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You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Alternative Futures Ltd v National Care Standards Commission [2002] EWCST 111(NC) (16 June 2003)
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Cite as: [2002] EWCST 111(NC)

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Alternative Futures Ltd v National Care Standards Commission [2002] EWCST 111(NC) (16 June 2003)

Alternative Futures Ltd v National Care Standards Commission
[2002] 101-111 NC

Heard on March 17^th ,18^th ,19^th ,21^st ,27^th ,28^th , June 9^th ,10^th ,12^th ,13^th ,16^th 2003

BEFORE

His Honour Judge David Pearl (President)
Ms Caroline Joffe
Ms Michele Tynan

DECISION:

INTRODUCTION

The appellant, Alternative Futures Ltd, a not for profit company limited by guarantee is a registered charity. Alternative Futures was established in 1992 primarily to assist the retraction of NHS institutional hospitals by providing care in the community. This took the form of small registered residential homes, nursing homes, and supported living services. Alternative Futures at this time provided both housing and personal services. In March 2001, Alternative Housing was established as a separate not for profit company and was also registered as a charity. Alternative Futures and Alternative Housing are part of the Alternative Group. The intention behind this reorganisation, as set out in the skeleton argument of the appellant, is to facilitate a change in the model of operation of Alternative Futures’ existing care homes to a model of supported or assisted living.

The appeals deal specifically with the application by Alternative Futures for voluntary cancellation of the registration of 11 care homes under s 15(1)(b) of the Care Standards Act 2000. This section states: A person registered under this Part may apply to the registration authority (b) for the cancellation of registration.

Alternative Futures submitted to the National Care Standards Commission (NCSC) that these care homes now operate on a supported living model. 4 of their other homes (all in Knowsley) have been considered by the NCSC to be suitable for deregistration.

The other 11 homes, the subject of the appeals, (7 in the Wirral, 3 in Southport, and 1 in Knowsley) were considered by the NCSC not to be suitable for voluntary cancellation. The homes in the Wirral were denied cancellation of registration by letters dated 8^th October 2002 signed by Miss A Ford, the NCSC area manager for the Wirral. The applications were rejected by the NCSC area manager for Crosby (Mr J Pearson) in the case of the homes in Southport and Knowsley by letters dated 11 October 2002.

The homes that we are concerned with are as follows:

52 Greenheys Road (Wirral)
4 Caldicott Avenue (Wirral)
Hillcote, 66 Biston Village Road (Wirral)
88 Saughall Road (Wirral)
82 Upton Road (Wirral)
Woodview, 58a Park Road West (Wirral)
77 Lang Lane South (Wirral)
27a Scarisbrick New Road (Southport)
49a Scarisbrick New Road (Southport)
49 Forest Road (Southport)
56 Linslade Crescent (Knowsley)

It is these decisions for non-cancellation of registration that is the subject of the appeals brought under the provisions of s 21 (1) of the Care Standards Act 2000. This section states; an appeal against – (a) a decision of the registration authority under this Part; shall lie to the Tribunal.

Mr J de Bono of Counsel instructed by Peter Edwards Law, solicitors, appeared on behalf of the appellant, and Mr R McCarthy QC instructed by Hill Dickinson, solicitors, appeared on behalf of the NCSC. We heard the case over a period of eleven days. The first two days of the hearing took place in Manchester, the third day at the CST hearing centre in London. We then heard live evidence by video link covering three days of evidence. The concluding evidence of Mr P Cullen, the managing director of Alternative Futures was conducted in this way, as was the evidence of the following witnesses: Mrs Toner, Mrs Howard, Mr Fitzgerald, Mr McCann, Mr Murray, Mrs Farr, Mrs Moore, Ms Jones, and Mr Blackledge. The Tribunal adopted this approach to enable the evidence of the appellant’s witnesses to be provided in the most cost-effective way. As this is the first time that this Tribunal has conducted a part of a hearing in this manner, it is appropriate to say that the Tribunal felt that the arrangement was satisfactory. Inevitably we may have lost something in the lack of a face-to-face hearing, but we do not think that the Tribunal was in any major way disadvantaged. We heard live evidence over four days in Liverpool and the hearing was concluded with detailed submissions in London.

On the second day of the hearing the Tribunal members made a site visit to one of the homes the subject of the appeal; 77 Lang Lane South, Wirral. The appellant requested this visit and the respondent raised no objection to the visit. The visit enabled us to see for ourselves one of the homes. We did not conduct any information gathering exercise at the home, and we were careful to ensure that we used the visit solely to place the appeals in context.

By way of background it is important to mention that Alternative Futures had achieved deregistration of other properties, by decisions of the former registration bodies prior to the advent of the Care Standards Act 2000 on 1^st April 2002, in respect of 34 houses in Halton, St Helens, and Cheshire. Alternative Futures sought judicial review of the decision of Sefton MBC in relation to the Southport properties, made on 5^th March 2002 that had taken a different approach. Alternative Futures submitted to the Administrative Court that there was an arguable case that Sefton MBC had acted unlawfully in refusing to accept that the homes then within their responsibility had ceased to be subject to registration. Mr Justice Richards rejected this submission. He followed the decision of the Court of Appeal in Kowlessur v Suffolk Health Authority [2000] C/2000/2662. He said: "It seems to me unthinkable that registration could somehow be automatically cancelled or nullified simply by virtue of a change in the factual arrangements concerning a home without any intervention by the relevant authority and a judgment by that authority as to whether the changes were such as to take the homes outside the conditions for registration."

All 11 properties that are the subject of the present appeals were regulated under the Registered Homes Act 1984 at the moment when the Care Standards Act 2000 became law, that is on April 1^st 2002. At that moment in time, by virtue of the provisions of the Care Standards Act 2000 – Commencement No 9 (England) and Transitional and Savings (Provisions) Order 2001, the 11 homes had their registration under the Registered Homes Act 1984 transferred into registration with the NCSC as care homes (PC) with service users falling within the category of learning disability (LD). Indeed, in the notice of appeal (B1), without prejudice to voluntary deregistration (which must now be seen not to be available as a matter of law as a result of the decision of Richards J) Alternative Futures say that they applied for deregistration under the 2000 Act on 15^th May 2002. The reason for the request for cancellation of registration in all cases is that the "home is no longer functioning as a registered residential home and that the establishment is following requests by service users to establish a supported living model."

In answer to question 2.3 on the application form for voluntary cancellation of registration; namely "Have your services been refused?" Mr P Cullen the Managing Director provides the following information: "Service users, relatives and advocates no longer wish to live in a registered home. They have chosen to live in a tenancy arrangement with a supported living model."

The replies on this form state that notice for application for cancellation of registration has been given to service users, representatives of service users, local/health authorities in the area and that "this was done as part of a wide consultation exercise. Proposals were unanimously supported."

