England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		31st October 2008

1. TIM CORNER QC: This is an appeal against a decision of the Care Standards Tribunal whereby it dismissed two appeals by the present appellant, Dr Chandra, and Dr Chandra's wife. The Chandras appealed under section 21 of the Care Standards Act 2000 against two decisions of the respondent, the Commission for Social Care Inspection ("CSCI"), the first being the decision of the respondent of 3rd October 2006 to adopt the proposal dated 7th June 2006 to impose conditions upon their registration at Kingshaven Rest Home at 27 Whitwell Road, Southsea, Portsmouth ("the home"), and secondly, against the decision of the respondent dated 18th December 2006 to adopt a proposal dated 6th October 2006 to cancel the registration of the appellants in respect of the home. The Tribunal dismissed the appeals after a hearing that took place on 11th, 12th and 13th June 2007.
2. The grounds of appeal are as follows:

(1) The Tribunal failed to take significant account of the fact that Dr Chandra had made significant improvements to the running of the home over the course of the last year, the same being expressly reflected in the most recent report following an unannounced inspection of the CSCI. This inspection report indicated that the premises had improved in their running and management activities.

(2) The Chairman of the Tribunal did not take into account the efforts made by Dr Chandra to find a registered manager in that advertisements had been placed, two applications to the CSCI for persons to act as registered managers had been made, both having been refused by the CSCI, and that efforts were ongoing by Dr Chandra and his wife (who is Dr Chandra also, I believe) in order to find a suitably qualified registered manager to undertake the post and duties.

(3) The Tribunal referred specifically in its decision to an external report produced on behalf of Kingshaven Rest Home and referred to in a statement submitted by the CSCI. Such statement contained extracts from the report and did not fully reflect the context in which the report was made. The CSCI did not call the makers of the report, and neither did Dr Chandra. Accordingly, it is possible that phrases referred to were taken out of context. The Tribunal, if relying on any aspect of the report should have asked the makers of the same to attend to provide evidence.

(4) The rights of the very elderly, fragile and vulnerable residents in the home have been violated as they have been forced to move to other homes against their will. Dr Chandra says that "though we are responsible for taking care of their rights, we are now unable to do so".

3. I understand that this case was in the warned list since 13th August 2007 and it was listed for hearing today on 17th June of this year. On 10th October the appellants sought an adjournment of this hearing on the basis that (a) they were not currently represented and needed time to obtain representation and prepare properly for the hearing, and (b) that they have recently suffered from health problems.
4. On 24th October of this year the Senior Legal Manager directed that the matter should remain listed, given that the case had been in the warned list since August of last year and that it had been listed on 17th June of this year, that the appellants had had sufficient time to seek legal advice or representation and that no evidence had been submitted to support the appellants' contention that recent ill health had prevented them preparing for this hearing. Apparently a message was left on the appellants' mobile phone voicemail on 24th October advising that the hearing would go ahead.
5. This hearing was listed for 10.30 this morning. I came into court at 10.30 this morning. There was no sign of either appellant. After telephone calls by the court staff, it was ascertained that from, I think, a relation of Dr Chandra that he might be able to come at 3 o'clock this afternoon and so I adjourned this matter until 3 pm so that Dr Chandra had a proper chance to attend. At 3 pm Dr Chandra attended and asked that the matter be adjourned. I declined his application, taking the view that there was no evidence to support any proposition that the appellants had had insufficient time to seek legal advice or representation or that ill health had prevented them from doing so. I noted that Dr Chandra had been to see the Citizens Advice Bureau a month ago, as he told me, and it seems to me that there was ample opportunity for him to seek legal representation. He told me that his wife had had an operation in April or June and that he was suffering, or had suffered, from hypertension and diabetes. Given that that had not prevented him from coming here today or from seeing the Citizens Advice Bureau, I find it impossible to see how he has been prevented from securing legal representation in sufficient time for this long listed hearing today. In those circumstances I refused the adjournment and directed that the hearing take place.
6. I now turn to the Tribunal's decision. The Tribunal's decision, which was unanimous, was set out in writing and I have read it carefully. The Tribunal heard evidence from Mr McMullen, the regulation manager of the CSCI, Mr Kingman, a regulatory inspector of the CSCI, Janette Everitt, a regulatory inspector of the CSCI, Wendy Hughes, a regulation manager for the CSCI, Pamela Gneid, formerly a part-time care assistant at the rest home, and it read the evidence of Elizabeth Normanton, a regulatory inspector of the CSCI, and Sallyanne Turner, a business relationship manager for the CSCI. On 12th June the Tribunal heard oral evidence from Wendy Bligh, a care worker at the home, Anastasia Dick, a care worker at the Home, Renu Chandra, the acting assistant manager at the home, Birbola Chandra, the second appellant, and commenced hearing the oral evidence of Dr Girish Chandra who is here today. It also read the evidence of Busi Mbofu, a care worker in the Home, and Sicinginkosi Mlala, a care worker in the home. On 13th June it completed hearing the evidence of Dr Chandra.
7. The Tribunal sets out extensively the evidence that it heard and its findings in a section headed "The findings of the Tribunal on the evidence". The Tribunal refers to inspections between 2003 and 2004 in which substantial evidence of failings was produced. It says in paragraph 5:

"Surprisingly, the evidence shows that no responses to the above inspection reports were ever received from the appellants."

It refers to an announced inspection on 21st July 2005 and it says that:

"The report of this inspection showed of the 13 requirements raised most were outstanding from previous inspections."

In paragraph 8 it says:

"An unannounced inspection was conducted on 3rd November 2005. The report of that inspection showed that ten requirements were raised, nine of which remained outstanding from previous reports. It was apparent on that inspection that Renu Chandra, whose evidence we have heard, had become the acting manager of the home on 12th September 2005, but the respondent had not been notified and it was only confirmed in a letter of 9th November 2005. Dr Chandra said he was working full time to look after the care home."

The Tribunal goes on at paragraph 9 to say that the respondent CSCI "was notified in January by a concerned caller that there was no manager at the home". In paragraph 10 it says that:

"On 2nd February 2006 there was a visit by the respondent to the home and the necessity for registering a manager was discussed with Miss Chandra. She felt she was not ready to take on the role of the manager and did not know what the first appellant had in mind. As a consequence, because the Commission, rightly in our view, were very concerned about the failure to have a registered manager, a statutory requirement notice was served on the first appellant on 14th February 2006 stating that he must appoint a suitably qualified and experienced manager and submit an application to register the person by 28th March 2006. Other matters of concern were discovered during the visit of 2nd February 2006."

8. On 24th April 2006, the Tribunal says at paragraph 12, there was a further unannounced inspection. The report of that inspection showed 11 requirements were raised with five requirements again being outstanding from previous inspections. At paragraph 13 the Tribunal says:

"The application to register Miss Chandra as manager was received by the respondent on 20th March 2006. The Commission refused her application on the basis that she was not suitably experienced and did not possess suitable qualifications. We are satisfied on the evidence that we have heard that the first appellant must have known that that would be the situation."

The Tribunal then refers to further inspection in September 2006 and at paragraph 16 the Tribunal says:

"The respondent felt, as a result of this visit and the anonymous phone call, the home had moved from a position of being one which was poorly managed but where users were not seriously at risk to one which was a seriously failing service with outcomes for its residents becoming more and more negative. This was due to the actions of the management, the lack of financial viability and the lack of robust and competent management.

(17) As a consequence, the respondent served on the appellants a notice of proposal to cancel their registration on 6th October 2006. In particular, the respondent was concerned that the home had been without a registered manager since 12th September 2005. That notice of proposal became a decision on 18th December 2006 and it is against that decision that the appellants' second appeal lies."

The Tribunal then says at paragraph 21 that after the service of the notices to which previous paragraphs refer:

"A further inspection was carried out by the respondent on 21st March 2007. This inspection was unannounced. In the report of that visit the respondent accepts that the responses from the service users and the relative surveys were positive and that the home provided a clean, homely environment for service users who are able to personalise their own space. It was accepted by the respondent that the staff were dedicated to the service users and understood their needs and had good relationships with them. The service user provided a nutritious and varied diet. The respondent's inspection also showed that there have been improvements since the last inspection. Staff now have training profiles and that there was some mandatory training in place which was being funded by the appellants. The staff were undertaking NVQ Level 2 training which was being resourced free and a consultancy temp had been brought in to design systems and review and implement a number of policies and procedures. The consultancy had apparently been recommended by a company from whom the appellants were seeking a loan. As a result, a number of standards were for the first time being consistently met, but there were considerable ongoing shortcomings and in particular in the question of management. As a result, the notice listed 11 statutory requirements. In their evidence before us, Dr Chandra and Renu Chandra gave conflicting views as to whether these had now all be complied with. The evidence suggested that some had been complied with, some had been started on and some remained unaltered. We noted in particular there had been severely damaged furniture in one service user's bedroom at the time of the inspection.

