Sakthis Care Limited v Care Quality Commission

The appeal was brought by Sakthis Care Limited (‘the Appellant’) against a decision of the Care Quality Commission (‘the CQC’ and ‘the Respondent’) to refuse an application to register as a service provider for the regulated activity of Personal Care. The Respondent’s decision was dated 7^th November 2024, and the appeal is brought to the First-Tier Tribunal pursuant to section 32 of the Health and Social Care Act 2008 (‘the Act’).

The final hearing was originally listed to take place as a face-to-face hearing, but in an order dated 8^th July 2025, the Tribunal had granted the Respondent’s request for it to be listed as a video hearing. A subsequent order dated 14^th August 2025 also reduced the original time estimate to 2 days.

The documents to which we were referred are in an electronic bundle containing 310 pages which was submitted in advance of the hearing. For ease of reference, the page references in this decision follow the pagination on the original bundle, because some participants were working from a paper copy bundle and some from the electronic bundle. We also considered written skeleton arguments which had been provided by both parties, although we used the updated version of the Respondent’s skeleton argument, which we had decided to accept at the start of the hearing, as set out below.

Mrs Sakthya Sivaramalingam, Director of Sakthis Care Ltd attended on behalf of the Appellant, and was supported to present the appeal by Mr Martin Carey, McKenzie Friend. At the start of the hearing, the Panel clarified whether Mrs Sivaramalingam wanted Mr Carey to act as the Appellant’s representative during the hearing, and she confirmed that this was the case. There was no objection to this course of action by the Respondent, and the Panel concluded that it would be consistent with the Tribunal’s overriding objective to proceed on this basis. We heard oral evidence on behalf of the Appellant from Mrs Sivaramalingam, and Mr Moshin Khan, Trainee Accountant.

The Respondent was represented at the hearing by Ms Jemima Lovatt, Counsel. The witnesses who attended and gave oral evidence on behalf of the Respondent were Ms Helen Fallaize, CQC Registration Inspector; and Ms Sarah Buckingham, CQC Registration Manager.

At the start of the hearing, when identifying the documentation which the Panel had seen, we clarified that neither party had submitted any late evidence on which they were seeking to rely, and Mr Carey and Ms Lovatt confirmed that this was the case.

During these discussions, we also clarified that we had received an updated version of the Respondent’s skeleton argument. Mr Carey objected to the Respondent: “having a second attempt”, and pointed out that this document had been submitted after the Tribunal’s deadline of 2^nd September 2025. Ms Lovatt explained that as a result of an administrative error, a draft version of the Respondent’s skeleton argument had initially been submitted to the Tribunal and the Appellant. She acknowledged that the correct, final version had only been sent to the Tribunal and the Appellant on 8^th September 2025, but she maintained that it was not materially different to the draft version, and so it would not cause significant prejudice to the Appellant if the Tribunal were to accept that updated version. Having considered both parties submissions and both versions of the skeleton argument, the Panel concluded that they were not materially different. We also considered that since the hearing was listed for 2 days, the Appellant would have further time to consider the updated document before both parties needed to make any final submissions or respond to the other party’s skeleton argument in any event. We therefore decided that it would be fair, just and proportionate to permit the Respondent to rely on the updated version of their skeleton argument.

During his closing submissions on behalf of the Appellant, Mr Carey maintained that the Panel had “refused” to consider any additional evidence from the Appellant, and that other documents, including policies and sample audits were available and could be shown to the Tribunal, but that the Panel had “chosen not to look at them”. He also maintained that the Panel had allowed the Respondent to submit additional evidence, but had not permitted the Appellant to do so, which was unfair. Following these submissions, the Panel clarified that they had not accepted late evidence from the Respondent, and explained that it was an updated version of the Respondent’s skeleton argument which had been accepted, and that this was not, in itself, written evidence. We also explained that the skeleton argument was effectively a summary of the Respondent’s position in the appeal, which included the Respondent’s submissions on the relevant legal framework which would apply to the appeal, and the parts of the written evidence in the bundle which they submitted would be particularly relevant.

The Panel also clarified that they had not “refused” to consider any additional evidence from the Appellant, and that no such evidence had been submitted. Mr Carey referred to an earlier question which he had typed into the ‘Chat Room’ facility during the course of Ms Lovatt’s questions to Mrs Sivaramalingam on 9^th September 2025. We reminded Mr Carey that when his typed question had been spotted, the Panel had paused Ms Lovatt’s cross-examination, and had responded to his query. We also reminded him that the Panel had confirmed that we would be making our own decision in the appeal afresh, and so would be considering the question of whether the Appellant met the relevant regulatory standards at the date of the hearing. We had explained that when doing so, we would be considering the written evidence in the bundle, as well as any oral evidence and submissions made by the parties during the hearing itself. As part of his queries on 9^th September Mr Carey had also noted that Ms Lovatt’s questions had suggested that if the Appellants had produced any additional evidence, the CQC would have considered it up until the point of the hearing itself. The Panel reminded Mr Carey of the explanation which we had given when responding to this query on 9^th September, which was that both parties had been given an opportunity to submit evidence as part of the appeal process, but that any evidence provided after the final evidence deadline would be treated as late evidence, and so the Tribunal would need to give its permission before this could be accepted as part of the appeal.

