Case No: C1/2004/1007
Neutral Citation Number: [2004] EWCA Civ 1713
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Mr Justice Sullivan
[2004] EWHC 918 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday, 16 December 2004
Before :

LORD JUSTICE BROOKE 
(Vice-President of the Court of Appeal (Civil Division))
LORD JUSTICE MANCE
and
LORD JUSTICE THOMAS
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Between :

	PETER JONES	Appellant	
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	COMMISSION FOR SOCIAL CARE INSPECTION	Respondent	

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(Transcript of the Handed Down Judgment of
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Richard Clayton QC and Melanie McDonald (instructed by Carol A. Triplett) for the Appellant
Timothy Brennan QC and Bruce Silvester (instructed by Mills & Reeve) for the Respondent
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Judgment
Lord Justice Brooke : 
1.	This is an appeal by the appellant Peter Jones against a judgment of Sullivan J sitting in the Administrative Court on 21st April 2004 whereby he allowed a statutory appeal by the National Care Standards Commission against a decision of the Care Standards Tribunal (“the Tribunal”) on 2nd January 2004.  The Tribunal had allowed Mr Jones’s appeal against the refusal by the National Care Standards Commission on 4th April 2003 to grant him registration under Part II of the Care Standards Act 2000 (“the 2000 Act”) as manager of a care home at Middlefield House Nursing Home in Gainsborough, Lincolnshire.  The National Care Standards Commission was in fact abolished with effect from 1st April 2004.  It has been replaced, in relation to the functions with which this appeal is concerned, by the Commission for Social Care Inspection (“the Commission), and the title of this appeal has been accordingly amended.
2.	Mr Jones had had 20 years’ experience in the nursing profession, first as a care assistant, then as an enrolled nurse (mental health) and finally, since 1989, as a registered nurse (mental health).  In August 1995 he became manager of Lowfield House, a care home in Lincolnshire for about 20 adults with physical and learning disabilities.  This home was owned and operated by a company called Prime Life Limited (“Prime Life”).  In 1999 he became manager of Middlefield House, a similar establishment also owned and operated by Prime Life.
3.	These two homes were registered under the Registered Homes Act 1984 (“the 1984 Act”).  That statute made no provision for the registration of managers as fit persons to manage a registered home.  However, Lincolnshire operated a voluntary registration scheme for such managers, and Mr Jones was duly registered under that scheme.
4.	In April 2002 the 1984 Act was repealed and replaced by the Care Standards Act 2000 (“the 2000 Act”) which contained a much more sophisticated regime for the registration and supervision of care homes and their managers.  Prime Life’s registration under the 1984 Act was automatically carried across under the new statutory scheme (S1 2001/3852, para 9), but Mr Jones was obliged to register under a statutory scheme for the first time.  If he had dispatched his application for such registration to the Commission (which was the new statutory registration authority for England) by 31st March 2002, he would have been entitled to continue as of right to act as the manager of Middlefield House until such time as his application was granted or refused (ibid, para 15).  In the event the Commission never took any point against him by reason of the fact that his application was filed two weeks late.
5.	In due course the Commission refused his application, and this appeal raises for the first time in this court issues relating to the criteria whereby a person is judged to be a fit person to manage a care home under the 2000 Act.  More particularly it raises an important question as to the location of the burden of proof both before the Commission and the Tribunal when a question arises as to whether a person is fit or unfit to act as a manager of such a home.  
6.	Mr Jones’s difficulties in this respect arose in three ways: partly out of the adverse outcome of disciplinary proceedings before his professional body in October 2002 arising out of complaints about his conduct towards patients at Lowfield House in 1996-7; partly from the way in which he deliberately concealed the fact of those pending proceedings (and the police investigations which proceeded them) when he completed and dispatched his application form for registration in April 2002; and partly because he failed to impress the Commission’s representatives who had interviewed him about his knowledge of the law and theoretical principles of management of care homes during the course of the “fit person” registration process.
