R Sowky v East Sussex County Council

The Tribunal unanimously dismisses the appeal and confirms the decision of County Council.

REASONS

General History

In October 1987 Mr Sowky and his wife applied jointly with a distant cousin , Mr Ruhomally and his wife for registration in respect of a residential home for 7 elderly residents, known as Les Fleurs. The two men had brought the house in equal shares and planned to run it as partners. Each was a qualified and experienced nurse.

There were difficulties in the registration as each of the wives had convictions for dishonesty and the application proceeded in the name of Mr Sowky above, though it was anticipated that both men would be involved as partners in running the home. Regulation was granted on 14 December 1987.

The house is a Victorian mid-terrace home. On the lower ground floor is the kitchen, the lounge-dining room and a single bedroom. On the ground floor is a double room and two single rooms, and on the top floor two single rooms. On a half-landing is an additional room furnished but not used as a bedroom which the authority wanted to be put to use as a sitting room.

Both Mr Sowky and Mr Ruhomally intended to continue with their full-time employment in the hospitals in which they worked and to devote their spare time to the home. It was clear to Mr Sowky that as the registered owner he would be responsible for the operation of the home and for ensuing that sufficient competent staff were employed. He was told that once the home had a full or near full complement of residents there would have to be an acceptable manager appointed to work a minimum of 37 hours a week, and that there would have to be two members of staff on duty during the day. Mr O'Halloran, a Divisional Inspector of private and voluntary homes, said that the staffing level was necessary because of the layout of the premises and of difficulties inherent in only one person caring for the residents and fulfilling the other tasks required during the day. Although Mr Sowky did not really accept the need for two staff, there was no evidence to contradict Mr O'Halloran and we accept that his requirements were reasonable.

It was not until about April or May 1989 that the home first had its full complement of residents and until May 1989 Mr O'Halloran had no serious complaints about its operation. It is true that as early as February 1988 he had in writing requested a staff rota and none had been supplied, but as there were then so few residents the matter was not then pursued. A Mr Mohakeer was approved as manager from the outset, but he had other employment too and was never actively involved in management. The main work of running the home seems to have fallen on Mr Ruhomally.

By May 1989 tensions had developed between Mr Sowky and Mr Ruhomally and the former was contemplating selling his share of the property and the business. It seems that Mr Ruhomally was the dominant force in the running of the home. He had a 60% in the actual business and he, according to Mr Sowky, controlled the financial side, the ordering of goods and supplies and the task of keeping the home full. Mr Ruhomally was not called as a witness, but having seen Mr Sowky giving evidence we are prepared to say that he does not have a particularly dominant character and he may well have been somewhat overshadowed by a stronger personality.

In the result the overall management of the home fell between Mr Sowky and Mr Ruhomally and with the latter being the dominant figure, though Mr Sowky acknowledged that the care and well-being of the residents was his responsibility as clearly it was.

The Main Shortcomings

Matters came to a head on 27 September 1989. On that day Mr O'Halloran found that only Mrs Sowky was on duty at the home. More seriously he discovered in an unlocked cupboard in the kitchen, used in part for groceries, and in part for drugs, two bottles of drugs which were not marked as belonging to any of the residents. One bottle contained a mild sedative, Temezepain, prescribed for a Mr Martin who had never been a resident in the home but had been a patient in the hospital where Mr Ruhomally worked. The other bottle contained an antibiotic Augmentin, it had no label from an issuing chemist but was marked "Ward pack of 50". Mr Sowky said that the Temezepain tablets belonged to a resident for whom they had been prescribed but he could not explain how the bottle came to be in the cupboard. The typed name "Martin" on the bottle was legible, though deleted in ballpoint ink, but Mr Sowky said that he was not able to read it.

He told Mr O'Halloran that the Augmentin tablets were for a resident who had had a chest infection about a month previously and the label must have come off. At a disciplinary hearing in October he said that these tablets had come with a different resident when she arrived from Bevendean Hospital.

Further investigation in the ensuing days disclosed a quantity of linen and 10 pairs of pyjamas marked as belonging to the Brighton Health Authority or Bevendean Hospital. It seems that in all probability both the drugs and the linen had been brought in by Mr Ruhomally and that Mr Sowky was not directly responsible for this. However, following a disciplinary enquiry Mr Sowky was dismissed by the Brighton Health Authority. It is not for us to say exactly what part Mr Ruhomally played in regard to any of the property, but we note that he too was dismissed by the Brighton Health Authority, although he was acquitted of any theft of the property.

