Walkes

-v-

H.M. Chief Inspector of Schools
(Ofsted)

[2003] 212.EY SUS

Before:
Mr John Reddish (Chairman)
Mrs Margaret Williams
Mr David Griffiths

Hearing date: 27th February 2004

Appeal and application

1.	On 19th August 2003 Mr Walkes appealed under regulation 8 of the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003 against the decision of Her Majesty’s Chief Inspector of Schools (Ofsted) to suspend his registration as a person providing day care.

2.	On 17th September 2003 Mr Walkes applied for an adjournment of the hearing of his appeal.  The Tribunal granted his application.

3.	On 14th October 2003, after hearing evidence and submissions, the Tribunal decided to confirm the decision of the Chief Inspector to suspend Mr Walkes’ registration.

4.	At the conclusion of the hearing on 14th October 2003, Counsel for the Respondent applied for a costs order in respect of the additional costs incurred by the Respondent as a result of the application for an adjournment on 17th September 2003 and Mr Walkes’ subsequent failure to take any of the steps that he said that he proposed to take if the adjournment were granted.

5.	The Tribunal felt that it was not appropriate to invite Mr Walkes to make representations or produce evidence in relation to the costs issue before he had had time for consideration.  Accordingly, the Tribunal was not in a position to determine the matter on 14th October 2003.

6.	The Tribunal decided to give further directions and to give Mr Walkes and the Chief Inspector the opportunity to make oral representations in relation to the costs issue if they wished to do so.

Representation

7.	At the hearing on 27th February 2004 Mr Walkes did not appear and was not represented.  Ms Siwan Griffiths (solicitor of Messrs Bevan Ashford) appeared on behalf of the Respondent.

Facts

The material facts found by the Tribunal are as follows:

8.	In December 1999 Mr Walkes and his wife opened “The Nursery” in Elmbourne Road, Tooting, London SW17 and began receiving children.

9.	During 2002 Ofsted received complaints about the Nursery.  They inspected the premises and discovered many matters that required attention.

10.	On 10th January 2003 Ofsted inspectors found that the children’s equipment was dirty and that there were several other potential hazards.

11.	On 20th February 2003 Mrs Walkes accused Mr David Hitching of Wandsworth Council’s Technical Services Department of “making her and her husband sick”.  In response to Mr Hitching’s inquiry as to why the bathroom floor at the Nursery had not been finished, Mrs Walkes said that she had been ill and that her husband had “other things to do” in connection with a member of his wider family who was terminally ill.

12.	On 19th May 2003 Mr Walkes told the inspectors that he was closing the Nursery in 2 weeks and therefore did not need an inspection.

13.	On entering the premises on 19th May 2003, the inspectors found that there was one member of staff present with 5 children under the age of 5 years.  When Mr Walkes explained to his wife that the inspectors were concerned that there was a risk of harm to the children on the premises, Mrs Walkes collapsed and fell to the floor, breathing heavily and calling out.  Mr Walkes later explained that his wife had suffered an asthma attack.  The senior inspector, Ms Harris asked Mr Walkes whether he would agree to “suspending the provision in order to put things right”.  She explained that, since April 2003, Ofsted had had the power to suspend a provision but that if he agreed to a voluntary suspension, it would not be necessary for her to invoke that power.  Mr Walkes agreed to a voluntary suspension and signed an agreement to that effect. 

14.	On 20th June 2003 the Respondent received notification from a parent of twins that her children had been attending the Nursery from 2nd June 2003 but that she had found the premises closed on 20th June 2003.

15.	On 24th June 2003 the Chief Inspector suspended the registration of Mr Walkes as a person providing day care.  On the same day, when inspectors visited the Nursery to serve the Notice of Suspension upon Mr Walkes, they found that the premises were closed.

16.	On 24th June 2003 Mr Walkes asserted that “the Officer-in-Charge” of the Nursery had gone “on long term sick-leave” and that he had not provided care for any children, except his own, since May 2003.

17.	On 3rd July 2003 Mr Walkes appealed to the Tribunal.

18.	On 8th July 2003 inspectors visited the Nursery.  No one was present.  The inspectors were able to see that necessary work to make the outside area safe had not been completed.

19.	At the hearing of his appeal on 25th July 2003 Mr Walkes stated that, having reached agreement with the Respondent as to the date of a further inspection, he no longer wished to pursue the proceedings.  In accordance with regulation 33(1) of the 2002 Regulations, the Tribunal dismissed the proceedings.

