Julia Anne Massey-Catchpole
v
Commission for Social Care and Inspection
[2007]1188.EA and [2008] 1335.EA

-before-

Stewart Hunter
Tribunal Judge

Telephone hearing on 5th December 2008

DECISION ON APPLICATION TO STRIKE OUT

Representation
Ms N.A.Lloyd, solicitor advocate, represented the Applicant
Mr.C.Sadler, solicitor represented the Respondents.
The Applicant and Mr Catchpole also attended.

Application
1.   The Respondents applied on the 27th November 2008 for an Order under Regulation 4A of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, (“the Tribunal Regulations”) to strike out the Applicant’s appeals on the basis that they are misconceived and/or have no reasonable prospect of success.

Background
2.   The Applicant and her then husband Mr Massey were registered as the registered persons in respect of a residential care home known as Argens House, situated in Eynsford, Kent. On 1st April 2002, Argens House was registered as a care home under the Care Standards Act. Since February 2005, the Applicant has been the sole registered provider and the registered manager in respect of the home.

3.   The Respondents states that the registration for Argens House allows the Applicant to admit up to three service uses for personal care in the category, “MD – Mental disorder, excluding learning disability or dementia” with an additional condition of registration, which permits the provision of care and accommodation to one service user, whose date of birth is 28th April 1967, who has a dual diagnosis of learning disability and mental health problems.

4.   I was told that there are currently 2 residents at Argens House, but there is a third who was at the home, who is currently sectioned and has expressed a wish through her advocate to remain with the Applicant.

5.   On the 31st October 2007, Mr David Vowles, a Deputy Regional Director wrote to the applicant on behalf of the Respondents to confirm a proposal to cancel the Applicant’s registration as manager of Argens House. The letter included the following paragraph:
“I find that there have been a number of occasions when the Commission has found there to be a breach of regulations. Some of these are more serious than others. The overall picture is of a repeated failure to comply with regulations over a period of years, such as ensuring safe administration of medicines and I respect of ensuring adequate and suitable staff, for which there was a requirement made in every year since 2003. Both of these affect the safety of residents and as the registered manager you are expected to ensure the safety and welfare of the people living in Argens House. Although a small home, the regulations still apply to all homes of this size.”

6.  Mr Vowles also considered a proposal to cancel the Applicant’s registration as a provider, but declined to uphold the proposal, citing the fact that Argens House had been the current resident’s home for many years. He stated:
“I recognize the long-term commitment that you have made to the residents and the service, which is evidenced in good outcomes in other areas of inspection reports. I think that there may be a small window of opportunity for the home to continue if there is a new manager, and new approach that recognises the need to comply with regulations and national minimum standards and some resolution of the financial matters.”  

7.   On the 29th April 2008, the solicitors acting for the Respondent, Beven Brittan wrote to the Tribunal. Their letter contained the following;
“……on 14th April 2008 the Respondent received notification from the Insolvency Service that the Appellant was adjudged bankrupt by an order of District Judge Diamond sitting in the Medway County Court on 5th September 2007. The Respondent had not previously received any notification of bankruptcy from the Appellant herself, despite the requirement of Regulation 39(f) of the Care Home Regulations 2001, (“the Care Home Regulations”) for her to give such a notice.”

The letter went on to say that the Respondents had confirmed with the placement authority that they had no intention of removing the service users as a result of the bankruptcy.

8.   The Respondent subsequently issued a notice cancelling the Applicant’s registration as provider of Argens House, in respect of which the Applicant appealed. The Applicant’s appeals against cancellation of her registration as provider and manager have now been consolidated by the Tribunal. The matters are listed for a full hearing commencing on the 7th January 2009.

9.   A schedule of allegations was produced by the Respondents dated 18th September 2008, in pursuance of an Order of His Honour Judge Pearl dated 11th June 2008. The schedule made provision for the Applicant to indicate which of the allegations she admitted, which she denied and which were, “Admitted but solely because of insufficient funding being provided”. The Applicant has now responded and in the process made a number of admissions.

10.   The Respondents have produced a witness statement from Mr Oliver Burke dated 27th November 2008, in which he states that he is employed by the Insolvency Service as an Assistant Official Receiver. In that statement Mr Burke confirmed that a Bankruptcy Order was made against the Applicant in the Medway County Court on the 5th September 2007, and he attached a copy of the Order.

