Care Standards Tribunal, 2002-12-12 (Irene & Frank Hayward v National Assembly for Wales)
| Jurisdiction | United Kingdom |
| Registration Number | 2002/93/EY |
| Date | 12 December 2002 |
| Court | Care Standards Tribunal |
Published decisions of the CST
Irene and Frank Hayward v National Assembly of Wales
[2002] 93 &94.EY
Thursday 12th December 2002
Reviewed 11th February 2003
Maureen Roberts (Chairman)
Geraldine Matthison
Kenneth Coleman
DECISION
APPLICATION
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Irene and Frank Hayward (‘the Applicants’) appeal under the Children Act 1989 Section 79M against the decision of the Care Standards Inspectorate for Wales (‘ the Respondents’) made on the 6th August 2002 and communicated to the Applicants by a letter dated the 6th August 2002. The decision of the Inspectorate being to uphold a Notice of Intention to cancel registration issued on the 31st May 2002, canceling the Applicants registration as child minders.
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The Appellants requested the Tribunal, pursuant to Regulation 7 (1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, (the Regulations) to determine their application on the papers submitted to the Tribunal by the parties. Accordingly, we considered all the papers on 12th December 2002. We allowed the appeal.
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On the.21st January 2003 the Respondents requested that the Tribunal review its decision under Regulation 25 of the Regulations 2002 on the basis that there was an obvious error in the decision. The grounds were (a) that the Tribunal decided to make a determination without an oral hearing (b) that the Tribunal’s view of the appropriate discharge of the evidential burden was mistaken and (c) that the Tribunal had overlooked a significant piece of evidence.
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The Chairman took the view that the application for review should not be refused under Regulation 25(3), and set the matter down for consideration of the full Tribunal under Regulation 25(4). This consideration of the application for review took place at the Cardiff Civil Justice Centre on the 11th February 2003.
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The Respondents were represented by Mr Rhodri Williams of Counsel instructed by Mr Michael Lubienski, Counsel for the Respondents. The Appellants did not attend but had written to explain their position.
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Under Regulation 26(1), the Tribunal may, having reviewed all or part of a decision (a) set aside or vary the decision by certificate signed by the chairman …;and (b) substitute such other decision as it thinks fit or order a rehearing before the same or a differently constituted Tribunal
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We heard legal submissions by the Respondents and have varied our original decision, by way of a certificate attached to this revised decision.
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We note that the cancellation arises from an allegation of physical chastisement made by a child at the premises of the Applicants. The Applicants denied this allegation. There was therefore a material dispute on a matter of primary fact. It would have been more satisfactory to have had an oral hearing so that the Tribunal could have seen the witnesses and allowed the parties to test each others’ evidence through cross-examination and asked questions itself. We considered the Regulations on this point and conclude that where the Applicants have requested a paper hearing there is no power for the Tribunal to direct an oral hearing.
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On review the Respondents argued that the Tribunal was wrong to make a determination without an oral hearing based on the request of the Appellants. They argued that the Tribunal has a discretion under Regulation 7 (1) to order an oral hearing and that this is further strengthened by Regulation 16 which allows witnesses to be summonsed to give oral evidence.
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Regulation 22 provides that, ’The applicant has the right to give evidence at the hearing in person’. We were also directed to the remarks by Scott Baker J in Secretary of State for Health v C (2002) EWHC 1381 (Admin) about the difficulty of coming to a decision in a case such as this without the benefit of oral evidence. He said ‘Where there is, as in this case, such a stark dispute on the facts I regard it as extremely difficult verging on the impossible, for a Tribunal to resolve it on the papers’.
