Moore & Ors, R (on the application of) v Care Standards Tribunal & Anor

Accommodation and nursing or personal care may be provided by different persons or companies and may be arranged through an assured tenancy. That arrangement does not, in itself, remove an establishment from the statutory definition of a care home. The question is whether, in substance, the establishment provides accommodation together with nursing or personal care for persons within Care Standards Act 2000, section 3. A registration authority and the appellate tribunal must decide that question by applying the law to the facts found. The burden of proof has no material role in that decision-making process, save in the exceptional case where neither party presents evidence. Where the statutory conditions remain satisfied, registration cannot lawfully be cancelled merely because the accommodation is provided under tenancy agreements.

The claimants were long-term residents of care homes operated by Alternative Futures Limited. The freeholds were transferred to Alternative Housing Limited, which granted residents assured tenancies while Alternative Futures continued to provide care services. Alternative Futures applied under Care Standards Act 2000, section 15(1)(b), for cancellation of its registration. The National Care Standards Commission refused the application, and the Care Standards Tribunal dismissed the appeal.

The claimants, who had not participated in the tribunal proceedings, sought judicial review. The central issues were whether the new tenancy arrangements meant that the premises were no longer care homes, whether accommodation and care had to be provided by the same person, and whether the tribunal had applied the correct approach to the burden of proof.

1. Claim dismissed. The tribunal had reached the correct conclusion and was legally bound to reach it on the facts found.
2. The burden of proof played no part in the decision-making exercise. The Commission and the Tribunal, hearing the appeal by way of rehearing, had to determine the facts and apply the statutory definition to them. Only in the wholly unlikely event that neither party appeared or adduced evidence would the absence of proof determine the result.
3. Under Care Standards Act 2000, section 3, an establishment is a care home where it provides accommodation together with nursing or personal care for persons who have or have had a mental disorder. Accommodation and care need not be provided by the same company or individual. Two companies may together carry on the establishment, in which event both require registration.
4. The use of assured tenancies for the accommodation element did not, in principle, take the premises outside section 3. Neither the Act nor the Care Homes Regulations 2001 excluded that form of accommodation, and the tenancy agreements contained nothing inconsistent with the registered provider’s regulatory obligations. In particular, the agreement did not prevent compliance with regulation 16(2)(d), concerning residents bringing furniture and furnishings into their rooms where practicable.
5. The tribunal’s findings showed that the homes continued to be managed in virtually the same way, with accommodation and care supplied through the same overall arrangement. Since the conditions in section 3 continued to be fulfilled, the Commission could not lawfully cancel registration, as that would permit or condone the commission of an offence under section 11(1).
6. The tribunal had placed substantial emphasis on residents’ lack of real choice. That reasoning was unnecessary and should not have been treated as decisive, but it did not vitiate the tribunal’s conclusion because its other findings inevitably supported the result.

A conditional costs order was made, subject to notification within seven days that no order was sought. Permission to appeal was refused on the basis of lack of a real prospect of success, although the wider importance of the legal issue was left for the Court of Appeal to assess.

1. Care Standards Tribunal: dismissed Alternative Futures Limited’s appeal against the National Care Standards Commission’s refusal to cancel its registration.
2. High Court (Administrative Court): dismissed the claim for judicial review and upheld the tribunal’s conclusion.