11.   Mr Burke goes on to state that under the provisions of section 279(1) of the Insolvency Act 1986 a bankrupt is discharged from the proceedings after a period of one year. The Applicant’s public examination before the court had been fixed for the 21st April 2008, but the Applicant had not attended. The court had made an Order adjourning the public examination generally and suspended the running of the discharge period stating:
“…until such time as the Official Receiver reports to the court that he is of the opinion that the bankrupt has complied with her obligations under section 291 of the Insolvency Act 1986.” 

A copy of the Order of the 21st April 2008 was appended to Mr Burke’s statement.

12.  At paragraph 8 of his witness statement Mr Burke indicated that the Official Receiver’s enquiries were still ongoing. It was however open to the Applicant to make an application to the court at anytime to lift the suspension, which the Official Receiver could oppose. Mr Burke went on to state:
“Even if the suspension of the running of the discharge were to be lifted, Mrs Massey- Catchpole would have to wait a further period of over four months before receiving her discharge from bankruptcy.

9.  I therefore confirm that Mrs Massey- Catchpole will not be discharged from her bankruptcy until March 2009 at the very earliest.”

13.   In his witness statement Mr Burke also made reference to the ownership of Argens House. At paragraph 7 he stated:
“As part of the enquiries which the Official Receiver made of Mrs Massey-Catchpole, it has been established that in August 2006 she sold Argens House at 7 Birch Close, Eynsford, Kent to her son, Guy Massey for £850,000.”

14.  At the telephone hearing Ms Lloyd said that the Applicant could not challenge Mr Burke’s evidence and it was accepted that the Applicant was bankrupt and did not own Argens House.

The Law
15.  The Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 came into force on 3rd November 2008.

16. The Transfer of Tribunal Functions Order 2008, Schedule 4, 3(3) states as follows:
“The First-tier Tribunal or Upper Tribunal as the case may be, may give any direction to ensure that proceedings are dealt with fairly and in particular may;
(a)	apply any provision in procedural rules which applied in proceedings before 3rd November 2008 or
(b)	disapply provisions of Tribunal Procedure Rules.”

17.   Regulation 4A (1) of the Tribunal Regulations provides:
“ (1) The President or the nominated chairman may at any time strike out an appeal or application for leave mentioned in regulation 4 on the grounds that –
(a)	it is made otherwise than in accordance with the provision in these Regulations for-
(i)	initiating that appeal; or
(ii)	applying for leave;
(b)  it is outside the jurisdiction of the Tribunal or is otherwise misconceived;
(c)      it is frivolous or vexatious: or
(d)   the President or nominated chairman considers that the appeal or application has no reasonable prospect of success.”

18.   Regulation 7(5) of the Care Home Regulations provides:
“A person shall not carry on a care home if-
(a)	he has been adjudged bankrupt or sequestration of his estate has been awarded and (in either case) he has not been discharged and the bankruptcy order has not been annulled or rescinded;…”

Respondent’s submissions
19.   These were contained in a skeleton argument dated 27th November 2008 and in addition Mr Sadler made oral submissions at the telephone hearing.

20.  In essence the Respondent submits that the Applicant will be an undischarged bankrupt at the date of the full Tribunal hearing in January 2009. That in relation to the Applicant’s appeal against the cancellation of her registration as a provider [2008]1335 E.A. Care Home Regulation 7(5) is mandatory and that her appeal must accordingly be dismissed, the Tribunal being required to consider the position as at the date of the hearing.

21.  It was also stated that the Applicant had in her response to the “Schedule of Allegations”, made numerous admissions. In addition the Applicant no longer owned Argens House

22.   In respect of the Applicant’s appeal against the decision to cancel her registration as a manager [2007] 1188 E.A, it was submitted that if the appeal relating to the Applicant’s registration as a provider [2008] 1335 E.A. was struck out, then the remaining appeal would be in respect of a care home which nobody would be registered to carry on and it would therefore have to close. In those circumstances there would be no “practical advantage” to the Applicant continuing with the appeal. I was referred to the case of Welsh Ministers v Care Standards Tribunal and H [2008] EWHC 49 (Admin) and Heritage Court Ltd v CSCI [2007] 1135.E.A.J.P).

