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You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Marshall v Commission for Social Care Inspection [2006] EWCST 754(EA) (12 December 2006) URL: http://www.bailii.org/ew/cases/EWCST/2006/754(EA).html Cite as: [2006] EWCST 754(EA)

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Marshall v Commission for Social Care Inspection [2006] EWCST 754(EA) (12 December 2006)

Marjorie Angela Marshall

Appellant

v

Commission for Social Care Inspection

Respondent

[2006] 0754.EA

Before

Mr Stewart Hunter

(Nominated Chairman)

Ms Marilyn Adolphe

Ms Caroline Joffe

Sitting at the Care Standards Tribunal in London on 17^th and 18^th November 2006

Attendance

Ms Marshall attended and was unrepresented.

Ms Lisa Sullivan of Counsel instructed by Mills and Reeve, solicitors represented the Respondent.

Decision

Unanimous decision Appeal dismissed.

Appeal

1. This is an appeal by Ms Marjorie Angela Marshall pursuant to Section 21 of the Care Standards Act 2000, against a decision of the Commission for Social Care Inspection dated 31^st May 2006, to refuse to register her as a registered provider of a Care Home at 83 Pevensey Road, London E7 0AR.

Facts

2. Ms Marshall's passport indicates that she was born on 20^th March 1963. Ms Marshall told the Tribunal that she had been working in the National Health Service and private sector with vulnerable people for 23 years. The Curriculum Vitae that she supplied as part of her evidence, indicated that she had started agency work in 1979 working in various care settings and then had worked in a number of hospitals, the last of which being Springfield Hospital until 2002. Whilst at the Springfield Hospital she had carried out the functions of a ward clerk and had also done associated nursing which was described as, "dealing with forensic patients with long and short term mental health problems".
3. In 2002 she had set up and run her own Residential Care Home for three adult clients with mental health problems. This being a care home known as "Harvest Residential Care Home", at 36 Nursery Road, Thornton Heath, Surrey CR7 8RF". The Tribunal were provided with a copy of the inspection report from the Commission in respect of that home, arising from an unannounced inspection on 10^th November 2005. The focus of the visit was said to have been to confirm the general health and welfare of the service users as well as monitor compliance with the previous requirements and recommendations. In terms of what the service did well the inspection report stated as follows:-

"This family type home provides good support for the three service users to live as independently as possible and improve their quality of life".

Of the 15 previous requirements following an inspection in July 2004, only two requirements were said to be outstanding. Those requirements were that risk assessments needed to be put in place to safeguard service users on occasions when the home was left unstaffed. Secondly work was still needed with regard to the home implementing a quality assurance system and an annual development plan. The unannounced inspection in November 2005 resulted in two new requirements, firstly that the home needed to develop a system for recording the receipt and checks/balances of medication. Further that each staff member needed an annual job appraisal. The report also mentioned improvements that were necessary to the hot water system and to the bathroom.

Ms Marshall told the Tribunal that she had an NVQ level 3 and level 4.

4. On 26^th September 2005 Ms Marshall submitted an application form to the Commission for registration as a registered proprietor for a care home to be carried on at 85 Pevensey Road, London E7 OAR. The form indicated that it was Ms Marshall's intention to open the care home in December 2005.

Section 3 of the form was headed "personal information" and Ms Marshall gave her full name as being Marjorie Angela Marshall. The form then asked as follows:-

"Please state any other names by which you have been known"

to which a dash had been inserted in the form in response to this question.

Section 7 was headed "staffing" and in response to the question on the form,

"please state how you have satisfied or intend to satisfy yourself that the qualification, skills and experience of all staff are suitable and authentic"

the response was given as follows:-

"At interview and by obtaining two satisfactory references, POVA and CRB check".

Section 9 of the form was headed "Disclosure and Declaration" the notes endorsed on the form stated as follows:-

"You are required to declare any convictions, cautions and bind overs associated with social and healthcare in establishment/agencies which are covered by the Rehabilitation of Offenders Act 1974 (exceptions) Order 1975 which for the purposes for considering an applicant for registration includes any "spent convictions".

