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Fairburn (The Old Rectory Nursing Home, Barham, Ipswich) v National Care Standards Commission [2002] EWCST 76(NC) (16 December 2002)

Dr R A Fairburn (The Old Rectory Nursing Home, Barham, Ipswich)
v
National Care Standards Commission
[2002] 0076.NC

ORDER

His Honour Judge David Pearl (President)
Mrs Sue Last
Mrs Claire Trencher

1. On hearing Mr R McCarthy QC on behalf of the Respondent and Dr R Fairburn in person, the following DIRECTION UNDER s 21(5)© OF THE CARE STANDARDS ACT 2000 is made by agreement.

2. The following is the Statement of the National Care Standards Commission’s position. The Commission will interpret the proposed conditions setting the categories of service users to be accommodated in the Old Rectory Nursing Home, Barham, Ipswich as follows.

   "The OP category allows the accommodation of and provision of care services to service users whose sole or primary need for accommodation and care is because of illness, disorder, disability, infirmity or dependency which results from their being elderly (this would include treatment for or convalescence from physical or mental conditions resulting from ageing). Service users may also be properly accommodated when suffering from degrees of these various physical or mental conditions which do not result from the service users being elderly but only if these are secondary reasons for their needing accommodation and care. Service users may also be properly accommodated if subsequent to their entry to the home, they are assessed as being terminally ill and the home has the facilities, staffing and services to meet their needs. This interpretation by the Commission may be cited by the provider as a statement of its formal stance and in any future dispute or proceedings."

3. On the basis of this Statement as contained in paragraph 2 above, it is ordered that the conditions as set out in this paragraph shall have effect in respect of the Old Rectory Nursing Home, Barham, Ipswich.
   • The total number of service users to be accommodated at any one time shall not exceed 27 but may be up to 29 including 4 day care service users
   • Service users may be accommodated in the home if they come within one or other of the following categories of service users:

     OP old age (defined by reference to the service users’ presenting conditions and chronological age) not falling within any other category set out in Schedule 7 Part II paragraph 7 of the National Care Standards Commission (Registration) Regulations 2001 (Categories DE dementia and TI terminally ill being amongst those other categories as explained by Annex F to the Guidance entitled "NCSC – Transitional Provisions and Transfer of Registration" (circular HSC 2001/21: LAC(2001)30).

4. We heard argument on whether the Tribunal should go on to allow the appeal (as urged on us by Dr Fairburn), to dismiss the appeal (as urged on us at least initially by Mr McCarthy), or as a third alternative whether our decision is properly confined to the Direction above.

5. Regulation 23 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 sets out the responsibilities and powers of the Tribunal in connection with "The decision". The Regulation does not state that an appeal must be allowed or dismissed. The decision must be recorded without delay in a document signed and dated by the Chairman, and that document must state the reasons for the decision and what, if any, order the Tribunal has made as a result of the decision.

6. The decision in this case is that the conditions set out in paragraph 3 above shall have effect in respect of the appellant establishment. The reason for the decision is that the Respondent set out the Statement contained in paragraph 2. The Order of the Tribunal therefore is that Direction under s 21(5)© of the Care Standards Act shall be applicable immediately.

7. It is only where Regulation 33(1) applies that the Tribunal is under a duty to dismiss the proceedings. This is when the appellant notifies the Secretary in writing, or states at a hearing, that he no longer wishes to pursue the proceedings. In this case, the appellant has done neither of these things.

8. The appellant urged on us that the appeal should be allowed. Regulation 33(2) is the only Regulation that imposes a duty on the Tribunal to allow the appeal, and this is when the Respondent notifies the Secretary in writing or states at a hearing that he does not oppose or no longer opposes the proceedings. This has not happened in this case.

9. It is our opinion that in the circumstances of this case, where the issue has narrowed during the course of the proceedings to the issue of the appropriate condition under s 21(5)©, then the Tribunal’s function is complete when it directs what conditions it thinks fit shall have effect in respect of the establishment. Nothing is gained by a detailed examination of the pleadings, or indeed of the recent correspondence between the parties. The matter is concluded by the decision of the Tribunal under s 21(5)© with the accompanying Order.

10. It follows from what we have said above that an application for costs by the appellant under Regulation 33(2) is bound to fail. The appellant also asked us, in effect, to consider making a costs order under Regulation 24(1). In this context we have looked at the pleadings in this case, and looked at the recent correspondence between the parties. The test is a high one. We must be of the opinion that a party has acted unreasonably in bringing or conducting the proceedings. We are not of that view. For one thing, the original grounds of appeal requested that the Registration Form be amended to include DE and TI. There was a Directions Hearing on 9^th September 2002 and the original grounds of appeal remained as the basis of the appeal at that time. Although there has been some uncertainty as to the meaning of Conditions under the new regime, the Commission has been steadfast in its view that the transfer arrangements were to be automatic and that the service category and service users categories would reflect the existing provision but be brought up to date to reflect the new terminology of the Care Standards Act 2000. It has also been steadfast in its view that the intent and purpose of the transitional regime is to effect the transfer of the regulatory status from the previous regulators to the Commission without in any way granting either any greater capacity or any lesser capacity on homes. We are not persuaded, even on the lowest of standards, that the Commission has acted unreasonably in the conduct of the proceedings. Regulation 24(1) is not satisfied and we make no order as to costs.

11. The final matter that we must consider is whether to take the opportunity in this Decision and develop the Guidance Note dated 29^th November 2002 in In Re: A Care Home [2002] 32 NC and in particular to address the issues posed in paragraph 17 of that Guidance Note. We have decided not to embark on any additional guidance, in part for the reservations set out in that earlier note, but also because it is our view, as indeed the view also of Mr McCarthy as we understand it, that a Guidance Note on those matters would not necessarily be of any help in the resolution of any of the outstanding "Transfer of Registration" cases.

His Honour Judge David Pearl (President)
Mrs Sue Last
Mrs Clare Trencher

December 16^th 2002.