England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		21st April 2004

1. MR JUSTICE SULLIVAN: Introduction.
2. This is a statutory appeal against a decision of the Care Standards Tribunal ("the Tribunal") dated 2nd January 2004 allowing the respondent's appeal against the appellant Commission's decision to refuse to register him under Part II of the Care Standards Act 2000 (the "2000 Act") as the manager of Middlefield House, a residential care home which caters for the needs of young adults with severe learning disabilities.

Background.

3. The background is set out in the Tribunal's decision as follows. The respondent (the appellant before the Tribunal):

". . . who is now 45 years old, joined the nursing profession some twenty years ago as a care assistant. He became an Enrolled Nurse (Mental Health) in 1985 and a Registered Nurse (Mental Health) in 1989. In August 1995 he took over the management of Lowfield House, a home for adults with physical and learning disabilities, owned and operated by a company called Prime Life Limited. Early in 1998 allegations were made about the appellant's conduct in 1996/7 towards service users at Lowfield House. The appellant made a statement to the police and in or about September 1998 he received a letter from the police indicating that, on the advice of the Crown Prosecution Service, the matter was to be taken no further. There would also have been investigations by the South Humber Health Authority and the North Lincolnshire Social Services Department, which the Tribunal heard produced similar results. The allegations were also investigated by Prime Life Limited.

"In 1999 the appellant moved to Middlefield House, an establishment which, as had Lowfield House, needed a good deal of re-organisation to improve the management and provide a better quality of life for the residents. The appellant did not need formal registration under the Registered Homes Act 1984, then in force, but Lincolnshire County Council operated a voluntary registration scheme and the appellant achieved such 'voluntary registration'.

"By July 2000 the appellant's professional body, formerly the United Kingdom Central Council for Nurses, Midwives and Health Visitors, had become the Nursing and Midwifery Council (hereinafter 'NMC') and had decided to consider the allegations made against the appellant in early 1998.

"In April 2002 the new regime of the Care Standards Act 2000 came into force, its regulations (unlike its predecessor) required the appellant to be registered and he applied for such registration on 14th April 2002.

"The Professional Conduct Committee of the NMC held a hearing on 14th, 15th and 16th October 2002 about the appellant's conduct towards service users at Lowfield House in 1996/7, found the appellant guilty of four counts of misconduct and cautioned him as to his future conduct, the caution to remain on his record for five years. The four counts of misconduct were i) hitting a resident on the penis with a pen (to discourage him from masturbating), ii) wheeling a resident into the dining room with a waste-paper bin on her head, iii) forcibly administering medication to a resident and iv) kicking a resident on her buttocks.

"As part of the standardised process of assessing 'fitness' which is being developed by the respondent, the applicant was sent a 'Fit Person Questionnaire', which he completed on the 9th January 2003 and he attended on the 22nd January 2003 for the required interview with two officers of the National Care Standards Commission."

4. In section 3 of the fit person questionnaire the applicant for registration is required to disclose certain matters. In addition to being required to disclose matters such as criminal convictions, the form says this:

"In addition please indicate below whether you have ever been:

"Charged with any offence, or been subject to an investigation by police."

5. The respondent answered no to that question:

"Subject to any form of complaint, dismissal or disciplinary proceedings . . ."

6. The respondent answered no to that question also. The form contains a declaration:

"I hereby declare that the information detailed above is accurate to the best of my knowledge. I understand that a false declaration may lead to refusal of this application".

7. The form containing that declaration was signed by the respondent. The Tribunal noted that in refusing registration and in opposing the respondent's appeal, the Commission had relied on three matters. Firstly, his inadequate knowledge and understanding of the applicable legislation, regulations, standards and principles; secondly, the findings of misconduct made by the Professional Conduct Committee of the Nursing and Midwifery Council in October 2002; and thirdly, the respondent's failure to disclose those findings or antecedent investigations principally, but not exclusively, on the form in which he applied for registration.
8. Before the Tribunal, the Commission placed reliance upon material non-disclosure in the application form, but it was also submitted on behalf of the Commission that:

"The Findings of the NMC also go to the Appellant's 'integrity and good character' as he denied three of the charges found proved against him so he was obviously disbelieved by the Committee."

The Tribunal's decision.