20.	During their further inspection of the premises on 1st August 2003 the inspectors found several potential hazards to children, including the presence of blood testing equipment within the reach of children.  Mr Walkes explained that this equipment was used by his wife in connection with her diabetes.  Mr Walkes later confirmed, both in writing and orally at the hearing, that his wife is diabetic.  

21.	On 1st August 2003 the inspectors formed the view that Mr Walkes had no “understanding of health and safety” and that therefore children would be at risk of harm if they attended the Nursery.  Accordingly, on 5th August 2003 the Respondent issued a further Notice of Suspension citing the potential problems with the health and qualifications of the staff and the many and various environmental hazards noted by the inspectors as the bases for the Chief Inspector’s belief that the continued provision of day care by Mr Walkes would or might expose one or more children to the risk of harm.

22.	On 17th September 2003 the Tribunal granted the adjournment requested by Mr Walkes since it was satisfied that refusing the adjournment would prevent the just disposal of the case.  The Tribunal also gave directions for the filing of further evidence by Mr Walkes, not later than 4 p.m. on 7th October 2003 and for a further inspection of the Nursery on 8th October 2003, in the event that Mr Walkes sought to rely upon improvements to the premises.  Counsel for the Respondent gave notice that, in due course, she would make an application for an order that Mr Walkes should pay the costs “thrown away”.

23.	Mr Walkes failed to file any further evidence by 4 p.m. on 7th October 2003.  On 8th October 2003 the Chairman made an “unless order”, pursuant to regulation 10 of the 2002 Regulations, to the effect that unless Mr Walkes filed his evidence by 4 p.m. on 10th October 2003, the case might be determined in favour of the Respondent without more.

24.	On 8th October 2003 inspectors noted that the premises in Elmbourne Road were dirty and dusty and that many of the hazards previously seen were still present.  They concluded that, although Mr Walkes had attempted to clear some of the hazards both inside and outside the Nursery, others remained which would place children at risk of harm.

25.	On 10th October 2003 the inspectors visited the Nursery again, at Mr Walkes’ request.  They found that Mr Walkes had attended to all of the environmental hazards and that the premises were clean and tidy both inside and outside.

26.	On 10th October Mr Walkes delivered to the Tribunal a videotape recording of part of the inspection conducted earlier that day but submitted no further written or photographic evidence.

27.	At the hearing on 14th October 2003 Mr Walkes said that he intended, if and when he re-opened the Nursery, to employ his wife as the manager.  She had, he said, had diabetes since she was a child but her condition was “well controlled”.  She had also suffered from asthma for several years but did not have regular or frequent attacks.  Mr Walkes also said that he intended to make use of agency staff or trainees from the Job Centre as required but could not afford to employ additional staff until he had enough children in the Nursery to make that necessary and appropriate.

28.	The Tribunal delivered its written decision on 27th October 2003.  It decided to dismiss Mr Walkes’ appeal because the conditions for suspension of his registration were fully met on 5th August 2003 and the conditions for suspension were still met at the date of the hearing.

29.	On the issue of costs, the Tribunal came to the following provisional conclusions, subject to any further evidence and/or representations that might be adduced and/or made:
(a)	Mr Walkes could not be said to have acted unreasonably in bringing the proceedings since there was a reasonable prospect that, if he took the steps necessary to deal with the problems identified by the inspectors, the Tribunal would be satisfied that the conditions for suspension were no longer met and would direct that the suspension should cease to have effect;
(b)	Mr Walkes did not act unreasonably by seeking an adjournment of the hearing on 17th September 2003 because his case was not ready for hearing on that date and, until the procedure and other matters were explained to him, he mistakenly but genuinely believed that he would be able successfully to challenge the decision to suspend his registration by reference to the alleged breach of an alleged agreement with the inspectors as to the extent of the matters to be covered by their inspection;
(c)	having regard to the novelty of the procedures (the relevant Regulations having only come into force on 1st April 2003) Mr Walkes’ failure to appreciate how he should proceed, while not being justifiable, was understandable;
(d)	Mr Walkes did act unreasonably in conducting the proceedings after the adjournment was granted on 17th September 2003 because, despite his expressed wish to seek “other legal advice”, he did not consult other solicitors; he failed to take any or any proper steps to deal with the issues raised by his appeal until after the Chairman made an “unless order” and, despite all of the considerable efforts made by Ofsted to assist him to comply with their requirements relating to proof of his wife’s physical suitability to act as manager of the Nursery, he failed to present the necessary certificate to her General Practitioner until 13th October;
(e)	Mr Walkes had adopted a policy of non-cooperation, obstruction and prevarication and had, irrationally and unreasonably, sought to attribute blame for all of his perceived misfortunes to the inspectors and their allegedly oppressive behaviour.