The Response of the NCSC in the pleadings states (B4) "The Commission sent officers to visit each home to assess suitability for deregistration. The focus of these visits was capacity to consent to a tenancy and levels of personal care. [The NCSC] denied the deregistration application and ordered the houses to be managed as registered residential homes."

The letters relating to the Wirral area signed by Miss Ford, the area manager in Liverpool/The Wirral are dated 8^th October 2003. They look at capacity and consent, consultation, choice, and personal care.

The letters dated 11^th October 2002 in relation to the properties in the Crosby Area Office state that in reaching their decisions the NCSC has taken into account the Requirements of the Care Standards Act 2000, its associated Regulations and the DH Guidance on the Regulation of Supported Housing and Care Homes published in August 2002. The decision letters refer to the properties as falling within the definition of a care home under s 3 of the CSA 2000 in that they provide accommodation, together with personal care and assistance with bodily function. The letters refer in each case to the issue of personal care, whether there is a tenancy, the question of capacity, and consultation and choice. These letters are signed by Mr J Pearson the area manager in Crosby

It is important to set out the provisions of the legislation that have a bearing on this case.

Section 121 (9) of the CSA 2000 states that an establishment "is not a care home for the purposes of this Act unless the care which it provides includes assistance with bodily functions where such assistance is required."

Section 3 (1) itself defines a care home as "an establishment is a care home if it provides accommodation together with nursing or personal care…"

"Personal care" is not defined in the Act, although s 121(3) states that the expression "does not include any prescribed activity".

Finally, s 4 (3) defines a "domiciliary care agency" as "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."

The appeals in these cases concern the complex dividing line between a care home and supported or assisted living. Put simplistically, whereas it may be that the emphasis in the former institution is on protection of the vulnerable, in contrast, the model of supported living, whilst not ignoring the need for protection, champions empowerment. Whilst protection and empowerment are of course both laudable principles and there should be no conflict between them, we have been faced in this appeal with the difficult task of examining the law in this area in the light of all the available policy guidance in order to reach a conclusion on where the line between the two models should be appropriately drawn. This has an impact both on the financial arrangements and on the inspection and monitoring regime. We must emphasise that our decision is based solely on our understanding of the law in this area, and of our findings on the facts.

The primary impetus for the development of supported living models came from the Government documents, Valuing People (Office of the Deputy Prime Minister) and Supporting People (Department of Environment, Transport and Regions). We may say that we have read both documents with care and we note that the supported living model is not restricted to those with only moderate disabilities. We see the many advantages of the supported living model, and these are not simply financial ones. Paragraph 28 of the DH Guidance on Supported Housing and Care Homes puts it this way "The Government objective in this area of services is to develop person-centred services which enable people with learning disabilities and their families to have greater choice and control over where and how they live. Housing, care and support options should enhance opportunities for people with learning disabilities and their families to exercise choice and control in their lives."

However, the DH Guidance makes it clear also that Government policy "would not support inappropriate changes to care homes which do not promote genuine independence, but seek primarily to secure funding through Transitional Housing Benefit and Supporting People. Such changes risk removing necessary protection from vulnerable people and may be unlawful." (para 5).

We have looked with great care at all the evidence in this case; consisting of more than 9 lever-arch files, and many hours of evidence, in order to decide on where the line should be drawn in these 11 appeals.
BURDEN OF PROOF
We turn our attention first to the issue of the burden of proof. The Statute is silent on the issue of who has the burden of proof. The key issue of course is whether the 11 properties are "care homes" within s 3 of the Care Standards Act 2000. Mr de Bono argues that the general principle of the law of evidence should apply that the burden of proof lies upon the party who substantially asserts affirmative of the issue. He refers us to the case of Constantine Line v Imperial Smelting Corporation [1942] AC 154, 174 (Lord Maugham). Mr de Bono submits further that there are good policy reasons why the burden should be on the Respondent. He says in his closing submissions: "The Commission has been entrusted by Government with taking a view on whether an establishment is a care home. It is this view which is being tested in this appeal and which the Commission must justify. It is unsatisfactory for the Commission to be allowed to sit back and simply defend its ‘view’. This appeal will probably lead to guidance which will effect many hundreds of learning disabled people and will have a great impact on their property rights. The Tribunal is better placed to act as a regulatory ‘brake’ if it holds the Commission to account rather than registered persons. This process is facilitated by placing the burden of proof or ‘persuasion’ on the Commission."

Mr de Bono makes the additional points that placing the burden on the Commission fits neatly with the fact that the burden of proof rests on the Commission in respect of two subsidiary issues; namely whether the failure to recognise a change of status is a breach of the service users’ human rights, and secondly that in relation to issues of capacity, the burden is on the person who seeks to deny capacity.

It could of course be argued that as Alternative Futures has brought the appeal so the burden falls on them to prove the case. Mr de Bono submits that such an approach is flawed. He says: "It is wrong and indeed detrimental to good administration to permit a body to make any decision it likes and then sit back and wait to be proved wrong." It is his submission that that would be exactly what would happen if we were to adopt the alternative proposal that the burden of proof is on the appellants.

Mr McCarthy takes a very different approach to that of Mr de Bono. He states that if no s 15(1)(b) application is made then the registration as a care home will of course automatically continue. He submits that the Commission has to "do nothing and prove nothing" because the Act presumes that registration will continue. He states further that the purpose of s 15(1)(b) is to allow an avenue for deregistration when matters have changed so that a care home is no longer operating, and that it is of the essence of the legislative framework that a change has to be shown before deregistration is appropriate and otherwise the status quo will continue. So far as the policy issues are concerned he states that the protective issues involved in the loss of statutory protection support a public interest conclusion that the burden of proof should be on the applicant.

We have given these arguments a great deal of consideration. It is necessarily the first question of law that we must address before turning our attention to other matters. Although Mr McCarthy is correct of course in his submission that in the absence of an application under s 15(1)(b) the registration will continue, we are not persuaded by him that the Commission has to "do nothing and prove nothing." We find that approach to be singularly unattractive both from the perspective of good administration and also from the important emphasis that must be placed on the human rights debate in the context of making decisions on deregistration. In order to come to a conclusion on a s15 application, the Commission inevitably must be guided by the definition in ss 3,121(3) and 121(9). The Commission is required in our view by Statute to satisfy itself when an application is made under s 15, that the requirements are still being met. The NCSC (Registration) Regulations 2001 regulation 15 states that the application for cancellation under regulation 15 must be accompanied by the registered person’s reasons for making the application for cancellation. If the Commission decide to reject the application they must necessarily of course reject the reasons, in other words the Commission must form the view that the establishment still falls within the definition of a care home.

We agree with Mr de Bono’s submission that policy considerations as outlined by him point in the direction of the burden being on the Commission. We think also that the Government’s policy objectives of empowerment, choice, and full citizenship rights for people with a Learning Disability as set out in the White Paper, Valuing People, is better achieved by placing the burden on the Commission. It is surely right that the Commission must explain, once an application under s 15 has been made, why it considers the home is still a care home within the terms of the Care Standards Act.

