Plancey & Co v Office of the Immigration Services Commissioner

JP made a witness statement (601-602) and gave evidence concerning the complaint which his client S initiated by letter to the Respondent dated 15^th April 2004 (78-79). The complaint concerned a number of areas of work done by JP but the determination concentrated on two issues namely whether JP had backdated a client care letter from the 25^th May 2004 to 29^th May 2002 and why he had not returned to S the sum of £4,500 which S paid for specific work to be done.

JP’s evidence was that the client care letter (716-720) was correctly signed by S on the 29^th May 2002, that JP had inserted the date, and had also inserted the price for doing certain work (page 717) at that time. He further explained that in July 2003 all his clients were sent a fresh client care letter as the Appellants wished to update wholesale their clients’ files (42). He was determined that the document had not been effectively completed by himself after S had signed it.

With regard to the other aspect of the complaint determination namely the receipt of £4,500 for work to be done, JP stated that he did not advise S to go for a work permit but in fact for a visa. He drew our attention to document 33 where the word visa is referred to not a work permit. S gave evidence and confirmed his witness statement (697-720). He needed the assistance of an interpreter to give his evidence. He agreed that the terms of engagement letter about which the complaint is made bore his signature. However he said that he signed it on the 25^th May 2004 and that he recalled receiving one in July 2003 which he did not sign or return. He stated that he did not know who dated the document or amended it.

He also conceded that the application being made by JP was for a business visa and not a work permit.

There was further evidence which was read from BNK (725-726) as his evidence was not contested. A material part of the evidence was that at a meeting on the 25^th May 2004 S was given a document by JP to sign and that BNK glanced at the document as S signed it and noticed that it appeared to be a printed pro forma and that as far as he was aware it contained nothing in manuscript.

S also confirmed that he had continued to instruct JP and withdrew his complaint to the Respondent.

The Tribunal then heard from CC who confirmed the truth of his witness statement (727-730). He stated that he was the investigating officer, conceded that what was being applied for for the fee was in fact a business visa rather than a work permit and stated that there was nothing on the file which JP had volunteered in full to CC to suggest that a business visa was being applied for. He also drew attention to the receipt signed by JP and dated July 2003 (33) which stated that JP had received from S £4,500 being the fee which would be refunded in full if the visa was not granted.

Nonetheless CC continued his investigation on the basis that he was looking for a work permit rather than a business visa. Accordingly and very fairly, he agreed that he had little recollection of his telephone conversation on the 20^th August 2004 other than asking whether there was a record for a work permit application (91).

He conceded that upon receipt of the second letter from S dated the 29^th April 2004 (715) withdrawing his complaint that would normally be the end of the matter but that he still had concerns. He accepted that he could not recall pursuing any investigation other than this one where the complaint had been withdrawn.

He stated that it would have been a draconian measure to cancel the Appellants’ application for continued registration solely on the basis of a refusal to co-operate. This refusal to co-operate was demonstrated by the failure of the Appellants to give any substantive reply to a request made by CC.

He stated that the Respondents policy or practice was to impose, following the determination of complaints, a minimum sanction save in exceptional circumstances where probably charge proceedings would be instituted.

CC conceded that some of the documents in the file could quite possibly be connected to an application for a business visa but he believed that they were all connected with the asylum application.

The documents run from pages 174 to 262. JP’s evidence was that a lot of those documents did relate to the application for the business visa.

The reasons for allowing this appeal on two matters are broken down between the two matters respectively.

With regard to the backdating of the client care letter, this was put forward as a breach of code 9 of the Commissioner’s Code of Standards. Because it was an allegation of dishonesty, the criminal standard applied. Accordingly the Respondents had to show to us beyond reasonable doubt that JP had backdated this document. This is a very high standard. We were not so satisfied. The reason we were not so satisfied was because JP gave a very plausible explanation as to why he had sent out a block request for client care letters to be signed in July 2003. He stated that this was done on every case irrespective of whether the file had such a client care letter. He was determined that there was such a client care letter, and it seemed to us that if JP had deliberately gone out of his way to backdate such a client care letter, he would have pursued the matter assiduously following the non-return of the blank client care letter despatched in July 2003. S could not say with any certainty that the document he was shown was the one that he had signed on the 24^th May 2004. It could have been any one of a number of documents. Equally the evidence of BNK took the matter no further as he really had no idea what S was signing on the 24^th May 2004.

