Menon v Care Quality Commission [2012] UKFTT 840 (HESC)

FTT-HESC
Menon v Care Quality Commission
[2012] UKFTT 840 (HESC) · 2011-05-24
[1]By notice dated 6 January 2011 the Applicant appeals against the Respondent's decision to refuse to register him as the Registered Manager of Holly House, 36 Green Street, Milton Malsor, Northampton NN7 3 AT (Holly House) on 9 December 2010. Preliminary matters[2]Ms Brunner applied to adduce a supplementary statement from DI Roberts, which dealt with his understanding of the effect of the bail conditions upon Mr Menon. Mr Hyams objected to the admission of the statement and submitted that in the event that the panel admitted it he should be allowed to adduce evidence in rebuttal, namely a letter from Mr Ingram, Counsel instructed in respect of Mr Menon's bail application. The panel applied the overriding objective and admitted the evidence, indicating that it was not possible to determine relevance on the papers and that the weight given to such evidence was a matter for consideration once the issues had been explored in cross examination, however the panel should have sight of the document prior to the evidence being heard. Mr Hyams made a consequential application to call Mr Ingram to give evidence. The application was deemed premature by the panel. Following the evidence of DI Roberts the application was not pursued. Law[3]Under the Health and Social Care Act 2008 (HSCA) provisions amended the registration regime of certain providers and managers registered under the Care Standards Act 2000 (CSA) and introduced the functions of the Care Quality Commission (CQC) in respect of those registrants. From 1 October 2010 all new applications for registration were to be made under HSCA. Providers and managers who were already registered were required to submit an application under the HSCA (Commencement No 16, Transitory and Transitional Provisions) regulations. These transitional provisions provide at Art 6 that the provisions of 12 and 15 of the HSCA shall apply as modified to the applicant. In the case of an application for registration as a manager under s.14 the application must therefore be dealt with by CQC in accordance with the precise terms of s.15, namely, if the Commission is satisfied that the regulations made under HSCA s.20 " are being and will continue to be complied with (so far as applicable) in relation to the carrying on of the regulated activity, it must grant the application; otherwise it must refuse it ." The application may be granted unconditionally or subject to conditions. Section 21 of the CSA provides that an appeal against a decision of the registration authority shall lie to the Tribunal.[4]The relevant regulations made pursuant to s.20 are The Care Quality Commission (Registration) Regulations 2009 (the 2009 regulations) and The Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 (the 2010 regulations).[5]The burden of proof is placed on Mr Menon to demonstrate that he satisfies the conditions of registration.[6]The standard of proof applicable on appeals to this tribunal is the civil standard of proof, namely on the balance of probabilities. In re B (Children) FC [2008] UKHL 35, Baroness Hale stressed that neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the relevant facts. Inherent probabilities may be taken into account, where relevant, in deciding where the truth lies.[7]In essence, the tribunal takes an inquisitorial, not an adversarial, approach to the hearing. This is a fact gathering exercise governed by equitable principles and by the overriding objective set out in Rule 2 of the Health, Education and Social Care Chamber Rules 2008 (the '2008 Rules'):(1) (1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.(2) Dealing with a case fairly and justly includes— (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties; (b) avoiding unnecessary formality and seeking flexibility in the proceedings; (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings; (d) using any special expertise of the Tribunal effectively; and (e) avoiding delay, so far as compatible with proper consideration of the issues.(3) The Tribunal must seek to give effect to the overriding objective when it— (a) exercises any power under these Rules; or (b) interprets any rule or practice direction.(4) Parties must— (a) help the Tribunal to further the overriding objective; and (b) co-operate with the Tribunal generally.[8]The general principle is that each party must provide sufficient evidence to support their case, but where relevant information is available to the Respondents, an organisation with far greater resources than the Appellant, it is for the Respondents to produce that information.[9]The appeal is a full merits appeal rather than a review of the decision. The tribunal can therefore consider post decision evidence.[10]In this case, the Respondent opposes the appeal on the basis that the Appellant does not fulfill the statutory criteria for registration because he cannot demonstrate that he will comply with the 2010 regulations, in particular regulation 6 and regulations 9- 24 because he is subject to bail conditions which preclude him from being engaged in employment in connection with vulnerable adults. It is also a condition of his registered provider status that for so long as those bail conditions subsist he must not visit Holly House. Background[11]Mr and Mrs Menon were registered as partners in respect of Holly House, 36 Green Street, Milton Malsor, Northampton (Holly House) under the CSA 2000 on 8 April 2003. Mr Menon became registered manager in 2006. In August 2009 a Key Inspection gave Holly House a one star "adequate" service rating, identified six statutory requirements and made 17 recommendations.