9. The Tribunal summarised the evidence given on behalf of the Commission and the respondent and then set out its findings. The Tribunal had reservations about the fit persons interview and the use of the pro-forma. Having explained those reservations in some considerable detail, it said this:

"1. The Tribunal therefore found the fit person interview to have serious inherent defects. It was also clear that the appellant whose background was largely 'hands-on' with a minimum of theoretical input was at a disadvantage in a theoretical discussion. The appellant is undoubtedly one of those who are much better at handling a situation than at putting that situation into its theoretical context.

"2. Against these deficiencies in the respondent's procedures, there must be weighed the appellant's admission of substantial gaps in his knowledge of the legislative framework and, perhaps to a lesser extent, in his administrative work and supervision and appraisal of staff.

"3. The four counts of misconduct are an obvious matter of weight against the appellant, involving as they do, abusive behaviour towards vulnerable service users. The Tribunal did not of course hear the evidence about those incidents and so felt bound to a degree by the conclusions of those who did. The NMC considered a caution to be the appropriate penalty, clearly taking the view that the offences were not so grave as to necessitate the end of the appellant's career as a nurse. The Professional Conduct Committee took into account the appellant's significant contribution to learning disability nursing and his commitment to practice development and patient care.

"4. The Tribunal noted that the complaints were the only complaints to have been made against the appellant during a nursing career now of some twenty years, including eight as a manager, and arose on an occasion (rare in the appellant's career) of some staff discontent. The Tribunal did not share the respondent's view that it was effectively powerless to do anything after the findings were made known; it could, for example, have imposed conditions restricting or even suspending the appellant's activities at Middlefield House. That it chose not to do so indicates, in the Tribunal's opinion, the respondent's sharing of the NMC's view as to the proper reflection of the gravity of the offences.

"5. That the appellant had been dishonest in answering the question on his application form about previous complaints and investigations was an inescapable conclusion. The appellant admitted as much and, to his credit, in the last resort did not seek to make excuses but said that he was not proud of his conduct, regretted it and would not do the same again. There were relevant features in the background to the falsehoods. The appellant, no doubt to a degree, saw the complaints as trouble-making by a disgruntled ex-member of his staff, as was suggested in the enquiry at the time by Prime Life Limited. Authority in general had not moved with alacrity to deal with the matter. The police and the Crown Prosecution Service had taken six months to decide to do nothing. If, as Mr van Herrewege appeared to think, the South Humber Health Authority and North Lincolnshire Social Services had conducted any sort of investigation, neither had taken any apparent action as a result. Nobody had brought the matter to the attention of the appellant's professional body, the NMC, until July 2000, some two and a half years after the events occurred. The pace of its prosecution of the matter was such that, by April 2000 when the appellant filled in the offending form, the complaints had not been heard, a date set for the previous month having been cancelled. For what it is worth, Prime Life Limited too had carried out an investigation, though it is right to record that the Tribunal was not favourably impressed by either its thoroughness or its recording. It appears to have been conducted, in the main at least, by a personnel officer, whose qualifications and experience in such matters were, to say the least, not obvious. By April 2002 the appellant was fed up with repeated and protracted investigations into the complaints, he felt entitled to have the matter concluded and to put it behind him so that he could get on with his life. He knew how he should have answered the question on the form, but felt irritated at this long-standing impediment to his career. The Tribunal thought it likely that the appellant telephoned Mr van Herrewege in the hope of a sympathetic view, which he obtained. Thus fortified, he allowed his feelings to overcome his better judgment. Having embarked on that course, he stuck to his guns ...

"6. Those matters, as Mr Silvester rightly says, provide grounds on which the appellant could properly be refused the registration he seeks. On the other side of the argument are numerous indications of the appellant's success in the job for which he seeks registration. Prime Life Limited, his employer for the last seven years stands by him and speaks with appreciation of his efforts at Lowfield House and Middlefield House, where undoubtedly the appellant has effected great improvements. His evidence left the Tribunal in no doubt that the appellant loves his work and is devoted to his service users. The low staff turnover at his homes indicates a happy working environment, a feature in accordance with Mrs Laverty's evidence that she sent nursing students to homes managed by the appellant to see the practical side of the subjects they were studying. That evidence impressed the Tribunal in the light of the high standing and reputation of the University of Nottingham in this field. The various inspection reports seen by the Tribunal show at the very least a satisfactory state of affairs with gradual improvement. It is noticeable that in a number of respects the appellant's scores on certain standards are much better than his scores on similar matters when discussed during the fit person interview.

