Christopher Whyte v Manchester Health Authority

It is the unanimous decision of the Tribunal that the Appeal be allowed on the ground that the registration had lapsed on 30 October 1998, before the purported cancellation

REASONS FOR DECISION

The Appellant was registered in respect of Lapwing House, a mental nursing home for up to six residents, with effect from 4 June 1992. In October 1997 there arose a question as to whether he had been receiving double payments in respect of a resident and while that matter was being investigated, it came to the attention of the registration authority that he had been detained in a psychiatric ward at Withington Hospital. He was discharged in December 1997 but, following correspondence, the Respondents issued on 3 April 1998 a notice of proposal to cancel the Appellant's registration on the ground that he was unfit to carry on a nursing home due to his mental health. The Appellant indicated his desire to make oral representations and a meeting of a sub-committee of the Health Authority was arranged for 3 August 1998. On 9 July 1998, the Appellant announced his intention to close the home four weeks later. On 16 July 1998, the Respondents wrote to him asking him to confirm that he no longer wished to make representations and that he was "agreeable that your registration to carry on Lapwing House Nursing Home be cancelled by the Health Authority with effect from 7th August 1998". The Appellant did not confirm either of those assumptions but instead said that he did wish to make oral representations although on another date. The home did in fact close on 31 July 1998. The meeting of the sub-committee took place on 11 November 1998. The Appellant told them that his health was improving and that he "felt fit and able to resume duty", but the sub- committee were of the opinion that he was not capable of running a nursing home and accordingly adopted the proposal dated 3 April 1998 to cancel his registration in respect of Lapwing House.

The Appellant appealed to the Tribunal. The hearing was fixed for 5 and 6 May 1999. Meanwhile, it had come to the attention of the Respondents that the Appellant had sold Lapwing House and they obtained an office copy of an entry in the Land Register showing that, on 12 November 1998, a housing association had been registered as proprietor of the property. By letter dated 21 April 1999, the Respondents' solicitor, Mr Leason, gave notice that he intended to make a preliminary submission, citing Decision No. 289, as to the significance of that point.

The Appellant neither sent the secretary of the Tribunal the grounds of appeal required by rule 5(4) of the Registered Homes Tribunal Rules 1984 nor sent any evidence in support of his appeal. On 29 April 1999, the Tribunal secretariat received a letter from the Appellant saying:-

"Please can the hearing be adjourned to a new date."

Comments were obtained by telephone from the Respondents' solicitor who opposed the application for an adjournment. The application was refused by the Tribunal and the Appellant was told, in a letter dated 29 April 1999, that there would be an opportunity on the day of the hearing to put in a further request for an adjournment. In the event, he neither attended the hearing nor was represented.

In Decision No. 368, a Tribunal said:-

However, in Decision No. 121, the Tribunal had expressly decided that there had not been a withdrawal within the terms of rule 12 of the 1984 Rules of the appeals before them because there had been no notice in writing. What they decided was that rule 8 conferred "power to allow or dismiss an appeal summarily in default of appearance, but only if that appears to a Tribunal to be 'just and expedient'." It seems to us that the Tribunal in Decision No. 368 did not mean to take any different approach and that their use of the word "withdrawn" was not intended to suggest that rule 12 might have any application.

In the present case, we decided to proceed in the absence of the Appellant who had not provided any medical evidence in support of his assertion that he was unable to attend. However, we did not dismiss the appeal summarily, both because there was the Respondents' preliminary point and also because the Appellant's general practitioner had attended to give evidence and, given the grounds of cancellation, we wished to hear from him. For reasons that will appear below, he was the only witness from whom we heard. He had the Appellant's consent to provide the Respondents with information and had spoken to his defence union about his position. In the course of his evidence he said that he was unaware of anything in the Appellant's current medical condition that would have prevented the Appellant from attending the hearing. We shall comment further on his evidence below

Mr Leason's preliminary submission was that the Appellant's appeal should be dismissed simply because the sale of Lapwing House meant that he was no longer in a position to carry on a home there. He referred us to five decisions of Tribunals.

