Public Law and Administration - Essay Example

? [PUBLIC LAW AND ADMINISTRATION] In this paper, advice on the possible success of a judicial review application, bringing action in private law or seeking redress through alternative grievance resolution mechanisms involving four different cases is provided. The cases involve four childcare nurseries, namely; Flowerpot Nursery, Lambkins Nursery, Kingdom Nursery and Elephant Nursery. Analysis of these various cases has been done in regards to The Nursery Registration Act 2013, which gives local authorities a duty to register and inspect childcare services, revoke registration and licences of nurseries and award grants to Childcare providers. Introduction Section 71, Part 1 of the Children Act 1989, requires that every local authority should keep a register of all childminders, within the authority’s area (The National Archives, 2013). All childcares should register with a regulatory authority such as Ofsted. These childcares include childminders and nurseries (Islington, 2013, p, 3). In running childcares such as nurseries, welfare requirements should safeguarded through child protection, suitability of people through appropriate training, maintenance of health and ensuring suitability of premises, environment and equipment. These requirements were reinforced by the death of Peter Connelly in 2007, whereby steps had to be taken to protect children from harm (Macleod, Hart, Jeffes, & Wilkin, 2010). There are various types of childcares that operate in the UK. Childcare on domestic premises refers to a case when four or more persons take care of children in someone’s home while childcare on non-domestic homes is when a person /organisation provides care for children on non-private premises (Ofsted, 2013). These include nurseries and village halls that are built with the purpose of providing children with care and education. They can be private nurseries, pre-schools and voluntary nurseries. Childminders are people who provide childcare for one or more children (Ofsted, 2013). These children are normally aged between zero to five years and they are not related to the childminders, and the childminders undertake this activity in someone’s home, usually their own home, with the aim of a reward (Ofsted, 2013). This paper provides advice on the possible success of a judicial review application, bringing action in private law or seeking redress through alternative grievance resolution mechanisms involving four different cases. These cases involve Flowerpot Nursery, Lambkins Nursery, Kingdom Nursery and Elephant Nursery. Advice is provided in regards to The Nursery Registration Act 2013, which gives local authorities a duty to register and inspect childcare services, revoke registration and licences of nurseries and award grants to Childcare providers. X (minors) v Bedfordshire County council a) Flowerpot Nursery The Flowerpot Nursery had its licence revoked by the local authority. Before, revocation of the nursery’s licence, there was a public hearing, which was chaired by the inspector who inspected the nursery and recommended revocation of the nursery & apos’s registration. The Flowerpot Nursery’s premises were pronounced unsafe for children because the equipment in the outdoor area had a serious health and safety risk to the children, according to the inspector. However, during the public hearing, The Flowerpot Nursery was not permitted to have legal representation. On the other hand, the local authority brought forward several expert witnesses to support the case for revocation, and owners of the Flowerpot Nursery did not get an opportunity to cross examine the expert witnesses. The Flowerpot Nursery has become insolvent due to the revocation of its licence. It should be noted that childcare centre’s buildings should comply with the Building Act, Building Regulations, London Buildings Act and the Department for Education (Islington, 2013, p, 10). Secondly, the local authority shall require that a childminder should secure premises on which to look after children. The equipment used in those premises should be adequately maintained and kept safe (The National Archives, 2013). It is a requirement the outdoor maintenance and sanitation requirements of a childcare centre are met. For instance, the building, land, walkways and outdoor play area should be free from hazards to the health, safety or well-being of the children in that the outdoor play area shall be graded or provided with drains to dispose surface water (State of New Jersey, 2013, p, 46). A local authority has the power to refuse licensing or revoke a licence in cases where it believes that activities, policies or staff conduct, may adversely affect or present a serious hazard to the education, health, safety, well-being or development of a child attending the centre (State of New Jersey, 2013, p, 9). After appropriate inspection, which should be carried out by the local authority covering the area where the nursery operates, there should be public hearings before a decision to deny an application or revoke a licence. Therefore, the childcare centre under investigation should be given an opportunity to request an administrative hearing. This should be in pursuant to the Administrative Procedures Act and the Uniform Administrative Procedure Rules (State of New Jersey, 2013, p, 11). Prior to recommendation and public hearing pertaining to the revocation of a licence, the licensing authority should carry out prompt and appropriate investigations (State of New Jersey, 2013, p, 11). Public hearings should be held in public, and they should involve both the opposing parties. According to the Ministry of Justice, UK, it is a general rule that a hearing should be public. A public hearing, which involves two or more parties is supposed to assist a proper examination of a particular case (Clarke & Morgan, 2007, p, 72). Everyone has the right to a fair