HC/2014/2010

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
ON AN APPEAL FROM THE FTT (HESC CHAMBER)  

Decision and Hearing 

1. This appeal by OFSTED does not succeed. 

2. I lift the suspension of the effect of the First-tier Tribunal decision that was directed by Upper Tribunal Judge Rowland on 25th August 2010. The matter is now to be referred to the President of the Health, Education and Social Care Chamber of the First-tier Tribunal to arrange for case management and listing directions to be made in relation to the outstanding appeals to that Chamber in this matter. 

3. I held an oral hearing of this appeal on 20th January 2011. OFSTED was represented by Ms Galina Ward of counsel, instructed by the Treasury Solicitor. The respondent did not attend and was not represented but I am satisfied that she had proper notification of the hearing and a proper opportunity to attend and/or be represented. By the term “OFSTED” I also refer to and include the Chief Inspector, who actually has the statutory responsibilities exercised by OFSTED.

Background

4. I set out the background as I understand it from the papers before me but I am not to be taken as making any findings of fact. The respondent is a woman to whom I shall refer as A. She holds a B.A. in Care & Education of Very Young Children and Professional Practice Studies from the University of Northumbria at Newcastle. She also has a number of sub-degree qualifications. On 4th February 2009 she was registered by OFSTED as a provider of childcare on non-domestic premises. The registration was subject to conditions relating to the number and ages of the children, that overnight care not be provided, and that care be provided in certain locations at a specific After School Club at a specific community centre in a particular major city.

5. It is alleged that at 7.49 pm on 21st March 2009 the police found five children, aged from three to eleven, distressed and without adult supervision, outside the front door of A’s home. The home was cold and without electricity, because there was no credit left on the electricity meter. Three of the children were A’s own and they were taken into care and placed with foster parents for a day or so. On 22nd March 2009 A and her husband were arrested and charged with child abandonment. A told the police that she, her husband, a friend and two other young children had left the house at about 10.00 in the morning to go the hairdresser, leaving the five children unsupervised. A thought that her husband would return straight home to the children after taking her to the hairdresser. I do not know where her husband went but at some stage he returned to the hairdresser and they went shopping. This meant that the children were left without an adult between the time that she left for the hairdresser and the time that the police discovered the children.

6. A did not report these incidents to OFSTED herself but on 25th March 2009 OFSTED was informed of what happened by the safeguarding unit of the City Council. Two days later OFSTED decided to suspend A’s registration as a childcare provider for six weeks (until 8th May 2009). On 8th May 2009 the suspension was extended for a further six weeks (until 19th June 2009). On 11th May 2009 there was a telephone conversation between A and OFSTED in which A stated that she had not received notice of the extension of the suspension and that she had moved house. OFSTED states that A had failed to inform it of the move and that this failure was a breach of A’s statutory obligations. As a result of meeting between OFSTED and A on 23rd July 2009 and subsequent telephone conversations, OFSTED took the view that A did not understand her obligations as a childcare provider.

7. On 28th August 2009 OFSTED sent to A notice of its decision to cancel her registration as a childcare provider, informing her of the 28 day time limit for appealing that decision to the First-tier Tribunal. A did not make any such appeal within the 28 day limit.

8. It appears that on 28th October 2009 the Crown Prosecution Service decided to offer no evidence in the criminal matter as it was not in the public interest to proceed. This is how A’s own solicitors put it. A takes the view that this means that she was acquitted, but I do not know what happened as a matter of formal legal procedure.

9. On 3rd December 2009 (on a form signed on 2nd November 2009) A applied to OFSTED for consent to a waiver of the disqualification from registration. I explain the significance of this below. On 1st February 2010 OFSTED refused to consent to such a waiver.  This was stated to be on the basis that that the decision to cancel registration was not subject to challenge and was correct. 

Tribunal Procedure

10. A did appeal to the First-tier Tribunal against this waiver decision. It seems that the appeal form was originally posted on 25th February 2010 and received by the First-tier Tribunal on 1st March 2010 but went astray and was finally recorded as having been received by the First-tier Tribunal on 9th April 2010. Confusingly (to me, at least) the relevant tribunal rules (which I set out in paragraph 20 below) refer to an “applicant” starting such proceedings before the First-tier Tribunal by sending an “application notice”. In other jurisdictions this would be referred to as an “appellant” sending an “appeal notice”. On 16th April 2010 Judge Meleri Tudor granted A’s application to extend time to 9th April 2010 “for making the application”. No complaint is made about that particular extension of time. In the proceedings before me this has been referred to as “the waiver appeal”.

