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Scottish Sheriff Court Decisions |
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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Davies & Anor v. The Scottish Commission For The Regulation Of Care [2011] ScotSC 22 (9 May 2011) URL: http://www.bailii.org/scot/cases/ScotSC/2011/22.html Cite as: [2011] ScotSC 22 |
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SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN
B591/08
JUDGEMENT
of
SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
in the cause
(1) MRS SHEILA DAVIES, and (2) MRS MAUREEN MOWAT
Pursuers and Appellants
against
THE SCOTTISH COMMISSION FOR THE REGULATION OF CARE
Defenders and Respondents
|
Act: Mr D J T Logan, advocate, instructed by Bruce MacDonald & Co, Aberdeen
Alt: Mr Scott Blair, advocate, instructed by the Scottish Commission for the Regulation of Care
Aberdeen: 9 May 2011
The sheriff principal, having resumed consideration of the cause, finds and declares (1) that the Scottish Commission for the Regulation of Care ("the Commission") no longer exists, having been dissolved in terms of section 52 of the Public Services Reform (Scotland) Act 2010 ("the 2010 Act") which came into force, insofar as it was not already commenced, on 1 April 2011, (2) that the body known as Social Care and Social Work Improvement Scotland ("SCSWIS"), which was established in terms of section 44(1) of the 2010 Act, has no title or interest to enter the current proceedings and (3) that the decision of the Commission, which was intimated to the pursuers and appellants in a letter dated 18 August 2008, to implement its proposal to cancel the registration under Part 1 of the Regulation of Care (Scotland) Act 2001 ("the 2001 Act") of the All Stars Nursery, 95 Don Street, Aberdeen, AB24 2SA is now a nullity; therefore in terms of section 20(2) of the 2001 Act directs that this decision shall not have effect and further removes the condition imposed by the Commission on 21 March 2007 in terms of section 13 of the 2001 Act whereby the first named pursuer, Mrs Sheila Davies, is not to have contact with, or access to, children enrolled or enrolling at the All Stars Nursery; quoad ultra appoints a hearing on expenses to take place at Aberdeen Sheriff Court on 18 May 2011 at 3.00 pm.
Note
[1] In this case the pursuers and appellants are partners who operate the business known as the All Stars Nursery, 95 Don Street, Aberdeen, AB24 2SA. I shall have more to say later on in this note about the exact status of the defenders and respondents, but when the summary application which is the subject of this appeal was submitted to the court they were the Scottish Commission for the Regulation of Care (hereinafter referred to as "the Commission") constituted as a body corporate in terms of section 1(1) of the Regulation of Care (Scotland) Act 2001 ("the 2001 Act"). In their capacity as providers of a care service as defined in section 2(1) of the 2001 Act the pursuers were required to make an application to the Commission for registration of their nursery in terms of section 7 of the 2001 Act and the application was duly granted in terms of section 9 subject to certain conditions.
[2] The 2001 Act contained some
fairly elaborate procedures for the cancellation of a registration. These are
set out in sections 10 to 20, all of which, together with the preceding
sections 1 to 9 and the succeeding sections 21 to 32, are included in Part 1 of
the 2001 Act. For present purposes the important sections are those numbered
10, 11, 12, 15, 16, 17, 18 and 20, the relevant parts of which provided:
(1) The Commission may at any time give notice (in this Act referred to as an "improvement notice") to the person for the time being providing a service registered under this Act that, unless within such reasonable period as may be specified in the notice, there is a significant improvement, of such nature as may be so specified, in the provision of that service, it intends-
(a) ................ to make a proposal under section 12 of this Act.
....................
(3) This section is without prejudice to section 18 of this Act.
(1) The Commission may, at any time after the expiry of the period specified in an improvement notice given in respect of a care service, propose to cancel the registration, under this Part, of a care service-
(a) on the ground that any person has been convicted of a relevant offence in relation to the service;
(b) on the ground that the service is being, or has at any time been, carried on other than in accordance with the relevant requirements; or
(c) on any other ground which may be prescribed.
..............................
(3) This section is without prejudice to section 18 of this Act.
........................
(2) Except where it makes an application under section 18(1) of this Act, the Commission shall give any person who provides a service registered under this Part notice of a proposal to cancel the registration ................
.........................
(4) A notice under this section shall give the Commission's reasons for its proposal.
(1) A ............ notice under section 15 of this Act shall state that, within fourteen days after service of the notice, the person to whom it is given may make written representations to the Commission concerning any matter which that person wishes to dispute.
(2) Where such a notice has been given, the Commission shall do the thing proposed only after (whichever first occurs)-
(a) the person to whom the notice was given makes such representations as are mentioned in subsection (1) above;
(b) that person notifies the Commission in writing that such representations will not be made; or
(c) the period of fourteen days so mentioned elapses.
.........................
....................
(3) If the Commission decides to implement a proposal in relation to which it has given a person .............. a notice under section 15 of this Act, it shall give that person notice of the decision.
(4) A notice under subsection (3) above shall-
(a) explain the right of appeal conferred by section 20 of this Act; and
(b) ....................
