IN THE UPPER TRIBUNAL			            Case Nos C/119/2009
ADMINISTRATIVE APPEALS CHAMBER                              and C/121/2009

Appellant:	Ofsted

Respondents:	GM and Mrs WM 

Heard at:	London (Royal Courts of Justice)

Date of Hearing:	31 March 2009

Date of Decision:	24 April 2009

Before:	Lord Justice Carnwath SP, Mr Justice Hickinbottom  and Upper Tribunal Judge Rowland

Attendances:	

For the Appellant:	Samantha Broadfoot of Counsel instructed by theTreasury Solicitor

For the Respondents:	Karl Rowley of Counsel instructed by William Graham Law Ltd

DECISION

The appeals are dismissed.  

REASONS FOR DECISION
The facts

1.	The Respondents are husband and wife and are childminders.  Mrs M has been registered since 6 January 2003 and Mr M has been registered since 1 October 2004.  The First-tier Tribunal said of them:

“Mr and Mrs M were well regarded as childminders.  There have never been any concerns about them in their practice, and they were felt to be carers who very much followed the procedures that were laid down.  The outcome of Ofsted inspections of their services as childminders was satisfactory in respect of Mr M and good in respect of Mrs M.  They had a substantial training record including safeguarding, child protection and medical procedures.  Both were proactive in their local childminding support group in which they were held in high regard.”

2.	In September 2008, they regularly cared for nine children (though not all at once) and among those children was a nine-month old boy (“A”), who was the son of neighbours and friends.  On Sunday 21 September 2008, A’s parents informed Mr and Mrs M that they were taking A to hospital because he had a swelling on the side of his head and they asked Mr and Mrs M to look after their dogs if they were late returning.  The following day, Mr M telephoned Ofsted to inform them that A had been taken to hospital.  Meanwhile, A was X-rayed.  Nothing abnormal was detected in relation to A’s skull.  However, a full skeletal survey was carried out and a doctor thought there might be a metaphyseal fracture of A’s left femur.  A was discharged from hospital on 22 September but the doctor recommended a further X-ray in two weeks’ time, which was arranged.  Unfortunately, his suspicion was not conveyed to Ofsted, which closed its file on 25 September and informed Mr M that no further action would be taken.

3.	On 16 October, the local authority children’s services department contacted Ofsted and told it that a review of A’s X-rays had revealed fractures of the skull and leg; that the doctor considered they would have been caused on separate occasions; that A’s parents had not offered any explanation; and that Mr and Mrs M were the only other people who cared for A.  Mr and Mrs M were served with notice of a six-week suspension of their respective registrations as childminders that day.  On 24 October, the suspensions were reviewed but not lifted.  Mr and Mrs M appealed to the care standards tribunal.  Ofsted’s response was received by the tribunal on 29 October, and the case was set down for hearing on 12 November.  In the witness statement accompanying Ofsted’s response, the tribunal was informed that Ofsted had been advised that there was a difference of medical opinion as to whether A had suffered a skull fracture and, if so, whether it was definitely non-accidental.  However, there was agreement that he had suffered a metaphyseal fracture to his left femur that was non-accidental.

4.	On 30 October, A was taken into care under an interim care order.  On 4 November, Mr and Mrs M were interviewed by the police under caution.  On 11 November, a further witness statement was made by Ofsted’s Area Manager, informing the tribunal of those last two events and saying: 

“3.	…  Ofsted asked Helen [of the Children’s Services Department, “the CSD”] what action they were taking in relation to the original issue regarding the child and the unexplained injuries – she advised us that it was in the Court’s hands now as an interim care order had been granted which gave them 8 weeks to decide what to do.  She thinks they will be looking at a full care order.  Ofsted asked if this was due to believing the parents were responsible for the injuries, she advised us that it was due to concerns that had been raised about the mother and it was thought that she had been over-exaggerating her illnesses.

4.	Also on 6 November, Champa Khanam from Ofsted spoke with DC Flint, who wanted to update us on the progress of the case.  She advised us that the Appellants had been interviewed on 4 November and she wanted to let us know that they had been very helpful.  She said that they had willingly handed their records over to DC Flint and answered all her questions.  They had stated that the injuries to the child did not occur whilst the child was in their care.  DC Flint has also interviewed the parents of child A and she would be compiling reports now.  She said she needed to go back to Doctor Chapman for further medical evidence and will then submit the information to the CPS.  She said this was likely to take around two weeks.  DC Flint assured Champa she would keep us updated with any developments.  Further to our solicitor’s request that DC Flint act as a witness before the Tribunal in this matter, she also informed us that she was not prepared to provide a witness statement for Ofsted as the Police have an active case that they are investigating into this matter, therefore this would not be appropriate at this time.