7.	I will set out relevant provisions of the new statutory scheme (and comment on the differences between it and its predecessor) before turning to the comparatively narrow issues we have to decide.
8.	Under section 11 of the 2000 Act it is now a criminal offence to carry on or manage a care home without being registered under Part II of the Act.  Section 12 provides for applications for registration.  In particular, by section 12 (2)
“12 (2)	The application –
(a)	must give the prescribed information about prescribed matters;
(b)	must give any other information which the registration authority reasonably requires the applicant to give…”
9.	Section 13 is concerned with the grant or refusal of registration.  In particular, section 13 (2) provides that:
“13 (2)	If the registration authority is satisfied that –
(a)	the requirements of regulations under section 22; and
(b)	the requirements of any other enactment which appears to the registration authority to be relevant, 
are being and will continue to be complied with (so far as applicable) in relation to the establishment…, it shall grant the application; otherwise it shall refuse it.”
Section 22 contains wide regulatory powers, and in particular by section 22 (2)(a):
“Regulations may make provision as to the persons who are fit to carry on or manage a relevant establishment.”
10.	The regulations for this purpose are the Care Homes Regulations 2001 (“the 2001 Regulations”) which by regulation 9 provide, so far as is relevant that
“9 (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…”
11.	The 1984 Act, which this new statutory scheme replaced, was much less specific, section 9 simply stating that the registration authority
“may refuse to register an applicant…in respect of a registered care home if they are satisfied (a) that he…is not a fit person to be concerned in carrying on a residential care home.”
12.	The Registered Homes Tribunal under the 1984 Act considered on a case by case basis what the concept of “fitness” meant for the purposes of registration.  It looks as if the provisions of regulation 9 of the 2001 Regulations represent an attempt to codify the effect of the former case law with the significant difference that under the old scheme the registration authority had to be satisfied that the person concerned was not a fit person for the purpose before it could refuse registration, while under the new scheme it has to be satisfied that he is so fit before it can grant his application.
13.	I have no hesitation in holding that an applicant must demonstrate to the Commission and, if there is an appeal, to the Care Standards Tribunal that he is a fit person before he can be qualified for registration.  The Act and the regulations set the standards which Parliament now requires of care home managers.  Section 13 (2) shows that provided the Commission is satisfied that an applicant is a fit person (and any other relevant requirements are fulfilled) it shall grant the application.  They are stringent requirements (the explicit obligations set out in Regulation 17 and Schedules 3 and 4 to the 2001 Regulations show why the new scheme attaches such importance to integrity and good character, and the need for a manager to have the requisite qualifications, skills and experience), and it would be absurd if the onus of proof were placed on the Commission to demonstrate unfitness before it could refuse registration.
14.	The way in which the new registration scheme operates in a case like the present is that the Commission first considers the application and any supporting documents.  It then interviews the applicant and if it is minded to refuse the application it is bound to give him notice of a proposal to refuse it (2000 Act, s 17 (3) together with its reasons for the proposal (s 17 (6)).  He is then allowed 28 days within which he may make written representations to the Commission concerning any matter which he wishes to dispute (s 18 (1)).  If in due course it decides to “adopt” its proposal, it is bound to serve notice of its decision in writing and to tell the applicant of his right of appeal to the Tribunal (s 19 (3) and (4)(a)).  The Tribunal’s main powers on an appeal are to confirm the Commission’s decision or to direct that it shall not have effect (s 21 (3): see also s 21 (5) for other powers available to the Tribunal).
15.	This statutory language shows that if the Tribunal is satisfied that the Commission was right when it decided that the applicant had not satisfied it that he was a fit person within the meaning of regulation 9, it will confirm the Commission’s decision.  The Tribunal in Mr Jones’s case was therefore wrong when it decided his appeal in his favour by saying:
“In what is in the Tribunal’s view a finely balanced decision, having considered all relevant matters and reminded itself that the burden is on the respondent to prove the appellant’s unfitness on the balance of probabilities (the civil standard), the Tribunal’s decision is that the balance favours the appellant.”
