The Protection of Children and Vulnerable Adults and Care Standards Tribunal (Review of Disqualification Orders) Regulations 2006

• Citation: S.I. 2006/1929
• Sections: 27

Section 1 Citation, commencement and interpretation

(1) These Regulations may be cited as the Protection of Children and Vulnerable Adults and Care Standards Tribunal (Review of Disqualification Orders) Regulations 2006 and shall come into force on 15th August 2006.

(2) In these Regulations—

“ the Act ” means the Criminal Justice and Court Services Act 2000 ;

“application”, except in regulations 3(1), 8(5) and 19, means an application under regulation 3;

“appropriate conditions” means the conditions set out in section 33(3) or (4) of the Act;

“case” in Parts 4, 5 and 6 (except in regulation 19(5)) means an application which has been granted leave to proceed;

“the clerk” means, in relation to a hearing before the Tribunal, the person appointed by the Secretary to act as clerk to the Tribunal,

“document” means information recorded in writing or in any other form;

“grant conditions” means the conditions set out in section 33(5) of the Act;

“lay panel” means the panel appointed pursuant to regulation 3 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 , and references to membership of the lay panel shall be construed accordingly;

“nominated chairman” means the chairman appointed by the President in accordance with regulation 8;

“ the Order ” means an order made under sections 28, 29 or 29A of the Act;

“records” means the records of the Tribunal;

“the Secretary” means the person for the time being acting as the Secretary to the Tribunal;

“vulnerable adult” means a person of 18 years and over who—

suffers from a mental disorder within the meaning of the Mental Health Act 1983 , or otherwise has a significant impairment of intelligence and social functioning; or

has a physical disability or is suffering from a physical disorder;

“working day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday in England and Wales within the meaning of the Banking and Financial Dealings Act 1971 .

Section 2 Powers and functions exercisable by the President and Secretary

(1) Anything which must or may be done by the President (except under regulation 8(1), (2), (4) or (5) or 19(4)), may be done by a member of the chairmen’s panel authorised by the President .

(2) Anything which must or may be done by the Secretary may be done by a member of the Tribunal’s staff authorised by the Secretary.

Section 3 Initiating an application

(1) A person who wishes to make an application to the Tribunal under sections 32 and 33 of the Act must do so in writing to the Secretary.

(2) Applications may be made on the application form available from the Secretary.

(3) An application must—

(a) give the applicant’s name, date of birth and full postal address;

(b) give the date of the Order to which the application relates together with details of any change in the applicant’s circumstances since the Order was made that leads the applicant to believe that he should no longer continue to be subject to the Order;

(c) give the date of any previous application;

(d) give the name, address and profession of the person (if any) representing the applicant;

(e) give the address within the United Kingdom to which the Secretary should send documents concerning the application;

(f) give, where these are available, the applicant’s telephone number, fax number and e-mail address and those of the applicant’s representative; and

(g) be signed and dated by the applicant.

Section 4 Acknowledgement and notification of application

(1) On receiving an application, the Secretary shall—

(a) immediately send an acknowledgement of its receipt to the applicant; and

(b) subject to the following provisions of this regulation, enter particulars of the application and the date of its receipt in the records.

(2) If the President is of the opinion that the applicant is asking the Tribunal to do something which it cannot do, he may notify the applicant in writing—

(a) of the reasons for his opinion; and

(b) that the application will not be entered in the records unless within five working days the applicant notifies the President in writing that he wishes to proceed with it.

(3) If in the Secretary’s opinion there is an obvious error in the application—

(a) he may correct it;

(b) he shall notify the applicant accordingly; and

(c) unless within five working days of receipt of the notification under sub-paragraph (b) of this paragraph the applicant notifies the Secretary in writing that he objects to the correction, the application shall be amended accordingly.

Section 5 Misconceived applications etc.

(1) The nominated chairman may at any time strike out an application on the grounds that—

(a) except where paragraph (2) applies, it is made otherwise than in accordance with the provisions in the Act or in these Regulations for initiating that application;

(b) it is outside the jurisdiction of the Tribunal or is otherwise misconceived; or

(c) it is frivolous or vexatious.

(2) The nominated chairman shall strike out an application if the appropriate conditions are not satisfied.

(3) Before striking out an application under paragraph (1), the nominated chairman must—

(a) invite the applicant to make representations on the matter within such period as he may direct;

(b) if, within the period specified in the direction, the applicant so requests in writing, afford the applicant an opportunity to make oral representations; and

(c) consider any representations the applicant may make.

Section 6 Grant or refusal of leave

(1) The nominated chairman shall grant or refuse leave to proceed with an application without a hearing in accordance with the following provisions of this regulation.