(5) Subject to subsection (6) below, a decision to implement a proposal .............. of which notice has been given under subsection ..... (2) of the said section 15 shall not take effect-
(a) if no appeal is brought, until the period of fourteen days referred to in section 20(1) of this Act has elapsed; and
(b) if an appeal is brought, until that appeal is finally determined or is abandoned.
...............................
(1) The Commission may make summary application to the sheriff for an order-
(a) cancelling the registration under this Part of a care service;
(b) varying or removing any condition for the time being in force in relation to the registration; or
(c) imposing an additional condition in relation to the registration,
and if it appears to the sheriff that, unless the order is made, there will be a serious risk to some other person's life, health or well-being the application may be granted.
...................
(1) A person given notice under section 17(3) of this Act of a decision to implement a proposal may, within fourteen days after that notice is given, appeal to the sheriff against the decision.
(2) The sheriff may, on appeal under subsection (1) above, confirm the decision or direct that it shall not have effect; and where the registration is not to be cancelled may (either or both)-
(a) vary or remove any condition for the time being in force in relation to the registration;
(b) impose an additional condition in relation to the registration.
[3] The Commission evidently had serious
concerns about the way in which the pursuers' nursery was being managed. It
appears that the factual basis for these concerns was disputed by the pursuers
and the pleadings in relation to these matters run to many pages. It is
unnecessary in the present context to refer to these in detail. Suffice it to
say that by letter dated 5 March 2008 the Commission served an improvement notice on the
pursuers in terms of section 10 of the 2001 Act. It is said that this notice
was not complied with within the required time scale and accordingly by letter
dated 13 June 2008 the Commission gave notice to the pursuers in accordance
with section 15(2) that it proposed to cancel the registration of the nursery
in terms of section 12(1). In pursuance of section 16(1) the pursuers'
solicitor by letter dated 30 June 2008 made written representations to the Commission in
response to the letter dated 13 June 2008. The Commission nonetheless decided in pursuance of
section 17(3) to implement its proposal to cancel the registration and it gave
notice of this by letter addressed to the pursuers dated 18 August 2008. The
pursuers thereafter appealed to the sheriff in terms of section 20(1). They did
so by lodging a summary application at the court on 2 September 2008 (see rule
1.4 of the Summary Applications and Appeals Rules 1999) and in crave 1 they
crave the court to direct that the Commission's decision dated 18 August 2008
to implement its proposal dated 13 June 2008 to cancel the registration shall
not have effect.
[4] For the sake of completeness I should add
here that the pursuers also crave the court, in the event that a direction is
granted in terms of crave 1, to remove a condition which had been imposed by
the Commission on the first named pursuer in terms of section 13 of the 2001
Act. I shall have more to say about this in due course.
[5] In the event the Commission gave notice in
pursuance of section 15(2) to the pursuers by letter dated 10 October 2008 of a
second proposal to cancel the registration of the nursery in terms of section
12(1). Quite how this came about I am not at present sure. At all events the
pursuers evidently exercised their right to make representations in terms of section
16, and this they did on 24 October 2008. By letter dated 30 March 2009
the Commission thereafter once again gave notice to the pursuers in terms of
section 17(3) that it had decided to implement its earlier proposal to cancel
the registration. The pursuers duly appealed by means of a summary application
which was lodged at the court on 14 April 2008 (see B265/09), and in terms of
crave 1 of this application they crave the court to direct that the
Commission's decision contained in the letter of 30 March 2009 to cancel the
registration in terms of section 17 should be of no effect.
[6] Although it appears that they have never
been formally conjoined, the two summary applications have in effect been
treated as one. After sundry proceedings they came to proof before the sheriff
on 26 October 2009, and so far there have been twenty four days of evidence
spread over a period of fifteen months or so, all of them taken up with the
evidence of the first named pursuer. It appears that several witnesses on both
sides have still to give evidence including various experts. At the end of the
cross-examination of the first named pursuer, which had taken no less than
twenty (sic) days, counsel for the pursuers sought to be permitted to lead
evidence in re-examination from the witness about the current circumstances of
the nursery. Counsel for the Commission objected to the admissibility of such
evidence upon the basis that the appeals ought to be decided on the facts as
they stood at the time that the Commission had taken the decisions to cancel
the registration of the nursery. The sheriff sustained this objection and ruled
that evidence relating to matters that had occurred after 30 March 2009 was
inadmissible. At the same time he granted leave to appeal and the pursuers duly
lodged a note of appeal in each case. Hence the matter has come before me.
[7] At the outset of the appeal hearing on 12
April 2001 counsel for the pursuers stated that he wished to raise a
preliminary point based upon the fact that the Commission had been dissolved
with effect from 1 April 2011 and had been replaced by a body corporate known
as Social Care and Social Work Improvement Scotland (to which I shall refer as
"SCSWIS"). In short, counsel contended that I should find in the case of each appeal
that the Commission no longer existed, that SCSWIS had no title or interest to
enter the proceedings, that the decision of the Commission under section 17(3)
of the 2001 Act to cancel the registration was a nullity and that I should
accordingly direct that the decision had no effect. This contention was opposed
by counsel who stated explicitly at the outset of his submissions that he
appeared for the Commission. For convenience I shall continue to refer to him
as counsel for the Commission albeit that, as will shortly become apparent, I
do not consider that he could have appeared for the Commission since it no
longer exists. In the event the discussion of this preliminary point took the
best part of a day and at the conclusion of it counsel were agreed that I
should consider and decide the point since my decision in relation to it might
render the discussion of the principal issue in the appeal unnecessary.