A criminal conviction will not necessarily lead to a refusal of your application. However, failure to disclose any conviction could lead to either your application being refused or, if your application is successful, cancellation of your registration if it is subsequently learnt that you have a criminal conviction".

In answer to the question "have you ever been convicted of a criminal offence, caution or bound over by any court?" Ms Marshall answered "no".

At the end of the form the applicant was asked to sign a declaration the first paragraph of which stated as follows:-

"I hereby declare that the information detailed above in any accompanying service specific information forms is accurate to the best of my knowledge. I understand that a false declaration may lead to the refusal of my application".

The form was signed by Ms Marshall.

5. The Tribunal heard from Ms Fay Bennett a regulation inspector employed by the Commission. She indicated that before an application for registration could be considered, applicants were required to apply for a Criminal Records Bureau enhanced level check. The procedure being for applicants to telephone the Criminal Records Bureau ("CRB") to request a disclosure application form quoting the Commission's registered body number. The CRB would then complete part of the form before forwarding it on to the individual for them to complete the rest.

In this case it appeared that Ms Marshall had then taken her CRB form into the Commission's office on 17^th October 2005. The Tribunal were shown a copy of a CRB disclosure application form signed by Ms Marshall, together with guidance notes on completing the application form. Paragraph A of the form was headed "Applicant's details" and gave as Ms Marshall's current address 10 Oaklands Avenue, Thornton Heath, Surrey and that she had been at that address since March 2000.

Section C was headed "Additional Personal Details". Under that Section question 20 asked "surname at birth (if different) and question 22 asked "any other surname used" both of these sections were blank on Ms Marshall's form.

Section D was headed "previous addresses" and this was also left blank.

The final section on the form, section H was "Applicant declaration and consent" question 66 asked, "do you have any unspent criminal convictions? to which the answer given by Ms Marshall was "no".

Ms Marshall's signed form including a declaration at paragraph 68 which stated that:-

"I confirm that the information that I have provided in support of this application is complete and true and understand that knowingly to make a false statement for this purpose is a criminal offence."

6. Ms Bennett's evidence was that Ms Marshall's application on paper appeared satisfactory and the supporting document supplied was adequate. Ms Bennett then conducted a "fit person interview" with Ms Marshall on the 20^th December 2003, the object of the interview was said to be to assess the competence and ability of the proposed provider to run a business. During the course of the interview Ms Bennett went through with Ms Marshall the application form that Ms Marshall had submitted and in particular drew her attention to her declaration that she had no criminal convictions, Ms Bennett asked her if anything had changed to which Ms Marshall's reply was recorded as being "no". Ms Bennett's assessment summary at the end of the interview indicated she found Ms Marshall demonstrated adequate knowledge /understanding of her role and responsibilities, although there were some gaps..
7. On 22^nd December 2005 Ms Bennett conducted a site visit at Pevensey Road to check whether the premises were suitable with Ms Marshall in attendance. Ms Bennett found the property to be reasonable, during the course of the site visit Ms Bennett said that Ms Marshall had told her that the London Fire and Emergency Planning Authority had visited the premises and Ms Marshall was waiting for their report.

On 28^th December 2005 Ms Bennett stated that she received a letter from the London Fire and Emergency Planning Authority to say that they were waiting to hear from Ms Marshall in regard to an inspection of the premises. On 16^th January 2006 Ms Bennett received a copy of a fire report dated 13^th January 2006 confirming that an inspection had been carried out and that this was satisfactory.

8. On 9^th February 2006 Ms Bennett received Ms Marshall's CRB Disclosure, a copy of which was produced to the Tribunal. This showed 4 convictions recorded against a "Miss Angela Wilkinson". The entries were as follows:-

(i) 8^th September 1997 convicted at Croydon Juvenile court of two offences of burglary and theft – fined £20 and £10.

(ii) 28^th March 1978 Croydon Juvenile court, one offence of shop lifting – supervision order for 2 years.

