Marshall v Commission for Social Care Inspection

THE DEPUTY HIGH COURT JUDGE: This is a statutory appeal against a decision of the Care Standards Tribunal given on appeal against the Respondent's cancellation of the registration of the Appellant, Ms Marshall, in respect of Harvest Residential Care Home operated by her at 36 Nursery Road, Thornton Heath ("Harvest 1").

The Respondent, the Commission for Social Care Inspection, is the regulatory authority tasked with, among other things, the regulation of care homes. A notice of cancellation under section 19(3) of the Care Standards Act 2000 was served on Ms Marshall by the Respondent on 1st November 2007 for breach of the requirements of the Care Home Regulations 2001. She appealed to the Care Standards Tribunal under section 21 of the Care Standards Act 2000 and the appeal was heard on 29th and 30th September 2008. The Tribunal indicated then that it would be dismissing the appeal and gave reasons under cover of a letter dated 14th October 2008.

By her Notice of Appeal, filed on 7th November 2008, Ms Marshall has appealed the decision to the High Court. The appeal lies on a point of law only (see the Tribunals and Inquiries Act 1992, section 11). The appeal as presented raises issues concerning the burden of proof on an appeal to the Care Standards Tribunal, the procedural course adopted by the Tribunal and the substantive correctness of the Tribunal's decisions. Not all of those issues are points of law.

On 1st April 2002 the National Care Standards Commission became the registration authority in relation to care homes and responsibility for inspections of all existing care homes transferred to the Commission on that date. This body was replaced by the Commission for Social Care Inspection, the Respondent in this case, on 1st April 2004.

On 26th September 2005 the Appellant submitted an application form to the Respondent for registration as the registered proprietor in respect of a care home proposed to be carried on at 85 Pevensey Road, London E7. This was "Harvest 2". It subsequently transpired that she had not filled in the form accurately, in that she had failed to give details of her previous surname, namely Wilkinson, and had ticked "no" in response to the question whether she had any previous convictions, when in fact she had four previous convictions, three of dishonesty and one of assault occasioning actual bodily harm. Similar false responses were also made on the Criminal Records Bureau disclosure application. Her application for registration in respect of Harvest 2 was refused and she appealed.

While the appeal was pending the Respondent indicated to the Appellant by letter that should the appeal be dismissed, the Respondent would consider whether the Appellant satisfied the statutory requirements of integrity and good character and indicated that their conclusion on this could have an effect on her existing registration in respect of Harvest 1.

The appeal against the refusal of registration of the Appellant in respect of Harvest 2 was heard on 16th and 17th November 2006. After considering all the evidence, including the explanations for the omissions put forward by the Appellant and evidence of character witnesses, the Care Standards Tribunal held as follows:

In January 2007 the Respondent carried out an unannounced inspection of Harvest 1, at which were identified what were regarded as a number of matters of concern with the way it was run. After meetings with the Appellant and her manager in June and July 2007, there were further unannounced inspections.

On 10th September 2007 notice of proposal to cancel her registration in respect of Harvest 1 was given to the Appellant, together with the opportunity to make representations about that proposal. No such representations were made and on 1st November 2007 notice of cancellation of registration was issued. That notice set out in some detail the matters of concern to the Respondent. It is against that notice of cancellation that the Appellant appealed to the Care Standards Tribunal and it is the appeal from the decision on that appeal which is before me.

After some interlocutory skirmishing which it is unnecessary to detail, the hearing ultimately took place, listed for 4 days starting on 29th September 2008. In fact, for reasons to which I will come, it was concluded in 2 days.

At the beginning of the hearing on 29th September the Tribunal indicated that in the light of the findings of the earlier Tribunal on the fitness and integrity of the Appellant, it seemed to the Tribunal that the appeal could, and should, be considered in two stages, taking, first, the question of her fitness and integrity and taking, second, if necessary, the substantive issues relating to the running of Harvest 1. The point was that if the Tribunal concluded that the Appellant was not a fit person, not being of integrity and good character, there would be no need also to consider the issues relating to the way in which the home was run. The legislative scheme forbids a person from running a care home unless that person is a person who is fit to do so and of integrity. The Tribunal also stated its view that the burden of proof on the issue of fitness and integrity lay on the Appellant in this case. The Tribunal placed particular weight on the fact that in December 2006 the Tribunal hearing that appeal had already made adverse findings against the Appellant and the Tribunal regarded this as justifying what they regarded as a shift in what otherwise would have been the applicable burden of proof.

