Welsh Ministers v The Care Standards Tribunal & Anor

Registration of a manager under Part II of the Care Standards Act 2000 must relate to a specific establishment or agency. The loss of that establishment does not automatically require the applicant’s appeal to be struck out. The tribunal has a discretion under regulation 4A of the 2002 Tribunal Regulations, which must be exercised with caution and according to the circumstances of the case. Relevant considerations may include whether a substantive determination could provide practical advantage in a future application or affect employment prospects. A strike-out may nevertheless be appropriate where no sufficient practical advantage exists. The High Court should not interfere with the tribunal’s discretionary decision absent an error of law or another recognised ground of review.

Mrs H applied to be registered as manager of a care home under the Care Standards Act 2000. Her application was refused after concerns arising from a police investigation and an enhanced criminal record certificate. She appealed to the Care Standards Tribunal, but the home ceased to be available to her and another manager was appointed.

The Welsh Ministers applied to strike out the appeal on the ground that registration had to relate to specific premises and that the appeal had therefore become misconceived or had no reasonable prospect of success. The Tribunal refused to strike out, finding a possible practical advantage in allowing the appeal to proceed. The issue was whether that discretionary decision was unlawful.

1. Appeal dismissed. The Tribunal’s refusal to strike out the appeal disclosed no error of law or other proper basis for intervention.
2. Registration under Part II of the Care Standards Act 2000 is both person-related and establishment-related. Sections 11, 12, 13, 14 and 17, read with the statutory scheme as a whole, require an application by a manager to relate to a specific establishment or agency. The same conclusion follows from regulations 8 to 10 of the 2002 Care Homes Regulations and regulation 4(3) and Schedule 3 of the 2002 Social Care Regulations.
3. The requirement for specific premises does not determine the strike-out question. Regulation 4A of the 2002 Tribunal Regulations confers a discretion. It does not require every appeal to be struck out merely because the premises have ceased to be available.
4. The Tribunal was entitled to adopt the practical approach identified in Ajibewa v Ofsted [2005] 539 EY: where premises are no longer available, it should consider whether there is a practical advantage in determining other issues. A future intention or likelihood of seeking registration, and the effect of the original refusal on employment prospects, may constitute such an advantage.
5. Summary strike-out is a strong course and requires appropriate caution, particularly where employment is affected. Article 6 of the Convention did not itself establish an absolute right to a substantive appeal, but was consistent with that cautious approach. The Tribunal remained entitled to strike out in an appropriate case.
6. The Tribunal was not required to conduct an exhaustive investigation into factual matters forming part of pending criminal proceedings. It could consider an adjournment or determine the appeal by reference to the material underlying the original decision. The appeal was dismissed.

Care Standards Tribunal The Deputy President refused the Welsh Ministers’ application to strike out Mrs H’s appeal on 1 October 2007.

High Court (Administrative Court) The appeal against that decision was dismissed on 24 January 2008.