Jones v Commission for Social Care Inspection
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke,Lord Justice Mance,Lord Justice Thomas |
| Judgment Date | 16 December 2004 |
| Neutral Citation | [2004] EWCA Civ 1713 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 December 2004 |
| Docket Number | Case No: C1/2004/1007 |
[2004] EWCA Civ 1713
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Mr Justice Sullivan
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Brooke
(Vice-President of The Court of Appeal (Civil Division))
Lord Justice Mance and
Lord Justice Thomas
Case No: C1/2004/1007
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
This is an appeal by the appellant Peter Jones against a judgment of Sullivan J sitting in the Administrative Court on 21 st 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 2 nd January 2004. The Tribunal had allowed Mr Jones's appeal against the refusal by the National Care Standards Commission on 4 th 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 1 st 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.
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.
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.
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 31 st 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.
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.
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.
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.
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…"
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."
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…"
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."
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.
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...
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