H v The Welsh Ministers [2006] EWCST 1027(EA-W) (01 October 2007) 

H
-v-
The Welsh Ministers
[2007] 1027.EA-W

Before
Mr. Simon Oliver
Deputy President

DECISION

The application to strike out was heard on 14th September 2007 Mr. Ian Wise of counsel appeared on behalf of the appellant and Mr. Jonathan Furness QC, of counsel, appeared on behalf of the Respondents.

Background
1.	On 9th August 2007 I gave directions in relation to this appeal. At that hearing it was indicated by Ms Stephens on behalf of the Respondents that an application to strike out the appeal would be made by them pursuant to Regulation 4A of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002. That application was made and the grounds relied upon are 4A(1)(b) namely that the appeal is outside the jurisdiction of the Tribunal or is otherwise misconceived and/or 4A(1)(d) that it has no reasonable prospect of success.

2.	The issue to be determined is whether an application to register as a manager relates to a specific premises or is more general.

3.	The reason for this is that the Respondents say that as H no longer has any association with SP Nursing Home and that the legal framework presupposes that there are specific premises to which the application to register as a manager relates. Since SP is no longer available to the applicant the Respondents contend that the appeal is bound to fail. On behalf of H it is contended that the registration process is person specific rather than establishment specific and, consequently, the application to strike out is misconceived.

Legal Framework
4.	The legal framework is set out, in particular, in sections 12 and 13 of the Care Standards Act 2000. It is also necessary to refer to the Care Homes (Wales) Regulations 2002.

5.	Section 12 of the Act concerns applications for registration and section 12(2) states that the application must give the prescribed information about prescribed matters and must give any other information which the registration authority reasonably requires the applicant to give. By subsection (4), a person who wishes to carry on more than one establishment must make a separate application in respect of each of them.

6.	Section 13(2)(a) states that if the registration authority is satisfied that the requirements of regulations under section 22 are being and will be complied with, it shall grant the application. In this case the relevant regulations are the Care Homes (Wales) Regulations (the Regulations). Paragraph 7 of the regulations refer to ‘Registered Persons’. Paragraph 7 deals with ‘Fitness of Registered provider’ and 7(1) states that a person shall not carry on a care home unless he or she is fit to do so. Section 14 of the Act deals with cancellation of registration and section 17 deals with the registration procedure where a person applies for registration in respect of an establishment or agency.

Cases referred to
7.	In his skeleton argument Mr. Furness referred to a number of cases considered by the Registered Homes Tribunal (RHT). In particular he cited Woodard v North Somerset [1998] 1 FLR 950, Jenkins v Essex County Council [1999] 1 FLR 420, Sanjivi v East Kent Health Authority [2000] 59 BMLR 115 and, on appeal, at [2001] EWCA 125.

8.	In addition, there are two cases of this Tribunal. Hall v CSCI [2003] EWCST 242 (EA) and Ajibewa v Ofsted [2005] 539.EY. Hall v CSCI has two decisions: the first (Hall 1) is dated 17th August 2004 and the second (Hall 2) is dated 25th February 2005.

9.	I was provided with copies of all these reports although the relevant passages from the RHT are set out in the report of Hall 1.

The submissions
10.	On behalf of the Welsh Ministers it is said that the registration process is establishment specific as, under section 12(3) of the Care Standards Act 2000, a person who applies for registration as the manager of an establishment or agency must be an individual. Under section 12(4), there is the need for separate registration in respect of each establishment. Thus, it is said, a manager must obtain registration for each establishment and there is no general registration. As for the present case, there is no establishment which the applicant now seeks to manage.

11.	It is said that the tribunal cannot now be satisfied (under section 13(2)) that the requirements will be complied with in respect of SP Care Home as H no longer has any contact with the establishment.

12.	Further, the Welsh Ministers argue, Paragraph 9(2)(b) of the regulations shows that the fitness of the registered manager is to be seen as home specific as to determine whether or not a person is fit to manage a care home consideration has to be given to the size of the home, the statement of purpose and the number and needs of the service users.

13.	Mr Furness argues that if the appeal were allowed there is, in effect, no appropriate order that can be made. Certainly, it is argued, by directing that the order (to refuse registration) ceased to have effect it would not mean that H has been deemed fit to manage any care home since any application to register must be in respect of a particular home. This means that if the Appellant finds employment as a prospective manager of another home a fresh application will be needed and will be determined on the basis of information available at that time.

14.	On behalf of H, Mr. Wise argues that Reg. 7 requires that a person shall not “carry on a care home unless he or she is fit to do so.”  Fitness is defined in reg 7(3) as being a “suitable integrity and good character” to run a care home.  Reg 9 refers specifically to the fitness of a person to manage a care home.  It was under this regulation that Ms H’s application was rejected by CSSIW.  Each aspect of reg. 9, Mr Wise argues, is related to the individual’s fitness to manage a care home.  Fitness is not in any way qualified by availability or suitability of a care home.

15.	It is further argued that the right of appeal from any decision of the CSSIW is found in s.21 of the Care Standards Act 2000 and the procedure for appeals to the Tribunal is found in sch 1 of the 2000 Act and reg.4 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002. However, none of these provisions qualify, amend or otherwise alter the primary provision found in reg.9.  