"7. There is no definition of 'fitness' at least for the purposes of Part II of the Care Standards Act 2000 and the regulations made under it. There is guidance in reg 9 of the Care Homes Regulations 2001, which refer to integrity and good character, qualifications, skills and expertise and physical and mental fitness. Although exploring synonyms can be a useful exercise, it is of limited assistance in this case. It is reasonably clear what standards have to be met. The questions for the Tribunal are whether the appellant's dishonest answers on the form impugn his integrity so that that standard is not met, whether the four counts of misconduct indicate that he lacks the required skills and qualifications, whether his poor performance especially on theoretical questions at the fit person interview shows that his qualifications, skills and experience do not meet the required standard.

"8. In what is in the Tribunal's view a finely balanced decision, having considered all relevant matters and reminded itself that the burden is on the respondent to prove the appellant's unfitness on the balance of probabilities (the civil standard), the Tribunal's decision is that the balance favours the appellant. He is now, if not before, aware of the areas in which his knowledge needs to be improved and has already taken steps, by enrolling on courses, to improve it. The Tribunal is confident that he will continue to do so with the support of Prime Life Limited, his employer. The appellant has come close to causing serious damage to his career and in the Tribunal's view has learned from that experience.

"9. For those reasons the Tribunal unanimously allows the appeal.

"10. The Tribunal gave some thought to the possibility of imposing conditions, but concluded that useful conditions would be extremely difficult to draft and equally difficult to enforce. It therefore decided that the imposition of conditions would not be appropriate."

10. I have added paragraph numbers to these passages in the Tribunal's findings for ease of reference in this judgment.

The former statutory framework.

11. Section 9 of the Registered Homes Act 1984 provided, so far as material:

"The registration authority may refuse to register an applicant for registration in respect of a residential care home if they are satisfied --

"(a) that he or any other person concerned or intended to be concerned in carrying on the home is not a fit person to be concerned in carrying on a residential care home."

12. It will be noted that there was no definition of fitness for the purposes of section 9. In a number of decisions the Registered Homes Tribunal gave guidance as to the approach to be adopted to the question of fitness. It will further be noted that even if it was concluded that a person was not fit for the purposes of section 9, the registration authority still had a discretion: it "may refuse to register . . ."

The present statutory framework.

13. The 1984 Act has been replaced by the 2000 Act. A person who manages a care home such as Middlefield House must be registered under the 2000 Act (section 11). A person seeking registration must make an application to the Commission, as the Registration Authority (section 12). Where an application has been made the Commission shall grant it if it is satisfied that the requirements of the regulations made under section 22 have been satisfied, otherwise it shall refuse the application (section 13). Section 22 enables the appropriate Minister to make regulations which may inter alia:

"(a) make provision as to the persons who are fit to carry on or manage an establishment or agency."

14. The Care Homes Regulations 2001 ("the Regulations") have been made under, inter alia, the power conferred by section 22. Regulation 9 provides, so far as material:

"9. (1) A person shall not manage a care home unless he is fit to do so.

"(2) A person is not fit to manage a care home unless --

"(a) he is of integrity and good character;

"(b) having regard to the size of the care home, the statement of purpose, and the number and needs of the service users --

"(i) he has the qualifications, skills and experience necessary for managing the care home; and

"(ii) he is physically and mentally fit to manage the care home . . ."

15. It will be noted that Regulation 9 does not merely provide a statutory definition of "fitness" for the purposes of the Act, it does so in mandatory terms:

"(1) A person shall not [my emphasis] manage a care home unless he is fit to do so.

"(2) A person is not fit to manage a care home unless --

"(a) he is of integrity and good character . . ."

16. The Commission's Submissions.
17. Although the Commission's appeal notice contains five grounds of appeal, they boil down to two principal propositions advanced by Mr Silvester in his submissions. Firstly, the Tribunal misdirected itself in paragraph 7 of its findings and in consequence did not ask itself the correct questions. Secondly, if it did ask itself the correct questions, its conclusions that the respondent was a person of integrity and good character who had the necessary qualifications, skills and experience to manage Middlefield House were perverse.

Conclusions.

