Welsh Ministers v The Care Standards Tribunal & Anor [2008] EWHC 49 (Admin)

[2008] EWHC 49 (Admin)

Case No CO/9217/2007

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT IN WALES

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 24/01/2008

Before

THE HONOURABLE MR JUSTICE DAVIS

Between

The Welsh MinistersAppellant

The Care Standards Tribunal1 st Respondent

“H”2 nd Respondent

(Transcript of the Handed Down Judgment of

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Mr Jonathan Furness QC (instructed by Legal Services Department of the Welsh Assembly Government) for Appellant

Mr Ian Wise (instructed by Jonathan Green, RCN Legal Services) for 2 nd Respondent

for The First Respondent did not appear and was not represented

Hearing Hearing date: 17 December 2007

Judgment

Mr Justice Davis:

Introduction

[1]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 After she issued her appeal, the owners of the particular home, having withdrawn its offer to employ her as a manager, subsequently appointed another person as manager.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

[2]The background facts can be shortly stated for present purposes.

[3]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.

[4]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).

[5]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.

[6]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.”

[7]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.

[8]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.

[9]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

[10]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”).

[11]The above form a new statutory scheme replacing a variety of previous Acts and Regulations. Similar – although not precisely identical – regulations apply in England.

[12]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. ….” (b) must give any other information which the registration authority reasonably requires the applicant to give. ….”

[13]Provision is made in section 14 for cancellation by a registration authority of registration “in respect of an establishment or agency” on defined grounds. Section 15 permits a person registered under that part by the Act to apply for cancellation (but with certain restrictions, including one designed to prevent the circumventing by a person of cancellation by a registration authority). Section 16 gives the power to make regulations. Sections 17 to 21 relate to registration procedure. Section 17 in part provides as follows:- “(1) Subsections (2) and (3) apply where a person applies for registration in respect of an establishment or agency. (2) If the registration authority proposes to grant the application subject to any conditions which have not been agreed in writing between it and the applicant, it shall the applicant written notice of its proposal and of the conditions subject to which it proposes to grant his application. (3) The registration authority shall given the applicant notice of a proposal to refuse the application. ….” Section 21 relates to appeals. It in part provides as follows:- “21. (1) An appeal against: (a) a decision of the registration authority under this Part; or … shall be 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. .…” It was common ground before me that an appeal before the Tribunal operates by way of rehearing. … shall be to the Tribunal ….

[14]The 2002 Care Homes Regulations define “registered manager” as, in relation to a care home, a person who is registered under Part II of the Act as the manager of the care home. In Part II of those Regulations, Regulation 7 relates to fitness of registered providers. Regulation 8 relates to the appointment of a manager and is in these terms:- “8. Appointment of Manager(1) The registered provider shall appoint an individual to manage the care home if: (a) there is no registered manager in respect of the care home; and (b) the registered provider: (i) is an organisation (ii) is not a fit person to manage a care home; or (iii) is not, or does not intend to be, in full-time day-to-day charge of the care home.

(2) Where the registered provider appoints a person to manage the care home he shall forthwith give notice to the appropriate office of the National Assembly of: (a) the name of the person so appointed; and (b) the date on which the appointment is to take effect.

(3) If the registered provider is to manage the care home he or she shall forthwith give notice to the appropriate office of the National Assembly of the date on which such management is to begin.” (a) the name of the person so appointed; and (b) the date on which the appointment is to take effect. 15. Regulation 9, which relates to the fitness of a registered manager, then provides in the relevant respects as follows:- “9. Fitness of a registered manager (1) A person shall not manage a care home unless he or she is fit to do so. (2) A person shall not be fit to manage a care home unless (a) he or she is of suitable integrity and good character to manage the home;” (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 or she is physically and mentally fit to mange the care home and (ii) he or she has the skills and experience necessary to manage the care home; and (c) full and satisfactory information or documentation is available in relation to him or her (i) except where paragraph (3) applies, in respect of each matter specified in paragraphs 1 to 6 of Schedule 2; (ii) where paragraph (3) applies, in respect of each matter specified in paragraphs 1 and 3 to 7 of the Schedule 2. (iii) and further, where paragraph (3) applies, in a written report of a check on the lists maintained pursuant to section 1 of the Protection of Children Act 1999 and regulations made under section 218 of the Education Reform Act 1988. …” …” Regulation 10 provides in part as follows:- “10. Registered person – general requirements (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. .… (2) The registered manager shall undertake from time to time such training as is appropriate to ensure that he or she has the experience and skills necessary for managing the care home.”