The Panel reminded ourselves that following our response to Mr Carey’s query on 9^th September he had not asked for any further clarification of that response, or sought to suggest that the Appellant now wished to ask for permission to provide additional evidence, for example. Once Ms Lovatt had resumed her cross-examination Mr Carey had subsequently interjected again, to point out that the Tribunal would be considering the question of whether the Appellant met the regulatory standards at today’s date, and that: “late evidence still needs to be discussed”. At that point the Panel had responded to Mr Carey to point out that no late evidence had actually been provided by the Appellant, and again, he did not suggest that the Appellant wished to make an application to rely on late evidence.

We also bore in mind that when responding to questions from the Panel at the end of her oral evidence on 9^th September, Mrs Sivaramalingam had confirmed that she had attended the TCMHs in the appeal, and had understood that both parties would be able to submit additional documents and evidence as part of the appeal process. Mrs Sivaramalingam had told us that she believed that everything the CQC had previously asked for had been included within the bundle already, and so she did not realise that she would need to send anything further, or know what else to send. In addition, she told us that she had appointed a new company, “Human Resources” whom she was paying, and who were guiding her. She initially indicated that this company also had a large number of policies and procedures available, and that if she asked them, they could provide copies of these. However, she subsequently clarified that she had not seen all of these policies yet, and that: “It’s all still at the talking stage, and I haven’t signed up yet. I’m still looking at other companies as well, because I’m looking for someone who’s good”.

As noted above, neither Mrs Sivaramalingam nor Mr Carey had asked for further clarification of the Panel’s explanations about the fact that permission would be required if a party wished to rely on late evidence, and we were not persuaded that they had failed to understand that the Appellant could have made an application to rely on late evidence if they had wished to do so. We also considered that Mrs Sivaramalingam’s evidence suggested that the Appellant may not, in fact, currently have access to all the documentation available at Human Resources because they had not yet signed up to use their services in any event. Significantly however, we also recognise that the Appellant had not provided any further documents to the Panel throughout the hearings on 9^th and 10^th September, and it therefore remained our view that the Appellant had not sought to make any application to rely on any late evidence. In view of all these factors, it remained our view that the Panel had not “refused” or “chosen not to” consider any late evidence, as Mr Carey had sought to submit, and we were satisfied that when reaching our decision, it would only be appropriate for us to consider the written evidence which was available in the bundle and the oral evidence we had heard, as well as the parties’ skeleton arguments and oral closing submissions from Ms Lovatt and Mr Carey.

The Appellant was incorporated as a company on 24^th May 2023, and the sole director was Mrs Sakthya Sivaramalingam. When incorporated, the director’s name had been registered as “Mrs Sakthya Ashan Sivaramalingam” but a certificate dated 13^th June 2023 changed these details to remove the name “Ashan”.

On 26^th January 2024 the Appellant made an application to register as a service provider in respect of the regulated activity of Personal Care (domiciliary care).

On 29^th August 2024 the Appellant’s application was assigned to Helen Fallaize, CQC Registration Inspector.

On 3^rd September 2024 Ms Fallaize emailed the Appellant asking for further information and clarification of the change in the director’s name. The information which Ms Fallaize requested included details of “all checks undertaken and records held in respect of your director”, as well as confirmation of the references which were taken up for the director.

On 6^th September 2024 Mrs Sivaramalingam responded by email to confirm that there had been an error in the registered name of the director at Companies House, but that this had now been corrected, and that the current registered name is the correct one. She also provided information about the checks which were undertaken for the director, and a copy of a reference, as well as information about the Appellant’s training plans for staff.

On 19^th September 2024 Ms Fallaize met with Sarah Buckingham, CQC Inspections Manager, as part of a Management Review Meeting to review the application. The decision reached at this meeting was that the proposed service would not meet the requirements of Regulation 17 of the Health and Social Care Act (Regulated Activity) Regulations 2014 (‘the Regulations’). A Provider discussion and fit and proper person interview were not offered on the basis that this regulation had not been met. On the same date, the Respondent issued a Notice of Proposal (‘NoP’) to refuse the Appellant’s registration as a service provider in respect of the Regulated Activity.

On 20^th October 2024, the Appellant submitted written representations and accompanying documentation in response to the NoP.

Following consideration of the further documentation and representations, the Respondent issued its Notice of Decision (‘NoD’) dated 7^th November 2024, and the Appellant’s appeal was received by the Tribunal on 6^th December 2024.

