Joseph v Commission for Social Care Inspection Rev 1, Court of Appeal - Establishments and Agencies, March 06, 2008, [2007] EWCST 1052(EA)

Resolution Date:March 06, 2008
Issuing Organization:Establishments and Agencies
Actores:Joseph v Commission for Social Care Inspection Rev 1

Care Standards Tribunal 1Joseph v Commission for Social Care Inspection [2007] EWCST 1052(EA) (6 March 2008)RUFINA JOSEPH-v-COMMISSION FOR SOCIAL CARE INSPECTION[2007] 1052.EA[2007] 1116.EABEFORE:Ms Liz Goldthorpe (Nominated Chair),Mr Ken Coleman (Specialist Member)Mrs Susan Howell (Specialist Member)Sitting on 14th, 15th, 16th, 17th and 18th January 2008 at the Care Standards Tribunal, 18 Pocock Street, London SE1 0BWDECISIONRepresentation:Mr Peter O'Brien, retired Barrister, for the AppellantMs Nicola Greaney of Counsel for the RespondentsA. The Appeals 1. The Appellant appeals pursuant to Section 21 of the Care Standards Act 2000, against i) a decision of the Commission for Social Care Inspection (`the Commission') dated 9 August 2007, to refuse her application to become a Registered Proprietor of the proposed premises, Culita Care, 12A Cardington Street, Luton, Bedfordshire (`Appeal 1') and; ii) a decision of the Commission dated 4 June 2007, to refuse her application to become a Registered Manager of those premises (`Appeal 2').2. On 10th October 2007 the Deputy President consolidated these appeals on the basis that both gave rise to similar issues.B. Witness evidence 3. We heard evidence on behalf of the Respondents from witnesses all currently employed by the Commission:· Ms Ansuya Chudasama, a Regulation Inspector since 2002;· Ms Sara Morrison, a Regulation Manager with 19 years experience of registration and inspection; and· Mrs Lynda Higgins, a Regional Enforcement Manager with 12 years experience. 4. We heard oral evidence from the Appellant and read a statement from her sole witness, Ms Laucina Meyers, a former care worker at Ryecroft Home, who was unable to give oral evidence due to work commitments.5. The Respondents had filed one inspection report, dated 9 September 2005, in respect of Ryecroft Care Home (`Ryecroft'). The Appellant was the Registered Manager of this home until April 2006. In August 2007 the Respondents had included in its list of witnesses Ms Leonie Milton, the lead Regulation Inspector for Ryecroft, but did not file a statement from her. It seems she is no longer employed by the Commission. It became clear that in 2007, following the emergency closure of the home, the Registered Provider had appealed to the Tribunal. Documents in that appeal had not been disclosed to Ms Joseph. These included a witness statement from Ms Milton and two further inspection reports relating to Ryecroft dated 27th April 2005 and 2nd & 3rd May 2006 respectively. We admitted these documents, which then became the subject of cross-examination.C. Preliminary Issues6. Appeal 1 6.1 The parties had reached some agreement on the issues in correspondence before the hearing. The Appellant had conceded the proposed premises did not comply in some respects with the National Minimum Standards (`the NMS'), but continued to maintain they would be generally suitable for the 3 service users she had in mind. She wished to challenge the Commission's other findings and the procedure it had used. 6.2 On the first day, the Commission indicated through Counsel that it no longer wished to rely on any issue as to the Appellant's integrity and good character. However, a brief adjournment was necessary due to the illness of Mr O'Brien and clarification of the extent or detail of the Appellant's concessions was therefore not available until Day 2. 7. Appeal 2 - 7.1 In consequence of the Appellant's concession in respect of Appeal 1 there were no premises against which she could now be registered as a manager. Nevertheless, the Appellant said she wished to continue her plan to open a care home, and therefore was likely to make a further application for registration in future in respect of different premises. Accordingly, following the principles identified by the Deputy President in H v Welsh Ministers [2007] 1027, (subsequently upheld by the High Court), we concluded a similar practical advantage existed in this case to give the Appellant a fair opportunity to challenge the Commission's original grounds for refusal of registration. Therefore, we exercised our discretion to hear the appeal. 7.2 We directed the Respondents to provide a Skeleton Argument clarifying several issues: whether the proposed premises could ever be regarded as suitable and if not, why not; to what extent the withdrawal of the allegations about the Appellant's integrity and good character meant the evidence in respect of two specific establishments where she had been employed would no longer be relied upon; and to confirm that the remaining issues for determination centred primarily on her qualifications, skills and experience to be a Registered Manager. 