England and Wales Care Standards Tribunal

 


Hall v Commission for Social Care Inspection [2003] EWCST 242(EA) (17 August 2004)

Jacqueline Dorothy Hall -v- Commission for Social Care Inspection [2003] 242.EA Hearing on 10^th August 2004 -Before- His Honour Judge David Pearl (President) Ms M Adolphe Ms B Chatfield
1. This is an application by the Respondent to strike out four appeals brought by the Appellant in accordance with Schedule 1 paragraph 4 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (misconceived, frivolous or vexatious appeals).
2. The Appellant is registered under the Care Standards Act 2000 both as registered provider and registered manager in respect of three homes; namely The Daffodils, 18 Ashby Road, Burton upon Trent, The Lauders Alternative Care Complex, 19 Ashby Road, and the Lauders Annexe, 20, Ashby Road. Decisions have been taken to cancel her registrations in respect of these homes, and an emergency cancellation order has been made by a Magistrate in respect of 19, Ashby Road. The Appellant has made four separate appeals, registered by the Secretariat as 242.EA, 300 EA-JP, 317.EA, and 318.EA.
3. It is accepted that Mrs Hall and her husband have been in financial difficulties, and it would appear that there is now a Consent Order for sale whereby liquidators of a building firm have been appointed pursuant to s 90(1) of the Law of Property Act 1925 (as amended by the Land Registration Act 2002) to convey the freehold interest in the three care homes (together with the interest in Mr and Mrs Hall's separate flat). The Hall's were directed to deliver vacant possession of the three care homes by 24th May 2004.
4. The issue before the Tribunal is simply stated as follows: as the Appellant no longer has a sufficient interest in the premises, should the appeals be struck out?
5. Mr B Silvester of Counsel instructed by Bevan Ashford, Solicitors appeared on behalf of the Respondent, and Mr P Engelman of Counsel instructed by Robert Campbell and Associates, Solicitors, appeared on behalf of the Appellant. (Mr Engelman was instructed only in relation case number 242, however it was common ground that the issue was the same in all four appeals, and thus submissions would cover all of the appeals before us.)
6. In his skeleton submissions, Mr Silvester outlined the argument on behalf of the Respondent as follows, at paragraph 18:

"It is submitted that there are two essential components to registration: the premises which are used as an 'establishment' and the 'person' who carries on or manages it. The person is registered in respect of the premises/establishment. Where a person carries on or manages an establishment, he/she must be registered (failure to do so is a criminal offence under s 11 of the Act). But if a person loses possession and control of the premises the registration comes to an end and, if an appeal against cancellation of registration has been launched by that time, then the decision to cancel must be upheld."

7. According to Mr Silvester's submission it follows that as the Appellant has lost the premises in respect of which she was registered, the Tribunal should use its procedural powers at this early stage to strike out the appeals as a preliminary issue, because it is not appropriate for there to be what would otherwise be a considerable expenditure of resources both in time and money.
8. In support of this application, Mr Silvester has drawn our attention to the case law decided under the provisions of the predecessor to the Care Standards Act 2000, that is the Registered Homes Act 1984 and also to Part X (now repealed) of the Children Act 1989. He submitted also, that even without the authority of the case law under the earlier legislation, the provisions of the Care Standards Act 2000 make clear that registration in these appeals cannot continue beyond the 24th May 2004 when it was lost by operation of the Consent Order for Sale. Therefore, the outstanding appeals should be struck out as being "frivolous, vexatious or misconceived."
9. We have looked carefully at the cases referred to us. Woodard v North Somerset DC [1998] 1 FLR 950 and Jenkins v Essex County Council [1999] 1 FLR 420 are both appeals brought by child minders from decisions taken by local authorities to cancel their registration on fitness grounds under s 71(7) of the Children Act 1989 (now repealed). In Woodard, a lease of premises had been forfeited. Bracewell J decided that the Justices were correct to refuse to entertain the application as to whether the fitness grounds were made out, in the absence of premises. Bracewell J said:

"It is in my judgement plain that the Act contemplates the registration of a person in respect of a particular set of premises…In my judgement there were no such premises. There was nothing available for the local authority or its officers to inspect. Unless there are particular identified premises the local authority cannot carry out its duties."

10. In Jenkins, the applicant had not yet decided whether to take up the right to occupy the premises in question. The appeal was dismissed by the Magistrate on that ground alone, and Sir Stephen Brown P upheld that decision. He said:

"…the position is clear that she did not have the necessary premises. That is fatal to this appeal."

