NILLAM SANJIVI v EAST KENT HEALTH AUTHORITY [2001] EWCA Civ 125

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(MRS JUSTICE HALLETT)
[2001] EWCA Civ 125Case No C/00/3557Venue Royal Courts of Justice, Strand, London WC2A 2LL, Thursday 25 January 2001
Between
NILLAM SANJIVIClaimant/ApplicantEAST KENT HEALTH AUTHORITYDefendant/Respondent
Before
Lord Justice LongmoreMR PHILIP ENGELMAN (Instructed by Messrs Girlings, Margate, CT9 1BN) appeared on behalf of the Applicant.The Respondent did not attend and were not represented.Date 25 January 2001

LORD JUSTICE LONGMORE:

This

[1]is a renewed application for permission to appeal. It is, in my judgment, although Mr Engleman was not disposed to concede this aspect, a second tier appeal pursuant to Part 52.13, which provides that:
"Permission is required from the Court of Appeal for any appeal to that court from a decision of a county court or the High Court which was itself made on appeal."
[2]The appeal is from a decision of Hallett J on appeal from the Registered Homes Tribunal. It seems to me that that is a decision from the High Court which was itself made on appeal. The only consequence of that is that this court is not to grant permission unless it considers that(a) the appeal would raise an important point of principle or practice; or(b) there is some other compelling reason for the Court of Appeal to hear it. Mr Engleman, who appears in support of the application, submits that the appeal raises an important point of principle or practice.[3]The issue is whether the Registered Homes Tribunal, hearing an appeal by Mrs Sanjivi against a decision of the Magistrates' Court ordering the emergency closure of her Nursing Home and against a decision of the Health Authority and/or the Secretary of State that the Home be closed, was correct to decide that, once the Home had been sold in the course of hearing the appeal, they should no longer continue to hear the appeal. Hallett J held that they were so correct. The question is whether I should now grant permission to appeal on this renewed application, the paper application having been refused.[4]On 10 September 1999 the Health Authority obtained an order from the Dover Magistrates for the immediate closure of the Nursing Home under section 30 of the Registered Homes Act 1934. On 29 September the Secretary of State served a notice to cancel the registration under section 28 of the Registered Homes Act. That was adopted on 6 December 1999. Mrs Sanjivi, who owned Heather Lodge ("the Home"), was entitled to appeal both those decisions, which she did, her notices of appeal being served on 7 October and 24 December 1999 respectively.[5]On 24 March 2000 the appeal hearing began. It lasted until 3 April when time ran out. Subsequent to that, the Halifax Building Society took possession of the Home because Mrs Sanjivi, in the light of the events that occurred, had, most unfortunately, been unable to meet the mortgage payments. On 16 June the Home was purchased by another company.[6]On 3 July the tribunal was informed of the position. Argument took place as to the legal consequences of that. The tribunal gave a decision on that aspect of the matter setting out the facts and arguments, Mr Engleman having appeared before them. The concluding words of their decision were:
"Taking all these things into consideration we felt that we had no option but to dismiss the appeal on the very narrow grounds that Heather Lodge was no longer being used or intended to be used as a Nursing Home. We would like to make it absolutely clear that we make no findings of unfitness whatever in relation to Mrs Sanjivi."
[7]It is clear that no findings of unfitness were made and, despite the fact that some days of hearing had taken place, the matter was left hanging in the air.[8]The scheme of the Registered Homes Act is that a person who is carrying on a Nursing Home, as was Mrs Sanjivi, has to be registered. A Nursing Home is defined in section 21(1) of the Registered Homes Act as relevantly, for our purposes, meaning:
"Any premises used, or intended to be used, for the reception of, and the provision of nursing for, persons suffering from any sickness, injury or infirmity. Section 23(1) then provides that: "
Any person who carries on a nursing home .... without being registered under this Part in respect of that home shall be guilty of an offence."[9]Section 23(3) requires an application for registration to be made to the Secretary of State and section 23(4) requires the Secretary of State to register the applicant in respect of the Home named in the application subject to the provisions of section 25.

(a) that:

"the applicant or any person employed or proposed to be employed by the applicant at the home, is not a fit person (whether by reason of age or otherwise) to carry on or be employed at a home of such a description as that named in the application."
[10]Section 28 of the Act then provides for cancellation of registration of a person in respect of a Nursing Home. That has been called by Mr Engleman "the slow procedure". Section 30 provides an urgent procedure for cancellation of registration. That requires an order of the Magistrates' Court on the application of the Secretary of State. Mr Engleman calls that "the fast track procedure".[11]Both of those procedures were invoked in this case. Section 34 provides for appeals against both sorts of decision to a Registered Homes Tribunal and provides for the tribunal to confirm the decision or to direct that it shall not have effect. A direction that the relevant decision shall not have effect would mean that the cancellation of Mrs Sanjivi's registration, under either procedure, would be ineffective. She would therefore once again be a person registered in respect of the Home named in the original application within section 23(4) and, thus, not be committing an offence under section 23(1).[12]Subject to Mr Engelman's arguments, to which I shall refer, that analysis shows to my mind that, once the owner of the Nursing Home sells the Home and is thus not using or intending to use the premises for the provision of nursing for persons suffering from sickness within section 21(1)(a), the appeal process must be intended to lapse. I say that because, even if the appellant to the tribunal is in those circumstances successful, a direction that the decision of the Magistrates' Court or the Secretary of State shall not have effect, would be to restore a status quo ante inconsistent with the intention of the Act which requires a registration in respect of the Home named in the application. Moreover section 28 provides that:
"The Secretary of State may at any time cancel the registration of a person in respect of a nursing home or mental nursing home- (a) on any ground which would entitle him to refuse an application for the registration of that person in respect of that home in the first place."
[13]If that person was not using, or intending to use, that Nursing Home for the provision of persons suffering from sickness, as Mrs Sanjivi cannot now been be intending since the premises have been sold, the Secretary of State, even if the appeal were to be successful, would be entitled to cancel her registration. Mr Engelman submits that she could always be offering to buy it back, which would suffice for the purposes of intending to use the Home as a Nursing Home. That seems to me, however, to be very difficult if the Home is now owned by somebody else. That shows, to my mind, that it would have been academic for the tribunal to have continued with the appeal hearing. The Registered Homes Tribunal is master of its own procedure and is entitled not to continue what would be, effectively, an academic exercise.[14]All that is subject to the points Mr Engleman has sought to argue briefly on this application. He submits that, as a matter of construction, the learned judge below has put a gloss on the statute by equating the wording of section 21(1)(a) with the requirement that the Home be available for use. That is a matter of pure language. It is no doubt preferable to keep in mind the terms of the statute which say, in terms, that it applies to premises "used or intended to be used for the reception of and provision of nursing for persons suffering from any sickness, injury or infirmity". It may, therefore, not be quite correct to equate that with "availability". It seems to me very difficult to say that someone intends to use a property which he does not own and at the time of asserting such intention has no particular prospect of owning.[15]Next under this head Mr Engleman said that the decision below ignores the issue of the division between status and property. What would happen, he submits, on bankruptcy when in law, if it were an individual owner, the property would then vest in the trustee of the bankrupt? That, however, is not this case. There may be questions in such a case but they would be different from the questions that arise where a mortgagee takes possession and the property is resold. He further submits that the Act is meant for the protection of the public, which would not be properly served if the person could avoid the sanctions of the Act by selling a Nursing Home. It seems to me that the mischief which the Act is aimed at is the undesirability of persons owning and running a Nursing Home. If they do not own or run the Nursing Home, there is no mischief against which the statute needs to operate.[16]He then submitted that the description of the judge below is contrary to the normal procedure whereby the rights of the parties are deemed to have accrued and be settled at the time of serving the notice of appeal. Subsequent events have altered that situation. That is purely a matter of construction of this statute. I have already indicated what my construction of the statute is.[17]Mr Engleman then says that the emergency procedure could not work, if the learned judge's decision was correct, because the Home would not be being used and would not be intended to be used if the appeal failed. It does not seem to me that that can be right because, if the appeal does succeed and the Home still belongs to the owner of the Home, then the statutory requirement would, in all probability, be satisfied.[18]Mr Engelman then referred me to Regulation 9 which gives the right to an appellant to call the evidence she wishes to call, but I have already referred to the fact that the tribunal was entitled to regulate its own procedure (see Regulation 15). If the tribunal comes to the view, correctly, that the appeal cannot succeed for a short reason, even if it might, apart from that, succeed after many days of evidence and argument, it is perfectly entitled to adopt that short reason. Finally under this head, Mr Engleman submitted that planning applications form a useful analogy. It is well known that anyone can make a planning application in respect of land he does not own. That is not the statutory scheme here.[19]My attention was drawn to the Convention on Human Rights. Mr Engleman rightly said that that must apply even though the closure and the appeal were before the passing of the Act. He referred me to article 1 of the First Protocol, the article on protection of property which provides that:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
[20]He submitted that that is exactly what had been happening in this case; that Mrs Sanjivi had been deprived of her possessions when she was entitled to the peaceful enjoyment of them.[21]The provisions as to the public interest are set out in the statute. It seems to me that the statutory procedure is carefully designed to protect the human rights of the owner of a Nursing Home. Indeed, the second paragraph of that article says, in terms, that:[22]"The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as are necessary in accordance with the general interest."[23]The State, clearly to my mind, has an interest in having laws and enforcing them in respect of Nursing Homes of the kind which Mrs Sanjivi ran.[24]Lastly, Mr Engelman referred me to article 8, which provides that persons have a right not to be deprived of their homes. That might apply to the residents. No resident has complained of being deprived of this particular Nursing Home and that seems to me to be a matter outside the purview of this case.[25]Despite the many points that Mr Engelman has urged on me in this case, it would not be appropriate to grant permission to appeal. I very much doubt if it really raises an important point of principle and it certainly does not of practice. It does not seem to me that any appeal would have any grounds for success. Having said that, I, like the tribunal, do have a considerable amount of sympathy with Mrs Sanjivi who, because the appeal process has been inevitably somewhat drawn out because it has taken a number of days to deal with only some of the evidence, has found that she is unable to continue the payments under the mortgage of the Home. Despite my natural sympathy with her position, it is an inevitable result of the statutory scheme. It is important to note, however, as the tribunal and I also note, that absolutely no findings of unfitness whatever have been made in relation to Mrs Sanjivi. The future is perhaps another story.[26]For the reasons I have given, it is necessary for me to dismiss the application.

Order

Application dismissed.

Cited in 1 later judgment