Decision No. 18, Decision No. 76 and Decision No. 333 deal with the concept of fitness in the context of sections 9(1)(a) and 25(1)(a) of the Registered Homes Act 1984. It is, we think, uncontroversial that determining a person's fitness to carry on a home requires consideration of a number of matters including the person's integrity, competence and health. We accept that it is quite possible for a person to be judged unfit even though he or she is not at fault.

Decision No. 12 is more directly in point. There a person had been refused registration on the ground that he was not a fit person to be concerned in carrying on a residential care home. At the hearing, the appellant revealed for the first time that he had been unable to buy the relevant property which had been sold to a disinterested party so that he had no opportunity of using it as a residential care home. In the light of that information, the Tribunal dismissed the appeal, without considering the merits of the case presented by the registration authority, saying:-

We agree with that statement of the law (although it is arguable that the class of those eligible for registration should be expanded to include those who expect to be able to carry on a home in the relevant property). However, the Tribunal did not expressly consider the ground upon which registration should be refused in the circumstances of the case before them. It may be implicit in their dismissal of the appeal that they considered that registration should be refused on one of the statutory grounds mentioned in section 9 of the 1984 Act. On the other hand, in Decision No. 289, it was suggested that the Tribunal in Decision No. 12 might have had in mind section 3 of the Act which refers to those who are required to be registered. The distinction is important.

Decision No. 289 was the authority on which Mr Leason placed most weight. In that case, an insolvency manager had been appointed on 12 February 1994 and the appellants had ceased to be concerned in the running of the home from that date. Notice of proposal to cancel their registration on the ground that they were not fit persons to carry on a home was issued on 15 February 1995. The home ceased trading on 23 February 1995 and was sold on 1 March 1995. The proposal to cancel the registration was adopted only on 2 June 1995. The appellants raised a number of arguments as to the scope of the term "not a fit person" which were not surprisingly rejected by the Tribunal. The Tribunal, however, took the view that it was not necessary for them to consider at all the respondents' original grounds for cancelling the registration They said:-

For the reason given in paragraph 28, they dismissed the appeals.

We drew Mr Leason's attention to Decision No. 359 in which one of the appellants had ceased to be concerned in the running of the home and had sought to have his name removed from the register some two months before the registration authority cancelled his registration under section 28 of the 1984 Act. The Tribunal held that the registration authority had not been entitled to keep the appellant's name on the register and they allowed his appeal on the ground that his name should have been removed from the register before the registration was cancelled.

Although one member of the Tribunal in Decision No. 359 had also been a member of the tribunal in Decision No. 289, it seems to us that the two decisions are not entirely consistent with each other. In Decision No. 289, the home had been sold before the registration was cancelled. The fact that the sale was before the cancellation distinguished the case from Decision No. 67, to which they referred, and the approach taken in Decision No. 359 would therefore have led to the appeal being allowed on that simple ground, although the appellant would still have been held to be no longer registered. Instead, the Tribunal in Decision No. 289 relied on the appointment of the insolvency manager as showing unfitness. We consider that insolvency raises different issues from those arising in the present case. For the reasons suggested by the Tribunal at paragraph 18 of their decision, the appointment of a receiver cannot be equated with the outright sale of a home and we are not sure that we would have found the mere appointment to be sufficient to determine the case but, on the other hand, it also seems to us that attempting to run a home that is not financially viable inevitably reflects on the judgement - and therefore on the fitness - of the proprietor. We need not consider those issues. The question we have to consider is whether the of a home makes the former proprietor unfit to carry on the home.

The inconsistency between Decision No. 289 and Decision No. 359 may reflect the way the two cases were argued before the Tribunals. In particular, it was not argued in Decision No. 289 that a person's registration might come to an end otherwise than by cancellation. In our view, that is the key to these cases.