[15]Turning to the 2002 Social Care Regulations, that defines “registered manager” as a person who is registered as the manager of an establishment or agency. By Regulation 4(3) a “person who is seeking to be registered as a manager in respect of an establishment or agency” must provide, among other things, full information in respect of each of the matters listed in Part I of Schedule 3 and the documents listed in Part II of Schedule 3. Part I of that Schedule requires, by paragraph 2, that:

“2. Details of the applicant’s professional or technical qualifications, and experience of managing an [establishment or agency], so far as such qualifications and experience are relevant to providing services for persons for whom services are to be provided at the establishment or by the agency.”

By paragraph 6 there is required:

“6. The name and address of two referees: (a) who are not relatives of the applicant; (b) each of whom is able to provide a reference as to the applicant’s competence to carry on an establishment or agency of the same description as the establishment or agency .…”

Part II of Schedule 3 among other things requires by paragraph 11(1):- “11.(1) Subject to sub-paragraph (2), a report by a general medical practitioner as to whether the applicant is physically and mentally fit to manage an establishment or agency of the same description as the establishment or agency. …”

[16]As to available powers on an appeal, Regulation 4A of the 2002 Tribunal Regulations is in these terms:- “4A Misconceived appeals or applications etc. (1) The President or the nominated chairman may at any time strike out an appeal or application for leave mentioned in regulation 4 on the grounds that: (a) it is made otherwise than in accordance with the provision in these Regulations for: (i) initiating that appeal; or (ii) applying for leave; (b) it is outside the jurisdiction of the Tribunal or is otherwise misconceived; (c) it is frivolous or vexatious; or (d) the President or the nominated chairman considers that the appeal or application has no reasonable prospect of success.” In the present case, reliance is placed by the Welsh Ministers on paragraphs 1(b) and (d). It is to be observed that the use of the word “may” in Regulation 4A connotes that the Tribunal has a discretion in this regard. (a) it is made otherwise than in accordance with the provision in these Regulations for: (i) initiating that appeal; or (ii) applying for leave; (b) it is outside the jurisdiction of the Tribunal or is otherwise misconceived; (c) it is frivolous or vexatious; or (d) the President or the nominated chairman considers that the appeal or application has no reasonable prospect of success.”

The Decision of the Tribunal

[17]The reserved and careful decision of the Deputy President of 1 October 2007 was given in writing, after an oral hearing. He rehearsed the legal framework and referred to a number of authorities. He summarised the submissions made (which were to much the same effect as the submissions before me). He then, in his conclusions, expressed his views on the Tribunal decisions in the cases of Hall and Ajibewa (to which I will have to come). He followed the approach indicated in Ajibewa. He expressed his ultimate determination in this way: “23. So, is there a practical advantage to be gained by hearing this matter? Until Mr Wise spoke I was of the opinion that this could well be just a wish by H to clear her name as there seemed to be no other premises involved. However, at the start of his submissions Mr Wise provided the tribunal and the Respondents with a short, three paragraph statement by the appellant dated 14 September 2007. In it she states that she has been approached by the owner of a home who is aware of her position but wants to appoint her. 24. Although this information came very late in the day, I think that it is important. It seems to me that it does make this appeal come within the matters envisaged in paragraph 57 of Ajibewa, namely that the appellant is someone who intends or is likely in the future to wish to make a further application for registration. …. 26. I have come to the conclusion, therefore, that there is some practical advantage in hearing this appeal. If I am wrong on that matter, I am also of the opinion that this matter should not be determined as a preliminary matter (per the President’s decision in Hall No.1).” ….

