Beddows v The Welsh Ministers [2008] EWCST 1312(EA-W) (14 October 2008)
Garda Beddows

-v-

The Welsh Ministers
[2008] 1312.EA-W

Before
Miss Maureen Roberts, Chairman
Mr. Graham Harper Specialist Member
Mr. Michael Jobbins Specialist member

DECISION

Heard on the 7th October 2008 at Prestatyn Magistrates Court, Prestatyn North Wales.

Representations
The Appellant represented herself and was assisted by her husband. The Respondent was represented by Miss Sarah Williams, Welsh Assembly lawyer.

The Tribunal heard evidence from Ms Gwen Baxter the Inspector involved with the case and from Ms Deborah Russell the Regional Manager for the Respondent. The Tribunal heard from the Appellant and her husband Mr Beddows.

The hearing started at 10.30am. At 10.55am the tribunal had a message that the Appellant was ‘running’ 30 minutes late. The Tribunal stopped and waited until 11.20 am when it re-started. The Appellant and her husband arrived at the hearing at 12 noon. They had the bundle. The evidence given by Ms Baxter was summarised to them and they heard Ms Russell’s evidence. They then gave their own evidence. 

The Appeal

1.	The Appellant appeals against the Notice of Decision to refuse Registration to run an Employment agency (for domiciliary care workers) issued by the Respondent on the 18th April 2008. The Appellant submitted the appeal on the 13th May 2008.  

The background

2.	The Appellant who is eighty years old moved to North Wales some fifteen years ago. She had worked, among other jobs, as a carer and obtained a certificate in Health and Social Care from the Open University. She started a domiciliary/employment agency called ‘The Unlimited care Agency’ in 1999 and ran it from her home address. The appellant was significantly affected by a fire that destroyed her home in 2007. She lived in a mobile home until the house was rebuilt; this was completed at the end of 2007.

3.	Under sections 11 and 12 of the Care Standards Act 2000 (CSA) such agencies are required to be registered and the Respondent is the registering authority. On the 24th October 2006 the Appellant made an ‘Application to register a Domiciliary care Agency’ to the Respondent. On the application form she ticked that she intended to provide an Employment agency and then ticked the box which indicated that she intended to provide both an employment agency and a Domiciliary care Agency. At the hearing it was evident that the Appellant intended to provide an Employment Agency.

4.	The Appellant is currently running the agency under the transitional provisions contained in regulation 35 of the Domiciliary Care Regulations and is therefore not in breach of section 11 of the CSA (carrying on without registration).

5.	On the 18th April 2008 the Appellant’s application was refused. The two main grounds that the Respondent seeks to rely on are:
•	The Appellant has not provided sufficient evidence to demonstrate that she is physically and mentally fit to carry on a domiciliary care agency.
•	The Appellant has not provided an acceptable standard of documentation to demonstrate compliance with regulatory requirements.

The Law

6.	Where an application for registration is made under s.12 Care     Standards Act 2000 (“CSA”) in respect of an establishment or agency the registration authority, CSSIW (acting on behalf of the Welsh Ministers) must be satisfied that the requirements of any regulations and other relevant enactments are being and will continue to be complied with in relation to the establishment or agency – if so satisfied the application must be granted; if not, the application must be refused (s.13 (2)).  

7.	The regulations in this case are the Registration of Social Care and Independent Health care (Wales) Regulations 2002 and the Domiciliary Care Agencies (Wales) regulations 2004. The Tribunal had copies of these regulations.

8.	The burden is upon the Appellant to satisfy the registration authority that she should be granted registration under s.13 CSA [see Peter Jones v CSCI [2005] 426.EA].

9.	According to the above case, any doubts must be resolved against registration.

10.	In previous cases the Tribunal has conducted a re-hearing and its decisions are based on issues of fact and of fitness as at the date of hearing of the appeal [see OFSTED v Spicer [2004] EWHC 440 (Admin) and Puretruce Health Care v The National Assembly for Wales [2005] 544.EA. This approach has been questioned. However in this case it was the Respondent’s case that the Appellant did not fulfil the statutory criteria for registration when the decision to refuse registration was made and that the Appellant continues not to fulfil the statutory criteria. 

