Appeals from specialist regulatory tribunals: the court's role

A recent decision in the Sheriff Court, McLaggan v. The Scottish Social Services Council, concerned an appeal against the imposition of a Temporary Suspension Order ('TSO') under section 51 of the Regulation of Care (Scotland) Act 2001 ('the 2001 Act').

Background

The pursuer is employed as early childhood practitioner in a primary school. As a requirement of this role, she is registered with the Scottish Social Services Council ('SSSC'), the defenders in this action. Allegations were brought against the pursuer which, if proven, could result in a finding her fitness to practise was impaired and that she had breached the Codes of Practise for Social Service Workers. The SSSC sought a temporary order to be imposed on the worker's registration while they investigated the allegations. At a temporary order hearing, the Fitness to Practise Panel ('FTPP') decided that the imposition of temporary order was necessary to protect the public and to address the public interest concerns raised by this behaviour. The panel then had to decide if a TSO or Temporary Conditions Order ('TCO') would adequately address these concerns. The panel considered that a temporary conditions order may be appropriate but adjourned to facilitate enquiries into whether the pursuer's employer would be willing to comply with the conditions proposed. Thereafter, when the FTPP reconvened, they considered an email from the pursuer's employer indicating that they would not be able to comply with the conditions. The FTPP panel decided a TCO was therefore not appropriate and, instead, imposed a TSO.

Submissions

The pursuers appealed under section 51 of the 2001 Act on the basis that the decision by the FTPP was disproportionate, unnecessary and manifestly unfair and, in making this decision, the FTPP had acted unreasonably. The pursuers submitted that the imposition of a TCO required cooperation from the pursuer, not the employer. Accordingly, the email from her employer indicating it would not be able to comply with the conditions was an irrelevant and inappropriate consideration. The pursuer stressed that, in line with the Decisions Guidance for Fitness to Practise Panels and Scottish Social Services Staff, the least restrictive order must be considered first (i.e. TCO) and that a TSO must only be imposed where it is not possible to devise conditions which would adequately protect the public and address the public interest concerns.The defenders highlighted the FTPP had no power to compel anybody but a registrant to comply with a condition. Therefore, if the employer was not able or willing to comply with the condition, the imposition of such a condition would be pointless. Accordingly, the employer's emails were a relevant consideration. The defender submitted there had been no procedural impropriety by the FTPP. A TCO had been identified as a possibility, but on receiving further information, the panel concluded that such an order could not adequately protect the public or address the public interest concerns raised by the pursuers alleged behaviour.

Decision

The court reinforced that it is not the court's purpose in appeals of this nature to make the FTPP's decision again. The court is limited to considering if the decision reached by the FTPP was plainly wrong or manifestly inappropriate. The court was of the view that the information received from the employer was relevant to the question of whether a TCO was appropriate - if the employer had been supportive this would have allowed the pursuer to submit that a TCO should be imposed. The court was satisfied that there was no flaw in the process followed, or the reasoning of the panel, or that the decision they made was plainly wrong or manifestly inappropriate.

Commentary

This decision highlights the narrow scope of the court's power in relation to appeals from decisions of specialist tribunals. The purpose of the court in these cases is not to simply hear the case again and make a decision – that power is reserved for specialist panels with the knowledge and expertise to make such decisions. However, the role of the court is more supervisory; it can and will intervene but only where it is necessary due to a flaw in the reasoning or the process adopted by the panel or that the decision was plainly wrong or manifestly inappropriate.