B575/04

 

IST CARE LIMITED SCOTTISH COMMISSION

FOR THE REGULATION

OF CARE

 

PURSUERS DEFENDERS

 

 

 

 

HAMILTON, 28 April 2005

 

 

 

SUSTAINS the first plea in law for the pursuer and in terms of Section 20(2) of the Regulation of Care (Scotland) Act 2001 directs that the decision of the defender shall not have effect; reserves all questions of expenses.

 

 

NOTE

 

The pursuer is a private limited company. The defender is a body corporate established by the Regulation of Care (Scotland) Act 2001. (The Act). The pursuer appeals by summary application under Section 20 of the Act against the defender's decision to refuse its application for registration of a care service, a nursing home, at Monteith House, Carstairs Junction, South Lanarkshire. The case called before me on 10 January 2005 when parties were agreed that the first plea in law for the pursuer could be determined by legal submissions and further procedure determined thereafter. This plea is to the effect that the defender's decision is based on a wrongful application of Regulation 6 of the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2003 (the Regulations) and the court should direct that the decision should not have effect. Counsel for the pursuer was Mr O'Carroll, Advocate, and Mr McLure, Solicitor, represented the defender.

 

The relevant statutory provisions in the Act are as follows. Section 2 defines care services and in terms of section 2(1) and (3) this includes a nursing home. A person seeking to provide a care service is required under Section 7 to make application for registration of the service to the defender, the Scottish Commission for the Regulation of Care. It was not in dispute that 'person' in this section encompassed natural and legal persons. In terms of Section 9(2), if the Commission is satisfied that the requirements of regulations applicable under section 29 of the Act and any other relevant enactment will be complied with, it shall register the service and may do so conditionally or unconditionally. If it proposes to refuse an application it shall give notice of this proposal to the applicant under Section 15(1)(b) with reasons. Section 16 allows the applicant to make representations regarding the proposed refusal within 14 days. Thereafter if the Commission intends to implement its proposed decision it must give notice to the applicant in terms of Section 17(3) and advise of the right of appeal under Section 20.

 

This was the procedure followed by the pursuer, 1^st Care Ltd. Its application for registration of a care service under section 7 of the Act was completed and submitted by Mrs Jagruti Patel, managing director of the company, on 2 February 2003. On 2 July 2003 the defender sent to Mrs Patel at the offices of 1^st Care Limited, notice of their proposal to refuse the application in terms of Section 15(1)(b) of the Act. This notice sets out the reasons for the decision in the following terms:

 

"Under the Regulation of Care (Scotland) Act 2002, Regulation 6(1)(a) a person shall not provide a care service unless the person is fit to do so; the Care Commission has reason to believe that you are not a person who is of integrity and good character. This is based on:

 

§         The information provided by Disclosure Scotland.

 

§         Your failure to freely and fully disclose the criminal charges and the impending court case against you to the Care Commission at the earliest opportunity.

 

§         You assured the Care Commission that Mr Patel was not a Director of 1^st Care Limited. The contribution made by Mr Patel during discussion regarding the management and operation of Monteith House Care Home and his agreement to provide additional financial information on behalf of 1^st Care Limited has led the Care Commission to consider that he has a prominent role in the management and business undertakings of this company.

 

§         The information provided by Disclosure Scotland regarding outstanding charges against Mr Patel also calls into question his fitness therefore the Care Commission cannot be confident of the integrity of 1^st Care Limited."

 

Written representations were then made by 1^st Care Limited to the Commission as provided for in Section 16 of the Act. On 30 July 2004 the Commission sent a notice in terms of section 17(3) of the Act to the pursuer confirming implementation of its decision to refuse the application.

 

The section 15(1)(b) notice refers to the "Regulation of Care (Scotland) Act 2002, Regulation 6(1)(a)" and the section 17(3) notice refers to "Regulation 6(1), Scottish Statutory Instrument 2002 No 114, the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002." It was a matter of agreement between parties that the statutory provision upon which the Commission founded its decision was regulation 6(1) of the Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002 as amended by the Regulation of Care (Requirements as to Care Services) (Scotland) Amendment (No.2) Regulations 2003 [SSI 2003 No 572]. These are regulations made under powers conferred by section 29 of the Act which applicants must satisfy the Commission are complied with under Section 9(2) in order to obtain registration.

 

Regulations 6(1) and 6(2) as amended are in the following terms:

 

6.                  (1) A person shall not provide a care service unless the person is fit to do so.