Section 2 of theHealth and Social Care Act 2008 (‘the 2008 Act’) invests in theRespondent registration and review and investigation functions. By virtue ofsection 3(1) of the 2008 Act, the Respondent’s main objective is to protect andpromote the health, safety and welfare of the people who use the health andsocial care services.

Section 4 of the 2008 Act sets out the matters to which the Respondent musthave regard, including the views expressed by or on behalf of the members of
the public about health and social care services, experiences of people whouse the health and social care services and their families and friends and theneed to protect and promote the rights of people who use health and social careservices. Any action taken by the Respondent is proportionate to the risksagainst which it would afford safeguards and is targeted only where it is needed.

Section 12 of the 2008 Act obligates the Respondent to grant an application asa service provider where the Respondent is satisfied that the requirements ofthe Regulations (amongst other things) are being and will continue to becomplied with in relation to the regulated activities. If it is not satisfied, it mustrefuse it.

Under section 20 of the 2008 Act, the Secretary of State is empowered to makeregulations in relation to the regulated activities by way of regulations. TheRegulations made under this section are the Health and Social Care Act 2008(Regulated Activities) Regulations 2014, SI 2014/2936 (‘the Regulations’) andThe CQC (Registration) Regulations 2009.

Sections 26, 27 and 28 of the Act set out the procedural requirements in relationto notification of the Respondent’s decision.

Section 32 of the Act provides for a right of appeal to this Tribunal against adecision to refuse the registration of a service provider in relation to a regulatedactivity. The Tribunal may confirm the decision or direct that it is not to haveeffect. Under section 32(6), the Tribunal also has power to vary anydiscretionary condition for the time being in force in respect of the regulatedactivity to which the appeal relates. A ‘discretionary condition’ means anycondition other than a register manager condition required by section 13(1).

Part 3 of the Regulations set out the Fundamental Standards that registered providers must comply with when carrying on a regulated activity, which includes regulation 17 (good governance), and regulation 17(1) states that:

“17(1) Systems or processes must be established and operated effectively toensure compliance with the requirements in this Part.”

A further key aspect of the Regulations is regulation 5 (fit and proper persons: Directors) which sets out the additional regulatory requirements with which an individual must comply before being appointed as a director of a registered service provider.

The Appellant bears the burden of persuading the Tribunal that the Regulationshave been complied with at the date of the hearing, including by having regardto guidance issued under section 23 of the 2008 Act. The findings of fact aremade on the basis of whether or not the Tribunal is satisfied as to the facts on
the balance of probabilities.

The Tribunal is required to determine the matter afresh and make its owndecision on the merits and evidence as of the date of hearing. Subject only torelevance and fairness, this can include new information that was not availableor presented at the time when the decision under appeal was made. As noted in paragraph 12 above, the freshdetermination in this appeal included consideration of all documentsprovided by both parties, as well as the oral evidence we heard during the two-day hearing.

We do not set out all the detail of the NoD. As noted in paragraph 18 above, the CQC adopted the NoP and refused the application, on the basis that they were not satisfied that if it were granted, the provider would comply with the requirements of regulation 17 (good governance).

The key question for the Tribunal is whether, as of today’s date, the decision torefuse the Appellant’s application to register as the registered provider of a regulated activity should beconfirmed or directed to cease to have effect. Does it remain a reasonable, proportionate and justified decision?

The initial grounds of appeal were prepared by Mrs Sivaramalingam, and she indicated that she had previously engaged an agency, Care Agency Media (‘CAM’) to support her with the application to the CQC. Mrs Sivaramalingam acknowledged that there were “several discrepancies” noted by the CQC in their decision, and that she took these seriously. She maintained however, that these “shortcomings” were a direct result of CAM’s failures to deliver the services which they had promised. The grounds of appeal requested two options, namely reopening the current application to allow Mrs Sivaramalingam to rectify the identified discrepancies, or alternatively, to allow her to submit a fresh application.

At the start of the hearing, the Panel explained the Tribunal’s powers in respect of the appeal, and the fact that these did not include either of the options requested in the grounds of appeal. We also explained that the option of submitting a new application was one which still remained open to Sakthis Care Limited at any time, and we asked Mrs Sivaramalingam whether she wished to have some further time to her consider her position, and / or still wished to pursue the current appeal. Mrs Sivaramalingam confirmed that she wanted the appeal to go ahead, and that making a new application now would simply cause further delays.

