Moore & Ors, R (on the application of) v Care Standards Tribunal & Anor [2004] EWHC 2481 (Admin)

Case No CO/5101/2003[2004] EWHC 2481 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of Justice
Sitting at
Venue Birmingham Civil Justice Centre, Birmingham B4 6DSDate Friday, 15 October 2004
B E F O R E:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF ANDREW MOORE AND OTHERSClaimant-v-
Between
CARE STANDARDS TRIBUNALDefendantNATIONAL CARE STANDARDS COMMISSIONDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR J DE BONO (instructed by Peter Edwards Law Solicitors) appeared for CLAIMANTMR R MCCARTHY QC (instructed by Hill Dickinson Solicitors) appeared for 2ND DEFENDANT
J U D G M E N T
[1]MR JUSTICE MITTING: The claimants are all long-term residents of premises in and around Merseyside which were, on 1 April 2002, registered care homes. Each of them has a mental disorder which requires them to receive nursing and personal care. The person registered to carry on the care home was Alternative Futures Limited, a not-for-profit company limited by guarantee and a registered charity.[2]In March 2001, Alternative Housing Limited was registered as a not-for-profit company and as a charity. The intention was to divide the ownership of registered care homes from the provision of services, with a view to changing the means by which residents were accommodated and services provided to them.[3]Alternative Futures applied to the National Care Standards Commission to cancel its registration under section 11 of the Care Standards Act 2000, under section 15(1)(b) of that Act. The National Care Standards Commission refused to do so in October 2002. Alternative Futures appealed to the statutory tribunal established to hear appeals, the Care Standards Tribunal, which conducted the hearing of an appeal over 11 days in March and June 2003. It dismissed the appeal.[4]The claimants took no part in the appeal. There is no provision in the Care Standards Act or Regulations made under it for them to do so. Each claims to be adversely affected by the Tribunal's decision and seeks judicial review of it.[5]The propriety of their claim and their sufficiency of interest was challenged at the permission stage and remains open now. The challenge has not been pressed. The Commission for Social Care Inspection (the replacement body for the National Care Standards Commission) has not urged me to refuse to hear the application because it, like the claimants, seeks clarification of the law relating to de-registration. The Department of Health has made written submissions to me that judicial review is not the appropriate procedure to determine these questions. Mr de Bono has explained to me that the financial regime under which each claimant would be supported if the claim succeeds may be more favourable to him than that applicable to residents of registered care homes. I am content, for present purposes, to accept that assurance without deciding that it is so and that, in consequence, the claimants do have sufficient interest in the decision of the Tribunal to support a claim for judicial review; so that it is proper for them to bring and for me to hear this claim. I do so notwithstanding the fact that Alternative Futures have a clear statutory right of appeal against the Tribunal's finding, which it has chosen not to exercise.[6]The relevant statutory provisions are in the Care Standards Act 2000 and the Care Home Regulations 2001. They require to be extensively set out so that the statutory background can be properly understood. The provisions in the Act are as follows:
"3(1) For the purposes of this Act, an establishment is a care home if it provides accommodation, together with nursing or personal care, for any of the following persons- (2) They are ... (b) persons who have or have had a mental disorder. 11(1) Any person who carries on or manages an establishment ... of any description without being registered under this Part in respect of it ... shall be guilty of an offence ... (5) A person guilty of an offence under this section shall be liable on summary conviction- (a) if subsection (6) does not apply, to a fine not exceeding level 5 on the standard scale; (b) if subsection (6) applies, to imprisonment for a term not exceeding six months, or to a fine not exceeding level 5 on the standard scale, or to both. 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. (3) The application may be granted either unconditionally or subject to such conditions as the registration authority thinks fit. 14(1) The registration authority may at any time cancel the registration of a person in respect of an establishment or agency- (a) on the ground that that person has been convicted of a relevant offence; (b) on the ground that any other person has been convicted of such an offence in relation to the establishment or agency; (c) on the ground that the establishment ... is being, or has at any time been, carried on otherwise than in accordance with the relevant requirements; (d) on any ground specified by regulations. 15(1) A person registered under this Part may apply to the registration authority ... (b) for the cancellation of the registration. 21(1) An appeal against- (a) a decision of the registration authority under this Part ... shall lie to the Tribunal. (3) On an appeal against a decision of the registration authority the Tribunal may confirm the decision or direct that it shall not have effect. 22(1) Regulations may impose in relation to establishments and agencies any requirements which the appropriate Minister thinks fit for the purposes of this Part ... "