[12]In early May 2010 Mr and Mrs Menon were arrested by West Mercia Police in connection with activities at Rosedale Retirement Home, a home owned by them (via a limited company) in the West Midlands. The allegations surround suspicion of adult neglect under s.44(1) Mental Capacity Act 2005 and suspected financial irregularities. Both were bailed and have been subsequently re-bailed. They are due to return in respect of bail on 28 June 2011. It is unlikely that the police enquiries and CPS consideration of potential charges will be completed at that time. One of the bail conditions imposed upon Mr Menon is that he must not ..." be engaged in any employment in connection with vulnerable adults."[13]Mr Menon 's lawyers wrote to the CQC on 16 th May setting out the interim management arrangements for Holly House under regulation 15 CQC (Registration) Regulations 2009 as follows: Manager : Natalya Karakhim Support : Robert Fawcett (Consultant) Gaurava Menon (Mr Menon's son) Deputy Managers : Rosita Mitzerva Susan Hawtin This was followed on 17 th May by an application under the transitional provisions for registration of Mr and Mrs Menon, in partnership, to be registered providers in respect of Holly House and for Mr Menon to be registered manager.[14]On 9 October the CQC served Notices of Proposal to refuse the transition registrations for both service providers and registered manager. Mr and Mrs Menon made representations in respect of the notice in respect of registered provider, however Mr Menon did not make representations in respect of the notice regarding his application to be registered manager. The representations in respect of service provider were considered by another region and were upheld. On Mr and Mrs Menon were informed that they would be registered as providers subject to the conditions that they must not visit Holly House whilst the bail conditions subsisted and that a registered manager must manage the home, ..." as carried on at or from the location" The Issues[15]The main issue between the parties is whether, given the Registered Provider condition which prevents Mr Menon attending Holly House, coupled with the bail condition preventing employment in connection with vulnerable adults, Mr Menon could "at a distance" ensure that the regulations made under HSCA s.20 " are being and will continue to be complied with (so far as applicable) in relation to the carrying on of the regulated activity", namely the 2009 and 2010 Regulations.[16]The parties also disagreed as to whether Regulation 5 of the 2009 regulations applied to Holly House, namely whether where service providers are in partnership a registered manager condition is imposed. This disagreement was not developed before the panel since both Counsel agreed that the reason for the imposition of the condition was irrelevant to the appeal from the decision not to register Mr Menon as manager. Evidence[17]Mr Menon told the panel that the administration arrangements had changed since they were set out in the letter to CQC dated 16 May 2010. Ms Brunner suggested that at the time he had made it clear that he would not be involved in running Holly House, which he denied. She suggested that the structure had changed since May 2010. Mr Menon replied " Nothing has changed ." Ms Brunner challenged this and Mr Menon replied that the situation was " Perhaps not quite the same" . He then told the panel that " we " looked for a registered manager and had employed two persons who had left for personal reasons. When describing the recruitment attempts and the activities at Holly House Mr Menon used the phrase " we " for most of his descriptive evidence. The current position was that Ms Mitroi had applied to be registered manager and that she had nearly completed the relevant training.[18]Mr Menon made it plain that he still regards himself as Registered Manager - " until I'm struck off ". Ms Brunner asked him whether he would delegate roles to others. He replied " I'm waiting for a decision from the tribunal ". She asked " What is your plan? How would you manage Holly House? " Mr Menon replied " If the decision goes against me I won't be registered manager. There's no restriction on the number of managers ". Ms Brunner asked " Would you have an interim manager? " to which he responded " The structure would not necessarily change " and " I'd take on some things. I'd be more involved in care planning. I have Mr Fawcett to guide us. "[19]Mr Menon told the panel that he could meet the regulations and ensure protection from risks. When asked about regulation 12, and how he could take responsibility for cleanliness at Holly House he stated that there were already policies and procedures in place at the home to deal with that whether he is there or not, that he would delegate the responsibility to Ms Mitroi rely on Mr Fawcett. In respect of safeguarding, Mr Menon explained that again there are policies in place at the home and his son has been trained to a high level in this field. He said "I 've already made suitable arrangements " and the fact that he could not be at Holly House all the time did not mean that if an emergency situation arose it couldn't be dealt with by the deputy manager..." maybe Dana, maybe my son. He'd be there to support the manager ". Judge Hillier asked him if he would just delegate those matters which required attendance at the premises. Mr Menon replied that he would delegate all " reasonable " matters.