 

(2)    The following persons are unfit to provide a care service:-

 

(a)    a person who is not of integrity and good character

 

(b)    a person who has been convicted whether in the United Kingdom or elsewhere of any offence which is punishable by a period of imprisonment of not less than 3 months and has been sentenced to imprisonment (whether or not suspended or deferred) for any period without the option of a fine;

 

(c)    a person whose estate has been sequestrated in Scotland or who has been adjudged bankrupt elsewhere than in Scotland or in relation to whose estate a judicial factor has been appointed or who has granted a trust deed for the benefit of the person's creditors:

 

The regulation goes on to make further provisions relating to sequestrated and convicted persons which are not relevant to the present case.

 

 

 

 

Submissions for the Pursuer

 

Counsel for the pursuer argued that the decision to refuse the pursuer's application for registration was wrongful on two grounds. The first concerned whether regulation 6 of the Regulations applied at all to an applicant which was a corporate body. Counsel submitted that it was clear from the terms of regulation 6 that it applied only to natural persons and not to bodies corporate and its application to the pursuer was therefore ultra vires. The scheme of regulation 6 is a general and unspecific requirement at 6(1) requiring applicants to be fit to provide a care service followed by specification in 6(2)(a) to (c) of persons who are unfit. Regulation 6(2) is not illustrative but exhaustive of those persons unfit to provide a care service and its terms show it can apply only to natural persons. Regulation 6(2)(a) provides that a person who is not of integrity and good character is unfit to provide a care service. The notices issued by the defender under sections 15(1)(b) and 17(3) of the Act show that their decision to refuse the application was based on regulations 6(1) 6(2)(a), that the pursuer was not a person of integrity and good character and was therefore not fit to provide a care service. Integrity and good character are characteristics of a natural person and not a corporate body and their application to the pursuer was ultra vires. Regulations 6(2)(b) and 6(2)(c) similarly apply only to natural and not to legal persons, providing respectively that a person convicted of an offence punishable by more than three months imprisonment and persons sequestrated or adjudged bankrupt are unfit to provide a care service. The definitions of unfit applicants in regulation 6(2) apply only where the applicant is an individual and otherwise have no application at all. If there is a lacuna in the legislation it is not for the court to fill the gap, but a matter for the Scottish Parliament. The defender is a statutory body and may do only what statute empowers it to do.

 

The second ground upon which Counsel for the pursuer contended that the defender's decision was wrongful was that, in applying the requirement of fitness in regulation 6(1), the Commission confused the identity of the applicant company, 1^st Care Limited, with that of its managing director Mrs Jagruti Patel and assessed her fitness rather than that of the applicant. It was submitted that only the applicant's fitness can be considered in applying regulation 6. It was also evident from the reasons given for refusal that the Commission had fallen into further error by founding on the fitness of Mr Patel.

 

The Commission's reasons for proposing to refuse the application were set out in their letter of 2 July 2002 which was a notice in terms of section 15(1)(b) of the Act. The first reason, "the information provided by Disclosure Scotland," referred to a Certificate provided by Disclosure Scotland in respect of Mrs Jagruti Patel, not the pursuer. Under the heading "Other Relevant Information" on the Certificate, information was provided regarding Mrs Patel's husband. The defender's second stated reason for refusal was Mrs Patel's failure to disclose criminal charges against her. These charges were strenuously denied, she has tendered pleas of not guilty to them and the trial may take place later this year. The defender's third stated reason also refers to Mr Patel; he was formerly a director of 1^st Care Limited and it is a matter of dispute when he ceased to be. The defender's fourth stated reason relates back to the Disclosure Scotland Certificate and refers specifically to Mr Patel.

 

The Commission's decision was founded exclusively on regulation 6(2)(a) which can only apply to the applicant, whereas the reasons for refusal show the Commission founded on matters relating to Mr and Mrs Patel which they had no authority to do in terms of regulation 6 or any other part of the legislation. In effect the Commission decided to treat regulation 6 as if it permitted assessment of the fitness of the company, or the person acting on its behalf or any person who was a director of the company. The regulations do not direct or permit the defender to do this and it is not possible to stretch or strain their interpretation to permit this. Regulation 6 was wrongfully applied by the Commission in its consideration of 1^st Care Limited's application and I should direct that the Commission's decision be of no effect.