[7]There then follows extensive and detailed provisions for Regulations which may be made. For present purposes it is only necessary to cite some of them. "(2) Regulations may ... (c) make provision as to the fitness of premises to be used as an establishment ... (d) make provision for securing the welfare of persons accommodated in an establishment or provided with services by an establishment ... (f) make provision as to the management and control of the operations of an establishment ... (5) Regulations under paragraph (d) of subsection (2) may, in particular, make provision-(a) as to the promotion and protection of the health of persons such as are mentioned in that paragraph;(b) as to the control and restraint of adults accommodated in, or provided with services by, an establishment ... (7) Regulations may make provision as to the conduct of establishments ... and such regulations may in particular- (a) make provision as to the facilities and services to be provided in establishments ... (l) make provision requiring arrangements to be made by the person who carries on, or manages, a care home for securing that any nursing provided by the home is of appropriate quality and meets appropriate standards. 25(1) Regulations under this Part may provide that a contravention of or failure to comply with any specified provision of the regulations shall be an offence. 31(2) A person authorised by the registration authority may at any time enter and inspect premises which are used, or which he has reasonable cause to believe to be used, as an establishment ... (3) A person authorised by virtue of this section to enter and inspect premises may ... (e) interview in private any patient or person accommodated or cared for there who consents to be interviewed."[8]The Care Homes Regulations 2001 provide, relevantly:
"Interpretation 2(1) In these Regulations ... 'registered person', in relation to a care home, means any person who is the registered provider or registered manager in respect of the care home; 'registered provider', in relation to a care home, means a person who is registered under Part II of the Act as a person carrying on the care home ... 'service user' means any person accommodated in the care home who is in need of nursing or personal care by reason of ... past or present mental disorder ... (4)(1) The registered person shall compile in relation to the care home a written statement (in these Regulations referred to as 'the statement of purpose') which shall consist of - (a) a statement of the aims and objectives of the care home; (b) a statement as to the facilities and services which are to be provided by the registered person for service users ... 5(1) The registered person shall produce a written guide to the care home (in these Regulations referred to as 'the service user's guide') which shall include - (a) a summary of the statement of purpose; (b) the terms and conditions in respect of accommodation to be provided for service users ..."
[9]Regulations 7 and 8 provide that registered providers and managers must be fit persons:
"10(1) The registered provider and the registered manager shall, having regard to the size of the care home, the statement of purpose, and the number and needs of the service users, carry on or manage the care home (as the case may be) with sufficient care, competence and skill. 12(1) The registered person shall ensure that the care home is conducted so as - (a) to promote and make proper provision for the health and welfare of service users; (b) to make proper provision for the care and, where appropriate, treatment, education and supervision of service users ... (4) The registered person shall make suitable arrangements to ensure that the care home is conducted - (a) in a manner which respects the privacy and dignity of service users ..."