[20]When asked whether Ms Mitroi would be joint or sole manager of Holly House if her application is successful, Mr Menon responded that he didn't know. Ms Brunner pointed out that Ms Mitroi had applied to be sole manager. Mr Menon stated " She may not have ticked the right box. She's a great girl and I'd like to give her every opportunity ". Ms Brunner asked " So there is no settled situation? " to which he responded " She likes to be manager. She's a very valuable member of the team. "[21]The panel heard evidence from Angela Fawcett, a joint director of Rob Fawcett Consultancy limited, a company providing education and support to care home owners and their staff. Her written statement recorded her surprise at the refusal of CQC to refuse the application because in her experience the role of a registered manager is one of " decision support " and that it is not necessarily a hands-on role. She gave numerous examples of her own experiences in care home settings and likened these to the situation at Holly House. Her understanding of the position is that Mr Menon " communicates with everyone by mobile phone, text message, emails and by giving Guarav directions. It appears to me that the structure has operated very well ..."[22]Ms Brunner asked Ms Fawcett her view of whether there should be a time limit on " temporary arrangements ". Ms Fawcett declined to comment. She said " it's not ideal, however it could change. It would depend on keeping patients safe ".[23]DI Roberts told the panel that the current situation was that the papers would go to the CPS in June and it was likely that there would be a decision in respect of charge by September. If Mr Menon was charged with an offence a Crown Court trial could take 12 - 18 months. He explained that the police had known about Holly House and the decision had been taken to impose bail conditions which allowed Mr Menon to act as "landlord" but not to be involved in direct contact with patients. Mr Menon had applied to vary the bail conditions on two occasions. On the most recent occasion he had asked for the conditions to be varied to allow him to attend the administration block at Holly House but the magistrates had refused the application. There had been various discussions on the day of the application, but he had not been involved in all of them.[24]Ms Gollop , a CQC compliance officer, gave evidence about the Respondent's understanding of the role of a registered manager, namely that s/he has responsibility for ensuring that the regulations are met and that the provision is appropriate. She explained that in essence the staff provide the care and the manager ensures that the care is carried out properly. The interim arrangements at Holly House had been approved on a temporary basis last May and because they were temporary the interim managers were not subject to CQC interviews.[25]Ms Gollop explained to the panel that in her view it simply wasn't possible to ensure that the regulations are being met on a long distance basis. She gave the example of Regulation 17, and said that ' make arrangements ' in the context of a registered manager meant that s/he would have to observe what was going on in practice. She continued:
" You have to hear what residents are being called and how they are being spoken to. Are they simply being asked questions like 'do you want to go to the toilet?' or are staff actually engaging in conversation with them? "
Similarly, Ms Gollop said that in respect of safeguarding matters under Regulation 11, situations of suspected abuse can arise very quickly. The manager may need to physically examine the situation, talk to staff and residents, take charge and deal with a potentially volatile situation very quickly. " The best place to conduct this would be in the home where the allegation occurred."[26]Ms Gollop also referred to Regulation 12 (cleanliness) and stated that whilst a manager could look at reports of the cleanliness in the home, or look at the procedures, it was still necessary from time to time to see whether there was a layer of grime on the furniture and to actually smell the atmosphere.[27]When cross examined by Mr Hyams Ms Gollop conceded that the regulations and guidance do not specify that a manager must be present at the home but she explained that effective running of a home cannot be carried out at a distance on more than a temporary basis because there are matters such as safeguarding, systemic failure and respecting clients which cannot be delegated to consultants, report writers or deputies. She said that these are duties of a manager who actually attends the home:
" External consultants don't have legal responsibilities - it's the registered manager who has the responsibility "
.