We found JP to be a credible witness. We could not analyse any logical reason to demonstrate motive and therefore came to the conclusion that the Respondents had failed to prove beyond reasonable doubt that the client care letter was fabricated and therefore that part of the appeal had to be allowed.

The other part of the appeal related to the £4,500 paid by S to JP. The Respondent asserted that with regard to the monies received, that this breached codes 49, 50 (b) and 54 of the Commissioner’s Codes of Standards. In summary and respectively, there was an obligation for an advisor to act in the best interests of his client, to act objectively and fairly with respect to the client, and an obligation not to abuse his position in respect of a client or take advantage of the client’s vulnerability.

The Respondent also asserted that the circumstances surrounding the receipt of the money breached Rule 16 of the Commissioner’s Rules which stated in terms that a registered person is not to be charged for work that has not been undertaken or has been undertaken unnecessarily. It seemed to us that the Respondent via CC worked on a false premise. At page 583, it was baldly asserted by the Respondent that S paid £4,500 to the Appellants for the submission of an application for a work permit, but did not submit the application or refund the fee. The next paragraph again labours under the premise that because the Respondent had been unable to find any evidence on the case file of submission of a work permit application then the allegations were proved.

It seemed to us that the agreement recorded the fact that the fee would be refunded if a visa was not granted (33).

On an overly restrictive view of the determination, it seemed to us that as reference was made to a work permit rather than a visa, the appeal should be allowed, but we analysed the evidence and came to the same decision on the premise that there was no material distinction between a work permit and a visa.

Under the terms of the agreement between JP and S, the money would not be refundable until an application had been made and that application was unsuccessful. JP’s evidence was that preparatory work needed to be done before any such business visa application could be submitted. We looked at the documents between pages 174 and 262. By way of example, document 174 clearly is seeking information concerning his business. Document 176 refers to a current business being operated. Documents 228 to 241 clearly relate to the asylum application being a Home Office statement of evidence form. However document 242 clearly relates to S’s business as it was an insurance policy schedule for retailers. Document 252 refers to what appears to be a business tenancy. Document 257 is a telephone bill relating to the business. S is given a trading name of Chanda Cottage. Similarly the bank statements suggest with the balances and the regular payments in and withdrawals that this is a business account rather than a personal account. Finally there is a letter concerning food safety at page 260.

We also took into account that S withdrew his complaint and that the Appellants continued with the process in relation to the business visa.

We do not know the state of the application once the Appellants’ business was effectively closed down by the Respondent but it seemed to us that CC who gave evidence honestly and fairly labouring to do his best to recall events over six months ago, had worked on the false premise that as no application for a work permit had been applied for, then the money should have been returned. We cannot agree that analysis for the reasons set out above.

Accordingly on the balance of probabilities, the Appellants have satisfied us that this appeal concerning the deposit of the money should be allowed.

It must be emphasised by the Tribunal that although the investigation and the witness statement covered other areas, the determination only covered a limited amount of evidence and we have concentrated on that. For example even though the Respondents had concluded that the Appellants were declining to co-operate, they decided not to impose any penalty even though the Respondent had power to impose the minimum sanction or indeed as they asserted at page 585 the power to consider cancelling the registration, but CC recognised that it would be draconian to cancel the registration just for one item of non-co-operation.

The Appellants called three witnesses. The first witness was DP who confirmed the truth of his witness statement at pages 603-604. He confirmed that he was registered at level 2, that he met the Commissioner (JS) once in May 2002, that only one course of training had been run in Scotland and that there were no courses for the profit sector in Scotland. He confirmed that he was advised by AMcK and RC that he had sufficient knowledge to be moved up to level 3 but insufficient experience. He confirmed that he had conduct of about twenty cases of which eighteen related to asylums and that he had had thirteen favourable determinations. He stated that the Appellants had about five hundred open files at any one time and that the Appellants did pro bono work.

