The Care Tribunal Regulations (Northern Ireland) 2005

PART I INTRODUCTORY

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Care Tribunal Regulations (Northern Ireland) 2005 and shall come into operation on the 1st April 2005.

(2) In these Regulations –

“the Order” means the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003;

“the 2003 Order” means the Protection of Children and Vulnerable Adults (Northern Ireland) Order 2003(1);

“the 1995 Order” means the Children (Northern Ireland) Order 1995(2);

“the 1986 Order” means the Education and Libraries (Northern Ireland) Order 1986(3);

“the 2001 Act” means the Health and Personal Social Services Act (Northern Ireland) 2001(4);

“case” in Parts IV and VI means –

(a)

an appeal under Article 22 of the Order;

(b)

an appeal under Articles 78(A) and Article 94A of the 1995 Order;

(c)

an appeal under Article 11(1)(a) or (b) of the 2003 Order;

(d)

a determination under Article 11(2) of the 2003 Order;

(e)

an appeal under Article 27 of the 2003 Order;

(f)

appeals, determinations and applications for leave to appeal under Article 42 of the 2003 Order;

(g)

appeals under section 15 of the 2001 Act;

(h)

an appeal under Article 70(2) or Article 88A(2) of the 1986 Order;

“application for leave” means an application to the Care Tribunal –

(a)

for leave to appeal under Article 11(1)(b) or Article 42(1)(b) of the 2003 Order;

(b)

for leave for a determination by the Care Tribunal under Article 11 (2) or Article 42(2) of the 2003 Order;

“costs order” means an order under regulation 25;

“the Council” is the Northern Ireland Social Care Council established under Section 1 of the 2001 Act;

“the Department” means the Department of Health Social Services and Public Safety;

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

“the Education and Library Board” shall be construed in accordance with Article 3 of the 1986 Order;

“ HSS Board” means a Health and Services Board under the Health and Social Services (Northern Ireland) Order 1991(5);

“ HSS Trust” has the same meaning as in the Health and Personal Social Services (Northern Ireland) Order 1991;

“an institution of further education” shall be construed in accordance with Article 2(2) of the further Education (Northern Ireland) Order 1997(6);

“nurse” means a person registered in the register maintained under Article 5 of the Nursing and Midwifery Order (Northern Ireland) 2001, by virtue of qualification in nursing or midwifery as the case may be;

“medical practitioner” means a registered medical practitioner;

“a party” means either the applicant or the respondent;

“the DWC (NI) list” means the list of individuals who are considered unsuitable to work with children under Article 3 of the 2003 Order;

“the DWVA (NI) list” means the list of individuals who are considered unsuitable to work with vulnerable adults under Article 35 of the 2003 Order

“records” means the records of the Care Tribunal;

“relevant programme” means a programme included in a programme service within the meaning of the Broadcasting Act 1996(7);

“relevant social work” has the same meaning as in section 2(4) of the 2001 Act;

“the respondent” means –

(a)

in relation to an appeal under Article 22 of the 2003 Order, the Regulation and Improvement Authority;

(b)

in relation to an appeal under Article 78(A) or 94A of the 1995 Order the Regulation and Improvement Authority;

(c)

in relation to an appeal or an application for leave to appeal under Article 11 and 12 of the 2003 Order, the Department;

(d)

in relation to an appeal, an application for leave or a determination under Article 42 of the 2003 Order, the Department;

(e)

in relation to an appeal under regulations made in accordance with Article 70(2)(e) or 88(2)(b) of the 1986 Order the Department of Education;

in relation to an appeal under section 15 of the 2001 Act, the Council;

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

“school” has the same meaning as in Article 2 of the Order;

“vulnerable adult” has the same meaning as in Article 48(6) of the 2003 Order;

“working day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday within the meaning of the Banking and Financial Dealings Act 1971(8).

