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Neutral Citation Number:	2011 UKUT 72 AAC
Reported Number:
File Number:	HC 2014 2010
Appellant:	Ofsted
Respondent:	AF
Judge/Commissioner:	Judge H. Levenson
Date Of Decision:	15/02/2011
Date Added:	07/03/2011
Main Category:	Care standards
Main Subcategory:	Registration of childcare providers
Secondary Category:	Tribunal procedure and practice (including UT)
Secondary Subcategory:	tribunal practice
Notes:	Reported as [2011] AACR 32. Tribunal practice and procedure – late appeal against cancellation of registration as childcare provider – review of decision to extend time for appeal The appellant was registered by OFSTED as a provider of childcare under the Childcare Act 2006. Following an incident in March 2009, criminal proceedings were started against her and OFSTED suspended and eventually, in August 2009, cancelled her registration. She did not appeal against that decision within the 28-day time limit specified in the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008. In October 2009 the Crown Prosecution Service decided not to continue with the criminal proceedings. In December 2009 the appellant applied for a waiver of the disqualification. OFSTED refused to consent to a waiver and she appealed against that decision to the First-tier Tribunal. In June 2010 she sought permission to appeal out of time under rule 5(3) of the Procedure Rules against the August 2009 cancellation decision. OFSTED objected to her application. The application was granted by a judge of the First-tier Tribunal on 20 July 2010 and OFSTED applied to vary or suspend that decision. On 27 July the First-tier Tribunal judge refused to vary or suspend but adjourned the substantive hearing. OFSTED then applied for permission to appeal to the Upper Tribunal. On 17 August 2010 the First-tier Tribunal judge refused permission to appeal but reviewed her decision and substituted a decision to the same effect but with more detailed reasons. The Upper Tribunal gave OFSTED permission to appeal and suspended the effect of the decision being challenged. The waiver appeal was adjourned pending the Upper Tribunal proceedings. OFSTED sought guidance from the Upper Tribunal on how that power should be exercised. Held, dismissing the appeal, that: 1. the power under rule 5(3)(a) was expressed in deliberately wide terms and the facts of each case varied enormously. The Rules already provided 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” and 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 (paragraph 21); 2. in making her decision of August 2010 the First-tier Tribunal judge was exercising the power under section 9(4)(b) of the Tribunals, Courts and Enforcement Act 2007 to amend on review the reasons given for the decision, which meant that the decisions of 20 and 27 July and 17 August 2010 must be read together and, although there was no right of appeal to the Upper Tribunal against the decision to carry out the review, the reasons given on 17 August 2010 became part of the First-tier Tribunal’s reasons for the decision that was under appeal to the Upper Tribunal (paragraph 24); 3. in the absence of specific provisions in statute or the regulations 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 and to the extent that it had been suggested otherwise in this case, the Chief Inspector was at risk of unlawfully fettering her discretion (paragraph 32); 4. subject to the inquisitorial and facilitative roles of the tribunal and in the absence of argument to the contrary, the approach adopted by the First-tier Tribunal and its predecessor appeared correct: that is that in an appeal against the cancellation of registration the burden of justifying the cancellation is on OFSTED, while in an appeal against a determination of OFSTED to withhold consent to a waiver of disqualification, the burden is on the appellant (paragraphs 35 to 37); 5. the First-tier Tribunal did not take into account matters that it should not have taken into account or fail to take account of matters of which it should have taken account and in the end gave lengthy and rational reasons for the decision to accept the cancellation appeal out of time and there was no basis for the Upper Tribunal to substitute its own judgment on the circumstances and facts of the case (paragraphs 40 and 41). The judge lifted the suspension of the effect of the First-tier Tribunal’s decision and directed that the outstanding appeals be listed for hearing.
Decision(s) to Download:	[2011] AACR 32ws.doc