11. There was correspondence between A and the Treasury Solicitor (acting on behalf of OFSTED) about there having been two separate appealable decisions (cancellation and waiver) and about time limits, Following this, on 24th June 2010 A sought permission to appeal out of time against the 28th August 2009 decision to cancel her registration. By then it was nearly nine months after the expiry of the time limit for appealing, but under its rules (set out below) the First-tier Tribunal has power to extend the time limit. In the proceedings before me this has been referred to as “the cancellation appeal”
12. OFSTED objected to the application to extend time on the grounds that it would be prejudiced because of the different burdens of proof in the two proceedings, the burden on it in the cancellation appeal would be increased by the time lapse, and it would widen the issues and therefore the amount of time and public expense.

13. The application was granted by Judge Nancy Hillier on 20th July 2010 on the grounds that it was “fair and just” to admit the cancellation appeal. She directed that the two appeals be heard together on 2nd August 2010. OFSTED requested a telephone case management hearing and this took place before Judge Hiller on 27th July 2010. During that hearing OFSTED applied to vary the decision of 20th July 2010 on the grounds that inadequate reasons had been given, alternatively to suspend the decision and/or an adjournment of the substantive hearing so that the decision could be appealed. Judge Hillier recorded that (paragraph 18):

“[A] struggled to understand the applications made … of which she said she had had no notice. Her spoken English is poor, although she does not require an interpreter. I broke the applications down into small chunks and she indicated that she understood.”

14. A opposed the applications and said that she had missed the 28 day deadline due to the criminal case pressure upon her, she had not known that she could apply for an extension of time until after she had lodged the waiver appeal, and that she wanted the hearing to take place before the start of the school term, which is when the childminding work would become available. OFSTED replied that the tribunal procedure had been clearly set out in the correspondence and that A could have contacted the tribunal at an earlier stage.

15. Judge Hillier took the view that she did not have power to “vary” her earlier decision; she declined to suspend it because there was as yet no application for permission to appeal against it to the Upper Tribunal; she did, however, adjourn the substantive hearing until 1st September 2010 and set a time-table for submission of additional evidence and other documents.

16. OFSTED applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal against the decision to admit the cancellation appeal out of time. OFSTED stood by its previous arguments and also urged that the principles applicable to applications for substantial extensions of time in this type of appeal be clarified. Judge Hillier considered this application on 17th August 2010. She held that her decision of 20th July 2010 had been made in error of law because inadequate reasons had been given but refused permission to appeal to the Upper Tribunal because it would be inappropriate and wrong in law for the discretion to admit appeals out of time to be fettered. Because of the lack of reasons she stated that she was reviewing the decision of 20th July 2010 and then confirmed the extension of time and gave detailed reasons for doing so, together with further timetabling directions.

17. I comment below (in paragraph 24) on the nature of the decision of 17th August 2010. Paragraphs 31 to 39 of the decision included the following by way of reasons:

31. [A] is not represented in this appeal. She had clearly hoped to persuade OFSTED to allow her to work as a childminder after the six week initial suspension … She had representation in the criminal proceedings and therefore channelled her energies into “clearing her name”. She is a woman of previously good character who was apparently overwhelmed by the process. She should not be judged in the same way as a businessman or highly qualified professional. She has difficulties with both written and spoken English and apparently has no-one to assist her access justice and a fair trial of the issues relevant to the cancellation of her registration.

32. It was clear from the appeal form relating to her waiver … that [A] did not understand which boxes to tick and that she was struggling with the appeal process. She thought that as she was out of time with the cancellation appeal that door was closed. When OFSTED and the Tribunal made it clear that she could apply for an extension of time she acted …

33. …  It is clear … that the unchallenged cancellation decision is one matter of several which were considered … unfortunately [OFSTED has] not expanded on the assertion that since the waiver decision was taken on the basis of an unchallenged earlier decision “it would not be equitable now to allow an appeal against the earlier decision”.

