Mr Phillip and Mrs Jane Fieldhouse v Devon County Council

It is the unanimous decision of the Tribunal that the Appellants' appeal succeeds and that the decision of the registration authority shall not have effect.

Brief history of the dispute

Mr and Mrs Fieldhouse bought the Priory in December 1987, and their registration as owners was approved. At the time they bought it neither had had any experience of residential care homes (although Mrs Fieldhouse had worked for three months as a care assistant in a nursing home). However, a very experienced care assistant, Mrs Wynn, who had worked at the Priory for some ten years, stayed on and was registered as manager.

During the next two years there were various matters which caused some concern to the Respondents, such as inadequate records, inadequate conditions in the kitchen and so forth. In October 1989 Mrs Wynn was dismissed for stealing, and, although some problems still remained, Mrs Fieldhouse was registered as manager in January 1990. In September 1990 complaints were received from Mrs Walton and Mrs Lovering (ex-employees) and from Mrs Watson, an employee. A complaint was also received from Mr Thomas, a friend of one of the residents. In October 1990 the Respondents recommended cancellation of the registration and in February 1991 the Appeals Sub-Committee confirmed this.

The Statement of Reasons supplied by the Respondents for the Tribunal appeal comprised some twenty three pages. These dealt with five major areas of concern set out generally and then in greater detail. However, on the first day of the hearing, the parties agreed, in view of the then circumstances, to narrow the issues. The Appellants agreed that the Respondents had properly made complaints as to defects in the physical condition of the premises; deficiencies in the record keeping; non-compliance with Fire Regulations and insufficient training of staff. They accepted that they did not remedy the above deficiencies within a time-scale acceptable to the Respondents. However, both the Appellants and the Respondents now accept that the deficiencies have been made good, the Respondents accepting that the first three items pre-dated the Appellants' ownership of the Home. The Respondents also accept the Appellants' undertaking to carry out such further staff training that the Respondents may require.

Thus, the issues were considerably narrowed, and the only issues for the Tribunal concerned (i) the allegations of lack of appropriate care, (ii) possible abuse and/or neglect of the residents and (iii) unprofessional conduct on the part of the Appellants when dealing with residents and staff, as set out in the statements of Mr and Mrs Walton, Mrs Watson, Mrs Lovering and Mr Thomas.

The Appellants Case

There is only one remaining issue to be decided and this is as consequence of an admission by