(iii) 29^th March 1984 three offences of theft by an employee – fined £150 and a compensation order of £121, plus a conditional discharge for two years.

(iv) On 12^th January 1989 at Torbay Magistrates Court an offence of assault occasioning actual bodily harm – fined £100.

In the light of these CRB disclosures Ms Bennett wrote to Ms Marshall and invited her to attend a meeting on 20^th February 2006. At that meeting were Ms Bennett and a fellow regulation inspector Mr Francis Czuba. After the meeting Ms Marshall was sent by the Commission a note of the meeting taken from notes made by Ms Bennett and Mr Czuba, a copy of which Ms Marshall signed on the 8^th March 2006.

9. During the course of the interview Ms Marshall was asked about her home address and she indicated that she had lived at 10 Oakland Avenue for 3 years up to March 2006 and previously at 5 Frant Road, Thornton Heath which she has owned for 5 – 6 years. Ms Marshall was also asked whether she had ever been known as Angela Wilkinson, she replied "yes, when I was at school, Wilkinson was my mum's name". Ms Marshall went on to say that she had started using the name Wilkinson from when she started at school and that she had changed her name by Deed Poll to Marshall before she left school when she got her passport.

When asked why she did not disclose the name Wilkinson on her application form to the Commission or on her CRB disclosure form, Ms Marshall had replied in relation to her application form, that she had not really looked at it and that it had been completed by her secretary and she had just signed it. As far as the CRB Disclosure application was concerned Ms Marshall was recorded as saying that she did not think that she had to complete all the sections.

Ms Marshall was then asked about the four undisclosed convictions revealed by the CRB process. Ms Marshall replied by saying:-

"To be honest I went to the police and they said that the convictions did not count, they said that they would not show. I thought that I did not have to mention them as I am not going through them currently. I did not do it, I was with the people at the time so they said that I was part of it. I was going through situations with friends, going to shops and getting myself involved. It's not that I was involved, I was in the group at the time when it happened".

Ms Bennett did not consider that Ms Marshall had offered a reasonable explanation as to why she had not disclosed her previous convictions to the Commission, accordingly she recommended to her manager that Ms Marshall's application for registration should be refused. The Tribunal heard from Ms Bennett's line manager, Mr David Forester, he said that he fully supported Ms Bennett's recommendation because it was critical that someone wanting to run a care home should demonstrate the necessary integrity and fitness. It was vital that they were open and honest with the Commission, it was important that the Commission could trust care home owners in circumstances where there might be some time between inspections and the Commission were reliant on care home owners to report matters of concern. The fact that someone had previous criminal convictions did not by itself mean that they would not be suitable, it would be necessary to look into the circumstances relating to those convictions.

As regards Ms Marshall's existing care home that was the responsibility of a different office within the Commission, Mr Forester had been in contact with that office who had confirmed that the home had been registered with the local authority and that there was a report at that time indicating that all the requirements for registration had been met, but there was no police or CRB check on file. The Croydon office of the Commission had recently written to Ms Marshall.

On 29^th March 2006 a notice of proposal to refuse registration was sent to Ms Marshall and she was made aware of her right to make written representations to the regional director of the Commission. Ms Marshall did make written representations in a letter dated 23^rd May 2006 which included the following statement:-

"In truth, the reason for my failure to make these disclosures was not so much as to deceive the CSCI, but was to protect myself from having to reveal this part of my younger life to those now close to me. I was deeply ashamed of my actions and attempted to put them behind me. Whilst this was a stupid act on my part in that it had elicited doubt and distrust from the CSCI, I have to say that it had been personally cathartic. I must, take issue with the Commission's belief that "I am not a person with integrity and good character…". I believe my conduct over the past 20 years has been exemplary and I have successfully managed my first care home for the past 5 years without any incidents of complaint."

On the 31^st May 2006, the Commission's regional director for the South East Region wrote to Ms Marshall having considered her representations, with the Commission's view to "adopt a notice of proposal to refuse registration".

