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Cite as: [2007] EWCST 1052(EA)

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Joseph v Commission for Social Care Inspection [2007] EWCST 1052(EA) (6 March 2008)

RUFINA JOSEPH

-v-

COMMISSION FOR SOCIAL CARE INSPECTION

[2007] 1052.EA

[2007] 1116.EA

BEFORE:

Ms Liz Goldthorpe (Nominated Chair),

Mr Ken Coleman (Specialist Member)

Mrs Susan Howell (Specialist Member)

Sitting on 14^th, 15^th, 16^th, 17^th and 18^th January 2008 at the Care Standards Tribunal, 18 Pocock Street, London SE1 0BW

DECISION

Representation:

Mr Peter O'Brien, retired Barrister, for the Appellant

Ms Nicola Greaney of Counsel for the Respondents

A. The Appeals

The Appellant appeals pursuant to Section 21 of the Care Standards Act 2000, against

i) a decision of the Commission for Social Care Inspection ('the Commission') dated 9 August 2007, to refuse her application to become a Registered Proprietor of the proposed premises, Culita Care, 12A Cardington Street, Luton, Bedfordshire ('Appeal 1') and;

ii) a decision of the Commission dated 4 June 2007, to refuse her application to become a Registered Manager of those premises ('Appeal 2').

On 10^th October 2007 the Deputy President consolidated these appeals on the basis that both gave rise to similar issues.

B. Witness evidence

We heard evidence on behalf of the Respondents from witnesses all currently employed by the Commission:

• Ms Ansuya Chudasama, a Regulation Inspector since 2002;

• Ms Sara Morrison, a Regulation Manager with 19 years experience of registration and inspection; and

• Mrs Lynda Higgins, a Regional Enforcement Manager with 12 years experience.

We heard oral evidence from the Appellant and read a statement from her sole witness, Ms Laucina Meyers, a former care worker at Ryecroft Home, who was unable to give oral evidence due to work commitments.

The Respondents had filed one inspection report, dated 9 September 2005, in respect of Ryecroft Care Home ('Ryecroft'). The Appellant was the Registered Manager of this home until April 2006. In August 2007 the Respondents had included in its list of witnesses Ms Leonie Milton, the lead Regulation Inspector for Ryecroft, but did not file a statement from her. It seems she is no longer employed by the Commission. It became clear that in 2007, following the emergency closure of the home, the Registered Provider had appealed to the Tribunal. Documents in that appeal had not been disclosed to Ms Joseph. These included a witness statement from Ms Milton and two further inspection reports relating to Ryecroft dated 27^th April 2005 and 2^nd & 3^rd May 2006 respectively. We admitted these documents, which then became the subject of cross-examination.

C. Preliminary Issues

Appeal 1

6.1 The parties had reached some agreement on the issues in correspondence before the hearing. The Appellant had conceded the proposed premises did not comply in some respects with the National Minimum Standards ('the NMS'), but continued to maintain they would be generally suitable for the 3 service users she had in mind. She wished to challenge the Commission's other findings and the procedure it had used.

6.2 On the first day, the Commission indicated through Counsel that it no longer wished to rely on any issue as to the Appellant's integrity and good character. However, a brief adjournment was necessary due to the illness of Mr O'Brien and clarification of the extent or detail of the Appellant's concessions was therefore not available until Day 2.

Appeal 2 -

7.1 In consequence of the Appellant's concession in respect of Appeal 1 there were no premises against which she could now be registered as a manager. Nevertheless, the Appellant said she wished to continue her plan to open a care home, and therefore was likely to make a further application for registration in future in respect of different premises. Accordingly, following the principles identified by the Deputy President in H v Welsh Ministers [2007] 1027, (subsequently upheld by the High Court), we concluded a similar practical advantage existed in this case to give the Appellant a fair opportunity to challenge the Commission's original grounds for refusal of registration. Therefore, we exercised our discretion to hear the appeal.

7.2 We directed the Respondents to provide a Skeleton Argument clarifying several issues: whether the proposed premises could ever be regarded as suitable and if not, why not; to what extent the withdrawal of the allegations about the Appellant's integrity and good character meant the evidence in respect of two specific establishments where she had been employed would no longer be relied upon; and to confirm that the remaining issues for determination centred primarily on her qualifications, skills and experience to be a Registered Manager.

Therefore, it became common ground that

i) Appeal 1 should be dismissed due to the Appellant's concession that the premises were unsuitable and did not comply with regulation 23 of the 2001 Regulations;

ii) In Appeal 2, in judging the Appellant's fitness to be a Registered Manager, Regulation 9(2)(b)(i) was the relevant requirement, i.e. the skills and experience necessary for managing the care home she had originally proposed, Culita Care.

9. The relevant date for determination of appeals:

1 In accordance with established practice, the Tribunal conducts a rehearing and its decisions are based on issues of fact and of fitness as at the date of the hearing of the appeal. As stated in Appiah-Anane v NCSC [2002] 96 NC, OFSTED v Spicer [2004] EWHC 440 (Admin) and Puretruce Health Care .v. National Assembly for Wales [2005] 544.EA-W.JP, the Tribunal conducts a merits appeal, not a judicial review or a review of the original decision of the registration authority. Its role is to engage in a total examination of all the evidence and it can admit evidence previously overlooked or which relates to events that occurred after the original decision.

2 The Commission's recent contention that registration cases should be distinguished from cancellation cases because the tribunal's approach does not fit with s.21(3) CSA 2000 has not yet been tested on appeal to a higher court. The point was considered most recently by the President in Glenda Hunt .v. Commission for Social Care Inspection [2007] 1045.EA, where he concluded that, in the absence of any fully reasoned response, it was inappropriate and wholly unfair to deal with the matter. The Appellant in that case was unrepresented and inclusion or exclusion of any evidence subsequent to the Commission's decision did not make any real difference. The Tribunal therefore considered all of the Appellant's evidence, including that arising after the Commission's decision, and we saw no reason to depart from the usual approach in this case either.

D. Factual Background

The Appellant trained at Horton Hospital from 1967 to 1972, and qualified as a Registered Mental Nurse ('RMN') in December 1971. She also qualified as a Registered General Nurse ('RGN') and was admitted to the Register in December 1975.

The Appellant has attended a number of courses in a range of topics, including training on mental health, care of the elderly and abuse issues. In March 2005 she attended a course on mental health legislation as well as a course entitled 'Protection of Vulnerable Adults – Train the Trainer course for Workplace Awareness Trainers', which included the recognition of, and appropriate response to, abuse.

In her registration application, the Appellant gave her professional experience as her nursing training and experience, including a period as a staff nurse with Lambeth Community Care and several periods of employment as a manager in a number of settings caring for the frail and mentally ill elderly. She included her period as Registered Manager of Ryecroft Care Home ('Ryecroft') from November 2004 to April 2006. From May 2006 the Appellant began working part time for Home Care and Health Limited, a service consisting of a domiciliary care agency and a nursing agency respectively. The owner supplied a reference for the Appellant in support of her registration application, but did not specify in what capacity he employed her. In her registration application the Appellant stated she was a nurse manager/trainer responsible for interviewing, training and community assessments. Both agencies effectively ceased operation in January 2007 and went into receivership in July 2007.