Mr Eardley and Mr Still to the effect that, but for the allegations, there is no issue as to the fitness of the Appellants to run the Home. The only issue is whether the allegations of the three women are true, or near true on the balance of probabilities. Mr Thomas was unable to attend the hearing through ill health and had submitted an affidavit. However, it is axiomatic to say that the Appellant was thus offered no opportunity to cross-examine his evidence and the Tribunal is invited to conclude that it is of no great importance. The evidence of the three women, it is submitted, applying the ordinary test, is wholly unreliable, even lies. As to their evidence, quite apart from contradictory evidence, (i) all three admitted to a common resentment and/or dislike of Mrs Fieldhouse. This was perfectly plain, if not from words which were said, then from their manner and approach. In particular, the evidence of Mrs Lovering was venomous. (ii) There was a resentment in the change in running the Home when Mrs Fieldhouse took over from the previous owners and after Mrs Wynn was dismissed. Two of the women were very forthright - they did not like those changes. The other witness spoke of the impact: they were now required to work properly! (iii) The focal point of resentment was centred in the kitchen - it was like a "shadow kitchen cabinet", and was where views and opinions were exchanged between the staff. All these women shared the same shifts, and it is interesting to compare what they have said with views expressed by witnesses, both current and ex-staff, who worked on different shifts. The difference is one of perception. It is odd that Mrs Vaughan testified to there being plenty of hot water but Mrs Walton said there was none, and there are other dichotomies too extraordinary to explain. (iv) During cross examination, which at times was admittedly hostile, it was clear there was exaggeration in their evidence, sometimes gross and with a deliberate attempt to paint the worst possible picture. (v) The proximity and timings of the complaints which triggered the Respondents' action were all made within a period of two weeks, between 11 - 26 September. This is an odd coincidence it there was no discussion between them. One of the witnesses admitted to discussing the mater on the telephone. (vi) Another extraordinary factor was the delay in making the complaints. Only Mrs Lovering made a contemporaneous complaint, in particular in September 1988 concerning Violet S. This was investigated by the Respondents and considered to be without substance. The others maintained a complete silence, and nothing was done about these allegedly serious matters. Mrs Walton was under a higher duty, being a senior care assistant, and she allowed long periods to elapse before doing anything. It does not bear analysis if the complaints were true. In her case she waited until she had left the Home, after an unseemly dispute. and she was asked to put these complaints in writing. This delay in making complaints brings into doubt her veracity. None made notes, no entries were made in the report book save one by Mrs Watson in September 1990. It is difficult for the Tribunal to decide what is the truth so long after the event and it is for the Respondents to prove the allegations. If there are problems of proof, then these must lie at the door of the person who makes the allegations. Primarily, the failure to make timeous complaints relates to the veracity of witnesses. (vii) There is evidence of a lack of balance - Mrs Fieldhouse conceded that there had been problems with heating and hot water. the three ladies, however, exhibited no judgement or balance in their assessment to what happened. They had a tendency to seize on things, with no consideration of any explanations, for example, in the laying-out of Lucy Q. Mrs Lovering in particular took all she heard as gospel, for example concerning the TV rental. Why did she not take such stories with a pinch of salt, or at least try to sieve out the true facts? She passed on undigested gobbets of gossip in her evidence in order to paint Mrs Fieldhouse black. There was no direct evidence as to her turning off the heating, ordering the tumble dryer not to be used, that she sneaked down behind it and turned it off. (viii) There was communication between the trio outside the Home Mrs Lovering and Mrs Watson were two cleaners who shared the same shift. Mrs Watson said she did see Mrs Lovering for coffee from time to time, did visit her house. But this was flatly denied by Mrs Lovering. Both cannot be right. If Mrs Watson was right, why did Mrs Lovering seek to deny it? This is a matter of some speculation. (ix) There was a failure by the investigating officers to carry out any investigation. What steps did Mr Eardley take to check the veracity of the three ex-employees? The officers are in a difficult situation since their primary duty in relation to a Home must be to investigate allegations of lack of care. However, here such investigation not done to any degree at all. The veracity of the allegations was not checked, there was an absence of corroboration, there was contradictory evidence - for example as to water pouring down the door frames. No independent mind was brought to bear. From these overall factors if the Tribunal cannot be satisfied as to the appropriate standard that the allegations are not well founded, then the case against the Appellants disappears.

Looking at the major allegations which are central to the issue in more detail, Mrs Walton made ten separate major allegations. The first concerned the lack of food from the date Mr Fieldhouse returned from Canada. We know he came back in March, and her evidence was contradicted by direct evidence. Every witness who gave oral and written evidence on this point contradicted her. The complaint was not picked up by the two Registration Officers despite numerous visits, and it is inconceivable they would not at some time, have looked into cupboards. The Tribunal should find this allegation wholly untrue. The second allegation concerned Mrs Fieldhouse turning off the heating like "a sprite in the night". None had seen this. The manner in which the evidence was given was important. It was not inferential. Numerous witnesses said that it was not turned off. Mrs Vaughan, an unimpeachable witness, said that all know how to override the heating system. In the bundle of documents instructions were included which plainly show how the heating system worked - that the heat gets up a certain temperature and then turns off. This evidence throws much light on other allegations, and, applying the usual test and common sense, this also must fail.

The third allegation is that there was never any hot water or heating in Mr Long's area. This is flatly denied by other witnesses and it beggers belief that such a situation was allowed to continue up to a year. it is plainly a gross exaggeration. There has never been any dispute that there were problems with radiators, but documentary evidence (paid bills, receipts, etc) clearly establish that work was done as and when required. Both Mrs Rutherford and Mrs Hewett told the Tribunal that there was other heating in Mr Long's room. This must have been known to Mrs Walton - so why was it not mentioned by her? If the allegation is true, then both Officers, if not blind, must have been wholly insensible to the temperature in the Home. The fourth allegation covers much the same ground but in relation to Mr Ware's room, which is in the same part of the house. The fifth deals with monies for the TV. Mrs Fieldhouse gave the explanation. The fact that Mrs Walton did not seek any reason points to her willingness to take the worst possible view.