PART II CONSTITUTION

Powers and functions exercisable by the Care Tribunal

2.—(1) Anything which must or may be done by the chairman (except under regulation 5(1), (2), (4) or (5) or 26(4)), may be done by a member of the chairmen’s panel authorised by the chairman.

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

Requirements for membership of lay panel

3.—(1) A person may be appointed a member of the lay panel if he satisfies the requirements of –

(a) paragraph (2);

(b) paragraphs (3) and (4); or

(c) paragraph (5).

(2) The requirements of this paragraph are –

(a) experience in the provision of services –

(i) which must or may be provided by HSS Trusts under the 1995 Order or which are similar to such services;

(ii) for vulnerable adults;

(b) experience in relevant social work.

(3) The requirements of this paragraph are –

(a) experience in the provision of services by a HSS Board or HSS Trust;

(b) experience in the provision of education in a school or in an institution within the further education sector; or

(c) experience of being employed by an Education and Library Board in connection with the exercise of its functions under the 1986 Order.

(4) The requirements of this paragraph are –

(a) experience in the conduct of disciplinary investigations;

(b) experience as a member of an Area Child Protection Committee, or similar experience;

(c) experience of taking part in child protection conferences or in child protection review conferences, or similar experience; or

(d) experience in negotiating the conditions of service of employees.

(5) The requirements of this paragraph are –

(a) experience in carrying out inspections under Part VI of the Order;

(b) experience in carrying out inspections under the Registered Homes (Northern Ireland) Order 1992(9);

(c) experience in carrying out inspections under the 1995 Order;

(d) experience in managing an establishment or agency under Part III of the 2003 Order;

(e) experience in managing a children’s home under the 1995 Order;

(f) experience in managing the provision of health and personal social services;

(g) that the person is a nurse or medical practitioner who has experience of the provision of health services;

PART III APPEALS, DETERMINATIONS AND APPLICATIONS FOR LEAVE

Procedure for appeals, determinations and applications for leave

4.—(1) In the case of an appeal under Article 22 of the Order, the procedure set out in Schedule 1 shall apply.

(2) In the case of an appeal under Article 78A and Article 94A of the 1995 Order, the procedure set out in Schedule 2 shall apply.

(3) In the case of –

(a) an appeal under Article 11(1)(a) of the 2003 Order against a decision to include an individual in the DWC (NI) list;

(b) an application for leave under Article 11(1)(b) or (2) of the 2003 Order;

(c) an appeal under Article 11(1)(b) of the 2003 Order against a decision not to remove an individual from the DWC (NI) list under Article 3(3) of that Order;

(d) a determination under Article 11(2) of the 2003 Order as to whether an individual should be included in the DWC (NI) list;

(e) an appeal under regulations made in accordance with Article 70(2) or Article 88A(2)(b) of the 1986 Order,

the procedure set out in Schedule 3 shall apply.

(4) In the case of an application for review or an application for leave to seek review of disqualification from working with children under Article 27 or 28 of that Order, the procedure set out in Schedule 4 shall apply.

(5) In the case of –

(a) an application for leave to the Care Tribunal under Article 42(1)(b) or (2) of the 2003 Order;

(b) an appeal under Article 42 (1)(a) of the 2003 Order against a decision to include an individual in the DWVA (NI) list;

(c) an appeal under Article 42(1)(b) of the 2003 Order against a decision not to remove an individual from the DWVA (NI) list; or

(d) a determination under Article 42(2) of the 2003 Order as to whether an individual should be included in the DWVA (NI) list,

the procedure set out in Schedule 5 shall apply.

(6) In the case of an appeal under section 15 of the 2001 Act against a decision of the Council in respect of registration under the Part I of that Act, the procedure set out in Schedule 6 shall apply.

PART IV CASE MANAGEMENT

Appointment of Care Tribunal

5.—(1) The Department shall nominate members of the lay panel who appear to have experience and qualifications relevant to the subject matter of the case.