30.	The Respondent, as the “receiving party”, provided the Tribunal with a schedule of costs incurred by him in respect of the proceedings in anticipation of an invitation to do so pursuant to regulation 24(2)(a) of the 2002 Regulations.  This showed that the Respondent had spent £13,313.93 (including VAT) in dealing with the appeal and attending the hearings.  A full breakdown of that figure was set out in the schedule.

31.	The Tribunal directed Mr Walkes to send the Tribunal, to arrive within 10 working days of the date of the receipt by him of the written decision of the Tribunal, any representations he might wish to make in writing as to why an order requiring him to make a payment to the Respondent to cover costs incurred by him in respect of the proceedings should not be made or as to the sum that he should be ordered to pay.

32.	The Tribunal also directed Mr Walkes to send to the Tribunal, within the same time, any representations he might wish to make in writing as to whether he was able to comply with a costs order and to provide the Tribunal with any written information in relation to that issue upon which he intended to rely.

33.	Following the dismissal of Mr Walkes’ appeal against the suspension of his registration, the Chief Inspector gave him notice, under section 79L of the Children Act 1989, of his intention to cancel his registration.  Thereafter the Chief Inspector cancelled Mr Walkes’ registration.

34.	On 12th November 2003 Messrs Bevan Ashford submitted, on behalf of the Respondent, a written application for costs and a further schedule showing that the amount of the “wasted legal costs” was £3,834.61 (including VAT).

35.	Mr Walkes did not send to the Tribunal any representations in writing as to why an order requiring him to make a payment to the Respondent should not be made nor did he send to the Tribunal any representations in writing as to whether he was able to comply with a costs order.

36.	However, on 23rd December 2003 Mr Walkes’ wrote to the Tribunal indicating his wish to appeal against the cancellation of his registration.  He also said that he was about to have his house repossessed and was not in a position to deal with the proposed appeal for 3 months.  Mr Walkes enclosed with his letter a Notice from the Croydon County Court that a warrant for possession of his property at 8 Darcy Avenue, Wallington had been issued by the Court and that he would be evicted by the bailiff on 9th January 2004.  In a postscript to his letter, Mr Walkes said that he was “very upset”.

37.	At the hearing, Ms Griffiths presented a supplemental schedule of costs detailing the amounts expended by the Respondent from 12th November 2003, in the total sum of £803.70.

The law

38.	An application for a costs order is governed by regulation 24 of the 2002 Regulations.  This regulation provides that, if in the opinion of the Tribunal a party has acted unreasonably in bringing or conducting the proceedings, it may make an order (a ‘costs order’) requiring that party (‘the paying party’) to make a payment to the other party (‘the receiving party’) to cover costs incurred by the receiving party.

39.	Regulation 24 creates a presumption in favour of no order for costs.  Costs orders do not simply “follow the event”.

40.	Regulation 24(2) provides that, before making a costs order against a party, the Tribunal must invite the receiving party to provide a schedule of costs incurred by him and must invite representations from the paying party and consider any representations he makes; consider whether he is able to comply with a costs order and consider any relevant written information which he has provided.

41.	Regulation 24(3) provides that, when making a costs order, the Tribunal must (a) either order the payment of any sum which the parties have agreed should be paid or (b) order the payment of any sum which it considers appropriate having considered any representations made by the parties or (c) order the payment of the whole or part of the costs incurred by the receiving party in connection with the proceedings as assessed.

Issues

42.	It was argued on behalf of the Respondent that:
(a)	Mr Walkes acted unreasonably in conducting the proceedings after 17th September 2003;
(b)	he was familiar with the procedure because of the earlier proceedings but had avoided addressing the issues;
(c)	the Respondent had incurred additional costs in the total sum of £4,563.41 (the amount shown in the schedules less the cost of preparing a note of the hearing on 17th September 2003) as a result of Mr Walkes’ complete failure to deal with the matter properly or to maintain contact with the Respondent;
(d)	there were some indications that Mr Walkes was able to comply with a costs order; and
(e)	the Tribunal should therefore make a costs order in the sum which it considered appropriate.