At paragraphs 5-8 of the Tribunal's written decision, they said this:

This course was adopted and the Appellant called her evidence first. It is common ground between the parties that the Tribunal indicated, in the course of discussions on the procedural course which was being adopted, that all evidence which was relevant to the issue of fitness and integrity could be adduced, even if it was also relevant to, and arose in the context of, the alleged substantive breaches of the regulations. Furthermore, the Commission's witnesses were all available, if required, to be tendered for cross-examination.

Before turning to the issue of the burden of proof and the Appellant's complaints about the procedural course which the Tribunal took, it is appropriate to consider the statutory scheme. At the material time, the relevant provisions were contained in the Care Standards Act 2000 and the regulations made thereunder, in particular the Care Homes Regulations 2001. The legislative scheme is summarised in the judgment of Sir Robin Auld in Folasade Bamgbala v Commission for Social Care Inspection [2008] EWHC 629. His Lordship said as follows:

The Commission's power to cancel a person's registration is contained in section 14 of the Care Standards Act 2000. Insofar as relevant, this provides:

As to Ground (c), Regulation 7 of the Care Homes Regulations 2001 provides:

Paragraph 14 of the National Care Standards Commission (Registration) Regulations 2001 provides, insofar as relevant:

The Appellant contends that the Tribunal was in error in placing the burden of proof on the Appellant in the way that it did at the beginning of the hearing. It was argued that the initiative to cancel her registration had come from the Commission. In those circumstances, it was argued, the Commission should establish the grounds on which it had cancelled it. It was not for her to establish, on her own appeal against cancellation, that the cancellation should not have been made.

In the decision of the Court of Appeal in Jones (Peter) v Commission for Social Care Inspection [2005] 1 WLR 2461, [2004] EWCA Civ 1713, the Court addressed the question of the burden of proof. In that case, as it was put, the Court considered "an important question as to the location of the burden of proof both before the Commission and the Tribunal when a question arises as to whether a person is fit or unfit to act as a manager of... a [care] home". The Appellant in the present case is the proprietor, rather than the manager, of the care home, but the fitness and integrity requirements are not materially different under the Regulations.

In the Jones case, the original appeal to the Care Standards Tribunal was an appeal against a refusal to register Mr Jones as manager of a care home. The Tribunal had held that the case was finely balanced and, accordingly, since, as it viewed the position, the burden of proof was on the Commission to prove that Mr Jones was unfit, the Tribunal decided that his appeal should be allowed.

The Commission appealed to the High Court and, thereafter, Mr Jones appealed to the Court of Appeal. The Court of Appeal considered the question of the location of the burden of proof to be important and to require determination. In the principal judgment, Brooke LJ set out the statutory framework and then stated at paragraph 13:

As is apparent from paragraphs 5-8 of the Tribunal's decision, which I have already read, it was the Tribunal's view that, on an appeal against cancellation of registration (in contrast to an appeal against a decision on an application for first registration), the burden of proof was on the Commission to establish that cancellation was justified. However, since there was already an adverse decision against the Appellant here, the Tribunal in the present case regarded this previous decision as effecting or justifying a shift in the burden of proof. The Tribunal regarded splitting the appeal hearing into two parts, while slightly cumbersome, as the only logical way to deal with such a hybrid appeal.

In practice, few cases in civil jurisdictions — crime gives rise to different issues — depend on the burden of proof. As Mitting J said in R (Moore and Ors) v The Care Standards Tribunal and the Commission for Social Care Inspection [2004] EWHC 2481, a case which concerned an application by a service provider to cancel his registration, which the Commission had refused:

I emphasise that where his Lordship there referred to the "grounds for cancellation", they were the grounds for cancellation which were being advanced by the Appellant on his own appeal, because that was what was in issue in that case.

