Upper Tribunal (Administrative Appeals Chamber)

Synergy Child Services Ltd v Ofsted [2009] UKUT 125 (AAC) (03 July 2009)
Tribunal procedure and practice
other

 


IN THE UPPER TRIBUNAL Appeal No. C/1458/2009

ADMINISTRATIVE APPEALS CHAMBER

Before: UPPER TRIBUNAL JUDGE ROWLAND

Decision: I allow this appeal against the decision of the First-tier Tribunal (Health Education and Social Care Chamber) dated 1 June 2009, whereby the Tribunal refused to reinstate the Appellant's appeals to the First-tier Tribunal. I reinstate those appeals.

I dismiss the application for permission to apply for judicial review of the decision of 1 June 2009.

REASONS FOR DECISION

1. The Appellant company was the registered provider of two children's homes. On 18 June 2007, Ofsted cancelled the company's registration in respect of each home and also cancelled the registration of two managers in respect of each home. The Appellant company and the managers appealed to what was then the care standards tribunal. That was over two years ago. On 3 November 2008, the functions of the care standards tribunal were transferred to the First-tier Tribunal. The delay in the proceedings was largely due to the ill health of Mr Stephen Hyland, the managing director of the Appellant company. On 14 April 2009, the Appellant company's appeals were struck out under rule 8(2) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (S.I. 2008/2699) because Mr Hyland had failed to comply with an order requiring him to provide certain medical evidence. The Appellant company made an application under rule 8(6) for the appeals to be reinstated but that application was dismissed on 1 June 2009.
2. Rule 8(2) and (6) provides –

"(2) The proceedings, or the appropriate part of them, will automatically be struck out if the applicant has failed to comply with a direction that stated that failure by the applicant to comply with the direction would lead to the striking out of the proceedings or that part of them."

"(6) If the proceedings, or part of them, have been struck out under paragraph (2) or (4)(a), the applicant may apply for the proceedings, or part of them, to be reinstated."

3. The Appellant company now appeals against the decision of 1 June 2009 with my permission, given on 19 June 2009. The parties have both co-operated with each other so as to enable this appeal to be determined today. The reason for this expedition is that the appeals by the former managers have been set down for hearing on Monday, 6 July 2009 for three weeks and it is common ground that, if the Appellant's appeals are reinstated, it is desirable that they be heard with the others. The parties have both stated that they wish this appeal to be determined on the papers. Although it would have been possible to have a hearing this afternoon, I am satisfied that it is appropriate to determine the appeal without a hearing.
4. When I granted permission to appeal, I drew attention to Secretary of State for Work and Pensions v Morina [2007] EWCA Civ 749; [2007] 1 WLR 3033 and raised the question whether the decision of 1 June 2006 was appealable. In case it was not, I directed that the application for permission to appeal be treated as an application for permission to apply for judicial review.
5. However, Mr Neil Grant of Bevan Brittan LLP, who represents Ofsted, has submitted that the decision of 1 June 2006 is appealable as a "decision" within the scope of section 11 of the Tribunals, Courts and Enforcement Act 2007 because it is a substantive decision that is not an "excluded decision" within section 11(5). I accept that submission. A decision to strike out a case brings proceedings to an end and a refusal to reinstate an automatically struck out decision is to be viewed in the same light. Morina may be distinguished on a number of grounds. It arose in the narrow context of social security legislation, there was no express power to exclude decisions from the scope of the relevant right of appeal and the strike-out cases considered by the Court of Appeal were cases that had been struck out on the grounds of lack of jurisdiction. As the appeal can be effective, it was unnecessary for me to treat the application for permission to appeal as an application for permission to apply for judicial review and I dismiss the judicial review proceedings.
6. The Appellant's primary ground of appeal is effectively that the order requiring Mr Hyland to disclose medical evidence should never have been made. The order arose out of a suggestion made by Ofsted by letter on 22 January 2009 that –

"… it would be appropriate for the Tribunal to direct Mr Hyland to provide disclosure of his GP records since 1 October 2008. We would also ask the Tribunal to direct that Mr Hyland obtain a report from his GP detailing his medical history from January 2008 down to the present. Further we would ask for a direction that Mr Hyland disclose the letter that will follow from his appointment with [a consultant cardiologist] on 2 February 2009.

Finally, in relation to Mr Hyland's health, we note that at exhibit (B4) to the Appellants' submissions, Mr Hyland states that he is awaiting news of a date for surgery that he requires. We should also be grateful for further information in this regard."