In their response to the Scott Schedule and their skeleton argument it is the Appellant’s position that the discrepancies identified by the CQC have effectively all been rectified, and that all documentation requested by the CQC has been provided. It was acknowledged that there had been an error in relation to the initial registration of the Director’s name at Companies House, but the Appellant maintains that this was unintentional, had been rectified promptly, and that proof of this error has already been provided to the CQC. The Appellant also maintained that appropriate references and checks had been carried out on their Director, and that she possesses the necessary skills and experience to carry out her role. It remained the Appellant’s position that CAM were responsible for the incorrect information which appeared on the Sakthis Care Ltd website, and that the Appellant acted promptly to make CAM aware of this error. Finally, the Appellant maintained that they have sought a quote for relevant cyber-crime insurance, and that this insurance will be available once their application for registration is successful. It remained the Appellant’s position that the CQC has failed to reinspect them to verify or test the improvements which had been made.

In his closing submissions on behalf of the Appellant Mr Carey reiterated the points summarised above, and maintained that Sakthis Care Ltd has “learned from its experiences” and now has access to comprehensive policies and procedures, and that the business has permanent premises, as well as updated business plans, all of which supports the Appellant’s position that all previous CQC concerns have now been addressed. He maintained that there is no statutory requirement to engage with Local Authority commissioners, and that the Appellant has carried out appropriate research and engagement to demonstrate that there is sufficient demand within the geographical area for the services which it will be providing. He also submitted that Mrs Sivaramalingam had given clear, honest evidence, and that any inconsistencies in her oral evidence were due to the fact that English is her second language. He maintained that the Appellant has complied with every request which the CQC has made, and that the evidence showed that Mrs Sivaramalingam has a good grasp of the systems and processes required to demonstrate good governance, and that she has demonstrated her readiness and ability to run Sakthis Care Ltd as a good service provider.

The Respondent’s position in their Scott Schedule and skeleton argument was consistent with the NoD, and they contend that their decision to refuse registration remains necessary, reasonable, and proportionate.

In her closing submissions Ms Lovatt submitted that the Appellant has failed to provide any further documentation throughout the appeal process, and that the evidence demonstrated that Sakthis Care Ltd would fail to meet even basic organisational standards, let alone the regulatory requirements for good governance in regulation 17. She referred to a number of inconsistencies between Mrs Sivaramalingam’s oral and written evidence, including the reference to her being a “Healthcare Nurse”, and the process by which references were sought for her appointment as Director of Sakthis Care Ltd. Ms Lovatt also submitted that the Appellant’s failure to seek a more in-depth qualitative reference when appointing its sole Director clearly pointed to a lack of good governance by the Appellant. She highlighted that whilst Mrs Sivaramalingam had repeatedly referred back to CAM as being responsible for errors, she had also acknowledged that the responsibility for good governance cannot be delegated or outsourced. Ms Lovatt submitted that the Appellant has also failed to demonstrate that it now has appropriate procedures and systems in place to meet the requirements in regulation 17, or to prevent a situation of incorrect information appearing on a public website from happening again, for example.

As noted, we heard oral evidence from Mrs Sivaramalingam; Mr Khan; Ms Fallaize; and Ms Buckingham. We have carefully considered all the written and oral evidence in reaching our conclusions below; but we only record such of the evidence as is necessary to explain our decisions.

We found both of the Respondent’s witnesses to be straightforward and credible, and their oral evidence was consistent with their written witness statements.

When giving her oral evidence it was clear that Mrs Sivaramalingam was doing her best to answer all questions which were put to her by the parties’ representatives and the Panel. However, during her cross-examination, she was referred to several inconsistencies within the written documents which she had supplied. These included the fact that she had referred to herself as being a “healthcare nurse” within the grounds of appeal [A5], but her CV indicated that she was qualified and had worked as a “healthcare assistant” [B62 & B116]. Mrs Sivaramalingam maintained that her role would “come under the nursing umbrella”, and she clarified that she should have described herself as a “Healthcare Assistant Nurse”, although she went on to acknowledge that she is not a registered Nurse. She also maintained that she had worked with doctors at the surgery, but the Panel did not find her explanations persuasive, and we concluded that working alongside Doctors would not, in itself, mean that an individual could accurately describe themselves as a nurse.

We were also not persuaded by Mr Carey’s submission that the inconsistency in relation to Mrs Sivaramalingam’s job title had occurred because English is not her first language, and having carefully considered her evidence, we concluded that she did not have any difficulty understanding or answering any of the questions which were put to her during the hearing. We note that no request had been made to the Tribunal for an interpreter, and no other reasonable adjustments were requested by Mrs Sivaramalingam during the hearing. We also bore in mind that Mrs Sivaramalingam herself had pointed out that she had worked within NHS services for 10 years, and we concluded that having done so, she would have had a good understanding of the terminology and job titles used within this organisation. Mrs Sivaramalingam maintained that this inconsistency was simply a “missing word”, but the Panel did not find this explanation reassuring, and as a Specialist Tribunal, we recognise that there are considerable differences between these two roles, and that the relevant skills, knowledge, experience and qualifications required for them would also differ. We concluded that at the very least, Mrs Sivaramalingam’s explanation suggested a concerning lack of attention to detail when checking to ensure that documentation provided to the CQC was accurate.