In a rare case, such as Jones, which the Care Standards Tribunal found to be finely balanced, the burden of proof may have a part to play, as indeed it may on a question as to who has the right to the first and last word at the hearing before the Tribunal, subject always to the Tribunal's right to manage its own procedure. Jones is authority for the proposition that where the issue is the fitness of the individual for initial registration, that individual bears the burden of proof, on his own appeal.

In my judgement, there is no justification for taking a different approach in a case where the Commission has cancelled an individual's registration andhe or she has appealed to the Tribunal. A person is prohibited from carrying on a care home unless he is fit to do so. One of the requirements of fitness is integrity and good character. Where that is in issue before the Tribunal, it is completely appropriate that the person who alleges that he is of integrity and good character should satisfy the Tribunal of that proposition. That he was once registered, but that the question of registration is under appeal, cannot make any difference. As Miss Broadfoot points out on behalf of the Commission in this case, the very registration itself may, as in this case, have been obtained on dishonest suppression of material facts.

At the core of the statutory scheme lies the aim of protecting service users and ensuring their welfare, in the widest sense of that term. They may be vulnerable by reason of age, physical or mental health, or for other reasons. The character and integrity of a service provider is something particularly within his own knowledge; it is not necessarily something which the Commission can easily ascertain by inspection and inquiry. In my judgement, on a cancellation appeal, as well as on an appeal against refusal of first registration, it is entirely appropriate that the service provider should bear the burden of establishing his integrity and good character if that is in issue.

This case also gives rise to the further question whether, on an appeal against cancellation for reasons other than fitness, the burden of proof lies on the Commission to establish the justification for cancelling, or whether, just as in the case of an appeal on a question of fitness, the burden is on the Appellant to make out his appeal. A decision to cancel may be made because the Commission concludes that a care home is being operated in breach of the Regulations, or because the registration was obtained by means of false representations. When an appellant raises an appeal against such a decision, the question arises: who bears the burden of proof on that appeal? The relevance to the present case lies in the Tribunal's approach that this was a hybrid appeal with different burdens of proof on different issues, and that it required a "slightly cumbersome" split hearing.

It is appropriate, in addressing the question whether there are different burdens of proof on different issues, to bear in mind the words of Brooke LJ in Jones, which I have already mentioned, namely that the Commission and the Tribunal must not be overzealous to place any particular features of an applicant's history in only one pigeonhole. A fact which is relevant to his character may also be relevant to the running of the care home. It would be odd if different burdens of proof were in operation in relation to any given fact.

In my judgement, there is no justification for approaching this statutory regime on the basis that different burdens of proof apply depending on whether the issue in the appeal is the justification for cancellation of registration on grounds of fitness to carry on or manage the care home, or whether the issue in the appeal is the justification for cancellation of registration on other grounds. An appeal may indeed raise both issues. The hearing before a Tribunal ought not to be overcomplicated by procedural distinctions.

A decision to cancel registration, on whatever ground or grounds it is taken, is an administrative act by the Commission. Procedural fairness, enshrined in sections 17(4) and (6) of the Care Standards Act 2000, will generally dictate that, as happened in the present case, when the Commission proposes to cancel a registration it gives notice to the person registered in respect of the establishment of the grounds on which it is considering doing so, and invites representations (see section 18). Where urgent questions arise, the Magistrates' Court has jurisdiction under section 20.

On adoption of a proposal to cancel, again as happened in the present case, the service provider must be given notice of the decision and of his right of appeal (see sections 19 and 21). Then, on the service provider's appeal to the Tribunal, he or she can address the grounds relied on by the Commission with evidence and argument. That a cancellation decision may have the effect of depriving the service provider of a livelihood is, of course, a significant matter, but not one, in my judgement, which goes to the burden of proof. As I have already indicated, the core of the statutory scheme is the protection of vulnerable service users. That is not to discount the importance of the business interests of service providers, but if a service provider cannot establish to the Tribunal's satisfaction, once the issue is raised, that the relevant establishment is being operated in accordance with the Regulations which are there for the protection of the service users, then the case for registration is not made out and the appeal should fail.