and public hearing, within a reasonable period of time. Hearings must be before an impartial court that is independent (MoJ, 2006, p, 3). There should be a reasonable opportunity to the people who believe that their interest in property is affected by the proposed law or revocation to be heard and present their evidence, pertaining to the mater at stake. They should also be allowed to cross-examine evidence presented (Queen's Printer, 2013). Any expert witness should be cross examined by a defendant who is not guilt, given that an accused not guilty, until s/he is proven so. As much as the witness may be an expert whose evidence is crucial, cross-examination should be allowed because it may raise points of law that require legal expertise (Hannibal & Mountford, 2013, p, 150). In Wandsworth London Borough Council v Rashid (2009), EWHC 1844, it was held that it was wrong to rate a prosecution, under the environmental protection Act 1990, section 34, an abuse of process (CPS, 2013). It was also established that a court should only intervene when an abuse of process is plainly shown. However, courts have a prime duty to promote justice and prevent injustice (CPS, 2013). Given that The Flowerpot Nursery was not allowed legal representation in the public hearing, the decision of revocation of the nursery’s licence may not have been just and fair. In addition, the hearing was chaired by the inspector who inspected the premises of The Flowerpot Nursery and proposed revocation of the licence. Therefore, independence and impartiality was not observed. This is a case of breach or abuse of the process of public law administration. Thereby, it is recommendable that The Flowerpot Nursery should seek redress through a court of law because The Flowerpot Nursery lost business because of the revocation of their licence. It is only through courts that both parties will be given an equal opportunity to present their evidence. After, analysing the situation, affording the expert witnesses the burden of proof, it will then be established whether the revocation was fair, and if it was unfair, then The Flowerpot Nursery should be compensated by the local authority. (b) Lambkins Nursery Lambkins Nursery cares for 20 children, and is in need of more books. The nursery applied for a grant, but its application was unsuccessful. No reasons were given for the decision at the time when the refusal was communicated, but since then, an employee of the local authority has indicated that there is a policy in place which limits funding only to those institutions which care for over 25 children. The owners of Lambkins Nursery are concerned because the letter from the local authority confirming the refusal to give the grant was misplaced in the nursery’s office for 4 months. After a local authority registers a nursery under section 71 of The Children Act 1989, the local authority shall impose such reasonable requirements on such a nursery as considered appropriate. For instance, the local authority shall pacify the maximum number of children or the maximum number of children within specified age groups whom the registered nursery shall look after (The National Archives, 2013). In addition, local authorities are required to fund early learning places for children who are two years of age and below, which include schools and childminders. This funding should be made available to childcare nurseries, as long as the setting of nurseries is outstanding or good. Local authorities are responsible for securing alternative provision. The local authorities may also withdraw funding if a provider who offers childcare is rated inadequate by authorities such as Ofsted (Department for Education, 2013). Local authorities should not depart from their duties, as specified by sections 6,7,11 and 13 of the Childcare Act 2006, unless there is a good reason to do so (Department for Education, 2013). Local authorities are only required to partner with childcare centres, and offer funding when it is appropriate and they have funds (Scottish Family Information Service, 2013). Local authorities also have a responsibility of finding alternative funding for childcare centres that operate within their area of jurisdiction, and are in need of funds (Scottish Family Information Service, 2013). As much as there is a policy in place, which limits funding to only those institutions for over twenty five children, the local authority has a responsibility of ensuring that the reasons for refusal of providing a grant to Lambkins Nursery to purchase more books are communicated. Secondly, the local authority should have communicated to Lambkins Nursery that there is a policy that limits funding to childcare nurseries or institutions that care for twenty five or more children. Misplacement of the letter which confirmed the refusal of offering the grant to Lambkins Nursery by the nursery’s management complicates the matter. This is because there may be no evidence to confirm that refusal to offer a grant was unfair, with no reasons. Even if Lambkins Nursery sought redress through a court of law, its law suit may not be successful because there will be no evidence showing how the local authority failed to communicate the reasons for refusing to grant the nursery funding. This is in lieu with the provision that local authorities have the power to determine the minimum number of children that a childcare nursery should have to qualify for a grant. However, this policy should have been communicated in advance to the Lambkins Nursery. Based on the fact that the local authority failed to communicate its reasons and policies, redress may be possible, but this is rendered impossible by the misplacement of the local authority’s letter by Lambkins Nursery, a sign of negligence. Therefore, there is no evidence to show that indeed the local authority’s refusal to grant funding to the nursery. Furthermore, local authorities can