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At the hearing on 12th December 2002 we had read the draft of the President’s decision arising out of a directions hearing in B v Secretary of State for Health (2002) 51.PC on this point. [This decsiosn now appears on the CST website) In that case the Respondent argued that the Tribunal had the power to order an oral hearing. The Tribunal said ’We have no doubt that Mr Coppel (Counsel for the Respondent in the case) is correct when he submits that an oral hearing is the best way to deal with cases where there is a conflict of primary fact…. However the Tribunal is governed by the legislation that established it. [We interpose to state that in this case the governing legislation is the Children Act 1989 as amended by The Care Standards Act 2000 which conferred additional duties on the then Protection of Children Act Tribunal set up under s9 of The Protection of Children Act 1999] and the Regulations enacted as a result of the legislation (Protection of Children and Vulnerable Adults Regulations and Care Standards Tribunal Regulations 2002) . The Protection of Children Act 1999 s9 (3) states that Regulations may in particular include provision for ’the determination of appeals or issues…without a hearing in prescribed circumstances’. [The Regulations for hearing an appeal under s 79M of the 1989 Act are contained in Schedule 2 of the Regulations. Paragraph 5(1) of Schedule 2 states that ‘ As soon as the respondent has provided the information set out in paragraph 3, the Secretary must write to each party requesting that he send to the Secretary... the following information – (f) in the case of the applicant whether he wishes his case to be determined without a hearing].
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The Tribunal in B went on to say ‘ We would expect there to be an express provision in the Regulations stating clearly and categorically that the decision on whether there is to be an oral hearing or a paper appeal is a decision of the Tribunal rather than a decision of the applicant. In the case of the Directions, Regulation 6(1) states ‘ if either party has requested that there shall be a preliminary hearing, or if the President or the nominated chairman considers that a preliminary hearing is necessary…’ Paragraph 9 (2) (b) is to the same effect " the President or the nominated chairman may direct that there shall be a preliminary hearing in relation to any proposed variation or further direction if he considers it appropriate or if a preliminary hearing has been requested by either party". If the Regulations expressly provide for the Tribunal to decide on an oral preliminary hearing it is in our view not simply an oversight that the Regulations do not provide for the Tribunal to decide on whether there should be an oral hearing when the applicant has elected for a paper appeal. They do not provide for this circumstance, in our view because there is no such power.’
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We were reminded that we were not bound by this decision, and of the difficulty of deciding such issues without an oral hearing. It was also put to us that it would be unfair for the Appellant to have a power of veto over an oral hearing. However we agree with the view expressed in the decision in B and we do not accept that we have the power to order an oral hearing where the applicant has requested a paper appeal.
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On Review, we were directed to the Court of Appeal judgment in Secretary of State v C, [2003] EWCA Civ 10, given on the 22nd January 2003. This case concerned a man ‘C’ who was placed on the Consultancy Service Index (a list of persons considered unsuitable to work with children) after it was alleged by a young woman ‘S’ that C had raped her some 10 years previously when she was resident in a community home. It was also alleged that C had physically abused two of his step-children. The allegations were upheld by a disciplinary tribunal, which had summarily dismissed him. He had unsuccessfully claimed unfair dismissal. He was placed on the statutory list when the Protection of Children Act 1999 came into force.
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The hearing before the Protection of Children Act Tribunal was an oral hearing. The complainant ‘S’ did not give evidence and this was explained on medical grounds. The applicant C also did not evidence and he gave no explanation of this decision. The Tribunal upheld C’s appeal and directed that his name be removed from the list. The Secretary of State appealed. One of his grounds of appeal was the failure of the Tribunal to draw an inference from C’s non-attendance at the Tribunal. In the High Court, Scott Baker J said that ‘it was at first sight surprising that in the light of the Secretary of State’s submissions to the Tribunal as to C’s absence, the Tribunal neither sought an explanation nor drew any adverse inference’. But he concluded that it was a matter of fact for the Tribunal whether such inferences should be drawn".
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Latham LJ in the Court of Appeal said that in his view " the judge was wrong. The problem was that nowhere in the decision did the tribunal deal with the question of what if any inference it should have drawn from C’s absence and that of his witnesses. That absence was so surprising that it was an issue the tribunal needed to deal with expressly. Accordingly it had...
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