In relation to nursing homes, limited grounds upon which registration may be refused (among them the unfitness of the applicant) are set out in section 25 of the 1984 Act. Section 28(1)(a) provides that registration may be cancelled "on any ground which would entitle [the Secretary of State] to refuse an application for the registration of that person in respect of that home". That is generally - and in our view rightly - taken to be a reference back to the grounds set out in section 25. There is nothing in either section 25 or section 28 which permits the refusal or cancellation of registration on the ground that the applicant or registered person no longer has any interest, or any expectation of an interest, in the home. The legislation makes no specific provision for the ending of registration otherwise than by cancellation or the death of the registered person. Yet, in our view, it must be possible for a registration to be terminated without being cancelled on one of the statutory grounds. If a registered proprietor who has run a home entirely satisfactorily notifies the registration authority that the home has been sold and that he or she no longer has any connection with it, his or her name must be removed from the register. Mr Leason readily accepted that in such a case it would be inappropriate to cancel the registration on the ground that the proprietor was not a fit person to carry on the home, even though such a cancellation would be the logical approach if Decision No. 289 were to be followed because there is no other ground under sections 25 and 28 upon which the registration could be cancelled. He submitted that the registration in such a case could be surrendered. We accept that that is so, notwithstanding the lack of express statutory provision for such surrender. In our view, it is simply an abuse of language to say that an honest, competent and able-bodied person is not fit to run a home solely because he or she has sold it. The inability to run the home in those circumstances has nothing to do with fitness. The registration must be brought to an end simply because only a person who is carrying on a home or who expects to be able to do so is eligible for registration in respect of that home and the former proprietor has ceased to be such a person.

Mr Leason, however, pointed out that the Appellant in the present case had not surrendered his registration and had not consented to its termination. In our view, consent is not necessary. If a registered person ceases to be eligible for registration, the registration lapses. The registration authority may safely remove the name from the register without going through the protracted cancellation procedure. That is not to say that the registration authority need not be extremely careful. Registration in respect of premises in which the registered person will never be able to carry on a home is valueless because it carries no weight when an authority is considering an application for registration in respect of another home. In practice few people would wish to hold on to a valueless registration and so a refusal to agree that a registration should be terminated should be considered carefully to ensure that it does not indicate that there is a prospect of the person carrying on a home in the premises again. However, an admission, or other clear evidence, that there is no such prospect is as good as consent.

The lack of any such admission in the present case was the reason that we began to hear evidence. A person may carry on a home even though he or she is not the owner of the premises and so we were not at first satisfied that the evidence that the freehold of Lapwing House had been transferred to a housing association showed that the Appellant had no further interest in the property, having regard to the way he put his case to the sub-committee on the day before the Land Register was amended. However, during the hearing, the Tribunal' s secretary made contact with the Appellant on the telephone and one of the Respondents' inspectors spoke to him. We were told that the Appellant said that he had no interest at all in Lapwing House but hoped to open another home elsewhere in Didsbury. The Respondents' inspector then spoke to the housing association who now own Lapwing House. We were told that they confirmed that the Appellant had had no interest in the property since 30 October 1998. Apparently Calderstones National Health Service Trust are now running an establishment there. In those circumstances, we are now satisfied that the Appellant ceased to be eligible for registration in respect of Lapwing House on 30 October 1998 and that his registration must be taken to have lapsed then. There was therefore no registration to cancel on 11 November 1998 and this appeal must be allowed.