By February 2006 the Appellant had bought 12A Cardington Street, Luton, Bedfordshire, where initially it seemed she intended to live. This was a period terraced house on 3 floors with an open plan lounge and dining room, kitchen, one main bathroom and 4 bedrooms without en-suite facilities. The Appellant subsequently decided to open a small care home here, called Culita Care, and applied to become the Registered Provider and Registered Manager for these premises, with a view to opening in September 2006. She planned to live nearby and to have 6 members of staff, with one in residence.

The Appellant's stated aim was to provide rehabilitative care for, at least initially, 4 young adults with mental health needs. In her Aims and Objectives, she said she was "committed to offering a highly professional Residential Care service for individuals under the age of 65 years, with a past or present history of mental ill-health and or drug/alcohol abuse and is receiving medical and professional help to overcome their difficulties and to assist them to return to a life within the community and to independent living." Her application specifically excluded service users with a physical disability, sensory impairment, learning disability or dementia. In her separate service information, she also excluded service users with drug or alcohol problems.

Around this time, a local home called The Oaks was closing down and a number of the displaced residents and their social workers visited Culita Care. In September 2006 the Appellant wrote to the Commission stating all the potential service users had visited her premises and "were satisfied with its layout and accessibility". She had also received favourable comments from relatives and professionals who had visited. She repeated this information to Ms Chudasama at the inspection assessment in October 2007.

The Appellant submitted a number of documents in support of both her applications, including a Business Plan setting out cash flow and profit forecasts. She also gave measurements of the respective rooms, although these were in centimetres and clearly incorrect: for example, the size of the reception room was given as 127cm by 81 cm.

In the course of the application process the Respondents became aware of further information regarding Ryecroft. This was a care home for elderly adults with dementia, owned initially by Shire Homes and subsequently by Asset Crest, whose directors were Mr Patel and Mrs Khan. The lead inspector for this home was Ms Milton, a colleague of Ms Morrison and Ms Chudasama. She had inspected on several occasions throughout 2005-2006. In September 2006, several months after the Appellant had resigned her post, the home was subject to an emergency closure under s.20 of the Care Standards Act 2000. The test for this is serious risk to a person's life, health or well-being. The Registered Provider's appeal to the Tribunal against that decision was set down for hearing and statements were filed on behalf of the Respondents from Ms Milton and Mrs Higgins, her line manager. The appellant then withdrew that appeal, which was dismissed in 2007.

In a letter dated 1^st September 2006, Ms Blackaby, a Business Services Team Manager for the Commission, told Ms Joseph her application was incomplete and requested further information, including a Business Plan and insurance certificates.

Ms Joseph's application for registration was received on 21^st September and allocated by Ms Morrison to Ms Chudasama who noted the Appellant had worked at Ryecroft. Ms Chudasama spoke to Ms Milton who told her there had been concerns about the Appellant's management of the home. Ms Chudasama read the inspection reports and discussed the matter with Ms Morrison, agreeing with her that these issues should be discussed at the Fit Person Interview. She also visited the Appellant's proposed premises on 17^th October, and noted concerns about their suitability for the proposed service users and Ms Joseph's level of understanding of what was required. She also told her the requisite certificates had not been received.

The Appellant completed a Pre-interview form on 20^th October 2006. She stated that one of her priorities was to provide a contract for service users and set out how she would protect service users from abuse. She included some practical questions she wanted to discuss with inspectors, such as whether she would be able to leave a deputy in charge of the home.

On 30^th October 2006, as a standard part of formal registration requirements and the application process, Ms Chudasama and her line manager, Ms Morrison, conducted a Fit Person Interview ('the FPI') lasting about two and a half hours. According to Ms Morrison, the purpose of this was also to explore the issues arising out of the Appellant's period at Ryecroft. Each inspector took turns to ask questions and made their own separate notes of the interview at the time. These notes were not transcribed at the time, but typed up for the purpose of this appeal.

Ms Chudasama and Ms Morrison visited the proposed premises on 12^th December 2006. The notes of the assessment included sketches of the premises, but no measurements. As a result of their comments, the Appellant immediately wrote to say she had decided to reduce the number of potential service users to three, leaving the 4^th bedroom for storage space.

On 21 December she told Ms Chudasama that two of the potential service users were now in temporary accommodation and had asked if they could move in. It seemed one of them was also using the premises as her mailing address. The Appellant sought urgent clarification about the suitability of the premises, confirming she had incurred expenditure for improvements, including plans to upgrade the kitchen. In reply Ms Chudasama said "your application for registration is at present being processed in accordance with the CSCI methodology for registration", repeating that no service users could be admitted until registration was obtained.

By the end of December 2006 the Appellant had completed the information process by submitting the various certificates required, such as the fire risk assessment certificate.

On 8^th January 2007, Ms Chudasama recommended refusal of registration in respect of both applications. Her reasons included the failure of the proposed premises to meet the NMS and their general unfitness for purpose, the unsatisfactory standard of Ms Joseph's responses during interview and in assessment visits and correspondence, alleged shortfalls in her relevant experience and knowledge, including insufficient knowledge of the local authority vulnerable adult protection policy and procedures, as well as "significant concerns" regarding her competence in relation to the management of Ryecroft. She said the Appellant was currently managing Home Care and Health Limited, which was "a poorly rated service" that had failed to meet the relevant NMS and for which no application for registration had been received. On 25^th January 2007, Mrs Higgins supported the recommendations for refusal, and Ms Wilson, the Business and Provider Relationship Manager endorsed the decision.

On 16^th February 2007, on the basis of the information gathered in the application process and in particular the information from the Fit Person interview, the Respondents issued a Notice of Intention to refuse registration in respect of both applications. On 4^th June 2007 the Respondents issued a Notice of Refusal to register the Appellant as manager of Culita Care, citing Ms Joseph's unfitness on the basis she lacked the skills and experience necessary for managing a care home. In several paragraphs of the decision letter, the Commission relied on the history of the Appellant's management of Ryecroft, citing 'significant concerns' about her competence and referring specifically to the conclusions in the report of Ms Milton's unannounced inspection on 9^th September 2005.

On 9^th August 2007 the Respondents issued a Notice of Refusal to register her as the Registered Provider of the proposed care home, Culita Care. The grounds cited were that she was not a fit person to carry on a care home on the basis of her lack of integrity and good character and her failure to ensure that the proposed premises were fit for the purpose of a residential care home, or to meet the Regulations and the NMS and in particular her non-compliance with Regulation 23. The Notice of Refusal in respect of the Registered Manager application said she had failed to demonstrate the requisite understanding, skills and experience.

On 28^th June 2007 the appellant appealed against both decisions

In September 2007 the Appellant obtained a certificate in the Protection of Vulnerable Adults and Children and Abuse Awareness.

E. The Law

The relevant legal framework is set out, in particular, in sections 12 and 13 of the Care Standards Act 2000 and in the Care Homes Regulations 2001 ('the 2001 Regulations').

Section 11(1) of the Care Standards Act (CSA) 2000 imposes an obligation to register on any person who carries on or manages an establishment or agency of any description and creates an offence for failing to be registered under Part II "in respect of it", namely the establishment or agency in question.

Section 12 of the Act concerns applications for registration and section 12(2) states that the application must give the prescribed information about prescribed matters and must give any other information that the registration authority reasonably requires the applicant to give. Section 12(3) connotes an application for registration as the manager "of an establishment or agency": and section 12(4) requires separate applications for more than one establishment or agency.