[8] In order to understand the argument here,
it is necessary to examine certain provisions of the Public Services Reform (Scotland) Act
2010 ("the 2010 Act") and various commencement and transitional orders made by
the Scottish Ministers in pursuance of this Act. SCSWIS was established by
section 44(1) of the 2010 Act which provides:
44 Social Care and Social Work Improvement Scotland
(1) There is established a body to be known as Social Care and Social Work Improvement Scotland (in this Part referred to as "SCSWIS"), which -
(a) is to exercise the functions conferred on it by this Act or any other enactment, and
(b) has the general duty of furthering the improvement in the quality of social services.
In Chapter 3 of Part 5 of the 2010 Act there is a series of provisions in regard to the registration of care services which broadly reflect the provisions in Part 1 of the 2001 Act mentioned above. In particular, sections 10, 12, 18 and 20 of the 2001 Act are echoed in sections 62, 64, 65 and 75 respectively of the 2010 Act except of course that it is now SCSWIS that may take action under sections 62, 64 and 65 rather than the Commission. Section 52 of the 2010 Act is admirably succinct. It states:
The Scottish Commission for the Regulation of Care is dissolved.
Lest there be any doubt about the effect of section 52, the reader may then turn to section 102 of the 2010 Act which, so far as relevant in the present context, provides:
(1) With effect from the date on which section 44 comes into force-
(a) any person employed by the Scottish Commission for the Regulation of Care immediately before that date is, subject to section 109, transferred into the employment of SCSWIS,
(b) all property (including rights) and liabilities of the Scottish Commission for the Regulation of Care subsisting immediately before that date are, subject to section 109, transferred to, and vest in, SCSWIS,
(c) ......................
(d) ......................
(2) ......................
(3) The contract of employment of a person transferred by virtue of subsection (1)(a), (c) or (d)-
(a) is not terminated by the transfer, and
(b) has effect from the date of transfer as if originally made between the person and SCSWIS.
(4) Without prejudice to subsection (3), where a person is transferred by virtue of subsection (1)(a), (c) or (d)-
(a) all the rights, powers, duties and liabilities of the Scottish Commission for the Regulation of Care or, as the case may be, the Scottish Ministers, under or in connection with the person's contract of employment are transferred to SCSWIS on the date of transfer, and
(b) anything done before that date by or in relation to the Scottish Commission for the Regulation of Care or, as the case may be, the Scottish Ministers, in respect of the person or the contract is to be treated from that date as having been done by or in relation to SCSWIS.
(5) Subsections (1) to (4) do not affect any right of any person so transferred to terminate the person's contract of employment if the terms and conditions of employment are changed substantially to the detriment of the person; but any such change is not to be taken to have occurred by reason only that the identity of the person's employer changes by virtue of those subsections.
Finally in a consideration of the terms of the 2010 Act it is necessary to notice sections 106, 132, 133 and 134 which, so far as material, provide:
Schedule 14 (which makes minor modifications of enactments and modifications consequential on the provisions of this Part) has effect.
(1) The Scottish Ministers may by order make such consequential, supplemental, incidental, transitional, transitory or saving provision as they consider necessary or expedient for the purposes of, or in consequence of, or for the purposes of giving full effect to, any provision of this Act.
(2) An order under this section may modify any enactment, instrument or document.
(1) Any power conferred by Part 8 or this Part on the Scottish Ministers to make an order or regulations-
(a) must be exercised by statutory instrument,
(b) except an order under section 134(7), includes power to make such consequential, supplemental, incidental, transitional, transitory or saving provision as the Scottish Ministers think necessary or expedient,
(c) may be exercised so as to make different provision for different purposes.
(1) This Act may be cited as the Public Services Reform (Scotland) Act 2010.
(2) Sections 103, 109, 132 and 133 and this section come into force on Royal Assent.
....................
(7) The remaining provisions of this Act come into force on such day as the Scottish Ministers may by order appoint.
........................
With reference to section 106, it should be noted that paragraph 37 of schedule 14 to the 2010 Act provides for the repeal of Parts 1 and 2 of the 2001 Act (and here it will be recalled that it was Part 1 that had established the Commission and set up the regime for the registration and cancellation of registration of care services under the 2001 Act).
