Decision 396
This decision may be freely reproduced and distributed. It should be drawn to the attention of the registration and inspection staff and legal advisors
Mr J F Raynor and Mrs C M Raynor
V
Derbyshire County Council
Tribunal sitting at the County Hall, Matlock on 1 December 1999
Before: Mrs Rosemary Hughes
Mr Michael Bishop
Mr Frank Watts
DECISION
It is the unanimous decision of the Tribunal that the Appellants' appeal shall be dismissed for want of jurisdiction
Facts and submissions
The Appellants are the proprietors of Longmoor Lodge, a residential care home registered with the Respondents for 40 places. The Appellants wrote to the Respondents in February 1999 asking for permission to use an ensuite single bedroom, currently designated as a visitors room, as a respite stay room. This would effectively increase the number of places in the home from 40 to 41 The request was refused.
Ms J.Collins, Senior Solicitor for the Respondents, explained to us that when the Appellants' request was received by the Respondents, it was wrongly treated as an application to register under section 12(4)(b) of the Registered Homes Act 1984 (the Act), whereas it was, in fact, an application to vary a condition of registration under section 5(4) (a) of the Act. A fee of £350 had been paid by the Appellants which related to a section 5(4)(a) application rather than one under section 12(4)(b) which would attract a fee of £950.
The original error made by the Respondents was compounded by procedures relating to representations and notices being taken under sections 13 and 14 of the Act. These eventually led the Appellants to make the current appeal under section 15.
Ms Collins said that it was now clear that the original application should have been considered by the Respondents under section 5(4)(a). In this context, she drew our attention to the case of Coombs v Hertfordshire County Council (1991) 89 L.G.R.774. This decided that on an application by a registered proprietor pursuant to section 5(4)(a) of the Act to vary a condition of registration, there is no right of appeal to the Tribunal under section 15 of the Act, should the registering authority refuse to agree to the variation.
Ms Collins explained that the correct procedure for the Appellants would now be to make an application to register Longmoor Lodge for 41 places under section 12(4) (b) of the Act. The proper courses of action under sections 13 and 14 could then be followed, including an appeal to the Tribunal under section 15, should that be necessary. Ms Collins indicated that the Respondents would expedite such an application, considering it first in sub-committee during January 2000. They might also be able to come to some arrangement with the Appellants about the fees.
Mr Raynor was not present during the hearing. Mrs Raynor expressed her concern that the Respondents' mistake had not been noticed until this late stage in the proceedings.
Conclusions with reasons
We decided that the Appellants' original application had indeed been brought under section 5(4)(a) of the Act. We had read very carefully all the written evidence submitted but a copy of the Appellants' letter to the Respondents asking for the variation had not been included in our bundle of evidence. We only saw copy of the letter shortly before the hearing and we were only made aware during the hearing of the relevant fee that had been paid by the Appellants. These two pieces of evidence confirmed our view that the application should not have been treated by the Respondents as having been made under section 12.
We further decided that we were bound by the decision in Coombs (above) which was on all fours with the present appeal. In the words of Mr Justice Kennedy in that case, there was 'simply no way, as the Act at present stands, of going directly to a tribunal to rule as to whether or not the authority was right in refusing an informal application to vary'.
We were pleased to note the willingness of the Respondents to expedite and assist a further application for registration by the Appellants; it had been an unfortunate error perpetuated by later events which had clearly caused confusion and delay for the Appellants. In the meantime, we had no option but to dismiss the present appeal for want of jurisdiction.
Mrs Rosemary Hughes
Mr Michael Bishop
Mr Frank Watts