Section 13(1) states such applications are made in respect of a specific establishment or agency. Section 13(2) states that if the registration authority is satisfied that (a) the requirements of regulations under section 22 are being and will be complied with "in relation to the establishment or agency" and (b), any other enactment which appears to the registration authority to be relevant are being, and will continue to be, complied with, it shall grant the application. In this case the relevant regulations are the 2001 Regulations.

Section 14 of the Act deals with cancellation of registration and section 17 deals with the registration procedure where a person applies for registration "in respect of an establishment or agency."

Regulation 7 of the 2001 Regulations deals with the Registered provider and 7(1) states that a person shall not carry on a care home unless he or she is fit to do so. Fitness is defined in Regulation 7(3) as being of "suitable integrity and good character" to carry on a care home.

Regulation 9 provides that a person shall not manage a care home unless he is fit to do so. He is not so fit unless, having regard to the size of the care home, the statement of purpose and the number and needs of the service users, amongst other matters, he has the qualifications, skills and experience necessary for managing the care home.

Guidance in appeals of this kind can be found in the case of Peter Jones v CSCI, which was successfully appealed to the High Court ([2004] EWHC 918(Admin). Thereafter the Court of Appeal upheld Mr Justice Sullivan's judgment ([2004] EWCA Civ 1713) and remitted the matter for rehearing by another tribunal panel. In the subsequent Tribunal decision (Peter Jones v CSCI [2005] 426.EA) the guidance provided by the higher courts was summarised and for the purposes of this appeal, we have applied that guidance as follows:

1) It is for the applicant to prove that he or she is a fit person to manage a care home, since, as stated by Thomas LJ, "It is entirely in the public interest that they should do so. A manager of a care home occupies an important position of trust and must demonstrate that he is fit and proper to hold such a position."

2) Any doubts must be resolved against registration.

3) The requirements of Regulation 9 are mandatory and must be satisfied before registration is granted.

4) There being no issue as to the Appellant's integrity and good character, the sole question is whether she has the necessary qualifications, skills and experience. There is no issue in this case as to the Appellant's physical and mental fitness to manage the care home.

By virtue of s.21(3) of the Act in a refusal of registration case, our powers are confined to confirming the decision of the Commission or directing that it has no effect. We cannot impose conditions and, in any event, in the absence of premises these would serve no purpose.

41. National Minimum Standards

41.1 In addition to the provisions of the Act and the regulations imposed under section 22, we also took into account the relevant provisions of the National Minimum Standards for Care Homes for Older People, February 2006, published under s23(1) of the Act. The introduction to these standards states that "compliance with national minimum standards is not itself enforceable, but compliance with regulations is enforceable, subject to national standards being taken into account."

41.2 Section 23(4) of the Act requires the registration authority and the Tribunal to take those standards into account when making any decision. As stated in the case of Puretruce Health Care Limited v National Assembly for Wales [2005] 544.EA-W.JP, there is no legal requirement to comply with the minimum standards, but compliance with the regulations is enforceable subject to the national minimum standards being taken into account: "The standards are to be applied with the aim of achieving the overall objective of ensuring that the best interests of service users are secured. Decisions of the registration authority and the Tribunal should not take a substantially different course from that identified in the standards."

41.3 Standard 37 states that the registered manager must be qualified, competent and experienced to run the home and meet its stated purpose, aims and objectives. Specifically he or she must have at least 2 years significant management/supervisory experience in a relevant care setting within the past 5 years. The manager's overall responsibilities include ensuring the written aims and objectives of the home are achieved; policies and procedures are implemented; the home's budget is properly managed and that the home complies with the Act and Regulations. The manager must also undertake periodic training and development to maintain and update his or her knowledge, skills and competence.

42. Lack of premises

42.1 Several previous cases have considered the position arising from a lack of available premises in respect of which an appellant can be registered. As the Tribunal pointed out in Hall v. Commission for Social Care Inspection [2003] 242.EA [1], an appeal against cancellation of registration, the relevant legislation does not provide a clear indication as to how appeals are to be determined in these circumstances, "save that the registration authorities can themselves form a view as to whether the circumstances of cancellation might have any relevance to future applications made to them…"

42.2 In Ajibewa v Ofsted [2005] 539.EY, the Tribunal said a pragmatic approach should be taken. A simple lack of premises or the mere wish of the appellant to clear her name would be insufficient to justify hearing an appeal. But it might be justified if, for example, the appellant intended, or was likely in the future to wish, to make a further application for registration.

42.3 In H -v- The Welsh Ministers [2007] 1027.EA-W, an application to strike out an appeal against refusal of registration as a Manager, the Deputy President said the registration process was 'establishment specific' by virtue of s.12(3) of the Act and based on application by an individual manager in respect of each separate establishment. General registration did not exist and the wording of Regulation 9(2)(b) showed the fitness of the registered manager was 'home specific'. Therefore, in the absence of premises, no appropriate order could be made. Where the Tribunal allowed an appeal it directed that the Commission's decision to refuse registration was to have no effect, but this did not mean the appellant was deemed fit to manage any care home because any application to register must be in respect of a particular home. As a prospective manager of another home, H would need to make a fresh application. The High Court has now upheld this approach in a judgment that was not available to us in detail until after the conclusion of this hearing.

42.4 In The Welsh Ministers v The Care Standards Tribunal and H [2008] EWHC 49 (Admin), Mr Justice Davis pointed out it was likely that any future application from Ms H in respect of other premises would be refused on the same grounds as before in view of the pending criminal proceedings, and any offer of employment withdrawn. There was an advantage in allowing Ms H to pursue her appeal against the original decision would at give her the opportunity "to persuade the Tribunal that the original grounds for refusing to register her were not justified and to promulgate a written decision which said as much." Even though the appeal perhaps might otherwise have to be dismissed for want of specific premises, a positive outcome could be of real advantage to in any further registration application as the result of another offer of employment as manager at a particular home. Equally, if the appeal were to be dismissed thus confirming the original decision to refuse to register on substantive grounds, that might also give the Commission a practical advantage in assessing any further registration applications by the appellant.

43. Burden and Standard of Proof

43.1 The burden of proof is on the appellant and the standard of proof is the balance of probability.

43.2 By virtue of Regulation 22(1) the Tribunal may consider any evidence, whether or not such evidence would be admissible in a court of law. However, we kept firmly in mind that we should consider carefully the weight to be attached to hearsay reports as opposed to direct evidence subjected to cross-examination. Most of our findings were based on direct evidence, and whenever the Tribunal based its conclusions on hearsay it looked for and found corroboration.

F. The evidence

The Commission had not challenged the Appellant's qualifications during the registration process, but at the hearing its case relied upon its contentions about the Appellant's "qualifications, skills and experience" judged in accordance with Regulation 9 (2)(b), i.e. the proposed premises and service. It maintained the Appellant had failed to prove she had the relevant knowledge and experience, as demonstrated specifically by:

• her lack of experience of working with the relevant client group, in particular in a residential setting;

• the competence issues arising from her role as manager at Ryecroft and latterly at the nursing and domiciliary agencies;

• her failure to demonstrate satisfactory knowledge of the local authority vulnerable adults protection protocol; and

• her inadequate responses to the pre-interview questionnaire.

