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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hallam, Re Petition for Judicial Review [2005] ScotCS CSOH_95 (15 July 2005)
URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_95.html
Cite as: 2005 SCLR 982, [2005] ScotCS CSOH_95, [2005] CSOH 95
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Hallam, Re Petition for Judicial Review [2005] ScotCS CSOH_95 (15 July 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 95 |
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P907/04
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OPINION OF M G THOMSON, QC (Sitting as a Temporary Judge) in the petition of MRS IRIS HALLAM Petitioner; for Judicial Review of decisions by the Scottish Commission for the Regulation of Care otherwise known as The Care Commission in relation to complaints against Hempriggs House, Wick, Caithness and the Petitioner's status as a fit person to act as Manager of Hempriggs House, Wick, Caithness
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Petitioner: Connal, QC, Robert McDonald, Solicitor Advocate; Shepherd & Wedderburn, WS
Respondent: A J Carmichael; Simpson & Marwick
15 July 2005
INTRODUCTION
[1] The petitioner was the manager of Hempriggs House, Wick, a residential home for the elderly ("the Care Home"). She is a Registered General Nurse. She was employed by Mr Forrest-Jones, who was the proprietor of the Care Home. He and Mrs Forrest-Jones were registered by the Highland Council in terms of the Social Work (Scotland) Act 1968 as the service providers at the Care Home. [2] The respondent is the Scottish Commission for the Regulation of Care, otherwise known as the Care Commission, which was established by the Regulation of Care (Scotland) Act 2001 ("the Act"). Section 6 of the Act provides inter alia:"(1) The Commission shall establish a procedure by which a person, or someone acting on a person's behalf, may make complaints (or other representations) in relation to the provision to the person of a care service or about the provision of a care service generally."
In fulfilment of this requirement the respondent has produced the "Care Commission Complaints Procedure ("the Complaints Procedure"). The Complaints Procedure sets out various key principles including:
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It is explained that complainants do not have to pursue a complaint through the local service provider's own complaints procedure before lodging a complaint with the respondent, although the respondent would encourage individuals, in the first instance, to pursue a complaint through the local service provider's complaints procedure wherever possible.
[3] The Complaints Procedure explains that complaints may be investigated in a number of ways including inter alia:|
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Under the heading "Investigating a Complaint" the Complaints Procedure provides for a complainant to be interviewed and for the content of the interview including the listing of each complaint to be accurately recorded. That record and all notes of interviews are to be treated as confidential. The Complaints Procedure then provides:
"The complainant and any person complained against (including the service provider) should be given a reasonable opportunity to express their views on the subject matter of the complaint and to respond to allegations made against them. The precise timing of seeking such response, in the course of the investigation, is a matter for the discretion of the investigating officer."
"A Final Decision will be prepared by the Complaints Resolution Officer for issue by the Regional Manager which takes account of the Proposed Resolution and the Complainant's Statement [the complainant's acceptance or otherwise of the Proposed Resolution], where applicable, together with any subsequent discussions between the Care Commission and the complainant. The Final Decision will be communicated to the complainant and the party complained against. Where a complaint has been upheld or partly upheld, an Action Plan and timetable for implementation will form part of the Final Decision.
The complainant will be advised at this time of their right to seek a review if they are not satisfied with the Final Decision...."
The party complained against is given no right to seek a review.
[5] Sections 7-9 of the Act provide for registration of care services by the respondent. Section 10 empowers the respondent to serve an "improvement notice" on the provider of a service registered under the Act and section 12 empowers the respondent to cancel the registration of the care service after the expiry of the period specified in an improvement notice. Section 13 enables the respondent to give notice of its intention to vary or remove or to impose a condition on the registration of a care service. Section 16 entitles the recipient of a condition notice to make written representations to the respondent, concerning the latter's proposal, and section 17(3) requires the respondent if it decides to implement a proposal in relation to which it has given a person a condition notice, to give that person notice of the decision. Section 20 of the Act gives the person who has received notice under section 17(3) of a decision to implement a proposal, a right of appeal to the sheriff against that decision. [6] Section 29 of the Act empowers the Scottish Ministers to make Regulations in relation to care services generally and in particular "as to the persons who are fit to provide, or act as manager in relation to, a care service;". The Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002 ("the Regulations") have been made under the powers conferred by section 29. Regulations 6 and 7 are concerned with the fitness of providers and managers respectively. "A person who is not of integrity and good character" or "a person who does not have the skills, knowledge and experience necessary for managing the care service" would not be a fit person to act as a manager in relation to a care service. The respondent has produced guidance, "Guidance to Care Providers", to help service providers to apply the "fit person" test under the Regulations. [7] In March 2003 Mr Forrest-Jones conveyed the Care Home to City Properties Direct Limited ("the Company") of which he was a director. At about that time he, on behalf of the Company, agreed with the petitioner that she would become the service provider of the care home and that from 1 April 2003 she would lease the Care Home from the Company. The parties reached agreement in principle on the terms of a five year lease of the Care Home. By January 2004 the parties were still negotiating the terms of the draft lease but had not yet entered into a formal lease. On 5 June 2003 the petitioner applied to the respondent to be registered as the care provider of the Care Home. No decision on that application was issued. [8] On 12 January 2004 the respondent wrote to the petitioner ("the decision letter") in the following terms:"Dear Mrs Hallam
Complaint against Hempriggs House (Care Home)
I now enclose our response to a complaint regarding the above. I list below the substance of the complaint, the method by which the concerns were investigated, our conclusion and expected action.