10. On 21^st July 2006 Ms Marshall appealed to this Tribunal. Amongst her reasons for appeal was the following Statement:-

"I fully acknowledge the seriousness of my actions and the duty of care the CSCI owes to the vulnerable members of our society. However, I vehemently contest their assertions concerning my integrity and character. I suggest that they have not taken sufficient account of the fact that I have successfully owned and managed an almost identical small residential care home in Thornton Heath since 2001. I am proud of my achievement in setting this home up from nothing and keeping it operational with the increasingly arduous legislation imposed by the CSCI. If I was not a person with integrity and good character the establishment would most certainly have failed to achieve the exacting standards now required".

11. Ms Marshall gave evidence at the Tribunal hearing. She indicated that she had been working since she was aged 19 including 23 years working in the mental health field with vulnerable adults both in the NHS and in the private sector. She was a single parent with a daughter in private education. She was a care team leader at her church.

Ms Marshall confirmed that her birth name was Wilkinson and that she changed it by Deed Poll when she was about 16 or 17 to Marshall and had always used that name since. She was unable to say why the criminal convictions dated 28^th March 1984 and 12^th January 1989 were in the name of Wilkinson.

In relation to the application form to the Commission dated 26^th September 2005, Ms Marshall said that it had been completed by her personal assistant and she had not informed her that she had any criminal convictions. She had not read any of the form before signing it. She had noticed later that the name Wilkinson had not been enclosed as a former name and that no convictions were shown on the form. Ms Marshall had felt embarrassed to telephone the Commission and tell them about her criminal convictions. Ms Marshall said that she had been under a lot of stress at the time the application was completed with matters concerning the opening of the new home and dealing with her father who was ill.

Ms Marshall said that she had consulted the police for advice about the disclosure of past criminal convictions around 2001 before she decided to take on her present business. Ms Marshall confirmed that going to the police had nothing to do with her present application and agreed that she knew at the time of the application in this case, that she needed to disclose all convictions and that her knowledge on this matter had changed since her advice from the police in 2001.

12. In relation to the CRB Disclosure application form, Ms Marshall said that her manager had made a telephone call to the CRB to arrange for a form to be posted and that during that telephone call she had given the CRB basic information about Ms Marshall, for example her date of birth and address. Ms Marshall said that she recalled being asked by her manager about Oaklands Avenue, but she could not recall whether she had been asked how long she had owned the property or how long she had been living at that address. In fact she had bought the property in 2000 and moved in to the property in 2003. Ms Marshall confirmed that the handwriting on the CRB form was hers and that she should have included the name Wilkinson as a former name, but had overlooked to do so as she was under a lot of stress at the time.
13. In respect of both the application form to the Commission and the CRB Disclosure form, Ms Marshall told the Tribunal that she was concerned that the Commission would find out about her previous convictions and that they might hold her earlier dishonesty and the assault charge against her and that is why she had not disclosed them. She was not happy with the earlier part of her life. She was concerned that full disclosure would hold her application back and affect her future.
14. In respect of the site meeting with Ms Bennett, in December 2005 she confirmed that she had said that she was awaiting the fire report because she believed that the fire authorities had visited. A visit had been arranged but Ms Marshall had not been able to attend.
15. Ms Marshall confirmed that she had attended a meeting with Ms Bennett and Mr Czuba on 20^th February 2006, but she felt she had failed to give a full explanation of matters in her application form and CRB Disclosure form. In the weeks leading up to the interview she had been dealing with her father's illness and his subsequent death, her father being in America and had attended his funeral on 14^th February 2005, arriving back in this country two days before her interview with Ms Bennett and Mr Czuba. She said that she did not know Ms Bennett sufficiently well to discuss the pressures that she had been under at the time of completing the application forms and when attending the interview.

In the final submission to the Tribunal Ms Marshall apologised for her non disclosure, it related to a part of her life that she did not like to deal with and that she had been under a lot of stress.