Further, she had failed to demonstrate a general competence to manage, as shown by a lack of detail or care in her application documents and a lack of consideration and thought given to the suitability of the premises.

The Appellant said the Commission's decision-making process was unfair and biased in that it had concentrated on her time at Ryecroft and failed to consider the evidence of her skills and experience as a whole.

The Premises

The Commission had never relied on the issue of the Appellant's integrity and good character in respect of Appeal 2 and had withdrawn its challenge on this ground in respect of Appeal 1. But it maintained there remained a live issue from Appeal 1 as to the fitness of the premises and their non-compliance with regulation 23, including the fact that:

• Substantial alterations would be required necessitating planning permission and finance and it was difficult to see how regulatory compliance could ever be achieved or to avoid the conclusion the premises were inherently unsuitable due to shortfalls in such matters as basic sizes and lack of en-suite facilities

• The Appellant had accepted she had supplied patently incorrect space floor measurements, but even the correct measurements showed the rooms were still below standard.

• The Appellant claimed she had been told in writing that the premises needed to be "serviceable" although she was not able to produce the letter. The Commission denied the existence of the letter and said this was a term they were unlikely to use.

• The Appellant had consistently failed to understand the premises had to meet regulatory requirements. She had only belatedly accepted they were not fit for the purposes of regulation 23. From the information supplied, Mrs Chudasama had been right to conclude that the Appellant had failed to grasp that the proposed premises must be completely ready for service users and registration granted before they could be admitted on the proposed opening date in September 2006

Furthermore, the premises were specifically unsuitable for the proposed client group or for meeting the stated aim of developing their independent living skills. There was nothing to show the Appellant had understood or thought through properly the issues presented by even 3 people with mental disorders such as schizophrenia living together in a restricted communal space. Mrs Chudasama said the small kitchen was likely to give rise to difficulties and tensions, which the Appellant had failed to take account of, thereby demonstrating she did not understand the needs of clients with mental disorder or how to meet those needs.

Skills and Experience

The Appellant said she had considerable practical experience of dealing with functional mental disorders and the relevant experience to care for younger adults with mental disorders such as schizophrenia. She relied upon her 40 years experience in the health care field and specifically in relation to elderly people with dementia in residential care homes, and her experience in Lambeth Community Care. In oral evidence, she gave new details of experience not stated on her application form, including agency work at the Priory Clinic and the Maudsley Hospital and as home manager at Care UK in an EMI and AMI Unit from March 2000 to September 2001. Most recently, she had been working for 3 months in a residential care home for younger people with eating disorders, although not as a manager

In summary, whilst her experience was primarily with the elderly mentally ill over 65, at least some of these skills were transferable and she had sufficient experience with younger people to satisfy the Tribunal she was fit within the meaning of Regulation 9 to manage a care home.

The Respondents said the Appellant's qualifications and experience were in hospital settings many years ago and she lacked up to date experience gained over 2 years in the past 5 years in a relevant care setting. It accepted her RMN qualification was relevant for running a home for the proposed client group, but this had been obtained prior to the Mental Health Act 1983 and the introduction of the Care Programme Approach and at a time "when practices for caring for those with mental disorders was very different". Since then the sole basis for any relevant up-to-date experience and practice was a 1-day course in mental health legislation in March 2005.

The Respondents argued the Appellant had shown insufficient experience and understanding of mental disorder and the considerable differences in the presentation and needs of older people with dementia (and other organic disorders) and younger people with functional mental disorders (such as paranoid schizophrenia). Its witnesses pointed to the fact that the vast majority of her recent experience, particularly in managing residential care homes, had been with older people in EMI units and largely with organic disorders such as dementia. She had not dealt with functional mental disorders such as schizophrenia at Lambeth Community Care and the new evidence could not reliably be taken as significant experience of managing younger people with mental disorders. The clients with eating disorders were not a specialist client group, she was not a manager and this did not constitute recent general experience of mental disorders. Furthermore, her responses had shown she did not understand the important distinction between organic and functional disorders.

The Application process

In oral evidence Ms Morrison stated that it had been her intention to explore the issues of the Appellant's competence as a manager at Ryecroft in the Fit Person Interview. However, she conceded this had not happened and that in hindsight she would have wanted to conduct the procedure for the interview differently. Both she and Ms Chudasama said their primary concern was what the Appellant had learned from the experience of working at Ryecroft.

The Appellant said the Commission's reasoning and findings had been unfair and biased and were based on insufficient evidence to justify its conclusions. It had ignored the positive aspects of her long previous experience and had made a number of unfair assumptions. The notes of the Fit Person Interview were incomplete and did not appropriately reflect the conduct of it. It had relied unfairly upon the September 2005 inspection report in relation to Ryecroft and had used information from subsequent inspection reports, including adverse allegations in a 2006 inspection report, which she had never seen. The Commission had concluded these showed several unmet requirements relating to management responsibilities rather than simply to resources. But inspectors had not shared the information with her or given her an opportunity to answer the criticisms.

Ryecroft

It was accepted by the Commission that the situation at Ryecroft was difficult: the Appellant had arrived at the home when it was failing, there was evidence of resource problems, a difficult, intimidating proprietor and several regulatory requirements outstanding from previous inspections. The Appellant said she had been asked to take on its management because it was in a poor state. She had found a home in a serious financial situation, with essential utility bills unpaid, and food ordering so inadequate she was forced to contribute from her own pocket. She had no deputy for a long period, but she had carried out a number of improvements, including revised care plans, organisation of recruitment and supervision of staff and questionnaires.

The Appellant explained she was on leave at the time of the unannounced inspection in September 2005, having taken time off in August 2005. The owner had brought in a deputy from another home shortly before this and the inspector had given her all the credit for the improvements made despite the fact that the deputy had only been there for 3 weeks. The Appellant said, with evident reluctance, that the may have been stirring up trouble for her or had thought it was safe to claim credit because she thought that the Appellant was not returning.

The deputy had left immediately upon Ms Joseph's return and the Appellant said she had not seen the inspection report until later, by which time she believed it was too late to take issue with its contents. She told the tribunal that her lack of assertiveness explained why she had not taken up the issue of her deputy with Ms Milton, who had been aware of the difficulties at the home anyway. When a change of proprietorship failed to improve the financial situation, she had resigned in April 2006 because it was unsafe to continue. Therefore, she was not responsible for the subsequent rapid deterioration in the home. Despite continuing omissions and areas of significant concern, many outstanding requirements had been actioned. There had been praise for the administration of medication under her management and GPs and District Nurses were visiting very regularly and there were no reports of incidents or complaints.

