High court considers ‘fit person’ test under Care Standards Act

On 21 April 2004 the high court gave judgement in an appeal by
the National Care Standards Commission against a decision of the
Care Standards Tribunal in January 2004. 

The tribunal had overturned the NCSC’s refusal to register an
indivudual as manager of a residential home for young adults with
learning difficulties. The NCSC had found that he was not a
‘fit person’, but the tribunal had disagreed. On
appeal, the NCSC has now succeeded in having the tribunal’s
decision quashed.

The individual’s alleged unfitness related to three areas: his
apparent lack of adequate knowledge and understanding of the
relevant legislation when examined in the ‘fit person’
interview; previous assault/abuse complaints upheld against him;
and his failure to disclose those complaints in his
application.

The Care Standards Tribunal had decided that there was no
definition of ‘fitness’ in the Care Standards Act 2000
and related regulations, and that it was for the NCSC to prove his
‘unfitness’. 

The tribunal then took into account various mitigating factors
concerning inadequacies in the fit person procedure, significant
delays in concluding the assault/abuse investigation, and the fact
that these appeared to be isolated incidents in his otherwise
creditable career.

The high court ruled that the initial test used was
incorrect. Unlike under the old registered homes regime, the
regulations under the 2000 act set the test of fitness in negative
terms: “A person is not fit … unless (a) he is of
integrity and good character …” etc.  The judge ruled
that these words were mandatory, and not merely guidance, and that
it was for the applicant to prove his/her fitness.

The fact that the tribunal applied the wrong test alone
determined the success of the appeal, and so the high court did not
need to consider whether the individual was or was not a fit
person.  However, the judge did make clear that the regulations
“should not be construed as requiring
perfection.” 

Alison Castrey
Solicitor (Residential Care, Education & Nursing
Services)