5.	…

6.	On 10 November, Ofsted spoke to DC Flint to confirm the Police’s position on this case.  Champa Khanam told DC Flint that the Appellants had indicated, through their solicitor, that the Police were not taking any further action.  DC Flint advised Champa that this was not correct as the Police had not yet decided what action they were going to take.  DC Flint said that the position remained the same – she is awaiting medical reports from Birmingham and Queen’s Medical Centre in Nottingham.  DC Flint will then present the file to the CPS.  Champa asked whether she would be making a recommendation either way regarding prosecuting to CPS, and DC Flint said she would not.  That decision lay with the CPS.”

5.	Following the hearing on 12 November 2008, the First-tier Tribunal – which by then had had transferred to it the relevant functions of the care standards tribunal – allowed the appeals and directed that the suspensions no longer have effect.  

6.	Ofsted now appeals against the decisions of the First-tier Tribunal with the permission of the Principal Judge (Care Standards) of the First-tier Tribunal.  The appeals have been heard by a three-judge panel because they raise issues of general importance as to the test to be applied when considering suspension of the registration of a childminder.  Ofsted is primarily interested in the general point of law and, in view of the passage of time, invites us not to set aside the tribunal’s decisions even if we are satisfied that they were wrong in law.

The legislation

7.	Provision for the registration of childminders in England is now made in the Childcare Act 2006.  Section 33 requires early years childminders to be registered, section 38 permits the imposition of conditions on registration and their variation or removal and section 68 makes provision for the cancellation of registration.  Cancellation under section 68(1) and (2) requires Ofsted to be satisfied that there has been some default on the part of the childminder.  Section 73 makes procedural provision in relation to applications for registration, the imposition of new conditions or the variation or removal of existing conditions and in relation to cancellation under section 68 of registration; but section 72 provides a faster process, by way of an application to a justice of the peace, for the cancellation of registration or the imposition, variation or removal of conditions.  It may be noted that section 72(2) provides that a justice of the peace may make an order only if it appears that a child “is suffering or is likely to suffer significant harm”, which is the same phrase as is used in section 31(2)(a) of the Children Act 1989 establishing the first of the “threshold criteria” for care orders and supervision orders.  

8.	Section 69 permits regulations to be made to provide for suspension of registration.  Regulations 8 to 13 of the Childcare (Early Years and General Childcare Registers) (Common Provisions) Regulations 2008 (SI 2008/976), as amended by paragraph 343 of Schedule 1 to the Tribunals, Courts and Enforcement Act 2007 (Transitional and Consequential Provisions) Order 2008 (SI 2008/2683), provide:
“Suspension of registration
8.  	The registration of a registered person may be suspended by the Chief Inspector, by notice, in the circumstances prescribed in regulation 9 for the period prescribed in regulation 10.
Circumstances in which registration may be suspended
9.  	The circumstances prescribed for the purposes of section 69(1) of the Act are that the Chief Inspector reasonably believes that the continued provision of childcare by the registered person to any child may expose such a child to a risk of harm.
Suspension of registration: further provisions
10.	(1) Subject to paragraph (2), the period for which the registration of a registered person may be suspended is six weeks beginning with the date specified in the notice of suspension given in accordance with paragraph (4).
  (2)	Subject to paragraph (3), in a case in which a further period of suspension is based on the same circumstances as the period of suspension immediately preceding that further period of suspension, the Chief Inspector’s power to suspend registration may only be exercised so as to give rise to a continuous period of suspension of 12 weeks.
  (3) 	Where, however, it is not reasonably practicable (for reasons beyond the control of the Chief Inspector)—
    (a) 	to complete any investigation into the grounds for the Chief Inspector’s belief referred to in regulation 9, or
    (b) 	for any necessary steps to be taken to eliminate or reduce the risk of harm referred to in regulation 9,
within a period of 12 weeks, the period of suspension may continue until the end of the investigation referred to in sub-paragraph (a), or until the steps referred to in sub-paragraph (b) have been taken.
  (4) 	A notice under regulation 8 may be given to the registered person—
    (a) 	by delivering it to the registered person,
    (b) 	by sending it by post, or
    (c) 	subject to paragraph (5), by transmitting it electronically.
  (5) 	If the notice is transmitted electronically, it is to be treated as given to the registered person only if—
    (a)	the registered person has indicated to the Chief Inspector a willingness to receive notices transmitted by electronic means and has provided an address suitable for that purpose, and
    (b) 	the notice is sent to that address.
Lifting of suspension
11.  	If, at any time during a period of suspension under regulation 8, it appears to the Chief Inspector that the circumstances prescribed in regulation 9 no longer exist, the Chief Inspector must lift the suspension. 
Appeal against suspension
12.	(1) A registered person whose registration has been suspended under regulation 8 may appeal to the First-tierTribunal against the suspension.
  (2)	On an appeal under paragraph (1), the First-tier Tribunal must either—
    (a) 	confirm the Chief Inspector’s decision to suspend registration, or
    (b) 	direct that the suspension shall cease to have effect.
  (3)	In a case where the suspension of a registered person’s registration ends before the First-tier Tribunal determines the appeal in accordance with paragraph (2), the First-tier Tribunal must dismiss the appeal.
Meaning of “harm”
13.  	In this Part of these Regulations, “harm” has the same meaning as in section 31(9) of the Children Act 1989.”