[9] In terms of paragraph 3(2) and (3) of, and
the schedule to, the Public Services Reform (Scotland) Act 2010 (Commencement
No. 1) Order 2010 (2010 SSI 221) section 44 of the 2010 Act was brought into
force on 1 August 2010, but only for the purpose of making appointments to the
embryonic SCSWIS. In terms of paragraph 3(1) and (2) of, and the schedule to,
the Public Services Reform (Scotland) Act 2010 (Commencement No. 2) Order 2010
(2010 SSI 321) sections 44 to 106 of, and schedule 14 to, the 2010 Act were
brought into force on 1 October 2010, but this time only for the purpose of
making subordinate legislation. Finally, in terms of paragraph 2(1) of, and the
schedule to, the Public Services Reform (Scotland) Act 2010 (Commencement No.
4) Order 2011 (2011 SSI 122) sections 44 to 106 of, and (with the exception of
paragraph 35(a)) schedule 14 to, the 2010 Act were brought into force without
further qualification, in so far as these provisions were not already in force,
on 1 April 2011. In other words, on 1 April 2011 Part 1 of the 2001 Act was
repealed, the Commission was dissolved and its staff, property (including
rights) and liabilities transferred to SCSWIS which came into being on the same
day - all of which begs the question how counsel can now appear on behalf of
the Commission and the Commission itself can continue to participate in these
proceedings and oppose the pursuers' appeals.
[10] In addressing this question counsel for the
pursuers drew attention to the terms of the Public Services Reform (Scotland)
Act 2010 (Health and Social Care) Savings and Transitional Provisions Order
2011 (2011 SSI 121). For present purposes it is I think unnecessary to
reproduce the whole of this order. Instead I set out below those provisions
which appear to me to be of relevance in the present context:
The Scottish Ministers make the following Order in exercise of the powers conferred by sections 132 and 133(1)(c) of the Public Services Reform (Scotland) Act 2010 and all other powers enabling them to do so.
1.-(1) This Order may be cited as the Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions Order 2011 and comes into force on 1st April 2011.
(2) In this Order-
"the appointed day" is 1st April 2011;
"care service" has the meaning given by section 47(1) of the 2010 Act;
..............
"the 2001 Act" means the Regulation of Care (Scotland) Act 2001;
....................
"the 2010 Act" means the Public Services Reform (Scotland) Act 2010;
.................
"the Commission" means the Scottish Commission for the Regulation of Care;
"HIS" means Healthcare Improvement Scotland; and
"SCSWIS" means Social Care and Social Work Improvement Scotland.
2.-(1) Where on the appointed day, a person provides a care service which immediately before that day was registered under Part 1 or 2 of the 2001 Act, that care service is to be treated for all purposes as if it had been registered under Part 5 of the 2010 Act on that day and is subject to the same conditions as the registration under Part 1 or 2 of the 2001 Act was subject.
(2) Paragraph 1 does not apply to a registration to which article 18(1) applies.
3.-(1) Where prior to the appointed day an improvement notice has been given under section 10 of the 2001 Act, that notice is to be treated for all purposes as if it had been given by SCSWIS under section 62 of the 2010 Act.
(2) Any reference in that notice to section 2, 12, 14, 41 or Part 2 of the 2001 Act is to be treated as a reference to section 64, 70, 91, Chapter 4 or schedule 12 of the 2010 Act as appropriate.
4. Where prior to the appointed day, the Commission has proposed under section 12 of the 2001 Act, to cancel the registration of a care service, that proposal is to be treated for all purposes as if it had been made by SCSWIS under section 64(1) of the 2010 Act, and as if any reference to a relevant offence or to a relevant requirement in that section were to a relevant offence or relevant requirement as defined in section 12 of the 2001 Act.
5. Where prior to the appointed day, a person providing a care service is given a condition notice under section 13 of the 2001 Act, that notice is to be treated for all purposes as if it had been given by SCSWIS under section 66 of the 2010 Act.
6. Where prior to the appointed day a person providing a care service registered under Part 1 of the 2001 Act has applied to the Commission for the variation or removal of a condition in force in relation to the registration, or for cancellation of the registration, in accordance with section 14 of the 2001 Act, and that application has not been granted or refused prior to the appointed day, that application is to be treated for all purposes as if it were an application made to SCSWIS in accordance with section 70 of the 2010 Act by a person providing a care service registered under Part 5 of that Act.
...........................
9. Where immediately before the appointed day, the Commission has received a complaint relating to-
(a) the Commission;
(b) a care service; or
(c) an independent health care service,
and investigation of that complaint has not concluded, the investigation of that complaint is to be carried out by SCSWIS.
........................
15.-(1) Subject to paragraphs (2) and (3), where a person who seeks to provide a care service or an independent healthcare service has made an application to the Commission in accordance with section 7 or 8 of the 2001 Act in respect of that service, and that application has not been determined by the Commission before the appointed day, that application is to continue to be dealt with under those provisions, and sections 9 and 15 of the 2001 Act remain in force for that purpose.
(2) Where paragraph (1) applies-
(a) if the application relates to a care service all references to the Commission are to read as references to SCSWIS; and
(b) if the application relates to an independent health care service all references to the Commission are to read as references to HIS.
(3) Where SCSWIS or HIS determine that such an application should be granted, SCSWIS or HIS, as the case may be, must grant registration under section 60 of the 2010 Act or section 10Q of the NHS Act, as the case may be, subject to such conditions as they think fit.