23.   It was reiterated by Mr Sadler that the Applicant no longer owned the home and that it was the Respondent’s understanding that Law of Property Act receivers had been appointed as a result of the Applicant’s son having defaulted on the mortgage repayments.

Appellant’s Submissions
24.  These were contained in a Skeleton argument from Ms Lloyd dated 1st December 2008, her oral submissions at the hearing and the contributions from the Applicant and Mr Claypole.

25.  The Applicant states firstly that she was deregistered as both provider and manager for reasons unconnected with the bankruptcy situation.
26. Secondly that the Respondent had been aware for many months that the Applicant was an undischarged bankrupt, but had made no earlier application and that it would be wrong to delay her right to a hearing so close to the full hearing date, particularly in circumstances where time and costs had been spent on preparation.

27.  It was claimed on behalf of the Applicant that her entire financial difficulties where due to the “improper and unjust fees”, from the Kent County Council to care for the 3 residents in her care. Kent County Council had only now agreed to reassess the residents, despite the Applicant having been asking them to do this for at least the last 4 years. The Kent County Council had also been ignoring the Applicant’s request to become a supported living home.

28.  It was proposed by the Applicant that the full hearing should be postponed to allow the issue of fees and of supported living to be determined by Kent County Council. That if fees were properly set and 2back fees” paid then the Applicant believed she would be in a position to discharge herself from bankruptcy.
29.   It was further submitted that in any event the Applicant’s husband or son could become the registered provider and a manager could be employed.

30.   The issue with the mortgage on Argens House, had been referred to the Financial Services Authority due to “the mis-selling of a mortgage…” That even if the home was re-possessed, the Applicant could rent suitable accommodation, whilst the bankruptcy was resolved.

31.   The residents wished to stay with the Applicant and it was not in their best interests to be removed.

Tribunal’s conclusions
32.   In view of the fact that the first appeal was received as long ago as 2007 and given the number of directions that have been made to date, in order to ensure that proceedings are dealt with fairly, I direct pursuant to The Transfer of Tribunal Functions Order 2008, that the Respondent’s application will be dealt with under Regulation 4A (1) of the Tribunal Regulations.

33.  It is not disputed that the Applicant was made bankrupt on the 5th September 2007 and that the bankruptcy has not been discharged. It is also not disputed that in August 2006, Argens House was sold by the Applicant to her son Guy Massey and that it remains in his ownership. Mr Sadler in his submissions asserted that Law of Property Act receivers had been appointed, this assertion was not challenged by the Applicant.

34.  I propose to deal firstly with the Respondent’s strike out application in relation to the Applicant’s appeal against cancellation of her registration as a provider. The Respondent relies in part on the Applicant’s response to the Schedule of Allegations in which it is said that the Applicant made numerous admissions. I have not an opportunity to study that document, but I accept that some admissions have been made. However, whilst accepting that the Schedule itself has only been in existence a relatively short period of time, the Applicant’s appeal was lodged sometime ago. I would not therefore be prepared to strike out the appeal on this ground, given the close proximity of the full hearing date.

35.   The Respondent also relies on the Applicant’s bankruptcy and I accept that in the context of a registered provider, Regulation 7(5) of the Care Home Regulations makes it clear that a person, “..shall not” carry on a care home if they are an undischarged bankrupt. The Applicant submits that her deregistration was for matters unconnected with her bankruptcy, that seems to me, even if correct, to be irrelevant given the mandatory nature of Regulation 7(5). It is also said that the Respondents have known about the Applicant’s bankruptcy for sometime, I accept that they appear to have known since April 2008, but until recently there remained the possibility that the Applicant could have been discharged before the January hearing. I accept Mr Sadler’s submission that it is the Applicant’s position as at the date of the full hearing in January 2009 that is relevant. On the basis of Mr Burke’s evidence, which was not disputed, there is no prospect of the Applicant’s bankruptcy being discharged by the time of the hearing.