(2) If, in the opinion of the nominated chairman the grant conditions are met, then leave shall be granted; otherwise it shall be refused.

(3) The Secretary must without delay notify the applicant in writing of the decision of the nominated chairman, and if he has refused leave—

(a) must notify him of his reasons for doing so; and

(b) must inform the applicant of his right to request a reconsideration of the decision under regulation 7.

Section 7 Reconsideration of refusal of leave

(1) The nominated chairman must reconsider a decision to refuse leave to proceed with an application if, within ten working days after receipt of a notice under regulation 6(3), the Secretary receives a written request to do so from the applicant.

(2) If in his request under paragraph (1) the applicant has asked to make oral representations about leave at a hearing, the Secretary must fix a hearing for those representations to be heard, and the applicant may appear or be represented by any person at that hearing.

(3) If the nominated chairman again refuses leave after reconsideration—

(a) he must give his reasons for doing so in writing; and

(b) the Secretary must without delay send to the applicant a copy of the decision of the nominated chairman and, if he has refused leave, of his reasons for doing so.

Section 8 Appointment of Tribunal

(1) The President shall, at such time as he considers it appropriate to do so, nominate a chairman to determine the grant or refusal of leave to proceed with an application.

(2) The President shall, at such time as he considers it appropriate to do so, nominate a chairman and two members of the lay panel to determine the case.

(3) The President may, at any time before the hearing (or, if the application is to be determined without an oral hearing, before the application is determined) nominate from the appropriate panel another person in substitution for the chairman or other member previously nominated.

(4) The President shall nominate members of the lay panel who appear to him to have experience and qualifications relevant to the subject matter of the case.

(5) The nominated chairman may determine any application made in relation to the case.

Section 9 Directions and preliminary issues

(1) Following the grant of leave under regulation 6, the Secretary shall, without delay, send a notice to the applicant informing him of his right to appear, and to be represented, before the Tribunal to argue his case.

(2) Where the applicant, before the end of the period of 28 days beginning with the date on which the notice under paragraph (1) is sent, sends a notice to the Secretary stating that he wishes to appear before it, the Secretary shall fix a day on which the Tribunal is to hear the case and send to the applicant notice of the day, time and venue for the hearing.

(3) The Secretary shall not fix a date for the hearing which is before the end of the period of 28 days beginning with the date on which the applicant sends the notice referred to in paragraph (2) to the Secretary.

(4) The applicant may be represented or assisted in any proceedings by any person.

(5) The Tribunal (or the nominated chairman) may require any person (other than the applicant) to attend and give evidence or produce documents at the hearing.

(6) The Tribunal (or the nominated chairman) may invite any person who, in its, or his, opinion, has an interest in the proceedings to submit written representations and any such representations shall be sent to the Secretary before the end of the period of 14 days beginning with the date on which the invitation is sent to that person.

(7) If the applicant requests a preliminary hearing, or if the nominated chairman considers that a preliminary hearing is necessary, or would be helpful, the nominated chairman shall fix a date for such a hearing as soon as possible.

(8) At any preliminary hearing which the nominated chairman conducts under paragraph (7), he may give such directions as he considers appropriate.

(9) The Secretary shall notify the applicant and his representatives in writing of any directions the nominated chairman gives under paragraph (8) above.

Section 10 General Conduct of Hearing

(1) The Tribunal may regulate its own procedure.

(2) At the beginning of the hearing the nominated chairman must explain the order of proceedings which the Tribunal proposes to adopt.

(3) The applicant has the right to give evidence at the hearing in person, and any other person may do so unless the nominated chairman has directed otherwise.

(4) The Tribunal may consider any evidence, whether or not such evidence would be admissible in a court of law.

(5) The Tribunal may require any witness to give evidence on oath or affirmation which may be administered for the purpose by the nominated chairman or the clerk.

(6) Subject to paragraph (7), the nominated chairman may adjourn the proceedings from time to time either at the request of the applicant or on his own initiative.

(7) The nominated chairman shall not adjourn the hearing at the request of the applicant unless satisfied that refusing the applicant’s request for an adjournment would prevent the just disposal of the application.

(8) If the nominated chairman adjourns the hearing, then the Secretary must, without delay, inform the applicant in writing of the date, time and venue at which the hearing will be resumed.

(9) If the applicant fails to attend or be represented at the hearing, the Tribunal may determine the case in his absence.

Section 11 Hearing to be in public

(1) The hearing must be in public except in so far as any person is excluded under regulation 16.

