England and Wales Care Standards Tribunal

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Cite as: [2005] EWCST 477(EA)

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Time Focus Ltd v Commission for Social Care Inspection [2005] EWCST 477(EA) (7 October 2005)

Time Focus Ltd

-v-

Commission for Social Care Inspection

[2005] 0477.EA

Before: Mr Mark Rowland (chairman)

Mr Chris Wakefield

Ms Wendy Stafford

DECISION

By consent and without an oral hearing, we allow this appeal to the extent of directing that the condition imposed by the Respondent on 7 March 2005 on the Appellant's registration in respect of the care home at Henley Court, 8-10 Cavendish Road, Portsmouth, Hampshire, shall cease to have effect and that the following condition that has been agreed between the parties shall have effect in its place.

1. Harmit Kaur ("Ms Kaur") shall not –

(a) (save as specifically provided in paragraph 6 below) enter the care home, or

(b) have any direct or indirect contact with –

(i) any service user of the care home, or

(ii) (save as specifically provided in paragraphs 3, 4 and 5 below) any member of staff employed at the care home.

2. Dian Bowley ("Ms Bowley") in her capacity as the registered manager of the care home, shall have responsibility for –

(a) the day-to-day operation of the care home, including ensuring-

(i) that the home complies with the National Minimum Standards – Care Homes for Older People and the Care Homes Regulations 2001, and

(ii) that reactive maintenance is carried out to the premises, fabric and equipment of the home;

(b) admissions and discharge of service users and issuing of contracts with service users; and

(c) the recruitment and employment of staff and their deployment on a day-to-day basis.

3. Ms Kaur, as a director of the registered provider, Time Focus Limited, and as the Responsible Individual for the care home, shall have responsibility on behalf of the registered provider for –

(a) providing the necessary resources to ensure that Ms Bowley is able to carry out her duties as above, and

(b) liaising with Ms Bowley on a weekly basis or as appropriate to discuss the operation of the care home and its policies.

4. For the purpose only of discharging the responsibility set out in paragraph 3(b) above and the functions of the Responsible Individual, Ms Kaur, as a director of the registered provider, Time Focus Limited, may meet with Ms Bowley or, in case of her sickness or absence, her deputy or another person acting as such, at a venue outside the curtilage of the care home.

5. Ms Kaur shall be entitled to deal with appeals under the disciplinary and grievance procedures of Time Focus Limited.

6. In the event of structural damage being caused to the care home by reason of fire, flood or storm, Ms Kaur may enter the home to supervise any necessary remedial work and for directly related matters.

7. This condition shall remain in effect –

(a) while Ms Bowley continues to be registered as manager in respect of the care home, and

(b) for as long as any other person shall be designated or registered as manager of the care home, subject to the substitution of the name of such person for that of Ms Bowley.

There shall be no order for costs.

However, we wish to record that we consider that we should not have been asked to impose the agreed condition or any other condition and we shall explain why we take that view.

This appeal is against a decision by the Respondent to impose a condition on the Appellant's registration in respect of the care home to the effect that Ms Kaur, the sole director of the Appellant, should not have any contact with the residents or staff of the care home, save that she could deal with the registered manager for specified purposes provided she did not enter the care home. The condition was imposed following complaints about her behaviour towards both residents and staff. By its appeal, the Appellant challenged the allegations but also argued that the condition was impractical. The appeal was listed for hearing for four days from 11 October 2005. On 23 September 2005, the Respondent's solicitors wrote to the Secretary of the Care Standards Tribunal, with the approval of the Appellant's solicitors, stating, in effect, that the parties had agreed to compromise the appeal on terms that required the condition to be varied or replaced with another condition that reflected some of the Appellant's concerns about the practicality of the original condition. The parties left it to the tribunal to decide whether the appeal should be dismissed but the condition varied or whether the appeal should be allowed but a new condition imposed, because the outcome would be the same in either event.

On 26 September 2005, the chairman issued a direction in the following terms –

"1. I have read the letter dated 23 September 2005 from the Respondent's solicitors to the Secretary to the Care Standards Tribunal and I commend the parties for having settled this case. However, it does not appear to me to be either necessary or appropriate in this jurisdiction for a tribunal to make a consent order where a case is compromised before a hearing commences. I do not wish to seem unduly pernickety but the point may have some relevance in future cases.

"2. Regulation 33 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 clearly requires that, where there is a withdrawal of proceedings or a opposition to proceedings before a hearing commences, the President of nominated chairman (as opposed to a complete tribunal) must make the necessary order dismissing or allowing the appeal and may make a costs order. Nothing is said about the President or nominated chairman having any power to impose or vary any condition applying to the registration in respect of the establishment or agency.