Ms Fallaize had told us that having checked CQC records, she could find no record of “RB Care Homes” being registered with them as a regulated service provider. Mrs Sivaramalingam’s CV [B4 & B116] referred to this company as her most recent employer, and stated that her role as Supervisory Care Executive had included carrying out “Mock Regulatory and Commissioners Compliance Inspections”. However, when Ms Fallaize’s evidence was put to her in cross-examination, Mrs Sivaramalingam initially maintained that RB Care Homes were registered. She then went on to state that this company ran a number of care homes, and that the one where she had worked was called “Butterhill Care Centre”. Again, the Panel did not find Mrs Sivaramalingam’s explanation persuasive, and we bore in mind that there had been no reference anywhere else within the documentary evidence to “Butterhill Care Centre”, and that the first time this care home had ever been mentioned was when Mrs Sivaramalingam’s account was being challenged in cross-examination. In view of these changes in her evidence, we concluded that we would need to approach Mrs Sivaramalingam’s evidence with a degree of caution, particularly where it was not supported by other sources, or by documentary evidence.

A ‘common theme’ in Mrs Sivaramalingam’s oral evidence was that CAM had been responsible for any errors / inconsistencies which had occurred within the documentation supplied, and she told us that they had been responsible for the inconsistency in her title as “Mrs” within the registration application [B12] and “Miss” within the Statement of Purpose which was supplied to the CQC at the same time [C12]. We concluded however, that this also suggested a degree of carelessness, and / or lack of oversight from Mrs Sivaramalingam, and in our view, as the Appellant’s sole Director, it remained her responsibility to ensure that information supplied to the CQC as part of the application for registration was accurate.

From her oral evidence, it was clear that Mrs Sivaramalingam is very keen to run her own business providing domiciliary care services, and we accept that this type of work is important to her, because she told us that she has a strong desire to “give something back to the community” by delivering such a service. During Mr Carey’s questions however, she agreed with his suggestion that she had no prior experience of setting up this type of service, and that this had been the reason she had engaged CAM to “guide” her through the process of doing so. Under cross-examination she maintained that she was in a position to set up Sakthis Care Ltd, and that she understood that the responsibility for good governance cannot be outsourced, because the ultimate responsibility for this remains with her, as director of Sakthis Care Ltd. However, when being asked about the references which were sought prior to her appointment as the director of Sakthis Care Ltd, Mrs Sivaramalingam acknowledged that: “I didn’t know the CQC procedures and so CAM were guiding me”. She was also candid in her acknowledgement that: “This is a new thing for me. What [CAM] asked for is what I did. I trusted them and believed them”, and she confirmed that she had only sought 1 reference from an employer and 1 personal reference because this was what CAM had advised her to do. Mrs Sivaramalingam also confirmed that the form on which the RBS Care Ltd reference had been written [B70] was one which had been supplied by CAM.

Mrs Sivaramalingam told us that it was CAM who had completed the “Additional information for providers of personal care” form [B53 & B131], and that they had also prepared the business plan which was submitted with the application for registration [B78]. It was pointed out to her that there were inconsistencies between these two documents, and that the business plan clearly stated that: “Sakthis Care LTD will be launched as a provider of domiciliary care services to private individuals as well as local authorities, through social care referrals, as soon as we receive our Care Quality Commission (CQC) accreditation”, whilst the form clearly stated that the service would be providing services to “privately funded” individuals [B56 & B134]. Mrs Sivaramalingam again, sought to place responsibility for this error onto CAM, although we concluded that this explanation, again, suggested a lack of appropriate oversight on her part to ensure that documentation was accurate. However, we also considered that this part of her oral evidence provided further support for our conclusion that CAM were doing more than ‘guiding’ Mrs Sivaramalingam through the registration process, and we were not persuaded by her assertions that she had not delegated the responsibility for this process to them.

It was against the backdrop of these findings that we moved on to consider the specific areas which had been highlighted in the Scott Schedule and NoD, to help determine whether the decision to refuse the Appellant’s registration remains a proportionate one.

In light of Mr Khan’s written and oral evidence, we accept that the inclusion of the name “Ashan” on the Companies House documentation had been caused by a genuine mistake. We also accepted that Mrs Sivaramalingam had taken appropriate steps to rectify this mistake, and had notified her Accountants of the error within a couple of weeks of the date of the registration. However, we also recognise that the discrepancies over the Director’s name had been highlighted in Ms Fallaize’s email dated 3^rd September 2024 [B44], but the letter dated 8^th October 2024 from Saleemi Associates explaining their error [B160] was only provided to the CQC several weeks later, as part of the written representations in response to the NoP. We concluded that this suggested a lack of transparency on Mrs Sivaramalingam’s part, and we considered that she could have been much more proactive in explaining these discrepancies to the CQC when Ms Fallaize had first queried them. Throughout her oral and written evidence, Mrs Sivaramalingam also continued to highlight that she had provided an enhanced DBS check under her correct name, which suggested that she had not fully understood the CQC’s concerns. We recognise that having a robust system for carrying out DBS checks will be a key aspect of good governance for a service provider, but we were not confident that Mrs Sivaramalingam had fully understood the effect which any name discrepancies might have on the accuracy of such checks.