(2) Whether or not the hearing is held in public—

(a) a member of the Council on Tribunals;

(b) the President;

(c) the clerk; and

(d) any person whom the nominated chairman permits to be present in order to assist the Tribunal,

are entitled to attend the hearing.

(3) Whether or not the hearing is held in public—

(a) a member of the Council on Tribunals; and

(b) the President,

may remain present during the Tribunal’s deliberations, but must not take part in those deliberations, except where the President is the nominated chairman of the Tribunal.

Section 12 Summoning of witnesses

(1) The nominated chairman may, upon being requested to do so by the applicant, or on his own initiative, issue a summons requiring any person—

(a) to attend as a witness at the hearing, at the date, time and place set out in the summons; and

(b) to answer any questions or produce any documents or other material in his possession or under his control which relate to any matter in question in the case.

(2) The summons must—

(a) explain that it is an offence under section 9(5)(c) of the Protection of Children Act 1999 to fail, without reasonable excuse, to comply with it; and

(b) explain the right to apply under this regulation to have it varied or set aside.

(3) A person summoned under this regulation may apply in writing to the Secretary for the summons to be varied or set aside by the nominated chairman, and—

(a) the nominated chairman may do so if he sees fit; and

(b) the Secretary must notify him and the applicant in writing of the decision.

(4) No person shall be required to attend, answer questions or produce any document in obedience to a summons issued under this regulation unless—

(a) he has been given at least 5 working days' notice of the hearing; and

(b) the necessary expenses of his attendance are paid or tendered to him by the applicant or by the Tribunal, as the nominated chairman shall direct.

(5) No person shall be required under this regulation to give any evidence or produce any document or other material that he could not be required to produce in legal proceedings in a county court.

Section 13 Child and vulnerable adult witnesses

(1) A child shall only give evidence in person where, having regard to all the available evidence, and any representations made by the applicant, the nominated chairman considers that the welfare of the child will not be prejudiced by so doing.

(2) If he directs that a child shall give evidence in person, the nominated chairman shall—

(a) secure that any arrangements he considers appropriate (such as the use of a video link) are made to safeguard the welfare of the child; and

(b) appoint for the purpose of the hearing a person with appropriate skills or experience in facilitating the giving of evidence by children.

(3) Where the nominated chairman believes that it might not be in the best interests of a vulnerable adult for the vulnerable adult to give oral evidence to the Tribunal, the nominated chairman shall, having regard to all the available evidence, including any representations made by the applicant, consider whether it would prejudice the vulnerable adult’s welfare to give oral evidence to the Tribunal—

(a) in any circumstances; or

(b) otherwise than in accordance with paragraph (5).

(4) If the nominated chairman considers that it—

(a) would prejudice the vulnerable adult’s welfare to give oral evidence to the Tribunal in any circumstances, he shall direct that the vulnerable adult shall not do so; or

(b) would prejudice the vulnerable adult’s welfare to give oral evidence to the Tribunal otherwise than in accordance with paragraph (5) he shall direct that paragraph (5) shall apply in relation to the vulnerable adult.

(5) If he directs that this paragraph shall apply in relation to the vulnerable adult, the nominated chairman shall—

(a) secure that any arrangements he considers appropriate (such as the use of a video link) are made to safeguard the welfare of the vulnerable adult; and

(b) appoint for the purpose of the hearing a person with appropriate skills or experience in facilitating the giving of evidence by vulnerable adults.

(6) The Tribunal shall pay such reasonable fees as the nominated chairman may determine to any person appointed under this regulation.

Section 14 Expert evidence

(1) The nominated chairman may, if he thinks that any question arises in relation to the case on which it would be desirable for the Tribunal to have the assistance of an expert, appoint a person having appropriate qualifications to enquire into and report on the matter.

(2) Subject to regulation 15, the Secretary must supply the applicant with a copy of any written report received under paragraph (1) in advance of the hearing or, if the case is to be determined without an oral hearing, before the case is determined.

(3) If the nominated chairman sees fit, he may direct that the expert shall attend the hearing, and give evidence.

(4) The Tribunal shall pay such reasonable fees as the nominated chairman may determine to any person appointed under this regulation.

Section 15 Withholding medical report from disclosure in exceptional circumstances

(1) This regulation applies where the report received under regulation 14(1) consists of, or includes, a medical report and the nominated chairman is satisfied—

(a) that disclosure to the applicant of all or any part of the contents of the medical report would be so harmful to his health or welfare that it would be wrong to disclose it to him; and

(b) that in all the circumstances it would not be unfair if that report, or that part of it, is considered by the Tribunal.