(i) Appellant

[28]Mr Hyams submitted that the precise role or duties of a registered manager are not defined and that it is clear from regulations 9 -24 that s/he need not be present on a day to day basis at a home. Further, he suggested that the fact that the requirement under regulation 14 of the 2009 regulations to notify proposals of arrangements for cover when a manager is to be absent for a period of 28 days or more demonstrated that it was never envisaged that managers would have to manage the regulated activity " all of the time ". He also directed the panel to consider regulation 21 of the same regulations which envisages alternative arrangements being approved by CQC for a period of up to a year.[29]Mr Hyams also submitted that the requirements of regulation 6 of the 2010 Regulations are met. He stated " There is no reference in that regulation to the requirement for a registered manager to be in full-time day to day charge of the management of the carrying on of a registered activity. There is no need to import that requirement. The question of whether or not a registered manager is in practice fulfilling the role of registered manager is separate from and independent of the question of fitness to be the registered manager (i.e. fitness within the meaning of regulation 6 of the 2010 Regulations) ."[30]Mr Hyams continued his submissions by stating that the existence or otherwise of a registered manager is irrelevant to the question of whether or not the regulated activity is producing the intended outcomes of regulations 9-24 of the 2010 regulations. He stated " The requirement to have a registered manager must surely have been enacted to ensure that there was a natural person who could be made responsible for compliance with the requirements stated in those regulations where there would not otherwise be a natural person to hold responsible for such compliance, but at the end of the day the manner in which the registered person enables, through staff and advisers, the implementation of the duties imposed by regulations 9-24 is for that person and not the CQC ."[31]In addition, Mr Hyams submitted that the person who applies to the CQC to be registered under registration 6 of the 2010 regulations complies with the requirements of that regulation ..."it is not open to the CQC to refuse that application." Further, the fact that DI Roberts opined that if Mr Menon were registered he would potentially be in breach of his bail conditions is irrelevant - the matter would have to be left to the police and the magistrates to determine.[32]Mr Hyams countered Ms Brunner's submission that the role of service provider differs significantly to the role of manager by submitting that it fails to take into account the impact of regulation 25 of the 2010 Regulations which shows that the role of the registered service provider may encompass that of the registered manager. He suggested that the words in regulation 6 "physically and mentally fit to carry on the regulated activity" relate to the health of the applicant for registration, and have nothing to do with the question of whether or not the person will be arrested if he or she seeks to fulfil the role of registered manager.[33]The panel were also reminded on behalf of the Appellant of the presumption of innocence and that bail conditions are necessarily temporary. Mr Hyams submitted that Parliament cannot have intended that the mere fact that the applicant for continued registration as the manager of a care home is subject to bail conditions which prevent him or her from carrying out part of the role of the registered manager means that the application must be rejected. He stated:
" In practice a registered manager can carry out the role of a registered manager by using staff and consultants. Even Ms Gollop had to acknowledge that a registered manager can engage an independent expert such as Mr or Mrs Fawcett to carry out tasks which will enable the registered manager to satisfy the requirements of regulations 9-24 of the 2010 Regulations."
[34]He concluded that, in practice, given the proposed arrangements, Mr Parvin Menon can comply in any event with the requirement (if there is such a requirement) to be in full-time day to day charge of the management of the carrying on of the care home at Holly House. (ii) Respondent[35]Ms Brunner submitted that Mr Menon does not meet the fitness to manage test in Regulation 6 of the 2010 regulations because " within the broad meaning of 'fit '" a person who is barred from a registered establishment is not fit to manage. She also suggested that the meaning of ' physical fitness ' within that regulation should be interpreted to mean that a person who cannot attend the premises is not " physically able to manage ". She countered Mr Hyams submission that if Mr Menon was fit to be a provider he must be fit to be a manager on the basis that the two roles are very different and it is possible to be fit for one and not for the other.[36]The main submission made on behalf of the Respondent was that the grounds in s.15 of HSCA were not and are not met by Mr Menon because he could not and does not provide sufficient evidence to demonstrate that the 2010 regulations will be complied with. Ms Brenner pointed out that non compliance can be very significant, indeed regulation 27 of the 2010 regulations makes it a criminal offence to fail to comply with regulations 9 - 24. The CQC Guidance and the Code of Practice are matters to which the registered person and CQC "must" have regard, and Ms Brunner submitted that the Tribunal should therefore take them into account.[37]Ms Brunner submitted that the CQC has a role to protect service users and that it is necessary to consider "worst case scenarios" when doing so. She opined that Mr Menon could remain on bail for a lengthy period, and that a conviction for serious criminal offences could be the outcome of any criminal charges, there fore it was not appropriate to treat the position as a temporary situation. She accepted that it would not be appropriate to treat him as a person of bad character, and that the fact that he might be arrested for breach of bail conditions if registered is irrelevant to the decision before the panel.