The Respondents said managers were sometimes faced with difficult situations and the Appellant could have done more than she had. The evidence of continuing shortfalls at Ryecroft justified the significant concerns regarding her general competence as a manager. As the manager the Appellant had a responsibility to ensure service users were not at risk. She had strongly asserted in oral evidence that their care was never compromised, but inspection reports in 2005 showed this was wrong. She had shown a lack of understanding of her management role, in that, for example, she had failed to:

• Carry out a comprehensive review of the home to identify shortfalls leading to an improvement plan: it was not enough merely to list some things that needed to be done as a priority

• Specify what she did after the initial weeks of dealing with urgent things such as food ordering

• Put in place adequate care plans owing to the burden of her administrative duties but had included the preparation of such plans in her definition of administration;

It was simply not credible to say the deputy had not carried out the improvements mentioned in the September 2005 report. Ms Milton's conclusions were based on what she saw, which showed the deputy had achieved some significant progress in a relatively short space of time. There was no evidence of delegation to the deputy or that the Appellant had introduced changes for the better. The deputy had no reason to lie, but what she had done amounted to no more than basic managerial functions such as staff and service users meetings. The Appellant had read the report on her return from leave in November and there was no credible reason why she could not have raised the issues with Ms Milton if the deputy had wrongly taken credit. Her failure to do so was evidence of shortcomings in her professional attitude. She had compounded this in, for example, the Fit Person Interview, by refusing to accept any responsibility for the failings, attributing all of them to lack of resources, showing a failure to demonstrate she had learned lessons from the experience.

The Respondents also claimed the Appellant had misunderstood the role of management by failing to keep the Commission informed between inspections about conditions at Ryecroft, including the many difficulties about resources and staffing, because, as she said at her interview, she 'did not want to get involved'. At the very least she should have blown the whistle when she resigned. The Appellant said the first she knew about Mrs Higgins's assertions about her failure to disclose that Mr Patel was a cancelled person with convictions who had continued to be involved in the running of the home was when she read her witness statement. Mrs Higgins' evidence was a "dark suspicion" that the Commission had unfairly allowed to distort Ms Morrison's consideration of her applications.

The Appellant accepted she was not assertive by nature, which had created problems in tackling the proprietors and the resources issue. The Commission said this showed a lack of competence to manage a care home and an inability to deal with difficult people and difficult situations. She had not shown she had learnt sufficiently from the Ryecroft experience to enable her to deal appropriately with similar situations in future. Specifically, although she had said in evidence she would be more assertive in reporting to the Commission, it remained concerned she still failed to understand her responsibilities under regulation 37 to report matters adversely affecting the health and safety of service users.

Homecare and Health Nursing and Domiciliary Agencies

The Respondent said the evidence in relation to the two agencies also showed the Appellant's unfitness to manage the care home through this further failure to demonstrate an acceptable level of understanding of the role of registered manager and a lack of skills and experience. However, the Appellant stated that although she was called a nurse manager, she had only been responsible for lifting training and assessments. The Commission had been biased and unfair in wrongly describing her as managing the service, and therefore, by implication, attributing its failings to her.

The findings on the evidence

In dealing with this appeal it is impossible to avoid consideration of at least some of the grounds upon which the Commission relied to reach its determination in respect of the application to become a Registered Provider, and to make comment upon those issues. We should stress that there was no issue whatsoever about the Appellant's integrity and good character.

The visit by potential clients with their Social Workers undoubtedly led the Appellant to think that registration would be straightforward. But the lack of en suite facilities and the size of certain aspects of the premises raised doubts about its fitness for the stated purpose. Although neither inspector noticed the error in the measurements, nor had they measured the rooms themselves, they clearly regarded the premises as unsuitable from a fairly early stage and, based on their assessments, it must have been obvious to the inspectors they were very unlikely ever to have been satisfactory. Therefore, as originally proposed, the potential premises were not suitable, a fact the Appellant eventually conceded.

However, it is unfortunate that the Appellant appears to have continued to labour under the illusion that they might prove suitable, to the extent of spending money on them in the hope of satisfying the inspectors. The inspectors' failure to specify that their concerns were likely to mean the premises were unlikely to comply with the relevant standards led to a situation where the Appellant was allowed to spend further time and money obtaining certificates and altering the premises. This may well explain the delay in her reaching the point at which she conceded they were not suitable.

It is very unfortunate that no clear confirmation of the impossibility of ever achieving the requisite standards was given to her at least until shortly before the hearing of her appeal. Whilst we accept the Commission takes the view that it does not give advice and the burden is upon the applicant to establish compliance with the NMS, nevertheless we see no reason why the position in this case could not have been stated in terms to the Appellant for the avoidance of any doubt. The Commission ought to have made it clear at the latest by the date of the site visit on 17 October 2007 that insufficient space at the premises meant her applications were doomed.

It is worth stating that certain aspects of the Respondents' objections to the premises, although justified in the pure sense, might be regarded as not entirely realistic. There is a case to be made for small care homes offering a real experience of living at close quarters with other people, which is often the reality of life in the community. We regarded Ms Chudasama's evidence as an attempt to over-emphasise the standards required, at some cost to this issue of flexibility. The Appellants' premises may well have appeared to be small, and the kitchen space restricted, even if eventually modernised and well equipped, and there is always a risk of confrontation in these situations. Nevertheless, that is a reality to which those being rehabilitated into the community may well have to adjust: it is the job of carers providing rehabilitative care to teach service users the ability to live with other people in the community and deal with the real conditions of life.

The fact that the facilities in small homes may give rise to the risk of confrontation between residents is not in itself a reason to refuse registration; what is important is the ability of the service provider to manage such situations to the benefit of the service users. A person who has worked in the mental health field and in hospitals should be perfectly capable of managing such situations more than adequately and enabling residents to learn from them. We do not accept that the Appellant had failed to think through the consequences of life for residents in such circumstances.

The Respondents' case relied upon the Appellants' alleged lack of skills and experience and though the grounds of refusal did not rely on lack of qualifications, the Respondents made a great deal of this issue of qualifications in the course of the hearing. However, it was clear the Appellant, who has spent 40 years in the health and social care field, had kept up to date. Her experience in the field of mental health is extensive, although less so in specific areas. It was clear from her explanation of the behavioural changes in clients with either organic and functional mental illness, that she understood the difference between the respective types of mental illness: what she was trying to say was that someone with organic mental illness may well display behaviours that are as difficult to deal with as those displayed by someone with functional mental illness. The Commission's assertion that the Appellant lacked sufficient up to date knowledge of mental health legislation needs to be set in context. The changes introduced by the Mental Health Act 1983 were largely about procedures for admissions and those familiar with the provisions of the Mental Health Act 1959 would have known that the new Care Programme approach introduced by the 1983 Act was not so much a radical change as an attempt to formalise what had always been seen as good practice.

The Appellant's evidence about her professional experience, including the period as a home manager in an EMI and AMI unit was not prejudicial to her case in the way asserted by the Respondents. Even though the role of a management grade Staff Nurse responsible for hospital management may not be the same, nevertheless a number of the key skills involved are transferable. A Staff Nurse also deals with rotas, assessment, managing patients, record-keeping, staff supervision and training plans.

The NMS say the requisite experience has to be recent but also 'relevant'. In her application the Appellant failed to include her experience in the Priory or the rest of what she now says she did. However, she said quite reasonably and honestly, that this was experience gained during periods of agency work when her children were still at home. She is currently working with people with eating disorders, which is a classified mental illness.

The NMS 37 says that 2 years experience of management or supervision is required in a relevant care setting within the last 5 years. The Commission interpreted this as a requirement to have 2 years experience within the last 5 years specifically in relation to young adults with mental health needs, and experience in functional mental illness at that. The Appellant has done a whole range of mental health work, even though this has not been specific to the adult mentally ill. We regard the Appellant's level and range of training and varied experience as sufficient to satisfy NMS 37. She had the relevant qualifications and experience to run a home for 4 people with mental illness, the particular client group who were already in the community i.e. those in need of a rehabilitative service.

