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A CARE HOME, Re [2002] EWCST 32(NC) (29 November 2002)

In Re: A CARE HOME
[2002] 32 NC.

His Honour Judge David Pearl (President)
Mr Peter George
Mr John Hutchinson

GUIDANCE NOTE

On 22^nd November 2002, the applicant, through his Counsel, stated at the hearing that he no longer wished to pursue the proceedings. In these circumstances, Regulation 33(1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 states that the Tribunal must dismiss the proceedings and, subject to Regulation 24(2)(3) may make a costs order. Accordingly, the Tribunal dismissed the proceedings and an Order to that effect was drawn up and signed by both Counsel and by the President on behalf of the Tribunal. The Respondent did not seek a costs order, and the Tribunal made No Order as to Costs.
Mr R McCarthy QC on behalf of the Respondent invited the Tribunal "to publish a decision which gives some guidance on the correct approach to transfer of conditions and categories." The purpose of this invitation was to assist parties in outstanding appeals on the same or similar appeals to reach agreement or to narrow the issues.
The Tribunal took time to consider whether it had power to go beyond dismissing the appeal. Regulation 33 does not provide the power, although of course it does not prevent the Tribunal issuing guidance of the kind urged upon us. More worrying is s 21 Care Standards Act 2000 which in s 21(5) limits the Tribunal to varying any condition for the time being in force, to direct that any such condition shall cease to have effect, and to direct that any such condition as it thinks fit shall have effect.
On a strict reading of s 21, it is clear that there is no express power to publish guidance. However, we are sympathetic to the view that the Tribunal has a role to play in this important area of social policy. Already, within its jurisdiction, in the case of MacBride v Secretary of State for Education and Skills (Case no 80 of the Protection of Children Act Tribunal), the Tribunal established under s9 of the Protection of Children Act 1999 (which remains the statutory basis of the Care Standards Tribunal) has issued recommendations both of a specific kind and of a more general kind to help the development of that area of social policy. In Secretary of State for Health v C, [2002] EWHC 1381 (Admin), Scott Baker J (as he then was) states that the Tribunal "is set up with the specific expertise to resolve [the present kind of case]". The Judges in the Court of Appeal in M v London Borough of Bromley [2002] EWCA Civ 1113 approved Scott Baker J’s approach in M by agreeing that "an expert tribunal, such as was available" was better qualified to decide issues of substance than a court hearing an application on judicial review. Although those cases deal with other areas of the Tribunal’s jurisdiction, we believe that we would be acting within the spirit of the sentiments expressed in those cases if we were to adopt a wider brief than that which is available to us on a narrow reading of the Care Standards Act s 21 and Regulation 33(1).
The Tribunal has decided therefore that it would be appropriate to offer guidance on the major issue that has been the subject of this appeal; namely how the Care Standards Act (Commencement No 9 (England) and Transitional and Savings Provisions) Order 2001 (2001 No 3852) should operate.
We would not expect future Tribunals to embark on similar exercises unless there are very powerful reasons in favour of such an approach.
The National Care Standards Commission acquired its regulatory functions under the Care Standards Act in April 2002. In order to arrange an orderly transfer of functions, information about providers regulated under the old regime and the services they provided were gathered through the use of a "Transfer of Registration Form." This form had to be completed to ensure the formal transfer of each registration. The completed form was sent out by the then regulators to all regulated providers. Detailed guidance was given on how the form was to be completed in a document headed "NCSC – Transitional Provisions and Transfer of Registration. Guidance".
Schedule 1 paragraph 4 of the Order specifically states that the following information, amongst other information, is required:
(f) the conditions (if any) to which the registration or licence is subject at the date the form is completed

(g) the applicable description of the existing undertaking [which by s3(8) of the Care Standards Act 2000 include a reference to a children’s home, an independent hospital, a care home or residential family centre]

