Moore & Ors, R (on the application of) v Care Standards Tribunal & Anor

MR JUSTICE CHARLES: When I heard this application for permission -- I think it was last term -- I was satisfied, for the reasons I then gave, firstly, that the proceedings were not an abuse and secondly, that the claim form raised arguable points. A central point, but on my reading not the only point, on the claimants' argument is that they have tenancies and the Tribunal did not take that properly into account.

To my mind, in this context it is important to remember, as appears from paragraphs 53 to 60 of the judgment of the Tribunal, that the Tribunal did not make a finding as to whether or not there were tenancies. Certainly it did not make such a finding in express terms.

On the last occasion I rejected an assertion made in the acknowledgment of service, paragraph 39, on behalf of the defendant that it was quite apparent that the Tribunal found that the Alternative Futures scheme was a sham. In my view it is at least arguable that the Tribunal did not reach any such conclusion. Further, in my view it is not clear whether the Tribunal proceeded on the basis that there were valid tenancies but that this was not conclusive or determinative, or that, as in their view the existence of tenancies was not conclusive or determinative, they proceeded on the basis that there may or may not be valid tenancies.

However, it seems to me, given the stance of Alternative Futures before the Tribunal, that if the Tribunal disregarded or paid little attention to the effect of the alleged tenancies on the basis that the Tribunal was of the view that there were no valid tenancies, it is at least arguable that, given their obligations to give reasons, the Tribunal should have said so.

As has been pointed out to me today and in the skeleton argument put in on behalf of the second defendant the, or a, basis of argument put by them before the Tribunal was not so much that the tenancies were a sham but that they were a fiction in the sense that the agreements asserted simply had not been entered into. That is, I accept, different from a sham, and it is clear from the submissions cited to me in the skeleton argument that that was a point which was put before the Tribunal. Again, as I read their judgment, it is a point which they do not address in that judgment.

What is clear, and thus common ground between the parties before me, is that the Tribunal did not consider that the existence of tenancies was determinative or of critical importance (for example, see paragraph 56). And in my view, for the reasons I expressed on the last occasion, it is arguable, as the claimants assert, that that is an incorrect approach in law and thus an error in law.

The challenge is not that the Tribunal erred in finding that there were no tenancies, and the challenge therefore does not attack any reasoning or legal conclusion concerning such a finding. Indeed, the claimants' argument proceeds, or can proceed, on the basis of an assumption or assertion that there are valid tenancies, and the failure of the Tribunal to address whether or not this was the case does not matter. Thus to my mind, in the context of these proceedings the issues as to the existence of tenancies and thus, as put to me today, whether there simply were no agreements, or they were a fiction, are relevant to a consideration of whether these proceedings for judicial review are academic.

The approach that the court should adopt to the issue as to whether judicial review proceedings are academic can be found, for example, in the speech of Lord Slynn in R v Secretary of State for the Home Department ex parte Salem, in particular at pages 456G to 457B. He says there:

Albeit directed to appeals to the House of Lords, that passage has been applied to the exercise of the discretion as to whether or not judicial review proceedings should continue.

Although I accept that there are other points raised by the claimants as to the correctness of the test on the approach taken by the Tribunal based on real choice of the service user, I concluded on the last occasion that, given the importance placed on the existence of tenancies, further information should be gathered so that the question whether or not a successful attack based on an assumption or assertion that there were tenancies would, at the end of the day, prove to be academic.

As I remarked in argument, and I hope I will be forgiven for repeating it, it does seem to me that both parties might benefit from the advice of someone specialising in land law and conveyancing as to that background issue concerning the existence of tenancies. I am out of date on these issues but on the basis of the existing submissions it seems to me at least arguable that valid tenancies existed in some or more of the cases or indeed all of them, either on the basis of the documents put forward or on the basis of periodic tenancies, or on the basis possibly of specifically performable agreements for leases.

Further, it seems to me at least arguable on the points put forward that there was not a fiction, as is urged on behalf of the second defendant. That submission, as I follow it at the moment, is founded upon the point that the agreement asserted by Alternative Futures is simply one that did not exist, having regard either to its not being entered into by the relevant two people or one of the people having insufficient capacity. Accordingly, it seems to me that having regard to the existing submissions the present proceedings clearly are not ones that would be academic should the claimants succeed.

Whether the second defendant wishes to raise and argue issues in the main proceedings that no relief should be granted because it would be academic or would lead nowhere, or to raise points as to the facts concerning the validity of agreements asserted or the existence of tenancies, is at this stage of course a matter for it. In this context, however, I pause to comment that it seems to me that this court would not be keen to embark on any factual issues relating to the existence of tenancies.

Further, I add that if my view is wrong, and others would conclude that it was clear that success for the claimants would be academic, nonetheless it seems to me that as in other cases valid tenancies could be entered into, and in view of (1) the information I have that this case is considered to be relevant to a number of other appeals or proceedings before the Tribunal which have been held up to see what happens in this case; (2) the point that if these proceedings do not go ahead, these claimants are precluded from arguing their case because they cannot appeal the decision of the Tribunal; (3) the freestanding points of statutory construction as to the approach or test to be taken by the second defendant and the Tribunal that arise and can be dealt with on hypotheses and/or without a detailed consideration of the facts; and (4) the general importance of such points of construction in this area of law, that this is a case which, in my view, should be allowed to proceed, having regard to the guidance given by Lord Slynn, which I have referred to above at 457A to B, in Salem.

I add two further points. The first is an aside in that it seems to me that the nature of and the provisions relating to the service charge, which under the agreements advanced forms part of the rent as defined, may be of relevance in considering the reality of the choices open to the claimants in this case, it being common ground that choice is a relevant factor, albeit that the test formulated by the Tribunal is challenged.

Secondly, I have decided that the appropriate course, so far as the appeal by Mr Moore is concerned, is to stay it and direct that no further steps be taken in respect of it, save with the prior permission of the court, and to direct that it should simply be listed with these judicial review proceedings for disposal when they are disposed of.

The position as to that is that at the moment it is common ground that the appeal route is not open to Mr Moore. A point on costs may arise in respect of that appeal. I do not have the papers before me. It may be unlikely that anyone thinks of something which would render the appeal route open but the stay preserves that possibility without, as I see it, complicating issues or adding to costs. At present the appeal should simply be placed in a "sealed container" which should only opened with permission of a judge before the end of the judicial review proceedings for final disposal.

So I will grant permission and matters will then proceed by rule, subject to any submissions.

MR MCCARTHY: My Lord, would you make an order that the Commission for Social Care Inspection now be substituted as second defendant?

MR JUSTICE CHARLES: Yes. Are they the same people as named? Is there a need to do that or is just simply they should be named?

MR MCCARTHY: It is a statutory body that was created as of 1st April, and by section 102 of the 2003 statute the functions of the National Care Standards Commission are transferred.

MR JUSTICE CHARLES: It is a new body, so I will substitute it as the second defendant for the body whose name I have consistently failed to remember throughout these proceedings.

MR MCCARTHY: I will notify the associate.

MR JUSTICE CHARLES: Thank you both very much.