The Evidence

11.	The Tribunal heard from Ms Baxter and Ms Russell who confirmed the written statements that they had given. In particular we saw the log of attendances on the Appellant and Ms Baxter’s involvement with the case. Ms Baxter said that she had spent a great deal of time on the case and had visited the Appellant last week to check the latest situation. She said that she had tried to give every assistance to the Appellant.

12.	Concerns were raised about the Appellant’s physical and mental fitness when the Respondent had regard to a letter from the Appellant’s GP in December 2007. In it he said that the Appellant had a long history of hypertension for which she had been treated for over 10 years, osteoarthritis, glaucoma, a hiatus hernia and that she had suffered from gastro intestinal problems and giddiness. He concluded ‘ In view of the physical deterioration and some psychological/mental deterioration too this year, I believe that Mrs Beddows’ ability to run her domiciliary care agency has been compromised’. Further correspondence from the Appellant’s GP on the 6th August 2008 said that some of the health problems had resolved and that while she still needed help to get dressed and could not drive the doctor was now of the view that ‘I think that she is mentally capable of running a domiciliary care agency’. 

13.	Ms Baxter took the Tribunal to the various documents submitted by the Appellant the Service User Guide, the Statement of Purpose, the complaints procedure, and the business plan. In her submission none of these documents fulfilled the requirements of the Domiciliary Care Agencies Regulations. The last annual accounts of the agency had not been submitted by the Appellant, as required by the Registration Regulations.
14.	Finally the Appellant had not submitted a copy of her insurance certificate for the agency as required by the Domiciliary Care Agencies Regulations.
15.	Mrs Baxter told the Tribunal that at the visit last week two staff files were checked. On one file there was only one reference when there should be two and on the other file there was no CRB check carried out by the Appellant.
16.	Ms Russell confirmed her role as the officer who reviewed the file and the recommendation by Ms Baxter and who issued the Notice of refusal to register.
17.	The Appellant and her husband had submitted short (one page) statements before the hearing. These did not address the concerns raised by the Respondent. They told the Tribunal how they had been running the agency and that at present they had four clients but that they hoped to expand the business. The Appellant informed the Tribunal she would employ staff with a nursing background so that medical advice could be given. They explained that they had suffered a major fire at their home in early 2007 and that this had affected the Appellant’s health. 
18.	On the issue of her health the evidence from the Appellant and her husband was to the effect that the Appellant health was improving and that she was getting stronger. In letters she had said, “I am now fully recovered [April 2008]… and “I am now well on the road to full recovery [Feb 2008]…” 

19.	 With respect to the short comings in the documentation it was submitted to us that ‘all this could be put right.’ Mr Beddows was dismissive of the shortcomings found on the staff files. 
Findings
20.	We accept that no detailed information has been received from the Appellant explaining her current condition or how her medical condition is managed in order that she can carry on a domiciliary care agency. 

21.	The Appellant has had a number of opportunities to revise her documentation, following advice from the Respondent and in the course of these proceedings and has not done so.
22.	Neither the Appellant nor Mr Beddows appear to grasp the importance of submitting the correct documentation for the agency and the purpose of this documentation in protecting vulnerable clients in their homes.  We were also concerned that the Appellant had told us that she liked to recruit staff with nursing qualifications so that medical advice could be given.
23.	In the light of the evidence that we heard we conclude that while the evidence regarding the Appellant’s health may be in some doubt , there is no doubt that she has not complied with the requirements concerning documentation for the agency and that there is little likelihood of her doing so. These requirements are essential to the lawful and safe running of an agency. We are therefore dismissing the appeal. We announced our decision at the end of the hearing.

Decision

The appeal is dismissed.
Our decision is unanimous

Signed

Maureen Roberts (Chair)
Graham Harper
Michael Jobbins
14th October 2008