(h) the information specified in Schedule 2 to this Order in relation to the applicable description of the existing undertaking.
We agree with Mr McCarthy QC when he submitted to us that the information specified in Schedule 2 refers to service category and service user category. Indeed, Schedule 2 to the Order is in the same terms as the particulars to be recorded in the Registers kept by the Commission as set out in Schedule 7 Part 11 to the National Care Standards Commission (Registration) Regulations 2001.
The Care Standards Act 2000 did not guarantee registration for those providers previously registered, but it is our opinion that the intention was that there should be an automatic transfer, and that the service category and the service user categories would reflect the existing provision but be brought up to date to reflect the new terminology of the Care Standards Act 2000. Paragraph 6.2 of the Guidance states: "…in the new regulations we have aimed to set out a more appropriate and up to date set of categories which need to be allocated to all providers on their TRF."
The provider was able to make representations in respect of the information specified in paragraph 4 by sending such representations to the then relevant authority. If no such representations were made, then the provider may be treated as having applied for and then been granted registration in respect of the existing undertaking as an establishment or agency of the applicable description specified in the transfer of registration forms. Any conditions (if any) specified in the transfer of registration form would be deemed to be conditions to which the registration is subject in so far as they are capable of being conditions under the new Act.
The existing provider however may make representations in respect of the information specified in paragraph 4 of the Order; in other words it may make representations relating to conditions, the applicable description, and the information specified in Schedule 2. Where representations are made, then by virtue of paragraph 5(6) of the Order, the Commission shall, having regard to the representations, determine –
1. the applicable description (if any) that applies to the existing undertaking
2. the conditions (if any) to which the registration or licence was subject at the date of the latest representations made
3. ....
4. any other matter in relation to the information specified in paragraph 4, so far as may be necessary to enable the existing provider….to be treated…as having applied for and been granted registration in respect of the existing undertaking…

It is our view that this provision is the key to the complex transitional provisions. Both (a) and (b) refer to the applicable description and conditions of the existing undertaking and (d) refers to any other matter within paragraph 4. Paragraph 4 however refers only to the regulatory status under the existing regime, and the information required by reference to Schedule 2 of the Order is information that can only be provided by a direct transfer of the old Registered Homes Act terminology to the new terminology of the Care Standards Act.
The intent and the purpose of the transitional regime is to effect the transfer of the regulatory status from the previous regulators to the Commission without in any way granting either any greater capacity or any lesser capacity on homes. Thus it follows that the determination on conditions involves nothing more than deciding what conditions applied to the former registration.
In some cases, the determination on the condition would inevitably have included a determination on service category and service user category. In other cases, this was perhaps not so straightforward. The difficulty has developed primarily in our opinion because, as Mr McCarthy QC submitted to us, the method for the determination of categories is not set out in the Order.
In these situations, the question is raised whether it is appropriate for the Commission (or on the appeal, the Tribunal) to go through the history of a home and look in detail at the characteristics which individual residents may have had with a view to adding new categories to those granted under the old regime. We are of the firm opinion that it is not appropriate. First and foremost, neither the Order nor the Guidance suggests that this is appropriate. Secondly, such an approach would run counter to the philosophy of the transitional arrangements that intended to create a smooth transfer. Thirdly, the historical approach would inevitably involve bypassing the new National Minimum Standards regime as set out in the Care Homes Regulations 2001, the National Care Standards Commission (Registration) Regulations 2001 and the detailed requirements that have now been put in place for providers to seek variation and enlargement of their services. It cannot be right that existing providers could simply seek such a variation and an enlargement on the back of the transitional provisions. If existing providers wish to take advantage of the new provisions and seek an extension of categories, which may indeed reflect historical usage, then there is a procedure in place to do this, and a negative decision from the Commission may result in an appeal to the Tribunal.
There are other matters argued before us in this case that may require a decision by the Tribunal in due course. For example, there is considerable difficulty over the proper scope of "conditions" under the new Act, and this impacts on the content of the Certificate issued under Regulation 9 of the Registration Regulations. Mr McCarthy QC submitted that the Commission is only obliged to include conditions on the certificate (and the conditions in transfer cases, in his view, will inevitably include reference to the categories of service user). However, it is possible that the service user category would be included on the certificate if only for the purpose of clarification for service users and others. Another issue that has been raised in this appeal but which we make no comment are our powers under s 21. Is a "category decision" to be treated for the purposes of an appeal in a transfer case as a "conditions decision", as urged upon us by Mr McCarthy QC? Finally, there is the issue of the exact meaning of OP. Given our considerable reservations about embarking on this "guidance note", we make no observations about any of these matters.
We must also make clear that this guidance note has the status of just that. It is designed to be helpful, in particular for the other appeals in this context. It may well be that other constituted Tribunals will take a different approach to us, or indeed that we ourselves, with the benefit of further argument in other appeals, will be persuaded that our approach is not correct. This "guidance note" must be seen therefore as no more than the provisional view of the Tribunal that considered the papers and submissions in this case.

His Honour Judge David Pearl (President)
Mr Peter George
Mr John Hutchinson

29 November 2002.

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