The legal submissions

[18]Mr Jonathan Furness QC, who appeared on behalf of the Welsh Ministers, advanced an argument which can be summarised as follows:-18.1 On a proper interpretation of the 2000 Act and the Regulations made under that Act an application to be registered as a manager must relate to specific premises.

18.2 In the present case, Mrs H’s application to be registered made on 15 January 2007 did relate to specific premises – namely the SP Home.

18.3 However, subsequent to the refusal decision of 30 April 2007 the SP Home ceased to be available to Mrs H and her application could not continue to relate to those (or any other) specific premises.

18.4 It follows that the appeal to the Tribunal ceased to have any purpose; the provisions of the 2000 Act and the Regulations could not then be complied with with regard to the application; and the appeal at that stage was misconceived and/or had no reasonable prospect of success.

18.5 Accordingly the only proper exercise of discretion on the part of the Tribunal was to strike out the appeal since it was futile and bound to fail.

[19]Mr Ian Wise, on behalf of Mrs H, advanced an argument which can be summarised as follows:-19.1 The statutory framework does not support the contention that an appeal concerning registration as a manager must relate to specific premises; on the contrary, the statutory provisions are specific to the person and to the fitness of that person.

19.2 The availability of a position at a particular establishment or agency is not a requirement of registration: and whether a position as a care home manager is currently on offer is not the concern of the registration authority or Tribunal.

19.3 Any other approach would give rise to great injustice; since a person such as Mrs H would in practice never be able to appeal since (at all events pending determination of the criminal charges) the registration authority would always decline registration on any further application and she then would again be denied any effective right of appeal.

19.4 In any event, the decision as to whether or not to strike out was a matter for the Tribunal’s discretion; and the Tribunal was justified, in its discretion, in deciding that there was practical advantage in the appeal being heard and in refusing to strike out. There was no proper basis for the High Court to interfere with that exercise of discretion.

[20]I was referred in the course of argument to a number of legal authorities.

[21]These authorities were decisions on other statutory provisions or on provisions which have since been superseded by, for example, the 2000 Act. In my view, I should approach them with caution. The 2000 Act is a new Act and is to be interpreted as such. Mr Furness, however, placed reliance on those cases: his submission was that what had been decided in those cases in substance reflects the law as it is under the 2000 Act on the issue currently arising.

[22]Thus in Woodard v North Somerset District Council

[1998] 1 FLR 950

(a case on s.71 of the Children Act 1989) the appellant was seeking registration in respect of certain premises from which she wished to run child-minding and day care activities. The lease of the premises was forfeited but she continued an appeal against refusal to register her. The appeal was struck out and Bracewell J upheld the decision to strike out. She said this:- “In my judgment a discretion arises as to fitness. That was not adjudicated upon by the justices. The prerequisite before exercising that discretion is that there must be premises to which the application relates. In my judgment there were no such premises. There was nothing available for the local authority or its officers to inspect. Unless there are particular identified premises the local authority cannot carry out its duties. The whole of the scheme of legislation under Part X presupposes that there are premises to which the application relates and which are available for inspection. In my judgment that does not mean some fanciful idea of premises yet to be built, yet to be acquired. In my judgment they must be specific premises which are there and available for the local authority to carry out the necessary checks as set out in the Act. It is very sad that in this case because of a chicken and egg situation, if I may so express it, the appellant is in an invidious position in that she cannot get financial backing until she is registered and she cannot be registered until she has premises in respect of which she can make an application. It is highly regrettable but I have no doubt that the Act is phrased in such a way that the justices were entirely correct in their interpretation. In those circumstances this appeal has to be dismissed.”

[23]A similar conclusion was reached by Sir Stephen Brown P. in Jenkins v Essex County Council

[1999] 1 FLR 420

(also a case on s.71 of the Children Act 1989). Likewise, in Sanjivi v East Kent Health Authority [2000] 59 BMLR 115 Hallett J decided, for the purposes of the Registered Homes Act 1984, that registration of the premises was “inseparable” from registration of the person and that registration of the person could not “exist in a vacuum”. She expressed sympathy for the applicant who, simply because the home had been closed, had “not had an opportunity to clear her name”. By judgment given on 25 January 2001,

[2001] EWCA Civ 125

, Longmore LJ refused permission to appeal. He indicated that once the home was sold and ceased to be intended for use for the provision of nursing persons “the appeal process must be intended to lapse”. He too expressed sympathy for the appellant, stressing that the Tribunal had made no finding of unfitness.

