Jacqueline Dorothy Hall
-v-
Commission for Social Care Inspection
[Respondent’s Application dated 5th November 2004 on a Preliminary Issue under Reg 20]

[2003] 242.EA

His Honour Judge David Pearl
(President)
Ms M Adolphe
Ms B Chatfield

1.	This is the second application in this case made on behalf of the Respondent.
2.	In the first application, the Respondent applied to strike out this appeal and three other related appeals, brought by the Appellant. The application was made in accordance with Schedule 1 Paragraph 4 of the 2002 Regulations (now re-enacted as Regulation 4A).
3.	At a hearing held on 10th August 2004, the Tribunal considered the submissions presented by both sides, and by a decision promulgated on 17th August 2004, the Tribunal dismissed the application to strike out the appeals. No proceedings were taken by the Respondent to challenge this decision.
4.	However, subsequent to the decision on the strike out application, the Respondent, by letter dated 5th November 2004, applied to the Tribunal for it to determine the preliminary issue of whether upon loss of possession and control of the registered premises, an appellant is no longer in law able to comply with (amongst others) Regulations 12(1)-(4),16,17(1)(b),18,23,25 and 26 of the Care Homes Regulations 2001, with the result that he or she will be unable to carry on the registered establishment in accordance with relevant requirements (s 14(1)(c) Care Standards Act 2000).
5.	The Respondent applied for a Tribunal Ruling, after the determination of the preliminary issue, on whether the appeals should be allowed to proceed to a full hearing.
6.	On the 22nd December 2004, The Tribunal heard oral argument from Mr R McCarthy QC on behalf of the Respondent and Mr P Engelman of Counsel on behalf of the Appellant. Further Directions were made subsequent to this oral hearing. 
7.	We are being asked, in this application, to exercise our powers under Part V of the Regulations, and specifically to regulate our own procedure by hearing a particular issue in advance of the full hearing of the evidence. The Tribunal has used this power in a number of cases; for example Raphael Medical Centre v Commission for Social Care Inspection [2002]54,55 NC. It makes sense to try to limit the issues at an early stage, and there may be a considerable saving of costs to both parties and to the Tribunal if the procedural Rules can used in this flexible way. 
8.	Paragraph 1 of the Further Directions dated 23rd December 2004 states “It is agreed by both parties that the Tribunal has the power under Regulation 20 to consider and to decide on, as part of the hearing under Part V, particular issues prior to any consideration of the bulk of the evidence”.
9.	The Appellant was given time (extended by further Direction) to submit any written argument in support of the submission that the Tribunal is prevented from considering the Respondent’s application dated 5th November 2004 because of the prior decision promulgated on 17th August 2004 against striking out the application.  In particular, time was given for Mr Engelman to develop the abuse of process argument that was advanced at the hearing. The Respondent was given time to respond.
10.	In the Submissions filed by  Mr Engelman on 21st January 2005, attention is drawn to the cases of Maycock v Rotherham Reboring Service Ltd [2003] All ER 423 and Affleck v Ferguson and others [2001] All ER 307. Mr Engelman submits that the issue before us, however dressed up, is whether “premises are an essential component for continuing registration” and that this issue has been decided in the Appellant’s favour in the decision promulgated on 17th August 2004.
11.	Mr McCarthy in his Response dated 11th February 2005 seeks to distinguish Maycock on the basis that it is dealing with issue estoppel. Here, it is said, the present issue is not the same as that determined by the decision dated 17th August 2004, and there is therefore no possible case of issue estoppel. 
12.	So far as Affleck is concerned, Mr McCarthy submits that it supports the Respondent’s submission. He refers the Tribunal to the last two lines of the Report: “The decision of the Chairman in 1988 gave rise to issue estoppel only in relation to the issues that had been before him and did not do so in relation to factual details that were not directly in issue.” 
13.	The decision of the Tribunal dated 17th August 2004 deals with an application to strike out the appeal. In paragraph 24 of that decision, the Tribunal states that it would not be appropriate to strike out these appeals. Section 21 is clear and unambiguous, and the Tribunal agreed with Counsel for the Appellant that to deprive an Appellant of the right of appeal through operation of the strike out procedures would arguably be a violation of his or her rights under Article 6 of the European Convention.