The appeal is allowed, rather than dismissed (as in Decision No. 12), because dismissal would amount to upholding the Respondents' decision to cancel registration on the ground that the Appellant is not a fit person to carry on a home, which is precisely what we are not doing. This may seem a technical approach but it is aimed at achieving the objective identified in Decision No. 289 of ensuring that Tribunals - and, for that matter, registration authorities and former homeowners - do not spend a great deal of time and money considering allegations that have lost their practical importance. Cancellation of a registration prevents the relevant person from lawfully carrying on the home. It also ensures that his or her name is entered on the list held by the Department of Health (see paragraphs 23 to 34 of Annex B to Circular No. HC (84)21). The first of those consequences is achieved just as effectively if the registration lapses rather than being cancelled and, indeed, it is achieved by the mere fact that the person has severed any connection with the home. The second is not, but the Department's list is not statutory and in any event it seems to us that it is devalued if it contains the names of people who have not been found to be unfit in any real sense.

We ought also to make clear that we do not consider that disposing of a home after a decision has been taken to cancel the registration affects that decision. Of course, if an appeal has been brought in such a case, the fact that the appellant is no longer in a position to run a home in the premises may cause him or her to withdraw the appeal. Equally, if there is no withdrawal, the registration authority may consider that, having regard to the particular circumstances of the case, the public interest does not require them to continue resisting the appeal. However, if neither side gives way, a Tribunal will be obliged to hear the appeal.

Our decision to allow the appeal in this case should not be taken to reflect adversely on the Respondents. They were wholly unaware on 11 November 1998 that the Appellant had already ceased to have any interest in Lapwing House. With hindsight, it might perhaps be thought that the Respondents' letter of 16 July 1998 should have asked the Appellant whether he would agree that to surrender his registration, rather than have it cancelled, but the legislation in this respect is unclear and does not expressly draw the distinction and we do not consider that any real criticism can be made of the Respondents for the terms of the letter. We agree with the suggestion made in Decision No. 289 that the legislation should be amended to make express provision for the removal in appropriate cases of a person's name from a register without the necessity of making a finding - usually pejorative - that the person is unfit to carry on a home.

The Appellant must understand that our allowing this appeal does not mean that he remains registered in respect of Lapwing House. In our view the registration has lapsed and his name should be removed from the register. If he wishes to open another home, he must apply for registration in respect of that other home. Even if he were still registered in respect of Lapwing House, another application would still have been necessary if he wished to open another home, because registration in respect of one home does not necessarily imply fitness to run another.

The Appellant's mental health will no doubt be an issue if an application is made in respect of another home. We have made no finding one way or the other on that issue because it is unnecessary for us to do so but, for the benefit of both parties, we will repeat here comments we made to Mr Leason during the hearing. The effects of the Appellant's illness appeared to be intermittent and the Appellant had made the point to the sub-committee that he was not involved in the day-to-day management of the home so that it ran satisfactorily even when he was unable to play any part in its affairs. Having heard the Appellant's doctor but not having heard any other evidence or any submissions, we indicated to Mr Leason that there seemed to be some force in the Appellant's argument that his illness did not affect the residents adversely to any significant extent and we suggested that it might be difficult to show that he was not fit to carry on a home on the ground of his illness alone, as Mr Leason had originally submitted to us. On the other hand, we were concerned at the Appellant's apparent unwillingness, throughout the first half of 1998, to discuss with the Respondents the implications of his illness or the receipt of double payments in respect of a resident. If there was such an unwillingness, we were not sure that it was due, or was wholly due, to his illness. If it was due to the illness, it made the illness a more serious issue; if it was not, it was a separate issue. In either event it raised questions about the Appellant's fitness to carry on a nursing home and, had we not decided to allow the appeal for the reasons given above, we would have wished to hear further evidence on this aspect of the case. We understood the Appellant to have had meetings with Manchester City Council about the double payments, which might have explained the lack of discussions with the Respondents, and we would have wished to know what was asked and what answers were given at those meetings and whether there was any reason to doubt the Appellant's assertion to the Respondents that he reasonably believed that all the payments being received from the City Council were being properly made. We do not know what evidence would have been forthcoming and we shall say no more.

Mark Rowland

Nizar Merali

Rita Doidge

Signed (Chairman)Date 26 May 1999