We are of the view also that Mr de Bono is right in his legal submission to us that the burden rests on the Commission because the issue that has to be decided is whether the properties are care homes. Thus an affirmative is asserted, and general principles dictate that the burden of proof is on the party that asserts the affirmative

HUMAN RIGHTS

Mr de Bono submits that 4 Convention rights are engaged; namely articles 6, 8, Article 1 of the First Protocol, and Article 14. So far as Article 6 is concerned, the arguments advanced relate to capacity issues that will be considered later in this decision.

Article 8 states:

Everyone has the right to respect for his private and family life, his home and correspondence

There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 1 of the First Protocol states:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to conditions provided for by law and by the general principles of international law.

The preceding provisions shall not however in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Taking both of these articles together, Mr de Bono submits that the manner in which the Commission carried out its inspections and made its decision on deregistration unjustifiably denied the occupants of the eleven properties "their homes". It is argued that the refusal of cancellation was an infringement of both Article 8 and the First Protocol Article 1 and there can be no justification for such an infringement.

The first question that we must address is whether the service users’ rights fall within Article 8 and the First Protocol Article 1. If we decide that they do fall within one or other of these articles, we shall need to consider whether there has been an interference with these rights by virtue of the failure to deregister, and if so whether the interference is justified.

The first question to address is whether a care home can amount to a home for the purposes of Article 8. The case of R v North and East Devon H.A. exparte Coughlan 2000 2 WLR 622 is authority for this proposition, and there is no dispute between the parties on this. The more important issue is whether a refusal to deregister is an interference with the right to a home or to peaceful enjoyment of possessions. Mr McCarthy submits that there has been no such interference, in that the residents have not been deprived of what they had before. In effect he submits that the question that needs to be decided is whether the homes are care homes or not, and there is a statutory scheme that sets out the criterion for a care home. Although there are clearly differences between the care home model and the assisted living or supported living model, Mr McCarthy argues that the difference is regulated by Statute, and a decision by the Commission to retain the care home status does not amount to an interference and therefore it is not necessary for us to go on to consider whether the interference is justified by virtue of the qualifications within the Convention.

Mr de Bono in his final submissions takes a different stance. He submits that there is a material difference between one’s own home when one is a tenant and when one is a licencee. We agree with Mr de Bono. However, he submits that Article 8 permits the recognition of such a distinction and cites as authority the case of Ghaidan v Godin-Mendoza 2003 2 WLR 478. In his judgement in that case, Buxton LJ said that he was attracted by Counsel’s argument that "’home’ should not be regarded simply as bricks and mortar, but should extend to the rights and security of tenure in that real property." Buxton LJ was in that case dealing with the issue as to whether Article 14 is engaged in a situation where there is a link to Article 8 or the First Protocol. We shall return to that issue later. For our part, however, we do not read Ghaidan v Godin-Mendoza as authority for the proposition that a decision not to deregister is an interference with a right under Article 8 or under the Protocol. Indeed, in what may have been thought to have been a stronger factual situation in that case (whether a tenant succeeded as a statutory tenant to a tenancy of a flat as the surviving spouse or became entitled to an assured tenancy by succession as a member of the original tenant’s family) counsel agreed that Article 8 and the First Protocol were merely gateways to Article 14.

Looking at the factual situation before us, we have no doubt at all that a decision to retain the status of the homes as registered care homes because a view is taken that they fall within the statutory definition of a care home, and in consequence a decision is taken to reject an application to deregister, does not amount to an interference with a Convention right. By refusing to deregister, the Commission is not taking away any rights that the service users currently enjoy. The residents retain their home, and enjoy peaceful enjoyment of their possessions. Thus it is not necessary for us to consider whether the interference is justified, for the reason that there is in our view no interference in the first place.

The real issue under the European Convention in this case, as in Ghaidan v Godin-Mendoza in our view is the application of Article 14. That Article states:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

It is well established in Convention jurisprudence that a complainant does not have to demonstrate that there has been an actual breach of another article of the Convention before being able to rely on Article 14. (See Rasmussen v Denmark (1984) 7 EHRR 371, Petrovic v Austria (1998) 33 EHRR 307).

Buxton LJ in Ghaidan states "once the state has chosen to intervene in a factual area characteristic of those protected by Article 8, Article 14 is engaged if there is relevant discrimination in the mode of that intervention. That is this case."

It is our view that Article 14 arguments arise in this case, as much as they did in Ghaidan v Godin-Mendoza (see also Wandsworth LBC v Michalek 2003 1 WLR 617). In Ghaidan, however, there was an obvious comparator (a survivor of a heterosexual partnership). Mr de Bono puts forward seven comparators in this case.

Insofar as cancellation was refused on grounds of capacity, those learning disabled people who were living in care homes but whose capacity was not questioned or who were judged to have capacity by the Commission

Insofar as cancellation was refused on grounds of high personal care needs, those who require less personal care

Insofar as cancellation was refused on the basis that insufficient records or other information had been provided by Alternative Futures, those whose service provider provided sufficient information and accordingly had the registration of the property in which they were living cancelled notwithstanding that their personal characteristics were the same as those living in the appeal properties

Those in supported housing schemes who had deregistration approved prior to the Commission coming into force in respect of whom the Commission have taken no action and given no indication of any intention of doing so

Those in other areas whose properties have been deregistered by the Commission on the basis of a different decision making process

Those who have the same level of disability but move to a different property to take up a tenancy in a supported housing scheme rather than staying in the same building, and therefore do not have to go through a process of cancellation of registration

Those people with the same capacity and same levels of personal care who live under assured tenancies but have never lived in a care home and so are not subject to regulation by the Commission and never have been.

The difficulty we find with Mr de Bono’s argument is that we have not heard evidence on why any of these comparators were treated in the way that they were. We have been shown some papers that relate to homes that have been deregistered, but, as Mr McCarthy submits, we have no evidential basis for comparison and indeed some of those decisions may simply have been wrong. Thus the first five suggested comparators do not provide a sufficiently similar position to enable us to engage Article 14. The last two comparators are not comparators in our view because these people are simply not living in a care home, either because they have been moved or because they have never lived in one. It is our view that the appellant can derive no assistance from Article 14 in this case.

We are persuaded that our approach to Article 14 is correct by a reading of Brooke LJ’s judgement in Wandsworth LBC v Michalak [2003] 1 WLR 617. In that case, Brooke LJ suggests a structured approach, and a court asks itself four questions. These questions are as follows:

Do the facts fall within the ambit of one or more of the substantive Convention provisions?

If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison on the other?

Were the chosen comparators in an analogous situation to the complainant’s situation?

If so, did the difference in treatment have an objective and reasonable justification?