Conclusions and reasons

43.	The Tribunal decided not to make a costs order against Mr Walkes.

44.	The Respondent accepted the Tribunal’s provisional conclusions set out in paragraph 29 above.  In the absence of any further evidence or representations from Mr Walkes, the Tribunal confirmed its provisional conclusion that he did act unreasonably in conducting the proceedings after the adjournment was granted on 17th September 2003.

45.	 The effect of regulation 24(2) is that, if the Tribunal considers that the paying party would not be able to comply with a costs order, it should not, in the exercise of its discretion, make such an order.

46.	Accordingly, the only issue in the case was whether Mr Walkes would be able to comply with a costs order.

47.	In most cases, if a paying party chooses not to make any representations as to whether he is able to comply with a costs order, the Tribunal will infer that he has the means to make any reasonable payment that it might order.  However, in this case the Tribunal was unable to draw that inference.  Throughout the proceedings, Mr Walkes persistently failed to comply with directions of the Tribunal, the terms of agreements made with the Respondent and reasonable requests made by the Respondent when it would clearly have been in his interests to do so.  The Tribunal was driven to the conclusion that Mr Walkes’ failure to make any representations as to his financial position was simply another example of his failure to deal with straightforward administrative matters, contrary to his own interests.

48.	Ms Griffiths, on behalf of the Respondent, was unable to give the Tribunal any information about Mr Walkes’ ability to pay, save that she drew attention to the fact that he engaged, and presumably paid, a firm of solicitors to act on his behalf in August 2003 and eventually, in October 2003, undertook remedial work at the premises in Elmbourne Road.  The Tribunal was unable to draw any definite conclusions from this expenditure.  It may simply have increased Mr Walkes’ indebtedness.

49.	The Tribunal took the view that, in the absence of any representations from Mr Walkes as to his ability to pay, it was entitled, if not obliged, to take into account information that emerged during the hearing of the appeal and from Mr Walkes’ other correspondence with the Secretariat.

50.	From such information it was possible to deduce that:
(a)	from 2002 (if not before) until the final closure of the business in June 2003, the Nursery had only a small number of clients and was probably not a profitable enterprise;
(b)	in February 2003 Mr Walkes was beset with many problems including those that arose from serious illness within his wider family;
(c)	during 2003 Mr Walkes was unable to pay for remedial work to be done at the Nursery or to pay for the additional staff required properly to supervise the children on the premises;
(d)	Mr Walkes has substantial financial commitments to his wife and his 4 young children;
(e)	Mrs Walkes is in poor health and unable to make any or any substantial contribution to the family finances;
(f)	since June 2003 Mr Walkes has not had any remunerative employment;
(g)	in 2003 Mr Walkes failed to pay the instalments due under the mortgage of his home or, alternatively, failed to pay his rent (it being unclear from the document sent to the Tribunal on 23rd December 2003 whether the Claimant said to be entitled to possession of the property in Darcy Avenue, Wallington was the mortgagee or the landlord);
(h)	in January 2004 Mr and Mrs Walkes and their children were evicted from their home; and
(i)	Mr Walkes financial affairs are in disarray and he is, as he indicated in his letter of 23rd December 2003, endeavouring to “put his life back together”.

51.	Assuming that Mr and Mrs Walkes are (or were) the beneficial owners of 8 Darcy Avenue, Wallington and were not merely tenants of the property, it does not automatically follow that repossession of this home would leave Mr Walkes without the ability to pay a costs order.  There may be a substantial sum due to Mr and Mrs Walkes following the sale of their property by the mortgagee in possession and the discharge of the mortgage loan, the arrears and the incidental costs.  However, Mr and Mrs Walkes would need to use any balance due to them (and more) to acquire suitable alternative accommodation for themselves and their children.

52.	The Tribunal was driven to the conclusion that Mr Walkes would probably not be able to comply with a costs order.
 
53.	The decision of the Tribunal was unanimous.

Order

There shall be no costs order.

Signed:

	John Reddish
(Chairman)
Margaret Williams
David Griffiths				2nd March 2004