England and Wales High Court (Administrative Court) Decisions

IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
SIR ROBIN AULD
ON APPEAL FROM THE CARE STANDARDS TRIBUNAL
[2006] 0741.EA

		Royal Courts of Justice Strand. London. WC2A 2LL
		04 April 2008

Sir Robin Auld:

Introduction

1. This is an appeal under section 9 of the Children Act 1999 by Mrs Folosade Bamgbala on points of law against the decision of a Care Standards Tribunal of 7^th June 2007 upholding the decision of the Commission for Social Care Inspection on 22^nd June 2006 cancelling her registration under the Care Standards Act 2000 ("the Act") as the "provider" of a care home for older people owned by her known as Sharpness Residential Care Home ("the Home"). The points of law turn on the statutory criterion or criteria for cancellation of a person's registration as a "provider" under the Act.
2. The relevant provisions of the Act are to be found, in the main, in Part II. The Home was a "care home" within section 3 and an "establishment" within section 4(8) of the Act, and, by section 5 of the Act, the Commission was the registration authority. Mrs Bamgbala had owned the Home since 1^st December 2002 and, at all material times, had been the "registered provider", that is, the person registered as "carrying on" the Home under section 11 of the Act and Regulation 7 of the Care Homes Regulations 2001 ("the Regulations"). Her professional qualification and experience for such a role were not detailed in evidence or in the Tribunal's Reasons for Decision, but she appears to have had some years experience in nursing and care and to be an intelligent and able woman.
3. From 2002 to 2004 the Commission inspected the Home about twice a year. Following an inspection in January 2004 the Commission issued five statutory requirement notices in respect of breaches of the Regulations that its inspectors had identified, and increased the frequency of their inspections. There were five in 2004, ten in 2005 and six in 2006. In May 2006 the Commission took steps towards cancellation of Mrs Bamgbala's registration as a provider, and on 22^nd June 2006, following written representations from her, notified her of its decision to cancel her registration. By then only seven out of a former maximum complement of 24 residents remained in the Home. By 1^st December 2006, some two months before the hearing by the Tribunal of the appeal in January and February 2007, all of them had left the Home and Mrs Bamgbala had closed it. And, by the time of the hearing of the appeal to this Court, Mrs Bamgbala had lost ownership of the property.
4. Mrs Bamgbala conducted her own case before the Tribunal in a hearing that took two weeks. In a comprehensive and detailed review of the evidence and representations, the Tribunal concluded, for the reasons it gave, that:

1) Mrs Bamgbala had committed breaches of the Regulations, in themselves justifying cancellation of her registration as a provider; and

2) such breaches, coupled with her refusal to accept and acknowledge them and her failure to take steps to remedy them, in addition, made her not "fit" to be a registered provider of the Home under Regulation 7(3)(a), also justifying cancellation of her registration.

The Statutory Scheme

5. The scheme of the registration provisions of the Act and Regulations is to protect the welfare, health and safety of highly vulnerable members of the community in need of and in receipt of care from establishments or agencies providing it to them. The Commission is responsible, pursuant to Part II of the Act, for registration and regulation of social care facilities, in particular of care homes and domiciliary care agencies. It has a duty, as a public body, to act fairly in the discharge of its regulatory role. Whilst it provides help and guidance when it can in the discharge of those roles, it has no duty to provide such help or guidance to individual providers.
6. The legislation requires any person carrying on - for practical purposes the owner or operator - and any person managing, an establishment or agency of a type to which the Act applies, to be registered with the Commission in respect of it. They - registered providers and registered managers - are generically referred to under the statutory scheme as "registered persons". Pursuant to section 12(3) of the Act, a registered provider may be an individual, or a body corporate or a partnership, but a registered manager must be an individual.
7. If, on receipt of an application for registration, the Commission is satisfied that all relevant statutory requirements are and will continue to be met, Section 13 of the Act provides that it must register the applicant, and, if not so satisfied, it must refuse the application. Section 13(3) and (5) respectively empower it to impose, and thereafter, to vary or remove conditions of registration, powers also given by section 21 (5), to the Tribunal.
8. Breach of any requirements imposed by the Act and/or the Regulations, or of any conditions, on registered providers and/or managers as to their conduct of the establishment or agency in respect of which they are registered may result in the Commission cancelling their registration, pursuant to section 14 of the Act. In an emergency where there is a serious risk to life, heath or well-being, the Commission can secure cancellation by application to a magistrate under section 20 of the Act. A section 14 or section 20 cancellation appeal lies to the Tribunal, a specialist body established under the legislation to hear appeals against such cancellations.
9. Each Tribunal panel hearing appeals under the Act consists of three persons, made up of a legally qualified chairman or chairwoman and two persons experienced in the field of care protection. An appeal to the Tribunal is a re-hearing; it conducts a merits appeal, after hearing all the evidence. And, by section 21 of the Act, it has a range of decision-making powers, which include confirming the cancellation or directing that it shall not have effect, and, as I have indicated, varying any condition in force in respect of the establishment or agency, or directing that it shall cease to have effect, or directing the imposition of a new condition "as it thinks fit".
10. By sections 11 and 12 of the Act, any person who "carries on" or "manages" a care home must register as such with the Commission in accordance with the procedures laid down in Part II of the Act and the Regulations. There is no definition of the meaning of the expression "carries on", save, as will be seen, that it is picked up in Regulation 2 of the Regulations as the function of a provider qualifying for registration. It is common ground that, for practical purposes, a person or body "carries on a care home if he or she or it owns or operates it as the proprietor, and, if an individual, that he may also be its manager. As to the meaning of a person who manages a care home, neither the Act nor the Regulations ventures any express definition, but a reading of both, in particular the Regulations over-all, suggests that as good a meaning as any for practical purposes is one who is in day-to-day control of the home.
11. By sections 13 and 22 of the Act, the Commission must as I have said, grant registration if satisfied that the requirements in the Regulations are being and will continue to be complied with. And, by section 14(1), the Commission may cancel a person's registration on a number of grounds, the relevant one in this case being:

. "(c)... that the establishment or agency is being, or has at any time been, carried on otherwise than in accordance with the relevant requirements;"

Section 14(3) defines "relevant requirements for this purpose as "any requirements or conditions imposed by or under" Part II - which takes in breaches of the Regulations - and "the requirements of any other enactment which appear to the registration authority to be relevant".

12. In my view, and as Mr Stephen Knafler, for Mrs Bamgbala, acknowledged in argument it was open to the Commission to cancel Mrs Bamgbala's registration as a provider if regulatory requirements were not met, even if it had been of the view she was "fit" to be the registered provider within the meaning of that word in Regulation 7(3). The structure of section 14(1) is to empower the Commission to cancel the registration on any one or more of the grounds specified in their own right, in the case of (c) breach of "the relevant requirements"; it does not require additionally that any such breach or breaches should have the consequence that the registered person is not "fit" under Regulation 7(3). As will be seen from the Regulations, looked at a whole, any such interpretation could frustrate the whole protective purpose of the legislative scheme by preventing cancellation of registration notwithstanding enduring serious breaches of the Regulations endangering the welfare, health or safety of care home residents.
13. Critically - and somewhat confusingly - to the issues raised in this appeal, Regulation 2 of the Regulations, whilst distinguishing between the role of a "registered provider" and that of a registered manager" for the purposes of sections 11 and 12, provides that either may be described for the purpose of the Act as a "registered person":

"2.... 'registered manager', in relation to a care home, means a person who is registered under Part II of the Act as the manager of the care home; 'registered person' in relation to a care home, means any person who is the registered provider or registered manager in respect of the care home; 'registered provider', in relation to a care home, means a person who is registered under Part II of the Act as a person carrying on the care home;..."

14. Regulations 7 and 9 provide the respective criteria for fitness of a registered provider and of a registered manager; Regulation 8 requires a registered provider, who is not "a fit person" to manage a care home, to appoint a manager to do so; and Regulation 10 sets out general requirements of care, competence and skill applicable both to registered providers and registered managers as "registered persons", breach of any of which may go to the exercise by the Commission under section 14(1)(c) of the Act of its power of cancellation. The four Regulations, which should be read together as a part composite of the scheme of protection to residents of care homes, provide as follows:

" 7 Fitness of registered provider

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

(2) A person is not fit to carry on a care home unless the person -(a) Is an individual who carries on the care home - (i) otherwise than in partnership with others, and he satisfies the requirements in paragraph (3) ...

(3) The requirements are that -

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

(b)he is physically and mentally fit to carry on the care home;

(c)full and satisfactory information is available in relation to him in respect of the following matters -

(i) the matters specified in paragraphs 1 to 5 (and 7) of Schedule 2;...." (namely his identity, criminal record, if any, previous employment(s) and qualifications)

8 Appointment of manager

(1) The registered provider shall appoint an individual to manage the care home where -

(a)there is no registered manager in respect of the care home; and

(b)the registered provider -

(i) is an organisation or partnership;

(ii) is not a fit person to manage a care home; or

(ill) is not, or does not intend to be, in full-time day to day charge of the care home.

(2) Where the registered provider appoints a person to manage the care home he shall forthwith give notice to the Commission of-

(a)the name of the person so appointed; and

(b)the date on which the appointment is to take effect."

9 Fitness of a registered manager

(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; and

(c)full and satisfactory information is available in relation to him in respect of the following matters –

(ii) the matters specified in paragraphs 1 to 5 (and 7) of Schedule 2;...." (namely his identity, criminal record, if any, previous employment(s) and qualifications)

10 Registered person: general requirements

(1) The registered provider and the registered manager shall, having regard to the size of the care home, the statement of purpose, and the number and needs of the service users, carry on or manage the care home (as the case may be) with sufficient care, competence and skill.

(2) If the registered provider is -

(a)an individual, he shall undertake ... from time to time such training as is appropriate to ensure that he has theexperience and skills necessary for carrying on the care home.