[38]Ms Brunner pointed out that this was not a joint application, where CQC and the tribunal could consider the practicalities of a shared role - Mr Menon had applied as a sole manager, and so had Ms Mitroi, whose application was currently being considered. She therefore submitted that the panel should approach the position, on the evidence given by Mr Menon which contained " no firm and clear proposals " as if he would be an absent manager for the next 2 years.[39]In respect of Mr Menon's evidence Ms Brunner submitted that he had not put forward a positive case with clear and detailed proposals and this was an "insurmountable difficulty" in his case. Ms Brunner submitted that Ms Gallop's evidence in respect of the regulations, and the regulations themselves, for example Regulations 9,10,11,12,14,16,17 and 22 all demonstrate that there is a need for a manager to be able to attend, and that certain roles cannot be ultimately delegated to a consultant, the manager has to be able to observe some matters directly.[40]Finally, Ms Brunner submitted that there is an overriding responsibility to service users and to the public. In terms of protection issues, and in the event of a significant breach of the regulations or systemic failure, an outside observer would be amazed if the registered providers and the registered manager had been registered by CQC when on bail for serious offences of neglect and when neither could set foot in Holly House. TRIBUNAL'S DECISION AND REASONS[41]The panel considered all the written and oral evidence, and the submissions made by both Counsel. We noted the extensive support for Mr Menon and his wife given both in writing and by their presence at the tribunal of staff, residents and their families. The panel decided on the basis of the evidence taken as a whole, applying the law as outlined above, that the appeal should be dismissed on the basis that Mr Menon does not fulfill the statutory criteria for registration under s.15 HSCA. This is because he cannot or will not demonstrate that he can comply with the relevant s.20 regulations, including the 2010 regulations, in particular Regulation 6 and Regulations 9- 24 whilst he is subject to bail conditions which preclude him from being engaged in employment in connection with vulnerable adults and whilst it remains a condition of his registered provider status that for so long as those bail conditions subsist he must not visit Holly House.[42]When considering Mr Menon's evidence the panel concluded that despite being given every assistance and opportunity to explain his proposals, Mr Menon actively engaged in deliberate avoidance of questions, and operated a policy of obfuscation and evasion. Sections of his evidence are recorded in this decision because they demonstrate how unhelpful he was. The panel assessed that Mr Menon is an intelligent man, expertly represented by solicitor and Counsel, and that he could be in no doubt of the need to show how CQC should have been satisfied that section 15 of HSCA would be satisfied. He could also be in no doubt that his evidence was an opportunity to demonstrate to the panel that they could be satisfied that it was more likely than not that his proposals would ensure that the regulations would be satisfied if he were to be made Registered manager at that date. His exchanges with Ms Brunner, including responses such as " I'm waiting for a decision from the tribunal , ... If the decision goes against me I won't be registered manager. There's no restriction on the number of managers " and " The structure would not necessarily change " in answer to properly put requests for information about how the regulations would be met were deliberately evasive and gave no confidence as to what would or could happen if Mr Menon were to be registered as manager.[43]The panel also did not find Ms Fawcett's evidence particularly helpful, as much of it concerned her own experiences of absence from the position of registered manager rather than the application in hand. There was no doubt however that she was an honest witness who tried to give assistance in a fair manner. Her evidence that Mr Menon " communicates with everyone by mobile phone, text message, emails and by giving Guarav directions" would appear to indicate that Mr Menon currently is involved in the running of the home to a greater extent than that envisaged in the May 2010 proposals. The panel accepted that she quite fairly did not wish to put a time limit on the arrangements and that she was primarily concerned with safety, however she could not give a view on Mr Menon's proposals for the future running of Holly House because they were so unclear. The panel agreed with her overall assessment of the future situation, namely:
" It would depend on keeping patients safe "
. In the panel's assessment the statutory provisions to ensure this are contained in HSCA s15 and in the 2010 regulations.[44]The panel accepted DI Roberts evidence as to the likely timescales involved in the criminal process and the reasons behind the police imposition of bail conditions which allowed Mr Menon to remain a registered provider but not to be employed in a position which involved vulnerable adults. It was not necessary to determine what he knew about the way Holly House had been run since May 2010 or his views on what might constitute a breach of bail since that was not relevant to the decision. It was therefore not necessary to hear from Mr Ingram.