1. Substance of complaint:
Denial of medical treatment to a resident.
Forcible detention of resident.
Mrs Hallam's 'bullying' style of management.
2. Method of investigation:
Ali Dallas and Keith Philips Care Commission Team Leaders
investigated the complaint by interviewing Dr Coull, complainant, Mrs Hallam, complained against and eleven members of the care staff of Hempriggs House Care Home.
The care staff were interviewed in Hempriggs House and those that requested it were interviewed at a neutral venue.
The Police were also involved in some of the investigations following some of the allegations. The Police found no evidence of the allegation regarding assault, at the time of writing they were still investigating the allegations regarding the service users finances.
3. Conclusion - complaint upheld/not upheld/partially upheld
Denial of medical treatment
This element of the complaint is upheld.
Forcible detention of resident
This element of the complaint is not upheld.
Mrs Hallam's 'bullying' style of management
This element of the complaint is upheld.
4. Expected action and timescale for implementation
The consistency of the statements made by the care workers interviewed would indicate that there are serious issues surrounding the management of Hempriggs House. The number of incidents that the staff raised brings Mrs Hallam's 'Fit Person' status into question.
The findings will be brought to the attention of the proprietor who will be required to ensure that the manager of the service is a fit person in terms of the Regulation of Care (Scotland) Act 2001 and the subordinate legislation in Statutory Instrument 2002 No. 114. The Regulation (Requirements as to Care Services) (Scotland) Regulations 2002 Fitness of managers 7-(1)(2)(d) as a condition of the services registration.
The Care Commission Complaints Procedure provides the complainant with the right to appeal the conclusion of the Care Commission. If the complainant chooses to exercise their right of appeal we will advise you. Should you wish to discuss any aspect of this letter, please do not hesitate to contact me.
Yours sincerely
pp. Chris Stadames
Regional Manager"
"(a) declarator that the following decisions of the Respondents intimated to the petitioner on 12 January 2004 were unlawful:-
(i) to uphold a complaint against the Care Home that there had been a denial of medical treatment to a resident.
(ii) to uphold the complaint that the Petitioner had adopted a bullying style of management.
(iii) that the Petitioner's status as a 'Fit Person' had been brought into question.
(iv) that their findings be brought to the attention of the proprietor who would be required to ensure that the manager of the Care Home was a fit person in terms of the Act and the Regulations.
(b) reduction of the said decisions intimated to the Petitioner on 12 January 2004."
(c) Damages of £150,000.
"5. In July 2004 [sic] Mr Don Mackay ('Mr Mackay') who is employed by the Respondents as an inspector called on the Petitioner at the Care Home. He advised the Petitioner that there had been a complaint of bullying made against the Petitioner. He did not give details of the person who had made the complaint nor did he give any specific details of the nature of the alleged bullying. Neither Mr Mackay nor the Respondents gave the Petitioner any written notification of the complaint against her.
6. In or about August 2003 the Petitioner was asked by telephone to attend a meeting with Mr Mackay and Mr Forrest-Jones. The Petitioner was not given any written notification of the nature or purpose of the meeting. At the meeting Mr Mackay asked the Petitioner questions about what she considered to be appropriate management of staff. Mr Mackay referred in general terms to allegations of bullying against the Petitioner but did not specify the nature of the alleged bullying. The Petitioner was also asked questions about a resident who has been found in bed with blood on the sheet. The Petitioner explained that she had been on holiday at the time of the alleged incident. At the end of the meeting Mr Mackay advised that there would be further investigation by the Respondents into the Care Home. In or about October or November 2003 the Respondents' Keith Philips and Ali Dallas visited the Care Home. The Petitioner did not receive any advance written notification of the nature or purpose of this visit. They asked to see the Petitioner's care plan accident sheets and financial sheets for the residents which the Petitioner made available to them. They also spoke to members of the Petitioner's staff. Around two weeks after the visit they returned to the Care Home unannounced and again asked to speak to members of the Petitioner's staff to which she agreed. Thereafter the petitioner received a letter from the Respondents dated 12 January 2004....."
"The respondents gave the petitioner reasonable and fair notice of the allegations made in relation to the provision of care at Care Home. She was given, and took, the opportunity to answer them in the course of the investigation."