39. … I am satisfied that [A] was genuinely unaware that she could ask the Tribunal for an extension of time … [Her] intellectual ability is modest and is hampered by her understanding of written and spoken English. She had no legal advisor in respect of this appeal to explain in clear and unambiguous terms how she could apply for an extension of time. Having heard her oral explanation I am satisfied that she was overwhelmed during the criminal proceedings and despaired of having a hearing in relation to the cancellation decision. I do not judge her the way I would a highly educated or business-savvy individual. The delay must be considered in the light of her circumstances and her abilities. Access to justice is an important concept in today’s society and as a vulnerable individual with poor English comprehension, suffering trauma from criminal proceedings against a background of good character I find that [A] was denied a full understanding of procedure until she had time to consider the letter of 17 June [from the Treasury Solicitor]. … I do not conclude that OFSTED are prejudiced by the delay in this case. The tribunal is quite capable of hearing the cancellation appeal and the waiver appeal at the same hearing, and of applying the relevant test to the relevant evidence and appeal … One can envisage circumstances where delay could cause serious prejudice, for example if evidence had been destroyed or the inspector had died. In this case I have been provided with no evidence [of] prejudice …

18. On 23rd August 2010 OFSTED renewed to the Upper Tribunal itself the application for permission to appeal (stating that it was against the decision of 27th July 2010). The grounds were much the same as above. On 25th August 2010 Upper Tribunal Judge Rowland gave permission to appeal but suspended the effect of the decision being challenged and gave certain case management directions. On 8th October 2010 conduct of the matter was transferred to me and on 11th October 2010 I directed that there be an oral hearing of OFSTED’s application to the Upper Tribunal. Unfortunately, although I was available to take an oral hearing, it took a considerable amount of time to arrange for it to be listed. The hearing eventually took place on 20th January 2011.

19. Meanwhile, on 1st September 2010 the First-tier Tribunal (Judge Liz Goldthorpe and two specialist members) considered the waiver appeal, which Judge Rowland had declined to stay, and adjourned the hearing until after the Upper Tribunal decision in the appeal before me, with a view to hearing the cancellation and waiver appeals at the same time if OFSTED did not succeed before the Upper Tribunal.

Time limits and the First-tier Tribunal’s powers

20. So far as is relevant, the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 provide as follows:

	1(3) In these rules …

		“applicant” means a person who 
(a)	starts Tribunal proceedings, whether by making an application, an appeal, a claim or a reference.
(b)	…...

2(1) The overriding objective of these rules is to enable the Tribunal to deal with cases fairly and justly.

2(2) Dealing with a case fairly and justly includes – 
	…

(e) avoiding delay, so far as compatible with proper consideration of the issues”

2(3) The Tribunal must seek to give effect to the overriding objective when it –
(a)	exercises any power under these Rules; or
(b)	interprets any rule or practice direction.

5 (1) Subject to the provisions of the 2007 Act and any other enactment, the tribunal may regulates its own procedure

5(2) The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.

5(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may – 

(a) extend or shorten the time for complying with any rule, practice direction or direction, unless such extension or shortening would conflict with a provision of another enactment containing a time limit

…

20(1) … an applicant must start proceedings before the Tribunal by sending or delivering an application notice to the Tribunal so that it is received – 
(a)	
(b)	if a time for providing the application notice is specified in the Schedule to these Rules … within that time …

In relation to both the cancellation appeal and the waiver appeal, the Schedule specifies “28 days after written notice of the decision was sent to the applicant”.

21. OFSTED complains that in cases in which it is involved, the power under rule 5(3)(a) is, or might be, exercised inconsistently and seeks guidance from the Upper Tribunal on how that power should be exercised. However, the power is expressed in deliberately wide terms and the facts of each case vary enormously. The rules already provide that the power must be exercised fairly and justly and so as to avoid delay “so far as compatible with proper consideration of the issues”. Any further guidance by the Upper Tribunal would either be so general as to be meaningless or would be likely to spark time-consuming and unnecessary satellite litigation.

The Decision of 17th August 2010

22. The Tribunals, Courts and Enforcement Act 2007 section 9 empowers the First-tier Tribunal to review a decision made by it (other than an excluded decision). The detailed procedure in relation to appeals and reviews is governed by The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, but the relevant parts of section 9 of the Act also provide as follows:

9(1) The First-tier Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 11(1) …

9(4) Where the First-tier Tribunal has under subsection (1) reviewed a decision, the First-tier Tribunal may in the light of the review do any of the following – 
(a)	correct accidental errors in the decision or in a record of the decision;
(b)	amend reasons given for the decision
(c)	set the decision aside.

9(5) Where under subsection 4(c) the First-tier Tribunal sets a decision aside, the First-tier Tribunal must either –
(a)	re-decide the matter concerned, or
(b)	refer the matter to the Upper Tribunal. 

23. For present purposes an excluded decision is defined by section 11(5)(d) and is a decision by the First-tier Tribunal under section 9 of the Act:

(i)	to review, or not to review, an earlier decision of the tribunal,
(ii)	to take no action, or not to take any particular action, in the light of a review of an earlier decision by the tribunal,
(iii)	to set aside an earlier decision of the tribunal, or
(iv)	to refer, or not to refer a matter to the Upper Tribunal. 

