Chandra v Commission for Social Care [

Factual and Procedural Background

This decision concerns an application to strike out an appeal by the Appellant against a decision of the Respondent dated 6 June 2007 refusing to register the Appellant as manager of a Care Home, pursuant to Regulation 4A(1)(d) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002.

Prior events (as set out in the opinion): the Appellant and the Appellant's spouse, both healthcare professionals, were the registered owners of a Care Home located in The City. The Respondent cancelled their registration in December 2006. An appeal was lodged and heard by a tribunal in June 2007; that appeal was unsuccessful and the Appellants' registration was cancelled on 25 June 2007 (see decisions [2006] 825 & 826.EA and [2007] 874 & 875.EA).

The earlier tribunal's Conclusions (paragraphs 1–21 of the Decision) contained adverse findings about the Appellants' fitness to be proprietors and their compliance with regulatory requirements. Selected findings recorded by the tribunal included:

"We started first by considering the issue of whether or not the Appellants were fit to be proprietors of the care home and we have concluded they are not."

"...certainly since the coming into force of the new regulatory regime there has been little or no evidence of ongoing compliance with the legal and regulatory requirements."

"...the evidence given by both the Appellants lead us to conclude without hesitation that either the Appellants do not understand the statutory and regulatory requirements imposed on them or if they do, they have no ability to implement suitable policies and procedures to discharge their responsibilities."

"...their attempts to find a suitably qualified manager and dealing with the management issue has in our view been unsatisfactory, insufficient and inadequate."

On 6 June 2007 the Respondent refused an application to register the Appellant as manager on the ground that he was not fit within the meaning of Regulation 9(2) of the Care Homes Regulations 2001. The Appellant appealed to the Tribunal on 4 July 2007.

Procedural directions were given on 10 August 2007 by the Deputy President, Judge Oliver, ordering the Appellant to make written representations in response to the Respondent's strike-out application by 31 August 2007; the Appellant responded by letter dated 21 September 2007.

At the strike-out hearing the Appellant provided a short document describing the history of the Care Home and asserted that the "Home has been running satisfactorily." The Appellant also asserted in writing and briefly in evidence that he had "enough qualifications and experience to care and manage the home." The Respondent provided thorough written submissions setting out the criteria required before the Appellant could be considered for appointment as manager.

The nominated chairman noted Regulation 10 of the Care Homes Regulations, which requires that a registered manager must, having regard to the size of the home, the statement of purpose, and the number and needs of service users, manage the home with sufficient care, competence and skill.

Legal Issues Presented

1. Whether the appeal should be struck out under Regulation 4A(1)(d) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 on the ground that the appeal has "no reasonable prospect of success".
2. Whether, in light of the earlier tribunal findings and the requirements of the Care Homes Regulations (in particular Regulation 9(2) and Regulation 10), the Appellant can be considered fit to be registered as the manager of the Care Home.

Arguments of the Parties

Appellant's Arguments

• Submitted a brief written history of the Care Home asserting that the "Home has been running satisfactorily."
• Contended, in document and briefly in oral evidence, that he possessed "enough qualifications and experience to care and manage the home."
• Much of the Appellant's submissions related to matters that were the subject of the previous unsuccessful appeal to the tribunal.

Respondent's Arguments

• Made an application to strike out the Appellant's current appeal under the provisions of Regulation 4A, in particular invoking the power under Regulation 4A(1)(d) (no reasonable prospect of success).
• Provided detailed written submissions setting out the criteria that must be satisfied for registration as a care home manager and asserting that those criteria were not met.

Table of Precedents Cited

Court's Reasoning and Analysis

The nominated chairman proceeded on the statutory framework provided by Regulation 4A of the 2002 Regulations (Misconceived appeals or applications). Regulation 4A(1) authorises the President or a nominated chairman to strike out an appeal or application on several grounds, including where "the President or the nominated chairman considers that the appeal or application has no reasonable prospect of success" (Regulation 4A(1)(d)). The present strike-out application was brought under that provision.

The nominated chairman's analysis followed these steps:

1. Identification of the relevant statutory thresholds: the power to strike out under Regulation 4A and the substantive fitness and managerial competence requirements under the Care Homes Regulations (including Regulation 9(2) as the basis for the Respondent's refusal to register and Regulation 10 which requires managers to manage with sufficient care, competence and skill).
2. Assessment of the factual matrix: the chairman reviewed the prior tribunal's Conclusions (paragraphs 1–21) and emphasised their adverse character. The prior tribunal had explicitly concluded that the Appellants were not fit to be proprietors and recorded multiple findings indicating lack of compliance, deficient understanding or implementation of statutory and regulatory requirements, and unsatisfactory attempts to secure competent management.
3. Evaluation of the current material: the Appellant's written statement and brief oral evidence were considered. The Appellant's assertions (including that the "Home has been running satisfactorily" and that he had sufficient qualifications and experience) were noted, but the chairman found those submissions to be contradictory to, and insufficient to counter, the earlier tribunal findings.
4. Application of legal standard for strike-out: applying Regulation 4A(1)(d), the chairman concluded on the evidence before the tribunal that the appeal had no reasonable prospect of success. This conclusion rested primarily on the earlier tribunal's adverse factual findings and the insufficiency of the Appellant's present material to displace them.
5. Procedural orders and ancillary matters: the chairman set out the procedure for any application for costs by the Respondent (requiring reasons and a schedule of costs within fifteen working days of receipt of the Decision issued under Regulation 33(1), followed by an opportunity for the Appellant to respond under Regulation 24(2)(b)). The chairman also explained the Appellant's right to apply to set aside the strike-out under Regulation 4A(4), including time limits and requirements for written grounds under Regulation 4A(5)(b).

Holding and Implications

Holding:

STRUCK OUT

The nominated chairman determined that the Appellant's appeal has no reasonable prospect of success and accordingly struck the appeal out.

Immediate consequences for the parties:

• The appeal is dismissed by way of strike-out.
• The Respondent may apply for an order for costs. Any such application must: (a) be made within fifteen working days of receipt of the Decision issued under Regulation 33(1); (b) set out why the Respondent considers the Appellant acted unreasonably in bringing or conducting the proceedings; and (c) provide a schedule of costs under Regulation 24(2)(a). The nominated chairman will then invite the Appellant's representations under Regulation 24(2)(b). If the Respondent does not make an application within the specified period, there shall be NO ORDER AS TO COSTS.
• The Appellant may apply to the President in accordance with Regulation 4A(4) to have the determination set aside. Such an application must be made not later than ten working days after the date on which notice of the determination was sent to the Appellant and must be in writing, setting out the grounds in full (Regulation 4A(5)(b)).

Broader implications:

The opinion does not purport to establish a new legal precedent; its effect is to dispose of the present appeal on the specific facts and prior tribunal findings in this case. The decision demonstrates the tribunal's application of Regulation 4A(1)(d) where prior adverse findings and insufficient countervailing material mean an appeal lacks a reasonable prospect of success.

Decision signed by: Judge Wadling (Nominated Chairman)
Date: 28 November 2007