COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Mitting
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MANCE
SIR WILLIAM ALDOUS
| Andrew Moore and Others
|- and -
|(1)Care Standards Tribunal
(2) Commission for Social Care Inspection
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Roger McCarthy QC (instructed by Hill Dickinson Solicitors) for the Respondents
Crown Copyright ©
Sir William Aldous :
"3.(1) For the purposes of this Act, an establishment is a care home if it provides accommodation, together with nursing or personal care, for any of the following persons.
(2) They are –
(a) persons who are or have been ill;
(b) persons who have or have had a mental disorder;
(c) persons who are disabled or infirm;
(d) persons who are or have been dependent on drugs.
(3) But an establishment is not a care home if it is –
(a) a hospital;
(b) an independent clinic; or
(c) a children's home,
or if it is of a description excepted by regulations."
"108. We have reached the unanimous decision that the eleven homes are establishments providing accommodation together with nursing or personal care for persons with a mental disorder (s3(1) Care Standards Act 2000). We wish to emphasise what we have stated in paragraph 60 above that our decision in this case is in no way a statement that the service users are better provided for in a care home environment than in a supported living environment."
"(3) 'Domiciliary care agency' means, an undertaking which consists of or includes arranging the provision of personal care in their own homes for persons who by reason of illness, infirmity or disability are unable to provide it for themselves without assistance.'"
"31. The 'establishment' or 'it' must provide accommodation together with 'nursing or personal care'. As far as accommodation is concerned, it is provided by a room and facilities within a building which the owner permits the resident to occupy and make use of. As far as nursing or personal care is concerned, they have to be provided 'together', but they need not be provided by the same company or individual. Although 'person' is referred to in the singular in section 11(1), the Interpretation Act permits that singular to include the plural. Thus, as the Tribunal held, there was nothing to prevent an establishment from being carried on by two companies, Alternative Housing and Alternative Futures together. Both could carry it on, and if they did so, both required to be registered. In fact, as the facts found by the Tribunal and the terms of the tenancy agreements show, both accommodation and services were to be provided, and were provided, by Alternative Housing.
32. Does the fact that the accommodation element as provided by means of an assured tenancy mean that the establishment ceases to be a care home within section 3? The answer is: not in principle. Nothing in the Act or the Regulations excludes expressly or by necessary implication the provision of accommodation by that means; and accommodation is still provided by the 'establishment' as defined. A detailed examination of the terms of the tenancy agreements reveals nothing that conflicts with the obligations of the service provider in the Regulations.
33. Mr de Bono suggested that there was a conflict, and chose as his example, Regulation 16(2)(d), which provides:
"The registered person shall have regard to the size of the care home and the number and needs of service users …
(d) permit service users, so far as it is practicable to do so, to bring their own furniture and furnishings into the rooms they occupy.
34. Nothing in the tenancy agreement prevents any resident from doing just that, although the schedule which includes provision for depreciation of furniture and white goods suggests that they are, in fact, provided by Alternative Homes. Given that analysis of section 3, and the Tribunal's findings the claimants continued to be accommodated and to receive care in an establishment within section 3, were the Commission right to refuse to cancel the registrations, and the Tribunal to dismiss Alternative Futures' appeal? Subject to a possible argument that Alternative Homes should have been substituted, the answer is clearly: yes. … "
Lord Justice Mance: I agree
Lord Justice Waller: I also agree