Thereafter Mr O'Halloran again took steps to explain the necessary procedure for the ordering, storing and recording of drugs. He also stressed the need for two staff to be on duty and requested details of all staff employed. Mr Sowky replied to this request in a letter of 18 October with a list of staff. Apart from Mr & Mrs Sowky and Mr & Mrs Ruhomally this list included a Mrs Potter, a Mrs and a Miss Hill, and Mr Mohakeer as manager. Miss Hill was a girl who turned only 16 years of age in January 1990 and was still at college. It was only her mother who vouched for her. Mr Mohakeer was employed elsewhere and in fact never exercised any managerial duties. Indeed he was reluctant to accept such responsibility, and Mr Sowky must have been aware of this.

Staffing Deficiencies

On 20 October Mr O'Halloran found only Mrs Potter on duty which he learned had been the position since 11 a.m. He found the medicine cabinet open with no lock visible, and Mrs Potter having no key. When these facts were put to Mr Sowky on 24 October he contended that two staff were in his view necessary only at peak times, but he did reluctantly agree to provide such cover in the future.

Thereafter Mr O'Halloran on his visits found only one member of staff on duty on 17 November, 8 December, 15 December, 26 January and 8 March. On 11 January Mr O'Halloran found there to be no member of staff present and it was not until some 18 minutes later that Mr Ruhomally arrived saying that he had been away on 5 minutes to collect prescriptions from a chemist. At this time the medicine cabinet containing drugs was open.

On 26 January following a telephone call from Mrs Hill at the home about a resident being on the floor, Mr O'Halloran arrived at about 2.55 p.m. to find Mrs Sowky alone in charge. She was unable alone to lift the resident and was helped by Mr O'Halloran.

On 2 April the Residential Homes Panel of the Authorities decided to cancel the appellants registration. At the hearing the appellant admitted that on occasions Miss Hill had been left alone in charge of the home with Mr & Mrs Sowky only being available to come in if called. He also said that he accepted the need for 2 staff to be on day-time duty and said he would try to comply with that in the future.

Despite all this there were occasions in April and in June when there was only one member of staff on duty. The seriousness of this is shown up by the incident on 27 April when Mrs Sowky who was on duty alone was unable to raise a resident who had fallen to the floor in his room.

The staffing situation alone provided ample grounds for decision to withdraw the registration, but unfortunately, the position is more serious than that.

Mr Sowky's Responsibility

As the registered owner Mr Sowky was of course the person responsible for the proper operation of the home and he accepted this. He did, however, seek to explain his failures by his inability to obtain full co-operation from his partner. One can understand the position in which he found himself, but that does not excuse him.

Any reasonable home owner must have appreciated, particularly after the evidence and direction that he was given by Mr O'Halloran, that his home was understaffed with only one person on day-time duty. Apart from having to have staff on hand for emergencies and other unforseen requirements, the normal routine tasks of getting residents up, cooking and serving meals and keeping the home clan and tidy necessitated the presence of two staff to give the required personal attention to the residents including the provision of activities, and stimulation, which is such an important part of providing proper care for their well-being.

That Mr Sowky showed lack of responsibility in the selection and engaging of staff is shown by the fact that he employed a young girl with no training and on occasions allowed her to be the sole staff member on the premises. Nor did his conduct in engaging a Mr Daniels without any check on his previous history show a proper appreciation of his duties. It is no answer to him to say that he relied on Mr Ruhomally's judgement particularly in view of the difficulties he was experiencing with him over the staffing, and the other doubtful aspects of his conduct. Though it is not for us to consider in any detail whether and in what respects Mr Ruhomally's conduct made him unfit to be concerned in the running of his home, it was to say the least, unwise of the appellant to rely so much on his judgement.

We cannot escape the conclusion that Mr Sowky fell seriously short of the standards required of a home owner, both by consistently failing to meet the requirements of the registration's authority in relation to staffing and the care of drugs and by failing to ensure proper management of the home and care for the residents. In the result there were serious deficiencies in the standards of care provided for the residents which fully justified the withdrawal of the registration.

J C R Fieldsend, Chairman
M P J Burrell
R Humphries