 

Submissions for the Defender

 

It was submitted for the defender that the Commission was entitled in dealing with the application to insist that the applicant, as a limited company, satisfy the requirements of regulation 6(1) that the provider of a care service be a fit person to do so. The Act does not distinguish between natural and legal persons, using the term "a person" throughout and the regulations continue the use of this terminology except where a specific distinction is to be made. Section 5 of the Interpretation Act 1978 provides that words and expressions listed in Schedule 1 to this Act are to be construed in accordance with the Schedule in any enactment, unless the contrary intention appears in the enactment. Schedule 1 states that "person" includes a body of persons corporate or unincorporate. In regulations 6(2)(b) and (c) there was an implied contrary intention because only natural persons can be imprisoned or sequestrated. Regulation 6(2)(a) contains nothing which precludes the application of Schedule 1 to a non-natural person. It is eminently possible to impute the characteristics of integrity and good character to a company and a natural person and regulation 6(2)(a) falls to be interpreted in accordance with the definition in Schedule 1 of the Interpretation Act to include corporate bodies. It was entirely appropriate that regulation 6(2)(a) be applied to all applicants. The Commission is required to exercise its functions in accordance with the principles set out in Section 59 of the Act. These provide at section 59(2) "The safety and welfare of all persons who use, or are eligible to use, care services are to be protected and enhanced." It would be inappropriate if regulation 6 were interpreted so as to take away the scope for assessment of a corporate provider even in the limited sense provided of good character and integrity.

 

It is clear from the provisions of other regulations made under section 29 of the Act that the Commission is interested in the attributes of individuals involved with a limited company seeking registration under the Act. Regulation 2 of The Regulation of Care (Applications and Provision of Advice) (Scotland) Order 2002 requires applications for registration under Section 7 of the Act to provide information specified in the Schedule to the Order. Paragraph 2 of the Schedule sets out the information required "if the applicant is not an individual." This includes at 2(d)(i) the details of all directors where the applicant is a body corporate. This Schedule sets out a number of other requirements of applicants without distinction as to whether applicants are individuals or legal persons. However, paragraphs 16, 18, 19, 22 and 23 make specific provisions for individual applicants. These distinctions imply that the remaining provisions, where no distinction is made, apply to all applicants whether individuals or legal persons. It is unlikely this distinction has been overlooked in the drafting of regulation 6 of the Regulations at issue.

 

Regulation 7 of the Regulations applies to a manager of a care service provisions regarding fitness identical to those which articles 6(1) and 6(2)(a) and (b) place on a person providing a care service. Regulation 17 requires a provider who is not an individual to appoint a manager of the care service. These provisions all stand separately and do not allow an unfit provider to bypass regulation 6 by appointing a fit manager under regulation 7; both provider and manager require to be fit persons. If the position were that regulation 6 does not apply to a proposed corporate provider, no test or filter would be applicable at all to companies applying for registration to provide care services.

 

The second issue raised was whether the Commission were correct in assessing the pursuers' fitness, as a corporate provider, to have regard to the fitness and character of its directors, Mr and Mrs Patel. The pursuers are a small company with at most two directors. There is no other means by which the integrity and good character of a company may be established other than looking at the integrity and character of those who have the control and management of the company. Different assessments may be appropriate in a company of different size and structure. It is also relevant whether the directors provided full and accurate information in their application and dealings with the Commission. It was not disputed Mrs Patel is the managing director of 1^st Care Limited and that in this capacity she completed and signed the pursuer's application form for registration. She apparently had full control of the company and issues as to her character and her dealings with the Commission in the course of the application were relevant to its consideration.

 

There is a distinction to be made between the Commission's attitude to Mr and Mrs Patel. There is a factual dispute as to whether Mr Patel is a director of the company and an issue as to whether the Commission should have considered matters relating to his integrity and character. It is the defenders' position that Mr Patel played a significant role in the application and this is averred on Record at Answer 4. He was closely involved in the management and conduct of the application and he is involved in carrying on a similar business in another jurisdiction. `This entitled the defender to take account of his character and integrity in determining the company's fitness. On 23 July 2004, while considering the pursuer's representations in response to the proposal to refuse the application, the defender obtained confirmation which is produced from Companies House that Mr Patel was still a director of 1^st Care Limited at that date. Though this may now be factually disputed, the defender believed at that time that Mr Patel was a director of the company and were therefore justified in taking account of matters relating to his character and integrity. If the Commission was not able to look at the character of those who exercise day to day control over a corporate applicant, there would be no control over corporate providers and by forming a limited company individuals could seek to become registered as providers of care services who would have no hope of being registered as individuals. This would constitute an absurdity.