11. We were then referred to the decision of Sanjivi v East Kent Health Authority [2000] 59 BMLR 115. In this case, the Registered Homes Tribunal had decided that an appeal against a decision to close a nursing home should be dismissed on the basis that the Appellant no longer had the use of, nor intended to use the home. By the time of the hearing before the Registered Homes Tribunal, the home had been repossessed and sold. The appeal to the High Court was dismissed by Hallett J. She said:

"If the premises therefore cease to be available to the registered person, in my judgment, the only sensible construction of the Act must be that the registration must be cancelled…If therefore the premises at any stage before the final disposal of the appeal process procedure cease to be available the appeal…must inevitably be dismissed."

12. The Judge said that registration of the premises is inseparable from registration of the person, and that the very fact that the Tribunal is entitled to hear fresh evidence shows that the Tribunal cannot be bound by the factual situation as it is at the time the appeal is disposed of.
13. Leave to appeal Sanjivi to the Court of Appeal came before Longmore LJ [2001] EWCA 125, and he refused leave. He said:

"…once the owner of the Nursing Home sells the Home and is thus not using or intending to use the premises for the provision of nursing for persons suffering from sickness within s 21(1)(a), the appeal process must be intended to lapse."

14. Mr Engelman submitted that these cases are not binding on us, given that they deal with different legislative provisions, and he urged us to adopt a different approach when considering the Care Standards Act 2000. He referred us also to the concerns expressed by the Judges in those cases. Thus Bracewell J said in Woodard:

"It is very sad that in this case because of a chicken and egg situation, if I may so express it, the appellant is in an invidious position in that she cannot get financial backing until she is registered and she cannot be registered until she has premises in respect of which she can make an application."

15. In Jenkins, Stephen Brown P said:

"I think that the appellant is unfortunate in the way in which things have developed but the position is clear that she did not have the necessary premises."

16. And in Sanjivi, Hallett J said:

"I do accept that is unfortunate because the health authority acted under its emergency powers and the home closed down with immediate effect, and the subsequent delay meant in this case that Mrs Sanjivi lost her income, lost her home as a result and, therefore, inevitably lost the appeal. I do understand how she must feel about that and the fact that, as she sees it, she has not had an opportunity to clear her name."

17. Longmore LJ although refusing leave to appeal, said:

"I…do have a considerable amount of sympathy with Mrs Sanjivi who because the appeal process has been inevitably somewhat drawn out because it has taken a number of days to deal with only some of the evidence, has found that she is unable to continue the payments under the mortgage of the Home."

18. Both Mr Engelman and Mr Silvester drew our attention to the case of Kowlessur v Suffolk Health Authority (Court of Appeal 16^th November 2000). Mr Silvester submitted that this case dealt with a very different issue from the matter before us, and is only authority for the proposition that under the Registered Homes Act 1984 there was no mechanism for persons to apply for cancellation of their own registration. This has now been remedied by s 15 of the Care Standards Act 2000. He further submitted that s 15 applications for cancellation only need to be made in circumstances where the registered person, although ceasing to provide a registrable service, retains possession of the registered premises. He submitted that there is no need for a registered person to make a s 15 application for cancellation in circumstances where he or she loses his or her interest in the registered premises as, in such circumstances, the registration comes to an end as a matter of law. He referred us also to the Policy Guidance on the matter issued by the former regulator, the National Care Standards Commission, which states that registered providers do not need to make applications for cancellation where they are selling "going concerns."
19. Mr Engelman submitted that Kowlessur is authority for the proposition that once the "Notice of Proposal procedure has been commenced the continued use of a home as such was not necessary." He submitted that both Jonathan Parker LJ and Sedley LJ emphasised that a registered person was entitled to challenge any adverse finding on the issue of fitness.
20. Kowlessur itself was followed by Richards J in Alternative Futures v National Care Standards Commission and Sefton MBC [2002] EWHC 3032 (Admin). The Judge 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 judgement by that authority as to whether the changes were such as to take the homes outside the conditions of registration."

