by the Respondent in asserting that his own case had no reasonable prospect of success, and that, in consequence of failing to have the case struck out, the Respondent conceded the substantive appeal.

The Applicant draws attention to an alleged change of position of the Respondent as to which set of Rules (2005 or 2008) it had applied in this case. It would seem that after Mr Oliver's judgement was promulgated on 3^rd June 2009, there was an application by the Respondent to correct the judgement by the removal of references to confusion between the 2005 and the 2008 Rules. No correction was made by Mr Oliver.

The Applicant's submission for an Order for Costs is based on the following points:

(i) on two occasions, the Respondent amended its written submissions to correct errors in its legal argument. In failing to revisit its decision, and concentrating solely on revisiting its submission, the Respondent conducted itself unreasonably, causing the Applicant to incur unnecessary costs;

(ii) "obfuscation of changed position". It is submitted by the Applicant that the repetition of the course of action (namely changing its position) represents "an emerging pattern in the conduct of the proceedings that is culpable, that it represents a deliberate attempt to obfuscate, and that represents conduct making it appropriate to order costs against the Respondent".

(iii) It is submitted that the strike out application was misconceived and that GSCC acted unreasonably in making the application.

(iv) There is a submission based on the failure to submit the letter dated 20^th October 2008 until after the hearing.

Costs that are sought total £1717.35p, inclusive of costs of £523.25p incurred as professional charges invoiced by previous solicitors.

The GSCC responded to the application for costs in submissions dated 13^th July 2009. It submits that the Applicant has not demonstrated that the Council acted unreasonably in defending the appeal brought by the Applicant and by making an application to the Tribunal for the appeal to be struck out. It is said that the application to strike out the appeal was based on information available to it at the time it served its response to the appeal and the skeleton argument.

The Appeal Application Form was sent by the Tribunal to the Respondent on 12^th December 2008 and the Response from the Respondent was served on 14^th January 2009 with a subsequent skeleton argument served on 27^th January 2009. Both documents were served in response to the Appeal Application Form and the supporting documents lodged by the Applicant.

The Applicant acknowledges in paragraph 25 of his application for Costs that the original appeal "lacked much in terms of clarity of communication". The GSCC submits that neither the Appeal document nor the supporting documents revealed an arguable ground of appeal. Thus the GSCC submit that it was reasonable at the time for the GSCC to make an application under Rule 8.

The GSCC submits that it did not change its position as to which Rules were applied, that the letter submitted after the hearing was served for reasons of fairness, and that it made clear its position with regard to which Rules were applied.

The Applicant, through its representative, has submitted a Reply to the Response from the GSCC by way of submissions dated 16^th July 2009.

The Costs jurisdiction of the Tribunal is well settled. In particular, in AR v OFSTED [2006] 769.EA, it is stated that there is a presumption in favour of no costs. The burden is on the receiving party to satisfy the Tribunal to a high standard that the paying party has acted unreasonably in bringing or conducting proceedings. The new Tribunal Rules have not changed in any way the approach that is adopted by the Tribunal.

The starting point must therefore be the appeal application form and the supporting documents. I have looked at these with care. It is my finding that it was not unreasonable, on the basis of this application form and the supporting documents, for the GSCC to seek to strike out the application.

The strike out decision was promulgated on 3^rd June 2009, and the GSCC withdrew its opposition to the appeal application on 10^th June 2009.

The other submissions made by the Applicant may or may not have validity, but they go in my view only to the issue of whether or not the application to strike out should succeed (which it did), not whether or not the application was as unreasonable application. It is my finding that the submissions of the applicant are not relevant to the reasonableness of the decision taken by the GSCC to seek to strike out the application, to argue its case before Mr Oliver, to await Mr Oliver's decision on the strike out application, and then to decide to withdraw its opposition to the substantive appeal.

ACCORDINGLY:

NO ORDER AS TO COSTS.

His Honour Judge David Pearl

Principal Judge, Care Standards

30^th July 2009.