He told the Tribunal about the visit in August 2003 by RC and AMcK. He summarised it by stating that they complimented the Appellants on their veracity in pursuing the cases but that there problems with administration. He stated that they took the report from AMcK very seriously and had been determined to bring their administration standards up to scratch. He exemplified this by stating that the Appellants had devised a new way of opening files, re-vamped the client care letters and had a system in place of checking work done, and that over the last year three or four full audits of all the office procedures had been done within their office. He stated that there was not a fully complete electronic system but computers were used. He stated that their systems were sophisticated enough so that the last movement on a missing file could be traced.

Under cross-examination he confirmed that he had seen the letter of refusal from RC (533) and he was taken through a number of aspects of the work done by the Appellants. He stated that the Appellants had remedied the problem of failing to issue client care letters and letters of authority. He stated that the fee scale had been remedied within the client care letter either by an hourly rate or by agreed fee. With regard to merits of a particular case, he stated that this would be confirmed on a face-to-face meeting, then confirmed by a separate letter. With regard to progress made on a particular case, he stated that the procedures were for a diary entry to be made so that a case would be reviewed every month or less with a confirmatory letter being sent to the client confirming the up to date position of the case. He denied that clients were overcharged, that cases were taken on which were hopeless, and that work was not done or was done badly. He accepted the determinations which formed part of the Respondents decision to refuse continued registration set out at annexes A to E (541-581).

The second witness called by the Appellants was (KH) (605-606). She stated that she had attended a meeting at the Respondents premises in London. It seems that the meeting had been previously arranged with the Commissioner (JS) but that he was absent and his deputy (LA) received her and JP on behalf of the Appellants.

She recalled that the purpose of the meeting was to discuss with the Respondents the number of complaints against the Appellants and a request for help concerning the administration and to point out that in Scotland the Appellants were missing out on a lot of initiatives which were available to registered firms in England. She recalled that LA stated that if there were any further complaints the Appellants’ registration would have to be looked at, that there were training courses in Scotland but conceded that they were not for the profit sector i.e. were for the voluntary sector only. She recalled JP offering to pay for the courses but LA stated that could not be done. Her position with the Appellants was personal assistant to JP and office manager. She stated that she was responsible for file management, that she had been with the Appellant for a total of thirteen years, and that RC had promoted her to level 2. She recalled her emphasis of the meeting being that LA made the point that the Respondent was predominantly interested in the documentation side of the files and was not there to judge the law. Her impression was that the Respondent was more concerned with administration rather than the law. She asserted that the system that the Appellants now had in place could not be improved upon very much.

JP then gave evidence. He confirmed the truth of his witness statement (601-602). He recited that the Commissioner JS came to see them in 2001; that it was a good meeting but that he had not been seen since. He stated that there had been no courses in Scotland and drew our attention to a letter from JS to him dated 20^th April 2004 (780) which stated that JS’s belief was “potentially ….. a problem in Scotland” and “any initiatives that we take particularly on training tend not to be fully supported, certainly not well enough supported to justify on a cost benefit basis their being held”. He stated that there was only one other firm registered up to level 3 in Scotland which since the de-registration of his firm meant that it was the only firm operating in Scotland up to level 3.

He stated that the caseworker who made the complaint determinations against the Appellants at D and E (565-581) stated to him that he need not do anything about that, and that it was just a smack on the wrist. It was for that reason he stated that he did not appeal. It is indicative to note that those two determinations are dated 2^nd June and 2^nd July respectively but JP was unable to state whether his conversation with the caseworker was after the first or the second.

He recalled the audit in 2003 very well. He referred to the report from AMcK and its conclusions (753) and stated that that was the document which they decided to tackle to ensure that they got their house in order.

He also recalled his meeting with LA on 25^th June 2004 and stated that during the course of that meeting LA stated that the Respondent would not do an audit.

He conceded that the Appellants were obviously wrong in the five cases annexed A to E. He accepted an earlier ruling that there was no opportunity to appeal out of time but did draw the attention of the Tribunal to the gloss put on those determinations by his solicitors when they lodged their appeal (625-658). He also stated that all five appeals were initiated prior to the audit of AMcK. From this we took it that this meant that the events concerning the appeal were prior to August 2003. He was not cross-questioned on this point. He emphasised in his meeting with LA that with regard to administration, the problem had been cured and that the best possible systems were in place.