36.  It was suggested by the Applicant that the hearing of the appeals be adjourned to allow the issues of fees and Supported Living to be concluded with Kent County Council, although no formal application for an adjournment was made. It is clear that the dispute between the Applicant and Kent County Council over fees as been going on for a long time. Although I was told that the Council has agreed to carry out a re-assessment of the residents, there is no certainty as to if or when fees will be changed, even less that fees will be “back dated” and be sufficient to pay the Applicant’s debts in her bankruptcy. I consider the likelihood of the Applicant being discharged from her bankruptcy in the near future as being too remote, Mr Burke’s evidence was that even if an application to lift the suspension was made now and was unopposed, the earliest date for discharge would be March 2009. I accept therefore that at the hearing in January 2009 the cancellation of her registration as registered provider must be dismissed.

37.  It is also accepted that the Applicant no longer owns Argens House, and as not done so since 2006. The question of whether an appeal should proceed when the specific premises are not available was considered in the The Welsh Ministers case, although that was concerned with the refusal to register a manager, nevertheless the principals established were followed by the Tribunal in Heritage Court Limited, a case involving the cancellation of a provider’s registration. In The Welsh Ministers, Mr Justice Davis stated at paragraph 38.3 that:
“The third point is that it is, in my view, simply wrong to assume that because there are no specific premises available and because the original decision must in form be confirmed on appeal then a substantive appeal would necessarily be futile and of no purpose. In my view, it can in a particular case be of purpose.” 

The court supported the view that in certain circumstances there could be a practical advantage in allowing the appeal to continue.

39.   In this case I cannot see any practical advantage to the Applicant in the appeal continuing. The Applicant said that she wanted to clear her name, however pursuing an appeal simply as a name-clearing exercise was an approach rejected in The Welsh Ministers case. It was also said that members of the Appellant’s family could apply to be the registered provider in respect of Argens House, no applications have in fact been made and in any event I cannot see how pursuing the Applicant’s appeal would be a practical advantage in those circumstances.

40.  I take into consideration that if I strike out this appeal the Applicant will not have had a full hearing and that any decision to strike out must be exercised with caution, I also take into account the possible effect on the residents. However given the Applicant’s bankruptcy, the fact that she no longer owns Argens House, and that I find no practical advantage to her in pursuing the appeal, I conclude that appeal [2008] 1335.E.A, against the decision to cancel the Applicant’s registration as a provider should be struck out.

41.   I now turn to the Applicant’s appeal in respect of her cancellation as a registered manager. I was invited by Mr Sadler to find that if the registered provider appeal were strike out, then the registered managers appeal must automatically be stuck out as well, their being no premises or registered provider. I do not accept that proposition, firstly the Care Home Regulations do not provide that a registered manager cannot be a bankrupt, secondly  although there will not be any specific premises or registered provider, there may be practical advantages to the Applicant continuing with this appeal that did not exist in respect of the registered provider appeal.

42.   In The Welsh Ministers case the court upheld a decision of the Tribunal to refuse to strike out a registered manager’s appeal. The Tribunal had found that there were practical advantages to be gained by having a full hearing, notwithstanding that the owners of the home that had offered the applicant in that case a job, had withdrawn that offer. The Tribunal had evidence that after the appeal had been lodged the applicant had been approached by a home owner that wanted to appoint her, in those circumstances the Tribunal found there was a practical advantage in the matter going to a full hearing. In this case there is no suggestion that the Applicant wishes to be a manager of anywhere other than Argens House. It was suggested at the hearing that if repossession of Argens House went ahead, rented premises could be found and another family member could apply to be the registered provider or if repossession of Argens House was avoided a family member could become the registered provider. These possibilities seem to me to be too remote and uncertain, even if material, to constitute a practical advantage to the Applicant in continuing with the appeal.

43.   I again take into consideration that if I strike out this appeal the Applicant will not have had a full hearing and that any decision to strike out must be exercised with caution, and I have also considered the possible effect on the residents, However given that Argens House has been sold, there is no registered provider and that I find no practical advantage to the Applicant in pursuing this appeal, I conclude that appeal [2007] 1188 E.A., against the decision to cancel the Applicant’s registration as a manager should also be struck out.

APPEALS STRUCK OUT

Stewart Hunter
Tribunal Judge
8th December 2008