Marshall v Commission for Social Care Inspection
| Jurisdiction | England & Wales |
| Judgment Date | 03 April 2009 |
| Neutral Citation | [2009] EWHC 1286 (Admin) |
| Docket Number | CO/10755/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 April 2009 |
[2009] EWHC 1286 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: MR TIMOTHY BRENNAN QC
(Sitting as a Deputy High Court Judge)
CO/10755/2008
Wayne Lewis appeared on behalf of the Appellant on a public access basis
Samantha Broadfoot (instructed by Mills & Reeve) appeared on behalf of the Respondent ( Angela Morris attended for judgment)
(Approved by the court)
THE DEPUTY HIGH COURT JUDGE: This is a statutory appeal against a decision of the Care Standards Tribunal given on appeal against the Respondent's cancellation of the registration of the Appellant, Ms Marshall, in respect of Harvest Residential Care Home operated by her at 36 Nursery Road, Thornton Heath (“Harvest 1”).
The Respondent, the Commission for Social Care Inspection, is the regulatory authority tasked with, among other things, the regulation of care homes. A notice of cancellation under section 19(3) of the Care Standards Act 2000 was served on Ms Marshall by the Respondent on 1st November 2007 for breach of the requirements of the Care Home Regulations 2001. She appealed to the Care Standards Tribunal under section 21 of the Care Standards Act 2000 and the appeal was heard on 29th and 30th September 2008. The Tribunal indicated then that it would be dismissing the appeal and gave reasons under cover of a letter dated 14th October 2008.
By her Notice of Appeal, filed on 7th November 2008, Ms Marshall has appealed the decision to the High Court. The appeal lies on a point of law only (see the Tribunals and Inquiries Act 1992, section 11). The appeal as presented raises issues concerning the burden of proof on an appeal to the Care Standards Tribunal, the procedural course adopted by the Tribunal and the substantive correctness of the Tribunal's decisions. Not all of those issues are points of law.
On 1st April 2002 the National Care Standards Commission became the registration authority in relation to care homes and responsibility for inspections of all existing care homes transferred to the Commission on that date. This body was replaced by the Commission for Social Care Inspection, the Respondent in this case, on 1st April 2004.
On 26th September 2005 the Appellant submitted an application form to the Respondent for registration as the registered proprietor in respect of a care home proposed to be carried on at 85 Pevensey Road, London E7. This was “Harvest 2”. It subsequently transpired that she had not filled in the form accurately, in that she had failed to give details of her previous surname, namely Wilkinson, and had ticked “no” in response to the question whether she had any previous convictions, when in fact she had four previous convictions, three of dishonesty and one of assault occasioning actual bodily harm. Similar false responses were also made on the Criminal Records Bureau disclosure application. Her application for registration in respect of Harvest 2 was refused and she appealed.
While the appeal was pending the Respondent indicated to the Appellant by letter that should the appeal be dismissed, the Respondent would consider whether the Appellant satisfied the statutory requirements of integrity and good character and indicated that their conclusion on this could have an effect on her existing registration in respect of Harvest 1.
The appeal against the refusal of registration of the Appellant in respect of Harvest 2 was heard on 16th and 17th November 2006. After considering all the evidence, including the explanations for the omissions put forward by the Appellant and evidence of character witnesses, the Care Standards Tribunal held as follows:
“We therefore conclude that the decision by Ms Marshall to omit her name and details of previous convictions from the application form was a deliberate attempt on her part to deceive the Commission into believing that she had no previous convictions and similarly in relation to her non-disclosure of her former name of Wilkinson on the Criminal Records Bureau form that this too was an attempt to prevent the Commission from finding out about her previous convictions.”
The appeal was accordingly dismissed on 12th December 2006.
In January 2007 the Respondent carried out an unannounced inspection of Harvest 1, at which were identified what were regarded as a number of matters of concern with the way it was run. After meetings with the Appellant and her manager in June and July 2007, there were further unannounced inspections.