That this is the correct approach is confirmed, in my judgement, by the fact that it is the service provider, rather than the Commission, in all cases, which knows most about the way in which the establishment is operated. The Commission can inspect, sometimes without notice, but it is dependent on what it finds and what it is told. The care provider, or manager, on the other hand, knows, or can find out, everything about the business. He or she has access to full information about staff, premises, safety procedures, financing, record keeping, and all the other matters which may be relevant. It is he or she who is in a position to put the full picture before the Tribunal in support of the appeal.

It follows from what I have said above that in my judgement the Tribunal rather overcomplicated its analysis by proceeding on the basis that, because this was a cancellation case, the burden of proof lay initially on the Respondent, but that, because there had been a previous adverse finding by a Tribunal in 2006, the burden of proof shifted to the Appellant. Having identified where the burden of proof correctly lies, namely on the Appellant throughout, the correct approach to the procedural issues which arose in this case is, in my judgement, that advanced on behalf of the Commission by Miss Broadfoot. (She referred in her skeleton argument to the possibility that her approach might technically need the support of a Respondent's Notice and requested that her skeleton argument be treated as such. Very sensibly, no objection was taken, on behalf of the Appellant, to such a course and I so direct.)

Miss Broadfoot's submission is that whether a person lacks fitness for registration because he or she is not of integrity and good character is sufficient, but not necessary, to prevent registration or justify cancellation. If the Tribunal concluded that the Appellant did not meet the fitness requirements, as a matter of law it could only dismiss the appeal. This is the inevitable consequence of Regulations 7(1) and 7(3)(a) of the 2001 Regulations. It was therefore appropriate for the Tribunal to identify fitness as a separate issue in the case. Whether the home had been operated in breach of the Regulations was another, and separate, issue requiring other, and detailed, evidence.

By Regulation 20(1) of the Protection of Children and Vulnerable Adults and Care Standard Tribunal Regulations 2002, Statutory Instrument 2002 No 816, the Tribunal is entitled to regulate its own procedure. Having identified the two separate issues to which I have referred, in my judgement, it was well within the Tribunal's discretion to split the issues in the present case and to take the issue of the Appellant's fitness to carry on the care home as a separate and preliminary issue.

The Appellant's response to this is to say that it was not fair for the Tribunal to do so. The point was raised by the Tribunal only on the first day of the hearing and she and her counsel were taken by surprise. They had, it is said, to reorganise their witnesses, who were not, or not all, expecting to give evidence on the first day of what was listed as a four-day hearing. It is accepted by Mr Lewis, counsel on behalf of the Appellant, that no objection was taken by him to the procedural course which the Tribunal took. He says he felt that the procedural course was imposed by the Tribunal on him and on his client. He accepts that he was given the opportunity to cross-examine any, and all, of the Respondent's witnesses, but says that he chose not to do so because, as he put it, to do so would have opened up "all sorts of issues".

I reject the Appellant's contention that the decision to take the fitness issue as a preliminary issue was procedurally unfair. Since she did not, by her counsel, object to the proposed procedure, I find it difficult to see how an individual with legal representation can make good the contention that there was a procedural unfairness amounting to an error of law. However, I prefer to rest my decision on the ground that there was nothing unfair about it. The Appellant's witnesses were all available and all the evidence which the Appellant wished to adduce was in fact adduced. All the Respondent's witnesses were made available for cross-examination and the decision was taken, well within counsel's discretion, not to take the opportunity to cross-examine them. To the extent that the Tribunal's decision gave rise to any significant procedural inconvenience, that inconvenience was visited on Miss Broadfoot who, as counsel for the Respondent, had, at short notice, to be ready to cross-examine the Appellant and her witnesses when she was not expecting to have to do so at that stage. Miss Broadfoot made and makes no complaint of that being imposed upon her and it is not necessary to say anything more about it.

There was, accordingly, in my judgement, no error of law in the procedural approach. The Appellant cited Article 6 of the European Convention on Human Rights as set out in Schedule 1 to the Human Rights Act 1998. The Respondent does not dispute that Article 6 applies, but it does not, in my judgement, add anything to the common law concepts of fairness which are engaged in the present case.