9.	The “Chief Inspector” is Her Majesty’s Chief Inspector of Education, Children’s Services and Skills, who acts through members of the staff of Ofsted.

The scope of an appeal to the First-tier Tribunal

10.	It was common ground before us, and we agree, that, on an appeal under regulation 12 of the 2008 Regulations, the First-tier Tribunal stands in the shoes of the Chief Inspector and so, in relation to regulation 9, the question for the First-tier Tribunal is whether, at the date of its decision, it reasonably believes that the continued provision of childcare by the registered person to any child may expose such a child to a risk of harm.
The grounds of appeal to the Upper Tribunal

11.	Ofsted’s first ground of appeal is that, in this case, the First-tier Tribunal misdirected itself because, in paragraph 12 of its statement of reasons for its decisions, it said that the question before it was whether there was a reasonable belief that continued childcare by Mr and Mrs Martin “would” expose any child in their care to a risk of harm.  Plainly, that is not the test posed by regulation 9.  However, the tribunal set out the correct test in paragraph 9 of its statement of reasons, when setting out the legislation, and in paragraph 25, when reaching its conclusion, and we are not satisfied that the tribunal did in fact misdirect itself as to the terms of the statutory test.  

12.	Ofsted’s second and third grounds of appeal are that the First-tier Tribunal misunderstood the evidence before it or made findings against the weight of the evidence.  In particular it is said that the tribunal placed weight on Ofsted’s closure of its file on 25 September 2008, apparently not understanding that Ofsted did so in ignorance of the suspected fracture, and it is said that the tribunal was perverse in finding that the fracture’s only manifestation was on an X-ray image, when it must have hurt the child.  However, we do not consider that these criticisms are made out on a reading of the decision as a whole and, in any event, they did not affect the tribunal’s conclusion.  Having considered the evidence, it clearly proceeded on the basis that there had been a fracture, stating at paragraph 24:

 “If it is to be assumed that physical abuse caused the fracture, it is certainly probable that either the appellants or A’s parents were the cause.”

13.	We were not impressed by Ms Broadfoot’s suggestion, faintly made, that the face of the tribunal decision – for example from the use of the word “certain” in paragraph 23 – showed that the tribunal had adopted the incorrect test for the suspension of registration under regulation 9.  Looking at the decision as a whole, we do not consider that is sustainable.  However, she submitted that the decision of the First-tier Tribunal was at best unclear as to the test that it had applied.  In particular, in circumstances in which investigations were still on-going – and the tribunal itself indicated that it considered that, as at 11 November, “It is plain that much investigation remains to be done into the circumstances” (paragraph 19) – she submitted that the tribunal failed to explain how and why the regulation 9 test was not satisfied.  

14.	That premise founded the last two grounds of appeal upon which Ms Broadfoot relied.  First, she submitted the tribunal erred in failing to identify and use the correct construction of regulation 9 – because, had it identified and used the correct construction, given that investigations were on-going it could not have come to the conclusion that the test was not satisfied.  That submission in substance amounted to a challenge to the tribunal’s decision on the basis that it was irrational or perverse, i.e. as investigations were on-going, then the only rational decision the tribunal could have reached is that the criteria of regulation 9 were satisfied.  In the alternative, she submitted that the tribunal erred in failing to give adequate reasons for deciding that the test was not satisfied.