[24]In Kowlessur v Suffolk Health Authority (unrep., Court of Appeal, 16 November 2000) the issue was one of the entitlement to cancel registration under Part II of the Registered Homes Act 1984. One of the issues, for the purposes of that case, was whether cesser of use of the home in the interim meant that the registration ceased to have any application and therefore that the purported decision of cancellation would be nugatory and of no effect. It was held that that did not follow and that the Tribunal was entitled to proceed to decide the appeal as to whether the cancellation proposal should be confirmed or should not have effect. As stated by Jonathan Parker LJ at paragraph 47 of the judgment:- “… I can see no basis for the submission that the fact that the registration had subsequently become otiose in practical terms by reason of the closure of the nursing home somehow obliged the Tribunal to direct that the respondent’s decision to adopt the cancellation proposal, although correct when made, should not have effect …” It was pointed out that, were it otherwise, an initial cancellation decision on the grounds of unfitness could be circumvented by individuals by their closing the home pending appeal. (That last consideration, of course, is now expressly covered by the provisions of section 15 of the 2000 Act).

[25]All these authorities, though revealing in their approach to the statutory provisions there under consideration, do not determine the issues arising in this case under the 2000 Act.

[26]In my judgment, all the same, it is clear that the registration of an individual as manager under Part II of the 2000 Act has to be related to a specific establishment or agency; and I agree with Mr Furness’ submissions on this. That that is so is borne out by the language of the Act.26.1 First, section 11(1) creates an offence with regard to any person who carries on or manages an establishment or agency of any description without being registered under Part II “in respect of it”. Those last words cannot be ignored as surplusage.

26.2 Second, section 12(3) connotes an application for registration as the manager “of an establishment or agency”: and that is reinforced by section 12(4) which requires separate applications for more than one establishment or agency.

26.3 Third, section 13(2) connotes that the registration authority has to be satisfied that the specified requirements “are being and will continue to be complied with … in relation to the establishment or agency”.

26.4 Fourth, section 14(1) and section 17(1) also confirm that the application is for registration “in respect of an establishment or agency”.

[27]These provisions, taken also in the context of Part II read as a whole, show that registrations must relate to specific premises: registration is not confined solely to the person, as Mr Wise submitted. I am not, in fact, sure that it is very helpful to describe the registration requirements as either “premises specific” or “person specific” as though they are mutually exclusive. They are, in a sense, both. An individual has, generically as it were, to be a person who is fit to manage “a” care home. But in addition he or she has to be fit to manage “the” care home in question: and in that regard the application has to satisfy the registration authority in all the prescribed respects. The 2000 Act is clear on that.

[28]That the application for registration as manager on the part of an individual has to relate to a specific establishment is also confirmed by the 2002 Care Home Regulations. Not only is that consistent with the definition of “registered manager” in such Regulations: it is also borne out by, for example, Regulation 8 (which consistently refers to “the” care home). Further, Regulation 9(2)(a) and (b) and Regulation 10(1) and (3) would make no sense if the individual’s application were not related to a specific establishment. The same can be said of the requirements of the 2002 Social Care Regulations: in particular Regulation 4(3) and paragraphs 2 and 6(b) of Part I of Schedule 3 and paragraph 11 of Part II of Schedule 3.

[29]Accordingly, my conclusion is that the application of a manager under the statutory scheme must relate to a specific establishment or agency.

[30]The next stage of Mr Furness’ argument was that, given that an application (or appeal) must relate to specific premises and given that (now) there are no specific premises available to Mrs H for the purposes of her application and appeal, the appeal necessarily must be dismissed: and, in the language of section 21(3) of the 2000 Act, the original decision must be confirmed. Accordingly, it is submitted that the appeal should be struck out now as being misconceived or as having no reasonable prospect of success.

