Sarwar v OFSTED, Court of Appeal, May 16, 2011, [2011] UKFTT 304 (HESC)

Resolution Date:May 16, 2011
Actores:Sarwar v OFSTED
 
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[2011] UKFTT 304 (HESC)1Sukpreet KaurTasleem SarwarVOFSTED [2010] 1763 EY 1786 EYDECISIONPanel Tribunal Judge Nancy Hillier Ms Marilyn Adolphe (Specialist member) Ms Caroline Joffe (Specialist member)Hearing held at Auchinlech House, Birmingham on February 28, March1,2,3,4,7,8,10 2011 and at Birmingham Magistrates Court on 9 March 2011.Deliberations held 8 and 20 April 2011.The Appellant attended the hearing and represented herself with assistance and representation by her father, Mr Singh Senior, her brother Mr Singh, Dr Sharma and Ms Sangha. She also had the assistance of a note taker throughout. The panel provided procedural guidance and legal information throughout to ensure she was not prejudiced by lack of legal representation.The Respondent was represented by Mr Martin Downs of Counsel.The panel heard the following oral evidence under oath:28 February PC SohalMarch 1 Mr and Mrs D- parents of child D Angela Blower - Support Teacher Birmingham City Council Esther Gray - Ofsted Regulatory Inspector. Team manager Sue Crawford- HMI in Ofsted Compliance and Investigation teamMarch 2 Sue Crawford Patsy McGhie- former Kare Babies employeeMarch 3 Sue Crawford Susan Riley- Early Years Inspector (Independent) Maybelline Dennis -Area Manager Early Years and Child Care Services Birmingham City CouncilMarch 4 Jan Keeling - Early Years Inspector. Team manager Johanna Holt- Ofsted Compliance Enforcement and Investigation professionalMarch 7 Tracey Linton - Assistant Partnership Officer Birmingham City Council Sian Piercy -Deputy Head Teacher Mayfield School Sonia Dhesi- witness called by Ms Kaur Marie Foster -Safeguarding Officer Birmingham City Council. Sarah Russell- former Kare Babies employee CD- mother of child DD Karam Jan - Ofsted witness, mother of Sarah Russell.March 8 Ferroza Saiyed-Early Years Inspector (Independent). Esther Gray- Regulatory Inspector. Team manager.March 9 Esther Gray Ms Kaur- Appellant.March 10 Ms KaurThe Tribunal was provided with a consolidated core bundle of documents and additional bundles containing extensive disclosure and other documentation. Ms Kaur produced very little evidence prior to the hearing despite frequent directions to do so. Her Counsel confirmed that it was not her intention to file any evidence at the penultimate telephone directions hearing. In fact Ms Kaur produced a series of documents on 28 February and during the course of the hearing. These documents were admitted and were considered by the panel as part of the overall consideration of the evidence. They comprise: (i) Written representations from Ms Kaur in response to Ofsted notice of intention to cancel registration - treated as her witness statement and dated 28 February 2011;(ii) First Applicant's Submissions part 1 (expert report of Simone Tennant-Smith 14 February 2011); (iii) First Applicant's Submissions Part 2 (collection of ``statements'' and handwritten documents);(iv) The statements of VD and AD dated 31 January 2011 (with associated handwritten documents); (v) The ``section 9'' statement of Naima Hussain.(vi) Photographs of Kare Babies nursery produced by Ms Kaur and by Ofsted.(vii) Ms Kaur's policies and procedures file from Kare Babies.(viii) Correspondence with Buckingham Palace and with an Member of Parliament.Ms Sarwar did not file any evidence other than in respect of illness. APPEAL1. Ms Kaur appeals pursuant to Childcare Act 2006 s74(1)(e) in relation to a Notice of Decision dated 20 April 2010 to cancel her registration as a day care provider.2. Ms Sarwar appeals pursuant to Childcare Act 2006 s74(1)(a) in relation to a notice of decision dated 17 May 2010 refusing her application to be a day care provider.3. The cases are not consolidated but a decision was taken on 28 July 2010 at a Telephone Case Management Hearing (TCMH) attended by all parties that they would be heard together since there is such an overlap between them. Both cases concern the same nursery, Kare Babies Day Nursery (Kare Babies) The Respondent had prepared a consolidated bundle and the witnesses are relevant to both cases. This decision covers both cases but applies a different burden of proof to each appellant.PRELIMINARY ISSUESNon attendance of Ms Sarwar4. Ms Sarwar did not attend the hearing on 28th February 2011. The panel considered whether to strike out her application for lack of cooperation with the tribunal under rule 8, to continue with the hearing in her absence under rule 27 or to adjourn the hearing.5. Mr Downs submitted that the two cases were being heard together because they were essentially based upon the same facts and it would be disproportionate to litigate the matter twice. 