"We have now been able to speak to representatives of the Care Commission in Inverness who carried out investigations regarding a complaint against your client. They have made it clear to us that they expect our client, as the Provider in terms of the Regulations, to take urgent action to address their contention that your client, Iris Hallam is not a 'fit person' in terms of the said Regulations.
Now that the Care Commission have made their position clear, our client sees no alternative but to insist that your client now vacate the premises. It appears to us, on the information available, that no lease is in existence, and therefore our client requires your client to vacate the premises no later than Friday 6 February 2004."
"the respondents at no stage told Mr Forrest-Jones that they did not consider the petitioner to be a fit person to be registered by them. .... They made no ruling in relation to the petitioner's fitness. It was thereafter a matter for Mr Forrest-Jones to make his own inquiry as to her fitness, and to take such steps as he might see fit. The petitioner's proper remedies, if any, are against Mr Forrest-Jones under employment law or the law of contract."
"in more detail than mere generalities", that "the Respondents were not entitled to make decisions based on material which had not been seen by [her]", but "the Respondents were obliged to allow [her] to present her case and to respond to any counter allegations or submissions", that they "were obliged to afford [her] a fair opportunity to correct or contradict any relevant statement prejudicial to her" and that they "were obliged to give [her] the right to hear the evidence brought against her and the right to reply to it."
In paragraph 9 of the petition she avers the details of the respondent's alleged failures to comply with the requirements of natural justice and its obligation to take its decisions in a manner which was procedurally fair. In particular, she avers that she was never given details of the allegations which had been made against her. She was made aware in general terms that an allegation of bullying had been made against her, but that it was never made clear to her whether the allegation related to patients or members of her staff. She was never given any examples of her alleged bullying behaviour for her to comment on. The allegations of assault were never fully explained to her. She was not made aware of the substance or detail of the allegations made against her, nor was she given access to any of the evidence which the respondents would take into account when reaching their decision. She avers that as she was unaware of the precise nature of the allegations against her, she was unable to refute them in detail and was unable to do anything other than make a general denial to the vague and imprecise allegations. She further avers that the Complaints Procedure, which involves showing the proposed resolution to the complainant in advance is procedurally unfair and confers "greater rights" upon the complainant than on the person complained against. For these reasons the respondent's decisions are averred to be unlawful. The petitioner further avers that for the same detailed reasons the respondent failed to allow her a full and public hearing and accordingly infringed her rights under Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms. For this reason also the respondent's decisions were unlawful. The petitioner's claim for damages is based on the profit which she would lose for the duration of the unexpired period of the lease, together with a claim in respect of stress, inconvenience and loss of reputation.
[16] In answer, the respondent avers that in carrying out the investigation and in reaching a decision in relation to the complaint against the care service, the respondent was not acting in a judicial or quasi-judicial capacity. The purpose of the Complaints Procedure was to improve the standard of care in establishments in Scotland. The respondent further draws attention to the fact that the care service was not provided by the petitioner. The respondent avers that esto the respondent had a duty to afford a hearing to the petitioner, as distinct from the person providing the care service, it fulfilled that duty. With regard to the Article 6(1) case, the respondent avers that a decision on the complaint did not represent a determination of the petitioner's civil rights and obligations. Furthermore, the petitioner was not in any event the victim of any unlawful act by the respondent. The complaint related to the provision of a care service. With regard to damages, the respondent avers, under reference to Micosta SA v Shetland Islands Council 1986 SLT 193, that insofar as the petition is based on common law, the petitioner would be entitled to receive damages only if the respondent had acted in bad faith. If the respondent had contravened Article 6(1) the losses claimed by the petitioner were not caused by a failure to afford her a fair hearing. She had a contract with Mr Forrest-Jones.SUBMISSIONS FOR PETITIONER