On 10th September 2007 notice of proposal to cancel her registration in respect of Harvest 1 was given to the Appellant, together with the opportunity to make representations about that proposal. No such representations were made and on 1st November 2007 notice of cancellation of registration was issued. That notice set out in some detail the matters of concern to the Respondent. It is against that notice of cancellation that the Appellant appealed to the Care Standards Tribunal and it is the appeal from the decision on that appeal which is before me.
After some interlocutory skirmishing which it is unnecessary to detail, the hearing ultimately took place, listed for 4 days starting on 29th September 2008. In fact, for reasons to which I will come, it was concluded in 2 days.
At the beginning of the hearing on 29th September the Tribunal indicated that in the light of the findings of the earlier Tribunal on the fitness and integrity of the Appellant, it seemed to the Tribunal that the appeal could, and should, be considered in two stages, taking, first, the question of her fitness and integrity and taking, second, if necessary, the substantive issues relating to the running of Harvest 1. The point was that if the Tribunal concluded that the Appellant was not a fit person, not being of integrity and good character, there would be no need also to consider the issues relating to the way in which the home was run. The legislative scheme forbids a person from running a care home unless that person is a person who is fit to do so and of integrity. The Tribunal also stated its view that the burden of proof on the issue of fitness and integrity lay on the Appellant in this case. The Tribunal placed particular weight on the fact that in December 2006 the Tribunal hearing that appeal had already made adverse findings against the Appellant and the Tribunal regarded this as justifying what they regarded as a shift in what otherwise would have been the applicable burden of proof.
At paragraphs 5-8 of the Tribunal's written decision, they said this:
“5. The Commission's case in opposing the appeal has two strands. To put matters crudely the first relates to fitness and integrity and the second to the running of the home. It is well established that in cancellation appeals the burden of proof normally lies upon the Respondent. It is equally well established that on appeals against refusal of registration the burden is shifted to the Appellant. The rationale for this is that in the case of cancellation one is taking away a person's livelihood and it is for the Commission to show that this is both reasonable and proportionate. In refusal cases it is the Appellant who is setting up a new business and it is for them to show that they are fit to do this and that what they offer is appropriate.
6. The Court of Appeal in Peter Jones v Commission for Social Care Inspection [2004] EWCA Civ 1713 considered, inter alia, the question of the burden of proof (this was a refusal case) Thomas LJ said as follows:
'I add a very short word of my own because of the general importance of the issue on the burden of proof. Bodies charged with regulation are frequently entrusted with the task of determining whether a person who seeks to hold a position of trust is a fit and proper person to hold such a position. There have been instances where the regulatory body has been uneasy as to whether the person in fact is a fit and proper person; in such cases, because the provisions of some regulatory systems have been interpreted as placing the burden of proof on the regulator, the regulatory body has felt constrained to allow such a person to occupy such a position of trust, despite its doubts. To state that outcome demonstrates the fact that in such a case there may have been a failure of the legislative scheme in seeing that, in the public interest, positions of trust are occupied by persons who are demonstrably fit and proper. The interpretation of any legislative scheme is a matter of the construction of the particular scheme.'
7. Where there is a judicial finding that goes to the heart of a person's fitness it appears to us clear that the burden shifts even in cancellation cases. In this particular case there has already been a finding by this Tribunal that Ms Marshall is not a fit and proper person. It would make a mockery of the legislative scheme, which is designed to ensure that the regulatory framework protects the vulnerable, to ignore that finding and require the Commission to prove over again that she is unfit. The burden must shift in this case and it is for Ms Marshall to prove that she is a fit person as at the date the Tribunal sits to consider the matter.
8. We decided as a preliminary point, therefore, that we would hear this case in two stages. At the first stage it was the responsibility of Ms Marshall to prove on the balance of probabilities that she was now a fit person. In other words, there had been such changes that we could be persuaded that she...
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