15.	Those grounds of appeal require us to consider the criteria for suspension in regulation 9 in more detail.
The correct approach to regulation 9

16.	It is perfectly plain from the scheme of the legislation, including the limited period for which a suspension may be imposed, that suspension is intended to be only an interim measure.  Ms Broadfoot submitted that, seen in that light, it would be surprising if regulation 9 set more than a low threshhold, and she emphasised the words “may” and “risk”.  

17.	She compared the scheme under the 2006 Act with that of the Children Act 1989 under which (a) a child assessment order may be made (or an investigation required) where there is “reasonable cause to suspect that [a child] is suffering, or is likely to suffer, significant harm” (sections 43(1)(a) and 47(1)(b)), (b) emergency protection measures may be taken if there is “reasonable cause to believe that the child is likely to suffer significant harm” (section 44(1)(a) and see also section 46(1)), (c) an interim care order may be made where there are “reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2)” (section 38(2)), and (d) a final care order may be made where the court is “satisfied … that the child … is suffering, or likely to suffer, significant harm” (section 31(2)(a)).  The different language in those various provisions was considered significant by Baroness Hale of Richmond in In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35; [2009] 1 AC 11, in which she drew a distinction between threshold criteria for interim steps and the criteria for permanent steps.  Lady Hale said:

“54.	… [T[he Act draws a clear distinction between the threshold to be crossed before the court may make a final care or supervision order and the threshold for making preliminary and interim orders.  

…

58.	….  While the local authority may well take preliminary or preventive action based upon reasonable suspicions or beliefs, it is the court's task when authorising permanent intervention in the legal relationship between parent and child to decide whether those suspicions are well-founded. …”

18.	We see the force in Ms Broadfoot’s submissions on this point, with which Mr Rowley did not disagree.  In our judgment, it is no accident that the test in section 72(2) of the 2006 Act (for the summary cancellation of registration) is the same as that in section 31(2)(a) of the 1989 Act; and that the test in regulation 9 of the 2008 Regulations (for the suspension of registration) is different and obviously lower.  

19.	However, it is to be noted that the language of regulation 9 is different from the language used in any provision of the 1989 Act.  As in sections 44(1)(a), 46(1) and 38(2), the relevant concept is belief rather than suspicion but, on the other hand, it is belief that there “may be a risk of harm” rather than a belief that a child “is suffering, or is likely to suffer, significant harm”.  (The effect of the reference to section 31(2)(a) in section 38(2) is to make the test in section 38(2) more or less the same as that in sections 44(1)(a) and 46(1)),

20.	Some of the difference in language between regulation 9 of the 2008 Regulations and the provisions of the 1989 Act may not be important.  Although the word “significant” does not appear in regulation 9, both the general legislative context and the principle of proportionality suggest that the contemplated risk must be one of significant harm.  It is also possible that there may be no practical distinction in the child protection context between a risk of significant harm to a child and the likelihood of significant harm to a child.  Both may, of course, be inferred from a finding that a person who will care for a child has, in the past, inflicted significant harm on either that child or another child.  However, what is important is that regulation 9 is framed in terms that there may be a risk, whereas sections 44(1)(a), 46 and 31(2) are framed in terms that there is a likelihood.

21.	Ms Broadfoot initially submitted that the Care Standards Tribunal in LM v Ofsted [2003] 181.EYSUS had erred in saying that “‘reasonable cause to believe’ falls somewhere between the balance of probability test and ‘reasonable cause to suspect’ in section 47 [of the 1989 Act]”, whereas Mr Rowley invited us to approve that dictum.  However, both accepted that little was to be gained in this context by considering whether one statutory formulation meant exactly the same as another.  Regulation 9 is expressed in ordinary English and means what it says.

Suspension pending an investigation

22.	Regulation 9 sets a threshold but the mere fact that the threshold is passed does not necessarily mean that the power of suspension in regulation 8 must be exercised.

23.	The First-tier Tribunal observed that the 2008 Regulations do not expressly provide that the purpose of the first 12 weeks of suspension has to be either “to allow time for the circumstances giving rise to the Chief Inspector’s belief to be investigated” or “to allow time for steps to be taken to reduce or eliminate the risk of harm” as was the case under regulation 3(2) of the Child Minding and Day Care (Suspension of Registration) (England) Regulations 2003 (SI 2003/332) which the 2008 Regulations replaced.  However, Ms Broadfoot suggested that no change had been intended – and it is certainly difficult to see on what other grounds suspension under regulation 8 could be justified, given the statutory scheme for cancellation and for other urgent action under section 72, even though regulation 10(3) expressly applies those restrictions only to any extended period of suspension.  