[17] Mr Connal, QC, recognised that there was a clear factual dispute between the parties with regards to what did or did not happen in the process of investigating the complaint which had been made by Dr Coull. Some further hearing was likely to be necessary in order to resolve those differences. In the meantime, three issues emerged from the answers: whether the petitioner had title to sue, whether Article 6 of the Convention was relevant to what had occurred and whether damages might be appropriate. [18] Mr Connal submitted that the complaint which was being investigated was directed against the petitioner as well as against the Care Home more generally. In those circumstances she was entitled to a fair hearing. That involved a fair method of determining allegations against her. Whilst she did not need to know every detail of the complaint against her, she had to have enough information to enable her to make a proper response which could be taken into account in determining whether the complaint should be upheld. Mr Connal accepted that there was considerable overlap between the common law requirements of general fairness and the requirements of Article 6. He submitted that there had been a determination of the petitioner's civil rights under Article 6. When approaching the application of Article 6, he urged a broad rather than a narrow one and submitted that the distinction between a judicial and an administrative decision was not decisive with regard to the test for the applicability of Article 6. The issue was one of substance rather than form. The context of the respondent's decision was that its ruling would have significant consequences for the petitioner's career and financial standing. He cited the decision of Lord Mackay of Drumadoon in Tehrani v United Kingdom Central Council for Nursing, Midwifery and Health Visiting, 2001 SLT 879, in support of the proposition that the test for the applicability of Article 6(1) was whether the findings of the respondent in relation to the complaint under investigation "could" lead to determination of her civil rights and obligations rather than that was what had occurred. In the present case it did not necessarily matter whether the respondent had found that the petitioner was unfit to be manager of the Care Home or not. Article 6 applied if the investigation and determination by the respondent was capable of leading to that result. I note that the report of the case at p. 879I indicates that the point had been conceded in that case, whereas it is apparent from paragraph [33] of the Opinion that the concession related to whether the petitioner was a "victim" within the meaning of section 7(7) of the Human Rights Act 1998 ("the 1998 Act") and that the question of whether the disciplinary proceedings initiated against the petitioner in that case could lead to a determination of her civil rights and obligations was still in dispute. Mr Connal also drew attention to paragraphs [42], [48] and [65] and submitted that in considering whether Article 6 applied, it was necessary to have regard to the practical effect of the decision under consideration. [19] Mr Connal turned then to the decision of the House of Lords in R. (Alconbury) Limited v Environment Secretary [2003] 2 AC 295. He referred in particular to paragraph 149 in the speech of Lord Clyde at p. 348:"The opening words of article 6(1) are: 'In the determination of his civil rights and obligations or of any criminal charge against him....' Here again a broad interpretation is called for. The decision need not formally be a decision on the rights. Article 6 will still apply if the effect of the decision is directly to affect civil rights and obligations."
Mr Connal submitted that in light of that statement of the law, it could not be said that the petitioner's cased based on Article 6 was bound to fail.
[20] With regard to damages, Mr Connal submitted that damages in this case were appropriate "satisfaction" for a breach of Article 6. It must have been obvious to the respondent that someone holding the post of manager of the Care Home was holding a post relevant to his or her career. Furthermore, the respondent knew, from her application, that the petitioner had applied to be registered as the care provider. In these circumstances damages could be "just satisfaction" and the remedy of reduction alone would be inadequate. [21] In relation to the petitioner's claim to damages based on common law, Mr Connal referred to the decisions in Micosta and Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1. In the former case it was held that there was in Scots law a remedy to a third party injured as a result of the deliberate misuse by a public body of its statutory powers provided that there was proof of malice or proof that the public body had full knowledge that it did not possess the power it purported to exercise. In the latter case their Lordships looked closely at the issue of misfeasance in public office, the mental element involved and the difference between subjective and objective recklessness. The submission, as I understood it, was that the damages claim on this basis could not be said to be bound to fail without inquiry into the facts. Accordingly Mr Connal's motion was for an order to proceed to a second hearing.SUBMISSIONS FOR RESPONDENT
[22] Miss Carmichael for the respondent addressed the same three issues which had been anticipated by Mr Connal and added a challenge to the specification of the common law fairness case. She invited me to sustain the respondents' first plea-in-law, of no title to sue or alternatively to leave it standing. Her secondary position was that her second plea-in-law to the general relevancy and specification of the petitioner's averments should be sustained in its entirety, which failing the averments in support of the Article 6 case should be excised together with the petitioner's damage claim and the averments in support thereof (paragraphs 3(c) and 11). The starting point for the submission of no title to sue was the familiar speech of Lord Dunedin in D & J Nicol v Dunbar Harbour Trustees 1915 SC (HL) 1 at 12-13:"By the law of Scotland a litigant, and in particular a pursuer, must always qualify title and interest. Though the phrase 'title to sue' has been a heading under which cases have been collected from at least the time of Morison's Dictionary and Brown's Synopsis, I am not aware that anyone of authority has risked a definition of what constitutes title to sue. I am not disposed to do so, but I think it may fairly be said that for a person to have such title he must be a party (using the word in its widest sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies."