16. Where prior to the appointed day the Commission has commenced an inspection of a care service or an independent health care service under section 25 of the 2001 Act, which has not concluded by the appointed day, that section and section 27 of the 2001 Act will continue in force for the purposes of that inspection.
17. Where before the appointed day the Commission and Her Majesty's inspectors have commenced an integrated inspection under section 26 of the 2001 Act, which has not concluded by the appointed day, that section will continue in force for the purposes of that inspection.
18.-(1) Where prior to the appointed day the Commission has made a summary application to the sheriff for an order under section 18 of the 2001 Act, Part 1 of the 2001 Act continues to apply for the purposes of the service which is the subject of that application, until the final determination of that application.
(2) Where the registration of the service is not cancelled-
(a) if the service is a care service, it is to be treated for all purposes as if it had been registered under Part 5 of the 2010 Act;
.....................
immediately following determination of the application.
19. Where a person has been given notice within 14 days prior to the appointed day under section 17(3) of the 2001 Act, from the appointed day any right of appeal under section 20 of the 2001 Act is to be treated as arising under section 75 of the 2010 Act and any appeal taken under section 20 of the 2001 Act is to be treated as taken under section 75 of the 2010 Act.
20.-(1) Where prior to the appointed day criminal proceedings are ongoing in respect of an offence under section 21, 22, 23 or 40 of the 2001 Act, those sections continue in force for the purposes of those proceedings.
(2) Any offence committed under section 21, 22, 23 or 40 of the 2001 Act before the appointed day may be prosecuted after that day as if Part 1 of the 2001 Act had not been repealed.
[11] Counsel pointed out that paragraph 3 of this
order provided that, where prior to the appointed day an improvement notice had
been given under section 10 of the 2001 Act, that notice was to be treated for
all purposes as if it had been given by SCSWIS under section 62 of the 2010
Act. Likewise, in paragraph 4 it was provided that, where prior to the
appointed day the Commission had proposed under section 12 of the 2001 Act to
cancel the registration of a care service, that proposal was to be treated for
all purposes as if it had been made by SCSWIS under section 64(1) of the 2010
Act. Similarly, in terms of paragraph 9, it was provided that, where
immediately before the appointed day the Commission had received a complaint
and investigation of that complaint had not concluded, the investigation of the
complaint was to be carried out by SCSWIS. Moreover, in terms of paragraph19, if
the pursuers had been given notice by the Commission under section 17(3) of the
2001 Act on, for example, 25 March 2011, they would have been protected in as
much as after the appointed day they could have appealed under section 75 of
the 2010 Act (in which case the appeal could have been opposed by SCSWIS). But counsel
pointed out that there was no provision in the order whereby a decision made by
the Commission under section 17(3) of the 2001 Act to implement a proposal in
relation to which it had given notice under section 15 should be treated for
all purposes as if it had been made by SCSWIS under section 73(3) of the 2010
Act (which corresponds to section 17(3) of the 2001 Act). It followed, said
counsel, that SCSWIS could not rely on the decisions made by the Commission and
intimated to the pursuers in its two letters dated 18 August 2008 and 30 March 2009 respectively
to implement its proposals to cancel the registration of the nursery. The
decisions upon which the present appeals were based were thus the decisions of
the Commission alone and it no longer existed, having been dissolved by section
52 of the 2010 Act. There had been no application by SCSWIS to be sisted as a
defender in these appeals and in any event, even if there were to be such an
application, there would was no provision in the order upon the basis of which SCSWIS
would be entitled to adopt or continue the Commission's defence of the appeals.
[12] In response, counsel for the Commission drew
attention to the provisions of the Public Services Reform (Scotland) Act 2010
(Health and Social Care) Savings and Transitional Provisions (No.2) Order 2011
(2011 SSI 169). This provides:
The Scottish Ministers make the following Order in exercise of the powers conferred by sections 132 and 133(1)(c) of the Public Services Reform (Scotland) Act 2010 and all other powers enabling them to do so.
1.-(1) This Order may be cited as the Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions (No. 2) Order 2011 and comes into force on 1st April 2011.
(2) In this Order-
"the 2001 Act" means the Regulation of Care (Scotland) Act 2001;
"the 2010 Act" means the Public Services Reform (Scotland) Act 2010;
"the NHS Act" means the National Health Service (Scotland) Act 1978;
"care service" has the meaning given by section 47(1) of the 2010 Act;
"independent health care service" has the meaning given by section 10F of the NHS Act.
2.-(1) Where-
(a) a person has been given notice by the Commission under section 17(3) of the 2001 Act of the Commission's decision to implement a proposal in relation to a condition notice or a notice under section 15 of that Act in respect of a care service or independent health care service;
(b) that person has raised an appeal in respect of that decision under section 20 of the 2001 Act; and
(c) that appeal has not been finally determined before 1st April 2011,
Part 1 of the 2001 Act will continue to apply for the purposes of the care service or independent health care service which is the subject of those appeal proceedings until the final determination of those proceedings.
(2) Article 2(1) of the first Savings and Transitional Order does not apply to any care service to which paragraph (1) applies.