"3. This is not surprising because the registration authority may itself impose or vary a condition and there is no advantage in having the tribunal do so if the tribunal has not itself considered the merits of the condition. It would be inappropriate for the President or nominated chairman to consider the merits of the condition without the expert members of the tribunal being a party to the decision.

"4. Accordingly, I take the view that, where it is proposed to compromise an appeal before a hearing on terms that will lead to the imposition or varying of a condition, the parties should agree which one of them will withdraw the proceedings or opposition to the proceedings and they should further agree that the appellant will not oppose the respondent imposing an agreed condition or varying a condition in agreed terms, upon the appeal being dismissed or allowed, as the case may be. The President or nominated chairman will then simply make the order required by regulation 33, although he may consider it appropriate to record that the parties have agreed the terms of a condition to be imposed or substituted upon the appeal being dismissed or allowed.

"5. Sometimes the terms of the decision under appeal will determine which party should withdraw but, in the present case (as the parties appear to accept), it does not matter much whether the Appellant withdraws and the Respondent then varies the condition upheld by the dismissal of the appeal by substituting the agreed terms or whether the Respondent withdraws its opposition to the appeal and then imposes the agreed condition to replace the one set aside by the nominated chairman in allowing the appeal.

"6. I direct the parties to indicate as soon as practical whether they accept the above analysis. If so, they should agree which of them will withdraw and also agree that the Respondent, rather than the tribunal, will impose or substitute the agreed condition. If and when I receive a notice of withdrawal from the party concerned, I will make the necessary order, and will record that it is made in the light of the agreement as to a new condition."

However, the parties did not agree with the chairman's approach and the Respondent's solicitors, with the support of the Appellant's solicitors, replied to the Secretary by email on the same day saying –

"The matter having been referred by way of appeal to the Tribunal, we both respectfully consider that it is for the Tribunal now to dispose of the issues raised. It should do so in the terms agreed between the parties, as is commonly the case when courts and tribunals in many jurisdictions give effect to terms agreed for the settlement of litigation.

"There are, in any event, obstacles in the way of the Commission itself imposing a new condition in the agreed terms …"

There is no doubt that the tribunal as a whole has the power to give a decision in the terms originally contemplated by the parties' solicitors and we have given such a decision because we have no desire to increase the parties' costs by prolonging this case and because we are prepared to accept that the agreed condition is not inappropriate. Although the tribunal has an inquisitorial role, we consider it should be slow to go behind an agreement reached by parties who are both represented by solicitors. Indeed, if an appeal is compromised more than two weeks before a hearing, it is unlikely that the tribunal will have the material upon which to form any judgment at all as to the necessity for there to be a condition. In this case, bundles of evidence have been delivered but the parties have not invited us to read them and, in the absence of an oral hearing, we could not make satisfactory findings on matters that have been in dispute. Accordingly, where an appeal has been compromised on terms that require a tribunal to vary or impose a condition of the registration in issue, a tribunal is likely only to be able to consider whether the condition is one that could be appropriate. Material questions will therefore be whether it is consistent with the legislation and whether it is practical.

In this case, the proposed condition is certainly capable of raising some questions. As to consistency with the legislation, we note that regulation 7(1) of the Care Homes Regulations 2001 provides that –

"A person shall not carry on a care home unless he is fit to do so."

It would be surprising if a limited company were regarded as fit to carry on a care home for any very substantial length of time when its sole director was not regarded as fit to have any contact with the residents or to have more than very limited contact with the staff. However, where the alternative is closure of an apparently well-run home with a competent registered manager, we are prepared to accept that it can be acceptable to allow a company to continue to carry on a care home despite the unsatisfactory record of its sole director, provided sufficient safeguards are in place. It follows that it may not be necessary to resolve the question of the director's fitness to have contact with residents and staff if the company is prepared to agree to the safeguards proposed by the Commission. In the present case, we do not know the parties' plans and expectations for the future. However, as the parties are both represented by solicitors, we do not consider it necessary to ask them about such matters because, as we have said, it is not necessary for us independently to satisfy ourselves of the appropriateness of the agreed condition of registration. It is enough that we are satisfied that the condition is capable of being appropriate and that the parties have both agreed to it.

As to practicality, we observe that it is contemplated that the Appellant will discharge its duty under regulation 26 of the 2001 Regulations to visit the care home by appointing someone other than Ms Kaur to carry out such visits. If Ms Kaur remains the sole director of the Appellant, it will be necessary for such a person to be an employee of the Appellant who is not directly concerned with the conduct of the care home (see regulation 26(2)). It is implicit that the contact such a visitor has with residents and staff will not be "indirect" contact by Ms Kaur contrary to the new condition. Again, both parties are represented by solicitors and we presume that they have addressed the question whether there is, or will be, an employee who can carry out the visits.