(3) The registered manager shall undertake from time to time such training as is appropriate to ensure that he has the experience and skills necessary for managing the care home."

15. Parts III - VI of the Regulations contain many other Regulations setting out detailed requirements designed to protect the welfare, health and safety of care home residents, breach of which by "the registered person", that is, the registered provider and/or the registered manager, also may go to the exercise by the Commission under section 14(1)(c) of the Act of its power of cancellation of their respective registrations. Notable among those other Regulations is Regulation 12, the first in Part III, which, under the heading "Health and welfare of service users", imposes on the registered provider, as well as the registered manager if there is one, the broadly expressed requirement to ensure that the care home is conducted so as to provide properly for the health and welfare, and, where appropriate, treatment education and supervision of its residents.
16. Returning to Regulations 7-10, the combined effect of them, though broadly clear, is untidy and not easy at first sight to follow, partly because they represent only part of the overall scheme for which section 14(1) of the Act is the trigger, the remainder being found in the requirements contained in Parts III - VI of the Regulations. The four Regulations should be read together purposively, and applied proportionately to the circumstances of each case, so as to achieve the object of the legislation, namely to ensure the protection of vulnerable people in care. Their starting point is to distinguish between the criteria of fitness required respectively of an individual provider and of a manager, if there is one, of a care home. Where a care home has both and the provider is an individual, his fitness for that task, namely of "carrying on" the home, is set in the first instance under Regulation 7(3) by reference to his integrity, good character and physical and mental fitness for that task. If the provider has, pursuant to Regulation 8, appointed a manager, that person's fitness for his task is governed by Regulation 9, which requires, not only integrity, good character and physical and mental fitness, but also "the qualifications, skills and experience" for the task. And Regulation 10 requires from each a sufficiency of "care, competence and skill" in carrying out their respective tasks. Whether or not a provider has appointed as a manager someone fit for the job, the effect of Regulations 8 and 10, as Mr Knafler conceded in argument, is that the provider is necessarily implicated in - that is, retains responsibility for -the way in which the care home is managed. As I read the four Regulations and those that follow in Parts III - VI of the Regulations, the provider has a joint responsibility with the manager for the conduct and management of the care home, where he has appointed a person fit to manage. Where he has appointed a person who is not fit to manage, or who turns out to be unfit to do so, or he has not appointed a manager at all, he has both over-all and day-to-day responsibility for the conduct and management of the care home.
17. As to the meaning of the word "fit", whether in Regulation 7 or 9, In R (Commission Notional Care Standard Commission) v Jones [2004] EWHC 918 (Admin), at para 15, Sullivan J rightly described the prohibition in Regulation 9 of a person from managing a care home unless he meets the requirements of that Regulation - which, as can be seen, has a similar format to Regulation 7, prohibiting a person . from being a registered provider unless he complies with its terms - as providing a statutory definition of "fitness" in mandatory terms:

"... Regulation 9 does not merely provide a statutory definition of 'fitness' for the purposes of the Act, it does so in mandatory terms."

18. Whilst the criterion of fitness may be a mandatory in the sense that, by virtue of sections 13 and 22 of the Act, its presence entitles, and its absence denies, registration to an applicant for registration as provider or manager, as the case may be, it does not necessarily follow, in the case of a registered provider, that, if he remains fit in Regulation 7(3) terms, that cancellation must follow, where, say, the Commission and/or the Tribunal is satisfied, pursuant to section 13 or section 21 of the Act that any breaches of statutory requirements otherwise justifying cancellation can be overcome by the imposition of conditions.

The issues

19. The issues on this appeal are:

(1) whether the Tribunal erred in law by misunderstanding and/or misapplying the limited criteria in Regulation 7(3) of fitness for a registered provider, in particular as to integrity and good character, so as to equate them with the broader criteria for a registered manager under Regulation 9(2)(b), including qualifications, skills and competence to manage;

(2) the extent to which, in the circumstances, the Tribunal, was entitled as a matter of law, to rely on breaches by Mrs Bamgbala of relevant requirements in the Regulations for the purpose of section 14(1) of the Act as justification for cancellation in the absence of any proper or reasoned finding of her unfitness as a registered provider under Regulation 7(3);

(3) whether cancellation of Mrs Bamgbala's registration as a provider was, in any event, disproportionate and not in accord with the purposes of the legislation, having regard to its power to continue the registration and to couple with it appropriate conditions under section 21 of the Act as to management of the Home; and

(4) whether, in any event the Tribunal has adequately reasoned its decision.