In her oral evidence Mrs Sivaramalingam accepted that by stating that Sakthis Care Ltd were registered with the CQC, the company’s website had included legally inaccurate and misleading information. We were not persuaded by her explanation that she had only shared the website details with CAM and the CQC, and we find that at the point when this information was included, the website was ‘live’ and that a member of the public could therefore have come across this information when carrying out an internet search, for example. We also find that the website error had not been identified until it was pointed out by the CQC in their NoP [see B6], which suggested a lack of appropriate systems in place to ensure that publicly available information about the company was accurate. Mrs Sivaramalingam again, maintained that it was CAM who had been responsible for this error, and that such an error would not reoccur in the future, because “a website policy will be there” for Sakthis Care Ltd (emphasis added). However, we had not been provided with a copy of any such policy, and so the contents of it remained unclear. Mrs Sivaramalingam had also provided no other evidence or documentation to support her assertions that: “I have all the processes in place…I have learned a lesson and I wouldn’t let it happen again. I won’t let them put a message up without the company being registered with the CQC”.

As noted in paragraph 11 above, Mrs Sivaramalingam’s evidence on the Appellant’s policies and procedures had also changed quite significantly during the course of her oral evidence, and she initially told us that CAM had “hundreds” of policies available on their portal, and that: “the policies were already there, and they would update them and email them to us – that’s when we would have access to it”. Mrs Sivaramalingam also confirmed however, that she had not read these policies as there were so many of them, and that she was no longer able to access these because she had refused to pay any more money to CAM following their poor service. As a Specialist Tribunal we found these explanations somewhat troubling, and we considered that in order to ensure good governance, a company would need to be able to have ongoing access to policies which had been specifically tailored and written for its own purposes, and which were reviewed on a regular basis to ensure that they remained accurate and up to date for the company’s requirements. We also shared the view expressed by Ms Fallaize that it would be important for staff to also be able to access such policies, and that this would underpin the effective running of the service provider’s services. Mrs Sivaramalingam maintained that the Appellant would now be able to access appropriate policies because they had appointed Human Resources, and she explained that: “If I get registered they’ll look after the whole thing. I haven’t seen everything but it’s all there with the new policies”, but as noted above, she subsequently clarified that she had, in fact, not yet signed up to this service. In light of this evidence, and our conclusions above, we find that as at today’s date, the website policy to which Mrs Sivaramalingam had referred is not currently available to her / the Appellant. We could therefore not be confident that she has read, or been involved in the development of any such policy, and we were unable to conclude that the Appellant has put in place appropriate systems to prevent inaccurate information appearing on the company’s public website again.

We accept that the time of the application for registration, the Appellant had paid for public liability insurance cover, although we also find that this included a specific cyber exclusion clause [B62]. We also accept that Mrs Sivaramalingam had subsequently sought a quote for additional insurance cover to address these issues [B122], and that the Appellant had a clear written Cyber Security Policy [B148] which includes details of how the company will ensure that information and data are kept secure, and how employees will be trained to support these aims, for example. However, we bore in mind that such a policy will not necessarily prevent a cyber security incident occurring, and we considered that ensuring a company has appropriate insurance cover in place to protect service users against any such risks will clearly form an important part of its good governance. Whilst Mrs Sivaramalingam maintained that she “would have got the cover if we were registered”, we had not been provided with any details of the insurance policy on which the quote was based. In the absence of any such evidence, we were unable to conclude that the steps which the Appellant had taken to mitigate the cyber exclusion clause are appropriate, or that the insurance policy which they proposed to obtain would be suitable, and / or sufficient to cover any liability which could arise if such a cyber security incident occurred.

When dealing with this aspect of the appeal, we accepted Mr Carey’s submission that there is no specific regulatory requirement for a service provider to engage with a Local Authority in order to demonstrate a requirement for their services. However, we find that in the context of a service provider who will be providing domiciliary care, the requirements of good governance will include demonstrating that the service provider is, and will remain, financially viable. In her oral evidence Ms Fallaize told us, and we accept, that if there is no local need for a service provider’s services, then they will potentially struggle to find clients, and could cease to operate, which would potentially leave any existing service users without access to services. As noted in paragraph 45 above, Mrs Sivaramalingam had confirmed that CAM had prepared the previous business plan, and we concluded that this suggested a lack of appropriate oversight by her, as Director, of the financial viability of Sakthis Care Ltd. We also bore in mind that Mrs Sivaramalingam had, throughout the course of her oral evidence, repeatedly maintained that if CQC had requested documents, she would have provided them. We noted however, that within the NoP the CQC had specifically highlighted the lack of evidence or explanations to support the fact that research had been carried out into the need for the service, and pointed out that: “…you have not evidenced that you have made contact with the local authority about whether there is a need for the service in the area you intend to cover” [see B6]. Despite this, the Appellant has provided no additional documents to support Mrs Sivaramalingam’s assertion that she had undertaken such research on their behalf.