(2) The Department may at any time before the hearing (or if the case is to be determined without oral hearing, before the case is determined) nominate from the appropriate panel another person or other persons in substitution for one or both of the lay panel members.

(3) The Department shall appoint a person to act as Secretary to the Tribunal for purposes of the appeal.

Directions

6.—(1) If either party has requested that there shall be a preliminary hearing, or if the Chairman considers that a preliminary hearing is necessary, the Chairman shall fix a date for the preliminary hearing, as soon as possible after the expiry of the 5 working days referred to in paragraph 6 of Schedule 1, 2 , 4, or 6 or paragraph 9 of Schedule 3,or 5, as the case may be.

(2) At the preliminary hearing, or if a preliminary hearing is not to be held, as soon as possible after, and in any event not later than 10 working days after, the expiry of the 5 working days referred to in paragraph (1) the Chairman –

(a) shall give directions as to the dates by which any document, witness statement or other material upon which any party is intending to rely shall be sent to the Care Tribunal, and, if the Chairman considers it appropriate, to the other party;

(b) may give any other direction in exercise of his powers under this Part which he considers appropriate; and

(c) shall, where the applicant has requested that the case be determined without an oral hearing, give a direction as to the date, which shall be not less than 10 working days after the last date on which he has directed that any document, witness statement or other evidence be sent to the Care Tribunal, by which the parties shall send any written representations regarding their appeal to the Care Tribunal.

(3) If, at any time it appears to the Chairman that the appeal is of such a nature that it shall be determined at an oral hearing, he may (after considering any representations from the parties) direct that such a hearing shall be held but otherwise the case shall be determined without an oral hearing if the applicant has so requested.

(4) The Chairman may direct that exchange of witness statements or other material shall be simultaneous or sequential, as he considers appropriate.

(5) The Secretary shall notify the parties as soon as possible in writing of any directions the Chairman gives in writing under paragraphs (2) and (3) above.

(6) The Secretary shall notify the parties as soon as possible, and in any event not less than 5 working days before the hearing of the date, time and place of any preliminary hearing.

(7) The parties may be represented or assisted at any preliminary hearing by any person.

Fixing and notification of hearing

7.—(1) The Secretary in consultation with the Chairman must, fix a date for the hearing of the case unless the applicant has requested in writing that the case be determined without a hearing.

(2) The date fixed for the hearing shall be the earliest practicable date having regard to any directions which have been made by the Chairman with regard to the preparation of evidence but shall be no sooner than 15 working days after the latest date on which the Chairman has directed that the evidence of the parties (including the statements of any witnesses or experts) shall be filed or exchanged.

(3) The Secretary must inform the parties in writing of the date, time and place of the hearing no less than 20 working days before the date fixed for the hearing.

(4) The Secretary may, in consultation with the Chairman, alter the place of the hearing and, if he does, must without delay inform the parties in writing of the alteration.

(5) Subject to paragraph (6), the Chairman may adjourn the hearing, either on the application of either party or on his own initiative.

(6) The Chairman shall not adjourn the hearing unless satisfied that refusing the adjournment would prevent the just disposal of the case.

(7) If the Chairman adjourns the hearing, then the Secretary must, without delay, inform the parties in writing of the date, time and place at which the hearing will be resumed.

Appeal against secondary listing

(i) 8.  Where a person (“the applicant”) has been included in the DWC (NI) list under Article 3 of the 2003 Order and by virtue of Article 36(4) to (7) of that Order has also been included in the DWVA (NI) list, and the applicant accepts his inclusion on the DWC (NI) list and wishes only to appeal against his inclusion on the DWVA (NI) list then, the appeal is an appeal against the DWVA (NI) listing only;

(ii) Where a person (“the applicant”) has been included in the DWVA (NI) list under Article 35 of the 2003 Order and by virtue of Article 8(1) of that Order has also been included in the DWC (NI) list, and the applicant accepts his inclusion on the DWVA (NI) list and wishes only to appeal against his inclusion on the DWC (NI) list then, the appeal is an appeal against the DWC (NI) list only.

