Younoos Jeetoo v London Borough of Croydon

UPON the Appellant surrendering his registration and the Respondents accepting such surrender, the Appellant is no longer a registered person in relation to Willow Lodge and the parties have agreed that the continuance of the appeal serves no useful purpose.

Therefore, BY CONSENT, it is the unanimous decision of the Tribunal that the Appeal be allowed. The Order of the Justice of the Peace dated 24 November 1997 shall cease to have effect.

REASONS FOR DECISION

On 15 December 1995, the respondents, as the relevant registration authority, issued a certificate stating that the appellant and five other people were carrying on a residential care home at Willow Lodge and had been registered in respect of the home under the provisions of the Registered Homes Act 1984. The certificate also named a registered manager who, by virtue of section 3 of the Act, was also to be treated as carrying on the home. It was a condition of registration that the number of residents should not exceed seventeen adults with a mental handicap. It is common ground that the five people other than the appellant who were registered expressly as carrying on a residential care home had ceased to do so during 1996. The registered manager resigned in May 1997. The appellant was thereafter the only person named on the certificate who was still involved in running the home.

The respondents had a number of serious concerns about the running of the home and, after a meeting with the appellant on Friday 14 November 1997, they arranged a meeting with the care managers of the eight residents who were then living in the home. That meeting took place on Wednesday 19 November 1997 in the absence of the appellant.

The meeting with the care managers had two consequences. The first was that the respondents decided, on Thursday 20 November 1997, to take advice as to whether to seek an order cancelling the appellant's registration in respect of Willow Lodge. The second was that, on Friday 21 November 1997, all the residents save one were removed from Willow Lodge and placed elsewhere. This fact became apparent to the respondents on the following day. The one remaining resident was on holiday and so was absent from the home in any event. He was due to return on Saturday 29 November 1997. There was therefore no resident actually in the home when, on the morning of Monday 24 November 1997, the respondents decided to apply for an order cancelling the registration.

Section 11 of the Registered Homes Act 1984 provides:

he may make the order, and the cancellation, variation or imposition shall have effect from the date on which the order is made.

The respondents telephoned the appellant and his solicitor and informed them that an application under section 11 would be made at Croydon magistrates court at 2 p.m. that day. The application was made before a court of three justices of the peace. Neither the appellant nor his solicitor was present when the proceedings started at about 2.35 p.m. The court were told that they were expected to arrive soon. The appellant arrived while Mr Mott was opening the case on behalf of the registration authority. The court rose to read the authority's statement of reasons and accompanying documents and await the arrival of the appellant's solicitor. Not surprisingly, when the court sat again after his arrival, the appellant's solicitor asked for an adjournment so that he could take proper instructions, stating that the appellant was prepared to give an undertaking not to admit any new residents during the period of the adjournment. The request for an adjournment was opposed, Mr Mott arguing that the proposed undertaking was unsatisfactory because there was no provision for such an undertaking in the legislation and it would be unenforceable. The court refused an adjournment. They heard some brief evidence from the senior inspector who was cross-examined by the appellant's solicitor. They then retired to consider their decision and, upon their return, they granted the application for the order. The order stated that the appellant was the "registered person" and recorded that:-

"IT IS ORDERED THAT the Registration under Part I of the Registered Homes Act 1984 in respect of premises at Willow Lodge, 68-70 Brighton Road, Coulsdon, Surrey and the Registered Person be cancelled."

The order was signed by one of the three justices, presumably the chairman of the court.

Notice of appeal to a registered homes tribunal was lodged on 26 November 1997. On 17 December 1997, the parties were given notice that the hearing would take place before the tribunal on 9 and 10 February 1998. On 12 January 1998, the respondents applied for a postponement on the ground that a notice of proposal to cancel the registration under sections 10 and 12 of the Registered Homes Act 1984 had been given on 26 November 1997 (following the suggestion in Lyons v. East Sussex County Council (1988) 86 L.G.R. 369) and it would be preferable to have the two sets of proceedings joined together and on the further ground that two days would not be sufficient for the hearing of witnesses. The application was opposed by the appellant and was refused by the tribunal.

In the appellant's amended grounds of appeal, Mr McCarthy raised three preliminary points. We heard argument on these and two other preliminary points.

Mr McCarthy first put the respondents to proof as to whether the application for the order under section 11 was made within the delegated authority granted by the respondent Council's standing orders. Ultimately, sufficient evidence was produced to satisfy him that the application was made within the delegated authority. It was therefore unnecessary for the tribunal to consider whether a lack of such authority would have vitiated the proceedings before the justices and so have deprived the tribunal of jurisdiction to consider the broad merits of the case.