This placed the burden of proof upside down.
16.	It is a curious feature of these proceedings, perhaps because the parties and their lawyers were so used to the different practice under the 1984 Act (see para 11 above), that Sullivan J was the first person to raise this important question.  In the event he left it undecided because he allowed the Commission’s appeal on other grounds.  He was told by counsel that there was a decision of the Tribunal which dealt with this issue.  It turned out, however, that in Alternative Futures Ltd v National Care Standards Commission [2002] 101-111 NC the Tribunal was concerned with a rather different issue, and that decision throws no light on the matter we have had to decide.
17.	Because the Tribunal misdirected itself in a crucial respect on the location of the burden of proof, it is not necessary to dwell very long on the reasons why Sullivan J decided the appeal as he did.  Put shortly, the Tribunal said that there was no definition of “fitness” for the purposes of Part II of the 2000 Act and the regulations made under it, although Regulation 9 of the 2001 Regulations contained “guidance”.  The Tribunal went on to say, however, that although exploring synonyms can be a useful exercise, it was of limited assistance in this case, where it was reasonably clear what standards had to be met.  In these circumstances Mr Clayton QC, who appeared for Mr Jones, argued that the Tribunal had addressed the right questions (subject to the problem about the location of the burden of proof), whether or not the judge had been correct in his belief that the importance of meeting the mandatory requirements set out in Regulation 9 had been watered down by treating them as guidance.
18.	In my judgment, all that it is necessary to say for the disposition of this further appeal is that Regulation 9 sets out the conditions which an applicant must satisfy before he may be registered as a manager of a care home under the 2000 Act.  He must be a person of integrity and good character.  He must have the requisite qualifications, skills and experience necessary for managing the care home (having regard to its size, its statement of purpose and the number and needs of the service users).  He must be physically and mentally fit to manage the care home in question.  And full and satisfactory information must be available in relation to him in respect of the matters specified in paragraphs 1 to 5 and 8 of Schedule 2 of the Regulations.  I would add that the Commission and the Tribunal must not be over-zealous to place any particular features of an applicant’s history in only one pigeon-hole.  An adverse finding by a professional body may be relevant, for instance, not only to issues relating to the applicant’s possession of the requisite skills and experience, but also to issues relating to his character. 
19.	In all the circumstances I do not consider it necessary to write into this judgment the details of Mr Jones’s case.  They are all set out in the judgment of Sullivan J ([2004]) EWHC 918 (Admin) and the Tribunal’s decision ([2003] EWCST 0168 (NC)), both of which can be found on the BAILII website on the Internet (www.bailii.org).  It is sufficient to say that after a four-day hearing the Tribunal unanimously allowed Mr Jones’s appeal after adopting the approach to which I have referred, and that Sullivan J allowed the Commission’s appeal because he was not satisfied that the Tribunal had approached its job of assessing the evidence in Mr Jones’s case properly against the Regulation 9 criteria or given adequate evidence of the reasoning processes behind its decision.
20.	By a Respondent’s Notice the Commission asked us to determine the appeal finally in its favour so that the matter would not have to be remitted to a Tribunal for further consideration.  Mr Brennan QC, who appeared for the Commission, submitted that the evidence in this case admitted only of one answer, namely that Mr Jones was not a fit person to manage a care home under the new legislation, and that we should say so.  He placed particular weight in this regard on the evidence that at the very start of the registration process Mr Jones had deliberately decided to deceive the Commission by concealing from it the fact that disciplinary proceedings against him in relation to his conduct as manager of a care home were pending at the time.  He asked rhetorically how such a man could be trusted to keep accurate records of the matters required by Schedules 3 and 4 to the 2001 Regulations if the Commission could not even trust the accuracy of the information in his own application for registration.