We answer the first two bullet points in the affirmative, but the answer to the third bullet point is "No." It is not necessary to consider the last bullet point, and notwithstanding Mr de Bono’s valiant efforts to persuade us to the contrary, we are not persuaded that an argument based on Article 14 can succeed.
CAPACITY AND HUMAN RIGHTS
We turn our attention to one of the key legal issues that has been raised in this case, and an issue that we must address before we go on to consider the factual bases of the decisions that are the subject of these appeals. Mr de Bono submits that it was unlawful of the Commission to have refused cancellation of registration on the basis that some of the service users lacked capacity.

There are three fundamental propositions of law in this area. First, there is a presumption against lack of capacity (See LCD Consultation Paper 1997 "Who Decides?", LCD Report 1999 "Making Decisions"). Secondly, mental capacity required by law is capacity in relation to the transaction that is to be effected. We have read the LCD (now DCA) Guidance Leaflets which were produced in May 2003 that explain the current legal position and offer guidance on how decisions should be made on financial, health and other matters. Thirdly, what is required is the capacity to understand the nature of the transaction when it is explained. (Re Beany, decd [1978] 1 WLR 770.)

Mr de Bono argues that a tenancy agreement entered into between Alternative Futures and any service user who lacked capacity is still a binding agreement although it could be avoided at the instigation of a service user if it could be shown that at the time the agreement was entered into Alternative Futures knew of the incapacity. He submits further that the agreement cannot be rendered void by a third party (for example, the Commission) on the grounds of lack of capacity unless there has been a proper assessment and giving the service user the right to contest the matter as a participant rather than as a subject of the enquiry.

For support of this proposition, Mr de Bono cites Masterman-Lister v Brutton and Co [2003] 1 WLR 1571. In that case, Kennedy LJ said: "It is common ground that all adults must be presumed to be competent to manage their property and affairs until the contrary is proved, and that the burden of proof rests on those asserting the incapacity." Kennedy LJ goes on to talk about the importance of civil rights, long cherished by English law and now safeguarded by the European Convention on Human Rights. He says: "capacity must be approached in a common sense way…bearing in mind the basic right of any person to manage his property and affairs for himself, a right which no lawyer and no court should rush to interfere."

We find these persuasive remarks and we are sympathetic to Mr de Bono’s submission, following on from this, that if a service user’s lack of capacity were to form any part of either the Commission’s or the Tribunal’s decision to refuse cancellation of registration, then the minimum requirement now of course enshrined in Article 6 of the European Convention, would be for an assessment of capacity by a suitably qualified person and a determination by a Court, such as the Tribunal, to which the service user in question would have to be invited to attend to make representations. As none of these steps has been taken in this matter, he submits that considerations of mental capacity should form no part in the decision making process.

There are indications, as we shall see, in some of the decision making processes that an assessment of a lack of capacity to enter into tenancies played a role in the decision making process. In so far as that is the case, we would agree with Mr de Bono that, in the absence of an appropriate assessment, it should have played no part in the decision making process. It certainly plays no part in our decision making process looking at all the evidence de novo. Thus although Mr McCarthy submits to us that there is an overwhelming balance of evidence that the service users, with possibly two exceptions, did not have capacity to give consent to the schemes, there is no evidence that any appropriate assessment had been made on these matters and the Inspectors clearly had no authority to make such an assessment. Indeed, Mrs Heather Wing OBE, the Director of Adult Services at the Commission, made clear in her evidence to us that it is not the job of the Inspector to assess capacity.

The Commission’s case put simply, is that they, and we, are bound by s 3 of the Care Standards Act 2000 and, given the existence of the described set of facts as set out in that section, the properties are care homes, and there has to be registration under s 11 of the Act. As we shall see, Mr de Bono agrees with Mr McCarthy with the submission that even if the decision making process was totally flawed, if at the end of the day, the properties are properly care homes within the s 3 statutory definition, that must be the decision that we should reach. We consider later whether this approach is the correct one to adopt. But in this context, we have formed the opinion that although there should have been an appropriate assessment made in these cases as to capacity; the lack of an assessment, and a reliance on a presumption of capacity, does not necessarily mean that the properties fall outwith the statutory definition of s 3.

Mrs Heather Wing gave evidence to us. In her witness statement she said: "The NCSC is not just committed to applying the regulatory legislation on the basis that it is the law, but is also mindful that the fundamental purpose of the legislation is to protect and promote the quality of care and quality of life experienced by users of care services who are frequently frail, vulnerable and socially isolated."

She developed the argument in her evidence. We must not assume, she said, that someone is better off in one establishment rather than another, and residential care and supported living are both options. She agreed with Mr de Bono that there is no group of people to whom supported living is inappropriate, but that it comes down to a matter of their informed choice. She said that there would be concerns if the service users had not had a proper opportunity to exercise choice.

TENANCIES AND CHOICE

Linked to the issue of capacity is that relating to whether there is a tenancy. In her evidence to us, Mrs Wing said that the Commission needs to ensure that a tenancy agreement is properly entered into, and that service users are exercising real choice. She went further to say that the issue before the decision-maker is to decide, on a proper examination of the tenancy, whether it is a sham or is a "real" tenancy. She said that if the Commission form the view that the service user has not been presented with a proper opportunity to consider the choices available, then there would be legitimate worries.

The Department of Health Guidance "Supported Housing and Care Homes" issued in August 2002 under s 6(2)(b) of the Care Standards Act 2000 emphasises that there will be no registration as a care home, irrespective of the level of personal care available, where personal care is being provided in a person’s own home, whether they are an owner-occupier or a tenant. (para 34).

The Guidance goes on to say that a person’s "own home" should be given its ordinary meaning. "If it is clear that they have an assured tenancy, this is a strong indication that they are living in their own home." The Guidance states that an assured tenant will generally have a right to deny entry to other people, including any care workers, without this having an effect on their right to occupy the dwelling. The Guidance also states, however, that it will be necessary to look beyond the question of whether there is an assured tenancy/tenancies in the shared accommodation (para 39).

It is our view that the existence of a tenancy, although important in identifying whether an establishment does or does not fall within s 3, is not by itself conclusive of the question. Realistic choices are in our view of critical importance. Mrs Wing in her witness statement put the point in the following way:

"The NCSC is concerned to establish whether the ‘accommodation’ criteria still continues to be met in respect of applications to cancel registration, as if the NCSC determines that accommodation is being provided by someone other than the service user themselves and all other criteria for registration as a care home are met then registration as a care home will be required. The NCSC in this respect will therefore have an interest about whether in an ‘assured’ tenancy the occupant has exclusive occupation or use/possession and whether they have the right to exclude others from the property. If in such tenancies the occupant has exclusive occupation, use or possession and can exercise the right to exclude someone from their accommodation then it is likely that registration as a care home will not be required. Additionally the NCSC will be concerned in the event of an application to cancel registration of a care home that the provider has discussed this with service users and that they are in agreement with this proposed major change to their lifestyle and thus it is their choice. Where individual service users may need assistance to exercise this choice, for example where there may be profound disabilities which potentially could impede understanding and communication, then the NCSC will need to be satisfied that the individual has been able to secure appropriate assistance to enable them to fully understand the situation and exercise their rights to make choices and decisions."

