England and Wales Care Standards Tribunal

 


Heritage Court Limited -v- Commission for Social Care Inspection [2007] 1135.EA.JP - before – Simon Oliver Deputy President Sitting at the Combined Court Centre, Stafford On 4^th June 2008 DECISION ON APPLIATION TO STRIKE OUT

Representation

Mr. O. Bull, solicitor, appeared on behalf of the Applicants

Mr N. Grant, solicitor, represented the Respondents.

Application

1. The Respondent has made an application for the Tribunal to strike out Applicant's Appeal pursuant to Regulation 4A of the of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (the Regulations) on the grounds that it has no reasonable prospect of success and/or that the Appeal is misconceived.

Background

2. The background, which is agreed, is as follows: On 7 September 2007 a Justice of the Peace ordered (under section 20 of the Care Standards Act 2000) that the Registration under Part II of the Care Standards Act 2000 of Heritage Court Limited in respect of the premises at Heritage Court Nursing Home 99-101 Trent Valley Road, Lichfield, Staffordshire, be cancelled on the grounds that there would be a serious risk to life, health or well being of a person unless the order was made. This order was made following an Application by the Respondent.

3. On 28 September 2007, the Applicant appealed to this Tribunal against the JP's Cancellation Order on a number of grounds. The Respondent lodged a response to the Appeal together with the strike out application on 19 March 2008.

4. Heritage Court has now been sold and so the Applicant is no longer the owner of the premises. The Applicant does, however, own another premises, SMM.

The Law

5. Regulation 4A(1) provides:

"(1) The President or the nominated chairman may at any time strike out an appeal or application for leave mentioned in regulation 4 on the grounds that –

(a) it is made otherwise than in accordance with the provision in these Regulations for –

(i) initiating that appeal; or

(ii) applying for leave;

(b) it is outside the jurisdiction of the Tribunal or is otherwise misconceived;

(c) it is frivolous or vexatious: or

(d) the President or nominated chairman considers that the appeal or application has no reasonable prospect of success

6. Section 20 (1) of the Care Standard's Act 2000 provides for the registration authority to apply to a Justice of the Peace for an order cancelling the registration of a person in respect of establishment or agency if it appears to the Justice that unless the order is made, there will be a serious risk of person's life, health or well being. The Respondents say that it was on this basis that Heritage Court Limited registration in respect of the premises of Heritage Court was cancelled. Since the cancellation of the registration, the premises have been sold. As each premises has to be registered separately, there are, therefore, no premises to which this registration can relate.

Respondent's arguments

7. The Respondents argue that In the case of The Welsh Ministers v Care Standards Tribunal and 'H' (2008) ("The Welsh Ministers")^[1] the High Court made it clear that a registration cannot exist in a vacuum, but must relate to a specific establishment or agency. As there are no premises to which the registration in this case can relate, the Applicant's Appeal must fail.

8. The Respondent accepts that in some situations, an Appeal can still continue to allow a finding or findings of fact even when there are no premises, if there is a "practical advantage to be gained." This is on the basis of the decision of Ajibewa v Ofted^[2] approved in The Welsh Ministers. The Respondent submits that there is no such practical advantage in this case.

9. The Welsh Ministers case concerned an application by Mrs H to become a registered manager. She wished to appeal against the decision of The Welsh Ministers as this would afford her the chance to obtain future employment in a registered manager's capacity with other employers, even though there was now no prospect of her original application succeeding as there was no chance of her becoming a registered manager for the employer identified in her application. I accepted that this was a "practical advantage" and it was therefore determined that strike out was inappropriate.

10. The Respondent submits that the present case can be distinguished from The Welsh Ministers on a number of grounds:

11. The present case relates to the cancellation of registration in respect of premises owned by a provider of a care home, rather than a refusal of an application to become a registered manager.

a. In the latter case if the appeal proceeds to a full hearing, the Tribunal will decide on whether the applicant is an suitable individual to be a registered manager. This is precisely the same test that would be used by a regulator in respect of any future applications by the Applicant. It is therefore evident that a "practical advantage" could be gained by an applicant in obtaining a written decision by the Tribunal, even if the appeal itself must fail as a matter of law.

b. It is submitted that in cases of cancellation of registration of the premises, the same criteria do not apply. The Tribunal in such a case must determine whether the cancellation of the registration is appropriate based on the information available at the time of the hearing. In particular the Tribunal needs to decide whether the registration should be cancelled on the basis of the breaches of regulations alleged by the registration authority. By contrast a future application by a provider for new premises would be based on an entirely different basis relating to the suitability of the proposed new premises, the proposed management of the premises and the regulator's satisfaction that the provider can comply with all relevant statutory requirements. As such, it is submitted that a written decision on the facts by a Tribunal could not afford the same practical advantage to a provider as would be the case with an individual whose application to become a registered manager has been refused.

c. It is submitted that in this particular case, the difference between the decision which a Tribunal at a full hearing would have to make at a full hearing and the practical advantage of such a finding to the provider is even further removed. If this appeal were to proceed to a Tribunal hearing the decision that would need to be made is whether there will be a serious risk to person's life, health or well being unless the order is upheld. If the Tribunal were to make findings of fact on this then it is submitted that such findings could not possibly provide a practical advantage to the provider in relation to any future premises which the Applicant may wish to apply to be registered.

