Adelphie v Commission for Social Care Inspection [2007] EWCST 1125(EA) (04 February 2008)

Sean Charles Adelphie
(Trevine Court)
-v-
Commission for Social Care Inspection
[2007] 1125.EA

STRIKE OUT APPLICATION

1.	At the Preliminary Hearing before me on 22nd January 2008, Ms J Blackstock of Counsel instructed by Akermans Solicitors appeared on behalf of the Appellant, and the Respondent was represented by Mr S Janisch, Solicitor of RadcliffesLeBrasseur.
2.	The Preliminary Hearing was Directed by Order dated 1st November 2007 of Mr Simon Oliver, the Deputy President, to deal with the application brought by the Respondent on 20th October 2007 (in paragraph 17 of the Response Document) to strike out the appeal on the basis that it is misconceived and/or frivolous and/or vexatious and/or the Appellant has no reasonable prospect of success. The Respondent seeks also an Order under Regulation 24 that the Appellant do make a payment to the Respondent to cover its costs incurred in respect of the appeal on the basis that the Appellant has acted unreasonably in bringing the appeal.
3.	The background to the strike out application can be set out by the recitation of the following facts. By letter dated 21st August 2007, the Respondent gave notice to the Appellant of its decision to adopt the proposal under section 17 of the Care Standards Act 2000 to cancel his registration in respect of Trevine Court. On 21st September 2007, the Appellant appealed to the Tribunal against this decision. The appeal document was served by Akermans Solicitors on behalf of the Appellant and was accompanied by a covering letter from Akermans that states “We are instructed by Mr Adelphie in connection with the above care home and the action taken by CSCI by letter dated 21st August. We enclose herewith Notice of Appeal which we are sending today by fax and also by post as the appeal must be made by the 21st September.” The letter is dated 20th September, and the appeal documents arrived by post on the 21st September 2007; within the time limits as permitted by section 21(2) of the Care Standards Act 2000.
4.	Prior to the Appellant lodging the appeal documents in respect of the decision dated 21st August 2007 on 21st September 2007, the Respondent on 13th September 2007 applied under section 20(1)(a)(i) of the Care Standards Act 2000 to a Justice of the Peace  sitting at Worthing Magistrates’ Court. The Justice of the Peace, on that day, ordered the cancellation of the registration of the Appellant (and his mother) in respect of Trevine Court. In accordance with section 20(1) of the Care Standards Act 2000, the cancellation has effect as from the time that the section 20 Order is made. Notice was served on the Appellant (and his mother) of the right of appeal available to them under section 21(1)(b) of the Care Standards Act 2000  to the Tribunal.  No formal Notice of Appeal was received by the Tribunal within the 28 day time limit with respect to the section 20 decision.
5.	The question as to whether there is jurisdiction to extend the 28 day time limit in which an appeal can be brought with respect to the section 20 Order made  by the Justice of the Peace has been considered by Mr Oliver, the Deputy President, and his response appears by way of a Note by him dated 1st November 2007. He held that he was bound to follow Ofsted v Care Standards Tribunal [2007] EWHC 341 (Admin) where Collins J had held that the 28 day time limit could not be extended. Ofsted v Care Standards Tribunal was concerned with a time limit set out in the Regulations. Mr Oliver said in his Note of 1st November 2007: “If that is the view taken by the High Court on a limitation in a Regulation, it follows that the same view will be taken on a limit set in an Act of Parliament.” He also said that he was perfectly willing to make an express order refusing to extend time if it were felt that the Appellant wished to appeal that decision to the High Court and attempt to challenge the decision in Ofsted v Care Standards Tribunal. No such application has been made by the Appellant.
6.	At the hearing before me, Mr Janisch submitted that as no appeal has been lodged against the Order made by the Justice of the Peace, the appeal with respect to the Notice of Cancellation dated 21st August 2007 should be struck out.
7.	Ms Blackstock did not wish to challenge Mr Oliver’s Note that the 28 day period for appealing the section 20 Order cannot be extended. Rather she urged on me the view that the Appeal Application Form B dated 20th September 2007 was in fact an appeal in respect both of the 21st August Notice of Cancellation and the 13th September section 20 Order of the Justice of the Peace. She pointed to the first page of Form B where the question against Note 1 “Is your appeal in relation to an order made by a Justice of the Peace or District Judge?” had been left blank. She drew my attention also to the fact that in section 3 of the Form, the Appellant had stated that the establishment had been closed. Ms Blackstock submitted that it was the intention of the Appellant to appeal both the Notice of Cancellation and the Justice of the Peace Order. 
8.	The difficulty with this interpretation is that the Appeal Form B was prepared by Solicitors and the covering letter made absolutely clear that the Appeal related to the Notice of Cancellation only. Whilst one has sympathy with the Appellant, the Tribunal cannot go behind the very clear intention from the documentation that there has been no appeal brought in respect of the section 20 Order. It is clear that Akermans (the Solicitors) were fully aware that the decision of the Justice of the Peace activated a separate right of appeal, and the letter from them to the Secretary of the CSCI dated 14th September 2007 seeks certain information urgently in relation to the section 20 proceedings “so that we can consider them and an appropriate appeal”. 
