Appeal against F-tT decision confirming urgent cancellation order of Magistrates Court

The recently reported judgment of Button Space Limited v CQC [2019] UKUT 134 (AAC) concerns the approach to be adopted by the First tier Tribunal (‘F-tT’) should take when considering an appeal from an Order of the Magistrates Court to cancel the provider’s registration on an urgent basis.

Background

In summary, Button Space Limited (the ‘Provider’) was registered to provide the regulated activity of accommodating persons who require nursing or personal care, they operated one registered location (‘the Home’). The Home had been rated Inadequate by the CQC and had been in special measures since 2016. Inspections were undertaken throughout 2016 which resulted in the imposition of a condition that the Provider must not admit (new) service users until compliant with the Health and Social Care Act (Regulated Activities) Regulations 2014.  The registration of the registered manager and then the Provider were cancelled. Appeals against the imposition of the condition and the cancellation of the Provider’s registration were dealt with by way of separate proceedings.

The Provider continued to provide the regulated activities and in March 2017 it became necessary to undertake an emergency evacuation of the Home, due to flooding from a water pump compromising the electrics and safety of the Home. Following concerns regarding the circumstances of the flooding, the manner in which the evacuation was undertaken and indeed risk to service users should they return to the Home, the CQC applied to the Manchester Magistrates Court for urgent cancellation of the Provider’s registration pursuant to s.30 Health and Social Care Act 2008 (the ‘Act’). An order was granted by a District Judge and the Provider appealed to the F-tT.

F-tT Decision

The Appeal failed, the Tribunal noted at para 80 that “there was a serious risk based on the list of outstanding work provided by the appellant’s own witnesses”. No works had been undertaken since the Home closed in March 2017 and there was no action plan regarding what would be done and when.

Permission to Appeal to Upper Tribunal

The Upper Tribunal may only interfere with decisions of the F-tT where the F-tT has erred in law. In this case, permission to appeal against the F-tT decision was granted to appeal in respect of one ground – that the F-tT had erred in various ways when considering whether the test in s.30 of the Act had been met.

Judge Hemingway explained as follows:

“In particular it was a key aspect of the applicant’s case that the ‘serious risk’ requirement had not been met and could not have been satisfied in circumstances where there were other factors (most notably the condition of 14 (or possibly 15) April 2016), which it was contended served to obviate any risk”.

The appellant Provider contended that at the time of the decision of the F-tT there were no service users in the Home and the Provider could not admit any service users due to the imposition of the Condition. It was argued that there could be no serious risk present which was ‘immediate or imminent” and the F-tT had “effectively misdirected itself”.

Submissions before the Upper Tribunal

At the substantive oral hearing the following additional points were submitted on behalf of the Provider:

  • use of the word ‘may’ within the statutory test in 30 imported a discretion to make an order cancelling registration. The Tribunal had not recognised they had this discretion and simply treated the fact that the test was met as determinative of the Appeal.
  • 30 should be read in such a way as to import ‘immediate or imminent danger’ as a requirement before an order can be made. There was no such danger in this case. In effect the F-tT misdirected itself by not interpreting it in that way.
  • The Tribunal had failed to consider whether it might be able to impose other conditions rather than confirming the Order.
  • any risk for the purposes of 30 should be confined to service users as opposed to any other person.
Decision of the Upper Tribunal

Judge Hemingway concluded:

  • The F-tT decided the test was made out and that there was nothing before it to suggest it should not exercise discretion in favour of the order.
  • There was no basis for interpreting that the serious risk must be immediate or imminent, or to put a gloss upon the test or import additional requirements.
  • As a result of the content of s.32 the F-tT was tasked with deciding whether to confirm the order or that it was to cease to have effect (32(4)).
  • There is no logical reason why the section should be limited to service users only, thus serious risk relates to any person whether a service user or not.

Judge Hemingway commented that the F-tT clearly felt and found that the condition of the home at the time was sufficient for it to properly conclude that the serious risk would arise if the order was not confirmed. It was aware of the enforcement action which had taken place.

“But it is nevertheless open to it, notwithstanding the existence of other restrictions, to conclude that the statutory test is met. All of that will depend on a range of matters which may well include the nature of the restrictions, the certainty of the restrictions, their likely continuance within the foreseeable future and any prospect of attempt being made to circumvent them”.

He noted that the F-tT did take the other restrictions into account and whilst it could have said more directly to explain why the restrictions did not have the effect of obviating the risk, it reached a decision which was open to it and when its reasons are read as a whole, it adequately explained.

It is noted in the judgment that there could be cases where the ground can be made out, in that the F-tT has not at least addressed other potentially relevant factors which might lead to a conclusion that no risk can arise whether an order is confirmed or not.

In conclusion the appeal to the Upper Tribunal was denied.


Disclaimer

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