(2) The nominated chairman may appoint a person having appropriate skills or experience to assess whether disclosure of the medical report, or any part of it, to the applicant would be harmful to the applicant’s health or welfare and report on the matter to the nominated chairman.

(3) The nominated chairman may direct that—

(a) the medical report or any part of its contents must not be disclosed to the applicant; and

(b) that report, or that part of it, may be considered by the Tribunal.

(4) The Tribunal shall pay such reasonable fees as the nominated chairman may determine to the person mentioned in paragraph (2).

Section 16 Exclusion of press and public

(1) Where paragraph (2) applies, the nominated chairman (or, at the hearing, the Tribunal) may on his (or its) own initiative, or on a request by the applicant that the hearing or any part of it should be conducted in private, direct that—

(a) any member of the public specified in the direction;

(b) members of the public generally; or

(c) members of the press and members of the public,

be excluded from all or part of the hearing.

(2) This paragraph applies where the nominated chairman (or, at the hearing, the Tribunal) is satisfied that a direction under paragraph (1) is necessary in order to—

(a) safeguard the welfare of any child or vulnerable adult;

(b) protect a person’s private life; or

(c) avoid the risk of injustice in any legal proceedings.

Section 17 Restricted Reporting Orders

(1) Where paragraph (2) applies, the nominated chairman (or, at the hearing, the Tribunal) may make a restricted reporting order.

(2) This paragraph applies where the nominated chairman (or, at the hearing, the Tribunal) is satisfied that a direction under paragraph (1) is necessary in order to—

(a) safeguard the welfare of any child or vulnerable adult;

(b) protect a person’s private life; or

(c) avoid the risk of injustice in any legal proceedings.

(3) A restricted reporting order is an order prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify the applicant, any child, any vulnerable adult or any other person who the nominated chairman or the Tribunal considers should not be identified.

(4) An order that may be made under this regulation may be made in respect of a limited period and may be varied or revoked by the nominated chairman before the hearing (or by the Tribunal at the hearing).

Section 18 The decision

(1) The Tribunal’s decision may be taken by a majority and the decision shall record whether it was unanimous or taken by a majority.

(2) The decision may be made and announced at the end of the hearing or reserved, and in any event, the decision must be recorded without delay in a document signed and dated by the nominated chairman (or if as a result of his death or incapacity he is unable to sign, or if he ceases to be a member of the chairmen’s panel, by another member of the Tribunal).

(3) The document mentioned in paragraph (2) must also state the reasons for the decision.

(4) The Secretary must, as soon as reasonably possible, send to the applicant a copy of the document mentioned in paragraph (2) and a notice explaining to him any right of appeal which he may have against the Tribunal’s decision, and the right to apply for a review of the Tribunal’s decision.

(5) Except where a decision is announced at the end of the hearing, the decision shall be treated as having been made on the day on which a copy of the document mentioned in paragraph (2) is sent to the applicant.

(6) The decision shall be entered in the records.

Section 19 Review of the Tribunal’s decision

(1) The applicant may apply to the President for the Tribunal’s decision to be reviewed on the grounds that—

(a) it was wrongly made as a result of an error on the part of the Tribunal staff;

(b) a person, who was invited (or required) to attend and be heard at the hearing but failed to appear or to be represented, had good and sufficient reason for failing to appear; or

(c) there was an obvious error in the decision.

(2) An application under this regulation must—

(a) be made not later than ten working days after the day on which the decision was sent to the applicant; and

(b) must be in writing stating the grounds in full.

(3) An application under this regulation may be refused by the President, or by the chairman of the Tribunal which decided the case, if in his opinion it has no reasonable prospect of success.

(4) Unless an application under this regulation is refused under paragraph (3), it shall be determined, after the applicant has had an opportunity to be heard, by the Tribunal which decided the case or, where that is not practicable, by another Tribunal appointed by the President.

(5) The Tribunal may on its own initiative propose to review its decision on any of the grounds referred to in paragraph (1) above, in which case—

(a) the Secretary shall serve notice on the applicant not later than ten working days after the date on which the decision was sent to him; and

(b) the applicant shall have an opportunity to be heard.

(6) If, following an application, or on its own initiative, the Tribunal is satisfied as to any of the grounds referred to in paragraph (1)—

(a) it shall order that the decision be reviewed; and

(b) it may give directions to be complied with before or after the hearing of the review.

(7) The power to give directions under paragraph (6) includes a power to give a direction requiring the applicant to provide such particulars, evidence or statements as may reasonably be required for the determination of the review.