This being an appeal on a point of law, it is unnecessary to engage in prolonged analysis of the factual matters before the Tribunal. The exercise of evaluation of the factual material and the decision as to what weight to put on the different factors was one for the Tribunal. It is not the function of the High Court on an appeal on a point of law to re-evaluate the material. In my judgement, the submissions on behalf of the Appellant failed to pay adequate regard to this fundamental point. A point of law arises only where the decision on the facts is perverse or irrational, or where, as Lord Radcliffe put it in Edwards (Inspector of Taxes) v Bairstow and Harrison [1956] AC 14, the "true and only reasonable conclusion contradicts the determination".

The Appellant had admittedly been dishonest on a number of occasions. There were five examples: first, her deliberate suppression of her criminal convictions, together with her failure to disclose an earlier change of name and a deliberate misstatement of her date of birth (both of those being relevant to her attempt to conceal her criminal record); secondly, she had given misleading information to the Passport Office about the dates of residence of a particular resident at the home; thirdly, she significantly exaggerated her own experience in her witness statement; fourthly, she misrepresented the extent to which inspectors had previously been satisfied with the standards in operation at the home. I will come shortly to the fifth example.

On behalf of the Appellant, Mr Lewis advanced arguments to the effect that the Tribunal was in error in failing to give the Appellant sufficient credit for her eventual admissions of untruths, and for failing to take account of the fact that some of the admittedly dishonest statements which she had made were some time in the past, in 2006, 2005 and even earlier. He made a particular point about an untruth which the Appellant had told an inspector in July 2005, which the Tribunal regarded as particularly serious.

The background to this, the fifth example, was that the inspector was concerned about outstanding Criminal Records Bureau checks on a particular current member of staff. Such checks are required by provisions of the Regulations to which it is unnecessary to refer in detail. The Appellant lied to the inspector, saying that the member of staff had left her employment, when in truth she had not. In paragraph 14 of the decision, the Tribunal said this about that incident:

Mr Lewis submitted that, against this background, the Tribunal had failed to give the Appellant credit for her frank admission in oral evidence of her earlier dishonesty. I regard this point as quite unsustainable. The Appellant had prevaricated in oral evidence when cross-examined and then ultimately was obliged to accept that she had lied on an earlier occasion. It was entirely a matter for the judgement of the Tribunal what, if any, credit the appellant should receive for her belated and enforced frankness. The Tribunal's approach to this point gives rise to no error of law.

Mr Lewis further complained about the way in which the Tribunal treated his client's allegation that an inspector had been motivated on improper racial grounds to take the views which he did about the way in which the care home had been run. The Appellant made the allegation of racial prejudice in her witness statement. The Tribunal rejected it, regarding it as unsubstantiated, and clearly considered that the allegation should never have been raised. Their approach to this matter again gives rise to no error of law.

In its overall assessment of the Appellant, the Tribunal referred to her character witnesses as having given evidence of her general good, kind and caring character. The Tribunal referred to her as being, inter alia, well-meaning and loyal, and said that they had formed a very favourable impression of her genuine desire to help people and use her skills to achieve good. No doubt they were correct about this. Their overall decision, however, was set out in paragraph 23 of their decision:

Having come to the factual conclusions which the Tribunal did, its decision to dismiss her appeal on the grounds of fitness and integrity, was well within the area of judgement open to it. That decision has obvious and serious implications for the Appellant's livelihood, which I do not overlook. However, in my judgement the appeal must fail and is therefore dismissed.

MS MORRIS: My Lord, I am Ms Angela Morris and I appear on behalf of the Respondent today. I understand that your Lordship excused Miss Broadfoot.

THE DEPUTY HIGH COURT JUDGE: Yes, absolutely. I was not expecting the pleasure of Miss Broadfoot's company.

MS MORRIS: She has another substantive hearing, so I have been sent in her stead. My Lord, in the light of your judgment, the Respondent seeks its costs in the sum set out in the statement of costs.

THE DEPUTY HIGH COURT JUDGE: I need a copy of that. I have not seen it.

MS MORRIS: I have additional copies.

THE DEPUTY HIGH COURT JUDGE: Mr Lewis, have you seen the costs statement?