18. Notwithstanding Ms McDonald's valiant submissions on behalf of the respondent, I am satisfied that the first of Mr Silvester's submissions is undoubtedly correct. The Tribunal itself described its decision as a "finely balanced" one. If a decision is finely balanced, it is of particular importance that the Tribunal carrying out the balancing exercise does so against the background of a correct appreciation of the relevant statutory framework, so that it asks itself the correct questions and then provides intelligible answers to those questions.
19. Contrary to what is said in the first sentence of paragraph 7 of the Tribunal's findings, there is a definition of fitness for the purposes of Part II of the 2000 Act and the Regulations made thereunder. The definition is contained in Regulation 9 above. By comparison with the 1984 Act, the 2000 Act and the Regulations made thereunder adopt a more prescriptive approach. Unlike earlier decisions of the Registered Homes Tribunal, which provided guidance as to how to apply the discretion conferred by section 9 of the 1984 Act, Regulation 9 is not properly to be described as providing "guidance". It sets out a number of mandatory requirements. The importance of meeting those requirements should not be watered down by treating them as guidance.
20. Reading the decision letter as a whole, I am left with the distinct impression that this is what the Tribunal did in this case, having started off on the wrong foot: that there was no statutory definition of fitness for the purposes of Part II of the 2000 Act. Given the existence of the statutory definition contained in Regulation 9, I would agree with the Tribunal's view that exploring synonyms is likely to be of little, if any, assistance. It is clear what standards have to be met: they are those prescribed by Regulation 9.
21. The questions for the Tribunal were, therefore, firstly whether the respondent could fairly be described as being of integrity and good character, notwithstanding his dishonest answers on the application form and the NMC's conclusion that he had been guilty of four counts of misconduct; and secondly, whether he had the qualifications, skills and experience necessary for managing Middlefield House given the findings of the NMC in October 2002 and his poor performance at the fit persons interview. There was no issue as to the third requirement in Regulation 9; physical and mental fitness.
22. I accept that it is important not to be unduly prescriptive in considering the wording of decisions by the Tribunal. The Tribunal must be allowed to frame the key questions by reference to the matters in issue in the particular appeal, but it must address the statutory criteria for fitness. The Commission had, rightly, contended that the NMC's findings of professional misconduct were relevant to the first question: whether the respondent could fairly be described as a person of "integrity and good character". The Tribunal appears to fudge this first question, asking itself whether the respondent's integrity had been impugned:

"So that the standard [whatever the Tribunal thought it was] is not met."

23. It then considered that question simply by reference to the respondent's dishonest answers on the application form. The findings of professional misconduct by the NMC were considered, but only in relation to the second question: whether the respondent had the necessary qualifications, skills and experience.
24. In her submissions, Ms McDonald pointed to the Tribunal's conclusions in paragraphs 1 to 6 of its findings (above) and submitted that the Tribunal had, in substance, answered the questions arising under Regulation 9 in the respondent's favour. I would accept that the Tribunal's decision has to be read as a whole, but I am not persuaded that the Tribunal answered the questions it posed in paragraph 7, even upon the assumption that those were the correct questions. Having posed three questions in paragraph 7 and having said in paragraph 8 that the decision was a finely balanced one, the Tribunal merely said that "the balance favours the appellant." The remainder of paragraph 8 does not attempt to answer the three questions and, of equal importance, it does not explain why the Tribunal concluded (if it did conclude) that the respondent was a person of integrity and good character who did have the necessary qualifications, skills and experience despite the findings in paragraph 2, 3 and 5.
25. The answers to the three questions posed by the Tribunal in paragraph 7 are not to be found in paragraphs 1 to 6. In paragraph 1, the Tribunal concluded that the respondent was disadvantaged in a theoretical discussion but added:

"2. Against these deficiencies in the respondent's procedures, there must be weighed the appellant's admission of substantial gaps in his knowledge of the legislative framework and, perhaps to a lesser extent, in his administrative work and supervision and appraisal of staff."

26. Those findings do not begin to explain why the Tribunal felt able to conclude that he nevertheless did have the qualifications, skills and experience necessary for managing Middlefield House.
27. Paragraph 3 correctly states that:

"The four counts of misconduct are an obvious matter of weight against the appellant, involving as they do, abusive behaviour towards vulnerable service users."

28. The remainder of that paragraph and paragraph 4 set out what might be described as extenuating circumstances. In her submissions, Ms McDonald explained in some detail why the Tribunal would have been entitled to conclude that the NMC's findings did not go to the respondent's integrity and good character, but went simply to his skills and experience. Unfortunately, her careful submissions merely underlined the paucity of the Tribunal's reasoning in this respect.
29. In paragraph 5, the Tribunal found:

"That the appellant had been dishonest in answering the question on his application form about previous complaints and investigations was an inescapable conclusion."