[31]Mr Furness made clear in his submissions that that must, he said, be so in all appeals to the Tribunal concerning applications for registration as a manager where the premises in question have ceased to be available to the applicant. One can see some attraction in terms of certainty for such an approach. But certainty can sometimes come at the expense of flexibility: and that approach as urged by Mr Furness at least gives rise to an initial sense of wariness, given that the strike out jurisdiction is a discretionary jurisdiction to be exercised in the circumstances of each case.

[32]I was in this context referred to previous decisions of Tribunals (differently constituted). The first two were decisions in the case of Hall v Commission for Social Care Inspection [2003] EWCST 242: 17 August 2004 and 25 February 2005. Those were decisions arising under the 2000 Act.

[33]In Hall (No.1) the issue was (see paragraph 4) stated to be this: where an appellant no longer has a sufficient interest in the premises should the appeals be struck out? In that case there had, after decisions to cancel registration under section 14(1)(c) of the 2000 Act were made in respect of particular premises and pending appeal, been a consent order for sale of those premises. The Tribunal refused in its discretion to strike out the appeals stating that it was not an appropriate case to do so: see in particular paragraphs 22 to 31 of the decision. The respondent commission subsequently saw fit to raise, in effect, precisely the same point again prior to the final hearing: but this time formulating the matter as a preliminary issue. The same Tribunal (in Hall (No.2) was persuaded to hear that further application substantively. Having done so, it concluded (see paragraph 18) that there had been a loss of the premises and thus that “the establishment cannot be carried out in accordance with the relevant requirements of the Care Home Regulations. We therefore find as a fact that the section 14(1)(c) ground is established”. But having so decided the Tribunal did not without more ado dismiss the appeal: it instead directed a further oral hearing (seemingly in part at the request of the Commission) “to deal with the consequences of these findings”. Quite what that was intended to cover is unexplained and what thereafter eventuated is apparently not known. Both Mr Furness and Mr Wise expressed a degree of bafflement as to the procedure adopted in Hall (No.2). Mr Furness does however accept that in the present case he is seeking to strike out the appeal in circumstances similar to (although not, it must be said, the same as) Hall (No.1), where the Tribunal had in that case declined to strike out.

[34]Altogether clearer is the decision dated 21 March 2006 of another Tribunal in Ajibewa v Ofsted [2005] 539 EY. That was a case of cancellation of registration under the provisions of Part XA of the Children Act 1989 (introduced by amendment by the 2000 Act). In that case a particular church hall, which had been the property originally specified by the applicant in support of registration under the 1989 Act as amended, had ceased to be available. The Tribunal said (paragraph 32) that: “We agree with [counsel] that a person cannot be registered in the abstract because registration must always be in respect of particular premises”. (As will be apparent, I agree with that.) It was then commented (paragraph 35) that it was “disappointing” that neither Part II of the 2000 Act nor Part XA of the Children Act 1989 “give a clear indication as to how appeals are to be determined when premises cease to be available”.

[35]After a review of various authorities and statutory provisions, the Tribunal said this at paragraphs 56 and 57 of its decision:- “56. The first question for a tribunal hearing an appeal after premises have been sold (apart from any issue there may be as to possible access to the relevant premises) is therefore whether to cancel registration on the simple ground that the provider does not have access to the relevant premises or to consider other issues. We consider that a pragmatic approach should be taken. If the parties cannot persuade the tribunal that there is some practical advantage to be gained from considering other issues, the tribunal should cancel registration on the sole ground of lack of premises. If the parties can persuade the tribunal that there is some practical advantage in giving a decision on other issues, the tribunal should do so. 57. It seems to us to be unlikely that there will be any practical advantage in considering other issues unless the appellant is a registered provider in respect of other premises or intends, or is likely in the future to wish, to make a further application for registration. We doubt that a mere wish by an appellant to clear his or her name will be enough if there is no prospect of him or her seeking registration in the future. However, it is unnecessary for us to decide that point.” Mr Furness emphasised that these remarks were made in a cancellation case and also where, it seems, both parties desired a final hearing. In the present case (which is, of course, not a cancellation case) the Deputy President adopted a similar approach; and decided that there was in this case practical advantage in hearing the appeal and in any event that the matter should not be determined as a preliminary matter.