We agree to an extent with Mrs Wing’s approach as set out in the above quotation from her witness statement although we feel that the emphasis should be firmly placed on the reality of choice. In reaching a decision on whether an application to deregister is to be granted, there must be clear evidence of a change of substance to bring the accommodation outside the statutory definition. Thus the existence of tenancies is not conclusive.

Mr McCarthy submits that there is nothing to prevent there being a tenancy in the full sense of that term as defining the relationship between the service user and the owner of the accommodation, and for the accommodation to remain as a care home. In contrast, he states that the lack of a tenancy is not fatal to the premises being your "own home." We would prefer to emphasise that the essential factor that must weigh most heavily in deciding whether s 3 is brought into play is the issue of choice.

Mrs Wing herself acknowledges that the boundary between care homes and supported accommodation remains unclear and that further work is required on this matter. The Annextures to the DH Guidance are singularly unhelpful. We note that the NCSC is at present piloting a Registration Assessment Tool (NCSC Press Release, June 16^th 2003) to guide decisions on the registration of care homes and domiciliary care agencies. Mrs Wing made reference to this development in her evidence to us, although we were not given any detailed information about the pilot.

Having given careful thought to all aspects of the complex test that has to be applied by the NCSC on an application to deregister, it is our considered view that the major emphasis must be placed on real and significant choice of the service user. Only in this way can there be an appropriate balance between the requirements of the statutory provision in s 3 on the one hand and the policy considerations that underpin the Government’s "Supporting People" strategy and in particular, as described by Mrs Wing "supporting the appropriate development of innovative ways of providing housing and personal care to disabled people." We wish to make very clear that we are not able to apply a simple "best interests" approach. It is no part of our decision in this case that the service users are better placed in a care home or better placed in a supported living environment. The service users in these appeals, as in other similar situations, may well be better placed within a supported living environment. Those decisions however are not for us. We have a statutory obligation to apply the law and to examine the evidence that was presented to us in the light of the law, as we understand it.

THE DECISION MAKING PROCESS IN THESE CASES

Both Miss Ford (in the case of the Wirral properties) and Mr Pearson (in the case of Crosby and Knowsley) acknowledged in their evidence that, with the benefit of hindsight, mistakes had been made in the decision making process. Before we set out these admitted mistakes; it is necessary to explain the way in which the two offices of the NCSC made the decisions.

The Wirral properties. Ms Smithson, the locality manager, wrote to Mr Cullen, the Managing Director of Alternative Futures, on 9^th July 2002 informing him that the inspectors will be calling on the properties on the 23^rd and 24^th July 2002. Two inspectors, Mrs Fotheringham and Ms Fletcher, conducted the visits. They wrote a briefing paper for Ann Ford, the Area manager for the Wirral. Much of the content of this briefing paper was then reproduced in another briefing paper from Ann Ford to Alan Jefferson; the Regional Director dated 22^nd August 2002. The decision letters were sent to Mr Cullen on 8^th October 2002.

The Southport and Knowsley properties. On 31^st January 2002, Lorraine Farrar and Pat Carragher, both then employed by Sefton BC undertook announced inspections of the Southport properties. Lorraine Farrar prepared a report that is dated 29^th May 2002. There was a further visit to these homes, after the transfer of regulatory responsibility to the NCSC, on 19^th June 2002 by Paul Kenyon, a NCSC Inspector. He wrote a report on 25^th June 2002 (revised and amended on 29^th June 2002). The locality manager for the northern area (Lorraine Maguire) then reported to the Area Manager (Mr Pearson) by way of separate reports dated 1^st August 2002.

Lorraine Farrar and another inspector, John Mullen, visited the Knowsley property, (56, Linslade Crescent) on 17^th May 2002. Lorraine Farrar prepared a brief report for the locality manager for the Southern area (Pat Carragher) and on the basis of this report, Mrs Carragher submitted a report to the Area Manager (Mr Pearson) in relation to 56 Linslade Crescent on 21^st August 2002. The decision letters were sent to Mr Cullen on 11^th October 2003.

It is our view of our powers that we must hear all the evidence that is presented to us, including evidence that may not have been before Mrs Ford and Mr Pearson when they reached their decisions. We are not restricted to simply looking at the evidence that was before the NCSC or of reviewing their decisions on the basis of whether the decisions were reasonable decisions. We have the powers of a full merits appeal.

Mistakes in relation to the Wirral.

As we have already set out above, the locality manager (Ms Smithson) wrote to Mr Cullen, the Managing Director of Alternative Futures, on 9^th July 2002 informing Mr Cullen that the inspectors would be calling at the various premises on 23^rd and 24^th July 2002. She said that five areas of information would be required. The first was written evidence that all service users in their care and their families/representatives have been actively consulted about the proposed changes, fully understand the implications and are supportive and in agreement with the intended changes. The second relates to written evidence that all service users who have been directly consulted about any proposed changes and who will be directly affected by these changes have the ‘capacity’ to make informed choices and to give their consent to these changes. She then said that the inspectors would require sight of care management assessments, and that where personal care is still required the assessments should indicate from which source this would be provided in the future. Fourthly, she sought a written statement indicating the arrangements that have been put in place for service users who wish to continue and/or their needs dictate their continuance of receiving care within a care home environment. Finally, Ms Smithson asked for copies of any formal notices that the service will be changing/closing down which have been sent to service users or representatives of service users. The letter concludes with a paragraph drawing attention to Regulation 15(5) of the NCSC (Registration) Regs 2001 that says that the registered person shall provide the Commission with any other information or any documents that it may reasonably require in relation to his application for cancellation.

Miss Ford acknowledged in her evidence that at the time the letter was written the office had the internal guidance dated 20^th May 2002 from Mrs Wing. Paragraph 4.2.5 of that document sets out 11 detailed areas of information that are required. Miss Ford said in evidence that she thought that Ms Smithson’s letter covered the points in Mrs Wing’s guidance, but that it could have been made more explicit.

More worryingly, decisions following those visits took some time. Mr Cullen wrote to Ms Smithson on 20^th August 2002 that it was by then well over four months since the application was made and that despite NCSC guidelines stating that the application would be dealt with inside three months, they had not heard anything. Miss Ford told us that no response was made in writing to this letter, but that she recalls speaking to Mr Cullen on the phone on 6^th September 2002. Mr Cullen wrote again on 9^th September 2002 and on the 20^th September 2002 Miss Ford replied "I am able to inform you that [your] application for Voluntary Cancellation is being actively considered."