16. Ms Marshall produced witness statements from four character witnesses of whom three gave evidence before the Tribunal. The first of whom was Ms Vivienne Dillon who has been employed Ms Marshall in her existing care home for four years presently as Acting Manager. Ms Dillon said that she sits in on interviews conducted by Ms Marshall for staff and gave out CRB forms. She had not known about Ms Marshall's previous convictions before the Tribunal hearing. She was grateful to Ms Marshall for the way that she had been treated and considered Ms Marshall to be a caring person.

The Tribunal also heard from Mr Robert Robinson, he was a social worker and had visited the care home in Thornton Heath on a number of occasions over the past two years and offered advice to Ms Marshall about various issues connected with the home. He had not been employed by the home, but had provided advice in a voluntary capacity. There was the possibility of him becoming more involved with Ms Marshall's second care home should she be registered to run the same.

He had not known about Ms Marshall's previous convictions until her registration had been refused by the Commission. He said that it had been an extremely difficult time for Ms Marshall and she had been under a lot of stress. He acknowledged that it was important for applicants to be honest and to give full information when applying for positions in the care sector.

The third witness who gave evidence on behalf of Ms Marshall was Ms Veronica Walters who said that she had known Ms Marshall for four years having met her when assessing her as a potential foster carer. The fostering had not proceeded because Ms Walters had been concerned that Ms Marshall was already very busy and that part way through the process Ms Marshall had disclosed that as well as working for the NHS, she was also running her own care home.

After the conclusion of the fostering application Ms Walters had become involved in discussions regarding the running of the "Harvester" care home and in particular the possibility of Ms Walters being employed in some capacity in the future. Ms Walters also said that she had been shocked to discover that Ms Marshall had not disclosed her previous convictions in her application to the Commission, although that had not affected their friendship Ms Walters had been aware that Ms Marshall was under a lot of stress at the time with her mother and father both being ill and then her fathers subsequent death.

A written Statement was submitted by Ms Marshall from Pastor Enid Steward dated 17^th October 2006 who indicated that she had known Ms Marshall in excess of 5 years in the capacity of being a volunteer within the church community and she believed that Ms Marshall was able to offer "integrity, commitment, reliability a spirit of excellence and a genuine love of people…"

Conclusion and decision

The Law

16. Section 11 of the Care Standards Act 2000 ("CASA") sub section (i) states as follows:-

"Any person who carries on or manages an establishment or agency of any description without being registered under this Part in respect of it shall be guilty of an offence."

Section 12 (2) indicates that an application for registration must (a) give the prescribed information about prescribed matters and (b) must give any other information which the registration authority reasonable requires the applicant to give and the application must be accompanied by the prescribed fee.

Section 7 of the Care Home Regulations 2001, ("the Regulations") states that "a person shall not carry on a care home unless he is fit to do so". Section 7 (2) sets out the criteria that a person must satisfy to be considered a fit person to carry on a care home, one of which is that the individual concerned must satisfy the requirements set out in paragraph (3) of Section 7 that paragraph reads as follows:-

"The requirements are that:-

(a) He is of integrity and good character; and

(b) He is physically and mentally fit to carry on the care home and;

( c) Full and satisfactory information is available in relation to him in respect of the following matters, being matters specified in paragraphs 1 – 5 and 7 of schedule 2 of the Regulation.

In this case it is the Commission's contention that Ms Marshall has not established that she is of integrity and good character.

17. Where does the burden of proof lie in determining whether an applicant is "of integrity and good character"? This was a matter that was dealt with by the Court of Appeal in Jones v the Commission of Social Care and Inspection (2004) EWCA 1713. At paragraph 13 of their decision Lord Justice Brooke stated as follows:-

"I have no hesitation in holding that an applicant must demonstrate to the Commission and, if there is an appeal to the Care Standards Tribunal that he is a fit person before he can be qualified for registration."