7. Following notice that a directions hearing had been set down for 31 March 2009, Ofsted wrote to the Tribunal on 6 March 2009, repeating its suggestion. On 16 March 2009, the Tribunal made the order sought, requiring the GP records, the details of the surgery Mr Hyland required, the report from the GP and the letter that would have been produced as a result of his appointment with the cardiologist to be produced to the Tribunal by 4pm on 23 March 2009. Mr Hyland did not comply with that order but sent an email objecting to the order on grounds that the Tribunal did not need the information he was required to disclose and that the order violated his rights to privacy. He did not attend the directions hearing, at which the judge indicated that he would make a further order, making it clear that the Appellant's case would be struck out if Mr Hyland did not comply with it. On 3 April 2009, the judge set out the terms of the order and his reasons for making it. Mr Hyland was given notice that if he did not comply with the order by noon on 14 April 2009, the Appellant's appeal would be struck out automatically. Mr Hyland still did not comply with the order. He set out his grounds of objection more fully but, nonetheless, the lack of compliance meant that the Appellant's case was struck out.
8. Strictly, if the consequence of non-compliance was to be that the appeal would be struck out, the order ought to have been directed towards the Appellant company rather than Mr Hyland. That point has not been taken by Mr Hyland and, in view of my conclusion on this appeal, it is unnecessary for me to consider whether, given Mr Hyland's role within the company, the error should be regarded as fatal to the striking out of the Appellant's cases. I will assume for the purpose of this appeal that it would not.
9. The Appellant's main objection to the order is that it was, in Mr Hyland's view, "oppressive and intrusive", particularly insofar as it required medical records and correspondence from consultants to be provided to a Tribunal that was not medically qualified and to other parties. It is suggested that adequate information could have been provided without those documents. I do not accept this submission. As Mr Grant points out in his helpful observations, anyone receiving the documents would have been bound to deal with them as confidential material and the documents were relevant and reasonably required. There is much in medical records that can properly be understood by laymen and, in any event, the records and correspondence were to be accompanied by a medical report that could have explained the significance of anything important but obscure. Moreover, the Tribunal could have obtained medical advice were that really necessary. The order was made when no detailed medical evidence had been forthcoming from Mr Hyland for a year and Ofsted and the Tribunal clearly were not satisfied that he was so ill as to be unable to take any part in the proceedings at all. It was necessary for the Tribunal to determine the state of Mr Hyland's health in order to decide whether the Appellant's cases should remain linked to those of the former managers, when they should be heard and, indeed, whether its cases should be struck out on the grounds that they had no prospects of success. The background to the request for medical records was that Ofsted understood – whether rightly or wrongly does not matter – that different information had been provided to the Tribunal and to a magistrates' court. The medical records would probably have revealed which of the accounts was true, if there really was any difference.
10. It may be arguable that adequate information about Mr Hyland's health could have been provided in a detailed report from Mr Hyland's general practitioner but it is noteworthy that, although Mr Hyland offered to provide sufficient information in an alternative form, he did not actually do so. Had he, the Tribunal might have been satisfied. However, reports from general practitioners can be extremely vague and the Tribunal was entitled to ask for background material.
11. The Appellant's other ground of appeal is that the order ceased to have any purpose once Mr Hyland and his wife, the Appellant's company secretary, indicated on 14 April 2009 that his wife would represent the company and no longer sought to delay the hearing of the appeals. Mr Grant argues that Mr Hyland's ability to take part in the proceedings remained relevant because he is clearly the guiding force of the Appellant company and it would be necessary for him to assist his wife in preparing the case and, moreover, he would be the key witness. Indeed, Mr Hyland is clearly involved in the appeals of the former managers. I accept these points made by the Respondent.
12. Nonetheless, the fact that the Appellant was no longer seeking to rely on Mr Hyland's health as a ground for delaying the proceedings was an important change of circumstances and it was specifically relied upon by the Appellant when it applied for the reinstatement of the appeals. In dismissing the application for reinstatement, the judge, who was not the judge who had made the original order, simply considered whether the order of 3 April 2009 had been justified and whether there had been a failure to comply with it. He did not allude to the change of circumstances but, curiously, described the application as "an attempt yet again to delay the hearing of the appeals brought by [the former managers]". That, I think was a misunderstanding of a point made by Mr and Mrs Hyland who, in saying that the Appellant's cases were inextricably linked to those of the managers, were merely explaining that Mr Hyland stepping down was the consequence of the Tribunal's decision that the managers' cases should not further be delayed and the Appellant's desire that its cases be heard at the same time. What was important, was that no further postponement was in fact being sought.
13. In my judgment, the Tribunal erred in law in not considering the change in circumstances. When considering whether an appeal should be reinstated under rule 8(6), a Tribunal should have regard to the broad justice of the case, in the light of all the circumstances obtaining at the time the application for reinstatement is being considered.