21. Mr Silvester referred us to sections 3,11,12(4), 14(1), 17(4), 22(2), 28(1) and 31(2) of the Care Standards Act 2000 in support of the proposition that the premises are an essential component of registration. Mr Engelman referred us to s 15(2)(a)(b) of the Act in support of the contrary proposition. In addition, it is indeed the case that the Act does not specifically provide for the proposition advanced by Mr Silvester. He submitted that this is because the Act does not need to state this in express words. He submitted that the proposition is clear from the words of the sections he referred us to.
22. It is our opinion that the exact interpretation the provisions of the Care Standards Act 2000 is a matter of considerable importance. It is not however an issue that we feel we are able to decide in the context of a strike out application.
23. In considering this preliminary issue, we have decided that the question whether the registration has been terminated as a result of the Consent Order for Sale should not be our primary focus. An application to strike out an appeal under the Regulations is a procedural device that should be exercised with caution (see for example Esther Aliyu v OFSTED [2004] 254 EY; Alan Hawkes v Secretary of State [2004] 243.PC). It does not seem to us to be the appropriate forum for considering the detailed provisions of the Care Standards Act 2000, and in particular for deciding whether premises are an essential component for continued registration and whether the loss of the premises is fatal to the continuation of the registration.
24. We have decided that this is not a case where, in the exercise of our discretion, it would be appropriate to strike out these appeals. First, and of utmost importance, s 21 of the Care Standards Act 2000 appears to us to be clear and unambiguous. This section provides a right of appeal from decisions of the registration authority under Part II and from orders made by the Justice of the Peace under s 20. We agree with Mr Engelman that to deprive the Appellant of the right of appeal through operation of the strike out procedures would arguably be a violation of the Appellant's rights under Article 6 of the European Convention on Human Rights, now directly applicable in English law by virtue of the Human Rights Act 1998. We are duty bound to read s 21 in accordance with the European Convention.
25. We agree with the textbook writers who have considered this issue. For example, the editors of "Care Standards: A Practical Guide" (Jordans, 2003) write:

"It is permissible for the provider to launch or continue with an appeal to seek to clear their name of any unfitness or wrong doing despite there no longer being an "establishment" to which registration attaches."

26. Likewise, the editors of the Social Services Encyclopaedia (D1/500/5) write:

"It is submitted that Sanjivi should not be applied to the [Care Standards Act] as a deprivation of a right of appeal from a decision that has the effect of depriving the applicant of a licence to conduct a business is arguably a violation of the applicant's rights under Art 6 of the ECHR (Bentham v Netherlands (1986) 8 EHRR 1)".

27. Mr Engelman referred us also to Purdas v Sweden [1988] 10 EHRR 380.
28. There are three other reasons why we dismiss the application to strike out these appeals. First, there is no provision within the Act or in subsidiary legislation that states that a person cannot remain registered subsequent to a Consent Order for Sale. This contrasts with the provisions of the Domiciliary Care Agencies Regulations 2002 and the Care Homes Regulations 2001, where Regulation 7 of both Regulations deals specifically with a person who has been adjudged bankrupt or has made a composition or arrangement with his creditors and not been discharged with respect to it. Such a person cannot carry on an agency or an establishment and any application for registration would be rejected. In these circumstances, an appeal simply could not succeed and the appeal would be doomed to failure. Therefore, any continuation of the appeal would be misconceived and would be almost certainly struck out. (Companion Care (Witney) Ltd v CSCI [2004] 263.EA). The absence of a similar provision regarding Consent Orders for Sale supports Mr Engelman's submission.
29. Secondly, there is provision in the Regulations for appeals to continue notwithstanding the death of the Appellant (Regulation 31(b)). It seems to us that this provision shows that the link between the individual and the establishment is not as critical as Mr Silvester urged on us.
30. Finally, it is important to realise that the Tribunal has a power to award costs if in the opinion of the Tribunal a party has acted unreasonably in bringing or conducting the proceedings (regulation 24). In regulating its own procedure (regulation 20) the Tribunal may in appropriate cases wish to consider making a "costs warning" to either party, in effect to put a party on notice that there may be an award of costs made against them in the event that that party proceeds with the case, and loses.
31. Accordingly, and for the reasons set out above, the application to strike out is dismissed, and the appeals will proceed. The Secretariat will now contact the parties as soon as possible so as to arrange a Preliminary Hearing (preferably by telephone) to establish a timetable for the procedural steps that are now required prior to the hearing.

APPLICATIONS BY THE RESPONDENT TO STRIKE OUT THESE APPEALS DISMISSED.

His Honour Judge David Pearl

(President)

Ms M Adolphe

Ms B Chatfield

17^th August 2004.