We were also unable to ignore the fact that Mrs Sivaramalingam’s description of the services which Sakthis Care Ltd are proposing to provide differed quite significantly from the one which had been set out in the company’s business plan. This made no mention of the clients with a Sri Lankan or ethnic minority background which she maintained would now be the company’s main focus and business model, and we had not been provided with any documentation to indicate that the Appellant had undertaken any further research into the need for services within these specific client groups, for example. We also find that the reference within the Appellant’s written representations to Bromley Council’s market sustainability plan [see B107] significantly undermined their position that there is a local need for their services. It stated that: “There is a sufficient supply of domiciliary care provision within (and close to) the borough with the ability to call in additional providers at times of high demand”, and there was no cogent evidence from which we could conclude that the situation has changed significantly from when these representations were submitted. Mrs Sivaramalingam maintained that she had registered with local tendering companies, and actively engaged in tendering processes for Local Authority clients, but had been told by the tendering company that without any CQC inspection ratings, Sakthis Care Limited would not be successful in their bids. However, we concluded that Mrs Sivaramalingam’s evidence suggested that she had not contacted the Local Authority directly at any point, and we considered that this would have been a very useful way in which she could have gathered further information, and / or data about the overall demand for domiciliary care services in the local area, including from privately funding clients. Finally, we bore in mind that when answering questions from the Panel about the arrangements which the Appellant would make for staff training, Mrs Sivaramalingam had told us that: “the office has big boardrooms which can be hired out for training” but went on to clarify: “I can get my office when I am registered. I currently don’t have a base. There are 340 rooms available at the Regus centre but the CQC process is taking too long”. We considered that the lack of a permanent base for the Appellant’s business provided further support for our conclusion that it has not currently demonstrated that it is, and can remain financially viable.

Having heard Ms Fallaize’s evidence, we shared her view that it will be particularly important to ensure that directors of domiciliary care providers have the relevant knowledge, skills and experience to be able to run such services effectively. She explained that users of such services tend to be over 65 or otherwise vulnerable, and are sometimes very isolated. She also pointed out that they often do not have anyone other than their carer coming to visit them in their home, and so there will potentially be less oversight of the delivery of such services than there would be in a care home, for example. Ms Fallaize maintained, and we accept, that for domiciliary care providers: “good governance comes down to the Directors and if the checks on them aren’t done robustly…[service users] could be put at risk”. We also concluded that the need for a robust system for carrying suitability checks will be particularly important where, as here, a service provider has a sole director.

We recognise that a key part of these suitability checks for a director will be information about their employment history, but we found it relatively difficult to follow Mrs Sivaramalingam’s explanations about the references which had been sought before she was appointed as sole director of Sakthis Care Ltd in May 2023. When asked about the information supplied in response to Ms Fallaize’s September email, Mrs Sivaramalingam initially denied that there was any contradiction between the assertion that her employer had “done [a reference] previously” [see B47] and the later statement in the Appellant’s written representations that: “once the CQC requested the references, the director obtained them” [see B104]. We concluded that there were clear inconsistencies between these two statements, and at one point, Mrs Sivaramalingam appeared to blame CAM for this, and suggested that it was them who had sought the references at the time of her appointment as Director. She subsequently told us that she had obtained these however, and that the references had then been updated at a later time. We concluded however, that this explanation was somewhat inconsistent with her evidence that she no longer had access to any copies of the references which were sought before her appointment as director, which had been stored on CAM’s portal, and had now been deleted. We did not find this part of her oral evidence persuasive, and we considered that as a matter of good practice, we would have expected Mrs Sivaramalingam to retain her own copy of such references in any event.

We also bore in mind that regulation 5(5) and Schedule 3 of the Regulations clearly set out the information which must be available for an individual who has been appointed as a director. Paragraphs 4 and 5 of Schedule 3 confirm that this information includes: “Satisfactory evidence of conduct in previous employment concerned with the provision of services relating to health or social care”, and that where a person’s previous employment involved work with children or vulnerable adults, it must also include “satisfactory verification, so far as reasonably practicable, of the reason why [the director’s] employment in that position ended.” In the current case we concluded that is very clear that Mrs Sivaramalingam’s previous employment at Baring Road Medical Centre would fall within these definitions in paragraphs 4 and 5 of Schedule 3. However, as noted in paragraph 45 above, she acknowledged that she has never actually sought any professional references from this employer either before, or after her appointment as director, and had simply relied on the advice from CAM that a reference from her most recent employer would be sufficient.