Multiple appeals

9.—(1) Subject to paragraphs (2) and (3), where two or more cases relate to the same person, establishment or agency, the Chairman may, on the application of either party or on his own initiative, direct that such cases shall be heard together if he considers it appropriate to do so.

(2) Where a person (“the applicant”) has by virtue of Article 40 of the 2003 Order, been included in the DWVA (NI) list pursuant to a reference under Articles 4, 5, or 6 of the 2003 Order or as a result of being named in a relevant inquiry under Article 7(2) of the 2003 Order then subject to paragraph (4) any appeal against inclusion in the DWVA (NI) list shall be joined with any appeal against inclusion in the DWC (NI) list and in that event the appeal against inclusion in the DWC (NI) list shall be heard first.

(3) Where a person (“the applicant”) has by virtue of Article 8 of the 2003 Order been included in the DWC (NI) list pursuant to a reference made under Articles 36, 37 or 38 of the 2003 Order, or as a result of being named in a relevant inquiry under Article 39 of that Order, then subject to paragraph (4) any appeal against inclusion in the DWC (NI) list shall be joined with any appeal against inclusion in the DWCA(NI) list and in that event the appeal against inclusion in the DWVA (NI) list shall be heard first.

(4) The applicant may request the Chairman in writing to give a direction that the appeals referred to in paragraph (2) or (3) shall be heard separately.

(5) Before making any direction under paragraph (1) the Chairman shall –

(a) where the direction which he proposes to give is at the request of either party, give the other party the opportunity to make written representations; or

(b) where the direction which he proposes to give is on his own initiative, give both parties the opportunity to make written representations.

(6) In considering whether to give a direction under paragraph (1), the Chairman shall take into account the following matters –

(a) any written representations made by either party;

(b) the increased cost of hearing the cases together or separately; and

(c) any unreasonable delay in hearing any case which would be caused by hearing the appeals together or separately.

(7) In considering whether to give a direction under paragraph (4) the Chairman shall take into account the following matters –

(a) any representations from the applicant which show he would be significantly disadvantaged if the appeals were to be heard together;

(b) the increased cost of hearing the appeals together or separately; and

(c) any unreasonable delay in hearing either appeal which would be caused by hearing the appeals together or separately,

and shall give a direction that the appeals be heard separately where he is satisfied that it would be unfair in all the circumstances to hear the appeals together.

Further directions

10.—(1) The Chairman may at any time on the application of either party or on his own initiative, vary any direction which he has given or give any further direction in exercise of any of his powers under this Part as he considers appropriate.

(2) Before making any further direction, or varying any direction under paragraph (1) –

(a) the Chairman shall, where the variation or further direction which he proposes to give –

(i) is at the request of either party, give the other party the opportunity to make written representations; or

(ii) is on his own initiative, give both parties the opportunity to make written representations;

(b) the Chairman may direct that there shall be a preliminary hearing in relation to any proposed variation or further direction if he considers it appropriate or if a preliminary hearing has been requested by either party.

Unless orders

11.—(1) The Chairman may at any time make an order to the effect that, unless the party to whom the order is addressed takes a step specified in the order within the period specified in the order, the case may be determined in favour of the other party.

(2) The Secretary shall give written notification of the order to the party to whom it is addressed and to the other party and shall inform him of the effect of paragraph (3).

(3) If a party fails to comply with an order addressed to him under this regulation, the Chairman may determine the case in favour of the other party.

(4) If, in the opinion of the Chairman, the party to whom an order referred to in paragraph (1) is addressed has acted unreasonably in failing to comply with an order addressed to him under this regulation, the Chairman may make an order for costs (“a costs order”) pursuant to regulation 25 requiring that party (“the paying party:) to make a payment to the other party (“the receiving party”) to cover costs incurred by the receiving party and, in such a case, the references in regulation 25 to “the Care Tribunal” shall have effect as if they were references to “the Chairman”.

