First-tier Tribunal (Health Education and Social Care Chamber)

Nelofar and Shahid Sheikh – Appellants

V

Care Quality Commission - Respondent

[2011]1902.EA

Before

Miss Maureen Roberts, Tribunal Judge

Mrs C Caporn, Specialist Member

Ms M Adolphe, Specialist Member

ORDER

Made on 27 July 2011 at Field House Bream’s Buildings London.

Representation:  The Appellants were represented by Mr P Patel of Counsel instructed by Mr S Marchant of Bates Wells and Braithwaite LLP. Mr Shahid Sheikh attended.

The Respondent was represented by Ms S Rickard of Counsel instructed by Ms B Buchanan of Weightmans LLP. Ms S Stockbridge Ms P McMullen Ms C Brown, Ms L Smith, Ms J Foad, and Ms J Asbury attended as witnesses for the Respondent.

Request for withdrawal

1.     The hearing was an appeal against an order made on 8 June 2011 by Canterbury Magistrates Court under section 30 of the Health and Social Care Act 2008 granting an urgent cancellation in respect of the Appellants’ care home ‘Sea View Lodge’ Herne Bay Kent.

2.     The tribunal had read the bundles prepared for the hearing. At the hearing the tribunal was given some further statements from both parties, the Respondent’s opening note and chronology and schedule of incidents.

3.     After some procedural matters had been decided the tribunal retired to read the additional documents. On the tribunal’s return Counsel for the Appellants indicated that Mr Sheikh on behalf of the Appellants wished to withdraw the appeal.

4.     He informed the tribunal that the Appellants’ main witness, their son and the present manager of the home, had told them late yesterday that he would not be coming to give evidence on their behalf. The Appellants considered that this evidence was a central part of their appeal and did not want to continue in the absence of this witness.

5.     The withdrawal is in respect of the appeals by both Mr Shahid Sheikh and his wife, the partner provider Mrs Nelofar Sheikh.

6.     The tribunal accepted this request and ORDERS that the matter is withdrawn.

Costs

7.     The Respondent made an application for costs. Under rule 10 Orders for costs in the Tribunal Procedure (First-tier Tribunal) (Health Education and Social Care Chamber) Rules 2008 the tribunal may make an order in respect of costs only, under 1 (b), if the tribunal considers that a party “has acted unreasonably in bringing, defending or conducting  the proceedings.”

8.     For the Respondent it was said that this was the second time that the Appellants had pushed things to the limit and withdrawn a case at the last minute. In its submission the son, who was the witness lived in the same house as the Appellants, and the Appellants should have known that their son was not going to support them.

9.     The Respondent noted that the Appellant Mr Sheikh, had not given evidence at the Magistrates Court hearing on the 8 June 2011.

10.  The Respondent indicated that the legal costs involved were in the region of £17000-00 and that this included the Magistrates Court hearing costs.

11.  For the Appellants Counsel stated that he had not been involved in the previous proceedings and had no knowledge of the circumstances of that withdrawal.

12.  Mr Sheikh for the Appellants said that while the witness, his son Haris Shahid lived in the same house, he had only said that he would not support him last night. Haris Shahid had prepared a witness statement in support of the appeal. His evidence would have been as the current manager and he would have put forward the plan as to how the care home would operate to address the concerns of the Respondent.

13.  Mr Sheikh for the Appellants said that he had not given evidence at the Magistrates Court hearing because of the short notice and the length of the hearing.

14.  The tribunal recognises that the Appellants have the right to appeal and that the appeal was not brought unreasonably. The Appellants said that they did not know that their main witness was not going to support them until late yesterday. The Appellants informed the tribunal today, of their request for the withdrawal, before the substantive hearing began.

For these reasons the tribunal ORDERS that there be no order for costs.

Before the tribunal concluded its proceedings all the witnesses

who had attended today came before the tribunal. The tribunal was mindful of the work involved in the preparation of the witness statements and their attendance at the tribunal. They were thanked for their assistance.

Signed

Maureen Roberts

Carol Caporn

Marilyn Adolphe