[10]Regulation 13 contains detailed Regulations concerning the health and provision for treatment of service users, including, for example, the need to make arrangements for service users to be registered with a general practitioner, and the need to prevent them from being harmed or from suffering abuse or being placed at risk of harm or abuse. "14(1) The registered person shall not provide accommodation to a service user at the care home unless, so far as it shall have been practicable to do so -(a) needs of the service user have been assessed by a suitably qualified or suitably trained person ... 15(1) Unless it is impracticable to carry out such consultation, the registered person shall, after consultation with the service user, or a representative of his, prepare a written plan ('the service user's plan') as to how the service user's needs in respect of his health and welfare are to be met. 16(1) Subject to regulation 4(3), the registered person shall provide facilities and services to service users in accordance with the statement required by regulation 4(1)(b) in respect of the care home. (2) The registered person shall having regard to the size of the care home and the number and needs of service users - (a) provide, so far as is necessary for the purpose of managing the care home - (i) appropriate telephone facilities ...(b) provide telephone facilities which are suitable for the needs of service users, and make arrangements to enable service users to use such facilities in private;(c) provide in rooms occupied by service users adequate furniture, bedding and other furnishings, including curtains and floor coverings, and equipment suitable to the needs of service users and screens where necessary;(d) permit service users, so far as it is practicable to do so, to bring their own furniture and furnishings into the rooms they occupy;(e) arrange for the regular laundering of linen and clothing;(f) so far as it is practicable to do so, provide adequate facilities for service users to wash, dry and iron their own clothes if they so wish and, for that purpose, to make arrangements for their clothes to be sorted and kept separately;(g) provide sufficient and suitable kitchen equipment, crockery, cutlery and utensils, and adequate facilities for the preparation and storage of food;(h) provide adequate facilities for service users to prepare their own food and ensure that such facilities are safe for use by service users;(i) provide, in adequate quantities, suitable, wholesome and nutritious food which is varied and properly prepared and available at such time as may reasonably be required by service users ..."[11]The remainder of the Regulation goes on to make other provision for, amongst other things, consultation with service users about social interests and the organising of communal activities. Regulations 17 to 21 contained provision for record keeping and staff. Regulation 22 requires procedure to be established for entertaining complaints:
"23(1) Subject to regulation 4(3), the registered person shall not use premises for the purposes of a care home unless - (a) the premises are suitable for the purpose of achieving the aims and objectives set out in the statement of purpose; and (b) the location of the premises is appropriate to the needs of service users. (2) The registered person shall having regard to the number and needs of the service users ensure that - (a) the physical design and layout of the premises to be used as the care home meet the needs of the service users; (b) the premises to be used as the care home are of sound construction and kept in a good state of repair externally and internally ... (d) all parts of the care home are kept clean and reasonably decorated; (e) adequate private and communal accommodation is provided for service users ..."
[12]Part V makes provision, including financial provision, for the management of care homes. Regulation 43 provides for offences for breach of many of the Regulations.[13]In late 2001 and early 2002, Alternative Homes, to which the freehold of the care homes had been transferred by Alternative Futures, granted assured tenancies to residents on standard terms, save as to the amount of rent and service charge. I have taken the agreement between Alternative Homes and Theresa Hyland as typical, because the Care Services Tribunal visited the home in which she resided, 77 Lang Lane South, West Kirby, Wirral, and I take her agreement as typical of all.[14]Again, extensive reference is required to the detailed terms of the tenancy agreement. It provides that the agreement is between Alternative Housing and Theresa Hyland and that she is to have the full responsibilities and rights set out in the agreement - " ... in respect of 77 Lang Lane South, West Kirby, Wirral ... (the premises) which comprise exclusive occupation of bedroom TWO plus shared occupation of communal facilities and service charges as per attached schedule."[15]The agreement provided that it was to begin on 21 December 2001 and was an assured weekly tenancy. By clause 1, the tenant agreed to pay a net rent from the date of the agreement until 31 March of £794.57 per week. The net rent was broken down into a service charge of £507.21 and rent of £287.36.

