England and Wales Care Standards Tribunal

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You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Gough (Chorley Nursing Home) v National Care Standards Commission [2003] EWCST 125(NC) (4 April 2003)
URL: http://www.bailii.org/ew/cases/EWCST/2003/125(NC).html
Cite as: [2003] EWCST 125(NC)

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Gough (Chorley Nursing Home) v National Care Standards Commission [2003] EWCST 125(NC) (4 April 2003)

Chorley Nursing Home (Mrs Gertha Jenny Gough)
v
National Care Standards Commission
[2003] 125NC

1. The applicant appealed to the Tribunal on the 8^th January 2003.
2. The National Care Standards Commission submitted that the appeal was misconceived because there had been no decision made by the Commission. The Commission applied under paragraph 4(1)(b) of Schedule 1 of the 2002 Regulations to strike out the application.
3. The applicant sought an oral hearing on this application, and at the hearing on 4^th April 2003, Miss McKenna of Counsel represented the Commission, and the applicant was represented by Mr Collingridge, of Davies and Partners solicitors.
4. Mr Collingridge urged on me that I should consider a letter from the NCSC dated 13^th December 2002 to Mrs Gough as a Decision that could be appealed under s 21 of the Care Standards Act 2000.
5. I have read the letter carefully. It is headed "identifying and meeting the needs of patients". It refers to a report of the recent announced inspection that is currently being prepared, and hopes "that you have in the meantime been able to progress the issues which were notified to you as immediate requirements."
6. The letter says that the NCSC is very concerned about the home’s ability to assess the needs of prospective patients. It specifically says: "It would be the responsible course of action for admissions to be stopped until a manager is in place and has had the chance to review the current care management." The letter goes on to say that the NCSC will be monitoring this matter but initially the NCSC hopes that Mrs Gough will recognise the need for this step. It goes on "In order to achieve a realistic and professionally based view of the current situation, we are asking you to contact Social Services to request assessments for all the existing patients."
7. It is my view of this letter that Mrs Gough is being offered advice, guidance and encouragement so that the appropriate Standards are complied with in the best interests of the residents. No decision has been made by the Commission under Part 11 of the Act so as to trigger a right of appeal under s 21. In these circumstances, the appeal is misconceived and the application to strike out must succeed.
8. Miss McKenna sought an order for costs, and if appropriate, she sought the sum of £1,743.69p. It would normally follow that a successful application under the "strike out" provisions would be accompanied by the appropriate costs award because in most such successful applications there would be a finding that a party has acted unreasonably in bringing or conducting proceedings (Reg 24).
9. An order for costs is in the discretion of the Tribunal. I have decided to make no order as to costs in this case for two reasons. First, and most importantly, I am anxious that the ongoing discussions in this case continue, and that any view I take on the question of costs should not materially affect the well being of the residents. I am anxious not to "stoke the fire" in this case by making an order that will impose any major financial burden on Mrs Gough that I anticipate, even indirectly, may be to the detriment of the residents in her home. Secondly, I am conscious of the fact that the appeal dated 8^th January 2003 was made without the benefit of legal advice. Although I do not think it arguable in any way that the letter of 13^th December 2002 is open to the interpretation given to it by Mrs Gough and by her legal adviser on her behalf at the hearing before me, I do accept that Mrs Gough read the letter of 13^th December 2002 as constituting a Decision under Part 11 by the NCSC.

ORDER:
THE APPEAL OF THE APPLICANT DATED 8^th JANUARY 2003 IS STRUCK OUT IN ACCORDANCE WITH PARAGRAPH 4(1)(b) OF SCHEDULE 1.

NO ORDER AS TO COSTS.

His Honour Judge David Pearl
President
4^th April 2003.