6. Ms Kaur and Dr Sharma stated that there were no objections to the matter proceeding in Ms Sarwar's absence. Ms Kaur submitted that ``There is no negative implications and no objections are taken to proceeding in her absence''(sic).7. The panel decided on 28 February to proceed with the hearing in Ms Sarwar's absence under rule 27 because we were satisfied that she had notice of the hearing, she had not communicated any application to adjourn the hearing nor had she given any reason for her non attendance. Ms Sarwar was aware of the hearing because she had attended TCMH hearings on 17 December 2010 and 28 January 2011 when the final hearing was discussed in great detail.8. On 1 March 2011, the Tribunal Service received a fax consisting of a Med 3 (a Statement for Fitness for Work, for social security or SSP) concerning Tasleem Sarwar which appeared to state that she was not fit for work for four weeks because of anxiety. The applicable dates were virtually illegible beyond the fact that the Med 3 appeared to have been issued in February 2011, probably on 26 or 28 February. 9. The fax was not accompanied by an application to adjourn the hearing by Ms Sarwar on grounds of sickness or any other reason. 10. The panel considered the fact that Ms Sarwar had failed to attend the final hearing in Loughborough on 23 November 2010 which had to be adjourned due to other reasons. She was directed to file medical evidence to confirm her illness (diarrhoea) which she did. She participated in the telephone hearings on 17 December 2010 and 28 January 2011 when the need to engage with the proceedings was stressed to her. She failed to attend the telephone hearing on 18 February 2011 and gave no explanation. She has filed very little evidence and had failed to comply with most of the directions made requiring her to file evidence despite verbally assuring the tribunal that she would do so.11. The panel considered the case of Synergy Child Services Ltd v Ofsted [2009] UKUT 125 (AAC) and issued directions on 2 March informing Ms Sarwar of the procedure if she wished to apply for an adjournment.12. By letter dated 4 March 2011 received on 8 March 2011 Ms Sarwar applied for an adjournment of the hearing, ``on medical grounds''. The hearing was at that stage on the 7th Day and the application did not comply with the requirements of the direction. The panel revisited the question of holding the hearing in the absence of Ms Sarwar and of adjourning. In considering Rule 27 and with reference to the overriding objective to deal with cases fairly and justly the panel decided to continue with the hearing and to refuse Ms Sarwar's application to adjourn. The panel considered the fact that these are very costly proceedings where the tribunal had heard 20 witnesses, the final hearing has already been adjourned once, and the appeal was already nine months old. Further, Ms Sarwar offered very little supporting material for her application, had not followed directions setting out the need for submitting evidence that she was unable to participate in the hearing and had given no explanation for the delay in her application. There was no evidence of prognosis as to when she may be able to participate in a hearing, indeed a detailed medical report as directed had still not been filed by April 20 when the panel concluded its' deliberations. The conclusion reached by the panel in all the circumstances was that it was appropriate, fair and just to continue with the proceedings in Ms Sarwar's absence and to refuse the application to adjourn.Whether either Ms Kaur or Ms Sarwar were prejudiced in any way from conducting their cases by police bail conditions imposed upon them13. The tribunal considered this at all telephone case management hearings and both Ms Sarwar and Ms Kaur were directed to supply copies of the relevant bail notices in order for the tribunal to be satisfied that there were no bail conditions preventing either from appropriate presentation or conduct of the case. On the documentation supplied the panel were satisfied that the bail conditions did not prejudice either Ms Kaur or Ms Sarwar, indeed both confirmed at the January 28 2011 telephone hearing and Ms Kaur confirmed at the hearing on 28 February 2011 that there were no difficulties with bail.Ms Kaur's application to admit a `statement' made by her and sent to the tribunal after 5p.m. on 25 February 2011. 14. Despite numerous directions and warnings in the course of the appeal proceedings Ms Kaur did not file a statement of her evidence. The document submitted on 25 February was similar to, but not identical to, a document previously submitted to Ofsted by Ms Kaur's solicitors in 2010. No objection was taken to its admission in evidence by Ofsted and the panel agreed to admit the document as it would provide some clarification of Ms Kaur's position. Ms Kaur's application to admit three `statements' by Naima Hussain dated 29.9.09, 27.4 10 and 23.2.2011.15. The document dated 29.9.09 was a handwritten letter to Ofsted. The second is a handwritten statement dated 27 April 2010 giving her address as Newport Road, Spark Brook and stating that she is willing to come and give evidence on behalf of the tribunal. The final...

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