Miss Carmichael drew attention to the general scheme of the Act which, she said, pointed to the person standing in relation to the respondent as being the care provider and not the manager. This was supported by the improvement notice procedure under section 10, the procedure under sections 15 to 17 and the right of appeal under section 20. The term "manager" was to be found in the Regulations. In such circumstances the Court should be slow to find title in anyone other than the service provider. If the respondent was to act in a wholly unreasonable manner so as adversely to affect the interests of the petitioner as manager, then she would have a remedy in contract against the care provider. The respondent did not accept that there had been any finding of fitness in respect of the petitioner's office of manager. In particular, it was not accepted that the proposed action in section 4 of the decision letter amounted to a decision as to fitness. Miss Carmichael drew attention to the fact that Regulations 7-9 of the Regulations applied to the petitioner. I note that although Regulation 8 is entitled "Notification of unfitness" it is concerned with notification by a provider of a care service to the respondent of information that a manager has been convicted of a criminal offence, which is one of the grounds of unfitness to be a manager. Regulation 9 is concerned with the fitness of employees generally and imposes a lower level of fitness than is required of managers by Regulation 7. She submitted that even if the service provider had been told by a representative of the respondent that the petitioner was unfit to be a manager, it was still for the service provider to decide how to treat the petitioner. The respondent did not accept that it was an "obvious consequence" of the decision letter that the petitioner would be dismissed. There were a number of options open to the service provider including the provision of further training or instruction to the petitioner. Miss Carmichael cited Simpson v Edinburgh Corporation 1960 SC 313 at 317 as an example of the important distinction between title and interest to sue. In the present case, as in Simpson, the petitioner may have interest to sue but in the absence of a clear statutory right, she had no title to sue. Miss Carmichael addressed the question of why the decision letter had been addressed to the petitioner if she was not the object of the determination. It was submitted that nothing should be read into this point because the petitioner was simply the representative of the care provider at the Care Home.
[23] With regard to Article 6, Miss Carmichael submitted that there had been no determination of the petitioner's civil rights and obligations. At its highest, what had occurred was similar to an investigation process. The resultant finding in relation to the complaint was not determinative of anything. Such a finding would not be made public unless it led to enforcement action. The only publication of the complaint determination would have been in the next annual report of the respondent. There had been no improvement notice under section 10 or condition notice under section 13 of the Act. No right of the petitioner had been involved. [24] Miss Carmichael cited three cases in relation to the Article 6 point. Fayed v United Kingdom (1994) 18 EHRR 393 concerned the provisional conclusions of inspectors appointed under section 432(2) of the Companies Act 1985 to investigate the affairs of House of Fraser Holdings and the circumstances surrounding the acquisition of House of Fraser in 1984/5. Such an appointment could only be made where it appeared to the Secretary of State that there were circumstances suggesting one or more types of specified wrongdoing or unlawful action in the conduct of the company's affairs. Counsel referred to paragraph 60 of the judgment:"The Inspectors' published findings - that the applicants had indeed made dishonest representations concerning their origins, their wealth, their business interests and their resources and had thereafter knowingly submitted false evidence to the Inspectors - undoubtedly damaged the applicants' reputations."
In paragraph 61 the Court went on to explain:
"However, the Court is satisfied that the functions performed by Inspectors were, in practice, as well as in theory, essentially investigative. The Inspectors did not adjudicate, either in form or in substance. They themselves said in their report that their findings would not be dispositive of anything. They did not make a legal determination as to criminal or civil liability concerning the Fayed brothers, and in particular concerning the latters' civil right to honour and reputation. The purpose of their inquiry was to ascertain and record facts which might subsequently be used as the basis for action by other competent authorities - prosecuting, regulatory, disciplinary or even legislative."
"152. It is plain from the text of Article 6(1) that it does not directly protect the individual's 'civil rights' as such against acts or decisions which modify, annul or otherwise interfere with them. In many circumstances the private rights of an individual are liable to be affected not only by the lawful acts of public authorities but also by those of other individuals or entities exercising counter-vailing private rights of their own, and indeed by circumstances of a purely factual nature such as the effluxion of time. The mere fact that an individual's private rights are adversely affected by the acts of another party, whether a public authority or not, does not therefore involve a violation of Article 6(1)....
155. As to the present case, the Commission notes that the Secretary of State was not engaged in the resolution of a dispute between parties concerning civil rights. He proposed to take action affecting (as the Commission has found) the company's private rights. He considered the objections put forward and then acted. He took action in the exercise of his legal powers which affected 'civil rights' but was not engaged in the 'determination' of a dispute or a 'contestation' concerning civil rights and obligations. In the Commission's opinion, the procedures leading to the finding of unfitness against the applicant and the imposition of restrictions on IGA did not therefore themselves have to comply with Article 6(1). The fact that the relevant decisions were not taken by a tribunal after a fair and public hearing does not therefore involve a breach of this provision."
Counsel submitted that this decision entirely supported the respondent's present submission that the actions of its officers in investigating the complaint in question did not engage any right of the petitioner under Article 6.