Mr McCarthy's second point was that the order was not "capable in law of cancelling the registration in effect in relation to the home", because the appellant was the only person named on the order and was only one of several people named on the certificate. We agree that the order does not amount to an effective determination of the registration in respect of the home but we do not consider that that makes it ineffective against the appellant. It is not the home that is registered but each of the persons carrying it on (i.e., the person or persons in control and any other manager - see section 3 of the Act). If any of the five other people expressly registered as carrying on the home were able to regain control of the home, they would be entitled to carry it on. However, there is no reason in principle why, if, say, two people are registered and a registration authority regards one as a risk to the residents but has faith in the other, the registration authority should not seek cancellation of the registration of the former and not the latter. The fact that there is one certificate does not mean that each person is not registered separately (even if the fitness of each person is judged in the light of the others also being involved in carrying on the home). Mr McCarthy placed emphasis on the fact that the six people named on the certificate expressly as carrying on the home were originally in partnership (with their wives). That does not seem to us to be a relevant consideration. They were registered as individuals rather than as a partnership.

It is surprising that, in November 1997, any names other than the appellant's remained on the register at all. It appears that two reasons were that it was not at first made clear to the satisfaction of the registration authority that they had ceased to have any interest in the property and that not all of them personally asked for the removal of their names. However, Mr Mott also told us that the registration authority were not prepared to issue a certificate in the sole name of the appellant because they had doubts as to his fitness. That does not seem to us to be an adequate explanation for the other names remaining on the register. If the registration authority had doubts about the appellant's fitness to carry on the home, the retention on the certificate of registration of people who that authority accepted had ceased to be involved in carrying on the home could hardly cure the problem. We agree with Mr McCarthy that, although the Act fails to make express provisions for the cancellation of registration on the simple ground that the person has ceased to carry on a home, a person cannot remain registered if no longer carrying on a home. To put matters another way, a person cannot, by inappropriate registration, be forced to carry responsibilities in respect of a home that he or she does not otherwise have.

If the registration authority were satisfied that the appellant was not a fit person to be concerned in carrying on the home, they should have given notice of proposal to cancel his registration. If they merely had doubts about his fitness but were not actually satisfied that he was not a fit person, they should have continued his registration while removing from the register the other names on the certificate. It is unfortunate that the legislation makes no express provision for interim or provisional registration while investigations are being carried out or a homeowner is "on probation" but we see no reason why an authority should not in fact approach a case in that way and register, or continue a registration, on that basis.

In any event, we are not satisfied that the fact that other names remained on the register in respect of Willow Lodge made the order against the appellant ineffective, even if the failure to serve the order and statement of reasons on the other people registered in respect of the home was a technical breach of section 11(4) of the Act. We suggest that the respondents take steps to regularise the position and remove the other names from the register.

Mr McCarthy's third preliminary point was based on an argument that, because there were no "residents in the home" at the time of the application to the justices, the justices were not entitled to find that there would be "a serious risk to the life, health or well-being of the residents in the home unless the order [was] made". He accepted that the court were told, in good faith, that one resident was absent on holiday and expected to return at the end of the week - although it now appears that plans had already been made by his care manager to avoid his return - and that the lawfulness of the court's approach had to be determined in the light of the evidence before them. He submitted that a resident who is absent on holiday is not a resident in the home and he cited Cotgreave v Cheshire County Council (1992) 15 B.M.L.R. 50 and Swindells v. Cheshire County Council (1993) 15 B.M.L.R. 84, 91 L.G.R. 582. He was driven to concede that a person who was absent for only one night could not be regarded as ceasing to be a resident in the home but submitted that an absence of five nights made a material difference. We do not accept that submission. In Swindells, it was held that a person who stays in a residential care home only for a short time, e.g., to give his or her carer a respite, is a resident but it does not follow that a person who is away from a home for a similar length of time ceases to be a resident. It is trite law that a person may have more than one place of residence and, in the context of this legislation, designed to protect those in need of care, we do not consider that a person absent from a home on holiday ceases to be a resident in the home whose interests must be considered by a justice of the peace on an application under section 11.

More fundamentally, we do not accept Mr McCarthy's submission that a justice of the peace cannot properly- make an order under section 11 if there are no residents in the home on the date the application is made. In the context of section 11(1)(b), "residents in the home" must include residents who may reasonably be expected to be in the home in the future. Otherwise, the purpose of the legislation might, in some cases, be frustrated and people might be exposed to serious risk when lawfully admitted to a home without the knowledge of the registration authority. On the other hand, while we do not consider that the fact there were no residents currently in the home obliged the court to refuse the application, the appellant's assertion that no residents would be admitted was highly relevant. In Hillingdon London Borough Council v McClean (1989) 88 L.G.R. 49, 61, Phillips J said:-

"The question the magistrate had to consider was whether, if the order was not made, there would be a serious risk. To answer that question it was necessary to look ahead as to what was likely to happen if the order was not made. Having regard to that, it was, in my judgement plainly right to have regard to Mrs McLean's plans for the future, in so far as the tribunal thought that her evidence in that respect was acceptable."