[36]Mr Furness necessarily has to accept that he can only successfully challenge such discretionary decision as being based on a wrong application of the law or on the usual relatively restricted grounds of challenge to discretionary decisions.

[37]In my view the Deputy President was entitled to exercise his discretion as he did; and no proper basis for interfering with that exercise of discretion is shown.

[38]I do not agree with Mr Furness’ submission to the effect that because an appeal would (given that there were no longer any specific premises available) result in a decision confirming the decision of the registration authority therefore the appeal must be struck out.38.1 The first point that can be made (as I have already indicated) is that so fixed an approach does not sit well with the discretion expressly conferred by Regulation 4A of the 2002 Tribunal Regulations.

38.2 The second point is – as noted by the Tribunal in Hall (No.1) – that such an approach also does not fit well with Regulation 31 of the 2002 Tribunal Regulations. That provides that if an applicant dies the chairman may either strike out or appoint some person to proceed with the appeal in place of the deceased applicant. That latter option, expressly conferred by the Regulation, logically does not fit at all well with the thrust of Mr Furness’ submissions; and that is so, in my view, even though Regulation 31 relates, on its face, only to the death of the individual applicant and not to the loss of the specified premises.

38.3 The third point is that it is, in my view, simply wrong to assume that because there are no specific premises available and because the original decision must in form be confirmed on appeal then a substantive appeal would necessarily be futile and of no purpose. In my view, it can in a particular case be of purpose. Here, reasons were given on 30 April 2007 for refusing to register Mrs H in respect of the SP Home. That decision cost her her employment at the SP Home and, on the evidence, continues to deprive her of chances of gaining employment elsewhere as a care home manager. She has real prospects of offers of such employment. The Deputy President was entitled to take that into account and to conclude that there was practical advantage in allowing the appeal to continue.

[39]I appreciate that, strictly, an appeal is against the decision not the reasons for the decision. But in practice the basis for a decision could be highly relevant thereafter to others. Mr Furness submitted that a determination on appeal, in confirming the decision not to register by reason of lack of premises, would in practice be recorded in the CSSIW register as a dismissal of the appeal only on the “technical” ground of lack of an establishment. That may be so. But that could be of scant comfort to someone such as Mrs H: because if she were subsequently to apply to be registered again as a manager in respect of other premises during the period of the criminal proceedings the registration authority would doubtless decline to register her again on precisely the same grounds as before: and (if, as would be likely, the second would-be provider understandably then withdrew the offer of employment) again she would have no effective right of appeal. It is precisely for that reason, among others, that it could properly be determined that there was advantage in permitting Mrs H to pursue the present appeal: for even though the appeal perhaps otherwise may have to be dismissed for want of specific premises she would at least in the course of the hearing have the chance to persuade the Tribunal that the original grounds for refusing to register her were not justified and to promulgate a written decision which said as much. If that were the outcome, there could be real advantage to her thereafter in any further registration application she might make, in circumstances where another offer of employment as manager had become available to her at a particular home.

[40]Of course, if Mrs H chooses to pursue this appeal, she necessarily also has to accept the risk that the Tribunal may decide against her on substantive grounds. I should not be taken as indicating any view of my own as to the prospects of success for Mrs H on her appeal in seeking to challenge the correctness of the registration authority’s decision of 30 April 2007. Indeed the position has now changed in that the matter has moved from the stage of a criminal investigation to actual criminal charges. That will potentially (even allowing for the presumption of innocence) be a formidable point for her to have to confront for the purposes of the appeal if she chooses to pursue it. But that does not operate to displace the entitlement of the Deputy President to consider at this stage that a practical advantage existed here. Indeed it could further be said that if the appeal were to be dismissed, and the original decision to refuse to register confirmed, not simply because of the “technical” point (viz. lack of specific premises) but also on substantive grounds, then that too might confer a practical advantage: namely, to the registration authority in assessing any further registration applications by Mrs H.