12. The second ground is that, unlike an individual applying to become a registered manager, a provider has the opportunity to control its own affairs. If an application is made in future by this Applicant, then it is entirely within the Applicant's power to ensure that such premises are suitable and that it can persuade the Registration Authority that it will comply with all relevant regulations to enable the registration to take place. This is an entirely different situation from The Welsh Ministers where Mrs H was dependant on the offer of employment by a third party. It is submitted therefore that the injustice which is sought to be overcome by the decision in The Welsh Ministers does not apply in this case.

13. Mr Grant, on behalf of the Respondent, further argues that present case should be distinguished from The Welsh Ministers on the basis that it relates to cancellation of registration of a company in relation to a premises rather than a registered manager. Even if the appeal were allowed to continue to a hearing, the findings of fact which the Tribunal could make would not be determinative of the success of any future applications for registration of other premises. As such, there is no practical advantage in allowing the appeal to continue.

14. The Tribunal has recently made a strike out Order in a similar case to the present one in Adelphie v Commission for Social Care Inspection [2007] 1125. EA). In Adelphie the applicant's registration had been cancelled under the ordinary procedure of section 19 of the Care Standards Act, and the home was subsequently closed following an emergency cancellation order under Section 20 of the Act. There was no prospect of a successful appeal against the cancellation decision because the Applicant failed to lodge an appeal against the emergency cancellation order (made under section 14) within the 28 day time limit. As there was no prospect of the home re-opening there was no practical advantage in the appeal continuing and on that basis the Appeal was struck out by the President. Similarly, in this case, as the premises have been sold there is no prospect of the home re-opening and so there is no practical advantage in allowing the appeal to continue, it is argued

15. In Adelphie the Respondent conceded that any future applications for registration of other premises would not be determined by the decision to cancel registration in that particular case. The Respondent in this matter has made the same concession and has expressly written to the Applicant confirming that in a "letter of comfort".

Applicant's case

16. Whilst it is accepted by the Applicant that the premises at Heritage Court have been sold, it is argued that this does not, of itself, mean that the appeal cannot proceed as the substantive appeal could still be allowed. The argument is that if the appeal is allowed, it would, in essence, be a finding that the Magistrate was in error on her finding, and so her Order would be discharged.

17. If the appeal is allowed, says Mr. Bull, the Applicants would still have to notify CSCI that the premises have been sold and so seek the cancellation of their registration. The cancellation of registration in those circumstances is because of the sale of the premises.

18. Mr Bull argues that the Tribunal has a discretion to strike out the appeal, but this should only be exercised with considerable caution (Adelphie para 19). The Welsh Ministers case and the principles that it provides, particularly in the approval of Ajibewa –v- Ofsted , is relevant, and is generally applicable to the position of the Applicants, and their Officers, who would be required to be/and remain as "fit persons" for registration purposes.

19. It is submitted that the fact that that the Applicants are a Company should not distinguish this appeal from an appeal by an individual. The registration authority will have to be satisfied that the Officers of the Company (indeed, also if those persons make an application for registration personally, or through the medium of another company) are "fit persons" within the registration process, and for registration as responsible persons in connection with a registration. Consequently, there is "a practical advantage to be gained" in the appeal proceeding and to deny the Applicants an appeal hearing upon the Section 20 (1) Magistrates Order would substantially disadvantage them, particularly as against the Respondents.

20. Given that the directors of the Applicant Company are concerned with another Registered Care Home, it is argued that the impact of the Section 20 order could have implications beyond the concept of the Applicants (and their Officers) seeking to simply "clear their names". The Appellants do not consider that the Magistrate made a correct Order.

21. Further, the Applicants believe that the Respondents acted improperly and negligently in bringing the Application before the Magistrate, and would seek damages against the Respondents.

22. The opportunity to appeal and to have the Section 20(1) Magistrates Order discharged is a necessary, and vital, first step to the Applicants being able to progress a claim for negligence says Mr. Bull.

23. The law in relation to such a claim against the Respondents is Court of Appeal decision of Jain v Trent Strategic Health Authority^[3]. It presently stands against the Applicants. However, says Mr. Bull, the House of Lords has given leave for the Claimant in Jain to appeal and the observations of the Court of Appeal (particularly in the dissenting judgment) are material.