(22) As we have indicated, Dr Chandra had called upon the services of an independent consultancy to assist in managing the home. In a report dated 1st November 2006 which was delivered to the respondent, it was stated that --

'Kinghaven's main problems are that the owners and acting manager do not seem to comprehend how to begin to meet the standards and to run an efficient up to date care home. It is not because of lack of care or eagerness to do so, although rather being unable to organise things in priority order to begin to address all of the 15 standards that have failed'."

9. After setting out the law, the Tribunal then sets out its conclusions in numbered paragraphs from 1 onwards. In paragraph 1 the Tribunal says:

"We have looked at this matter in two ways. First, are the appellants persons who are 'fit to carry on a care home', and secondly, are the grounds set out in the notice of proposal of 6th October 2006 and the adoption of the proposal of 18th December 2006 to cancel the registration sufficiently made out to justify the imposition of the cancellation (similarly we have given consideration to whether the grounds set out in the notice of proposal of 7th June 2006 and the adoption of that proposal on 3rd October 2006 to impose a condition was sufficiently made out)?"

10. The Tribunal then goes on to say that it had started, firstly, by considering the issue of whether or not the appellants were fit to be proprietors of the care home and "we have concluded that they are not". In paragraph 2 of its conclusions the Tribunal says:

"Our reasons for this are that the two appellants have owned this home for some seven years following its purchase in the year 2000. It appears to us from the evidence that we have seen that throughout that period, and certainly since the coming into force of the new regulatory regime, there has been little or no evidence of ongoing compliance with the legal and regulatory requirements laid down for the carrying on of such a business. We conclude that the appellants are not so fit for the reasons we set out hereunder, and we cannot find that we can trust them to run a care home in accordance with the regulations going forward. Our view is strengthened by their own evidence to us which we found confused and inconsistent in many key areas.

(3) The written evidence before us, including the evidence of the inspections and non-compliance issues arising from those inspections, and the evidence given to us by both of the appellants, lead us to conclude without hesitation that either the appellants do not understand the statutory and regulatory requirements imposed upon them or, if they do, they have no ability to implement the suitable policies and procedures to discharge their responsibilities. Dr Chandra, the first appellant, accepted that his difficulties were around interpretation of the regulations and their implementation. This position was clearly illustrated to us in the course of Dr Chandra's evidence when he told us that even on the final day of the hearing before us he had still not read the outcome of the inspections arising in the years 2003 and 2004."

After stating in paragraph 4 that Dr Chandra said, and the Tribunal accepted, that he was not a businessman, the Tribunal states at the beginning of paragraph 5: "We have no confidence in the appellant's judgment". It then refers to Dr Chandra's failure to resolve the issue of the management at the home.

11. The Tribunal goes on to deal in paragraph 6 of the conclusions with the attempts to find a manager. Again, as with some other paragraphs, I read this paragraph out in full because it is relevant to the grounds of appeal:

"In addition, their attempts to find a suitably qualified manager and dealing with the management issue has, in our view, been unsatisfactory, insufficient and inadequate. The appellants' case is that they have inserted the maximum of four advertisements in the local press, they have put advertisements in the local Post Office and other shops in the area. They seem to have no knowledge or understanding of how properly to recruit a manager. Over the past two years there has been no attempt to advertise in the professional press, no attempt to find a local or agency manager or to use Job Centre Plus. Dr Chandra's evidence suggested that he was intending to remunerate a manager on the basis of £10 to £12 an hour which in the Tribunal's knowledge is considerably below the market level for the job concerned. Even if an applicant could be found, it is clear from the first appellant's evidence that he was not prepared to give a manager full management responsibility. Our view of the fitness of the appellants to be registered proprietors was also supported by the views of their own consultants whose views we have set out in the facts above (see paragraph 20 of the evidence heard)."

I should say I think that that reference to paragraph 20 is probably a typing error and it should read paragraph 22.

12. The Tribunal goes on, having made conclusions about the fitness or otherwise of the second appellant to say at paragraph 13:

"It is apparent to us that neither of the appellants have sought to obtain any training on their responsibilities as proprietors, and for all these reasons we have concluded that neither are fit to remain as registered proprietors of the home. Our conclusion in that respect, therefore, is sufficient to resolve this case in favour of the respondent.

(14) However, it is also right to set out our conclusions in respect of the respondent's case based on the alleged repeated breaches of the regulations.