decide which childcare nursery to offer funding to. (c) Kingdom Nursery Mrs. Fotheringill is the owner of Kingdom Nursery, and has relied on the assurance given to her by a junior official in the local authority & apos’s education department that the nursery would be entitled to a grant for the extension of the kitchen. Building works have now commenced, but Mrs. Fotheringill has been told that the nursery will not receive a grant because there are no more funds available, and the authority claims that any statements made by officials must be understood subject to a published funding policy, which included a clear statement, notifying applicants that all applications would be refused, if no further funding was available in the local authority’s budget. Local authorities should guarantee funding for all funding or all years providers who are rated outstanding, satisfactory or good in any of the OFSTED inspections. As much the local authorities have a discretion on which nurseries to fund, the UK government wants to ensure that all funding to nurseries is based on the outcome of OFSTED inspections only. Local authorities may restrict funding to start up early child education providers. In addition, local authorities can impose extra conditions, which child education providers should meet in order to qualify for funding (McCardl, 2013). Given the aforementioned provisions, which give local authorities the power to decide on how offer funding, it would be impossible for Kingdom Nursery to seek redress through a judicial procedure. In addition, the owner of Kingdom Nursery has been relying on an assurance given to her by a junior official in the local authority office. This is insider information, and the junior official of the local official may not influence the decision of the local authority. In this case, it impossible for Kingdom Nursery to continue pursuing a grant from the local authority because, under the current legal system, it is the discretion of the local authority to refuse applications for funding, if no further funding was available in the local authority’s budget. Secondly, reliance on information from junior officers and any other workers of the local authority by the owner of Kingdom Nursery amounts to insider dealing, which is a punishable legal offence. (d) Elephant Nursery Daisy, the owner of Elephant Nursery, faces the revocation of her nursery’s registration because the local authority believes that she is not a suitable person to operate a nursery. The local authority’s letter states that they have discovered that Daisy had previously made some controversial statements about the teaching of reading to young children in the media. The local authority argues that these statements render Daisy unsuitable to manage childcare facilities. Furthermore, the local authority propose revocation because they have discovered that Daisy was 3 days late in renewing a fire safety certificate for the nursery, which the local authority argues is a serious health and safety risk. The duty of care is owed to local authorities, depending on the circumstances, as they apply their statutory powers to protect children from abuse. For instance, in X v. Bedfordshire county council, it was established that no common duty was owed to local authorities for policy reasons, but depending on the circumstances, they were charged with duty of care (Wright, 2001). Therefore, the local authority had powers to decide who should learn a child care nursery, and who should be able to give safety of the children at the nursery first priority. Before any childcare nursery is registered, the qualifications of staff members of nursery should meet the local authority’s specifications. The manager of the nursery should have appropriate qualifications (Ofsted, 2013). These qualifications are a recognised nursery qualification and an experience of at least two years. S/he should also be acquainted with child protection issues (Inspiresme, 2013). General health and safety, as well as, fire safety should be observed. The law also requires that a manager of a nursery should ensure that s/he complies with local child protection procedures approved by the Area Child Protection Committee (Imperial UK, 2013, p, 7). All the people working at the nursery’s premises should put safety provisions into practice. For the case of owners, they should have appropriate experience and skills and ability to do their job (Imperial UK, 2013, p, 11). The local authority’s discovery by the local authority that Daisy had previously made some controversial statements about the teaching of reading to young children in the media, may be used as evidence that she is not suitable to operate a nursery. In addition, her late renewal of a fire safety certificate for the nursery implies that Daisy may not give safety the priority that it deserves, as far as childcare nurseries are concerned. A local authority has the jurisdiction to determine the suitability of any person who should operate a nursery. However, Daisy should be afforded an opportunity to request for a public hearing, where evidence for the revocation of registration of Elephant Nursery should be presented by the local authority. She should also be allowed to cross examine the evidence presented through legal representation before revocation of registration of her nursery is implemented. Every individual is entitled to the right to a hearing (Hooper & Ormerod, 2011, p, 153). According to Groves and Thomas (2013, p, 105), the public hearing should be fair, with legal representation, if necessary. References Clarke, R., & Morgan, E. J.,2007. New Developments in UK and EU Competition Policy. Cheltenham UK: Edward Elgar Press. CPS.,2013. Abuse of Process. Retrieved from http://www.cps.gov.uk/legal/a_to_c/abuse_of_process/ Department for Education.,2013, July 6. Early Education and Childcare. 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