(a) provided that:

"Alternative Housing (or Agent) will provide the following services in connection with the Premises for which you will pay a Service Charge in addition to the Net Rent, as stated in clause 1.1. Services as per itemised Schedule 1 attached ... "
[16]The schedule which I take to be the schedule at the back of the agreement contains provision for "Eligible Rent (Resource Accounting basis calculation)" of £135.33; for depreciation for furniture and white goods of £19.23; for various other lesser charges and a subtotal for "Core Rent elements" of £209.20. Under the heading "Supporting People elements", the schedule makes provision for cleaning of "own areas", ie the bedroom, of £5.12 and "communal areas" of £26.40. "General counselling and support" is charged at £408.56. The total for the "Supporting People elements" is £442.08. There is, in addition, a management fee of £65.13 and provision for "Voids Allowance" and "Bad Debts Allowance" of £47.71 and £23.93, respectively. The total of "ELIGIBLE CHARGES" is £788.05, and the total under the column headed "TENANT PAYS" is £6.52, making a total of £794.57.[17]The tenancy agreements were mainly signed by relatives or advocates of the residents, purportedly on their behalf. The consent of the Court of Protection was not sought, notwithstanding the substantial financial burden imposed on the tenants by the agreements. It is common ground that the tenants' obligations could not be enforced by Alternative Homes against them, though to the extent that it conferred benefits and rights upon them, could be enforced against Alternative Homes.[18]There was an issue before the Care Services Tribunal as to whether the agreements had effectively been made at all by the residents. I am content to assume for present purposes that the agreements were made with the claimants who bring these proceedings, and were enforceable to the limited extent described. Had it been necessary to decide this issue, I would have remitted it to the Tribunal to decide.[19]The tenancy agreement is unusual in two respects. First, it appears to provide for a level of rent and service charge that appears to me, albeit without my view being informed by evidence, to be well in excess of the market rent for simple occupation of a furnished bedroom with the use of communal facilities in a building in Merseyside. Second, it includes provisions, for example those for "general counselling and support" and "voids and bad debt allowances" that have no echo in an ordinary residential lease. The terms are only explicable if, as is undisputed, Alternative Homes were to provide care and nursing services in addition to the right to occupy the bedroom and communal facilities.[20]It is to be noted that the agreement provides both for the letting of the bedroom and the use of communal areas, by Alternative Homes, and for the provision of services by Alternative Homes. All of the elements of accommodation and nursing care, therefore, originate from facilities provided by the same company.[21]I am told that some 20 issues were canvassed before the Tribunal. Only some of them have been canvassed before me and do I not propose to deal in detail with those that were not. The first issue canvassed before the Tribunal and before me is upon whom the burden of proof lies in applications to cancel registration. Alternative Futures argued that the burden of proof was on the Commission to prove that the home was still a care home. The Tribunal accepted that the Commission must explain why it considered that registration should be cancelled, and that the burden, therefore, lay upon it to do so. In my view, the burden of proof plays no part in decision-making, whether by the Commission or by the Tribunal.[22]At the stage at which the Commission makes its decision, it must make a decision based on its judgment of the facts. The Tribunal hears an appeal by way of re-hearing and is in the same position as the Commission at the decision-making stage. It too must make a judgment on the facts which it finds. It must simply decide, like the Commission, whether the registration of a person carrying on or managing a care home should be cancelled. In so doing, it is trite that it must apply the law to the facts which it finds. But the burden of proof will play no part in that exercise, save in the wholly unlikely case that neither party appears or puts in evidence at the appeal hearing. In the case of an appeal against refusal to cancel registration, and in such an event, the Tribunal will have, in my view, no choice but to dismiss the appeal because the grounds for cancellation will not have been advanced, let alone made out.[23]Secondly, the human rights of residents were argued and found by the Tribunal not to be infringed by reason of the refusal of the Commission to cancel registration. It is unnecessary for me to make any comment on that issue.[24]Thirdly, the capacity of residents to enter into tenancy agreements and the fact of their doing so and related issues were argued. No comments are required in the light of the working assumption, to which I have already referred, save two. First, the Tribunal did not make any express finding on the validity of tenancy agreements. Second, it did place great emphasis on the absence of real choice on the part of residents, and gave as its principal reason for rejecting the appeal, the absence of such choice. This part of its reasoning is challenged by Mr de Bono, for the claimants, and I will return briefly to it later.[25]Fourthly, the Tribunal found that there had been no change in substance in the way in which the homes were run. In particular, in paragraphs 83, 84 and 85 of its decision, it noted:
"We are drawn to the conclusion that there is full co-ordination on many aspects of the running of Alternative Futures and Alternative Housing, in particular on selection, rent payments, decisions on departure. Indeed, Mr Clarke, the Chief Executive of the Group agreed that the activities of Alternative Housing and Alternative Futures are co-ordinated on a day to day basis and that the 'housing provider is in tune with the care provider'. In looking at the available evidence, we have reached the conclusion that the creation of Alternative Housing has not taken the organisation out of the s.3 definition."