Submissions

20. The general thrust of his Mr Knafler's argument was that unfitness, whether as a provider or a manager, is the primary route under the legislation to cancellation of registration and that the different criteria for fitness in Regulations 7 and 9 indicate that breaches of requirements in the Regulations may justify the conclusion that a person is unfit to be a manager, but not necessarily that he is unfit to be a provider, In so arguing, he drew attention to the provision in Regulation 8(1)(b)(ii) of the Regulations requiring the registered provider of a care home who is not a fit to manage it to appoint one who is. He argued, in addition, that, on a proper construction of the Act and the Regulations, the power to cancel a person's registration as a provider, or as a manager, should generally only be exercised where the breaches of the 'relevant requirements', along with such other relevant circumstances as may apply in a particular case, lead the Commission to conclude that the person concerned no longer satisfies the fundamental requirements of being "fit" to be so registered. He suggested that the Regulations in Parts III - VI of the Regulations, though imposing important requirements on providers and managers alike, are not "core" or "essential" requirements, save if and to the extent that they bear on the question of his fitness as a provider or a manager.
21. Accordingly, Mr Knafler criticised, as Wednesbury irrational and as inadequate reasoning:

1) the Tribunal's failure, as he characterised it, to distinguish between the limited criteria of fitness in Regulation 7(3) on a provider in "carry(ing) on" a care home with the broader criteria of fitness to manage a care home in Regulation 9(2)(b), and to consider and apply only the Regulation 7(3) criteria to Mrs Bamgbala;

2) the Tribunal's reliance, in the circumstances, on breaches of the requirements in Regulation 8, as to appointment of a manager, and in a number of other Regulations as a free-standing justification -that is, independently of unfitness within Regulation 7(3) - for cancellation, none of which requirements, he said, gives any guidance as to what may or should be the consequence of breach; and

3) the Tribunal's failure to consider, as an alternative to cancellation of Mrs Bamgbala's registration as a provider, exercising its discretion under section 21 of the Act to impose as a condition of its continuance the employment of a fit manager pursuant to Regulation 8(l)(b)(ii) or (iii), a matter which, he submitted the Tribunal should have considered of its own accord, since it went to the proportionality of cancellation where, as is the case, Mrs Bamgbala fulfilled the criteria of integrity etc for fitness in Regulation 7(3).

22. Mr Michael Curtis, on behalf of the Commission, submitted that the requirement of unfitness to be a provider or manager as defined in Regulations 7 and 9 respectively is not the only criterion by reference to which section 14(1) of the Act empowers the Commission to cancel a registration. It may do so under section 14(1)(c) - which he described as "the beginning and end of this case" - for failure to comply with "relevant requirements", including any requirements or conditions imposed by or under Part II of the Act, in particular of the Regulations. One of those requirements is that of "fitness" as expressly provided in Regulations 7 and 9, and others are in Regulation 8 of failure to appoint a manager in the event of the provider's unfitness to fulfil that role, and in Regulation 10, imposing general requirements on the registered provider and, if there is one, the registered manager of care, competence and skill. He also drew attention to the many other provisions in Parts III - VI of the Regulations imposing on registered providers and managers alike important requirements for safeguarding the health, safety and welfare and welfare of care home residents, breach of which, though not necessarily signalling "unfitness", may nevertheless empower the Commission in its discretion, to exercise its power of cancellation under section 14(1).
23. Mr Curtis submitted in short that the test for the Commission and the Tribunal was whether Mrs Bamghala was in breach of any "relevant requirements" as defined in section 14(3) and, if so, whether the Tribunal was entitled to rely on them to conclude that she was in such breach of them under section 14(1) as to merit cancellation of her registration.

The legal test and the Tribunal's approach to it

24. As I have indicated in paragraph 12 of this judgment, my view is that Mr Curtis's interpretation of the Act and Regulations on the role of unfitness as a route to cancellation is correct. Lack of fitness to carry on a care home or to manage it, as the case may be, was a sufficient, but not a necessary or the only ground for cancellation in the circumstances of this case. It was enough for the Tribunal to consider on the evidence before it whether Mrs Bamgbala, as a registered person, was in breach of relevant requirements, such as those: in Regulation 8 as to employment of a manager, who, by necessary implication, should be fit for that role; in Regulation 10, of failure as a registered person to "carry on or manage the care home (as the case may be)" with "sufficient care, competence and skill"; and in other of the Regulations in Parts III - VI imposing requirements on her as "registered person". It then fell to the Tribunal to consider whether any such breaches it found to have been established were, individually or collectively, sufficiently serious to require cancellation, without, in every instance, going on to determine whether such breaches amounted to Regulation 7(3) unfitness. That is clearly the course the Tribunal took after having heard and considered all the evidence and arguments put before it.
25. The Tribunal, in paragraphs 7.3 to 7.50 of its Reasons for Decision, considered each of the breaches of relevant requirements alleged against Mrs Bamgbala, except for those under Regulation 7, of fitness as registered provider, and under Regulation 10, of care, competence and skill required of a registered person. Having found a majority in number and importance of the alleged breaches to have been evidentially established, the Tribunal then, in paragraphs 7.51 - to 7.65, considered:

1) whether those breaches were sufficiently serious to justify cancellation of her registration as a provider of the Home; and

2) whether she was also in breach of Regulation 7 so as to be unfit for registration as a provider, and of Regulation 10, for lack of care, competence and skill as a registered provider in the absence of a manager.