9.	It is my finding that Mr Janisch is correct when he says, that when looking at the documentation including the covering letter and the attached grounds of appeal, there can be no alternative to the conclusion but that only one appeal has been lodged and that is in respect of the Notice of Cancellation. It is my finding that the Form that was sent to the Tribunal on behalf of the Appellant by his Solicitors was an appeal in respect to the Notice of Cancellation only, and that no appeal has been filed within the time limits as set down by Statute from the decision of the Justice of the Peace.
10.	Ms Blackstock went on to submit that the decision of the Justice of the Peace was void for various reasons. These are not matters that can be dealt with by this Tribunal; and I go on therefore to deal with the strike out application; on  the basis that the decision of the Justice of the Peace is a decision that has not been appealed, and therefore remains in force. 
11.	I heard submissions by both Mr Janisch and Ms Blackstock on the application to strike out; and I then adjourned the proceedings to enable both parties to consider the decision of The Welsh Ministers v the Care Standards Tribunal and H [2008] EWHC 49 (Admin) that was heard before Davies J in the Administrative Court sitting in Cardiff and whose judgement was due to be handed down later on in the week of the hearing before me in the instant case. I invited both parties to make further written submissions having read the decision. I summarise below the two submissions.
12.	 Mr Janisch’s primary submission in seeking to have the appeal struck out is that it is consistent with the judgment of Davis J in The Welsh Ministers v Care Standards Tribunal and H.  He submits that Davis J has approved the approach taken by the Tribunal in Ajibewa v OFSTED [2005] 539.EY; namely, that the question that should be asked is as follows: would there be any “real purpose” in allowing the appeal to go to a full hearing on the merits? Mr Janisch submits that there would not be a “real purpose” in allowing this appeal to go to a full hearing. He submits that the Appellant is free to make a new application for registration as provider, either in respect of Trevine Court or of any other home he may purchase. It is said that if such an application were to be made, the present Appellant would no doubt inform the Regulator that he disputed the grounds given for its decision to cancel his previous registration. In addition, it is submitted by Mr Janisch that the Appellant  would be entitled to rely on the fact that there had been no adverse findings made against him by the Tribunal.  Mr Janisch points out that the Regulator, in such a scenario, may or may not seek to rely upon the facts and matters which were grounds for the decision to cancel the current registration, but that if it did seek to rely on these facts, the Appellant could make representations under section 18 and would of course have a right of appeal to the Tribunal.
13.	Mr Janisch draws attention to paragraph 41 of Davis J’s judgement where Davis J said “I cannot, moreover, see that a Regulation (such as Regulation 4A of the 2002 Care Standards Tribunal Regulations) making procedural provision for striking out groundless appeals can be objectionable of itself.”
14.	Mr Janisch therefore urges the Tribunal to strike out the appeal primarily because the cancellation of the Appellant’s registration in respect of the care home concerned is now legally final by reason of there having been no appeal against the section 20 decision, and thus the outcome of the present appeal must be a formal dismissal. As an alternative submission, Mr Janisch says that even if the appeal were allowed, any order made by the Tribunal saying that the decision to cancel should not have effect under section 21(3), would itself be meaningless because the registration would remain cancelled by virtue of the section 20 Order.
15.	Mr Janisch distinguishes The Welsh Ministers v Care Standards Tribunal and H by drawing attention to three points. First, the current case involves cancellation of an existing registration whereas Davis J was concerned with the refusal of an application by a prospective manager/ employee to be registered. Secondly, he states that the cancellation of registration by virtue of section 20(1) and the absence of an appeal brings registration to an end and that this has legal consequences that circumscribe the powers of the Tribunal under section 21(3) if an appeal against a section 14 decision to cancel were to be heard after registration had been cancelled under section 20. No equivalent consequence flows from a section 14 decision. Thirdly, it is said that the provider/owner would not be in the same disadvantageous position as the manager/employee who has been refused registration. Mr Janisch submits that  “a person who owns a care home has control over his affairs and is not dependent on an offer of employment by a third party before he can seek registration under the Act. He will therefore not suffer the claimed injustice encountered by Mrs H in H.”
16.	Ms Blackstock, in her written submissions, submitted after the decision was published in Welsh Ministers v Care Standards Tribunal and H, is right to point out the discretion available to the Tribunal when considering a strike out application. She points also to the necessary reluctance to use the jurisdiction as expressed by Davis J when he says “[it] gives rise to an initial sense of wariness, given that the strike out jurisdiction is a discretionary jurisdiction to be exercised in the circumstances of each case.” Ms Blackstock emphasises correctly that the jurisdiction must be exercised with appropriate caution, and she points to the Tribunal decision in Hall (No 1) v Commission for Social Care Inspection [2003] EWCST 242 where the Tribunal adopted a cautious  approach.