MR LEWIS: My Lord, yes, I have.

MS MORRIS: (Handed).

THE DEPUTY HIGH COURT JUDGE: Thank you. Yes?

MR LEWIS: My Lord, I have had a chance to speak to my client regarding the costs schedule. In terms of the costs schedule, I do not think we haveany quibble over that; we accept the costs as reasonable, in the circumstances.

THE DEPUTY HIGH COURT JUDGE: Thank you. Can I just clarify, there is a column "Total costs claim" and a "VAT" column. Miss Morris, the claim is for the sum of those figures, is it?

MS MORRIS: My Lord, my understanding is that the VAT was stripped out of that. The VAT column states what proportion of the total cost claimed is the VAT. That was my assumption when I read it. I may very well be incorrect in that regard.

THE DEPUTY HIGH COURT JUDGE: Let us just look at it a moment. Correct me if I am wrong — I do not have a calculator here — but the VAT column represents the relevant percentage, does it not, of the --

MS MORRIS: It does indeed, my Lord.

THE DEPUTY HIGH COURT JUDGE: So if we look at Miss Broadfoot's brief fee, which is a convenient round --

MS MORRIS: Yes, it is 15 per cent on top of that.

THE DEPUTY HIGH COURT JUDGE: So it is on top?

MS MORRIS: It is on top.

THE DEPUTY HIGH COURT JUDGE: So your claim is the amount in the "Total costs" column plus the VAT.

MS MORRIS: That is right, my Lord. It is a rather unconventional layout. My Lord, which, by my reckoning, is £7,169.10.

THE DEPUTY HIGH COURT JUDGE: That is what I made it as well. Mr Lewis, do you accept that that must be what this schedule --

MR LEWIS: That is a common-sense way of working it out, yes.

THE DEPUTY HIGH COURT JUDGE: So the total costs claimed is that figure, but the total sum claimed, including VAT, is the sum of the two last figures, which will be £7,169.10.

MR LEWIS: £7,169.10. My Lord, so far as Ms Marshall's position is concerned, I can tell you now that she is currently receiving benefits. So she is not in a position to pay this sum at this moment. She had three properties. She has lost one. The other one is in dispute because it is tenanted and the tenants are not paying their rent. She is in dispute over that property. In the meantime, the mortgage company are rushing to repossess that same property. That is the property where Harvest 1 was based. And her own home -- I do not know the circumstances of her own home, but she is, I think, assisted by Government benefits to meet that particular end of the situation. So what I am saying is if you do make an order for costs it is going to take an awfully long time for her to meet it. I can take simple instructions on what she could offer, if you were minded to make an order at this particular level that is advanced by the Commission.

THE DEPUTY HIGH COURT JUDGE: The ordinary rule is that costs will follow the event. The amount of the costs is not put in dispute. In those circumstances, means are not a matter for me in deciding whether or not to make a costs order. How the Commission, on advice, seeks to enforce the costs order is a matter for it. I shall dismiss the appeal and make an order for payment by the Appellant of the Respondent's costs, which I summarily assess in a total sum, including VAT, of £7,169.10.

MR LEWIS: My Lord, I do not know if I am out of order, but I think I should ask, because I will speak to my client in a moment, but she may well be asking me about an appeal against your decision.

THE DEPUTY HIGH COURT JUDGE: Yes.

MR LEWIS: I do not know if you would be disposed to say whether you would encourage such an action, in light of the main issue of the burden of proof. That is the issue that I think that --

THE DEPUTY HIGH COURT JUDGE: If this is what you are asking me, it is certainly not for me to advise the Appellant as to whether she should try to make a further appeal.

MR LEWIS: No, what I am asking is whether you would give permission.

THE DEPUTY HIGH COURT JUDGE: I do not have jurisdiction to give permission. This is a second appeal, so in order to get permission you would have to satisfy what, from memory, is Part 52.13 of the Civil Procedure Rules, where you would have to show not only a real prospect of success, but an important point of principle.

MR LEWIS: My Lord, thank you.

THE DEPUTY HIGH COURT JUDGE: You have to ask for permission for a second appeal from the Court of Appeal. I cannot give it to you.

Thank you.