(3) Article 10(1) of the first Savings and Transitional Order does not apply to any independent health care service to which paragraph (1) applies.
(4) For the purposes of this article-
"the Commission" means the Scottish Commission for the Regulation of Care;
"the first Savings and Transitional Order" means the Public Services Reform (Scotland) Act 2010 (Health and Social Care) Savings and Transitional Provisions Order 2011.
3. Where the final determination of an appeal under section 20 of the 2001 Act is that the registration of a care service or an independent health care service is not cancelled, then either-
(a) where the service is a care service, it is to be treated for all purposes as if it had been registered under Part 5 of the 2010 Act; or
(b) where the service is an independent health care service, it is to be treated for all purposes as if it had been registered under section 10P of the NHS Act.
[13] Counsel submitted that the purpose of this second
transitional order was to save appeals under section 20 of the 2001 Act which
had been raised but not determined before 1 April 2011.
For the purposes of such an appeal the Commission continued to exist. It was to
be observed that in terms of paragraph 2(2) of the order there was no automatic
transfer of the registration of a care service from the Commission to SCSWIS
under paragraph 2(1) of the first transitional order. It followed, said
counsel, that the registration of the pursuers' service remained with the
Commission so that even now the Commission could take proceedings under section
18 of the 2001 Act against the pursuers if appropriate. The effect of paragraph
2 of the second transitional order was plainly that the Commission remained
entitled to defend the current appeals, and in any event Part 1 of the 2001 Act
continued to apply until the appeals had been determined. Accordingly this
second transitional order provided a complete answer to the point which had
been taken by counsel for the pursuers upon the basis of the first transitional
order.
[14] Counsel for the pursuers pointed out that
paragraph 2(1) of the second order merely provided that Part 1 of the 2001 Act
should continue to apply for the purposes of the care service which was the
subject of the appeal proceedings until the final determination of those
proceedings. It did not provide that the Commission should continue in
existence contrary to the terms of section 52 of the 2010 Act whereby it had
been dissolved. The effect of section 17(5) of the 2001 Act had been that the
decisions made by the Commission to cancel the registration of the nursery
should not take effect until the appeals had been finally determined or
abandoned. Hence the pursuers had continued to trade for the last two and a
half years, and the effect of paragraph 2(1) of the second transitional order
was that the protection afforded to the pursuers by section 17(5) should
continue until these proceedings were finally determined notwithstanding the
repeal of the 2001 Act. Thereafter, if the outcome of the proceedings was that
the registration was not cancelled, then it would automatically be transferred
to SCSWIS in pursuance of paragraph 3(a) of the second transitional order. The
only purpose of paragraph 2(1) of this order was to allow the pursuers to
continue to trade pending the determination of the appeals. It did not require
the extreme interpretation that a body which had been dissolved by Parliament,
namely the Commission, should continue to exist for the purposes of the
appeals. If that were to be the case, one would have a body which
simultaneously existed and did not exist. Counsel pointed out that the staff, property
and liabilities of the Commission had been transferred to SCSWIS on 1 April 2011 and he submitted
that it was impossible therefore that the Commission should continue to
regulate the care service provided by the pursuers. And in this context he
observed that they had in fact received notice from SCSWIS of a forthcoming
inspection of the nursery under the provisions of the 2010 Act which would in
practice be carried out by the very same officers as had previously been employed
by the Commission.
[15] Counsel for the Commission submitted that,
if the only purpose of the second transitional order had been to keep the
registration of the nursery alive after 1 April 2011 so as to allow paragraph
3(a) of this order to take effect, there would have been no need for the
elaborate provisions of paragraph 2 of the order which plainly had in view the
judicial determination of an outstanding appeal under section 20 of the 2001
Act. It would have been enough for the second transitional order simply to have
provided that, where an appeal under section 20 was outstanding on 1 April
2011, registration of a care service before that date with the Commission would
be automatically transferred after that date to SCSWIS. It would be extraordinary
that the second transitional order should have had in view that, matters having
got to the length of a decision by the Commission under section 17(3) of the
2001 Act to cancel the registration on the ground of concerns about the care
service given by the pursuers, that service should thereafter secure
registration with SCSWIS. The second transitional order clearly envisaged the
continuation all the provisions of Part 1 of the 2001 Act in relation to the
nursery until there was a positive determination in favour of the pursuers
since, until the care service was registered with SCSWIS, there would otherwise
be no clear protection for the public interest in relation to those who used
the nursery. Paragraph 2(2) of the second transitional order made it clear that
those care services which were the subject of appeal proceedings did not have
the benefit of automatic registration with SCSWIS and this was consistent with
the proposition that regulation of such care services continued under Part 1 of
the 2001 Act. Referring to the point made by counsel for the pursuers to the
effect that the Commission had been dissolved by section 52 of the 2010 Act,
counsel drew attention to sections 132 and 133 of the 2010 Act, and in
particular section 132(2), and submitted that the Scottish Ministers had been
entitled in the first and second transitional orders to provide that Part 1 of
the 2001 Act should continue to apply, and hence that the Commission should be
kept alive, to allow a judicial determination of the question whether a
decision by it to cancel the registration of a care service had been properly
taken by it. Accordingly the Commission was properly before the court and in a
position to continue to defend the present appeals.