When cross-questioned, he again asserted that the case worker with regard to annexes D and E had stated that this was simply a slap on the wrist and that he should not bother about appealing.

We accepted the evidence given by DP, KH and JP. It seemed to us that they have it honestly and fairly. They all impressed us as witnesses of truth.

The Respondents then called RC the caseworker who had made the decision for continued registration to be refused. RC confirmed the truth of his witness statement (731-737).

He initiated his evidence by stating that he did not give the Appellants an audit in 2004, that he normally would have conducted an audit and his decision was not to do so was because of the extent of the complaints determinations (A to F) and he concluded that continued registration should be refused not on competence but on fitness. He confirmed that the purpose of an audit would be to assess office procedures i.e. compliance with the codes and rules including conducting file reviews. He confirmed that he had conducted the audit in 2003 with AMcK and that his practice would normally be to check that the recommendations had been followed through. He agreed that JP had told him they had installed a new computer system, and agreed that he did not look at this. He stated that the reason for refusal went beyond administrative issues and concerned general fitness to practise. This was exemplified in his witness statement (paragraph 21 and also by the evidence that he gave which was that he did not feel that any administrative improvements would deal with the problem of fitness. He stated that the complaint determinations A to E were not known to him when he did the audit in 2003. He was then taken through the paperwork, agreed that he did not complete the registration within the 28 day aspirational period, stated that if he believed an audit would have value then he would have given such an audit, and did not delay the process of dealing with registration simply to allow a large number of complaint determinations to build up which he could then use as his reason for refusing to continue to register.

Under cross-examination, he stated he had been a caseworker since March 2001, that he had visited the Appellants on three occasions, twice in connection with audits and the third time to assess KH for moving from level 1 to level 2. He stated that he would have given JP advice, and the registration process in 2003 took between five and six months, the delay occasioned because of the audit.

He stated that the registration process in 2004 took six months because of a problem with the indemnity insurance and confirmed that he made the decision not to have an audit because of the number of complaint determinations.

At this stage we were unhappy that there apparently had been insufficient disclosure by the Respondents. In particular there had been no disclosure of a telephone log or letters concerning the issue of professional indemnity insurance. Also the witness had stated that he had had meetings with the other caseworkers concerned in annexes A to E regarding his proposal to refuse continued registration, and finally there had been no notes of any meeting with LA disclosed.

The following day some disclosure was produced by the Respondents. In particular the log of developments concerning the Appellant’s matters (786-788) was produced, as a printout of the electronic version. It was confirmed that there were no notes of any of the meetings with the various caseworkers, but the notes of the meeting with LA taken by LA were produced (805-808), by another attendee at the meeting (810-812), and further notes taken by another person attending at the meeting were produced (813-816).

It struck us as odd that RC had great difficulty in working through the log (786-788) even though he conceded that many of the entries on it were created by him.

The issue of professional indemnity insurance was further explored as he had told the Tribunal that the prime reason for the delay was because of the issues relating to that. He conceded that he would have examined the application form for registration within approximately a fortnight of receipt (middle of April 2004) and also stated that there was nothing wrong with the application form or the documents that accompanied it. When pressed concerning the delay in dealing with the refusal, he again asserted that it was because of a problem with the professional indemnity insurance but agreed that the application form was complete with all the documents, and also agreed following a question from the Tribunal that there was certainly professional indemnity insurance in place up to the 24^th May 2004 (360) and that that complied with the Commissioner’s rules and that there would be no reason for the issue of professional indemnity insurance to cause delay in the processing of the application.

He stated that he was aware that two complaints had been determined against the Appellants at this stage (A and B) being the 10^th October 2003 and the 29^th March 2004 respectively.

He stated he was not given a report of the meeting JP had with LA on the 25^th June and that he would have expected such a report if there was a discussion concerning complaints history. He also stated that he did not brief LA concerning this meeting but was told that a meeting had taken place with her. He stated that he would have expected a report back to him if something relevant or important was discussed.