24. Although on 17th August 2010 Judge Hillier reviewed the decision of 20th July 2010, she did not state that she was setting it aside. In fact she confirmed the effective part of the decision, to admit the cancellation appeal out of time. What it seems to me she did was to exercise the power under section 9(4)(b) to amend the reasons given for the decision (which was a decision that she herself had made – which makes the situation different from that in HM/2722/2010 and JR/2835/2010: see paragraph 21 of that decision). The significance for the present case is that this means that the three decisions, of 20th and 27th July and 17th August 2010 must be read together and although there is no right of appeal to the Upper Tribunal against the decision to carry out the review, the reasons given on 17th August 2010 become part of the First-tier Tribunal’s reasons for the decision that is under appeal to the Upper Tribunal.

Registration, disqualification, cancellation and waiver

25. I am grateful for Ms Ward’s explanation of these interlocking provisions. As the First-tier Tribunal pointed out on 1st September 2010 (paragraph 23 of its decision):

23. We have no doubt that if we find the apparent logic of the 2009 regulations somewhat difficult to comprehend, in the particular circumstances of this case [A] must feel she is trapped in a Catch 22 situation, a legal maze not of her own making …

26. The Childcare Act 2006 establishes an elaborate system of registration for those offering various kinds of childcare. Section 68(1) provides that the Chief Inspector must cancel the registration if a person has become disqualified from registration (which is nor relevant in the present case in respect of the decision of 28th August 2009 to cancel registration). Section 68(2) confers on the Chief Inspector discretion to cancel registration in various circumstances including non-satisfaction of prescribed requirements or non-compliance with a condition of registration. The power to cancel registration in the present case arose under section 68(2).

27. So far as is relevant section 75 of the 2006 Act provides as follows:

75(2) Regulations may provide for a person to be disqualified from registration.

75(3) The regulations may, in particular, provide for a person to be disqualified from registration if – 
	…
(f) he has at any time been refused registration … or had any such registration cancelled;

75(5) Regulations … may provide for a person not to be disqualified from registration … by reason of any fact which would otherwise cause him to be disqualified if – 
(a)	he has disclosed the fact to the Chief Inspector, and
(b)	the Chief Inspector has consented in writing to the person’s not being disqualified from registration and has not withdrawn his consent.

28. Section 76 creates criminal offences if a disqualified person carries out certain childcare activities (or if an employer employs them to do so). 

29. The relevant regulations are The Childcare (Disqualification) Regulations 2009. Regulation 4(2)(a) and Schedule 1 paragraph 19 provide that a person is disqualified from registration if registration has been cancelled. This disqualification does not require a specific disqualification decision but occurs automatically by operation of law as a consequence of cancellation of registration..

30. The relevant parts of regulation 10 provide:

10(1) … where a person … would be disqualified from registration … but has disclosed to the Chief Inspector the facts which would otherwise cause [him] to be disqualified, the Chief Inspector may give consent to waive the disqualification for all or any of [a list of specified] purposes.

10(2) When the Chief Inspector gives consent under paragraph (1) [the person] shall not, in respect of the facts so disclosed, be regarded as disqualified for the purposes specified in the Chief Inspector’s consent.

10(3) Any consent given by the Chief Inspector under paragraph (1) shall be in writing and shall specify the extent to which the disqualification from registration is waived.

31. I observe that registration may be subject to all sorts of conditions, waiver may be for all sorts of purposes. It cannot be assumed that allowing the waiver appeal would by itself remove disqualification. A person might be disqualified for some purposes (for example, because he has been refused registration to carry out certain activities), but not be disqualified for other purposes (because a waiver has been granted). Also, the granting of a waiver does not amount to reinstatement on the register (although Ms Ward tells me that in practice it is treated as an application for re-registration) – it just removes the disqualification. 

32. I set out in the following paragraphs the relevant rights of appeal. The cancellation appeal raises real issues that go beyond the waiver appeal and cannot be covered in the waiver appeal. The waiver appeal is not some back door method of re-opening the whole cancellation issue. It is only in this very narrow sense that the waiver process involves accepting the correctness of the cancellation decision. It seems to me that in the absence of specific provisions in statute or the regulations (and none were cited to me) OFSTED must consider on the facts of each case whether an applicant for a waiver is required to accept the facts behind the cancellation or the appropriateness of the cancellation decision, or whether there has been a change of circumstances. To the extent that it has been suggested otherwise in this case, the Chief Inspector is at risk of unlawfully fettering her discretion.