The sixth allegation concerned George T and the breakfast incident. By its very nature this sort of

allegation is always very difficult to prove. But Mrs Walton said that Mrs Blanchford was present and she denied that this was so. It was also denied by Mr Fieldhouse. As to the seventh, this concerned verbal abuse, but not an isolated incident, it was alleged such abuse was in habitual use to residents, particularly to George T. Not a single other witness both employees and ex-employees can recall her sing such language. It seems out of character, and independent witnesses, Mr Garton and the Reverend McGee say so. As to the eighth allegation, this concerned the carpet. It was taken away for a short period and replaced. The fact the complaint was ever made was to put Mrs Fieldhouse in the worst possible light.

Mr Baker gave evidence of fitting the new carpet. The complaint reflects more on the complainer. The ninth point concerns Mrs Walton's unsuccessful attempt to make a complaint to the Respondents. Her answer as to why she did not pursue it does not bear examination. Again it reflects on the complainant. As to the tenth, the matter of George T and the baths, the insertion about Mrs T having died after having been given a bath appears to have been made out of pure malice. It is wholly untrue and has been put in maliciously. No reasonable person could possibly believe it to be true. In cross-examination the truth about the bath incident was radically different from the evidence in Mrs Walton's statement. The allegation differed wholly from the truth extracted from the witness in cross-examination. As to Mrs Walton s view of Mrs Fieldhouse, she said she was cunning, pretentious, a liar and some one prone to listening at keyholes. This is an unvarnished insight into Mrs Walton s approach, as she was wholly adverse to Mrs Fieldhouse both in her statement and her evidence. What motive might she have had? We do not have to show one, beyond a common resentment, but there is such a motive. The staff testified as to her perception of her own status, which did not accord with Mrs Fieldhouse's understanding of her position. There was the incident involving her husband, with the threat to report the Appellants for cruelty. She did not like Mrs Fieldhouse and she made her views known to the two others.

As to Mrs Watson's evidence, she was a cleaner on the morning shift. Her allegations concerned firstly the uncleaned lavatories. She said that it was Helen's job to clean them. This may have been true, but is it not surprising that a cleaner, with the best interests of the residents at heart, would not point out the state to Helen? or to Mrs Fieldhouse, or indeed clean up the mess herself? The allegation reflects on her approach to the evidence. She waits a whole year and then makes the complaint. Her second complaint related to the tumble dryer, and she said it was not in use and that bed linen was used damp. However, in cross-examination she trimmed her sails and said she had only noted one such occasion in two years. Other witnesses gave evidence that all the linen was ironed, put into the airing cupboard and rotated. The fact that she is prepared to make such allegations, being anything but the truth, throws light on her evidence. If her evidence is compared with that of Mrs Lovering, it was explained under cross-examination that the tumble dryer was broken at that time.

Her third allegation related to the lack of hygiene, of food, and that for some 2 - 3 days there was no toilet paper. Is this likely? The evidence has been completely and flatly denied, and inspections certainly did not reveal this. Her fourth allegation concerned the water and was much the same as Mrs Walton's in this respect. There was no reason for Mr Baker to lie, he plainly did not. It speaks volumes that both Mrs Walton and Mrs Watson appear to corroborate each other. As to Mr Long's heating, it is significant that she is 50% better than Mrs Walton, but both are equally unlikely. Mr Baker's evidence was that he was instructed to repair the sash cords, and he had been instructed over the years to deal with other windows. Concerning the 25 watt bulbs, her evidence was that she accepted putting them into corridors. Between September - December 1990 officers said they had found them. The Appellants said that no such instructions had been given. Mrs Watson said she used what she found in the store, which is the explanation as to why they were found on inspection. - There may be a more sinister explanation? As to the taps and basin, this is contrary to the evidence of the Appellants witnesses and there are a large number of invoices concerning taps. It seems strange with such an array of invoices that the allegation is that two taps were ignored for months. As to the ceiling coming down, all the evidence is contrary to this. It was plain that Mr Baker was instructed to repair it. It is also important that he said he had never had difficulty in being paid by the Appellants. The allegations suggest problems with finance but this does not seem to match Mr Baker's experience. As to the lack of hot water, cross-examination revealed that this was a gross exaggeration of the situation.