Section 20 Powers of Tribunal on review

(1) The Tribunal may, having reviewed a decision—

(a) set aside the decision by certificate signed by the nominated chairman (or if as a result of his death or incapacity he is unable to sign, or if he ceases to be a member of the chairmen’s panel, by another member of the Tribunal); and

(b) substitute such other decision as it is lawfully entitled to do, or order a rehearing before the same or a differently constituted Tribunal.

(2) If any decision is set aside (whether as a result of a review or by order of the High Court), the Secretary shall alter the relevant entry in the records to conform to the chairman’s certificate or the Order of the High Court and shall notify the applicant accordingly.

(3) Any decision of the Tribunal under this regulation may be taken by a majority and the decision shall record whether it was unanimous or taken by a majority.

Section 21 Publication

(1) The President must make such arrangements as he considers appropriate for the publication of Tribunal decisions.

(2) Decisions may be published electronically.

(3) The decision may be published in an edited form, or subject to any deletions, if the nominated chairman considers it appropriate bearing in mind—

(a) the need to safeguard the welfare of any child or vulnerable adult;

(b) the need to protect the private life of any person;

(c) any representations on the matter which the applicant has provided in writing;

(d) the effect of any subsisting restricted reporting order; and

(e) the effect of any direction under regulations 9(8), 15 or 19(6).

Section 22 Methods of sending documents

(1) Any document may be sent to the Secretary by post, by fax, electronically or through a document exchange, unless the nominated chairman directs otherwise.

(2) Any notice or document which these Regulations authorise or require the Secretary to send to an applicant shall be sent—

(a) by first-class post to the address given for the purpose by the applicant in accordance with these Regulations;

(b) by fax or electronically to a number or address given by the applicant for the purpose; or

(c) where the applicant has given for the purpose an address which includes a numbered box number at a document exchange, by leaving the notice or document addressed to that numbered box at that document exchange or at a document exchange which transmits documents on every working day to that exchange.

(3) If a notice or document cannot be sent to an applicant in accordance with paragraph (2), the nominated chairman may dispense with service of it or direct that it be served on the applicant in such manner as he thinks appropriate.

(4) Any notice or document sent by the Secretary to an applicant in accordance with these Regulations shall be taken to have been received—

(a) if sent by post and not returned, on the second working day after it was posted;

(b) if sent by fax or electronically, unless the Secretary has been notified that the transmission has been unsuccessful, on the next working day after it was sent;

(c) if left at a document exchange in accordance with paragraph (2)(c), on the second working day after it was left; and

(d) if served in accordance with a direction under paragraph (3), on the next working day after it was so served.

Section 23 Irregularities

(1) Any irregularity resulting from failure to comply with any provision of these Regulations or any direction given in accordance with them before the Tribunal has reached its decision shall not of itself render the proceedings void.

(2) Where any irregularity comes to the attention of the nominated chairman (before the hearing) or the Tribunal he or it may and, if it appears that any person may have been prejudiced by the irregularity shall, before reaching a decision, give such directions as he or it thinks just to cure or waive the irregularity.

(3) Clerical mistakes in any document recording the decision of the Tribunal or a direction or decision of the nominated chairman, or errors arising in such documents from accidental slips or omissions, may at any time be corrected by the nominated chairman by means of a certificate signed by him.

(4) The Secretary shall as soon as practicable where a document is corrected in accordance with paragraph (3) send the applicant a copy of any corrected document together with reasons for the decision to correct the document.

Section 24 Death of applicant

If the applicant dies before the application is determined, the nominated chairman may strike out the application.

Section 25 Withdrawal of application

If the applicant at any time notifies the Secretary of State in writing, or states at a hearing, that he no longer wishes to pursue the application, the nominated chairman (or at the hearing, the Tribunal) must dismiss the application.

Section 26 Proof of documents and certification of decisions

(1) A document purporting to be issued by the Secretary shall be taken to have been so issued, unless the contrary is proved.

(2) A document purporting to be certified by the Secretary to be a true copy of a document containing—

(a) a decision of the Tribunal; or

(b) an order of the President or the nominated chairman or of the Tribunal,

shall be sufficient evidence of the matters contained in it, unless the contrary is proved.

Section 27 Time

(1) The nominated chairman may extend any time limit mentioned in these Regulations if in the circumstances—

(a) it would be unreasonable to expect it to be, or to have been, complied with; and

(b) it would be unfair not to extend it.

(2) The nominated chairman may reduce any time limit mentioned in these Regulations if he considers it reasonable to do so and the applicant agrees to the reduction.

(3) Where the time prescribed by these Regulations, or specified in any direction given by the nominated chairman, for taking any step expires on a day which is not a working day, the step must be treated as having been done in time if it is done on the next working day.