AC v OFSTED (Costs)
[2003] 247.EYSUS

CERTIFICATE ISSUED PURSUANT TO REGULATION 29(3)

On reading the letter from the Respondent dated 24th February 2004, and further to the Directions from the Nominated Chairman dated 18th February 2004, I hereby amend the clerical mistake in paragraph 7 as follows:

The word Respondent is replaced by the word Appellant.

REVIEW UNDER REGULATION 25(1)(c)

In accordance with paragraph 5 of the Directions dated 5th May 2004 by Mr A Wadling, the nominated Chairman, paragraph 9 of the Decision is amended by inserting the following sentence between the fourth and fifth sentences of that paragraph: “However, there must be something found to be unreasonable in the bringing or conduct of the proceedings themselves before an order can be made.”

A new determination accompanies this Certificate and Result of the Review.

His Honour Judge David Pearl
President
17th May 2004.

AC v OFSTED (Costs)
[2003] 0247.EY SUS

Heard on 16 February 2004

Mr Anthony Wadling (Chairman)
Ms Janice Funnell
Mr Christopher Wakefield

DECISION
1.	This is an application by the Appellant for a Costs Order under Regulation 24 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 on the basis that OFSTED had acted unreasonably in bringing and conducting the proceedings within the meaning of the Regulation.

2.	At the hearing, the Appellant was represented by Mr Paul Spencer of counsel instructed by DLA and the Respondent by Miss Susan Freeborn of counsel instructed by Borneo Linells.

3.	In reaching our decision, we had regard to the oral submissions by the parties, a letter dated 23 January 2004 from DLA and additional written submissions from both parties.

4.	On 10 January 2004 we allowed an appeal against decisions dated 3 and 6 December 2003 of OFSTED under regulation 3 of the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003 to suspend and to refuse to lift the suspension of the registration of the Appellant as a child minder.  The history of this matter is set out in our decision of 10 January 2004.  

5.	The facts and matters relied upon by the Appellant in support of this application did not arise during the currency of the appeal process itself but from the circumstances of the initial decision by OFSTED to suspend AC and thereafter to continue that suspension.

6.	The first limb of the Appellant’s case was that the decisions to suspend and to continue the suspension amounted to bringing the proceedings within the meaning of Regulation 24(1).  It was argued that on the evidence put before the Tribunal in the substantive appeal as to the circumstances in which OFSTED took the decisions to suspend the Appellant, we should find that it acted unreasonably in bringing the proceedings.

7.	The Appellant did not rely on any authority in support of the above submission as to the meaning of “bringing the proceedings”.  Such a construction is in our view wholly inconsistent with the literal meaning of the words themselves, the wording of the primary legislation and the regulations, and we reject it.

8.	The second limb of the Appellant’s case was that in seeking to sustain OFSTED’s decision at the hearing of the appeal, the Respondent therefore acted unreasonably in conducting the proceedings.

9.	During the course of argument we were referred to the decision in Fun Camps Ltd v OFSTED [2003] 124.EY.  When reaching our conclusions we had regard to what was said in this case.  In particular, we agree that the burden of proof rests with the party making the application and that the standard of proof to be satisfied is a high one.  We also accept that conduct as a whole must be looked at including matters prior to the commencement of the proceedings. However, there must be something found to be unreasonable in the bringing or conduct of the proceedings themselves before an order can be made. In this context we considered the response of OFSTED to the Appellant’s stated intention to appeal but were not satisfied to the applicable standard that it had acted unreasonably in maintaining its previous stance.

10.	The substance of the Appellant’s case was to the effect that in our decision on the appeal, we made a number of criticisms of the conduct of OFSTED.  The Appellant relied upon these matters as evidence of the unreasonableness of the decision to resist the appeal.  However, given that the subject matter of the appeal concerned the welfare and safety of children and on the facts as found and recorded in our decision, the Respondent has not satisfied us to the required high standard that OFSTED acted unreasonably in contesting the hearing.

11.	11.Accordingly, it is our unanimous decision to refuse the application and there will be no Order as to costs.

	Signed by the chairman on this 18th day of February 2004