EXPLORE LEARNING LTD, NOTE IN APPLICATION FOR LEAVE TO APPEAL BY EXPLORE LEARNING LTD AGAINST A DECISION OF THE SHERIFF APPEAL COURT [2019] ScotCS CSIH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> EXPLORE LEARNING LTD, NOTE IN APPLICATION FOR LEAVE TO APPEAL BY EXPLORE LEARNING LTD AGAINST A DECISION OF THE SHERIFF APPEAL COURT [2019] ScotCS CSIH_53 (12 November 2019) URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSIH_53.html Cite as: 2019 GWD 37-594, [2019] CSIH 53, [2019] ScotCS CSIH_53

[1] The applicant, Explore Learning Ltd, wishes to appeal a decision of the Sheriff

Appeal Court (SAC) dated 31 May 2019 in a summary application to the sheriff brought

under section 75 of the Public Services Reform (Scotland) Act 2010 and accordingly seeks

permission to do so. The respondent, Social Care and Social Work Improvement Scotland

(otherwise “the SCSWIS” or “the Care Inspectorate”), opposes the grant of permission.

[2] The respondent is a statutory body constituted by section 44 of the 2010 Act. It is the

statutory successor to the Scottish Commission for the Regulation of Care. The 2010 Act

replaces and materially re-enacts the Regulation of Care (Scotland) Act 2001. The 2001 Act

made and the 2010 Act makes, provision for the registration formerly by the Scottish

Commission for the Regulation of Care and now by the respondent, of care services,

[3] The summary application in terms of section 75 of the 2010 Act was an appeal by the

applicant against the cancellation, in terms of section 64 of the 2010 Act, of the registration of

certain services provided by the applicant at specified locations. The sheriff refused the

applicants’ appeal by interlocutor dated 9 October 2018. The SAC refused the applicant’s

[4] A number of grounds were put forward in the appeal by the applicant to the sheriff

and then again in the appeal to the SAC. However, the applicant now seeks to appeal

against the decision of the SAC of 31 May 2019 on one ground only which is set out in the

“a. The Sheriff Appeal Court erred in law to a material extent at paragraphs [37]

to [41] of the Opinion of Court when it held that the respondent did not have

a discretion to continue to register a ‘non-care provider’. The Court ought to

have held that the respondent erred in law to a material extent when it was

considering whether or not to cancel the applicant’s registration by failing to

take into account that it had a discretion to continue the applicant’s

registration even if it considered that the applicant had never provided

registered day care of children services. The respondent was not obliged to

cancel the applicant’s registration in such circumstances. It merely had a

discretion to do so. Although a person cannot provide a registerable care

service without first being registered with the respondent, the 2010 Act does

not state that only persons providing a registerable care service may be

registered: see section 59 of the 2010 Act. There is no prohibition on persons

not providing a registerable service from being registered by the respondent.

This discretion to register persons that are not providing a registerable care

service is explicitly recognised by section 64(4) of the 2010 Act. Maintaining

the applicant’s registration in such circumstances would not have been ultra

vires. This general discretion helps the respondent to fulfil its aims and

general principles which are set out in sections 44 & 45 of the 2010 Act. The

respondent’s discretion requires to be exercised reasonably after all relevant

and material circumstances had been taken into account: Donaldson v

Renfrewshire Council [2011] CSIH 66 at paragraphs [17] and [18]. It also

required a recognition that the decision making process in respect of a

decision whether or not to grant a registration for the first time, as the

relevant and material considerations would differ in each case. As the

respondent had a discretion to grant or maintain a registration even where no

registered care services were being provided, it was incumbent upon the

respondent to consider how to exercise its discretion in the particular

circumstances of this appeal. The respondent did not consider how to

exercise its discretion. It was not inevitable that the respondent would have

exercised its discretion against the applicant. This is a material error of law

which vitiates the Decision. For this reason alone, the appeal should have

[5] In terms of section 113(1) of the Courts Reform (Scotland) Act 2014 an appeal may be

taken to the Court of Session against a decision of the SAC constituting final judgment in

civil proceedings but only if (a) with the permission of the SAC, or (b) if that Court has

refused permission, with the permission of the Court of Session. Where an application for

permission is made to the Court of Session it falls to be considered, in terms of RCS 40.2, by