[27] The third case was X v United Kingdom (1998) 25 EHRR CD 88. This case concerned the former managing director of an insurance company who was offered a position as chief executive of a different insurance company. After various statutory procedure the Secretary of State for Trade & Industry served a notice of objection under section 60 of the Insurance Companies Act 1982 on the ground that he was not a fit and proper person to be a chief executive of the company. An attempt to overrule the notice of objection by means of judicial review in the Court of Session failed. The Commission, after considering the decision in Kaplan stated (at CD 96):"The Commission considers that the civil rights of the present applicant were similarly affected by the decision of the Secretary of State. The applicant had been offered the post of chief executive of the company on terms which had been agreed between him and the company. The effect of the decision was to prevent him from taking up that post and had clear pecuniary implications for the applicant. It is true that any agreement could only become operative once notice had been served on the Secretary of State and the Secretary of State had either stated that he had no objection to the appointment or had failed to serve a notice of objection. Thus, the Secretary of State's decision did not as such directly affect any existing right of the applicant to conduct the business of the company and its chief executive. However, the fact that the applicant's contractual right to occupy the post of chief executive was made subject to there being no objection from the Secretary of State did not in the view of the Commission alter its character as a civil right for the purposes of Article 6(1) of the Convention. Further, the decision of the Secretary of State directly affected the exercise of that right, even though the applicant had not yet taken up the post as chief executive.....
The Commission further considers that the procedure by which the Secretary of State actively intervened to prevent the appointment of the applicant to the post which he been offered amounted to a 'determination of [the] civil rights' of the applicant for the purpose of Article 6(1). In the view of the Commission a dispute or 'contestation' arose from the moment when the Secretary of State indicated that he was considering issuing a notice on the ground that the applicant was not a fit and proper person and that preliminary view was contested by the applicant. This dispute was determined in the proceedings which followed, culminating in the decision of the Secretary of State that the applicant was not a fit and proper person, with the consequence that the applicant was precluded from taking up the post offered to him. The proceedings therefore determined the applicant's 'civil rights and obligations' (see Ecompte, Van Leuven and de Mayere v Belgium (1982) 4 EHRR 1, paras. 45-50)."
The Commission then proceeded to find that "in the circumstances of the present case the scope of review of the Court of Session was sufficient to comply with Article 6(1)". Miss Carmichael submitted that the reasoning in Kaplan was to be preferred because of the lack of adequate reasoning in X v United Kingdom particularly in the passages cited at CD 96. She submitted that Lord Mackay of Drumadoon's decision in Tehrani was inconsistent with Kaplan and that decision had apparently not been considered by him. In any event, in the present case, there had been no determination of anything. The procedure had been investigatory only. Furthermore, if the petitioner was correct and she did have title to sue in the present petition, then her right of recourse to judicial review would render the whole process compliant with Article 6(1) of the Convention, in the same way as occurred in X v United Kingdom.
[28] Counsel for the respondent also challenged the petitioner's averments with regard to damages. She referred to the Law Commission and the Scottish Law Commission Report on "Damages under the Human Rights Act 1998", which highlighted (at pages 95-96) the problems of causation, particularly in respect of claimed pecuniary loss. She submitted that it was not sufficient for the petitioner to aver, as she does in paragraph 11, that as a result of the respondent's decisions the petitioner has suffered loss, injury and damage. What is required is an averment that on a balance of probabilities the results of the inquiry into the complaint affecting the petitioner would have been different had her rights not been breached. [29] With regard to the petitioner's claim for damages at common law, Miss Carmichael submitted on the authority of Micosta S.A. v Shetland Islands Council that the petitioner's common law case was irrelevant in the absence of averments of bad faith. Counsel submitted that the decision in Three Rivers did not change this proposition but rather explained in more detail the ways in which it might be established. [30] Miss Carmichael then made various criticisms of the relevancy of the pleading of the petitioner's common law case. For example, the petitioner avers in paragraph 6 that she was asked questions about a resident who had been found in bed with blood on the sheet. She then avers that she had been on holiday at the time of the alleged incident. That, Miss Carmichael submitted, showed that the petitioner apparently knew enough about the time of the alleged incident to be able to defend herself against the criticism. Counsel accepted that, on the facts, as averred in paragraph 6 of the petition and answer 6, there were irreconcilable differences between the parties. Counsel criticised the petitioner's failure to aver precisely what was said to her about the complaint that was being investigated. In any event, it was unnecessary to name the complainant and to provide the petitioner with full details of the complaint which had been made. It was sufficient that the gist of the complaint should have been put to her. Counsel referred to the Court of Appeal decision in Maxwell v Department of Trade and Industry [1974] Q.B. 523 as authority for two propositions arising from investigations carried out by two inspectors appointed by the Board of Trade under section 165 of the Companies Act 1948. First, where an allegation that a minute book had not been properly kept and that a minute might have been prepared purely for the record without there having been a meeting, had been put to the person complained against, it was unnecessary also to put to that person a particular minute of a particular meeting (page 536). Secondly, it was not necessary to put to the person complained against a draft of the findings and recommendations which the inspectors were about to make in order to give the person complained against an opportunity of correcting or contradicting those proposed findings and opinions (page 540). Counsel also referred to the guidance given by Lord Mustill in Regina v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 at 560. From the "often-cited authorities" he distilled six propositions including:"(1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances....
(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.
(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."
Miss Carmichael submitted that the petitioner had failed relevantly to aver a failure to meet this standard.