The paper work shows that the letter dated 20^th September 2002 was less than truthful. The inspectors had recommended refusal, and on 17^th September 2002, Mr Alan Jefferson, the North West Regional Director of the NCSC had written to Mr S Strong of the Valuing People Support Team in confidence that for the homes the subject of this appeal, voluntary deregistration was to be refused and "we are preparing statements of reasons as to why voluntary cancellation is not appropriate." We have to say that we are alarmed by this letter and find it is totally inexcusable that the Director is conveying the result of an application to a third party before the applicant has been given the result of the application, and indeed when two days later the applicant is being told that his application is still being actively considered. Trust must operate both ways. The letter to Mr Strong was a serious breach of that trust that a provider is entitled to expect from the Commission and its officers. We were unimpressed with Mr Pearson’s evidence on this point that Mr Jefferson had not "jumped the gun". The documentary evidence makes it clear that he had done just that.

The decision letters were sent on 8^th October 2002 in relation to each of the properties. The letters are for all intents and purposes identical. Miss Ford said in evidence that she considered the criteria in each case and that they were individual letters. She said that they were the same letters because the same issues arose. She admitted however that she should have been more service specific in writing the letters. We agree with that sentiment.

In relation to the key issue of consultation, Miss Ford says, for example in relation to 58a, Park Road West, that there is no documented evidence to support the view that service users, family members etc had been consulted. However, we were shown the contemporaneous notes of Ms Fletcher that shows that she saw a letter dated 6.12.02 "re some changes that are planned in the type of service that Alternative Futures provides for you." Thus there had been consultation, and the inspectors saw evidence of it. Miss Ford in her evidence refers to the lack of robust consultation, and that all care options should have been presented to service users. She did not think that this had happened. She told us that there might have been a limited letter but that this did not constitute consultation in the full sense. That may well have been the situation, and we shall return to this point later. But the decision letter is unfortunately inaccurate when it says that no documented evidence had been presented.

She accepted that there was a factual inaccuracy in the letters in relation to the issue of personal care, and that the letters should have been much more service user specific.

Mistakes in relation to the Southport and Knowsley properties

Mr Pearson was responsible for the decisions regarding the properties in Southport and Knowsley. He said in evidence before us that with the benefit of hindsight, there are a range of matters that could be improved, but that the decision making had to be viewed in the light of a new organisation applying new standards and new legislation. He said in cross-examination that he was satisfied that sound recommendations were made to him based on good professional principles. We do not entirely agree with this conclusion.

First, the locality manager (South), Mrs Carragher, submitted a report to Mr Pearson dated 21^st August 2002 based on the visit by the Inspectors on 17^th May 2002. The report on Linslade Crescent concludes, " The service users would not benefit from living in a home that is not registered." Mrs Carragher in her evidence to us admitted that this conclusion was "too general". Mr Pearson agreed that whether it is a "benefit" or not to live in a care home or supported living was not a matter for the NCSC. However, he said that if the proposed change placed the service users at risk, then of course it would be a concern. There is no suggestion in any of the evidence that service users were at risk. Indeed he admitted that the residents were being looked after well and that he was satisfied with the level of care and there was no danger or concern. It is our view that "benefit" or not is a matter for the service users and their families and advisers and also in many cases also the service commissioners. The conclusion was not only "too general"; it also applied the wrong test.

Secondly, Mr Pearson said that it was his understanding that the inspectors, through observations and discussions, formed a judgement about capacity. As we have already stated, capacity is not a matter to be judged by the inspectors. It is not their role to make such judgements, and appropriately qualified professionals should have made proper assessments. The service commissioners should have arranged this, obviously with the co-operation of the Alternative Group.

Thirdly, the inspection in Knowsley took place prior to the interim guidance from Mrs Wing. The decision letters were delayed because they were awaiting the guidance from the Department of Health. He thought about a further inspection in the light of the Guidance, but he took the view that it was up to Alternative Futures to let him know of any information and he assumed that Alternative Futures knew what was required of them. Letters from Alternative Futures dated 9^th July 2002 went unanswered. Mr Pearson said that with hindsight it might have been a good idea to have confirmed receipt.

The standard letters were not sufficiently specific. As an example, it is clear that in the case of AM, one of the tenant’s of 49A Scarisbrick New Road, the tenancy agreement was signed by Mrs M, AM’s mother and possibly also by his sister. Mrs Howard, the Senior Support Worker at 49A Scarisbrick New Road and Mrs M gave evidence before us. Mrs M confirmed that she had signed the tenancy agreement, although she was not absolutely sure whether AM’s sister had signed as well. Mr Pearson could not explain why this fact is not referred to in his letter. Mr Pearson said that he was satisfied with the consultation process with some of the tenants but not with others. The problem is that the letters do not make clear in which cases consultation was satisfactory and in which cases it was not.

There are clearly lessons to be learnt in relation to the decision making process, and both area managers left us with a view that training in this field had been less than perfect. The notes of the inspections taken by the inspectors, the reports that were subsequently written, and the description of the meetings to discuss the recommendations do not impress us. Mr Pearson explained the inconsistencies between the two offices on the basis that the NCSC is a new organisation. We suspect that Area Managers had little assistance nationally, and of course the DH Guidance was delayed until August 2002 and contains within it in Annex B some highly misleading references to capacity and tenancies. Be that as it may, service providers do require consistency, and this appears to have been lacking between the two offices we have heard evidence about.
THE TEST TO BE APPLIED
The next question we must address is whether the failures that we have identified should result in us allowing this appeal. Mr McCarthy accepts in his closing submissions to us that these failures, if we were to find that they were such, are important in relation to reliability, but that we should not give them undue prominence. The basic question still remains. In effect, Mr de Bono agrees with him. He submits "Even if you have a hopeless decision making process, if at the end of the day this is a care home, then that is your decision." We agree with both counsel on this point. The decision making process was flawed, and lessons we are sure will be learnt by the NCSC. But at the end of the day, we are still faced with the question "Are the properties care homes within s 3?"

We have already identified the fact that we believe that most emphasis should be placed on real and significant choice. Mr McCarthy invited us to take a common sense view of the appeals and to decide how decisions should have been made in these cases and how they should be made in future. We have no doubt that common sense directs a decision-maker to examine the issue of choice. This underpins all of the government objectives in this area. Common sense also directs that a holistic approach should be adopted.

In our view, Mr Pearson gave undue weight in reaching his decisions to the level of personal care that is required. The level of personal care is not on its own the determining factor. We agree with Mr de Bono when he submits that s 121(9) must not be read to mean that where bodily assistance is provided or required then registration as a care home is required.