[16] In my opinion it cannot be correct to
maintain, as did counsel for the Commission, that the effect of paragraph 2(1)
of the second transitional order is that the Commission continues to exist, at
least for the purpose of opposing these appeals, pending their final
determination. The simple fact is that the Commission has been dissolved without
qualification by section 52 of the 2010 Act and its staff, property and
liabilities transferred to SCSWIS in terms of section 102 of the same Act. I
say "without qualification" since the language of these two sections is quite clear
and there is nothing in the commencement orders to which I have referred to
suggest that their meaning or effect should be qualified in any way. It is true
that section 132(2) provides that an order made by the Scottish Ministers under
that section may modify any enactment, instrument or document. But in my view very
clear wording would be required to modify the explicit terms of sections 52 and
102 of the 2010 Act, and one does not find such clear wording in the somewhat opaque
provision in paragraph 2(1) of the second transitional order that Part 1 of the
2001 Act should continue to apply for the purposes of the care service which is
the subject of appeal proceedings such as the present until their final
determination. Besides, however clear the language employed by them, section
132(2) cannot in my opinion mean that the Ministers may do something which is
impossible, namely to maintain in existence for a limited purpose only (and
even then without any staff or property) a body corporate which has been
declared otherwise to have been dissolved. In a nutshell, they cannot have it
both ways. They cannot on the one hand bring sections 52 and 102 of the 2010
Act into force, as they have done, and at the same time hope that the Commission
will somehow remain in a state of partial existence in pursuance of paragraph
2(1) of the second transitional order pending the determination of these
appeals. And it follows in my opinion that, since it does not now exist, the
Commission is no longer in a position either to be represented in these appeals
or to oppose them.
[17] The question thus arises what should happen
now in relation to the appeals. I was initially inclined to the view that it
did not follow from the fact that the Commission no longer existed and that
SCSWIS had no title or interest to enter the proceedings that the Commission's
decisions under section 17(3) of the 2001 Act to cancel the registration of the
nursery should be regarded as nullities. This, it will be recalled, was what
was submitted by counsel for the pursuers, and on reflection I think he must be
correct in this since notwithstanding what is said in paragraph 2(1) of the
second transitional order the decisions cannot have a life of their own apart
from the body that made, or is deemed to have made, them. And since the body
that made them has been dissolved and so no longer exists, and since there is
no provision in either of the transitional orders whereby the decisions are to
be treated as if they had been made by SCSWIS, they can no longer have any
meaning or effect, and hence must be nullities. I have accordingly directed
that they should not have effect. This will mean that in terms of paragraph
3(a) of the second transitional order the nursery will be treated for all
purposes as if it had been registered under Part 5 of the 2010 Act, and it will
follow from this that SCSWIS will have all the necessary powers under Chapter 3
of Part 5 to monitor the situation in regard to the nursery and to take any
action necessary to protect the safety, health and well-being of the children
who are being cared for in it - and indeed it appears that this may already be
happening if counsel was correct in stating that SCSWIS had given notice to the
pursuers of a forthcoming inspection of the nursery under the 2010 Act.
[18] It remains to deal with the pursuers' crave,
in the event that a direction is granted in terms of crave 1, that the court
should remove the condition which had been imposed by the Commission on the first
named pursuer in terms of section 13 of the 2001 Act. This
condition was that she was not to have contact with, or access to, children
enrolled or enrolling at the All Stars Nursery. The power of the court to
remove this condition is to be found in section 20(2)(a) of the 2001 Act. The
difficulty here is that section 20 is silent as to the grounds upon which the
sheriff is to decide whether or not to remove such a condition - or, for that
matter, on the one hand to confirm a decision of the Commission or on the other
hand to direct that it shall not have effect. In the absence of any such
guidance it seems to me that the only conclusion that can be drawn from the
section is that the legislature intended that it should be a matter for the
discretion of the sheriff in any given case to do what he thought was
appropriate and right in light of all the circumstances of that case. It is no
doubt tempting to seek to read into the section some qualification of the
sheriff's power to determine an appeal under the section as he thinks fit. But
the simple fact is that there is no such qualification in the section and so it
would be wrong in my view to fall prey to this particular temptation.