RESPONSE FOR PETITIONER
[31] Mr Connal responded first to the no title to sue submission. He accepted the test formulated by Lord Dunedin in D & J Nicol and submitted that such a "relationship" existed in the present case. He submitted that the relationship was created by a combination of the primary and secondary legislation and the Complaints Procedure. Although the terms of the decision letter were provisional with regards to the petitioner's fitness to continue as manager of the Care Home, the findings of the investigation clearly had a bearing on that fitness. In such circumstances the petitioner was entitled to judicial review. This was a strong case because of the series of links involving the petitioner's status as "manager". [32] With regard to the Article 6 argument, Mr Connal relied on the decision in X v United Kingdom and submitted that it should be preferred over the decision in Kaplan because it was the more recent decision and because Kaplan had been considered in it. Furthermore, in R (Alconbury Limited) v Environment Secretary the decision in Kaplan had been used as the basis for the Lord Advocate's unsuccessful argument as to the effect of Article 6. He referred to the speech of Lord Clyde (at page 346):"This approach provides a clean and simple solution to the present problem. But I do not consider that it is sound. The observations in Kaplan on which the argument was supported have not been taken up by the court and reflect an earlier stage in the development of the jurisprudence on the scope and application of article 6(1). In the developing jurisprudence of the European Court of Human Rights it became recognised that a narrow view of the scope of article 6(1) was inappropriate....".
He also referred to the speech of Lord Hutton (at page 359A-F) with regard to the same argument advanced by the Lord Advocate:
"In addition there is support for the submission in some passages in the opinion of the European Commission of Human Rights in Kaplan v United Kingdom (1980) 4 EHRR 64, the Commission stating, at para.154:
'In the Commission's view the essential role of article 6(1) in this sphere is to lay down guarantees concerning the mode in which claims or disputes concerning legal rights and obligations (of a "civil" character) are to be resolved. A distinction must be drawn between the acts of a body which is engaged in the resolution of such a claim or dispute and the acts of an administrative or other body purporting merely to exercise or apply a legal power vested in it and not to resolve a legal claim or dispute. Article 6(1) would not, in the Commission's opinion, apply to the acts of the latter even if they do affect "civil rights". It could not be considered as being engaged in a process of "determination" of civil rights and obligations. Its function would not be to decide ("décidera") on a claim, dispute or "contestation". Its acts may, on the other hand, give rise to a claim, dispute or "contestation" and article 6 may come into play in that way.'
See also paras.151-153.
182. However I think it is clear that the Commission and the European Court of Human Rights ('the European court') have departed from this view and have held in a number of subsequent cases that the determination of a planning application by an official or a minister falls within the ambit of article 6(1)....".
"Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard-and-fast rules."
He referred also to Maxwell v Department of Trade and Industry (supra) and In Re Pergamon Press Ltd [1971] Ch.388 at 399 at 406-407. He submitted that taking a broad view, enough had been averred to entitle the petitioner to inquiry into the facts. Until the petitioner knew the facts, it was difficult for her to aver with precision the unfairness of the procedure adopted by the officers of the respondents. The details would depend on the facts. Certain types of complaint against her could be described generically, whereas others might require the alleged "victim" to be identified or an incident to be particularised.
THE ISSUES
[37] The first question to be addressed is whether the petitioner has title to sue. Does she come within the "legal relationship" practical test set out by Lord Dunedin in D & J Nicol v Dundee Harbour Trustees? In my opinion she does. She held the office of manager of the Care Home. That office is recognised in section 7(2)(b) of the Act which provides that an application to the respondent for registration of a service shall "identify an individual (who may be the applicant) who is the manager of the service;", and also in section 29. The matter is then developed in the Regulations and in particular Regulation 7 which addresses in detail the fitness requirements for a person to act as a manager in relation to a care service. The Certificate of Registration in respect of the Care Home names the petitioner as the designated manager of the Care Home. The Complaints Procedure clearly envisages a complaint being made against someone other than the service provider (at p.14):"The complainant and any person complained against (including the service provider) should be given a reasonable opportunity to express their views on the subject matter of the complaint and to respond to allegations made against them."
That could be a reference to an employee of the respondent, but it could equally be an employee of the service provider, including the manager. While it is not known at present what form the initial complaint took and against whom specifically complaints were addressed, it is apparent from the decision letter that at least one complaint named the petitioner personally and another probably criticised her by necessary inference. Furthermore, the first paragraph of section 2 of the decision letter specifically identified the petitioner as the person complained against. Finally, the decision letter was addressed to the petitioner, although the heading refers to the Care Home. I do not find the explanation that she was the obvious addressee at the Care Home to be persuasive when one notices that the action plan included bringing the "findings" together with doubt raised as to the petitioner's "fit person" status to the attention of the proprietor[s] who are the registered service providers. I consider that these factors create sufficient legal relationship between the petitioner and the respondent to afford her title to sue in respect of the respondents' investigation of the complaint against her. I note, however, that there is an additional factor, namely the respondent's knowledge that the petitioner had a pending application with them in which she sought to be registered as the care provider at the Care Home. It must have been within the respondent's knowledge that their finding in relation to the complaint against her would be likely to have a bearing on that application.