The next question that arises is how should an applicant's integrity and good character be considered in the light of previous criminal convictions? In the High Court again the case of Jones (2004) EWHC 91, Mr Justice Sullivan stated at paragraph 30:-

"I would accept the proposition that in requiring an applicant for registration to be of integrity and good character, Regulation 9 (in this case Regulation 7) should not be construed as requiring perfection. It is dealing with the qualities required of human beings who are necessarily fallible. While George Washington is reputed to have been unable to tell a lie, few people can hope to live up to such a stringent standard. Even if in the past an applicant for registration has been dishonest, or has been convicted of a criminal offence, or has been found guilty of professional misconduct, he or she may still, at the time of the application of registration and/or by the time of an appeal to the Tribunal be fairly described as a person with integrity and good character".

Conclusions:

In respect of Ms Marshall's date of birth, on a balance of probabilities we accept her date of birth as being 20^th March 1963 as that is consistent with the date of birth shown in her passport. Although we did not have the opportunity of seeing Ms Marshall's birth certificate nevertheless we accept her evidence that her name at birth was Wilkinson. Furthermore that is the name in which she was convicted on 8^th September 1977, when she was 14 years of age.

There is some confusion about how, why and when Ms Marshall changed her name from Wilkinson to Marshall. She told Ms Bennett and Mr Czuba at the interview on 20^th February 2006 that she thought it was before she left school when she got her passport. She offered to fax a copy of the Deed Poll to the Commission, but that offer was not taken up. Mr Czuba told the Tribunal that he accepted what Ms Marshall had told him and Ms Bennett about the change of name during the interview. The Commission say that this is inconsistent with Ms Marshall being charged in the name of Wilkinson after the age of 16 or 17 in other words in relation to the conviction on 28^th March 1984 when Ms Marshall would have been 21 and on the 12^th January 1989 when she would have been 25. Although the Tribunal heard no direct evidence it does seem possible that Ms Marshall could have been charged in her birth name. Even though she had changed her name by Deed Poll it does not necessarily imply in our view that Ms Marshall had herself reverted to the name of Wilkinson on these occasions.

18. There was also some confusion surrounding the date when Ms Marshall started running her present care home and when she gave up her previous employment with the National Health Service. Ms Marshall's Curriculum Vitae stated that she had left the Springfield Hospital in 2002 and at that date had started up her own residential care home. However the evidence from Ms Walters was that Ms Marshall did not give up her full time NHS job until January 2005.
19. It was also stated by the Commission that Ms Marshall had tried to mislead Ms Bennett in relation to the fire inspection, when she told Ms Bennett during the site visit that the fire authorities had visited the property and that she was awaiting a report. It appears that the fire authority may have visited by the time of Ms Bennett's site visit, but had not met Ms Marshall and accordingly had not carried out their inspection. It does seem possible in those circumstances that Ms Marshall may have been confused as to when the fire inspection report was going to be available when she spoke to Ms Bennett.
20. The principle issue in this case was however the non disclosure by Ms Marshall of information in her application form for registration to the Commission and in her CRB Disclosure form.

In respect of the application form Ms Marshall did not give her previous name of Wilkinson and indicated that she had no criminal convictions.

As regards the CRB form there was an issue regarding how long she had lived at her present address i.e. 10 Oaklands Avenue, the date of March 2000 had been included whereas in fact Ms Marshall acknowledged that she had been living at the property only since 2003. However, as she bought the property in 2000 we consider that there might have been some genuine confusion as to what information needed to be included on the form. However, there appears to be no confusion in Ms Marshall not including within the CRB Disclosure form details of her previous name, namely Wilkinson.

21. Ms Marshall offered a number of different explanations for her non disclosure in respect of the two forms.

At her interview on 20^th February 2006 she said that she had not read the original application form before signing it and in respect of the failure to disclose previous convictions she said that she had been to the police and had been told that the convictions did not count and that they would not show. In terms of the criminal convictions themselves her comment had been that she had not done anything but had been involved in a gang that was involved.

In her written submission to the Commission dated 23^rd May 2006 she indicated that her reason for not making these disclosures was "not so much as to deceive the CSCI as to protect myself from having to reveal this part of my younger life to those now close to me…".

In her reasons for appeal to this Tribunal she vehemently contested the assertion being made by the Commission concerning her integrity and character.