 

Mr McLure referred to a determination of the English and Welsh Care Standards Tribunal (TI v Commission for Social Care Inspection 2003 EWCST 0223) which considered the meaning of integrity and good character as one of the requirements for determining a person's fitness to provide a fostering agency under a similar regulatory framework in England and Wales. It was submitted before this Tribunal that good character meant simply freedom from criminal convictions and no issue was taken with this submission. The Tribunal concluded that "integrity, even in its narrowest sense must include a requirement for honesty on the part of the person concerned" and it held that the provision of false or misleading information by the Appellant demonstrated a lack of honesty. Answer 3 on the Record contains averments regarding the pursuers' failure to complete parts 6(g) and 6(h) of the application for registration form when it was originally submitted on 2 February 2004 and when it was re-submitted in March 2004. Part 6(g) seeks a declaration from the applicant regarding criminal investigations or prosecutions which may be ongoing in respect of the person making the application and 6(h) incorporates the applicant's consent to an Advanced Disclosure from Disclosure Scotland. These parts of the form were not completed until a meeting with Mr and Mrs Patel on 26 May 2004. The failure to make prior disclosure regarding these matters before 26 May 2004 despite two previous opportunities is clearly detrimental to an assessment of the applicant's integrity as is the information which was then revealed that Mr and Mrs Patel both have criminal charges outstanding in England.

 

Decision

 

It is contended for the pursuer on two grounds that the defender wrongfully applied regulation 6 of the regulations in refusing their application for registration of a care service. The first ground is that the application of article 6 to the pursuer was ultra vires as it cannot apply to a body corporate. Regulation 6(1) provides that "a person shall not provide a care service unless the person is fit to do so." Article 6(2)(a) to (c) specifies three categories of persons who are unfit. I am of the view that regulation 6(2) defines in law those persons unfit to provide a care service and any conclusion by the Commission that a person is not fit to do so must be founded in one of the categories specified in this regulation. It was not disputed that the categories of persons referred to in 6(2)(b) and (c) are exclusively natural persons as these provisions apply respectively to persons sentenced to imprisonment and sequestrated or adjudged bankrupt. The category of person unfit to provide a care service under Article 6(2)(a) is "a person not of integrity and good character." It is not disputed that this was the provision upon which the defender founded in concluding that the pursuer failed to meet the requirement of fitness provided for in regulation 6(1).

 

The provisions of section 5 and schedule 1 of the Interpretation Act 1978 are clear that the term "person" in any enactment includes a body of persons corporate or unincorporate unless the contrary intention appears. A contrary intention must be inferred in interpreting the references to "person" in regulations 6(2)(b) and (c), as it is not possible for a body corporate to be imprisoned or sequestrated. It is the pursuer's position that a contrary intention must also be inferred in interpreting regulation 6(2)(c) from the impossibility of a body corporate possessing the attributes of integrity and good character. I was not referred to any authority on this point by either party. In my view, a company is capable of engaging in a wide range of activities which may demonstrate its character and bear on its reputation. These include acts which may lead to prosecution and conviction for offences, acts of negligence founding claims for reparation, employment practices which lead to adverse decisions before an employment tribunal, failures relating to the health and safety of its employees. These are negative examples, but it is equally possible for a company to enjoy a positive reputation. The absence of any history of such difficulties will assist in establishing its character, it may enjoy a reputation for fairness among its employees, for reliability and honesty among those with whom it does business and it is capable of acts of philanthropy. I am of the opinion that it is possible for the integrity and good character of a company, enjoying legal personality, to be assessed for the purposes of regulation 6 of the Regulations and that "person" in regulation 6(1) and 6(2)(a) falls to be interpreted in accordance with the relevant provisions of the Interpretation Act 1978 to include a body corporate. The defender's application of regulation 6 to the pursuer was accordingly not ultra vires.

 

As I understand the second ground upon which the pursuer contends that regulation 6 of the Regulations was wrongfully applied, it falls into two parts. The first, that the Commission assessed the fitness of Mr and Mrs Patel rather than the applicant company and the second that they founded their decision on matters relating to Mr and Mrs Patel rather than the applicant company, which they were not entitled to do under the Act and Regulations. The reasons for refusal stated by the Commission in its notices to the pursuer are cited in support of this submission.