[38] The next question is whether the petitioner has relevantly averred a breach of her rights under Article 6(1) of the Convention. It is necessary first to consider the facts. The respondent was operating its Complaints Procedure. While it is clear from passages such as that already quoted that the Procedure recognises the need to treat fairly those against whom a complaint has been made, the purpose of the Complaints Procedure is clearly different from any form of disciplinary procedure. This is apparent, in my opinion, from the "Key Principles" set out at pages 1 and 2, the clear distinction drawn between the Complaints Procedure and the Commission's Disciplinary Procedure which is spelt out at page 19 and the fact that the complainant and not the person complained against is given an opportunity to accept or reject the Commission's Proposed Resolution of the complaint. [39] The more difficult question is whether the determination of a complaint is capable of determining the fit person status of a manager. There is nothing in the terms of the Complaints Procedure to suggest that it is, nor did that occur in the decision letter in the present case. The decision letter envisaged further consideration of that matter by the service providers among others. This reflected the terms of the "Guidance to Care Providers" which provides:"The legal responsibility for determining the fitness of any current or prospective employee rests with the care provider. However, the Care Commission in its regulatory role must also be satisfied that a manager is fit for the role intended."
If the respondent wished to exercise that regulatory role by overruling a care provider's choice of manager, it would appear that a condition notice under section 13 of the Act would be more appropriate than an improvement notice under section 10. It may also be appropriate to regard the naming of the manager on the Certificate of Registration as a condition of registration so that any change of manager would be a variation of a condition for the time being in force within the meaning of section 13(1)(a) of the Act. Where a condition notice has been served under section 13, there is a right to make representations to the respondent within 14 days after service of the notice before the respondent decides whether to implement the proposal contained in the condition notice as prescribed by section 17(3) of the Act. Section 20 then gives the service provider a right of appeal to the sheriff against a decision to impose or to vary a condition of registration. This state of affairs is reflected in the "Guidance to Care Providers":
"In the event that a difference of opinion as to the fitness of any individual arises between a registered provider and the Care Commission, it is likely that the Care Commission will deal with this firstly through an interview with the individual concerned. If the Care Commission remain of the view that the individual is unfit for the post and the provider maintains a differing view, the matter will be dealt with by the imposition of a formal condition on the registration of the services precluding that appointment or continuation of it. The registered provider will be entitled to exercise a right of appeal to the sheriff against the condition and the matter can be resolved by this route."
The procedure for determining the fitness of a manager appears therefore to stand outside the Complaints Procedure, although it may be triggered by the determination of a complaint.
[40] The matter is complicated by the terms of the letter dated 30 January 2004 from Mr Forest-Jones' solicitors to the petitioner's solicitors in which it is narrated that representatives of the respondent had made it clear to Mr Forest-Jones' solicitors that it was the contention of the respondent that the petitioner was not a "fit person" in terms of the Regulations. That, if true, would go far beyond the terms of the decision letter. Procedurally, the terms of that letter have been incorporated into the petition at paragraph 7, but the declarator and reduction sought in paragraph 3 do not go beyond the terms of the decision letter, namely that the petitioner's status as a fit person had been brought into question, rather than that a decision on the subject had been made. [41] With regard to the law on the subject, I accept Mr Connal's submission as to the way in which the decided cases should be approached and in particular that it is necessary now to consider Kaplan and X v United Kingdom in light of the speeches in Alconbury. I note in particular the reference by Lord Clyde to X v United Kingdom (Alconbury) at p.347F-H:"The distinction noticed by the Commission in X v United Kingdom (1998) 25 EHRR CD 88, 96 is not to be overlooked, that is the distinction between:
'the acts of a body which is engaged in the resolution of a dispute ("contestation") and the acts of an administrative or other body purporting merely to exercise or apply a legal power vested in it and not to resolve a legal claim or dispute.'
But at least from the time when a power has been exercised and objection is taken to that exercise the existence of a dispute for the purpose of article 6(1) can be identified."
THE DECISION
[46] In these circumstances I repel the first plea in law for the respondent. I sustain the second plea in law for the respondent to the extent of excluding from probation the averments in paragraphs 3(c), 10 and 11 of the petition and quoad ultra I reserve that plea in law. It follows that I repel the second and third pleas in law for the petitioner. I would be prepared to allow a proof before answer on the remainder of the petitioner's case, but if parties consider that such a proof could be avoided or reduced in scope by the use of affidavit evidence, I would be prepared to make an order for affidavits in the first instance. I shall put the case out By Order so that submissions on further procedure can be made in the absence of prior agreement between the parties.