17.	Ms Blackstock argues that the reasoning of Davis J in Welsh Ministers v Care Standards Tribunal and H, is the same as that put forward by the Appellant in the present appeal. She submits: “In this case, because of the section 20 cancellation, the Appellant has lost his registration and the service users in his care home have been removed. He has accordingly lost his income and livelihood. It is of paramount importance for him that he be able to return to that work as soon as possible. Because there is now no appeal from the section 20 cancellation, the Appellant can only re-apply for registration. Registration will rest on the Appellant being able to evidence that he is fit to carry on a care home for the purposes of Regulation 7 of the Care Homes Regulations 2001. When CSCI considers paragraph 3 it will be of consequence that the Appellant’s registration was cancelled. As Davis J considered, the chance to persuade the Tribunal that the grounds for the section 14 cancellation were not justified are crucial to the Appellant’s future employment. This outcome would therefore produce a real advantage towards successful registration.”
18.	Davis J applied the approach adopted by the Tribunal in Ajibewa v Ofsted [2005] 539 EY. The Tribunal in that case (a cancellation of registration under the provisions of Part XA of the Children Act 1989 where the property had ceased to be available) said: “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 ground of lack of premises…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.” Ms Blackstock submits that there is a prospect of the Appellant seeking re-registration in the future, and therefore persuading the Tribunal that the section 14 cancellation was not justified would produce a “real advantage.”
19.	It is important to reassert the manner in which the Tribunal has considered strike out applications over the last six years. It is a discretionary power that has been exercised by the Tribunal with considerable caution. It must not be used simply for the convenience of the Respondent who is seeking to persuade the Tribunal to limit the use of public funds. The Tribunal has a duty to be fair, and must do its utmost to ensure that Appellants are given every opportunity of having their cases heard before an independent Tribunal. As Davis J said: “[The] invocation of article 6 is...of rather greater force…in confirming what is…the normal procedural approach under domestic law: viz that to strike a claim out summarily is a strong thing to do and such power must be exercised with appropriate caution. That is the more so where (as here) the ability to secure employment is affected by the decision sought to be challenged.”
20.	It is this approach that I adopt. Even so, I believe that it is incumbent on Ms Blackstock to show me that there is a practical advantage in this case in allowing this case to go to a full merits hearing; in a situation were the registration has been cancelled by operation of the section 20 emergency procedures (that have not been appealed).  
21.	It must be remembered that if the appeal were to proceed to a full hearing, the Tribunal would be duty bound to look at the facts as at the date of the hearing. As the registration has now been cancelled by virtue of the operation of section 20 (unappealed), the decision of the Respondent under section 14 to serve Notice of Cancellation must inevitably be confirmed. It would not be possible to “direct that it shall not have effect.” 
22.	Is there, notwithstanding, a practical advantage in the Appellant pursuing the appeal? I have to say that I have struggled in this case to find one, other than the desire to “clear his name”. The Respondent has stated at this hearing, and in his submissions, that the cancellation of the registration will not determine (although it may be used as a reason) CSCI’s decision on any future application by the Appellant to be registered. That is an important concession by the Respondent.
23.	I have decided that in this case it would be appropriate, in the exercise of my discretion, to strike out this case on the ground as set out in Regulation 4A(d) that the appeal has no reasonable prospect of success. In doing so, I have of course made no findings of fact; but I have concluded that there is no practical or real advantage for the Appellant in litigating the section 14 appeal at a full merits appeal, given that the registration is cancelled by operation of the unappealed section 20 procedures, and that any new application for registration by the Appellant will not be determined by the current reasons for the section 14 cancellation (if they formed a part of a refusal, and a right of appeal were exercised, there would then be an opportunity for a full rehearsal of all of the allegations in the current section 14 Notice of Cancellation). 
24.	This is a different situation to the application for registration cases (such as Hall and H) where different considerations apply. The case is similar to Glen Robinson v New Beginners Nursery Ltd v OFSTED [2002] 88 EY where the Tribunal (Mr Rowland, nominated Chairman) dealt with a case where the Appellant had appealed against a decision of a Notice to Cancel Registration of an Early Years provision under section 79G of the Children Act 1989. The Respondent in that case had obtained an Order under section 79K for emergency cancellation of the provision, and no appeal had been lodged in time against that emergency cancellation. The Respondent applied for the appeal to be struck out. Mr Rowland decided to strike out the appeal: “The continuation of the appeal has become pointless and the appeal has therefore become vexatious.”
25.	In accordance with regulation 4A(4), the Appellant may apply to me, for this determination to be set aside. Such an application must be made not later than 10 working days after the date on which notice of the determination was sent to the Appellant; and must be in writing stating the grounds in full.
26.	The Respondent gave an indication that it would be making an application for costs. Such an application should be submitted in writing setting out the information required by regulation 24.  No such application will be considered until the expiry of the 10 working days available for the Appellant to consider whether to apply to set aside this determination.

ORDER:

DETERMINATION UNDER REGULATION 4A(4) TO STRIKE OUT THE APPEAL BROUGHT BY THE APPELLANT ON SEPTEMBER 21st 2007 AGAINST THE NOTICE OF CANCELLATION OF THE REGISTRATION OF THE APPELLANT IN RESPECT OF TREVINE COURT.

His Honour Judge David Pearl
President
4th February 2007.