England and Wales Care Standards Tribunal

 


Rose v Commission for Social Care Inspection [2004] EWCST 306(EA) (23 August 2004)

Peter Rose (Alternatives, Leominster) - v - Commission for Social Care Inspection
[2004] 306.EA
DECISION ON APPLICATION BY RESPONDENT TO STRIKE OUT THE APPEAL IN ACCORDANCE WITH PARAGRAPH 1 OF SCHEDULE 1.
1. The Respondent, by letter dated 20^th July 2004 applied to strike out this appeal on the grounds that it was made otherwise than in accordance with paragraph 1 of Schedule 1 of the Regulations, namely within the time scale provided by section 21(2) of the Care Standards Act 2000.
2. I invited the Applicant to make representations on the matter by Order dated 21^st July 2004, and requested that he inform the Secretary whether he wishes to make oral representations. If he wished to make such representations, the matter was set down for an oral consideration of the application on the 20^th August 2004.
3. Although the Applicant did not inform the Secretary in writing, the Tribunal was informed by telephone that the Applicant was not intending to be present on the 20^th August 2004. No written communication from the Applicant has been received.
4. The Respondent's solicitors informed the Secretary by telephone on the 20^th August 2004 that their client was content for the matter to be dealt with on the basis of the documents.
5. The Applicant is registered under Part II of the Care Standards act 2000 as the registered provider of a children's home subject to the condition that "the Home is registered to accommodate 1 male service user aged 14 years at the time of registration and until such time as the existing placement ends."
6. Notice of Proposal to Cancel was served on the Applicant on 17^th December 2003 in respect of the Home, pursuant to ss 17(4)(6) of the Care Standards Act 2000. The Applicant made representations against the Notice of Proposal to cancel, and having considered these representations, the Respondent decided to adopt the Notice of Proposal to cancel registration.
7. The Respondent sent the formal Notice of Decision to cancel in respect of the home to the Applicant on 15^th March 2004. It would seem that this was an amended Notice, because "a number of errors regarding the appeals process were incorporated into the previous notice and have now been corrected." The letter of 15^th March 2004 states that the period of notice "now commences from the date you received this letter." From the documents that I have seen on file, it would appear that the Applicant had been sent a letter dated 11^th March 2004 together with a letter enclosing a Notice of Proposal to Cancel Registration and informing him that he had the right to make written representation to the Regional Director by 8^th April 2004. This of course was not the correct letter, as the Notice of Proposal to Cancel Registration and formal representations against this had already taken place.
8. These administrative errors were unfortunate and one can well understand that the Applicant may have been confused.
9. Even more worryingly, the letter dated 15^th March 2004 states "You have the right to make written representations to the Care Standards Tribunal at the following address on any matter which you may wish to dispute". It states that written representations must be received by 19^th April 2004.
10. This letter is both misleading and wrong. By section 21(1) of the Care Standards Act 2000 there is a right of appeal to the Care Standards Tribunal. There is no "right to make written representations."
11. What then happened was that by letter dated 14^th April 2004 received by the Tribunal on 19^th April 2004, the Applicant wrote to the Tribunal enclosing a bundle of papers. The letter is headed "Written representation in response to your communication 11^th March 2004."
12. On that very day, namely 19^th April 2004, the Secretary to the Tribunal wrote to the Respondent enclosing the documentation that had been received from the Applicant and stating "For your information, the Care Standards Tribunal has received an appeal against the decision to cancel the registration of the above. At the moment, the appeal is being processed by the Tribunal. This is not a formal Appeal Notification, therefore the twenty working days period does not start until we copy the appeal to you."
13. On the same day, 19^th April 2004, the Applicant was written to and asked to complete Form B1 in order to comply with Schedule 1 paragraph 1(i) of the Regulations. He was asked to complete the form by Return. The B1 was not returned immediately, and an "Unless Order" was sent out to the Applicant on 19^th May 2004 stating that unless the Applicant within five working days of the receipt of the Order files Form B1, the case may be determined in favour of the Respondent.
14. The Form B1 was received by the Tribunal on 2^nd June 2004, although it is dated 1^st May 2004.
15. The Respondent supports the application to strike out on the ground that in order to comply with s 21(2) of the Care Standards Act 2000, the appeal should have been brought no later than 15^th April 2004. This submission is without any merit, given that the amended letter dated 15^th March 2004 (and the first one to mention the Tribunal) refers to written representations, and states that these must be received by the Tribunal by 19^th April 2004.
16. The Respondent asserts that the details of the letter do not constitute a valid appeal as they do not comply with the requirements set out at para 1(3) of Schedule 1 of the Regulations. The Respondent is of course correct in this assertion, but it is understandable that the Applicant sent in "representations" by 19^th April 2004 given that this is what he had been told to do by the letter dated 15^th March 2004.
17. The application to strike out this appeal is without merit, and is rejected.
18. In paragraph 5 to the Direction dated 21^st July 2004, the parties were requested to file the Further Information forms (B5 and B6) within fifteen days after the Direction was received. The B6 Form has been received from the Respondent. The B5 Form has not been received as of today's date from the Applicant.
19. Under Regulation 10, unless a party to whom the Order is addressed takes steps specified in the Order within the period specified in the Order, the case may be determined in favour of the other party.
20. Accordingly, I now ORDER that unless the applicant, within five working days of receipt of this ORDER files Form B5 with the Secretariat, the case may be determined in favour of the Respondent.

APPLICATION TO STRIKE OUT DISMISSED

UNLESS ORDER DIRECTED TO THE APPLICANT TO FILE B5 WITHIN FIVE WORKING DAYS OF RECEIPT OF THE ORDER.

His Honour Judge David Pearl

President

23^rd August 2004.