 

In this case the pursuer, 1^st Care Limited, is the person who seeks to provide a care service and has made application to the Commission for registration as required by section 7(1) of the Act. The Commission requires under section 9(2)(a) of the Act to be satisfied that any regulations made under Section 29 of the Act will be complied with before it may grant registration. The Regulations at issue here are regulations made by Scottish Ministers in exercise of powers conferred by Section 29 of the Act and the Commission required to be satisfied, in relation to 1^st Care Limited's application, that they would be complied with. The Commission accordingly required to be satisfied in terms of regulation 6(1) that the person providing the care service was fit to do so and in terms of regulation 6(2)(a) was not unfit to do so by reason of being a person who was not of integrity and good character. The proper interpretation of the term "person" in regulation 6, in conjunction with sections 7(1) and 9(2)(a) of the Act is that it refers to the person seeking to provide a care service and who has applied to the Commission for registration to do so. In this case that person is the company, 1^st Care Limited. The company has a separate legal persona from its directors and the question for the Commission to decide was whether it was satisfied the company complied with the requirements of regulations 6(1) and 6(2)(a) as to its fitness, integrity and good character.

 

I am satisfied that in considering the question of the applicant company's fitness, it is axiomatic that the Commission were entitled to take into account the character, conduct and reputation of those acting for and managing the company at the most senior level, its directors, and the bearing this had on whether the company itself met the test of fitness. The regulatory framework laid down by the Act could otherwise be bypassed, as suggested by Mr McLure, by individuals, themselves unlikely to pass the test of fitness, forming a company and hiding behind its legal persona. I am also satisfied that the Commission were entitled to consider relevant the character, conduct and reputation of Mr Patel, both because their Companies House Search revealed him to be listed as a director of the company and because, whether still a director or not, he represented the company in discussions with the Commission regarding its application. The further issue raised by the pursuer is whether the Commission's reasons for refusal reveal that it failed to address itself to the correct question required by the Act and Regulations, that of the fitness, integrity and good character of the corporate applicant, and instead addressed the question of Mr and Mrs Patel's fitness.

 

Section 15(1)(b) of the Act requires the Commission to give an applicant notice of a proposed refusal and section 15(4) requires the Commission to give reasons for the proposed refusal. The Section 15(1)(b) notice sent in this case sets out the reasons for the proposed refusal. 1^st Care Limited thereafter availed itself of the opportunity provided in section 16 of the Act of making written representations to the Commission concerning matters it wished to dispute. The Commission then gave notice under section 17(3) of the Act of its decision to implement the proposed refusal. There is no requirement in the Act for the Commission to provide further reasons for refusal with the section 17(3) notice. In this case the reasons for refusal stated in the earlier notice are repeated in the section 17(3) notice and annotated with explanations for rejection of the pursuer's representations.

 

Both notices are addressed to Mrs Jagruti Patel at 1^st Care Limited and commence "Dear Mrs Patel." The decision is expressed in the section 15(1)(b) Notice of 2 July as follows:

 

"Under the Regulation of Care (Scotland) Act 2002, Regulation 6(1)(a) a person shall not provide a care service unless the person is fit to do so; the Care Commission has reason to believe that you are not a person who is of integrity and good character....."

 

The addressing of this Notice to Mrs Patel, and the use of the second person give rise to the interpretation that it is Mrs Patel whom the Commission has reason to believe is not of good character. The decision is expressed differently in the section 17(3) notice which states:

 

"This letter gives you notice that the Care Commission has decided to implement its proposal to refuse the application for registration.....on the grounds that the applicant has been unable to demonstrate fitness in terms of Regulation 6(1).......the representations made did not sufficiently counter the Care Commission's belief that the applicant is not a person who is of integrity and good character."

 

The references to "the applicant" in the section 17(3) notice initially imply that the Commission has now distinguished between Mrs Patel and the applicant 1^st Care Limited. However the reasons stated in both notices and some of the explanations provided in the section 17(3) notice disclose that the earlier confusion is not confined to semantics. The first reason is:

 

§         "The information provided by Disclosure Scotland".

 

It is followed in the Section 17(3) notice by an explanation for refusal of the pursuer's representations on this matter:

 

"The representations suggest that the information provided by Disclosure Scotland is inaccurate. The Care Commission is of the view that the disposal of the Crown Court will determine guilt. The Care Commission has not at any time assumed the applicant's guilt of the criminal charges detailed by Disclosure Scotland, but has taken them into account in the assessment process."