[26]Mr Murray, the finance manager, is recorded as having "agreed that a request for a change of care provider would have to go through the statutory agencies, but that Alternative Housing has overall control of the care delivery at the home". I observe that that accords with the picture given by the detailed terms of the tenancy agreements. "It seems to us that all the witnesses who are employed by Alternative Futures, together with the relatives we heard (Mrs Farr, Mrs Moore), are all agreed that the level of personal care remained the same as before the reorganisation."[27]The Tribunal went on to note that privacy had been enhanced and that people were more conscious of an individual's private space. The Tribunal also noted that privacy locks had been provided for residents, but accepted that this was common practice in care homes up and down the country.[28]These findings of fact are significant and unchallengeable. They demonstrate that, in practice, the care homes in which these claimants resided were managed in a virtually identical way before and after the granting of the assured tenancies.[29]I now turn to the arguments of principle advanced by Mr de Bono. He submits that the existence of the assured tenancies is inconsistent with the continued registration of Alternative Futures or Alternative Homes as persons carrying on a residential care home, so that the Commission and the Tribunal were bound to cancel the registration under section 15. The answer to that question is primarily one of statutory construction and turns upon the words of section 3 of the 2000 Act. I repeat them:
" ... an establishment is a care home if it provides accommodation, together with nursing or personal care, for ... persons who have or have had a mental disorder."
[30]The first word which requires to be construed is "establishment". In the present context, a working definition which I put to Mr de Bono and Mr McCarthy QC was accepted by them as acceptable, if not exhaustive. It is "a place, including a building, in which organised activities are conducted", and "the conduct of organised activities in a place, including a building".[31]The "establishment" or "it" must provide accommodation together with "nursing or personal care". As far as accommodation is concerned, it is provided by a room and facilities within a building which the owner permits the resident to occupy and make use of. As far as nursing or personal care is concerned, they have to be provided by a person or persons. Accommodation and care must be provided "together", but they need not be provided by the same company or individual. Although "person" is referred to in the singular in section 11(1), the Interpretation Act permits that singular to include the plural. Thus, as the Tribunal held, there was nothing to prevent an establishment from being carried on by two companies, Alternative Housing and Alternative Futures together. Both could carry it on, and if they did so, both required to be registered. In fact, as the facts found by the Tribunal and the terms of the tenancy agreements show, both accommodation and services were to be provided, and were provided, by Alternative Housing.[32]Does the fact that the accommodation element as provided by means of an assured tenancy mean that the establishment ceases to be a care home within section 3? The answer is: not in principle. Nothing in the Act or the Regulations excludes expressly or by necessary implication the provision of accommodation by that means; and accommodation is still provided by the "establishment" as defined. A detailed examination of the terms of the tenancy agreements reveals nothing that conflicts with the obligations of the service provider in the Regulations.[33]Mr de Bono suggested that there was a conflict, and chose as his example, Regulation 16(2)(d), which provides:
"The registered person shall having regard to the size of the care home and the number and needs of service users ... (d) permit service users, so far as it is practicable to do so, to bring their own furniture and furnishings into the rooms they occupy."
[34]Nothing in the tenancy agreement prevents any resident from doing just that, although in practice the schedule which includes provision for depreciation of furniture and white goods suggests that they are, in fact, provided by Alternative Homes. Given that on that analysis of section 3, and the Tribunal's findings, the claimants continued to be accommodated and to receive care in an establishment within section 3, were the Commission right to refuse to cancel the registrations, and the Tribunal to dismiss Alternative Futures' appeal? Subject to a possible argument that Alternative Homes should have been substituted, the answer is clearly: yes. It is unnecessary for me to say more about the circumstances in which the Commission may refuse to cancel registration under section 15(1(b) than to state that it may not do so where the conditions in section 3 are fulfilled, for to do otherwise would be to permit or to condone the commission by the person carrying on the establishment of a criminal offence. The Tribunal were, therefore, right to reject the appeal. It was, in my view, unnecessary for it to go on to consider, let alone to hold to be decisive, the absence of choice by residents when entering into the new arrangements; but that aspect of its decision, although it occupied many paragraphs of reasoning, and it seems much of the time of the hearing, does not vitiate the conclusion which inevitably stems from its other findings.[35]In my view, for the reasons which I have given, this application for judicial review must fail on the ground that the Tribunal reached the right conclusion and was bound to reach only that conclusion by the law as I have explained it.[36]MR MCCARTHY: Would you make an order for costs, not to be enforced without leave?