His attention was drawn by us to his letter of registration dated 1^st September 2003 (411) and he had to concede that he had agreed with JP to have an audit on the 24^th September 2004. The point was taken in re-examination that no year was specified in the letter but he conceded that it could not be 2003 as he had only just completed the audit, was not 2005 and therefore must have been 2004.

He was then taken through his process of decision making. He asserted that LA initiated one discussion and was present at more than one of the meetings he had. He believed that he had had three meetings concerning the Appellants’ registration and that at, at least one meeting, possibly more, the Commissioner was present. He stated that the caseworkers concerned in the determinations A to E also had meetings with him although he could not remember the presence of the caseworker concerned with annex B.

He confirmed that the refusal was solely based on the complaints determination and was the first time this had been tried by the Respondent. He wanted to know whether it was feasible and if so what form it should take. He stated that it was a novelty i.e. to make a decision to refuse continued registration without an audit. Therefore part of the discussions he had with the people referred to above was whether it was appropriate to do an audit first. He confirmed that the decision to refuse continued registration was his alone and that the purpose of the meetings with the other caseworkers was to see how seriously they considered their complaint determinations.

He recalled one meeting with LA in July 2004 and that the other two meetings were at the end of August or the start of September. He recalled this because he was away for over three weeks on holiday in August. He stated that it was by the end of August or the start of September he had decided that there were sufficient grounds for refusal namely the number and severity of the complaints.

His meeting with the Commissioner at the start of September involved other cases than the Appellants’ but he put it to the Commissioner that a refusal was warranted. At that stage he did not produce to the Commissioner a briefing paper and he recalled the Commissioner calling for the determinations A to E. He was then told later by his manager (SS) that the Commissioner was happy to go ahead with the refusal.

He then created a draft letter which he circulated by email to LA and the individual caseworkers involved in A to E.

This draft letter was then amended to embrace the complaint determination annex F and it was re-circulated.

He accepted that JP did request an audit and agreed that it would have been courteous to reply to JP’s letter dated 17^th August 2004 (607-608) to state what the Respondent’s position was. He agreed that it was extraordinary that he had not diarised his earlier decision to have an audit for the Appellants on the 24^th September 2004.

When dealing with the complaints annexed at A to F he took the statement of complaint (SOC) as the date that each complaint was initiated. Pressed on this, he conceded that the statement of complaint date was not necessarily the date the complaint had been started. His attention was drawn to the statement of complaint date at annex F (582) and conceded that the actual complaint had been started on the 15^th April 2004 (78-79) or three months prior to the statement of complaint.

Nonetheless he stated that this would have made no difference to his determination because of the volume and nature of those complaints. He conceded that the complaint determination would have been more serious if the matters complained of were after September 2003 rather than before but accepted that he did not analyse whether any of the issues raised by any of the complaints was before or after September 2003.

He then attempted to distinguish between fitness and competence and asserted that fitness meant good practice concerning clients and competence concerned legal knowledge. He also stated that the complaints officers wished to discuss with him what was going to happen to the Appellants, that in Scotland there was only one course in 2002, that he was not waiting for more complaints determinations to pile up against the Appellants so that his job would be easier to refuse registration but agreed that the application for re-registration was dealt with lamentably slowly and that it was not until early summer that he started to look at the case in earnest.

The Respondent then sought permission to adduce two further witness statements. One was from CP who happened to be the caseworker on annex C. He was not present to give evidence but the Appellants agreed his evidence solely with regard to paragraphs 5 to 11 which analysed the dates when the Respondents first received the complaint by the clients at annexes A to F.

The second statement which the Respondents sought to adduce was a statement from LA. The Appellants objected to that as LA was not to be subject to cross-examination and accordingly, having considered the matter, we exercised our discretion not to allow this witness statement. Accordingly we did not see it.

The statement of AMcK (738-753) dated 3^rd February 2005 had been agreed.

The legal framework is set out at schedule 6 paragraph 3 (5) of the 1999 Act which states:-

“If the Commissioner considers that an applicant for continued registration is no longer competent or is otherwise unfit to provide immigration advice or immigration service, he must cancel the applicant’s registration.”

It therefore must be the Respondents case that the cumulative effect of annexes A to F meant that the Appellants were no longer competent or were otherwise unfit.