“(2) The Sheriff Appeal Court or the Court of Session may grant permission under

(a) the appeal would raise an important point of principle or practice, or

(b) there is some other compelling reason for the Court of Session to hear

[7] What, in relation to appeals from the SAC, is set out in section 113(2) of the 2014 Act

is usually referred to as “the second appeals test”. Discussion of and guidance in relation to

the application of the second appeals test is to be found in the opinion in Politakis v Spencely

2018 SC 184, under reference to Eba v Advocate General for Scotland 2012 SC (UKSC) 1, at

paragraph 48 and Uphill v BRB (Residuary) [2005] 1 WLR 2070, at paragraph 20 (and see also

Bridging Loans Ltd v Hutton [2018] CSIH 63, 2018 Hous LR 83 at paragraph 1; Khaliq v

Gutowski 2019 SC 136 at paragraph 43; and Aldabe v the Advocate General for Scotland

[2019] CSIH 35 (referred to in the respondent’s answers to the application in support of the

proposition that whether a proposed appeal was arguable was a relevant consideration)).

For present purposes it is sufficient to note that permission can only be granted if either the

section 113(2)(a) or the section 113(2)(b) criterion is satisfied; satisfaction of one or the other

is a necessary condition for a grant of permission. However, satisfaction of one or the other

criterion is not necessarily a sufficient condition for a grant of permission. Satisfaction of

either criterion only means that the relevant court (the SAC or the Court of Session) may

grant permission. In considering the exercise of its power in that situation it accordingly

appears to me that the court must have regard to the prospects of success in the proposed

appeal and the suitability of the particular case as a vehicle with which to advance such

point as it is intended to make (in so far as such a requirement is not already implicit within

the statutory criteria). I would see that as illustrated in the court’s approach in Politakis and

Aldabe. It is consistent with the submissions I heard both from Mr Lindsay QC, on behalf of

[8] Here the SAC has refused permission by interlocutor dated 23 July 2019. The

applicant has therefore renewed its application before this court. As far as the statutory

criteria are concerned the applicant relies on the section 113(2)(a) criterion: that the appeal

would raise an important point of principle or practice. In the Application this contention is

“a. The appeal raises an important point of principle or practice because it is

concerned with the existence of a general statutory discretion that the

respondent has to register, and to continue register, persons who are not

providing registerable care services; and the circumstances in which this

discretion falls to be exercised. This is an important point of principle which

is of general application. It is not limited to the particular facts and

circumstances of this appeal. It is important that the existence and extent of

this statutory discretion, if any, is clarified by the Court of Session as it will

have a considerable impact on the manner in which the current system of

registration is operated by the respondent. The respondent contends that it

has no such discretion whereas the applicant submits that it does have. This

issue of statutory interpretation has not been authoritatively determined by

the courts. The applicant is not merely contending that an established

[9] Mr Lindsay QC advanced his submission that I should grant permission by reference

to four propositions: (1) the SAC had erred in law; (2) the section 113(2)(a) criterion was

met; (3) it was for the procedural judge to consider the matter de novo; and (4) should the

court be against him it should not pronounce an interlocutor to that effect before allowing

the applicant four weeks’ grace in order to allow the applicant and its clients to disengage

from current arrangements and to give notice to the relevant authorities, including HMRC.

[10] As to Mr Lindsay’s proposition (1), it was his submission that, having decided that it

had power in terms of section 64(4) to cancel the applicant’s registration and having decided

that the applicant was not providing a registrable care service in the form of the day care of

children, the respondent had erred in proceeding on the basis that it was accordingly

obliged to cancel the applicant’s registration. The power conferred by section 64(4) was

discretionary: “the SCSWIS may cancel the registration of the service”; and not mandatory.

The respondent should therefore have given consideration to whether, in all the

circumstances of the case, the power should be exercised or not. The process should have

been carried out in two stages: (1) determining whether the power was available and

(2) determining whether it should be exercised; and not one stage, which had been the

approach of the SAC. A two-stage approach was consistent with the general scheme of

registration. The background was that the applicant had been providing a high quality and

well-regarded service for a long period of years which had proved popular with parents.

[11] Turning to his proposition (2), Mr Lindsay reiterated what appeared in the

Application: the proposed appeal raised an important point of principle or practice in that it

related to the correct interpretation and application of a statutory provision which had not

been the subject of consideration by the Inner House. If the applicant was correct this would

have a significant impact on the respondent’s practice not only in relation to its regulation of

day care for children but also the other care services listed in section 47 of the 2010 Act.