In all the circumstances, we are prepared to impose the condition agreed between the parties. However, although we have been prepared to accept the parties' approach for the purposes of this case, we will comment on the Respondent's solicitors' email of 26 September 2005.

It is, of course, true that courts and tribunals often make orders in terms agreed by the parties in order to bring litigation to a close. However, the order of most courts or tribunals is an order that neither of the parties can make itself and it is one that has important consequences, particularly in relation to enforcement. In contrast, a condition imposed on registration by a care standards tribunal is no different from a condition imposed by the Commission for Social Care Inspection. It can be varied or enforced by the Commission in the same way as a condition imposed by the Commission itself. The tribunal has no independent powers of enforcement. In those circumstances, the position of the care standards tribunal is not as analogous to the position of courts and other tribunals as the solicitors suggest and there is no reason in principle why an agreed condition should not be imposed by the Commission, rather than by a tribunal, when an appeal is compromised.

In any event, the point being made by the chairman was that, when an appeal is compromised, regulation 33 of the 2002 Regulations contemplates the President or the nominated chairman alone either dismissing or allowing the appeal. There are sound practical reasons for that if, as is clearly intended, a tribunal is not expected to consider independently the merits of the settlement. Care standards tribunals sit on an ad hoc basis as and when required and, notwithstanding email and telephones, it is not always possible for all three members of a tribunal to contact one another immediately. Obviously, if it transpired that one member could not be contacted, another person could be appointed to the tribunal in his or her place, but the whole point of regulation 33 is that it should not be necessary for any member of the tribunal other than the President or nominated chairman to be involved at all if the parties agree that one or other of them will withdraw from the proceedings. However, regulation 33 does not give the President or nominated chairman the power to vary or impose a condition in respect of the registration, which is readily understandable if the Commission itself can do so.

The practical difficulty suggested by the Commission is that, by virtue of sections 17 to 19 of the Care Standards Act 2000, the Commission must, before varying or imposing a condition, give notice of the proposal and inform the registered provider that he has 28 days in which to make representations. The Commission must then consider formally adopting the proposal and, when giving notice of the decision, must inform the registered provider of his right to appeal. The decision would then come into force only after the 28 days for giving notice of appeal had expired.

However, we are not persuaded that that is an insuperable difficulty. As the Respondent's solicitors accepted in an email to the Appellant's solicitors, section 18(2) of the 2000 Act recognises that the registered provider may waive his right to make representations in response to a notice of proposal and section 19(6) provides that, where a registered provider notifies the Commission in writing that he does not intend to appeal, the decision takes effect from the date "when the notice is served" (although it is not entirely clear whether that refers to the notice of the decision or the notice that the registered provider does not intend to appeal). In the light of those provisions, there seems to be no reason in principle why a registered provider should not, as part of the settlement of an appeal, agree to waive his right to make representations in respect of a proposed variation or imposition of a condition of registration and also agree to waive his right to appeal against the new decision. In those circumstances, it seems to us that the issue of a formal notice of proposal would be unnecessary and the Commission could simply make the agreed decision to vary or impose the condition and the decision would have immediate effect. A registered provider could hardly argue that a decision made in that manner was invalid merely because he had not been given formal notice of rights of which he had in fact been aware and which he had expressly waived.

We suggest that the Commission should consider this issue further and discuss it with the President of the care standards tribunals so that some consistent approach is taken to the settlement of appeals in cases where the terms of the settlement require the variation or imposition of a condition of registration. What appears clear to us is that the President or nominated chairman sitting alone has no power to vary or impose a condition of registration. If the Commission accepts that it can in practice draft terms of agreement that would enable it to vary or impose a condition with immediate effect upon an appeal being summarily allowed or dismissed (or, indeed, even before the President or nominated chairman has allowed or dismissed an appeal), it seems to us that that would be the best way of dealing with cases like the present. The President or nominated chairman could record the existence of the agreement for a new condition in a "Tomlin" schedule but the condition would not be part of the decision itself. There is no point in the question whether to vary or impose a condition being considered by a full tribunal if the tribunal will not be in a position to investigate the merits of the proposed condition.

If the Commission does not accept that cases can be dealt with in that way, it seems to us that terms of settlement must for the time being be put before a full tribunal if they require the variation or imposition of a condition of registration. However, if that view is taken, the Commission and the President might wish to suggest to the Department of Health that legislation should be introduced to amend the Care Standards Act 2000 so as to enable the Commission to give immediate effect to an agreement to compromise an appeal by varying or imposing a condition of registration without going through the usual statutory procedure. Alternatively, the Secretary of State might be invited to amend regulation 33 so as to require the President or nominated chairman to give effect to any agreement to vary or impose a condition of registration that is part of the settlement of an appeal.

Mark Rowland

Chairman

7^th October 2005