As to Regulation 7, the Tribunal concluded, in paragraph 7.64 of the decision, that her unfitness lay in her refusal before and at the hearing to accept and acknowledge the breaches and in her failure to remedy them. As to Regulation 10, the Tribunal concluded that, in the light of certain of the breaches it had found - which it identified at paragraphs 7.51, 7.53, 7.58, 7.61, 7.63 and 7.64,- she was not "a fit and proper person to be a registered provider of a care home", by which, it seems to me, it must have had in mind that she lacked the sufficiency of care, competence and skill required of her by that Regulation.

26. Having identified the legal task set by the legislative regime for the Tribunal and how it dealt with it, I should now examine Mrs Bambgala's complaints of irrationality and lack of adequate reasoning for its conclusions arising from its evidential findings and in respect of its decision to uphold the Commission's cancellation of her registration.

The Tribunal's findings in respect of the alleged breaches

27. The Tribunal heard evidence going to 13 alleged breaches of the regulatory requirements, grouped in the main under each requirement. I shall summarise the nature of each by reference to the Tribunal's rehearsal of the evidence relevant to and its findings on it. I should note, by way of preface, that the Tribunal's examination of the evidence was thorough and demonstrably even-handed, as Mr Knafler acknowledged in his submissions. As I have said, it found a majority, but not all, of the alleged breaches proved; and, in doing so, it made proper allowances where necessary for difficulties faced by Mrs Bamgbala in the running of the Home. I should also note that there was no - and, in the circumstances, could not be as a matter of law - any substantial challenge by her to the Tribunal's findings of breaches and value judgments as to their seriousness taken singly or in the aggregate.
28. The Tribunal found eight of the alleged breaches to have been established, three not established, and expressed no conclusion on two seemingly because it regarded them as of little importance in the context of the case as a whole. First, I deal briefly with the eight established breaches, each of a Regulation or Regulations imposing requirements on her as a registered provider.

Breach 1 -Regulation 8(l)(a), (b) (ii) and (Hi) - failure to appoint a suitable manager

29. The issue, as the Tribunal properly identified in paragraph 5 of its Decision, was whether Mrs Bamgbala, as the registered provider and, in the absence of a registered manager, had appointed a suitable person to manage the Home when she was not fit, in the sense of not having the qualifications, skill and experience necessary to manage it and/or when she was not engaged in the day-to-day management of the Home. The Tribunal heard much evidence on behalf of the Commission and from and on behalf of Mrs Bamgbala on this issue, which it has detailed respectively in paragraphs 5.2-32 and 6 of its Decision. Its findings on that evidence, which are set out in paragraphs 7.3-13 and 7.55, were that she was in breach of the requirements of Article 8 because she had attempted, but failed, to appoint a suitable manager in circumstances in which she herself was not fit to manage the Home. The Tribunal summarised its conclusions on this issue in the following terms in paragraph 7.4, 7.12 , 7.53 and 7.55 of its Decision:

"7.4 Although Mrs Bamgbala disputed throughout the hearing that she was anything other than in control at the Home, we looked objectively at the evidence and found that she had since the early part of 2003 been seeking to appoint a manager at the least to assist in the running of the Home, if not to take over the management from her."

"7.12 In our view, the attempt to find a suitable manager for the Home may have been an unspoken acknowledgement of the difficulties Mrs Bamgbala found with managing the administration and record keeping. We noted her evidence about the Home being her dream and her lifelong ambition and we accept that that may be true. If that is the case, then her interest is in the caring element rather than in the administration, otherwise she would have made a greater effort to put right the identified areas of concern to the Commission."

"7.53 Unfortunately, she encountered regular and significant problems with the administration of the paperwork within the Home. Although she may have disagreed with ... (one of the Commission's inspector's) interpretation of the documents and . standards, she was unable or unwilling over a significant period of time to put right those issues brought to her attention and to maintain those standards if they were attained."

"7.55 .... we believe that Mrs Bamgbala was aware of her own limitations and did try to appoint a manager to assist her in the running of the Home. She was unsuccessful in her attempts, and at the same time, was unsuccessful in putting right those issues, which caused concern to the inspectors."

30. As Mr Curtis submitted, the failure of a registered provider, who is not fit to manage a home, to appoint a suitable manager is a serious breach by the provider of Regulation 8, since it deprives care home residents of the benefit and protection of living in a suitably managed home. A further serious effect of this failure was that it contributed to Mrs Bamgbala's failure to deal properly with the breaches of the Regulations brought to her attention by the Commission's inspectors over the years, as the Tribunal observed in paragraphs 7.53 and 7.55.