The reasoning of the decision is set out at pages 539 to 540. It recited the history at page 539 following the audit visit in August 2003. It stated that the decision to re-register for the period May 2003 to April 2004 was conditional upon the Appellants remedying those breaches of the codes and rules. At page 411 the codes were identified. No reference was made in that letter to remedying any rules. The codes identified were 29, 32, 33, 49, 50a and 50c. An explanation of those codes was set out in the letter of September 2003 (410-411). The evidence given by the Appellants was that they had got their act together and were compliant. There was no evidence to contradict this because there had been no audit.

Nonetheless RC came to the conclusion that because of the cumulative effect of annexes A to F that meant that the Appellants were no longer competent or were otherwise unfit to provide immigration advice or services.

It seemed to us that the Respondents’ position might have some merit had an analysis been done of the dates when clients made complaint of the services offered by the Appellants. This analysis would not be the actual date the complaint was made but would relate to the time when the advice or services were given which would clearly pre-date the initial letter of complaint. The evidence given by JP was that all the actions of the firm complained of were prior to September 2003. This was obviously a relevant date because following the audit in August 2003 the Appellants’ collective evidence was that they put into place the recommendations of AMcK’s report and the letter of conditional registration from RC.

However an analysis of the complaints A to E (F is excluded as we have allowed the appeal) shows as is evidenced from P’s witness statement that the clients complaint with regard to annex A was received in April 2003, B in November 2003, C in November 2003, D in December 2003, E in January 2004. As can be seen from that document certainly 1 (annex A) and probably 2 (annex B and C) related to activities before September 2003. The Respondent did not call any evidence to challenge the Appellants’ assertion that all the complaints in fact concerned activities of the Appellants before September 2003. We accepted the Appellants’ evidence on this. The files had been made available to the Respondents and had they thought fit to challenge the Appellants’ evidence on it, they had plenty of opportunity to do so. Therefore we were satisfied on the balance of probabilities that all the matters complained of concerned events prior to September 2003.

RC stated that he did not know about these complaints when he wrote his letter of conditional registration in September 2003. We found that surprising with regard to annex A as it had been with the Respondents since April 2003 and been worked on by the despatch of the summary of complaints letter dated 24^th July 2003 (543). We found it surprising because RC knew about all the matters A to F by the time he wrote his unsigned letter of refusal dated the 17^th September 2004. We cannot reconcile that he would not have known at least about the complaint at annex A when he wrote his letter in September 2004.

We were very unhappy about the quality of the evidence given by RC. His mastery of the case seemed to be poor; his answers to questions of not only his own counsel but from JP and ourselves was most unsatisfactory and often appeared to be evasive. He seemed determined to pursue what in our view was a hopeless reason for the delay in dealing with the application for continued registration namely the absence of proof of professional indemnity insurance when he accepted that proof was there.

More astonishingly in view of the importance to the regulator and to the regulated of the conditional registration in September 2003 was his inexplicable reason for not diarising the audit that he had promised the Appellants ironically on the same date as the letter was despatched refusing continued registration (411).

We also found it quite extraordinary that when the Appellants had sought guidance from him concerning revisions to their client care letter, he dealt with this in a very slow and haphazard manner even though the Respondent’s policy was to “allocate an individual caseworker to offer guidance and support when required” (412). It seemed that the Respondents’ aim was to regulate in a way that did not require outside assistance in meeting the requirements of an audit or addressing issues raised at an audit. In other words the regulator was both using a carrot and a stick, but in our judgment in an inefficicient and inconsistent manner.

We were also concerned to note that the policy or practice of the Respondents was to give the lowest sanction in respect of clients’ complaints in every case unless the circumstances were exceptional. From that, we were entitled to draw the conclusion and did, that none of the complaints annexed to A to E were exceptional and that although the Respondents could have imposed alternative penalties as a matter of policy or practice decided to impose the lowest sanction possible. It was also conceded by RC that this was the first time a number of complaints determinations had been rolled up in order to come to the conclusion that the Appellants were no longer competent or otherwise unfit to provide immigration advice or services.

Whilst in principle we can see that that is a course of action the Respondents could take in appropriate circumstances, he would have to be sure that the cumulative effect satisfied him that the Appellant “is no longer competent or is otherwise unfit to provide immigration advice or immigration services … “.