Concerning Mrs Lovering, she denied having any contact outside the Home with Mrs Watson. Why? Who was telling the truth? The evidence shows how she relied on unfounded supposition, particularly concerning Lucy Q and the tumble dryer. As to Lucy Q, Mrs Hewett said no such thing. As to the soup, Mrs Rutherford said that Mrs Lovering had said she would see to her. Why were the other matters put in?

The allegations made by those three witnesses are unfounded. They are either not true or are a gross exaggeration. They emerged from the kitchen by a process of discussion based on supposition and malice. They are so unreliable that they do not bear credence. If they go, the Respondents' case falls away. Mr Eardley has said that if the allegations are not true, the Appellants would be fit. There is such a degree of exaggeration that they are not remotely true.

The Respondents' Case

Initially the Respondents' case covered five points in the Reasons. The background led to the decision by the Respondents to cancel. Certain admissions were made and the Respondents accept that if the allegations of Mrs Watson, Mrs Lovering and Mrs Walton are not made out, it would not now be right that allegations as to physical neglect of the residents can be made out. As to Mr Thomas' evidence, this carries less weight, but this also applies to affidavits and written statements adduced by the Appellants where there was no opportunity for cross-examination. There is a very real conflict between the three ladies and the Appellants witnesses.

As to the three ladies, it is accepted that much goes to their credibility as witnesses. They were

subjected to close, even fierce, cross examination to see if they were lying. It is clear on the face of the evidence that in many instances they were not always sure of dates. It is conceded that their recollection of precise dates was not always accurate. This does not indicate malice but is due the period of time involved. Mrs Lovering left the Home in November 1989, Mrs Walton in August 1990, and Mrs Watson in December 1990. Except in the case of Mrs Walton, all had to rely on their own recollections which they gave to the Respondents and later to the Tribunal. They had not made contemporaneous notes. Only Mrs Watson made notes in case they were needed after contacting Mr Eardley. It was not made out in cross-examination that any of them was lying. They were each unhappy and nervous at the thought of giving evidence; they were not used to courts. There was uncertainty in some of Mrs Watson's evidence and it was clear in their own minds that certain episodes happened, but not when. It is also part of the Respondents' case that only when the information from the three was received had the Respondents reached the conclusion that cancellation was the only right action. It had been noted in the evidence that there had been many visits - some 22 - by two Officers. Some were long, some were just to see Mrs Fieldhouse. It is part of the evidence that there were numerous little instances not a constant backdrop of residents receiving inappropriate care. It would have been unusual indeed for the Officers to have come across such instances. Most visits by the Officers were by arrangement. It is accepted that they did not see incidents the ladies described. As to those allegations of lack of care the officers had little to say, although Mr Still noticed towelling wedged in the window of Mr Northrop's room on a visit he made to the Home in November 1990. They also noted unhappiness being expressed by some residents during two visits. There were a number of strands to the Respondents' case - lack of care, unprofessional conduct, and so on. It could be said that the care given by Mrs Fieldhouse was inappropriate for the needs of those particular residents. It is only a slight point but it speaks against her.

As to the evidence about George T and the efforts to get him to have a bath, it should be noted that he was not used to having baths, and had never done so previously. What is right for one resident may not be right for another. Again this is a slight point. But it is not accepted that the three ladies were lying or grossly exaggerating. They were vague, as were other members of staff.

The evidence of existing staff, both oral and written, must carry less weight, since it was given in the presence of their employers. That is not to suggest intimidation, but such witnesses must give a more favourable impression. As to the written evidence of relatives of residents, this gives a positive picture of when they visit. It is consistent with what one would expect. There would not be a constant regime of neglect, or swearing. Many visitors would come by appointment or at regular times. The atmosphere of visits is usually good and problems do not occur at these times. These do not cast doubts on the three witnesses.

The Tribunal must apply the normal test. who is the more believable? The thrust of the Appellants' case is that all of them are lying. The Respondents hold a different point of view. If we do not believe the three witnesses the allegations are not made out.