(5) Where, in accordance with paragraph (3), the Chairman has determined the case in favour of the other party, the party to whom the order was addressed may apply to the Chairman (as the case may be), for that determination to be set aside.

(6) An application under paragraph (5) must –

(a) be made not later than 10 working days after the date upon which the notice of determination was sent to the party to whom the order was addressed; and

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

(7) In the case of an application under paragraph (5), the Chairman, may, if he considers that it is appropriate to do so, direct that the determination, and any costs order made pursuant to paragraph (4), be set aside and may give such directions in exercise of his powers under this Part as he considers appropriate.

(8) Before making a direction setting aside the determination, or any costs order, the Chairman may invite the parties to make representations on the matter within such period as he may direct.

(9) Where the determination, or any costs order, is set aside, the Secretary shall alter the relevant entry in the records.

Copies of documents

12.—(1) The Chairman may give a direction as to the number of copies of relevant material, which each party must send to the Care Tribunal and relevant material means, all documents, witness statements and other material on which the parties intend to rely or which they have been ordered by the Chairman to send to the Care Tribunal under this Part.

(2) The Chairman may, if he considers it appropriate to do so, direct the form and order in which relevant material shall be supplied to the Care Tribunal.

Disclosure of information and documents

13.—(1) Subject to paragraphs (3) to (5), the Chairman may give directions –

(a) requiring a party to send to the Care Tribunal any document or other material which he considers may assist the Care Tribunal in determining the case and which that party is able to send, and the Care Tribunal shall take such steps as the Chairman may direct, to supply copies of any information or document obtained under this paragraph to the other party;

(b) granting to a party the right to inspect and take copies of any document or other material which it is in the power of the other party to disclose, and appointing the date, time and place at which any such inspection and copying is to be done.

(2) Subject to paragraphs (3) to (5), the Chairman may give a direction on the application of either party, requiring a person who is not a party to the proceedings to disclose any document or other material to the party making the application, if he is satisfied that –

(a) the documents or other material sought are likely to support the applicant’s case or adversely affect the case of the other party;

(b) it is within the power of the person subject to the direction to disclose any document or other material; and

(c) disclosure is necessary for the fair determination of the case.

(3) It shall be a condition of the supply of any document or material under paragraph (1) or (2) that a party shall use it only for the purpose of the proceedings.

(4) Paragraphs (1) and (2) do not apply in relation to any document or material which the party could not be compelled to produce in legal proceedings in a county court.

(5) Before making a direction under paragraph (1) or (2), the Chairman shall take into account the need to protect any matter which relates to intimate personal or financial circumstances, is commercially sensitive, or was communicated or obtained in confidence.

Expert evidence

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

(2) The Secretary must supply the parties 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 Chairman sees fit, he may direct that the expert shall attend the hearing, and give evidence.

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

Evidence of witnesses

15.—(1) The Chairman may direct that the parties send to each other by the date specified in the direction a copy of a witness statement in respect of each witness on whose evidence he wishes to rely.

(2) A witness statement must contain the words “I believe that the facts stated in this witness statement are true”, and be signed by the person who makes it.

(3) The Chairman (before the hearing or, if the case is to be determined without an oral hearing, before the case is determined) or the Care Tribunal may direct that a document or the evidence of any witness other than the applicant shall be excluded from consideration because –

(a) it would be unfair in all the circumstances to consider it;

(b) the party wishing to rely on the document or evidence has failed to submit the document, or witness statement containing it, in compliance with any direction; or

(c) it would not assist the Care Tribunal in determining the case.

(4) Instead of excluding evidence under this regulation the Chairman or the Care Tribunal may permit it to be considered on such terms as he or it thinks fit, including, subject to regulation 25, the making of a costs order.

(5) The Chairman may direct that a witness (other than the applicant) shall not give oral evidence.