14.	We agree with Mr McCarthy that the present application deals with a different issue, and therefore that the issue estoppel cases (Henderson v Henderson cited in oral submissions and the cases cited in the written submissions) are not relevant. 
15.	More relevant is the abuse of process point. We have given much thought to Mr Engelman’s submission but have to say that we do not find it an attractive proposition. We are not persuaded that it would be an abuse of process on the basis that “a point cannot be advanced if it could have been argued previously and was not”, as suggested by Mr Engelman. Such an approach does not seem to us to be helpful in the context of appeals from decisions of Regulators. In many such cases, there could well be issues affecting the lives of vulnerable adults or children, and there will often be important issues concerned with the ability of an Appellant to earn a living and/or to run a business. It would be wrong in our view to adopt such an inflexible approach.
16.	We have seen a letter dated 2nd December 2004 from Solicitors acting for Rowans Care Homes Ltd who write to confirm that the premises 18-20c Ashby Road, Burton on Trent (the residential care premises) have now been acquired by their clients. It is conceded by Mr Engelman in his skeleton argument that the Appellant no longer has the premises and accordingly cannot comply with “the Regulations apposite to those premises”. Indeed she has never disputed this fact.
17.	Mr Engelman contends that this concession does not affect her appeal nor affect her entitlement to pursue her appeal to its conclusion. As to the first of these contentions, the Respondent has of course conceded the point by not appealing or seeking judicial review of the decision of the Tribunal on the strike out application.
18.	We must of course look at the appeal as at the date of the hearing. It is unarguable but that at this time there has been a loss of premises, and that the establishments for this reason cannot be carried out in accordance with the relevant requirements of the Care Homes Regulations. We therefore find as a fact that the s 14(1)(c) ground is established.
19.	We go on therefore to consider the consequences of this finding. Mr Engelman submits that to decide that the Appellant has a right of appeal but that the exercise of that right is nugatory because it cannot lead anywhere deprives her of her entitlement to appeal under the 2000 Act and the protection guaranteed by Article 6 of the Convention. He contends that the Appellant could succeed, notwithstanding the fact that she is unable to comply with the various provisions of the Care Homes Regulations as they affect premises. He states: “It is possible for the Tribunal to direct under s 21(4) [the Order of a JP] or one may add here also s 21(3) [the decision of the Registration Authority] that the Decision or Order should cease to have effect but to annex a condition under s 21(5)(c) that before the Appellant is allowed to operate from premises, those premises are to comply with s 14(1) of the Act”. He submits that we should issue Directions now for the matter to proceed to a full hearing, and there is no need for any further oral hearing with respect to this issue.
20.	Mr McCarthy takes a different position. He submits that the procedural and practical consequence of the decision, if in the Respondent’s favour, does require a further oral hearing. He argues, assuming that the Tribunal rejects the abuse of process argument and decides the Respondent’s application dated 5th November 2005 in favour of the Respondent, that this necessarily means that it would be pointless to go on to consider and to decide on the bulk of the factual evidence. He submits that an oral hearing is required to address the contrary position as set out in paragraph 19 above.
21.	Thus, the Tribunal reaches the following conclusions on the Notice of Application dated 5th November 2004:
•	The Tribunal has jurisdiction under Regulation 20 to isolate specific issues and make findings on these matters in advance of a full hearing;
•	There is no abuse of process or issue estoppel to prevent the Tribunal from dealing with the application by the Respondent dated 5th November 2004;
•	There is a concession in this case that the Appellant cannot comply with the Care Homes Regulations 2001, given that the Appellant no longer has ownership or any interest in the properties;
•	It is our finding, accordingly, that the Appellant cannot carry on the establishments in accordance with the relevant requirements as set out by s 14(1) (c) of the Care Standards Act 2000;
•	There should be a further hearing as requested by the Respondent (time estimate half a day) to deal with the consequences of these findings.

The Secretariat will liaise with the parties to obtain a date for a hearing under Regulation 20 to deal with the outstanding procedural issue in this case.

ORDER ACCORDINGLY

His Honour Judge David Pearl
(President)
Ms M Adolphe
Ms B Chatfield
25th February 2005.