Jennifer Duncan
-v-
Ofsted
[2007] 0986.EY
-Before-
Andrea Rivers
(Nominated Chairman)
Michele Tynan
(Specialist Member)
Peter Sarll
(Specialist Member)
Review held on 25th January 2008 at Walsall County Court
Factual Background
1. On 16th and 17th October 2007 the tribunal heard an appeal by the appellant against the respondent’s decision to cancel her registration as a childminder. In a written decision sent to the parties 31st October 2007 that appeal was dismissed.
2. Paragraph 27 of that decision stated that the burden of proof in the case lay on the appellant.
3. On 13th November 2007, the appellant made an application for the tribunal’s decision to be reviewed, pursuant to s25(1) of the Regulations.
4. Having considered the appellant’s letter the President accepted that it was appropriate to review the decision on the basis that there was an arguable error in the finding as to the burden of proof, and a review hearing was set down for 25th January 2008.
5. Prior to the hearing both parties filed skeleton arguments. Arguments on behalf of Mrs Duncan were set out by her solicitor, Karen Bailey, and arguments on behalf of Ofsted were set out by Paul Greatorex of counsel. At the hearing the appellant was represented by Carl Malcolm, a friend and a family member and Ofsted was represented by Paul Greatorex.
The Issues
6. The issues for the review hearing were:
(i) whether the appellant was correct that the tribunal should have found that the burden of proof lay with the respondent;
and if so
(ii) whether the reversal of the burden of proof made any difference to the tribunal’s decision.
Decision
(i)the burden of proof
In relation to question (i), it was agreed by both parties that the burden of proof in appeals against cancellation lies with the respondent and not the appellant, so far as matters of fact are concerned. The case of Peter Jones v CSCI, cited in the tribunal’s original decision, related to a refusal of registration and in such a case it is for the appellant to satisfy the tribunal of his suitability for registration. However, once the registration has been granted and the decision is to cancel that registration, the burden shifts to the respondent to prove the facts necessary to show that he is no longer suitable.
The tribunal accepts that this was the case, and proceeded on the basis that paragraph 27 of the original decision had been wrong.
(ii)does the reversal of the burden of proof make any difference to the decision?
As to question (ii) we have re-considered the findings set out in our decision and summarised in paragraph 48 in the light of a reversed burden of proof.
Having done so, we have unanimously concluded that we are confident that the reversal of the burden of proof makes no difference to our findings.
We made our findings following a full hearing of the issues. Neither our findings, nor our decision, based on those findings, were finely balanced, as is clear from the wording we used. We consider that the burden of proof was amply discharged by the respondent at the original hearing.
We therefore re-affirm our original findings, together with our decision that she is unsuitable to be a registered childminder.
Andrea Rivers
(Nominated Chairman)
Michele Tynan
(Specialist Member)
Peter Sarll
(Specialist Member)