Withholding medical report from disclosure in exceptional circumstances

16.—(1) This regulation applies where the respondent wishes the Care Tribunal, in determining the case, to consider a medical report and the Chairman is satisfied –

(a) that disclosure to the applicant of all or any part of the contents of the 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 the report or that part of it is considered by the Care Tribunal.

(2) The Chairman may appoint a person having appropriate skills or experience to –

(a) assess whether disclosure of the report to the applicant would be harmful to the applicant’s health or welfare; and

(b) report on the matter to the Chairman.

(3) The Chairman may direct that –

(a) the report may be considered by the Care Tribunal; and

(b) all or any part of its contents must not be disclosed to the applicant.

Summoning of witnesses

17.—(1) The Chairman may, on the application of either party 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 Article 44(5) of the Order 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 Care Tribunal for the summons to be varied or set aside by the Chairman, and –

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

(b) the Secretary must notify him and the parties 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 or has consented to a shorter period of notice; and

(b) the necessary expenses of his attendance are paid or tendered to him by the party who requested his attendance or by the Care Tribunal, as the 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.

Child and vulnerable adult witnesses

18.—(1) A child shall only give evidence in person where –

(a) the Chairman has given the parties an opportunity to make written representations before the hearing or representations at the hearing; and

(b) having regard to all the available evidence, and the representations of the parties, the 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 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 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 Care Tribunal, the Chairman shall –

(a) give the parties the opportunity to make written representations before the hearing or representations at the hearing; and

(b) having regard to all the available evidence, including any written representations made by the parties consider whether it would prejudice the vulnerable adult’s welfare to give oral evidence to the Care Tribunal –

(i) in any circumstances; or

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

(4) If the Chairman considers that –

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

(b) it would prejudice the vulnerable adult’s welfare to give oral evidence to the Care 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 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 Chairman shall pay such fees as he may determine to any person appointed under this regulation.

Restricted reporting orders

19.—(1) If it appears appropriate to do so, the Chairman (or, at the hearing, the Care Tribunal) may make a restricted reporting order.

(2) 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 Northern Ireland, 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 Chairman or the Care Tribunal considers should not be identified.

(3) 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 Chairman before the hearing (or by the Care Tribunal at the hearing).

Exclusion of press and public

20.—(1) Where paragraph (2) applies, the Chairman (or, at the hearing, the Care Tribunal) may on his (or its) own initiative, or on a written request by either party 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 Chairman (or, at the hearing, the Care 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.

PART V HEARING

Procedure at the hearing

21.—(1) The Care Tribunal may regulate its own procedure.

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

(3) The parties may be represented or assisted at the hearing by any person.

(4) If either party fails to attend or be represented at the hearing, the Care Tribunal may hear and determine the case in that party’s absence.

Hearing to be in public

22.—(1) The hearing must be in public except in so far as any person is excluded under regulation 20.

(2) Whether or not the hearing is held in public any person whom the Chairman permits to be present in order to assist the Care Tribunal is entitled to attend the hearing.

(3) Whether or not the hearing is held in public, any person whom the Chairman permits to be present in order to assist the Care Tribunal may remain present during the Care Tribunal’s deliberations, but must not take part in the deliberations.

Evidence

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

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

(3) No child may be asked any question except by the Care Tribunal or a person appointed under regulation 18(2)(b).

(4) Where a direction has been made under regulation 18 that paragraph (5) of that regulation shall apply to any vulnerable adult, the vulnerable adult may not be asked any question except by the Care Tribunal or a person appointed under regulation 18(5).

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

(6) The provisions of Sections 38(5) and 43 of the Arbitration Act 1996(10) (administration of oaths, securing the attendance of witnesses) shall apply to the proceedings before the Care Tribunal and the Chairman of the Care Tribunal shall have the same powers under those provisions as if he were an arbitrator or a party to a reference under an arbitration agreement.