[12] As for proposition (3) the SAC had been in error in refusing permission on the view

that a question of statutory interpretation “is not something which can be considered to be

“this is a fairly particular and quite rare case (it has been described as an oddity) and

that is because we do not know, nor has it been established, the basis on which

[13] I did not require Mr Lindsay to elaborate on his proposition (4). I was prepared to

accept, subject to anything said by Mr Logan, that cancellation of registration (the result of

refusing permission) would cause difficulty and inconvenience and that if that could be

avoided by granting a short period of grace it should be. As it turned out Mr Logan

[14] In making his submissions, Mr Logan adopted what was set out in the Answers to

the Application. The statutory test was a high one but his primary objection to Mr Lindsay’s

submission was that the proposed ground of appeal had no prospect of success. The idea

that registration, with its associated costs, should be maintained in respect of services which

were not registrable simply because it was “a good idea” to do so, was a startling one. The

applicant’s operations were attracting substantial amounts of public money on the basis of

[15] Agreeing with Mr Lindsay, I accept that the jurisdiction of the Court of Session to

grant permission or not arises de novo; it is not a question of reviewing the refusal by the

SAC on 23 July 2019. However, in exercise of that jurisdiction I shall refuse permission to

appeal the SAC’s decision of 31 May 2019 to the Court of Session. My reasons are as follows.

[16] I consider that Mr Logan was entitled to regard the proposition that the services

provided by the applicant should remain registered under chapter 3 of part 5 of the 2010 Act

even although they were not services that chapter 3 contemplated as being registrable was a

startling one. It may be that the applicant’s services are of a high standard and much valued

by those who receive them. It also may be that registration affords benefits, reputational

and otherwise, for the applicant. I do not see that as being relevant. The proposed ground

of appeal, that the respondent made a material error in law in not recognising that it had a

discretion not to cancel the registration of what are now accepted not to be care services and

therefore not exercising that discretion in a rational way has, in my opinion, no prospect of

success. I accept that section 64(4) of the 2010 Act is permissive in its terms rather than

mandatory; “may” means may. In that sense it can be said to confer a discretion but that is

rather different from saying, as I understood Mr Lindsay to say, that section 64(4) opens up

a “general discretion” requiring the respondent to consider all the circumstances which

might bear on a decision immediately to cancel or not to cancel the registration of a service

which has been found not to be a care service. Although it originally argued to the contrary,

the applicant now accepts that the respondent was entitled to conclude that the services

provided by the applicant did not constitute the “day care of children” as that expression fell

to be construed in terms of section 47(1)(l) of and schedule 12 to the 2010 Act, as modified by

the Scottish Ministers in terms of the Social Care and Social Work Improvement Scotland

(Excepted Services) Regulations 2012. The applicant further now accepts that the

respondent accordingly had power to cancel the applicant’s registration by virtue of

section 64(4). The applicant does not now contend that the service it is providing is the “day

care of children”, or is otherwise such that it requires to or in terms of section 61 may be

registered. Rather, as appears from its proposed ground of appeal, it accepts that the service

it is providing is not “registrable”. Given these circumstances, while the power conferred by

section 64(4) is permissive or enabling in its nature, once it found that that the applicant was

not providing “day care of children” it became the respondent’s duty to exercise the

section 64(4) discretion by cancelling the applicant’s registration: cf Sheffield Corporation v

Luxford [1929] 2 KB 180 at 183. I agree with the opinion of the SAC at paragraph [39], taking

it to mean that section 64(4) does not create a discretion not to cancel a registration which is

found to be in respect of services which do not require to be registered and to which

section 61 does not apply. I see there to be no prospect of successfully arguing to the

contrary. For that reason I will refuse permission to appeal. Additionally, I would not

consider this appeal to “raise” an important point of principle or practice. What is in issue is

the interpretation and application of a statutory provision. The SAC has determined the

correct interpretation. As far as application is concerned, the existence and effect of a

discretion not to cancel a non-registrable service, was not a point raised in any of the

exchanges between parties prior to the respondent making its decision. It was not a point

put before the sheriff. It is therefore difficult to see that the supposed error in law was

[17] As I have already indicated, Mr Logan had no objection to the applicant’s being

given a period of grace as asked for by Mr Lindsay. I accordingly agreed not to sign an

interlocutor refusing permission until four weeks had passed from the date of the hearing on

10 October 2019. The respondent is entitled to an award of its expenses from the applicant.

Scottish Court of Session Decisions