As a matter of logic as much as of public policy, if the term 'relevant' is interpreted too narrowly, potentially this would restrict the numbers available to work with a particular client group. For example, schizophrenia and bi-polar are distinct group but it is also true to say that many schizophrenics have a large component of functional mental illness.

Aspects of the Appellant's Business Plan, in particular the cash flow and profit forecasts, were clearly inaccurate and unrealistic. But she had apparently used a financial pro-forma that was somewhat unsuitable to her proposed business and she conceded she had not filled in some sections properly because of that.

The Respondents' reliance on the concerns about Ryecroft to justify refusing registration, was crucial to its case that this showed flaws in the Appellant's managerial competence. The Notice of Refusal to Register contained a brief summary of the Appellant's skills and experience before setting out in paragraphs 3 to 8 the evidence about Ryecroft. Ms Meyers, who had worked with the Appellant until February 2006, said in her witness statement that the Appellant had worked long hours and had paid for food out of her own pocket. She confirmed the Appellant had done care plans, carried out supervisions, and allocated duties, and this had not been done prior to the Appellant's arrival. It should be noted that, had she been successful in her application for registration, the Appellant had intended to employ Ms Meyers in Culita Care. Therefore, this untested hearsay evidence should be treated with a degree of caution, but we note there is sufficient evidence from other sources to support these assertions.

Ms Morrison said that in the Fit Person Interview she had only set out to explore what the Appellant had learnt from her experience at Ryecroft. However, the extensive trawl of the evidence of this interview during the course of the hearing resulted in a clearer exploration of what Ms Joseph was said to have done, or not done, and of the positive attributions made to her deputy. Mrs Higgins said in her oral evidence she assumed the issue would have been explored in greater depth than it had been in reality. Ms Morrison and Ms Chudasama both said their expectations in planning for the interview had been that direct factual issues would be raised about precisely what had happened at Ryecroft. But these expectations did not materialise, despite the fact that, according to Mrs Higgins, the interview was longer than normal by about 1.5 hours.

It was clear from the oral evidence of both these witnesses and from the somewhat chaotic notes recorded by both of them, that the interview either did not go as planned or was badly planned and executed. The conclusion must be that

i) Despite the clear link made in the Notice of Refusal and in the hearing with the detailed issues about what happened at Ryecroft, no proper exploration of these issues was undertaken in the decision-making process conducted by the inspectors.

ii) These issues were not fully ventilated until the hearing and in consequence this has deprived the Appellant of the opportunity of putting her version of events fully.

Article 6 of the European Convention on Human Rights as relfected in the Human Rights Act 1998, entitles a party to a fair hearing. In Sahin v Germany; Sommerfeld v Germany; Hoffmann v Germany [2002] 1 FLR 119, the European Court court stated that 'Correct and complete information … is an indispensable prerequisite for … striking a fair balance between the interests at stake.' That the principle extends beyond an actual court hearing is probably best expressed in Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam) [2002] 2 FLR 730, where Mr Justice Munby stated: "the process of decision-making should be transparent and transparently fair. Nor is fairness is confined to the purely judicial part of the process either - Collective decision making surely carries with it collective responsibility and a collective duty to act fairly." Whilst these cases concern child protection issues, which are, of course, the most serious examples of the need for equality of arms between parties, it is also important that public bodies also be seen to act fairly in issues involving a person's livelihood and reputation.

We do not regard the evidence obtained from the Fit Person Interview as reliable: the matters that the inspectors claim to have established in order to support their refusal of registration do not correlate with the facts. Moreover, as set out in the interview notes, which state they "outlined the process...domestic", their approach failed to clarify what the Appellant's responsibilities were at Ryecroft, nor did they focus on the specifics of the allegations about her management of this home. The layout of the notes does not encourage confidence: in itself it indicates a lack of an ordered and planned approach. The recording of the questions themselves does not relate to the answers: for example, in certain respects, it is difficult to establish which responses were being given to which questions. The record is not properly initialled to identify the question and response and there are separate sets of notes from each inspector. This may in itself not be fatal, but the failure to transcribe and type up the notes from each of the inspectors soon after the interview to provide a cogent record of a critical interview in the decision-making process was a serious flaw. This removed the possibility of checking precisely what had taken place and the conclusions reached that would have serious consequences for the Appellant. In turn, it meant that a key contribution to the Commission's decision was not, and could not be, made transparent to the Appellant.

It is not possible to rely on this as an accurate record of what took place and, in consequence, we are inclined to believe the Appellant's view that what was recorded were merely jottings, rather than anything approaching a proper record, let alone any sort of transcript. It certainly does not provide the detailed explanation of the Appellant's skills as a manager as claimed by the Respondents. Indeed, we have reached the conclusion that the process in this respect was both incomplete and unfair. We note that Ms Morrison accepted it could have been conducted better, and particularly that she recognised the need to explore further the issue of care plans, which Mrs Higgins had implied were insufficiently rigorous.

In relation to the Appellant's period as manager of Ryecroft, we have carefully examined the Respondents' schedule of concerns to see what is sustainable and what is not. We have no reason to doubt the Appellant's claim to have carried out an initial assessment of the failings at Ryecroft, even if her evidence on this did not convey which task she thought was a priority. A highly detailed Action Plan was not necessary in these circumstances, and Ms Joseph had obviously listed a lot of issues to be tackled including the fact that the premises were dirty, the poor standard of furniture and the lack of food. We also accept she had clearly had to take on other people's duties, including cleaning, just to keep things 'stable' as she put it.

It seems somewhat inconsistent to claim that she failed to achieve sufficient change in these very poor standards. On 27 April 2005, some 7 months after she was appointed, in an unannounced inspection Ms Milton recorded that "the overall appearance of the home provided a homely environment and was clean and orderly", and "many of the outstanding requirements had been actioned and that the improved hygiene standards had been maintained." However, she noted that the failure to deal with maintenance issues (a responsibility of the Registered Proprietor) without undue delay meant there continued to be unsatisfactory standards in some of the facilities. She commended staff who had continued to work at the home "during a challenging year", in which there had been 4 additional inspection visits in excess of the two statutory ones. She stated that day-to-day management had been unsettled for sometime until Ms Joseph's appointment and staff had commented on an improvement in the direction of the home.

Nevertheless, Ms Milton said there were still several outstanding requirements of significant concern, noting some failings with regard to staff recruitment and supervision, records of staff meetings and systems to consult with service users. She said "whilst the manager understood the areas of the service that needed to improve there was no planning in place to show how this would be resourced and managed…although there had been some slight improvement in the management of the home". Ms Milton concluded that the service had continued to operate significantly below required standards despite the fact that the proprietor had been informed of the extent of the concerns at the last inspection in February 2005. She stated "it was evident at this inspection, as it had been at previous inspections, that the manager was unable to properly direct and supervise the staff because she was overburdened with routine administrative tasks and had been without a deputy and a fully competent senior team for some time. Issues about the competency of the team and support for the manager had been raised with the proprietor at a previous meeting and identified on other reports." Ms Milton said "CSCI remains concerned at the proprietor's fitness to operate a care home…even when requirements have been met, successive inspections have identified another set of shortfalls to be dealt with." She provided a list of 32 statutory requirements and recommendations.