[41]Mr Wise, in support of his argument, sought to invoke

Article 6 of the European Convention on Human Rights

. He submitted that to deprive Mrs H of a substantive right of appeal would infringe her rights under that Article. He cited to me the case of Wright v The Secretary of State for Health

[2007] EWCA Civ 999

. That was a case very different from the present, involving as it did essentially a consideration of a restriction of the right to make representations before being provisionally placed on the Protection of Vulnerable Adults list. In the present case that does not arise – Mrs H has had the right to make representations at all stages. I cannot, moreover, see that a Regulation (such as Regulation 4A of the 2002 Care Tribunal Regulations) making procedural provision for striking out groundless appeals can be objectionable of itself - indeed Mr Wise disclaimed such a proposition.

[42]However, the invocation of Article 6 is – albeit indirectly – of rather greater force, as I see it, in confirming what is in any event the normal procedural approach under domestic law: viz that to strike a claim out summarily is a strong thing to do and such power to do so must be exercised with appropriate caution. That is the more so where (as here) the ability to secure employment is affected by the decision sought to be challenged. It is also to be noted that in extracts from two specialist text books cited in the Hall (No.1) case (although neither those books nor the latest editions were cited in argument to me), as referred to in paragraphs 25 and 26 of that decision, the view was expressed to the effect that a provider or manager was not to be deprived of a right of appeal by reason only of the intervening loss of a specified establishment. While I would not necessarily agree with the unqualified reliance on Article 6 for such proposition, I do nevertheless agree with that proposition: provided always that it is read as “not necessarily to be deprived” of a right of appeal (emphasis added).

[43]Moreover, such an approach is consistent with that indicated as available in the Court of Appeal decision in Kowlessur, as well as with the Tribunal decision of Ajibewa. I fully appreciate – as did the Deputy President in this case - that those were decisions under different statutory provisions and also can be distinguished as being made in the context of a cancellation decision (whereas here there has never been any registration). Even so those decisions are at least consistent with the view that a Tribunal, on appeal, is at least entitled to have regard to wider considerations than the mere prospective outcome of an appeal in terms of its formal dismissal in deciding whether or not to strike out that appeal. In my view, the Deputy President was in the circumstances entitled to adopt the broad approach indicated in paragraphs 56 and 57 of the Ajibewa decision.

[44]I should stress, however, that I am not to be taken as saying that in all appeal cases where the specified establishment has ceased to be available the only correct decision is to decline to strike out. There may well be cases where there has ceased to be a specific establishment available where a strike out of the appeal is appropriate. In the present case, however, the Deputy President on the facts identified a practical advantage in allowing the appeal to go to a final hearing. He was entitled so to find. Since his overall approach was otherwise legitimate, it follows that no error of law is shown and there is no other proper basis for interfering with the decision to refuse to strike out.

Conclusion

[45]This appeal is dismissed.

[46]I should add one further point. To my utter astonishment, I was told that the time estimate for the appeal to the Tribunal had been given as 3-4 days, now increased to 10-12 days (indeed, Mr Furness told me that was one reason for this strike out application being pursued). I cannot begin to understand that estimate. Such a hearing would be totally disproportionate. The parties – certainly Mrs H – should clearly understand that there is no absolute entitlement to explore before the Tribunal the substance of the allegations made in the criminal proceedings. Indeed the Tribunal may well conclude that it would be entirely invidious for the Tribunal to be required to examine or make any findings as to matters now the subject of criminal proceedings. It would, for example, potentially be open to the Tribunal to adjourn the appeal pending disposal of the criminal proceedings. It would also, for example, potentially be open to the Tribunal to decide whether or not it agreed with the reasons for registration authority’s decision of 30 April 2007 by reference to the fact of the enhanced criminal record certificate (which was the basis for the original decision) – although, of course, that has since been followed by actual criminal charges, which further fact the Tribunal will also now have to take into account. But a hearing conducted on that basis should not take more than a few hours, at most. However, all that is a matter for the Tribunal. All I emphasise now is that if the parties in this case are assuming that, on appeal to the Tribunal, there is an absolute entitlement as of right for them exhaustively to investigate all the underlying factual issues raised in the criminal proceedings then they should think again.