 

The Disclosure Scotland Certificate is a production. It provides information to the Commission from Scottish Criminal Records Office regarding Mrs Jagruti Patel and reveals an investigation and a pending criminal charge in England against her. This information about the managing director of the applicant company is clearly relevant to the Commission's assessment of its fitness. However, the explanation provided by the Commission shows that in their use of this information, they have treated Mrs Patel as the applicant, referring to "the applicant's guilt of the criminal charges detailed by Disclosure Scotland" when the charge lies against Mrs Patel and not the applicant company. In failing to make a proper distinction here between Mrs Patel and the applicant company in considering fitness, the Commission have erred in law. The second reason for refusal is:

 

§         "Your failure to freely and fully disclose the criminal charges and the impending court case against you to the Care Commission at the earliest opportunity."

 

An explanation follows in the section 17(3) notice for refusal of the pursuer's representations on this matter:

 

"You submitted the registration application form to the Care Commission on two separate occasions, 2^nd Feb 04 and 16^th March 04, without disclosing the details of the criminal charges. On the second submission you completed, signed and dated Section 6i and 6j but failed to complete section 6g. This section was not completed until the Care Commission requested this at the meeting of 26 May 2004."

 

The wording of this reason makes sense only if it is addressed directly to Mrs Patel as it is against she, and not the applicant company, that a charge is outstanding. The only inference to be drawn from the wording is that the Commission is again treating Mrs Patel as the applicant. This inference is re-inforced by the Commission's explanation which refers to completion of the registration application form without disclosing the criminal charge, and delays in completion of sections 6i, 6j and 6g of the form. Mr McClure referred to this matter in his submissions and clarified the import of these sections of the application form, which is a production. Part 6(g) seeks a declaration from the applicant regarding criminal investigations or prosecutions which may be ongoing in respect of the person making the application and 6(h) incorporates the applicant's consent to an Advanced Disclosure from Disclosure Scotland. There is no dispute that Mrs Patel, in her capacity as managing director of 1^st Care Ltd., completed the application form on the company's behalf, but the person making the application under Section 7 of the Act was the company and the information and consent required in these sections of the form related to the applicant company and not Mrs Patel personally. I have concluded that the Commission again erred in law in treating Mrs Patel in this matter as the person making the application. The third and fourth reasons for refusal refer to Mr Patel:

 

§         "You assured the Care Commission that Mr Patel was not a Director of 1^st Care Limited. The contribution made by Mr Patel during discussion regarding the management and operation of Monteith House Care Home and his agreement to provide additional financial information on behalf of 1^st Care Limited has led the Care Commission to consider that he has a prominent role in the management and business undertakings of this company.

 

§         The information provided by Disclosure Scotland regarding outstanding charges against Mr Patel also calls into question his fitness therefore the Care Commission cannot be confident of the integrity of 1^st Care Limited."

 

The Commission were entitled to consider Mr Patel's true role in 1^st Care Limited and information on his wife's Disclosure Scotland Certificate that he was the subject of an investigation, as bearing on his personal integrity and to take this into account in assessing the applicant company's fitness. The terms in which the fourth reason is expressed, explicitly referring to Mr Patel's fitness and the inference drawn from it, lead me to conclude that the Commission has again erred in assessing Mr Patel's fitness rather than that of the applicant company. It is also factually incorrect in stating that there are outstanding charges against Mr Patel, when the Disclosure Scotland Certificate reveals only an investigation against him.

 

The Act and regulation 6(1) of the Regulations require the Commission to be satisfied that a person seeking to provide a care service shall be fit to do so. In this case it was the applicant company's fitness to provide a care service that the Commission required to consider. I am satisfied they were entitled to look behind the legal persona of the company and take into account the character of any individual who was a director of the company and any individual who represented the company in its application to the Commission and this included both Mr and Mrs Patel. The Commission was not entitled to consider the fitness, character and conduct of these individuals without regard to the fitness of the applicant company itself. The Commission's first and second reasons for refusal reveal that it has addressed itself to the question of Mrs Patel's fitness rather than that of the applicant company and their fourth reason reveals that it has addressed itself to the question of Mr Patel's fitness rather than that of the applicant company and in doing so they have erred in law. I have accordingly upheld the pursuer's first plea in law and in terms of section 20(2) of the Act directed that the defender's decision shall not have effect.