24.	In any event, the suspension in the present case was for the purpose of allowing time for an investigation to be completed and it is necessary for us to consider how the power to suspend should be exercised in such a case.

25.	Where there is a suspicion or belief that a childminder may have caused a non-accidental injury to a child, the local authority children’s services department, the police and Ofsted may all be required to carry out investigations.  Those bodies are all involved because each has a different rôle, with the result that each of their investigations has a different goal.  Nonetheless, they are rightly expected to co-ordinate their efforts.  It may often be the case that Ofsted ends up as the junior partner, unable to carry out its own investigations straightaway lest it compromise other investigations that are considered more immediately important or because other investigators have greater expertise and powers.   However, where that is so, Ofsted is entitled to expect to be kept abreast of developments and assisted in its function of deciding whether it needs to take any action under the 2006 Act and, in the meantime, whether a suspension that has been imposed should be lifted.  Regulation 11 of the 2008 Regulations requires Ofsted to keep any suspension under review.

26.	Ms Broadfoot submitted that the approach to circumstances in which there are on-going investigations taken in MP v Ofsted [2005] 0618.EYSUS was correct.  In that case, a child had alleged that he had been injured by the childminder and an investigation into both that allegation and another, unspecified, allegation was under way.  The tribunal dismissed the childminder’s appeal against suspension, saying that it accepted that “the enquiry was neither frivolous nor that the allegations are bound to fail”.  Mr Rowley submitted that that was too low a test.  However, the observation of the tribunal was made in the context of a continuing police enquiry that (the tribunal had found) could have led to criminal charges against the childminder.  In that context, that observation seems to have been entirely appropriate.

27.	On the other hand, we do not consider that, in all cases, a suspension imposed while there is a police investigation need be maintained until that investigation is formally concluded.  If Ofsted is kept informed of the progress of an investigation, as it should be, it may be able to lift a suspension earlier.  What is important is that Ofsted should keep its focus on the steps it may need to take depending on the outcome of any investigation, because a suspension imposed on the ground that there is an outstanding investigation can, in our judgment, be justified only for as long as there is a reasonable prospect of the investigation showing that such steps are necessary.

28.	We stress that the exercise of the judgment required by regulation 8 will turn very much on the facts of a particular case.  If Ofsted wishes to resist an appeal against a suspension on the ground that further investigations need to be carried out, it needs to make it clear to the First-tier Tribunal what those investigations are and what steps it might wish to take depending on the outcome of the investigations.  It may well be, for instance, that the fact that a child has suffered a non-accidental injury that may have been caused by a childminder will prompt a detailed examination of the childminder’s records and interviews with other parents, conducted by Ofsted itself after the police have released any records they have seized and said they will not be interviewing such witnesses themselves.  If that be the case, Ofsted should explain that to the tribunal, because the tribunal must consider whether any continuation of the suspension has a clear purpose and therefore is capable of being proportionate having regard to the adverse consequences not only for the childminder but also for the children being cared for and their parents.
The present case

29.	In the present case, there appears to have been appropriate communication between Ofsted and the other agencies concerned.  The police, in particular, were conscious of the need to conduct their investigation speedily so that Mr and Mrs M were not prevented from earning their livelihood for longer than necessary.  Ofsted did keep the suspension under review.

30.	We presume that cancellation of registration would have been considered if it had emerged that it was probable that one or other of Mr and Mrs M had caused a non-accidental injury to A.  In any event, it was not suggested to the tribunal that there was any basis for considering that there might be a risk of harm to a child other than the possibility that Mr or Mrs M had caused a non-accidental injury.  No concerns had been expressed about Mr and Mrs M’s practices and the refusal to lift the suspension was said to be necessary solely because the Children’s Services Department and the police were still carrying out their investigations into the question of who injured A.  It was not suggested to the tribunal that Ofsted wished to carry out any additional investigations or that any action might be considered appropriate if the police and Children’s Services Department investigations did not produce evidence suggesting that it was probable that Mr or Mrs M had caused non-accidental injury.  The taking of any such precautionary action would, in any event, have been possible without awaiting the result of any investigation.