PART VI DECISION

The decision

24.—(1) The Care 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, whether there has been a hearing or not, the decision must be recorded without delay in a document signed and dated by the 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 chairman’s panel, by another member of the Care Tribunal).

(3) The document mentioned in paragraph (2) must also state –

(a) the reasons for the decision; and

(b) what, if any, order the Care Tribunal has made as a result of its decision.

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

(5) Where the appeal was against an order made by a Justice of the Peace under Article 21 of the Order, the Secretary must, as soon as reasonably practicable, send a copy of the document mentioned in paragraph (2) to the Justice of the Peace who made the order.

(6) 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.

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

Costs

25.—(1) Subject to regulation 32 and to paragraph (2), if in the opinion of the Care Tribunal a party has acted unreasonably in bringing or conducting the proceedings, it may make an order (a “costs order”) requiring that party (“the paying party”) to make a payment to the other party (“the receiving party”) to cover costs incurred by the receiving party.

(2) Before making a costs order against a party, the Care Tribunal must –

(a) invite the receiving party to provide to the Care Tribunal a schedule of costs incurred by him in respect of the proceedings; and

(b) invite representations from the paying party and consider any representations he makes, consider whether he is able to comply with such an order and consider any relevant written information which he has provided.

(3) When making a costs order, the Care Tribunal must –

(a) order the payment of any sum which the parties have agreed should be paid;

(b) order the payment of any sum which it considers appropriate having considered any representations the parties may make; or

(c) order the payment of the whole or part of the costs incurred by the receiving party in connection with the proceedings as assessed.

(4) Any costs required by an order under this regulation to be assessed may be assessed in a county court according to such rules applicable to proceedings in a county court as shall be directed in the order.

(5) A costs order may, by leave of a county court, be enforced in the same manner as a judgment or order of that court to the same effect.

Review of the Care Tribunal’s decision

26.—(1) A party may apply to the Chairman for the Care 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 Care Tribunal staff;

(b) a party, who was entitled to be heard at a 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 date on which the decision was sent to the party applying for the Care Tribunal’s decision to be reviewed; and

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

(3) An application under this regulation may be refused by the Chairman of the Care 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 parties have had an opportunity to be heard, by the Care Tribunal which decided the case or, where that is not practicable, by another Care Tribunal.

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

(a) the Care Tribunal shall serve notice on the parties not later than ten working days after the date on which the decision was sent to them; and

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

(6) If, on the application of a party or on its own initiative, the Care Tribunal is satisfied as to any of the grounds referred to in paragraph (1) –

(a) it shall order that the whole or a specified part of 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 a party to provide such particulars, evidence or statements as may reasonably be required for the determination of the review.

Powers of Care Tribunal on review

27.—(1) The Care Tribunal may, having reviewed all or part of a decision –

(a) set aside or vary the decision by certificate signed by the 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 Care Tribunal); and

(b) substitute such other decision as it thinks fit or order a rehearing before the same or a differently constituted Care Tribunal.

(2) If any decision is set aside or varied (whether as a result of a review or by order of the High Court), the Secretary shall arrange to 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 parties accordingly.

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

Publication

28.—(1) The Chairman must make such arrangements as he considers appropriate for the publication of Care 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 Chairman considers it appears 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 either party has provided in writing;

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

(e) the effect of any direction under regulation 16.

PART VII SUPPLEMENTARY

Method of sending documents

29.—(1) Any document may be sent to the Care Tribunal by post, by fax, electronically or through a document exchange, unless the Chairman directs otherwise.

(2) Any notice or document which these regulations authorise or require the Care Tribunal to send to a party shall be sent –

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

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

(c) where the party 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 a party in accordance with paragraph (2), the Chairman may dispense with service of it or direct that it be served on that party in such manner as he thinks appropriate.

(4) Any notice or document sent by the Secretary to a party 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), 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.