However in this case we could not accept that the Respondent could properly come to that conclusion because all these complaints concerned events prior to September 2003. The letter dated 1^st September 2003 stated that the report was generally positive about the work of the firm although identified a number of shortcomings, those shortcomings were identified by breaches of the code and the Appellants were told in no uncertain terms that they must ensure that those breaches of the code do not occur in the future. The Appellants were also told that they would have an audit (presumably to check that the codes and the rules were being applied on the 24^th September 2004).

As that was the case, there would be no evidence without an audit which the Respondents could properly rely upon to support the refusal letter dated 24^th September 2004.

The reasons set out in the letter (540) make depressing reading. What is plain is that the caseworker has read through annexes A to E and then annex F and has recited the breaches. To take one example, at the conclusion of annex A (547) the Appellants were found to have breached a number of codes and rules. One of the rules is rule 16 namely charging for work that was not undertaken or had been undertaken unnecessarily. Accordingly in the reasons given by the caseworker at page 540,he states among other things, that the Appellants “ have overcharged clients and have charged clients where the application was unmeritorious in that it attracted a mandatory refusal. Nonetheless the caseworker concluded his letter at page 547 that “the Commissioner is reassured to know that Plancey & Co., has taken on board those issues and assure the Commissioner that they are now rectified “,but went on to add, somewhat confusingly, that “ It is for this reason that the Commissioner has decided to record the information contained in this letter so that it can be considered when Plancey &Co., next applies for registration to be continued”. In the light of these two sentences, it is not surprising that the Appellants felt confident to rely upon the assurance given in the letter of conditional registration dated 1^st September 2003 that there would be at least one further audit prior to the next re-registration.

Equally worryingly annex F dealt with the Appellants unwillingness to respond substantively to requests for information (584). The complaints determination concluded that the Respondent regarded this failure to co-operate as serious but did not impose any sanction just a mention that if it happened again he might have to consider cancelling registration (585). This has been immediately adopted by RC as one of the reasons for refusing continued registration. He stated “I also take into account the fact that you have not co-operated with the Commissioner in that you have failed to respond to requests for information in the Commissioner’s statement of complaint or to subsequent requests …..”.

It seems quite extraordinary that the ink on annex F was barely dry (it was dated 9^th September and the appeal period had not expired) that this was then used by RC in his letter which was originally dated the 17^th September, and which therefore must have been created before as it was circulated to caseworkers for their comments as a final explanation for refusing to continue registration when the caseworker on that particular matter had decided not to impose any penalty at all.

For these reasons we have come to the conclusion that the decision making process adopted by RC under delegated authority from the Commissioner is fundamentally flawed and could not be relied upon in support of the Respondents decision to refuse continued registration. Accordingly we were satisfied on the balance of probabilities that the Appellants appeal against this decision must be allowed.

Our powers to deal with appeals from decisions of the Commissioner are set out at section 87 of the 1999 Act. Having allowed the appeal against the decision of the Commissioner to record (87 (3) (f)) we then had to look at Section 88. Section 88 (2) gives us the power if we consider it appropriate to direct that the Commissioner quash the decision recorded (see Section 88 (2)(d)). We exercised our discretion as we considered it appropriate that as the appeal was allowed against the decision recorded it should no longer be recorded.

With regard to the decision to refuse the application for continued registration (section 87 (1) (d)) having allowed the appeal, it seemed to us that to do no more would leave the matter in a vacuum. Further the Appellants had applied for registration and as we have found that the Commissioner’s decision to refuse it was fundamentally flawed, it seemed appropriate for us to and therefore we directed the Commissioner to continue the Appellants’ registration pursuant to Section 88 (2)(a)). At first blush, and this point was discussed with counsel and the Appellant it seemed to us that we might also have a power under Section 88 (2) (b)). However upon reflection which we again discussed with the representatives, it seemed to us that paragraph (b) was only engaged if the appeal before us was against a decision to vary a registration pursuant to Section 87 (3)(e) and therefore we were firmly of the view that only paragraph (a) was engaged under Section 88 by virtue of us allowing this appeal.