Marshall v Commission for Social Care Inspection

On an appeal to the Care Standards Tribunal against cancellation of care-home registration, the registered person bears the burden of establishing fitness, integrity and good character where those matters are in issue. The same approach applies to other grounds of cancellation. The Tribunal should not impose different burdens for different issues or create unnecessary procedural complexity. It may, however, determine fitness as a preliminary issue and regulate its procedure accordingly. On a statutory appeal confined to points of law, the High Court must not re-evaluate factual findings unless the decision is perverse, irrational or contradicted by the only reasonable conclusion.

The appellant operated a residential care home. The Commission for Social Care Inspection cancelled her registration under the Care Standards Act 2000 after concerns about the operation of the home and her previous dishonest omissions and representations. The Care Standards Tribunal dismissed her appeal.

The appellant appealed to the Administrative Court under section 11 of the Tribunals and Inquiries Act 1992, alleging errors concerning the burden of proof, the Tribunal’s staged procedure, fairness, and the evaluation of the evidence. The central questions were whether the appellant or the Commission bore the burden on the cancellation appeal, whether the Tribunal could determine fitness first, and whether the Tribunal’s factual conclusions disclosed an error of law.

1. Appeal dismissed. The Tribunal’s decision to dismiss the appeal was upheld. The appellant was ordered to pay the respondent’s costs, summarily assessed at £7,169.10 including VAT.
2. Under the statutory scheme, a person may not carry on a care home unless fit to do so, and fitness includes integrity and good character. Where fitness or integrity is in issue on an appeal against cancellation, the person seeking to continue the registration must satisfy the Tribunal that the requirement is met. The fact that the person was previously registered does not alter that position. The protection of vulnerable service users is central to the scheme, and the relevant facts concerning the operation of the home are particularly within the service provider’s knowledge.
3. The same approach applies where cancellation is based on breaches of regulatory requirements or false or misleading information. Different burdens should not apply to different issues in the same appeal, because the same facts may bear both on character and on the operation of the home. The Tribunal’s staged analysis was therefore conceptually overcomplicated, but the correct result was that the appellant bore the burden throughout.
4. Regulation 20(1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 entitled the Tribunal to regulate its own procedure. It was permissible to determine fitness as a preliminary issue. The procedure was not unfair: the appellant’s evidence was heard, the respondent’s witnesses were available for cross-examination, and no objection had been taken when the procedure was proposed.
5. Article 6 of the Convention, as scheduled to the Human Rights Act 1998, added nothing to the applicable common-law fairness requirements. The High Court’s jurisdiction was confined to points of law. It was not entitled to re-evaluate the Tribunal’s factual assessments. An error of law would arise only where the decision was perverse or irrational, or where the true and only reasonable conclusion contradicted it, applying Edwards (Inspector of Taxes) v Bairstow and Harrison [1956] AC 14.
6. The Tribunal was entitled to regard the appellant’s repeated dishonesty, including her deliberate lie concerning an outstanding criminal-record check, as demonstrating a fundamental defect in suitability and integrity. Its decision fell within the range of judgment open to it.

The judgment states that the appellant appealed to the High Court under section 11 of the Tribunals and Inquiries Act 1992 from the Care Standards Tribunal’s decision dismissing her appeal against cancellation of registration. The Administrative Court dismissed the appeal and made a costs order.