14. I do not mean to suggest that the Tribunal could not properly have refused to reinstate the Appellant's appeals in this case. Parties should not gain the impression that they may ignore directions made by the Tribunal with impunity. Where there has been flagrant disobedience by a party, belated compliance or a change of circumstances making compliance irrelevant will not always require a Tribunal to reinstate the appeal. However, a party is entitled to have such late compliance or change of circumstances taken into account and that did not happen here.
15. There having been an error of law, section 12(2) of the 2007 Act requires me to consider whether to set aside the decision of the First-tier Tribunal and, if so, whether to refer the case to that Tribunal for reconsideration or to "re-make" the decision myself. I consider that the failure to have regard to a plainly material and important consideration requires me to set the decision of the First-tier Tribunal aside. Neither party has suggested that I should refer the application for reinstatement back to the First-tier Tribunal and I consider it preferable to decide it myself, so that the parties know where they stand and the First-tier Tribunal may make a relatively clean start on Monday.
16. Although Mr Hyland clearly breached the "unless" order, the one mitigating factor is that he did at the time advance an argument for doing so and there was no oral hearing to consider the argument or at all, save the one where the orders were made, which Mr Hyland did not attend for reasons that have not been explored on this appeal. With some hesitation, I do not consider it right to determine this case against the Appellant solely on the basis of the deliberateness of Mr Hyland's breach.
17. I understand that the Appellant is no longer carrying on the two homes in issue and no longer has possession of the premises. Ofsted reserves its position on the question whether, in the light of Welsh Ministers v H [2008] EWHC 49 (Admin); [2008] 1 WLR 2097, the Appellant's cases before the First-tier Tribunal ought in any event to be struck out under rule 8(3)(c) on the ground that they have no prospects of success due to the lack of premises, an issue it raised earlier and which was not been resolved because the appeals were struck out on other grounds. I observe that the question whether Mr Hyland will ever be fit enough to take an active part in carrying on the homes might also be relevant given his position in the company. This is an issue that the First-tier Tribunal could have dealt with at the same time as considering reinstatement. The point has not been argued at this level and I consider that it would be unfair to take the view that there is no point in these cases continuing, although it will be open to Ofsted to revive that issue before the First-tier Tribunal. However, there are two sides to the argument that there is some point in the appeals being determined on their merits rather than being struck out. The Appellant may argue that it wishes to re-establish its reputation so that it may go back into business. On the other hand, there may also be a public interest in having the cases determined on their merits whether the appeals are successful or not. An adverse decision on the merits would be more likely to introduce an element of finality into Ofsted's dealings with the Appellant than a decision to strike the appeals out.
18. What seems to me to be most material is that Mr Hyland is already involved in the managers' appeals and, although the issues in the Appellant's cases would be slightly different, I suspect that reinstating them would not greatly lengthen the proceedings that there will be before the Tribunal in any event. Moreover, the question of Mr Hyland's health may not be irrelevant to the conduct of those appeals and the way of dealing with it in those cases could equally well be applied to the Appellant's cases. Mr Hyland should be under no illusion. While it is accepted by everyone that he has been seriously ill, it does not follow that it must be accepted that he is unable to play a proper part in tribunal proceedings should he claim that to be the position. If he fails to provide adequate medical evidence to the Tribunal in support of any claim that he has a continuing significant disability that, for instance, makes it impossible for him to give evidence, the Tribunal dealing with the managers' cases will be entitled to infer that he does not have such a disability and to act accordingly by, for instance, proceeding in his absence.
19. I have read Ofsted's letter to Mr and Mrs Hyland dated 25 June 2009. While I agree that case management is a matter for the First-tier Tribunal, I see a considerable amount of force in Ofsted's view that any reinstatement of the Appellants' appeals should not delay the managers' appeals, particularly having regard to the basis upon which Mr and Mrs Hyland have argued this appeal. However, if problems with Mr Hyland's health or any other reason were to require the postponement of the Appellant's appeals, the First-tier Tribunal would not necessarily be obliged to postpone the managers' appeals as well. Of course, if the appeals became separated there might be risk of some duplication of effort. That, however, could be taken into account in weighing the balance of convenience on a renewed application for the Appellant's appeals to be struck out under rule 8(3)(c). So too, might findings of fact in the managers' appeals and the judgment of the magistrates' court, which I understand is due to be handed down on 13 July 2009.
20. In all the circumstances of this case, having regard in particular to the desirability of there being a decision on the merits in the Appellant's cases coupled with the extent to which its cases are linked to those of the managers still before the First-tier Tribunal, I am satisfied that the Appellant's appeals before the First-tier Tribunal should be reinstated.

MARK ROWLAND

3 July 2009