(15) We are satisfied, and indeed it is not really disputed by the appellants, that there have been repeated ongoing serious breaches of regulation 8(1)(AB)(i),(ii)(a)(b), regulation 9(2)(AB)(i),(ii), regulation 10(1), regulation 10(2)(c), regulation 12(1)(AB)(2),(3), regulation 12(5)(a), regulation 18(1A)(2)(a), regulation 18(1)(c)(i),(ii), regulation 19(1)(AB)(5)(d)(i) to Schedule 2 and regulation 25(1)."

13. Having given more details about those breaches the Tribunal goes on to say at paragraph 19:

"If we were dealing with the issue purely on the breaches of the regulations and not the question of the fitness of the two appellants, we would have considered the fact that the evidence suggested that the six residents are happy with the care that they are currently receiving, as are some of their relatives. This is shown both by the work which the home had done on quality assurance, but also by the independent review of the respondent. We are, however, satisfied that the continued breach of the regulations have continued to put the residents at risk and it would be wrong, therefore, for us to give any thought to allowing the home to continue under its present proprietors and management system.

(20) Whilst it was argued that it would be stressful to move residents, in any event the evidence before us suggested that unless there is an increase in the number of residents in a very short period of time, this business is not viable. As Dr Chandra himself accepted, the business may have to close within six to twelve months so that in any event the residents will have to move at that stage."

Then, having made comments about the respondent's approach to the presentation and inspection reports, it reached the unanimous decision that the appeal was dismissed.

14. With all that I turn to the grounds of appeal, and before I consider the submitted grounds of appeal I do feel it necessary to observe that this is, in my judgment, a very careful and full written notice of decision which deals in detail with the evidence that was presented to the Tribunal and reaches detailed and firm conclusions about both the fitness of the appellants to run a care home and the breaches of regulations that have taken place and the seriousness of those breaches.
15. Having set out extensively the relevant paragraphs of the decision, I can deal with the grounds of appeal quite shortly. So far as the first ground of appeal is concerned, in my judgment that ground of appeal cannot be sustained. It is quite plain that the improvements which had been observed in the running of the home in latter times were taken into account by the Tribunal. That is evident from paragraph 21 of the Tribunal's findings on the evidence, and this is why I read out the whole of that paragraph. There is extensive reference to the improvements that had taken place. It cannot possibly be said, in my judgment, that the Tribunal had not taken account of those improvements.
16. So far as the second ground of appeal is concerned, which relates to the efforts made by Dr Chandra to find a registered manager, the Tribunal reached clear conclusions on the evidence in relation to the attempts to find a suitably qualified manager, and took account of this evidence and set it out in detail at paragraph 6 of its conclusions, which again I have read in full. In those circumstances, again, I am afraid I do not see that this ground of appeal can succeed.
17. In relation to paragraph 3, and the external report produced on behalf of the rest home, this report is, of course, referred to at paragraph 22 of the Tribunal's findings on the evidence. Dr Chandra says that the CSCI did not call the makers of the report, neither did Dr Chandra, and accordingly it is possible that the phrases referred to were taken out of context. The Tribunal, if relying on any aspects of the report, he says, should have asked the makers of the same to attend to provide evidence. In my judgment, that was not the Tribunal's responsibility. The Tribunal's prime responsibility was to reach a decision on the evidence submitted to it. The appellants were represented by counsel, as was the respondent. It was the responsibility of each of the appellants and the respondent to call what evidence they chose. Dr Chandra is quite clear that he did not seek to call the makers of the report. It was up to him to do so if he thought it was necessary and not up to the Tribunal to do so. In those circumstances ground 3 must fail.
18. Finally, the fourth ground of appeal is an assertion of the violation of the rights of very elderly, fragile and vulnerable residents in the rest home as they would be forced to move to other homes against their will. Although the appellants are responsible to take care of their rights, Dr Chandra said, they are now unable to do so. In the circumstances, it is quite plain that the Tribunal took account of the stress on the residents from the possibility of having to move. They set that out at paragraph 20. It cannot, in my judgment, be said that the Tribunal in any way failed to take account of this issue. Indeed, I think it only right to go further and to observe that it is quite plain from the evidence that the Tribunal considered that this matter was so serious that they had little choice but to dismiss the appeals.
19. I add only that in a letter I was shown by Dr Chandra this afternoon he stated that the CSCI relied totally on what he calls "bias motivated judicial interpretive findings mentioned in the inspection reports". I see no evidence anywhere in the Tribunal report of bias or of unfairness in any way. In those circumstances, I find that this appeal must fail. The appeal is dismissed. Thank you.