31.	However, if Ofsted was to take further action under section 72 of the 2006 Act, or even under section 68, based only on the fact that A had suffered one or two non-accidental injuries, it would have had to be satisfied that it was probable that one or other or both of the childminders had caused the injury.  Otherwise, Ofsted would have had no basis for showing that a child was likely to suffer harm (as required by section 72(2)), or that there had been any default on the part of the childminders (as required by section 68(1) or (2)).

32.	Insofar as the investigations of the police and CSD were covering all the ground that Ofsted would otherwise have had to cover itself, it was entitled to await progress in those investigations.  The crucial fact in the present case is that, by the date of the hearing before the First-tier Tribunal, neither the police investigation nor the CSD investigation had thrown up any evidence against Mr and Mrs M sufficient to support enforcement action.   Had it done so, Ofsted should have been informed and, more importantly, plainly would have been informed when enquiries were being made of the social services department and the police in the days before the hearing.  The question for the tribunal was therefore whether there was still a real possibility that evidence sufficient to support enforcement action against Mr and Mrs M would emerge from any investigation.

33.	As far as the police investigation was concerned, the answer is plainly “no”.  The investigation was complete, save for obtaining some further medical evidence.  Ms Broadfoot submitted that the medical evidence might have shown more positively that there had indeed been a fracture of the skull that was non-accidental.  That is true, but, as Ms Broadfoot accepted, it was inconceivable that the evidence would be such as to show that it was probable that Mr or Mrs M, rather then one or both of A’s parents, had caused the harm.  The police quite rightly said that the final decision whether to take further action was for the Crown Prosecution Service but that was immaterial.  The best evidence before the tribunal was that the police, who were in possession of all the evidence, including Mr and Mrs M’s records and evidence obtained in interview with A’s parents, were not only not proposing to recommend prosecution and but had also not suggested that they held evidence that might justify Ofsted taking enforcement action.

33.	The CSD’s investigation had a different focus, because it was concerned with the welfare of A.  It plainly had concerns about A’s parents that were unconnected with any allegation against Mr and Mrs M.  It had not suggested that the investigation so far had thrown up any evidence against Mr and Mrs M and even if it is assumed that A’s parents denied causing the harm and by implication that incriminated Mr and Mrs M, it is plain that if either the CSD or the police had found the parents convincing, they would have said so to Ofsted or would at least have made it clear to Ofsted that they were in possession of evidence incriminating Mr and Mrs M.  If the care proceedings had not at that stage produced any credible evidence against Mr and Mrs M, there was no reason to suppose that they might in the future.

34.	This case is therefore different from MP, because no allegation as such had been made against Mr and Mrs M.  Ofsted could not at any time have believed that there was a risk of harm to a child in the care of Mr and Mrs M.  On 16 October 2008, Ofsted could reasonably have believed that there might be such a risk, because it had evidence that someone had caused a non-accidental injury to A and Mr and Mrs M were among those who had had the opportunity to do so.  In other words, the investigation being undertaken in this case was not, in the first instance, for the purpose of deciding whether to accept an allegation that had been made but was for the purpose of considering whether an allegation should be made, in circumstances where, as things stood, there was evidence that merely raised the question whether Mr and Mrs M had caused significant harm to a child.  In this context, the language used in MP would not be appropriate.  To that extent only, we accept Mr Rowley’s submission as regards that decision.
Conclusion

35.	In our judgment, the threshold for suspending registration was plainly met on 16 October 2008.  However, by 12 November, suspension was no longer justified because there was no longer a real possibility that evidence sufficient to support enforcement action against Mr and Mrs M would emerge from any investigation.  

36.	Although we accept that the First-tier Tribunal may not have set out its analysis of its approach to regulation 9 as fully as it might have done, we consider that, looking at its decision as a whole, its approach to regulation 9 is reasonably clear and was in substance correct and in line with the analysis more fully set out in this decision.  We consider its resulting decision to be unimpeachable.  Whilst the statutory scheme particularly puts the First-tier Tribunal in the shoes of the Chief Inspector for the purposes of such matters – and consequently the judgment of that tribunal is worthy of especial respect – we should say that, on the evidence, we would have come to the same view as the tribunal below.  

37.	For those reasons, we do not consider that the tribunal erred in law, and we dismiss both appeals accordingly.  The decisions of the First-tier Tribunal (Health, Education and Social Care Chamber) dated 12 November 2008 consequently stand.

Lord Justice Carnwath SP

Mr Justice Hickinbottom

Upper Tribunal Judge Rowland