21.	While these are powerful submissions, I consider that on matters like this it would be wrong for this court to hold that the case can only be decided in one way, thus depriving the expert Tribunal of its opportunity of appraising them now that we have stated the legal principles which must underscore its approach.  The decision of the original Tribunal having been quashed by the judge, this in my judgment is a case which because of its sensitivity should now be heard by a different panel of the Tribunal presided over either by the President or by a different chairman specifically chosen by the President to hear this appeal.
22.	There are two other matters which deserve to be mentioned.  The first is that under section 27 (1) of the 2000 Act a person commits a criminal offence if he knowingly makes a statement which is false or misleading in a material respect in an application for registration under Part II of the Act.  The Tribunal must therefore be astute to ensure that an appropriate warning against incrimination is given before an applicant is asked questions designed to elicit information about his state of mind when he made false statements on an application form.  
23.	The other is that the Commission relied on four recent findings of professional misconduct (for which Mr Jones received a caution) as one of its reasons for refusing registration both in its original decision letter and in its original statement of reasons for resisting Mr Jones’s appeal.  While there is no reason why the Tribunal should not be free to consider any argument addressed by either party on the question whether it should or should not confirm the Commission’s decision, it was a pity in this case that the Commission’s advocate decided to widen his client’s grounds of objection on the eve of the appeal hearing by suggesting for the first time that the allegations found to be proved were “about as serious a set of allegations as can be made against a manager of a care home” (which was manifestly not the case), and that Mr Jones was “obviously disbelieved” by the disciplinary committee when he was doing his best to defend himself against accusations which went back five or six years.
24.	As Mr Clayton observed, in order to adjudicate fairly on the matter, the tribunal would have to scour the voluminous transcripts of the disciplinary hearing in order to understand whether there was anything of value to be extracted from a study of the way Mr Jones conducted his defence.  The Tribunal’s time would have been better spent if this issue had never been raised, and it would set an unfortunate precedent if the Commission, after setting out its reasons for refusal fully and dispassionately at the outset of the appeal procedure was in any way encouraged to embellish them in much more emotive terms at the appeal hearing.
25.	For these reasons I would dismiss this appeal.
26.	Although Mr Jones had lost his appeal, the Commission decided to cross-appeal, and it lost its cross-appeal.  The judgment of the court in this case will be of great value generally to the Commission and to the Care Standards Tribunal itself in operating the registration provisions of the new Act.  We made it clear to the parties at the end of the hearing that we would entertain written submissions on costs when the judgments became available to them. At present I am of the opinion that an order that Mr Jones should pay 70% of the Commission’s costs of the appeal would meet the justice of the case.   
Lord Justice Mance:
27.	I agree.
Lord Justice Thomas:
28.	I also agree. I add a very short word of my own because of the general importance of the issue on the burden of proof.   Bodies charged with regulation are frequently entrusted with the task of determining whether a person who seeks to hold a position of trust is a fit and proper person to hold such a position.  There have been instances where the regulatory body has been uneasy as to whether the person in fact is a fit and proper person; in such cases, because the provisions of some regulatory systems have been interpreted as placing the burden of proof on the regulator, the regulatory body has felt constrained to allow such a person to occupy such a position of trust, despite its doubts. To state that outcome demonstrates the fact that in such a case there may have been a failure of the legislative scheme in seeing that, in the public interest, positions of trust are occupied by persons who are demonstrably fit and proper. The interpretation of any legislative scheme is a matter of the construction of the particular scheme.
29.	I agree that the provisions of the Care Homes Regulations 2001 are very clear in placing the burden on an applicant. It is entirely in the public interest that they should do so. A manager of a care home occupies an important position of trust and must, as my Lord has held, demonstrate that he is fit and proper to hold such a position; any doubts must be resolved against registration.  This does not deprive an applicant of earning his living as a nurse or in some other occupation, but prevents him, in the public interest, occupying a position of trust, unless he can demonstrate to the Commission that he is fit and proper to occupy that position.