The Right of Appeal

33. So far as is relevant to this appeal, section 74 of the Childcare Act 2006 provides as follows:

74(1) An applicant for registration or (as the case may be) a registered person may appeal to the Tribunal against the taking of any of the following steps by the Chief Inspector under this Part [of this Act] – 
…
(d)	the cancellation of his registration

74(2) An applicant for registration or (as the case may be) a registered person may also appeal to the Tribunal against the taking of any of the following steps by the Chief Inspector under this Part [of this Act] which is of a prescribed description.

74(4) On an appeal the Tribunal must either – 
(a)	confirm the taking of the step, the making of the other determination or the making of the order (as the case may be), or
(b)	direct that it shall not have, or shall cease to have, effect.

75(5) Unless the Tribunal has confirmed the taking of a step mentioned in subsection … 1(e) … the Tribunal may also do either or both of the following – 
(a)	impose conditions on the registration of the person concerned;
(b)	vary or remove any condition previously imposed on the person.

34. Regulation 11 of The Childcare (Disqualification) Regulations 2009 provides as follows:

11. Any determination made by the Chief Inspector as to whether to give consent under regulation 10 [to waive the disqualification] is a prescribed determination for the purposes of section 74(2) of the [2006] Act.

35. The First-tier Tribunal (and the predecessor Care Standards Tribunal) take the approach that in an appeal against the cancellation of registration the burden of justifying the cancellation is on OFSTED (see eg T and T v OFSTED [2006] 0834 and 0835 EY, 31st August 2007). As I understand it, OFSTED accepts this and that, as Ms Ward put it, “OFSTED must prove any disputed factual issues relevant to the decision on the balance of probabilities and must persuade the [tribunal] that cancellation was an appropriate response”. 

36. However, in an appeal against a determination of OFSTED to withhold consent to a waiver of disqualification, the tribunal below has taken the view that the burden is on the appellant (see eg MM v OFSTED [2006] 846 EY and CF v OFSTED [2010] 1722 EY 29th May 2010).

37. Subject to the inquisitorial and facilitative roles of the tribunal, these approaches seem to me to be correct (although it must be said that I have not heard argument to the contrary). 
OFSTED’s arguments

38. Ms Ward argued that a principled approach to the extension of time is important, and she referred to statements in the Court of Appeal decision in Jurkowska v Hlmad Limited [2008] EWCA Civ 231. However, that was in a totally different context, being an appeal from the Employment Appeal Tribunal. The nature of employment dispute proceedings is much more adversarial, the structure of the proceedings is totally different, and the particular complications of the interplay between the two types of appeal that are involved in the present case did not arise in the case before the Court of Appeal. 

39. She argued that the delay in appealing would inevitably affect the recollections of those involved in the original decision, OFSTED would be particularly disadvantaged because of the burden on it, the procedural rules were not designed only for highly experienced or qualified professionals but also for those “with the typical level of education and qualification to be expected of a childminder”, a person who lacked knowledge about tribunal procedure is expected to make appropriate enquiries, and that the reason for delay must be sufficient to outweigh the prejudice caused by the delay, especially in the context of child protection.

Conclusions

40. I accept that the matters referred to in the previous paragraph are all relevant considerations. However, I do not accept that the First-tier Tribunal took into account matters that it should not have taken into account or failed to take account of matters of which it should have taken account. In the end, lengthy and rational reasons were given for the decision to accept the cancellation appeal out of time. I also observe that even if there is a burden on OFSTED in the cancellation appeal, much of the evidence is likely to be documentary (with further documents to aid personal recollections) and that in the context of child protection it might be more important to have a substantive decision on the merits of an appeal than to have the matter not aired because of a procedural device. As against this, to the extent that A might, for the purposes of the waiver appeal, challenge any findings involved in, or aspects of, the cancellation decision, she could be greatly disadvantaged by not having the cancellation appeal admitted and heard at the same time.

41. Ultimately these are questions of judgment of the facts and circumstances of each particular case, on which there is in the present case no basis for the Upper Tribunal to substitute its own for that of the First-tier Tribunal (see, for example, the decision of the Court of Appeal in Walbrook Trustee (Jersey) Ltd and Others v Fattal and Others [2008] EWCA Civ 427 at paragraph 33).

42. For these and all of the above reasons this appeal by OFSTED does not succeed.

H. Levenson
Judge of the Upper Tribunal 
15th February 2011