Welsh Ministers v Care Standards Tribunal
| Jurisdiction | England & Wales |
| Judge | Mr Justice Davis |
| Judgment Date | 24 January 2008 |
| Neutral Citation | [2008] EWHC 49 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/9217/2007 |
| Date | 24 January 2008 |
[2008] EWHC 49 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Davis
Case No: CO/9217/2007
Mr Jonathan Furness QC (instructed by Legal Services Department of the Welsh Assembly Government) for the Appellant
Mr Ian Wise (instructed by Jonathan Green, RCN Legal Services) for the 2 nd Respondent
The First Respondent did not appear and was not represented
Hearing date: 17 December 2007
Introduction
Mrs H unsuccessfully applied for registration as a manager in respect of a particular care home under the provisions of the Care Standards Act 2000. She sought to appeal to the Care Standards Tribunal against the refusal by the relevant registration authority to register her. After she issued her appeal, the owners of the particular home, having withdrawn its offer to employ her as a manager, subsequently appointed another person as manager. The Welsh Ministers, as respondents to the appeal, in such circumstances then sought to strike out the appeal as being misconceived or having no reasonable prospect of success. The Deputy President of the Tribunal refused to strike out the appeal. The issue raised on this further appeal to the High Court is whether the Deputy President should have struck out the appeal to the Tribunal by reason of the fact that the particular care home was no longer available to Mrs H.
The background facts
The background facts can be shortly stated for present purposes.
Mrs H is a registered mental nurse, with many years' experience. Between 2002 and 2004 she was the manager of a nursing home. In that time an elderly resident, AS, who was suffering from senile dementia, died on 27 September 2004. In August 2006, as part of a lengthy police investigation, Mrs H was questioned about the death of AS and placed on police bail. Eventually, in early October 2007, she was charged with wilful neglect. As I was informed (although I was not shown any of the papers) the essential complaint is that she failed to ensure that junior staff knew what was required of them in keeping AS under observation. Mrs H strongly disputes the allegations against her. I was also told that there are a number of other defendants to the criminal proceedings.
In February 2007 Mrs H's name was provisionally included on the Protection of Vulnerable Adults list by reason of the subject matter of the investigation with regard to deaths at the home (including the death of AS).
On 15 January 2007 Mrs H had lodged an application with the Care and Social Services Inspectorate for Wales to be registered as manager in respect of another care home ("the SP Home"). The application — which was made on a standard typed form — provided references; detailed Mrs H's qualifications; and stated (correctly) that she had no previous convictions. The application was provisionally refused on 16 March 2007. By letter of 10 April 2007, Mrs H disputed the reason for provisional refusal; which reason had been that she was currently on bail in connection with alleged offences against adults. She stated that it was unfair to question her integrity and that the decision appeared to assume that she was guilty of an offence when, as she said, there was no evidence of that. She complained that the decision effectively denied her the right to work in her chosen profession.
On 30 April 2007 the Care and Social Services Inspectorate for Wales notified Mrs H of the decision of the National Assembly for Wales (now succeeded for these purposes by the Welsh Ministers) to refuse her application for registration. The accompanying letter of that date indicated that Mrs H's representations had been carefully considered. It was accepted that, other than the fact that she was then on police bail, there was no evidence to say that Mrs H was not of suitable integrity and good character to manage the SP Home. Reference, however, was made to the contents of an enhanced criminal record certificate dated 31 October 2006 with regard to Mrs H which outlined the police investigation into a number of deaths at the previous home. The investigation was said to centre on the standards of care provided. The letter said this:-
"In the light of this information I cannot say that I have received full and satisfactory information about you, indeed the statement raises serious concerns. The requirements of regulation 9 are mandatory and I cannot disregard them. For this reason I feel I have to uphold the Notice of Proposal to refuse your application for registration on the ground that full and satisfactory information or documentation as required by regulation 9(2)(c) of the Regulations is not available. I enclose a Notice of Decision which you will see contains important information about your right of appeal to the Care Standards Tribunal. I will be writing separately to the registered provider of the home to advise of my decision in order that consideration can be given to your continued position there, as well as a number of regulatory breaches noted on recent visits by CSSIW.
Please note that this decision relates only to your application to be registered as the manager of [the SP] Nursing Home. It does not relate to your ability to work elsewhere nor to your continued registration with the Nursing and Midwifery Council."
In consequence of that decision the then registered provider of the SP Home indicated on 10 May 2007 that it had offered the post of manager to another individual; and Mrs H herself ceased to work at the SP Home on 15 May 2007. Since that time, moreover, the SP Home has been sold to another provider; and that other individual has also been registered as manager. In such circumstances it is accepted that Mrs H could not then have become manager of the SP Home.
Mrs H had, however, on 25 May 2007 issued an appeal against the decision of 30 April 2007. On 24 August 2007 the Welsh Ministers applied to strike out Mrs H's appeal. The essential ground of such strike-out application was that the appeal was bound to fail: given that there were now no specific premises to which the application to be registered as manager could relate, since Mrs H no longer had any association with or prospect of employment as manager at the SP Home.
On 14 September 2007 Mrs H made a short witness statement. She explained that her current employment in sales and training was at a significantly lower salary compared to the salary she had received at the SP Home. She said that she had in the past few months been approached on two or three occasions to work as a manager of a home. In particular the owner of one home (who was aware of the situation) was hoping that matters could be resolved so that she could be appointed as manager. Mrs H is very keen to work as a manager at that home. She cannot do so unless she achieves registration.
The Statutory Framework
The relevant provisions are to be found in the Care Standards Act 2000 ("the 2000 Act") and in regulations made under that Act: the Care Homes (Wales) Regulations 2002 ("the 2002 Care Homes Regulations") and the Registration of Social Care and Independent Health Care (Wales) Regulations 2002 ("the 2002 Social Care Regulations"). In addition I was referred to the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 ("the 2002 Tribunal Regulations").
The above form a new statutory scheme replacing a variety of previous Acts and Regulations. Similar — although not precisely identical — regulations apply in England.
Section 11(1) of the 2000 Act (contained in Part II) provides as follows:-
"Any person who carries on or manages an establishment or agency of any description without being registered under this Part in respect of it (as an establishment or, as the case may be, agency of that description) shall be guilty of an offence."
Section 12 provides:-
"12. (1) A person seeking to be registered under this Part shall make an application to the registration authority.
(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.
and must be accompanied by a fee of the prescribed amount.
(3) A person who applies for registration as the manager of an establishment or agency must be an individual
(4) A person who carries on or manages, or wishes to carry on or manage, more than one establishment or agency must make a separate application in respect of each of them."
Section 13 in the relevant respects provides:-
"13. (1) Subsections (2) to (4) apply where an application under section 12 has been made with respect to an establishment or agency in accordance with the provisions of this Part."
"(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 or agency, it shall grant the application; otherwise it shall refuse it
(3) The application may be granted either unconditionally or subject to such conditions as the registration authority thinks fit.
Provision is made in section 14 for cancellation by a registration authority of registration "in respect of an establishment or agency" on defined grounds....
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