In a recent judgment at Edinburgh Sheriff Court, Sheriff Alison Stirling dismissed an appeal brought by Explore Learning Ltd against decisions of the Care Inspectorate to cancel their registration as care providers using powers under section 64(4) of the Public Services Reform (Scotland) Act 2010.
Explore operate facilities at a number of Sainsbury supermarkets throughout Scotland for children to receive math and English tuition. They were registered as care providers in 2005 under the previous Regulation of Care (Scotland) Act 2001 by the former Scottish Commission for the Regulation of Care. However, a series of recent inspections led the Inspectorate to the view that the “primary purpose” of the services provided was not the provision of “day care of children”, but rather the provision of tuition. That being their view, the Inspectorate cancelled the registration. Explore appealed under section 75 of the Public Services Reform (Scotland) Act 2010 despite the fact that cancellation of their registration would not prevent them from continuing to operate as tuition services are not, in general, a registerable activity.
Explore instructed Shepherd & Wedderburn and Mark Lindsay QC to challenge the decisions on a number of grounds, including (1) that once registered as a care provider there was no power to cancel registration unless there was a change in circumstances in the service in question; (2) that in any event the cancellation in this case was improper and unreasonable and showed a failure to correctly understand what “the primary purpose of the day care of children meant”; and (3) the decisions were unlawful under the Human Rights Act as representing disproportionate breaches of the right to the peaceful enjoyment of the possessions of Explore.
Terra Firma Chambers' Scott Blair was instructed by the Inspectorate to defend their decisions. He prepared detailed written defences as well as a detailed written submissions in support of the defence. He also represented their interests at an earlier hearing to determine the scope of the appeal hearing.
Scott was unable to represent the Inspectorate at the final hearing so fellow TFC member David Logan appeared for the Care Inspectorate. After a two-day debate Sheriff Stirling was satisfied that the appeal should fail.
The decision of Sheriff Stirling (available from Terra Firma Chambers upon request) resulted in a clear rejection of the case for Explore. She accepted that the written and oral arguments made by counsel for the Inspectorate were to be preferred. In essence she found that the Act did contain a power to cancel existing registration and that there was no unlawful retrospectivity in the decisions that were taken because the rules under the 2001 Act and the 2010 Act were the same. Sheriff Stirling was satisfied that the Care Inspectorate was entitled to take the view that the primary purpose was the provision of education, not care. On the human rights arguments she ruled that the registration was not a possession and that the only relevant possession might be goodwill based on past work. Future income was not protected and so no case arose on human rights grounds.
This decision gives important guidance to the Inspectorate about the scope of their powers to cancel registrations and more general guidance as to how such cases should be addressed by the Court going forward. Although proof cannot be ruled out where there is a sharp and important disagreement on facts that are critical to the decision at issue, the scope for proof will be sharply limited with decisions by the Inspectorate being held to the Wednesbury unreasonableness test instead in a form of judicial review in the Sheriff Court.
This case illustrates the versatility and ability of TFC Counsel to provide advice, written and oral advocacy and representation in complex areas of administrative law, such as the regulation of the care sector.