30. I would accept the proposition that in requiring an applicant for registration to be of integrity and good character, Regulation 9 should not be construed as requiring perfection. It is dealing with the qualities required of human beings who are necessarily fallible. While George Washington is reputed to have been unable to tell a lie, few people can hope to live up to such a stringent standard. Even if in the past an applicant for registration has been dishonest, or has been convicted of a criminal offence, or has been found guilty of professional misconduct, he or she may still, as at the time of the application for registration and/or by the time of an appeal to the Tribunal, be fairly described as a person of integrity and good character. People change. Although the analogy is not exact, in the criminal context a judge is often able to treat a defendant who does have a previous conviction as nevertheless being a person of good character because, for example, the previous offence took place many years ago, or was of a very minor character, or peripheral and of little relevance to the present charge.
31. I do not say that it would have been impossible for the Tribunal to have concluded, in the light of the findings in paragraphs 3 to 5, that the respondent was, at the time of the appeal, fairly to be described as being of integrity and good character. I do say that if the Tribunal was to reach such a conclusion, it would have had to explain its reasons for doing so with considerable care, and those reasons are simply not apparent from paragraph 8, even if it is read in conjunction with paragraphs 1 to 6.
32. The factors set out in paragraph 6 are undoubtedly relevant, but however persuasive they may be they do not enable the Tribunal to avoid answering the first question that is posed by Regulation 9: is the applicant for registration a person of integrity and good character? If the answer to that question is no, then whatever other qualities an applicant may possess, the statutory scheme states that he or she is not fit to manage a care home.
33. It follows that this appeal must succeed on ground one. In the circumstances, it is unnecessary for me to consider ground two. I am very conscious that this is an appeal on a point of law. The Tribunal is the judge of the merits. If the Tribunal correctly directs itself as to the law and in consequence asks itself the right questions and answers those questions in an intelligible fashion, then its answers can be challenged only upon the basis that its conclusions are perverse. Since the respondent's appeal against the Commission's decision will have to be considered by another Tribunal, it is not appropriate for me to express any view upon the merits.
34. For the sake of completeness, I should mention one matter that was apparently common ground between the parties at the hearing before the Tribunal: that the burden was upon the Commission to prove the respondent's unfitness on the balance of probabilities. The Tribunal, in paragraph 8, reminded itself of that burden. I question whether that is a correct statement of the burden of proof in view of the terms of Regulation 9. It will be remembered that under the 1984 Act a person was entitled to manage a care home unless he was not a fit person to do so. The Registration Authority had a discretion to refuse to register an applicant for registration if it was satisfied that he was not a fit person to be concerned in carrying on a residential care home. Thus, it was for the Registration Authority on appeal to demonstrate that its satisfaction to that effect was well founded.
35. By way of contrast, Regulation 9 provides that a person shall not manage a care home unless he is fit to do so. It seems to me that it is at least arguable that under the new statutory scheme the burden lies upon an appellant to satisfy the Tribunal to the civil standard that he or she is a fit person to manage a care home as defined by Regulation 9 and Part II of the Act. It appears to be common ground that this is the position at first instance when the application is made to the Commission. The applicant for registration must satisfy the Commission that he or she is a fit person. Why that burden should shift to the Commission on appeal is by no means clear to me. Insofar as it is correct to speak of a "burden of proof" when deciding such judgmental issues, one would expect the onus to be upon the appellant to persuade the Tribunal that the Commission's decision was wrong.
36. I express no concluded view about this issue and merely raise it as a question because I have not heard detailed submissions on the topic. I was told that there is a decision of the Tribunal which deals with this issue but the decision was not available. In the circumstances, I simply reserve for future consideration the question of whether, on appeal, the burden is on the Commission to demonstrate that an applicant for registration is unfit, or whether the applicant has to persuade the Tribunal that he or she is a fit person to manage a care home.
37. I make it plain that I have mentioned this reservation merely for the sake of completeness and it has played no part in my decision to quash the Tribunal's decision in this case. On whichever party the burden lay, the Tribunal plainly misdirected itself in law for the reasons set out above. I therefore quash the Tribunal's decision and, as indicated during the course of submissions, I give the parties liberty to apply for any further directions if so advised.