Mrs J Power v Stockport Metropolitan Borough Council

It is the unanimous decision of the tribunal that the appeal shall be allowed and that the proposal by the local authority to vary two conditions within the registration certificate issued to the appellant relating to the children's home known as Brookfield House shall not be confirmed.

Reasons for the Decision

The tribunal has considered all the oral and written evidence including all the written statements.

The tribunal held a pre-hearing meeting with the appellant (including Mr N Power and Mrs J Aizlewood assisting her) and the respondent's solicitor. The following points were agreed:-

At the commencement of the hearing the chairman introduced Mr Jones (member of Council on Tribunals) and explained his role at the hearing and during the tribunal deliberations as one of observation only. The chairman also explained that the proceedings in tribunals were informal, and that the tribunal was independent. The chairman pointed out that one of the respondent's witnesses, Mr Jobbins, was also on the panel of Registered Homes Tribunals' Members and she asked if anyone had objection to him giving evidence. There were no objections.

The appeal was against the local authority's decision to adopt a proposal to vary two conditions in force in respect to Brookfield House. The original conditions were:-

2.] The manager must have a relevant qualification and/or experience of not less than three years in a residential care home (one of which must be at a senior level).

3.] Persons acting in place of the manager or deputising must have at least two years relevant experience.

The new conditions were to be:-

2.] The manager must have a relevant qualification and experience of not less than three years in residential social work (one of which must be at a senior level). He/she must also be able to demonstrate a knowledge of relevant legislation, particularly the Children's Home Regulations 1991 and have worked in more than one care home setting.

3.] Persons acting in place of the manager or deputising must have at least two years' experience in residential social work and have received training provided by a college or agency recognised as appropriate to equip the person for such responsibilities.

The tribunal considered the procedure which Stockport MBC had used to vary the conditions of registration. The tribunal accepts that para 2 Schedule 6 allows a local authority to vary any condition. The tribunal notes that under para 5.(4) the authority shall give any person carrying on a registered children's home notice of a proposal to vary a condition. Para 6 requires that the notice shall state that within 14 days a person on whom the notice is served may require the authority to give him an opportunity to make representations. Para 7.(1) states the authority shall serve a notice in writing of their decision to adopt their proposal accompanied by an explanation of the rights of appeal. Para 7(3) states that the local authority's decision under para 7(1) shall not take effect until the end of a period of 28 days if no appeal is brought and if an appeal is brought until it is determined or abandoned. In this case the appellant was informed in a letter of 7 February 1997 that "all registration certificates have, therefore, been amended accordingly". The letter was signed by W J O'Shea (Principal Officer - Independent Inspection Unit). No notice of the proposal was given under para 5(4) Schedule 6. In a letter of 18 February 1997 it was accepted that the authority had not intended to serve a formal legal notice. On 24 April 1997 notice was given. The appellant made representations on 28 May 1997. She did not request an opportunity to make oral representations.

On 6 June 1997, Mr Jobbins, Head of Service (Inspection Unit) replied stating that the appellant's representations were to be dealt "by myself", and later stated that the changes were all approved by the Social Services (Special) Sub-committee. Mr Jobbins said, "I can find no reason for the revised criteria to be rejected....". The tribunal note in Mr Jobbins' written evidence that the Social Services (Special) Sub-committee approved "enhanced criteria" and also accepted the revised certificate on 8 January 1996. Notice to Mrs Power was given subsequently. Her representations were made after the Sub-committee's decision. The tribunal accept that the Sub-committee had no opportunity to consider Mrs Power's representations. The tribunal are concerned that there was no consultation between the Inspection Unit and the appellant. The tribunal agree Stockport MBC did not follow the correct procedure laid down in the Children's Act 1989, Schedule 6, paras 5, 6 and 7.

The tribunal considered carefully whether disregard for the procedure affected the jurisdiction of the tribunal. It was agreed that the manner in which the registration authority receives representations is subject to the rules of natural justice. However, the tribunal accept that flawed decision making is challenged by way of judicial review in the High Court. The tribunal also agrees that para 8 (regarding appeals) does not give the tribunal power to consider the manner in which the decision was reached; the tribunal is however vested with jurisdiction once the decision is made. In this case the Social Services Sub-committee made a decision on 8 January 1997, and was confirmed by Mr Jobbins on 6 June 1997; the tribunal accept that confirmation as a decision of the local authority under para 7.

The tribunal considered para 2, Schedule 6, which states that a local authority may grant registration, subject to such conditions "relating to the conduct of the home" as they think fit, and provides for variation. (In the absence of interpretation of "conduct" the tribunal used the ordinary English Dictionary meaning of "conduct" - i.e. management). The tribunal agree the requirements for appointment of manager and those deputising or acting in place relate to the way in which the home is managed. They relate therefore to the conduct of the home.

The tribunal considered the form of the revised conditions. They considered previous decisions relating not only to Children's Homes but also Registered Homes for which the process of registration and inclusion of conditions on the registration certificate are similar. They accepted the statement of Lord Halsbury L.C. who, in considering the imposition of conditions by discretionary bodies, stated that "The authority must not act capriciously but within the rules of reason and justice…. It is to be, not arbitrary, vague or fanciful, but legal and regular". Sharpe v Wakefield [1981] A.C. 173 at 179. The tribunal also accepted the decision of Rose J. in which it was held that the contents of a certificate of registration must be in a simple and concise form and free from uncertainty or ambiguity. The reason for this decision is because the contents of a certificate of registration are capable of forming the basis of a criminal offence. This applies to children homes registration under para 2(3) Schedule 6. The tribunal also agree that in running the home the owner/manager must be able to apply any condition imposed easily. The process of management will be delayed and interrupted by ambiguous conditions. The tribunal agrees that interpretation should not rest with the registration authority. The tribunal agreed, in this case, there was no definition of "relevant qualification" or of "experience", or of "care-home setting". The tribunal were given examples of how these words and others contained in the proposed conditions may be defined. The fact they were examples indicated the ambiguity and lack of clarity involved.

The tribunal considered their powers by virtue of para 8 Schedule 6. They note that para 8(4) lays down that the tribunal may confirm the local authority's decision or direct that it shall not have effect. In para 8(5) it provides that the tribunal shall also have power to vary any condition or direct that any such condition shall cease or any such condition shall have effect. The tribunal notes that in allowing an appeal against the decision to vary two of the conditions, the original conditions remain. No evidence or submissions were presented to the tribunal with regard to the conditions in the registration certificate of 11 January 1996. The tribunal's jurisdiction is to determine the question in relation to the local authority's proposal to include revised conditions.

The tribunal in allowing this appeal are mindful of the policy behind the local authority's proposal to change the registration conditions. The tribunal accept the need for improvement and clarification in staffing and other issues. They accept the local authority are trying to lay down standards for the protection of children. The tribunal agree, however, flexible standards for appointment of qualified, competent and experienced staff should be laid down in appropriate Guidance documents. Such flexibility and generality cannot be prescribed in the registration certificate.

MRS E GOODMAN
MR A KENDALL
MR D WAKEFIELD