16.	Mr Wise further argues that neither CCSWI nor the Tribunal is in any way concerned with the availability of a post or suitability of the care home that the application for registration as a manager of a care home relates to.  Whether a position as a care home manager is offered is a matter between the individual and the proprietors of the care home, it is not the concern of the CSSIW or the Tribunal.

17.	On behalf of H, it is said that for the reasons given by the Tribunal in Hall1 [2003] 242.EA is would be wrong to strike out this appeal.  In a similar situation to the present the Tribunal (including the President) in Hall 1 decided:
(a)	That a strike out application was not the appropriate means of determining whether an appeal would be bound to fail where the appellants no longer had an interest in the care homes they had sought to manage,
(b)	To strike out the appeal was arguably a breach of the appellant’s article 6 ECHR rights, 
(c)	There was nothing in the legislative provisions which prevented a person from being registered as a care home provider following the sale of the home,
(d)	The fact that an appeal can proceed notwithstanding the death of an appellant indicates that the link between the individual and the establishment was not as crucial as had been submitted on behalf of CSCI,
(e)	Costs warnings can be given if the Tribunal considers such warnings to be an appropriate way of regulating its proceedings.

18.	Mr Wise states that the Respondent seeks to distinguish Hall 1 by reference to Ajibewa, where it is submitted that “the Tribunal appears to have taken a different stance.”   They did not do so.  Ajibewa was not a strike out application and as such could not alter the President’s view in Hall 1 that a strike out application was not the appropriate forum for dealing with this issue.  The appeal was not dismissed for want of premises.  Importantly the Tribunal in Ajibewa did not adopt an “establishment specific” approach.  What they said (at para. 56) was that they considered that a pragmatic approach should be taken; if the appellant could satisfy them that there was a practical advantage in dealing with the appeal they should do so.  Mr Wise believes that this is a far cry from the Respondent’s contention in the present case that the lack of a specific job automatically made the appeal so hopeless that it should be struck out.

Conclusions
19.	It is necessary to consider the two cases that have come before this tribunal. Hall 1 was an application to strike out at a preliminary hearing. In that case the President (at paragraph 22) felt that the interpretation of the Care Standards Act was not a matter that should be considered at a strike out application as it is a matter of considerable importance. Hall 2 was a further application to strike out. Ajibewa was a full hearing.

20.	In contrast to the two Hall decisions, Ajibewa is a lengthy decision (131 paragraphs over 15 pages) and the panel undertook a detailed review of the law prior to the creation of this tribunal between paragraphs 35 and 45 of the decision. At paragraph 46 that panel conclude that ‘we feel free to take a relatively fresh approach to the new legislation’.

21.	Although the Tribunal in Ajibewa were dealing with the cancellation of registration by Ofsted, the principles are similar to this case. The key paragraphs in that Ajibewa decision are, I believe, 56 and 57. In those paragraphs it is said that where the premises are sold, the issue is to decide whether to cancel registration on the simple grounds that the provider does not have access to the relevant premises (this is the Welsh Ministers position) or to consider other issues. The decision continues: ‘We consider that a pragmatic approach should be taken. If the parties cannot persuade the tribunal that there is some practical advantage to be gained from considering other issues, the tribunal should cancel registration on the sole grounds of lack of premises. If the parties can persuade the tribunal that there is some practical advantage in giving a decision on other issues, the tribunal should do so.’

22.	Paragraph 57 states: ‘it seems to us to be unlikely that there will be any practical advantage in considering other issues unless the appellant is a registered provider in respect of other premises or intends or is likely in the future to wish to make a further application for registration. We doubt that a mere wish by an appellant to clear his or her name will be enough if there is no prospect of him or her seeking registration in the future.’

23.	So, is there a practical advantage to be gained by hearing this matter? Until Mr. Wise spoke I was of the opinion that this could well be just a wish by H to clear her name as there seemed to be no other premises involved. However, at the start of his submissions Mr. Wise provided the tribunal and the Respondents with a short, three paragraph, statement by the Appellant dated 14th September 2007. In it she states that she has been approached by the owner of a home who is aware of her position but wants to appoint her.

24.	Although this information came very late in the day, I think that it is important. It seems to me that it does make this appeal come within the matters envisaged in paragraph 57 of Ajibewa, namely that the Appellant is someone who intends, or is likely in the future to wish to make a further application for registration.

25.	It is argued by Mr. Furness that anyone offering a post will be well aware that H is under investigation by the police and that that will be as great a hindrance (if not more so) than this appeal. Whilst that may be true, that does not obviate the need for this matter to be considered by this tribunal and, in any event, I was informed that the decision by the police as to whether or not to proceed was being taken by the end of September.

26.	I have come to the conclusion, therefore, that there is some practical advantage in hearing this appeal. If I am wrong on that matter, I am also of the opinion that this matter should not be determined as a preliminary matter (per the President’s decision in Hall 1).

27.	I dismiss this application to strike out this appeal and order that (as agreed) there be a telephone directions hearing at 3.30pm on 1st October 2007. 

Simon Oliver
Deputy President
1st October 2007