We carefully considered the situation that existed in the home by the time of the inspection in September 2005. We do not accept that any examination of the facts supports the belief Ms Joseph's deputy was justified in claiming she had carried out improvements, as accepted by the inspector. She had only arrived in August, a mere 3 weeks before the Appellant went on extended leave for at least a month, eventually returning on 1^st November 2005. The deputy departed on 2^nd November. This timeline, which the Respondents did not dispute, amounts to a mere 3 weeks handover period followed by 2 months in which the deputy was supposed to have implemented all the reforms referred to in the September 2005 inspection report. This is a very short space of time in which to have single-handedly implemented a stringent list of requirements. We believe the Appellant is perfectly justified in claiming her deputy merely continued what she herself had started. Indeed, we think this is the only rational explanation for the various initiatives put in place, including the questionnaires and the staff supervision: it is simply not physically possible for the deputy properly and satisfactorily to have introduced such measures in the space of a mere 9 days, even if they were her own initiatives as was claimed.

The medical aspects of care are important and there is evidence to suggest there were frequent visits from G.Ps. However, that does not detract from the fact that the revised care plans do not appear to have been adequate. It was said that the administrative burdens on the Appellant meant she could not adequately fulfil her role as Registered Manager and she said these included checking the environment of the home, meeting relatives, and dealing with telephone calls, all of which had to be done in the absence of a deputy for most of the time she was there. Indeed, with responsibility for 30 residents, it seems fair to conclude the Appellants' burden was not merely an administrative form-filling exercise. We must accept, as do the Commission that the environment of Ryecroft must have been an extremely difficult one in which to work. Having said that, it is equally fair to conclude the Appellant had not got her priorities totally right in this environment.

The Appellant's own evidence, together with the April 2005 report, made it clear certain areas such as risk assessments were not addressed, and records were insufficiently well kept, with a great deal of information apparently being held in people's heads, rather than being adequately recorded in writing. Ms Joseph had been unable to carry out a proper quality review in an environment where the Registered Proprietor was simply not capable of carrying out his responsibilities. It is also right to say that Ms Joseph should have been more assertive with the Registered Proprietor, which might have enabled her to move forward in her management tasks.

Nevertheless, we believe that the Commission could have produced more supporting evidence about Ryecroft for the purposes of its decision-making and for this appeal. That which it provided initially contained insufficient timelines and was not adequate to support the claims it made about the Appellant at this point. It was unreasonable apparently to have based these solely on the information gathered during one unannounced inspection visit in September 2006 of an inspection for which in any case the Appellant was absent. We had to dig for more information in the course of the hearing and it was clear to us the Fit Person Interview had proceeded on the basis of a set of assumptions in relation to a home that had been in a poor state for some considerable time before the Appellant arrived and was to close down in extreme circumstances some time after she had left.

This reliance on inadequate facts makes for difficult decision-making. We are unable to accept some of the hearsay without more reliable evidence subject to rigorous cross-examination. We are unable to clarify, corroborate or challenge the findings reached by Ms Milton: despite being a witness for the Commission in the appeal against the decision to close Ryecroft, there was no direct evidence from her for this appeal. This made our own task of reaching any firm conclusions about the Appellant's ability to fulfil her managerial responsibilities all the more difficult. It was impossible to judge the nature of the relationship between Ms Joseph and the Registered Provider/s of Ryecroft: it is not disputed there were considerable difficulties but we are not aware, for example, to what extent there was interference in the running of the home as opposed to a complete lack of control.

The Appellant said the care of the residents at Ryecroft had not been compromised during her time as manager. That is a strong claim, and one that, in the context of the regulatory regime, was not strictly true. It seems that she was using the phrase in a somewhat old-fashioned sense in that she meant they were properly fed and got the right medication. That needs to be set against the Commission's concern that if there are inadequacies in risk assessments, care plans and staff knowledge, then the care of residents is being compromised.

It is important when caring for adults with dementia that information is clearly written down. We note there were no complaints about this, save that the Appellant was said to have failed to supply some information relating to the transfer of one service user. Inadequate record-keeping about the care of residents can lead to risk, and in these circumstances the residents were potentially at risk. As was rightly stated by the Registered Homes Tribunal in Farooq and Farooq v Croydon LBC (Decision No. 219) "records are not simply a description of what is happening. Good, accurate and reliable records are essential to, and indicative of, the whole process of care in a well run home …[F]or continuity of care of residents, all of the staff need to have clear records to which they can turn, so that, for example, absences of staff or incidents with residents do not take anyone by surprise".

But it is important to state that in this case there were other professionals apparently going into the home on a regular basis and there was nothing to suggest that the residents were actually physically at risk. Otherwise service users were reported to be satisfied: the May 2006 inspection report, a mere fortnight after the Appellant had left the home, noted they were complimentary about staff, who were seen to treat them well, and liked the food, with one visitor commenting favourably that her mother had put on weight. There were no medical problems during the Appellant's tenure and no serious incidents of any kind.

The May 2006 report noted that despite the change of ownership to Asset Crest Investments in February 2006, there was no discernible improvement to the service. Written guidance for staff was still lacking, but access to documentation was not assisted by the fact that the new manager was absent on both inspection days. The report states clearly that "the management of the home at both visits [i.e. on 2^nd and 3^rd May] was concerning…members of staff…had not been properly prepared to take charge of the home…no action had been taken by the second visit to deal with medication errors pointed out at the first visit." The inspector also noted ongoing maintenance failures and the lack of transparency in the provider's dealings with the Commission.

It is impossible that in a fortnight the new manager could have achieved the satisfaction reported by service users or the level of care by staff that was commented on so favourably. The Appellant may have exhibited some professional shortcomings in her failure to deal with the Registered Providers more assertively, a fact that she herself recognised. However, the September 2005 inspection report did not provide the evidence to show she was a bad manager. She was not by any means as bad as the Commission sought to paint her. Whether the inspector was correct to attribute the improvements she saw to the Appellant's deputy is a matter of some doubt given the timescale involved, but the Commission did not produce the evidence to counter this and did not adduce sufficient evidence to back its claims that the Appellant was directly responsible for a number of significant failings or had failed so comprehensively to introduce the necessary changes in the home to justify drawing the conclusion she was incompetent and unfit to manage a care home.

However, we were concerned that the Appellant was somewhat vague in her responses to questions from the Panel on typical scenarios designed to elicit her knowledge of the requisite policies and procedures for the protection of vulnerable adults. She did clarify that she did not mean she would take a formal statement from an alleged victim, but rather that she would use a simple pro-forma to record the facts. But we are still not entirely satisfied that she has a complete grasp of this important area. If she wishes to pursue her desire to run a care home, we would recommend she receive more detailed training; possibly for a longer period than the single day she has had to date.

In respect of the agencies, it was unclear to us and to the Commission who was actually managing this service. The Appellant was very clear she was not the manager and we accept this is correct. Merely giving someone the title of Nurse Manager may be misleading, but it does not imply they are managing the entirety of a particular service. Indeed, if that were the case, each agency is a separate establishment and the manager of it requires separate registration: from the Appellant's past history we have no doubt she would have applied for registration had she been managing either agency.