During her oral evidence Mrs Sivaramalingam had acknowledged that the content of the reference from RB Care Homes [B70] would not, in any event, have been sufficient for the purposes of demonstrating that she met the regulatory requirements for being a fit and proper person to be appointed as a director, and we considered that this was a sensible and realistic concession on her part. However, we remained concerned that this concession had only been made during her cross-examination by Ms Lovatt, and we concluded that this was the first point at which Mrs Sivaramalingam seemed to have fully appreciated what were, in our view, very clear limitations within that reference. We noted that paragraph 2 of the NoD [see B162] had also set out the deficiencies in the references which had been provided at that point, yet Mrs Sivaramalingam does not appear to have sought any further references from her previous employers after receiving this NoD, or asked them to confirm the reasons in her CV as to why she left their employment, for example. Mrs Sivaramalingam maintained that she is able to fulfil the requirements of being a fit and proper person, and that if she had been asked to provide further references, she would have done so. However, this was, in our view, a further example of a ‘reactive’ response on her part, and we recognise that in order to meet the standards of good governance as sole director of a regulated service provider, Mrs Sivaramalingam will need to be able to understand and proactively take steps to meet the relevant regulatory requirements, rather than relying on others to tell her how to do so.

We considered that good governance will also include the need for a service provider to have robust systems in place to satisfy themselves that their staff have the necessary skills and experience to carry out their tasks effectively, and we bore in mind that Mrs Sivaramalingam has previously carried out recruitment tasks as part of her previous roles at RBS Care Homes and Apollo Homes Ltd. However, she did not dispute Ms Lovatt’s suggestion that the poor quality of the RBS Care Homes reference had undermined the Appellant’s ability to demonstrate that it would be able to carry out appropriate checks on its staff, and we also accepted that this is the case. We also recognise that we had not been provided with copies of any of the Appellant’s recruitment policies to demonstrate that suitable regulatory checks will now be carried out for its staff for example, and our earlier conclusions in paragraphs 11 and 49 meant that we were not confident that the Appellant would currently have access to such policies in any event.

Having carefully considered all the written and oral evidence provided to date by Mrs Sivaramalingam, we were unable to conclude that she has fully understood the regulatory framework and requirements which are relevant to her appointment as sole director of Sakthis Care Ltd, or that she has demonstrated that she has the qualifications, competence, skills, and experience which will be needed to carry out this role. We bore in mind our findings in paragraphs 45 and 46 above about Mrs Sivaramalingam’s heavy reliance on CAM’s advice, and we considered that these findings provided further support for these conclusions. In addition, we considered that Mrs Sivaramalingam’s reliance on others, including CAM, raised questions as to her leadership abilities, and in our view, such abilities would be a key quality which would be required when carrying out the role of sole director. As noted in paragraph 57 above, we have concluded that Mrs Sivaramalingam was ‘reactive’ in her dealings with the CQC, and throughout her oral evidence she repeatedly suggested that she “would have” provided further documents if these had been requested. However, in our view, the lack of proactive steps on her part to provide the relevant documentation required to progress her application or address the CQC’s concerns was further strong evidence that Mrs Sivaramalingam did not have a clear understanding of the necessary elements of good governance, and we recognise that she had also not produced any further documentation throughout the course of the appeal itself. We considered good governance will include an understanding of the type of documentation which the CQC would require to test a service provider’s systems and procedures, for example, and the fact that Mrs Sivaramalingam expected to be told what to send left us with little confidence that she has understood, or could meet the standards of good governance within regulation 17.

In view of this, and our other conclusions, and for all the reasons set out above, the Panel has therefore decided to dismiss the appeal, because the Appellant has failed to prove, on the balance of probabilities, that it is complying with, and would continue to comply with Regulation 17.When considering the proportionality of the decision, we also considered whether there were any conditions that could be put in place that would meet the concerns which have been raised in respect of Sakthis Care Ltd. However, in view of our findings above, and in particular, our findings about Mrs Sivaramalingam’s ability to understand and comply with the regulatory framework, we do not consider that the imposition of conditions would be appropriate, and we find that there are no such conditions that would mitigate against non-compliance. We therefore find that the refusal of registration of Sakthis Care Ltd as a service provider remains reasonable, justified and proportionate.

We understand that our decision will be extremely disappointing to Mrs Sivaramalingam, and we recognise that she would very much like to run a business in her chosen field of domiciliary care. We would remind her however, that that the option of making a fresh application for registration is one which remains open to her. If she does choose to make such an application, she would also be to include any new or additional documentation which she wanted the CQC to consider.