Irregularities

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

(2) Where any irregularity comes to the attention of the Chairman (before the hearing) or the Care 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 Care Tribunal or a direction or decision of the Chairman, or errors arising in such documents from accidental slips or omissions, may at any time be corrected by the 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 parties a copy of any corrected document together with reasons for the decision to correct the document.

Application on behalf of person under a disability

31.—(1) A person may, by writing to the Secretary, request authorisation by the Chairman to make any application to the Care Tribunal on behalf of any person who is prevented by mental or physical infirmity from acting on his own behalf.

(2) A person acting in accordance with an authorisation under this regulation may on behalf of the other person take any step or do anything which that person is required or permitted to do under these Regulations, subject to any conditions which the Chairman may impose.

Death of applicant

32.  If the applicant dies, before the case or application for leave is determined, the Chairman may –

(a) strike out the case or application for leave in so far as it relates to that individual without making a costs order;

(b) appoint such person as he thinks fit to proceed with the appeal in the place of the deceased applicant.

Amendment of appeal, application for leave or response

33.—(1) The applicant may amend the reasons he gives in support of the case or application for leave as the case may be, but only with the leave of the Chairman (or at the hearing, with the leave of the Care Tribunal).

(2) The respondent may amend the reasons he gives for opposing the applicant’s case or application for leave, as the case may be, but only with the leave of the Chairman (or at the hearing, with the leave of the Care Tribunal).

(3) Where the Chairman dismisses the proceedings under paragraph (1) or determines the case, or the application for leave in the applicant;s favour under paragraph (2), the references to the Care Tribunal in regulation 26 shall be read as if they were references to “the Chairman”.

(4) Where the Chairman or Care Tribunal gives leave to either party to amend the reasons given in support of his case, he may do so on such terms as he thinks fit (including, subject to regulation 25, the making of a costs order).

Withdrawal of proceedings or opposition to proceedings

34.—(1) If the applicant at any time notifies the Care Tribunal in writing, or states at a hearing, that he no longer wishes to pursue the proceedings, the Chairman (or at the hearing, the Care Tribunal) must dismiss the proceedings, and may, subject to regulation 25(2) and (3) make a costs order.

(2) If the respondent notifies the Care Tribunal in writing, or states at a hearing, that he does not oppose or no longer opposes the proceedings, the Chairman (or at the hearing, the Care Tribunal) –

(a) must without delay determine the case or, as the case may be, the application for leave in the applicant’s favour;

(b) subject to regulation 25 may make a costs order; and

(c) must consider making one.

Proof of documents and certification of decisions

35.—(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 Care Tribunal; or

(b) an order of the Chairman or of the Care Tribunal,

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

Time

36.—(1) The Chairman may having consulted the parties in the case 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 Chairman may reduce any time limit in these Regulations if he considers it reasonable to do so and the parties in the case agree to the reduction.

(3) Where the time prescribed by these Regulations, or specified in any direction given by the 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.

(4) This regulation does not apply to the time limits provided for initiating an appeal in paragraph 1 of Schedule 1 and paragraph 1 of Schedule 2.

PART VIII MISCELLANEOUS

Revocation

37.—(1) The Social Care Tribunal Rules (Northern Ireland) 2003(11) are hereby revoked.

(2) Any application or appeal which –

(a) was made to the Social Care Tribunal under the Social Care Tribunal Rules (Northern Ireland) 2003, before 1st April 2005 and

(b) the Social Care Tribunal has not determined before that date,

shall for the purposes of these Regulations be treated as having been made to the Care Tribunal under these regulations.

(3) Any direction or notice given, or thing done, by the Social Care Tribunal before 1st April 2005 shall for the purposes of these Regulations be treated as having been given or done by the Care Tribunal under these Regulations.

Sealed with the Official Seal of the Department of Health, Social Services and Public Safety on 21st March 2005.

L.S.

James F. Livingstone

A senior officer of the

Department of Health, Social Services and Public Safety