It was only at the Tribunal hearing that she indicated that her visit to the police had been in 2001 for advice about "spent" convictions and had nothing to do with her present application to the Commission. Ms Marshall accepted that she knew about CRB procedures, having applied for CRB checks on staff employed by her and therefore we find it difficult to believe that she was not aware that all convictions needed to be disclosed. Indeed Ms Marshall eventually accepted during the course of the hearing that the reason that she had not disclosed the previous convictions was because she was concerned that those convictions for dishonesty and assault would be held against her by the Commission and would "hold back my life"

We therefore conclude that the decision by Ms Marshall to omit her name and details of previous convictions from the application form was a deliberate attempt on her part to deceive the Commission into believing that she had no previous convictions and similarly in relation to her non disclosure of her former name of Wilkinson on the CRB form that this too was an attempt to prevent the Commission from finding out about her previous convictions.

22. Ms Marshall told us that she was undergoing a considerable amount of stress at the time she had completed her application form, in relation to her mother's illness and also that of her father who was in America. She was also dealing with the purchase of new premises for a care home and dealing with an unsatisfactory manager in her present home. We were also told that her father died in the early part of 2006 and that she returned from his funeral in America two days before her interview with Mr Bennett and Mr Czuba on 20^th February. However, at no point did Ms Marshall convey to the Commission either at her interview on 20^th February or at any other time that she was under stress or mention her father's death.
23. As already indicated following the Court of Appeal's decision in Jones, the burden of proof in terms of deciding whether a person is someone of integrity and good character, rests with the applicant in an application to the Commission to be registered as an owner of a care home. The fact that Ms Marshall has previous convictions would not in itself necessarily have meant that the Commission would not have registered her. This was a view put forward by Mr Forster and indeed in the Jones case in the High Court Mr Justice Sullivan indicated that there could be circumstances where somebody could be described as a person with integrity and good character notwithstanding that they had earlier had criminal convictions, if a person could be shown to have changed in the intervening period.

In looking at the evidence presented by Ms Marshall, we have taken into account the fact that she is currently running a care home and has done so for some years and also the evidence presented by her character witnesses. The witnesses that gave evidence on behalf of Ms Marshall at the Tribunal were Ms Vivienne Dillon, Mr Robert Robinson and Ms Veronica Walters. In terms of the weight we attach to their evidence, we bear in mind that they are all close friends of Ms Marshall and had only been told relatively late in the day about her previous criminal convictions. In the case of Pastor Enid Stewart whilst we accept Ms Marshall's role in the church, nevertheless we did not have the opportunity to question Pastor Stewart or to establish whether in giving her witness statement Pastor Stewart was aware of Ms Marshall's previous convictions.

24. The requirement in the Regulations for a person to be of integrity and good character goes to the fact that a registered provider is responsible for the care of vulnerable adults and also needs to be someone that the Commission can rely upon to be open with them and to disclose any matters of concern when they arise, particularly in circumstances where there can be considerable gaps between Commission inspections. Ms Marshall accepted during the Tribunal hearing that she had not disclosed her previous convictions because she was concerned about how they would be dealt with by the Commission and in our view tried to deceive them by not disclosing the previous convictions and not disclosing an earlier name which would have revealed those convictions on a CRB search. It was not until her closing statement that Ms Marshall apologised to the Commission for having misled them. Ms Marshall also in evidence said that it was not her style to judge people, that if someone applied to her for a job she would not find against them if they had criminal convictions but look at what they were going through at the relevant time, which gives us concern about her judgement in such matters.
25. The burden of proof lies with Ms Marshall to satisfy us that she can be considered to be a person of integrity and good character. Given her failure to be open with the Commission in her application for registration and the various explanations given by her since then, we are not confident that she would not withhold information from the Commission in the future and on that basis we are not so satisfied.

Conclusion

26. Our decision is unanimous

APPEAL DISMISSED.

Mr Stewart Hunter

(Nominated Chairman)

Ms Marilyn Adolphe

Ms Caroline Joffe

Date: 12^th December 2006