8. Therefore, it became common ground that i) Appeal 1 should be dismissed due to the Appellant's concession that the premises were unsuitable and did not comply with regulation 23 of the 2001 Regulations;ii) In Appeal 2, in judging the Appellant's fitness to be a Registered Manager, Regulation 9(2)(b)(i) was the relevant requirement, i.e. the skills and experience necessary for managing the care home she had originally proposed, Culita Care.9. The relevant date for determination of appeals: 9.1 In accordance with established practice, the Tribunal conducts a rehearing and its decisions are based on issues of fact and of fitness as at the date of the hearing of the appeal. As stated in Appiah-Anane v NCSC [2002] 96 NC, OFSTED v Spicer [2004] EWHC 440 (Admin) and Puretruce Health Care .v. National Assembly for Wales [2005] 544.EA-W.JP, the Tribunal conducts a merits appeal, not a judicial review or a review of the original decision of the registration authority. Its role is to engage in a total examination of all the evidence and it can admit evidence previously overlooked or which relates to events that occurred after the original decision.9.2 The Commission's recent contention that registration cases should be distinguished from cancellation cases because the tribunal's approach does not fit with s.21(3) CSA 2000 has not yet been tested on appeal to a higher court. The point was considered most recently by the President in Glenda Hunt .v. Commission for Social Care Inspection [2007] 1045.EA, where he concluded that, in the absence of any fully reasoned response, it was inappropriate and wholly unfair to deal with the matter. The Appellant in that case was unrepresented and inclusion or exclusion of any evidence subsequent to the Commission's decision did not make any real difference. The Tribunal therefore considered all of the Appellant's evidence, including that arising after the Commission's decision, and we saw no reason to depart from the usual approach in this case either.D. Factual Background11. The Appellant trained at Horton Hospital from 1967 to 1972, and qualified as a Registered Mental Nurse (`RMN') in December 1971. She also qualified as a Registered General Nurse (`RGN') and was admitted to the Register in December 1975.12. The Appellant has attended a number of courses in a range of topics, including training on mental health, care of the elderly and abuse issues. In March 2005 she attended a course on mental health legislation as well as a course entitled `Protection of Vulnerable Adults - Train the Trainer course for Workplace Awareness Trainers', which included the recognition of, and appropriate response to, abuse. 13. In her registration application, the Appellant gave her professional experience as her nursing training and experience, including a period as a staff nurse with Lambeth Community Care and several periods of employment as a manager in a number of settings caring for the frail and mentally ill elderly. She included her period as Registered Manager of Ryecroft Care Home (`Ryecroft') from November 2004 to April 2006. From May 2006 the Appellant began working part time for Home Care and Health Limited, a service consisting of a domiciliary care agency and a nursing agency respectively. The owner supplied a reference for the Appellant in support of her registration application, but did not specify in what capacity he employed her. In her registration application the Appellant stated she was a nurse manager/trainer responsible for interviewing, training and community assessments. Both agencies effectively ceased operation in January 2007 and went into receivership in July 2007.14. By February 2006 the Appellant had bought 12A Cardington Street, Luton, Bedfordshire, where initially it seemed she intended to live. This was a period terraced house on 3 floors with an open plan lounge and dining room, kitchen, one main bathroom and 4 bedrooms without en-suite facilities. The Appellant subsequently decided to open a small care home here, called Culita Care, and applied to become the Registered Provider and Registered Manager for these premises, with a view to opening in September 2006. She planned to live nearby and to have 6 members of staff, with one in residence. 15. The Appellant's stated aim was to provide rehabilitative care for, at least initially, 4 young adults with mental health needs. In her Aims and Objectives, she said she was ``committed to offering a highly professional Residential Care service for individuals under the age of 65 years, with a past or present history of mental ill-health and or drug/alcohol abuse and is receiving medical and professional help to overcome their difficulties and to assist them to return to a life within the community and to independent living.'' Her application specifically excluded service users with a physical disability, sensory impairment, learning disability or dementia. In her separate service information, she also excluded service users with drug or alcohol problems. 16. Around this time, a local home called The Oaks was closing down and a number of the displaced residents and their social workers visited Culita Care. In September 2006 the Appellant wrote to the Commission stating all the...

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