In our view, especially where the needs and the requirements of personal care remain the same, there must be a genuine change of substance. Cosmetic or superficial changes can often be given considerable prominence, and it is the responsibility of the decision-maker to form a view based on the reality of what is actually happening in the establishment and what real choices were provided prior to the introduction of the new structure. It may well be of course that in some instances providers can demonstrate that they introduced "supported living" concepts prior to the new structure, and this would need to be taken into account.

THE EVIDENCE

We consider first the argument that the separation between Alternative Homes and Alternative Futures removes the appellant’s houses from the statutory definition in s 3 altogether. Mr McCarthy submits that apart from the technical separation between Alternative Futures and Alternative Housing, together they still provide an establishment providing personal care and accommodation. We were directed to the Meeting of the Council of Management of Alternative Futures on 20^th November 2000. We have looked at this document and we are drawn to the conclusion that there is full co-ordination on many aspects of the running of Alternative Futures and Alternative Housing, in particular on selection, rent payments, decisions on departure. Indeed, Mr Clarke, the Chief Executive of the Group agreed that the activities of Alternative Housing and Alternative Futures are co-ordinated on a day to day basis and that the "housing provider is in tune with the care provider". In looking at the available evidence, we have reached the conclusion that the creation of Alternative Housing has not taken the organisation out of the s 3 definition. A common sense approach has to be applied.

We now turn to the issue of choice. One of the aspects of choice is what would happen if a service user or a member of his family was not happy with the care being provided by Alternative Futures and wished another service provider to provide for him in the house in which he was a tenant. In the evidence given to us on this matter, Mr Murray who is employed by Alternative Housing as the Finance Manager said in his evidence in chief: "If someone wanted to change support provider, the only role the landlord has is to ensure that the support they receive is appropriate to their needs." He agreed that a request for a change of care provider would have to go through the statutory agencies but that Alternative Housing has overall control of the care delivery at the home. We note that the DH Guidance paragraph 36 states: "…the commissioning of care may not allow for particular choices of care provider by a user". This illustrates the practical difficulties in this area. Nevertheless, it is still an issue that impacts on choice.

It seems to us that all the witnesses who are employed by Alternative Futures, together with the relatives we heard (Mrs Farr, Mrs Moore), are all agreed that the level of personal care remained the same as before the reorganisation. Mrs Toner, the manager of 88 Saughall Road, for example makes it clear that the service users did not get any less care than they had in the past, and that the workers continued to help them with many aspects of their lives. Mr Fitzgerald, the manager of 49 Forest Road, agrees with this, although he did say that the ethos of staff attitudes has changed, that the staff team are more individual focussed than team focussed, and privacy has been enhanced and people are more conscious of an individual’s private space. As we have said, the level of personal care does not on its own indicate registration as a care home.

Mr McCarthy submitted that there is no suggestion from the witnesses that service users are able now to decide how a home should be run, and that the improvements in the services that are identified are all examples of good practice (for example keys, person centred plans) that may be found in all good care homes. We note that Care Homes for Adults (18-65) Minimum Standards (February 2003) Standard 6 refers to a Service User Plan. Good practice should involve such plans to be person centred.

Mr Cullen in particular made much of the fact that inclusion of a privacy lock on residents’ bedrooms can be seen as a positive indication of the supported living model. We prefer in this regard the evidence of Ann Ford, who in her supplementary witness statement dated 8^th May 2003, said that it has long been the practice in both Liverpool and Sefton to install a privacy lock on all residents’ bedrooms subject to a risk assessment. We believe that privacy locks are not unique to supported living, and should be provided in all residential care settings.

Similarly, she said that the concept of "Essential Lifestyle Planning," more person centred than Service User Plans, are not confined to a supported living environment. She said in evidence that the existence of an "Essential Lifestyle Plan" does not enable her to distinguish between supported living and a care home. However, "Essential Lifestyle Planning" would not by itself signify a change from a care home environment, although it may be a strong indicator.

Witnesses were asked what they thought would have happened if the tenancy agreement were not signed. Mr Blackledge, a friend of KN of 27A Scarisbrick said that his preference was that KN should be a tenant because of the greater degree of permanency. He did not recall being told what would happen if he had not signed the tenancy, but he did say that that no one suggested that KN would lose anything by going to the new model. He said that it would be the same staff doing the same things.

The factual situation is best illustrated in our view by the answer by the Appellant to the important question 7 in the Summary of Essential Questions served on behalf of the Respondent in preparation for the hearing. Question 7 asks: "Was any reassessment of the occupant’s care needs or mental capacity carried out either before or during the reorganisation?" Alternative Futures respond first by saying that prior to the reorganisation there was a robust consultation exercise. It is stated that consultation with service users and their families or advocates comprised a Consultation Pack sent out on December 6^th 2001, consisting of a detailed explanatory letter, copies of the proposed Tenancy Agreement, copies of the Charter for Tenants, copies of a basic pictorial guide, copies of the Support Charter, a summary of Valuing People, an explanation of service users’ legal and civil rights, and a list of commonly asked questions and answers. It is then said, in relation to Lang Lane South, for example, that staff met with service users and their families or advocates to discuss the contents, and they were told to contact Mr Cullen for any further clarification.

We have looked carefully through the Consultation Pack. There are clearly some good points to this pack. In particular, we were impressed by the pictorial guide. We heard how Mr McCann, an advocate, in relation to F of 49, Forest Road, used this pack. He said that he attempted to demonstrate to F what a tenancy is all about using the pictorial guide, that this was done slowly and over a long period. For each of the people he signed for, he made clear to us that they could not sign for themselves and he signed on the basis of his assessment of what was best for them. Mrs Jones, another advocate, adopted a similar style; taking a "best interests" approach. They were not signing as agents, but rather for welfare considerations; a matter of some importance as we have formed a view referred to below that they were not made totally aware of the full range of options that were available to the service users.

For there are difficulties with the pack. Indeed, in his evidence, Mr Cullen accepted that perhaps the pack could have made it more explicit about the possibility of choosing another service provider, but he said that he had not been told about the importance of emphasising choice. We are not convinced by this, and believe that Mr Cullen and Mr Clarke had considerable knowledge on what was required.

Other difficulties with the pack, perhaps less fundamental but still important can be identified as follows:

The responsibility for the rent falls on Housing Benefit. There does not appear to be any indication that the tenant is responsible for the payment of the rent.

The rental schedule was left blank at the time of the signature

There is no reference to grounds for possession, and certainly no reference to the possibility of eviction for non-payment

There is no reference to exclusive occupation

We have asked ourselves the question whether service users and their families had a choice about entry into the scheme, and we have reached the conclusion on the basis of the evidence that we have heard that the answer to that question must be "No". One of the Questions in the Commonly Asked Questions asks "Is there any alternative other than entering into the tenancy agreement?" The reply is "Your relative is currently supported in residential care…That address will cease to be a residential care home on the operative date of the tenancy. We would be happy to discuss alternatives, however this would be likely to mean that we would have to help your relative to locate an alternative residential home that would meet their needs." There is no suggestion there that alternative personal care providers would be available. The Management Agreements with Alternative Futures are for an extended period of time.