Tribunal's conclusions:

The Commission took the view that the Appellant's approach in the application process, reinforced by her oral evidence, demonstrated she was only able to talk about generalities rather than specifics. It said this was exemplified by her assertion she had the knowledge and experience needed to work with people suffering from schizophrenia, but had failed to give any detail about her work and practical experience despite lengthy questioning.

The Appellant presented to us as an honest and dignified witness with a clear moral code that included a high level of loyalty to her employers and an apparent desire never to undermine them or her colleagues. The Respondents' view of her did not take account of her somewhat reserved personality. It seemed she only gave full answers to questions that were phrased with absolute clarity and a practical approach and in response to direct Panel questions she became much more animated and enthusiastic. There was no reason to believe she was not telling the truth or that she was being evasive at other times, although we believe she had been a little confused by the thrust of some of the questions she was asked in her Fit Person Interview and during the course of the hearing.

The only doubt about her credibility arose from her claim to have received a letter suggesting the premises had to be "serviceable". We cannot see any reason why such terminology would have been used, but it does not seem credible that the Appellant would have chosen this one occasion to lie. There is absolutely no evidence to suggest she has ever lied to the Commission and we do not accept that she was doing so in just this one area of her evidence. It seems much more likely that she was either confused or believed the term had been used because that fitted her own view of the premises at the time. It also seems more likely the confusion had arisen from a telephone conversation.

The Appellant had made efforts to satisfy the Commission in respect of the proposed premises, although she finally had to concede that they were unsuitable. There must be some criticism for Ms Joseph's failure to appreciate that premises did not meet the NMS, although the Commission must also take some responsibility for its approach to this aspect of the case. We found that, in general, her responses in oral examination were largely persuasive. Whilst she did not meet NMS 37 as narrowly interpreted by the Commission, nevertheless she demonstrated she had a lot of qualities and skills that could be transferred from her past experience to a new setting.

The Commission placed a good deal of reliance on the evidence of the Appellant's management of Ryecroft. But this must have been an exceedingly difficult environment and depressingly unrewarding for a manager who clearly had tried to introduce changes in a home that was well below standard. It might well be arguable that she could have done better, but she started from a very low baseline and improvements were being noted as late as May 2006, very shortly after her departure. The evidence suggests she had actually put in the level of effort she claimed to have done. Although we accept that care plans and records are a critical aspect of good care and must be thorough and detailed, there was nothing to suggest she was not doing her best in circumstances that were dire before her arrival and sufficiently bad thereafter to cause the emergency closure of the home by the Commission.

There was tension in this respect between her evidence and that of Ms Chudasama, but we do not believe the latter's evidence was sufficiently persuasive, or adequately bolstered by the evidence of Ms Morrison or Mrs Higgins. We were particularly unhappy with the recording of the Fit Person Interview and were not convinced everything relevant had been recorded. This in turn made it difficult to accept the accuracy of some of the points made by Commission witnesses.

Despite some reservations as set out above, overall we did not find anything to give undue concerns about the Appellant's ability to be a Registered Manager. We conclude that the Appellant possesses the requisite qualifications, skills, experience and understanding of mental disorder and client needs and the issues involved in caring for the needs of her proposed client group. She is well qualified and has relevant experience in the sense that she has a very broad experience. Even if this has not been sufficiently specifically with the adult mentally ill, nevertheless we believe she would be able to manage that client group satisfactorily. The Ryecroft period was seen as the key, but we find most of that evidence unacceptable in that it is simply not strong enough to support a finding of unfitness.

Accordingly, we have made a number of findings of fact that should assist both parties in the determination of any future application for registration. We have also made a number of observations about the Commission's decision-making processes, in particular the Fit Person Interview, that we hope it will find helpful.

Under normal circumstances therefore, our decision would have been that the Commission's decision have no effect. However, in the absence of premises that is a moral victory for the Appellant with no practical effect. She cannot be registered in a vacuum because fitness to manage a care home must be judged against specific premises. As Mr Justice Davis stated in his judgment in The Welsh Ministers v H at paragraphs 26 to 29 with reference to section 11(1), 12(3), 12(4), 13(2), 14(1) and 17(1): "the registration of an individual as manager under Part II of the 2000 Act has to be related to a specific establishment or agency."

The provisions of sections 11 to 17 of the Act, taken in the context of Part II read as a whole, show that registration is not confined solely to the person and must relate to specific premises. The requirements make it clear that, whilst an individual has to be generally fit to manage a care home, she must also be fit to manage the care home in question. The Act is also clear that the individual's application for registration as manager must relate to a specific establishment, as confirmed by the definition of "registered manager" in the Regulations and the wording of Regulation 8 (which consistently refers to "the" care home). Further, Regulation 9(2)(a) and (b) and Regulation 10(1) and (3) would make no sense if the individual's application were not related to a specific establishment. In the absence of premises therefore we have no choice but to dismiss the appeal, albeit in the recognition that our findings of fact may assist both parties in any future application for registration.

Concluding Remarks

The Appellant's repeated stance has been that the Commission knew what was going on in this case and she has some justification for this given the level of inspections prior to her arrival and the ongoing regulatory activity that led to the emergency closure. However, we were very concerned to note that, whilst the Respondents chose to rely heavily upon the evidence of her period as the Registered Manager of Ryecroft, nevertheless they did not see fit to tell her that there was further material relevant to that evidence. We find this failure to disclose particularly strange and unjustifiable given the appeal against the closure of Ryecroft was at, or about, the same period of time. On 10^th October 2007, a mere matter of months after the Respondents' notification of their intention to call Ms Milton to give evidence in Ms Joseph's appeals, the Deputy President gave standard directions for disclosure in these two appeals. Ms Milton then seems to have disappeared from the Respondents' preparations, only to re-emerge as the result of our questions.

It is vitally important that the Commission, as a body with considerable powers, is transparent in its decision-making and in its dealings with applicants. We note that in its original refusal of Ms Joseph's application for registration as a provider, it sought to rely on a lack of integrity on her part, albeit a contention which it later withdrew. It would be understandable in these circumstances if Ms Joseph were to feel particularly aggrieved by the behaviour of the Commission in apparently omitting to disclose relevant evidence. That is not consistent with the principles of Article 6, which relates not only to hearings, but also to the process of decision-making by public bodies. There is of course a distinction to be drawn between documents or material that should be disclosed between the parties and those that are eventually included in the Tribunal bundle as evidence upon which the parties seek to rely, but the principle of disclosure is an important one. Telling an appellant that a document exists that might assist the Tribunal in determining the case is the first, and critical step – whether that material eventually ends up as part of the case to be heard is a separate matter. But an appellant is seriously disadvantaged if he or she does not know of the existence of relevant material, or is unaware of its contents and therefore unable to judge whether it is important or not. Furthermore, the Tribunal may well be obstructed in its conduct of the hearing and hampered in reaching a just and fair decision in the absence of adequate disclosure.

Finally, as a method of assessing fitness, the Fit Person Interview has been used since January 2003 and has undoubtedly been refined over time. This case suggests that further refinement may be necessary.

Conclusion

Accordingly we dismiss both appeals and confirm the Respondent's decisions to refuse Ms Joseph registration. This is the unanimous decision of the tribunal.

APPEALS DISMISSED

Ms L Goldthorpe (Nominated Chair)

Mr K Coleman (Specialist Member)

Mrs S Howell (Specialist Member)

Date: 6 March 2008