Breach 2 - Regulation 12(4)(a) - failure to make arrangements to respect privacy and dignity of those being cared for

31. The issue was whether Mrs Bamgbala as a registered provider, in the absence of a registered manager, made suitable arrangements to ensure that the Home was conducted in a manner that respected the privacy and dignity of its residents. The Tribunal, having summarised in paragraphs 5.33 - 5. 44 and 6 the evidence from the Commission and from and on behalf of Mrs Bamgbala, found, at paragraphs 7.14 -7.21, some of the factual allegations established and some not. Of those that it found established, it expressed the view, in paragraph 7.15, that some did not amount to breaches of Regulation 12, but went to the issue, which it described, clearly with Regulation 10 in mind, as whether she was "a fit and proper person" to manage the Home. Other allegations, which it found established under this heading, it considered, in paragraph 7.21 to be significant breaches of the Regulation 12, namely the bathing of one of the elderly residents in the presence of her granddaughter and the closure of the Home in late November 2006 with only a week's notice to the remaining residents.

Breach 3 - Regulation 13(2) - failure to make arrangements for the recording of the control of medicines

32. The Tribunal summarised in great detail in paragraphs 5.45 - 5. 74 and 6 the evidence from the Commission and from and on behalf of Mrs Bamgbala, and, in paragraphs 7, 22 - 27, found the breaches to have been established. In so finding, the Tribunal indicated, in paragraph 7.22, that it regarded the management of medicines to be "a very important issue", and underlined that comment, in paragraphs 7.24 and 7. 27 with the following observations:

" 7.24 The evidence presented over a significant period showed that the Home was sloppy in its administration of medicines. Despite ... five pharmacist visits and ... advice offered.....a decent system to ensure the safe administration of medicine to service users had not been achieved at the Home. Given Mrs Bamgbala's background in nursing, we were disappointed that she had not been able to resolve the issue quickly and efficiently, reflecting her professional training in the field."

"7.27 So many identified concerns in relation to medication could not be allowed to continue unchecked and it is our conclusion this was a very significant and continuing breach, and a major concern relating to the way in which the Home was run."

33. As Mr Curtis observed, in his submissions, this was a very serious finding against a registered provider of a care home. Given the Tribunal's careful rehearsal and findings on the evidence against and for Mrs Bamgbala, there can be no misunderstanding or criticism of its concern that this was a serious breach - one of failure to establish a proper system to ensure the safe administration of medicines at the Home, thereby endangering the health of those being cared for there,

Breach 4 - Regulation 17(2) and Schedule 4, para 9(a) - failure to maintain complete records of the monies of those cared for in the Home.

34. The Tribunal summarised the evidence for the Commission and of and on behalf of, Mrs Bamgbala in paragraphs 5.92 - 5.117 and 6. It reveals a troubling pattern of very casual and unsystematic dealing with, and non-recording of, the personal monies of some of those cared for in the Home. In one instance, there was an unexplained temporary disappearance of some £900 of a resident's money, albeit falling short of evidence of dishonesty on Mrs Bamgbala's part, as the Tribunal found, in paragraphs 7.35 - 7.43. In concluding that she was in breach of the Regulation, the Tribunal observed at paragraph 7.43:

"Even if Mrs Bamgbala was not dishonest, she did not have in place sufficiently robust systems to protect the service users or to protect herself from allegations of misconduct. It is a clear example of an area where the Regulation benefits both the service provider and the service user and she failed to appreciate its importance."

35. This too was a serious breach, one of bad stewardship in the care of vulnerable people in the Home in the failure to keep proper records of their personal monies held by the Home, including the temporary disappearance of the £900. It is to be considered alongside the next breach - of Regulation 37 - one of failure to notify the Commission of the loss of money of one of the residents of the Home and of other serious incidents.

Breach 5 - Regulation 37(l)(e)(2) - failure timeously to notify the Commission of events adverse to well-being or safety of those in the Home

36. This Regulation imposes a requirement to give notice to the Commission without delay of the occurrence of any event in the care home that adversely affects the well-being or safety of any person cared for in the home. The Tribunal summarised the evidence from the Commission at paragraphs 5.120 - 5.122, to the effect that Mrs Bamgbala had failed to notify it of the disappearance of the £900 and of a serious fall suffered by one of the residents. The Tribunal referred, in paragraph 5.122, to the evidence of Mrs Bamgbala, effectively confessing and avoiding both breaches with the explanations that she had eventually notified the Commission about the fall and had not notified it of the missing £900 because it had been subsequently found. The Tribunal in paragraph 7.50, unsurprisingly, found both breaches proved.

37. Again, as Mr Curtis observed, these were serious breaches, since they were of such a nature as to inhibit the Commission in the performance of its statutory role in the protection of vulnerable people in care.

Breaches 6 - 8 - Regulations 17, 18 and 19 - failure to follow proper staff recruitment practices and to provide and record adequate staff training

37. The Commission alleged that Mrs Bamgbala had failed to provide the necessary supervision of foreign staff - who had not been checked on arrival in this country - and to provide proper staff training. The Tribunal summarised the evidence for the Commission and of, and on behalf of, Mrs Bamgbala at paragraphs 5.147 - 5.149 and 6, and concluded, at paragraphs 7.47 - 7.49, that she was in breach of all three Regulations in these respects, observing:

"7.48 ... We were not satisfied on the evidence that the necessary supervision was in place at the Home and (sic) was not regarded as a priority for Mrs Bamgbala.