[19] On the assumption that this is the correct
approach, I dare say that I could remit this appeal back to the sheriff to
determine in the exercise of his discretion whether the condition in question
should be removed or not. But I cannot immediately see any reason why I should
not decide this myself here and now, and it seems to me that it is high time that
these protracted proceedings were brought to an end without further waste of
time and expense. I can understand the point that the Commission must have had
serious concerns about the way in which the nursery was being run by the pursuers
to have got to the stage of deciding to cancel its registration. But, whatever
the circumstances were that gave rise to these concerns, they must have existed
more than two years ago, and in the interval since the letters of 18 August 2008 and 30 March 2009 were
sent to the pursuers they have continued to operate the nursery by virtue of
section 17(5) of the 2001 Act. Moreover, I have already drawn attention to the
fact that the effect of directing that the decision of the Commission to cancel
the registration should not have effect will be that the nursery will be
treated for all purposes as if it had been registered under Part 5 of the 2010
Act so that SCSWIS will have all the necessary powers under Chapter 3 of Part 5
to monitor the situation in regard to the nursery and to take any action
necessary to protect the safety, health and well-being of the children who are
being cared for in it. In this context it is to be observed in particular that
section 67 of the 2010 Act provides in short that, where SCSWIS believes that
the absence of a condition in relation to the registration of a care service
poses a serious risk to the life, health or well-being of persons, it may at
any time give notice (an "emergency condition notice") to the person providing
the service specifying a condition, in relation to registration, in respect of
that risk. Such a condition takes effect immediately on receipt of the
emergency condition notice. There is a right of appeal under section 69 against
the condition so specified but, as I understand this section, and in contrast
to the position under section 17(5) of the 2001 Act and section 73(5) of the
2010 Act, the condition remains in force until the appeal has been determined.
In these circumstances it seems to me that it would be much more sensible to
bring the current proceedings, based as they are on events which occurred at
least two years ago, to a conclusion without further delay not only by
directing that the decisions of the Commission to cancel the registration of the
nursery should not have effect but also by removing the condition imposed in
March 2007 on the first named pursuer. If, in light of current circumstances,
SCSWIS believe that such a condition is required here and now, it can always
proceed under section 67.
[20] For the sake of completeness I should
mention two further points. In the first place, I am conscious that my view
that the Commission cannot simultaneously exist for one limited purpose and
otherwise not exist has implications for certain provisions of the first
transitional order, and especially paragraph 18. One could understand how that
particular paragraph would make sense if there had been a provision in it to
the effect that references in Part 1 of the 2001 Act to the Commission were to
be read as references to SCSWIS, as there is in paragraph 15(2)(a), and as if
it had also contained a provision to the effect that SCSWIS should be entitled
to be sisted as a party to the application under section 18 in place of the
Commission. A recent example of such a provision may be seen in section
10(1)(b) of the Damages (Scotland) Act 2011. But in the absence of such provisions it
seems to me that a pending application by the Commission under section 18 of
the 2001 Act must inevitably have fallen on the appointed day for the want
thereafter of an applicant to insist upon it. I dare say that this was not what
the Scottish Ministers intended should happen. But I do not see any alternative
given that they have chosen to bring into force sections 52 and 102 of the 2010
Act.
[21] In the second place I have already drawn
attention to the fact that section 20 of the 2001 Act does not specify any potential
grounds of appeal. The same is true of sections 69 and 75 of the 2010 Act. For
well over a century the courts in Scotland have been under the necessity of
wrestling, often at considerable expenditure of time and money, with such
questions as whether an appeal to the sheriff under an enactment such as the
2001 and 2010 Acts is to the sheriff in his administrative or judicial
capacity, whether there may be a further appeal against the decision of the
sheriff to the sheriff principal and/or the Court of Session and upon what
grounds the sheriff may be entitled to interfere with the decision which has
been challenged on appeal to him. This is certainly not the first time this
point has been made. Thus in Macphail's Sheriff Court Practice (3rd
Edn) at para 26.30 it is said: "It has often been observed that it is difficult
to discover any systematic policy or pattern in the choice of statutory
provisions relative to appeals in statutory applications, and much time and
expense would be saved if enactments making provision for summary applications
were to state explicitly whether there is to be an appeal and, if so, to define
its nature and scope by specifying whether it is to be from the sheriff to the
sheriff principal or from the sheriff court to the Court of session, and
whether on fact or on law".
[22] Indeed, as an example of the time and
expense that may be occasioned by such legislative uncertainty one need look no
further than this particular case in which no less than five days were taken up
before the sheriff in discussing whether or not the Commission's objection to
the admissibility of evidence in regard to the current circumstances of the
nursery should be sustained. Needless to say, this sort of potentially awkward
question is easily avoided if the scope and grounds of any appeal to the court
are specified in the legislative provision which provides for the appeal in the
first place. Examples of this happening in practice may be seen in section 44
of, and Part III of schedule 5 to, the Firearms Act 1968, paragraph 18 of
schedule 1 to the Civic Government (Scotland) Act 1982, sections 320 to 324 of
the Mental Health (Care and Treatment) (Scotland) Act 2003 and sections 131 and
132 of the Licensing (Scotland) Act 2005. So one wonders why even as recently
as 2010 Parliament was still to be found enacting provisions as hopelessly
uncertain in their effect as sections 69 and 75 of the 2010 Act. And this
question is all the more pertinent today given that, more or less by
definition, at least one of the parties to an appeal of this kind is likely to
be publicly funded - as I presume is SCSWIS. In these days of financial
restraint it might have been supposed that Parliament would seize every
opportunity to avoid a potential waste of public money, and one simple way of
doing so would be to avoid the uncertainty that is to be found in appeal
provisions such as sections 69 and 75 of the 2010 Act.