If it was accepted that there was no serious possibility of any residents being in the home, then it was bound to follow that there was no serious risk to the life, health or well-being of any residents.

We consider that the respondents (and, we suspect, the court) were too dismissive of the appellant's offer of an undertaking which amounted also to an indication as to what his evidence would be on an issue central to the application. The fact that any undertaking would not have been enforceable by threat of a fine or imprisonment did mean that it was valueless or could not be effectively enforced by other threats. A judgement had to be made as to whether the appellant could be trusted. Past performance would have been relevant but not conclusive, particularly as it might be thought that there is a difference between sins of omission and sins of commission. The court might have wished to have sworn evidence from the appellant as to his intentions. They could also have made it clear to the appellant that a breach of an undertaking to the court not to admit residents would not only entitle the respondents immediately to bring the matter back to court for an order to be made under section 11 of the Act but would also be likely to lead to a finding by the registration authority that he lacked the integrity necessary in one who was to be regarded as a fit person to be involved in the carrying on of a residential care home, which would in any event lead to a cancellation of registration under section 10.

Nonetheless, the court were not bound to accept the undertaking or any evidence given by the appellant and the undertaking was not relevant to any serious risk there might have been to the resident who was on holiday. We therefore do not accept that the only course of action that could have been taken by the court was to dismiss the application for an order.

The first of the other preliminary points on which we heard argument is related to the issue we have just been considering. An application under section 11 may be made ex parte or inter partes. In the present case, the application was made inter partes but on extremely short notice. Mr McCarthy submitted that the respondents were "paying lip-service" to the many expressions by tribunals as to the undesirability of ex parte applications and that the court erred in refusing an adjournment, particularly as there were no residents physically present in the home at the time of the hearing. Mr Mott submitted that it was necessary to proceed quickly precisely because there were no residents in the home which meant that the making of an order would cause little disruption to the lives of individual residents whereas, if there was delay, further residents might be admitted.

We accept that the respondents were entitled to bring the matter before a justice of the peace quickly. However, it seems to us that, in the first instance, what was necessary from their point of view was the preservation of the status quo. The lack of any express power to make an interim order limited in time is one of many lacunae in this legislation (the lack of any power to grant any other form of interim relief in terms not within section 11(1)(a), the lack of any express power to apply inter partes to have an ex parte order set aside and the lack of any express power to make a deferred order being three other examples). It may be arguable that a power to make an interim order can be implied as one of such "additional procedural safeguards as will ensure the attainment of fairness" (per Lord Bridge of Harwich in Lloyd v. McMahon [1987] A.C. 625, 703) but, in any event, we have already indicated that an adjournment on an acceptable undertaking may be a suitable substitute. In the present case, if the court had been prepared to accept that the appellant would not admit any new residents before a further hearing, there was no reason why he should not have been allowed to have some further time in order to give proper instructions to his solicitor. There was therefore a strong argument that the appellant should have been granted an adjournment of two or three days which would at least have allowed the parties some time to consider the position of the resident who was on holiday.

However, the question for us at this stage of this appeal is whether the failure to grant an adjournment amounted to a breach of the rules of natural justice and therefore rendered the court's decision erroneous in point of law. The appellant's solicitor asked the court for an adjournment "for such period as may be considered appropriate" and Mr Mott submitted that a full hearing would take two or three days and would not take place until February or March. A long adjournment would not have removed any serious risk there may have been to the resident who was expected to return to Willow Lodge at the end of the week. No-one suggested that a short adjournment for two or three days might be of any use. The justices were entitled to refuse the long adjournment and, as they were not specifically asked to grant a short adjournment for two or three days, we do not consider that they erred in law in not granting a short adjournment or considering whether to do so on an undertaking.