This failure is in our opinion one of the key factors in this case. We do not think that the relatives and advocates were provided with a straightforward and neutral list of the options that were available. Indeed, there were no realistic options. In our view, the pack was really motivated by the decision that had already been taken to move to the new model, and that all service users were expected to fit into the new scheme.

We have looked closely at the evidence we heard in relation to each of the service users. There are 43 service users in total. We do not place the emphasis on whether they had capacity to enter into a tenancy. Mr McCarthy suggested to us that with two exceptions there was no evidence to suggest that they did have the capacity to do so, or that they had the capacity to appoint an agent to act on their behalf. Indeed, certainly Mr Clarke would not disagree with this assessment. He said in evidence "Alternative Futures naturally accepts tenants will lack capacity." The relatives and the two advocates did not paint a different picture. The point however is that neither Mr Clarke nor the relatives nor the advocates can make such assessments on capacity any more than the Inspectors can assess capacity. It would be wrong for the Tribunal to make an assessment of capacity also. There should have been an independent assessment of capacity and there was not.

What we can assess is whether there was a realistic choice available, and we have already stated our view that there was no realistic choice in the circumstances surrounding the change of model in these 11 homes.

We are supported in this view by the reports on further visits made at the request of the Tribunal to some of the establishments in April 2003.

Lorraine Farrar and Pat Carragher visited 56, Linslade Crescent for the purposes of obtaining all the current and archived care plans. Lorraine Farrar said that she collected the documentation for JD, AA and PF. The material was reviewed by Pat Carragher. She saw a draft Essential Lifestyle Plan for RM for 2003. Pat Carragher says that his plan is incomplete in that although it shows contributions from support staff it does not show any involvement from RM or anyone outside of the organisation that may have contributed. Both Lorraine Farrar and Pat Carragher state in their witness statements that none of the documents provided for their inspection contained an assessment of service users or their support requirements in relation to the proposed change to a supported living model. There were no documents provided for two service users, PS or PJ. Lorraine Farrar says that Essential Lifestyle Plans were not in place for all service users at the time of her inspections on 18^th February 2003 and 24^th March 2003.

They both end their witness statement that it is their view that 56, Linslade Crescent is continuing to operate as a Care Home, although the introduction of Essential Lifestyle Plans has had a positive impact on the service provided. Pat Carragher makes the following observation: "From the documentation I would confirm that there is no evidence, either archived or current, to indicate that staff, service users, their relatives or advocates were consulted as regards the proposed change to a supported living model." It is our finding that there was some consultation via the packs but the consultation was insufficiently robust and failed to inform service users of the issues of choice.

Paul Kenyon made unannounced visits to 49, Forest Road, 49a Scarisbrick New Road and 27a, Scarisbrick New Road on 1^st April 2003. He says in his witness statement regarding 49, Forest Road that no reference had been made to preparation for the Supported Living Model in respect of the three service users FM, PC and RH. MH had a direct reference to a tenancy in his records and this was included in a support plan dated 25^th January 2003.

In respect to 49a, Scarisbrick New Road, he said that "goal plans" did not include reference to meetings held with service users to discuss proposed tenancies. There was no evidence to suggest that AM, PH and GC had chosen their key workers. He writes: "…There was no evidence found in any "goal plans" or Essential Lifestyle plans relating to the proposed Supported Living Model. No reference was made relating (sic) to the preparation of service users in preparation for the Supported living model."

He states that in respect of 27a, Scarisbrick New Road there was no reference to meetings held with service users to discuss proposed tenancies; and there was no evidence to suggest that KN, CF, and JH had chosen their key workers. He states: "Records inspected were those that one would expect to see with regard to any service user with a Learning Disability living in a residential care home." It is relevant to observe that Mr Pearson said in evidence that having heard all of the evidence presented in this appeal in relation to the four establishments that were his concern, he was still of the view that they were care homes within the statutory definition.

Ann Ford made a further witness statement as late as 4^th June 2003 in relation to 77 Lang Lane South. She says that she has examined the records in respect of that property and is unable to detect any discernible change to care needs prior to the inspection on 23^rd July 2002. Having heard all of the evidence presented on behalf of Alternative Futures in this appeal, Ann Ford was still of the view that the establishments in the Wirral were still care homes.

It is also important to observe that there is a lack of continuing advocacy in all of the eleven homes, except for the few whose tenancy agreements were signed by relatives. It is, however, accepted that there is a national shortage of advocates. Neither Mrs Jones nor Mr McCann, the two independent advocates, has had on-going relationship with any of the service users subsequent to their signing the tenancies on behalf of some of the service users using a "best interests" approach. It is accepted that advocates will often advocate on a single issue and may not continue to be involved in the long term.

Mr de Bono urged upon us the argument that the consultation process was satisfactory and that any faults in the process are insufficient to justify refusing cancellation of registration. We are not persuaded by this submission. For us, the consultation process emphasising the choices available is of the utmost significance. It is necessary to have evidence that the service users should sign by themselves, or where appropriate by advocates or relatives, assured tenancy agreements following full consultation with each of them and their relatives and advocates. It is also necessary that the service users and/or their relatives and advocates should be consulted on the proposal to deregister and positively want their status to be changed to that of tenants in the new scheme. There should be a choice of care provider as part of the process of choice, although we acknowledge that this may be difficult in practice. These considerations should be set against the requirement in our view that there should be a full community care assessment undertaken by the commissioning body in which needs and options are fully discussed with the service users and their carers. There should be a detailed service plan drawn up in consultation with each service user. Service users must be able to exercise a choice over what care is provided and which carer provides the care and it should be made clear to the service user and their relatives and advocates that they may bar entry to a carer in the exercise of their tenancy rights. Thus, service user choice is essential in the delivery of care services and if a tenant does not want the existing provider to provide the care, alternative suitable provision would have to be made available following discussions with the service user concerned and other interested parties. We are not satisfied that any of this was explained to the service users and or their relatives or advocates in the detail that is required under the heading "Consultation".

We heard evidence from Carrie Fotheringham and Sonya Fletcher about the inspection visits on 23^rd and 24^th July 2002 and how, in their view, Mr Cullen was "unhelpful and obstructive." Mr Cullen challenged the accuracy of the contemporaneous notes and the formal reports. We do not consider it necessary for our decision to make any findings on which of the accounts accurately reflects what occurred. It is not an issue that we can satisfactorily resolve, and no doubt all involved will learn the lesson that inspections should be carried out in the spirit of trust and co-operation if only because the primary concern must always be the welfare of the service users.

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 (s 3(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.

APPEALS DISMISSED

His Honour Judge David Pearl (President)
Ms Caroline Joffe
Ms Michele Tynan

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