7.49 Concerns were also raised about the lack of staff training and the failure to keep proper records of the training given. Both of these allegations we found to be proved, and we concluded that the lack of training was a significant issue, particularly in relation to both medication and administration."

38. Again, these were all serious failures in that they inevitably placed vulnerable persons in the care of the Home at risk.
39. There were then four alleged breaches that the Tribunal found unproved or of little significance, either for want of satisfactory evidence or because it was satisfied that Mrs Bamgbala had remedied them, namely breaches of: Regulation 15(1) and (2)(b) -failure to complete and keep under review care service plans; Regulation 16(2)(c) - failure to provide adequate furnishing, including floor coverings; Regulation 23(d) and (p) - failure to ensure that the Home was clean, reasonably decorated and heated; and Regulation 23(4)(b)(c) and (e) - failure to take proper precautions against fire.
40. Finally, there were the two allegations of breach in respect of which the Tribunal made no finding: Regulation 14 - failure to carry out adequate pre-assessment of ail residents in the Home; and Regulation 22 - failure to keep proper records of complaints.
41. Given those findings of the Tribunal of serious breaches by Mrs Bamgbala of the Regulations, in particular those of Regulation 8 in her persistent failure over some years to appoint a manager for the Home when she was not fit to undertake that role, and of Regulation 10 for lack of care, competence and skill as a registered provider in the absence of a manager, it remained for it to consider:

1) whether the breaches of requirements, other than that of fitness under Regulation 7(3), individually or cumulatively, justified the cancellation of her registration; and/or

2) whether, under Regulation 7(3), the Commission had established that she was "unfit", as registered provider to carry on the Home so as to justify cancellation on that account.

42. The Tribunal's approach was, first, to conclude that the breaches of requirements, other than that of "fitness" in Regulation 7(3), in themselves merited cancellation, and then that Mrs Bamgbala was also unfit within the meaning of that term in Regulation 7(3), in failing to appreciate or to acknowledge her shortcomings as a registered provider in the Regulation 10 sense and to remedy them. I extract the following passages from paragraph 7 of the Tribunal's Reasons to illustrate how it went about it:

"7.2 We considered the evidence first of all in respect of the allegations upheld in the Notice of Cancellation. We considered the evidence presented in support of the alleged breaches and then considered the seriousness of the allegations overall, to decide whether the allegations we found proved, justified the cancellation of ... (Mrs Bamgbala's) registration,

7.3 We considered the allegation that Mrs Bamgbala was not in day to day management of the Home and had failed to appoint a suitable manager to manage when she was not a fit person to do so.

"7.51 The final issue which we considered was the allegation that Mrs Bamgbala was not a fit and proper person to provide a care home....

7.63 ... (Mrs Bamgbala) is clearly a very able woman, and in reaching the decision that she is not currently a fit and proper person to be the registered provider of a care home, this conclusion is based on the specific issues raised in this case.

"7.64 We consider she is not fit because she has refused to accept and acknowledge the breaches identified and has failed to take steps to remedy them. The important breaches were the administration of service users' monies, the medication and general management of the Home, She has shown herself to be incapable of administering records and paperwork and maintaining good record keeping, but this is an issue that might be resolved appropriate training and good examples and experience. She has shown a lack of sensitivity for the feelings of others such as the inspectors and Mrs Reynolds (a member of the Home's staff), who we have found, she subjected to verbal abuse. She has shown weakness in that she has been incapable of addressing serious conduct issues within her own staff, .... She also showed a total lack of awareness of the possible implications of the absence of systems to ensure the smooth running of the Home and most of all she failed to understand the importance endeavouring to comply with the Regulations to ensure the service users' welfare.

7.65 Mrs Bamgbala gave evidence that she cherished and respected older people: unfortunately that, on its own is not enough. She must also be capable of setting up and maintaining appropriate systems to ensure that the regulations are me and to evidence the ongoing commitment to maintaining those standards. ... The purpose of Regulations and National Minimum Standards is to ensure that service users and their families ... can expect to find both in the home of their choice,"