[45]The panel were very impressed by Ms Gollop's evidence, which was cogent, consistent and directed to the issues. Her professionalism and experience were evidenced by her obvious in depth understanding of the regulations and the practical day to day matters of acting as a registered manager. Her evidence about the need for a person in that position to have a degree of contact with the residents and to observe the actual setting in order to fulfil the role and ensure that the regulations were met and the residents were kept safe was compelling and was accepted by the panel in its entirety.[46]It follows from the above that the panel rejected Mr Hyam's submission that since the precise role or duties of a registered manager are not defined it is "clear" from regulations 9 -24 that s/he need not be present on a day to day basis at a registered home, because the panel concluded that whilst requiring the manager to be ever-present would be unreasonable, and that some tasks can and properly should be delegated to other staff and/ or consultants, the overall scheme of responsibility means that a manager must be present for some of the time to properly ensure compliance with the regulations. The panel therefore accepted Mr Hyam's submission that the fact that the requirement under regulation 14 of the 2009 regulations to notify proposals of arrangements for cover when a manager is to be absent for a period of 28 days or more demonstrated that it was never envisaged that managers would have to manage the regulated activity " all of the time " and that regulation 21 envisages alternative arrangements being approved by CQC for a period of up to a year. In this case it is impossible to say how much longer the situation will subsist, however the panel accepted the evidence of DI Roberts that the situation could take in excess of 18 months to fully resolve. The panel concluded that since the situation had already existed for a year the situation was now more than 'temporary'.[47]Mr Hyams also submitted that the existence or otherwise of a registered manager is irrelevant to the question of whether or not the regulated activity is producing the intended outcomes of regulations 9-24 of the 2010 regulations. He stated " The requirement to have a registered manager must surely have been enacted to ensure that there was a natural person who could be made responsible for compliance with the requirements stated in those regulations where there would not otherwise be a natural person to hold responsible for such compliance, but at the end of the day the manner in which the registered person enables, through staff and advisers, the implementation of the duties imposed by regulations 9-24 is for that person and not the CQC ." Similarly, Mr Hyams submitted that if the person who applies to the CQC to be registered under regulation 6 of the 2010 regulations complies with the requirements of that regulation ..." it is not open to the CQC to refuse that application ." The panel did not accept these contentions because the burden of proof falls on the applicant to demonstrate compliance with s 15 HSCA. That section makes it clear that it is very much for the CQC to be satisfied that compliance will be ensured by the proposed registered manager and to refuse the application if that is not demonstrated by the applicant.[48]The panel accepted Mr Hyam's submission that the fact that if Mr Menon were registered he would potentially be in breach of his bail conditions is irrelevant - the matter would have to be left to the police and the magistrates to determine, and the panel placed no weight on DI Robert's opinions on this issue. Equally, the panel bore in mind that Mr Menon has not been convicted of any offence nor has he been charged with anything and accepted Mr Hyam's common sense approach to the interpretation of the words contained in regulation 6, namely that "physically and mentally fit to carry on the regulated activity" relates to the health of the applicant for registration, rather than whether or not the person will be arrested if s/he seeks to fulfil the role of registered manager.[49]The panel also agreed in part with Mr Hyam's submission that " In practice a registered manager can carry out the role of a registered manager by using staff and consultants. Even Ms Gollop had to acknowledge that a registered manager can engage an independent expert such as Mr or Mrs Fawcett to carry out tasks which will enable the registered manager to satisfy the requirements of regulations 9-24 of the 2010 Regulations." The panel decided that the key phrase was "enable the registered manager" which allows delegation and consultation but as an enabling tool, not in complete substitution for the registered manager's role and duties.[50]The panel also considered Regulation 25 of the 2010 regulations which provides that where there is more than one registered person in respect of a regulated activity, anything which is required to be done under the regulations, if done by one of the registered persons, shall not be required to be done by the other registered person. This makes it clear that the registered person or persons have a sole or joint responsibility. Mr Menon has proposed a registered manager for Holly House however her registration application is ongoing and it is not possible at this stage to say whether she will be successful. She did not apply for joint registration, and Mr Menon's evidence did not confirm that he intended to share responsibility with her, or that if he did intend to share responsibility, how that would be shared. It was therefore not possible for the panel to assess whether s.15 of HSCA might be met under this joint arrangement because Mr Menon was evasive on the issue and did not put forward a positive case for the panel to consider. The panel accepted Ms Brunner's well considered submissions on this issue and accepted them. For this reason and the reasons above, the panel concluded that the CQC were correct to refuse the application in December and that Mr Menon had not shown, on the balance of probabilities, that the statutory basis for registration was met. DECISION It is our unanimous decision that the appeal be dismissed. So ordered. Tribunal Judge Nancy Hillier Lead Judge Care Standards 27 May 2011