MR JUSTICE MITTING: Is that the usual order now in legally aided cases or in publicly funded cases?

[38]MR MCCARTHY: I believe so.[39]MR DE BONO: My Lord, I would ask you to make an order that there be no order for costs on the basis that the Tribunal's decision was one which raised legitimate concerns on a matter of public importance, and it was right to seek clarification of the law. Now, the clarification that has been given is not the clarification that had been sought, but nevertheless, in the light of the Tribunal's decision and the way it was worded, it is appropriate to bring this challenge.[40]MR JUSTICE MITTING: Thank you. This is in fact an entirely theoretical application, is it not? It is utterly inconceivable that any order for costs would be enforceable.[41]MR MCCARTHY: That is right, my Lord.

MR JUSTICE MITTING: Is it really worth pursuing?

[43]MR MCCARTHY: I have instructions to make this application. The person with me does not have specific authority to vary and if your Lordship is not impressed by the application then I have nothing more to say about it.[44]MR JUSTICE MITTING: I would hope that the application would not be pursued and so what I intend to do is to make a conditional order. You are strictly entitled to the order that you seek, but I will not make it for 7 days, in the hope and expectation that the court will be notified before the expiry of 7 days that no order is sought. In that event, there will be no order.[45]MR MCCARTHY: I will make sure that is sorted out, my Lord.[46]MR DE BONO: My Lord, may I have permission to appeal?

MR JUSTICE MITTING: On what ground?

[48]MR DE BONO: On the ground that this is a point of law -- the correct interpretation of section 3. It is a matter which affects a large number of people and there is some prospect that the Court of Appeal might come to a different conclusion.[49]MR JUSTICE MITTING: I accept that it is a matter of law and may well be of some importance not only to these claimants but to other service providers and residents of care homes. However, I do not believe that there is any real prospect of success in such an appeal and I prefer to leave it to the Court of Appeal to decide whether or not it is an appeal that should be entertained on the second ground, namely a matter of wider importance that ought to be ventilated.[50]MR MCCARTHY: My Lord, before you leave may I say on behalf of both of us that we are very sorry about the way this case approached. There were a series of, I suspect, misunderstandings as to what was really going on. I realised yesterday, I think, that your Lordship had been presented with a proposed consent order on Wednesday, which is not a course of conduct that I think anyone is pleased to see. I am very sorry, my Lord, because I know it causes great inconvenience. Both Mr de Bono and I would absolutely have complied with the Practice Direction on the skeleton arguments and I do appreciate the lack of that would have caused your Lordship extra work. I do apologise.[51]MR JUSTICE MITTING: I accept an apology which is in fact not called for on your part. I understand from what I read that the office indicated a willingness to entertain an application to adjourn that I personally did not share. When I read into the papers it became clear to me that there was a matter of principle that could be decided in a quite straightforward way and that it would be pointless to adjourn it for a further hearing and further enquiries and consequent expense.[52]MR MCCARTHY: My Lord, you have heard no one complain about that today.

MR JUSTICE MITTING: Thank you both for an interesting argument.

Cited in 1 later judgment