Conclusions

43. In my view and for the reasons I have given in paragraphs 12, 24 and 25 of this judgment, the Tribunal properly identified its task in law and the issues of law and fact giving rise to its conclusions. Its primary task was to determine whether, pursuant to section 14(1) and (3) of the Act, the Commission had established breaches of the regulatory requirements of such seriousness as to require cancellation of Mrs Bamgbala's registration as a provider of the Home.
44. In determining whether such breaches required cancellation, the Tribunal was not required to calibrate or moderate them by reference to whether they led to the conclusion that she was unfit within the limited meaning of that condition in Regulation 7(3), as Mr Knafler, in a qualified submission on this point suggested. I say "qualified" because, although he maintained that the Tribunal wrongly "conflated" fitness and conduct, he acknowledged that they are "analytically linked" and that it was critical to, but not determinative of, the question whether Mrs Bamgbala satisfied the "core" requirement of fitness in Regulation 7(3). He thus accepted - as he had to - that it was open to the Commission to cancel if other requirements were not met even if Mrs Bamgbala was fit within Regulation 7(3). The Tribunal's decision is not to be read like a statute. It is plain from the way in which it constructed its Reasons for its Decision that it was alive to the distinction between the test of fitness and breaches of the Regulations. Each regulatory requirement has a standing of its own, and that of fitness in Regulation 7(3) is just one of them, albeit an important one when it is in play. In short, as Mr Curtis put it, unfitness within the meaning of Regulation 7(3) is a sufficient, but not a necessary or the only ground for cancellation under section 14(1)c) of the Act.
45. It follows that I find no error of law in the Tribunal's approach in examining first the range of breaches of regulatory requirements in order to determine whether, considered individually or collectively, it could, without more, exercise its section 14(1) power of cancellation. There is no reported authority to the contrary, and the Tribunal, in proceeding in that way, applied the plain words of section 14(1)(c).
46. In my view, it is also manifest from the Tribunal's careful consideration of and findings on the evidence before it that it had abundant evidence of serious breaches by Mrs Bamgbala - findings not challengeable or challenged by Mr Knafler on this appeal - and that such findings, without more, would have justified it cancelling her registration as a registered provider. Indeed, so overwhelming was the evidence leading to that conclusion, that, in my view, a contrary decision by the Tribunal would have rendered it vulnerable to challenge by the Commission on the ground of irrationality.
47. In the circumstances, the Tribunal did not need to consider the matter in terms of Regulation 7(3) fitness, namely as to her integrity and good character, as it appears to have done in paragraph 7.64 of its Reasons, seemingly and permissibly concluding that her insistent denial before it of the various breaches alleged and her longstanding failure to remedy them, demonstrated a lack of integrity. Nor did the Tribunal need to consider Regulation 10 for this purpose, as it clearly did in paragraph 7.63 of its Reasons. However, given the closeness of meaning between that Regulation's requirements of sufficiency of care, competence and skill from Mrs Bamgbala and the meaning of fitness in every-day language, it was an understandable and, in the circumstances, a legitimate recourse to that provision.
48. It follows that, in my view, the Tribunal did not err in law in its interpretation and application to the circumstances of this case of the requirement of fitness in Regulation 7(3), However, even if it did, that could not vitiate its central conclusion that the serious and longstanding breaches by Mrs Bamgbala of the regulatory requirements, coupled with her clear inability or unwillingness to acknowledge or remedy them, required cancellation pursuant to the powers given to it by section 14(1) of the Act,
49. As to Mr Knafler's third main submission, that the Tribunal should have considered of its own accord whether, despite the serious breaches of regulatory requirements, it should continue Mrs Bamgbala's registration and impose conditions, it is true that the Tribunal does not appear to have considered such an option, Given the history of this matter and Mrs Bamgbala's failure to take the point before the Tribunal, it is easy to see why it did not do so. Despite much attention, assistance and urging from the Commission's Inspectorate over a period of some years, Mrs Bamgbala had simply not coped in the running of the Home. She had either failed to grasp or refused to acknowledge right up to the hearing before the Tribunal the many concerns about her shortcomings in the conduct of the Home. In the light of that history and her attitude to it, what conditions could it have considered other than of the most general and exhortatory kind to comply with the regulatory requirements, requirements that experience had shown she could not or would not fulfil?
50. In addition, by the time of the hearing before the Tribunal all the residents had left or had been removed and Mrs Bamgbala had closed the Home; there was no "establishment" in respect of which it could have imposed conditions under its powers in section 21(5) of the Act. This case is far removed in its facts from that which Scott Baker J, as he then was, had to consider in Secretary of State for Health v Prospects Care Services Ltd and Hyland C/4237/2000 Admin Ct, and in which the process of cancellation was found to have been conducted in a hasty and otherwise most unsatisfactory manner. In the circumstances, I can see no disproportionality or other error of law in the Tribunal not considering of its own accord the imposition of condition or, if did consider it, not imposing any.
51. It also follows, for the reasons I have given, that, in my view, the Tribunal properly identified its task in law and the issues of law and fact it had to determine and adequately explained its reasons for its findings and conclusion to uphold the Commission's cancellation of Mrs Bamgbala's registration. Its thorough and careful analysis - in the face of a remarkably complex statutory scheme - met "the reasons test", as variously expressed by Mackay J in this context in R(W) v National Care Standards Commission [2003] EWHC 621 (Admin), at para 36, and by the House of Lords in the planning context in South Bucks DC v Porter (No. 2) [2003] UKHL 33, [2004] 1 WLR 1953, at para 36. In short, as Sullivan J put it in R (National Care Standards Commission) v Jones, at para 18, the Tribunal asked itself the correct questions and provided intelligible answers to them.
52. Accordingly, I dismiss the appeal.