Nevertheless, we are concerned that it appears to have been assumed that a full inter partes hearing would necessarily involve consideration of all the evidence giving rise to the respondents' concerns. Section 11 provides a procedure for use in an emergency. Speed may be of the essence. The fact that an application may be made without the home-owner being heard at all suggests that if he is heard he does not have an absolute right to a two or three day hearing with all the evidence being given orally and the witnesses being subjected to cross-examination. An inter partes hearing before a justice of the peace under section 11 may be regarded as being, in some respects, an alternative to the hearing before councillors arising from the right to make oral representations under section 13 of the Act. There are no doubt cases where hearing some of the registration authority's evidence is necessary, but in many cases what is required is a proper opportunity to make representations before irreversible action is taken. The reliability of the registration authority's evidence may be only one issue or may not be an issue at all. As important may be issues such as whether the risk perceived by the registration authority is a serious risk or whether there is a serious risk to the life, health or well-being of all the residents (as the removal of a few residents may remove any serious risk) or whether an order under section 11(1)(a)(ii) or (iii) might be made rather than one under section 11(1)(a)(i) or whether there is some entirely different way of removing any serious risk. A hearing to deal with those sorts of issues is likely to be relatively short and, if any evidence is to be heard, it may be more useful to hear from the home-owner rather than the registration authority's witnesses. However, some notice is required if the issues are to be dealt with properly. Two or three days' notice is far more satisfactory than two or three hours'.

The final point on which we heard argument arises from the fact that the application was heard by a court of three justices of the peace whereas section 11 requires the application to be made to a justice of the peace. This is not the first time this has happened (see Decision No. 248). When an application is made to a justice sitting in court, there will usually be other justices present because lay justices very seldom sit alone in open court. It might be more satisfactory if the legislation provided that an application had to be made to a magistrates' court unless that were impractical, but it does not. Although section 148 of the Magistrates' Courts Act 1980 provides that the term "magistrates' court" includes a single justice, we are not aware of any provision that has the effect that an application that should prima facie be made to a single justice may be made to a number of justices sitting in banco and we do not consider that in this instance section 6(c) of the Interpretation Act 1978 can have the effect that the singular includes the plural. We therefore take the view that the justices erred in hearing the application as a court. Two of them should have risen, leaving the third to hear the application alone. However, the justice of the peace who signed the order was undoubtedly entitled to hear the application and make the order. The fact that she allowed two other justices to be, or appear to be, party to the decision-making process when she alone should have taken the decision was, or was similar to, a breach of the rules of natural justice but, in our view, that does not per se invalidate the order.

Where a tribunal to whom there is an appeal on both law and fact finds there to have been a breach of the rules of natural justice by the body from whom the appeal is brought, there arises the question whether the tribunal should set aside the decision under appeal on that ground alone or whether they should "cure the defect" by themselves holding a fair hearing of the merits of the case (Calvin v. Carr [1980] A.C. 574 and Lloyd v. McMahon [1987] A.C. 625). The nature of the breach, the nature of the proceedings and the circumstances of the particular case are all material considerations. The nature of the proceedings before registered homes tribunals will make it rare for a tribunal to decide not to consider the broad merits of the case themselves and, in effect, to require the registration authority to make a fresh application to a justice of the peace if they still seek cancellation. That is partly because both parties before a registered homes tribunal are usually anxious to have a final decision as quickly as possible and partly because a justice of the peace does not usually have the professional expertise that members of a tribunal have, so that there is no inherent advantage in there being a hearing before a justice of the peace. In the present case, the breach may in fact have made no difference to the decision of the justice who signed the order and any unfairness was not sufficiently apparent for the appellant to have raised the issue himself. Furthermore, we have already refused the respondents an adjournment in the interests of speed and it is obvious that a final decision will be reached very much more quickly if we deal with the merits ourselves. In all the circumstances of this case, we do not consider that the order should be held to be of no effect on the sole ground that the application for the order was heard by more than one justice of the peace.

Having considered the arguments on the preliminary points, we announced our conclusion that we were not prepared to allow the appeal purely on the basis of those arguments and that we wished to hear evidence directed to the question whether there was now a serious risk to the life, health or well-being of the residents in the home unless an order was made.

Counsel asked for time to discuss matters with each other, which we readily granted.

We would have wished to hear what the appellant's plans were before embarking on a long examination of the respondents' evidence, because we did not consider there would have been much point in hearing the respondents' evidence if the appellant could satisfy us, by his own oral evidence, that no residents would be admitted to Willow Lodge unless and until either the registration authority or a tribunal had decided that his registration should not be cancelled under section 10.

In the event, the parties reached agreement without our hearing any evidence at all. The appellant agreed to surrender his registration. The respondents agreed to offer no evidence on this appeal, so that the appeal could be allowed by consent.

On that basis we allow the appeal. This involves no finding one way or the other as to whether there has ever been a serious risk to the life, health, or well-being of any residents in Willow Lodge. Nor does it involve any finding one way or the other as to the fitness of the appellant to carry on any type of residential care home, but it follows from the appellant's surrender of his registration that no further action need be taken on the notice of cancellation given on 26 November 1997 under sections 10 and 12.

Mark Rowland
Roy Brooks
Keith White