24. Mr. Bull argues that it would not be a proper exercise of discretion to withhold from the Applicants a first important step (namely whether a Section 20(1) Order should have been made) in a prospective claim for damages against CSCI.

25. The case of Adelphie is properly distinguished from the present case. There, the appeal against a Section 20(1) Magistrates Order was not filed within the strict 28 day time limit so was bound to fail. In the present case there is a properly constituted appeal.

26. Mr. Bull says that this appeal will be limited to the facts as at the date of the Magistrates Order because the home closed immediately after the Magistrates Order was made. Thus there are no "complications" to arise with the Tribunal having to consider matters as at the date of the Appeal hearing. Nothing, bar the closure of the Care Home happened after the Magistrates Order.

27. The Applicants (and their Officers) wish to continue in the Care Home sector, and would intend seeking future registrations. The "record" of a Section 20(1) closure would, inevitably, have a detrimental effect in any future application for registration. An allowed appeal would remove that difficulty and stigma. Consequently, says Mr Bull, the Application by the Respondents should be dismissed and the Applicants should be permitted to continue with their appeal.

Tribunal's conclusions

28. The key issue in this strike out application is: is there a practical advantage in this appeal continuing? This case is the third recent case to consider "practical advantage". I have to consider the matter on the facts that are before me now rather than at the time the Section 20 order was made. It is material, therefore, that the home has now been sold. Mr. Grant accepted in argument that if the home had not been sold the application to strike out would not have been made as it was arguable that in those circumstances there was a practical advantage, namely the reopening of the home if the Tribunal allowed the appeal.

29. At present if the appeal was allowed the Applicants would still have to cancel the registration as there is no home to which it would relate. On the face of it that is a pyrrhic victory and seems to be nothing more that a name-clearing exercise which both Ajibewa and The Welsh Ministers rejected.

30. It seems to me that Mr. Bull's strongest argument on "practical advantage" is the Jain point. However, this is not straight forward. To even begin to be able to issue proceedings for negligence against the Respondents it will be necessary for the House of Lords to reverse the decision of the Court of Appeal in Jain. Of course, that is not impossible as even the majority judgements in the Court of Appeal cannot be seen as a ringing endorsement for the conclusion they reached. One of the unanswered questions is when the House of Lords will hear Jain. There is no information on the House of Lords website as to when it will be listed and given that the Petition was only presented on 6^th May 2008 it is unlikely to be heard before the start of 2009 at the earliest.

31. Since Mr Bull relies on the House of Lords to reverse Jain at some unknown time in the future it is reasonable for me to conclude that, at best, this is a contingent rather than immediate practical advantage which is hardly directly beneficial to the Applicants.

32. I do have to weigh against the contingent practical advantage the fact that if I strike out this appeal the Applicants have lost the ability and opportunity to appeal against the Section 20 Order. In determining this application it was not necessary for me to consider the details of the grounds upon which the Section 20 Order was made so I cannot give an informed opinion on the merits or otherwise of the prospects of the substantive appeal if it were to proceed.

33. I have come to the conclusion that if there is to be a practical advantage it has to exist at the time of the hearing to strike out rather than being something possible in the future. On the law as it currently stands (Jain), therefore, there can be no practical advantage in a finding being made to enable the Applicants to pursue only a potential claim for negligence which is dependent on the law being changed. I said at paragraph 23 in Welsh Ministers that until H's statement was produced during the hearing and set out the possible job offer I could see no practical advantage to her.

34. Once the possibility of being able to bring a negligence claim in the foreseeable future is removed there is no obvious practical advantage in this case. Clearing of a name is not regarded as a practical advantage. Future applications to register premises and the continued registration of the other premises owned by the Applicants are covered by the "letter of comfort", albeit that it is not unequivocal.

35. In all the circumstances, therefore, I conclude that there is no practical advantage in this appeal continuing and so I will strike it out.

36. It seems to me that the problem for the Applicants was that the home had to be sold before the case was heard. Had it still been in existence (even if shut) the appeal would have continued, as the Respondent conceded. I appreciate that there are commercial pressures that often require a sale. Here the Section 20 order was made in September and the property sold in late December. This seems to me to be a strong argument for section 20 cases to be dealt with expeditiously and parties should seek directions to ensure an early hearing. That does not help the Applicants in this case, however.

APPEAL STRUCK OUT

Simon Oliver

Deputy President

15^th July 2008

Note 1   Neutral citation: [2008] EWHC 49 (Admin). It was an appeal against my decision.    [Back]

Note 2   CST case reference: [2005] 539 EY    [Back]

Note 3   Neutral citation: [2007] EWCA Civ 1186    [Back]