The Tribunal's Reasons for its Decision

After much careful thought, and after again going carefully through all the documents and notes of evidence taken at the hearing, the Tribunal was in no doubt that the Appellants's appeal should succeed. It finds that the Respondents have failed to satisfy it on the balance of probabilities that both or either of the Appellants is unfit. The burden is on the Respondents to prove the unfitness. It is not for the Appellants to prove that they are fit persons. The standard of proof is the civil standard. However, it is established that the more serious the issue the higher the standard of proof required. The issue here is very serious, for the decision could involve the closure of the Home, with the awful trauma of moving residents, some of whom have been there for over ten years. It could also have most serious consequences for the Appellants in that they would be branded as "unfit" so that their reputations were lost, deprived of their livelihood and even their home. Thus the Tribunal expects the Respondents to present a clear, consistent and structured case, supported by reliable and credible evidence.

On 19 January 1990 the Respondents decided, on the basis of its officers' reports, that Mrs Fieldhouse should be formally registered as manager, in addition to being joint registered proprietor. This meant that on that date, subject to the expectation that she would undertake training, she and her husband were regarded as "fit persons". Both Mr Eardley and Mr Still agreed that this would have remained the position had no complaints been received from the three ladies, (notwithstanding there had been complaints from Mr Thomas earlier in the year) and this was from their own observations and judgement. Everything therefore rested on the validity of the complaints. However, the Tribunal finds that the evidence of the three principle witnesses was unreliable and unconvincing, for reasons which will be given below. This factor, coupled with the evidence adduced on behalf of the Appellants by more reliable witnesses, (and in particular a potentially hostile" witness, Mr Baker, who had to be subpoenaed to give evidence) convinced the Tribunal that the Respondents had failed to satisfy the necessary test.

for elderly people. The Tribunal finds she had an unfulfilled but erroneous expectation/belief that she would be promoted to/or was the senior care assistant. This belief was not confirmed by Mrs

Fieldhouse. She admitted to disliking Mrs Fieldhouse and resenting her, said she listened at keyholes to conversations, would "creep around", told lies, gave nothing of herself. The Tribunal found her evidence flawed and had serious doubts as to her credibility. It rejected much of her evidence and accepted the remainder with caution. She admitted her dates were inaccurate. It finds she was mistaken about many things (eg whether Helen was present at the George T "bath incident"; that there was barely enough (food) to go round"; that Mr Wynn had fitted the carpet.) She assumed so many things, eg that Mr Fieidhouse had switched off the boiler, that Mrs Fieldhouse was sneaking around turning off the boiler to save money. It finds she exaggerated so many things, eg that the hot water in Mr Long's and Mr Ware's part of the Home was not working "for nearly a year. From then until I left. It never worked". "The room was freezing cold for the a whole year", that "there was no hot water in the bathroom for a whole year".

(Mrs Watson said there was no heating for at least six months.)

It finds she either lied or was careless/negligent in interpreting events, eg concerning the bath and hair washing incident; concerning the purchase of out-of-date bread; concerning the listening at keyholes (there were none in the doors) or at doors; concerning the monies involved in renting the TV. Having said how concerned she was about all these matters she then failed to make any report or complaint for months, without giving any reasonable or believable explanation. All these factors caused the Tribunal seriously to question the credibility of this witness.

Mrs Watson's evidence, the Tribunal found it flawed and its credibility seriously in doubt. In particular the Tribunal was totally unconvinced as to the alleged filthy state of the lavatories, which had apparently lasted for over three weeks. It found her evidence as to the tumble dryer and damp linen unconvincing and unreliable. Her evidence as to the toilet rolls and the dripping ceiling which was apparently in this state for six months was frankly unbelievable. It found she grossly exaggerated (eg Mr Long's radiator was "stone cold day and night" - when she was never on night duty; that wet washing hung over the radiators "day after day, week after week", that the dripping ceiling was left for six months; that alarm bells were turned off; that "no one else in the Home liked Mrs Fieldhouse, had no respect for her"). Such inaccuracy and exaggeration caused the Tribunal seriously to question the veracity of her evidence.

The Tribunal found that the disliked Mrs Fieldhouse "I didn't take to Mrs Fieldhouse. She was pig headed and bolshie". It finds her evidence was motivated by ill-will and that she was prepared to put the worst possible light on what she saw, or heard, or was told. She admitted to resenting the Appellants, to being friendly with Mrs Walton and Mrs Lovering and discussing the Appellants outside the Home. She made serious allegations as to the quality of care (eg carrying soiled linen through the kitchen, the dirty lavatories), yet made no attempt to report these matters at the time, either to the Appellants or to the person involved, despite her protestations that she had the welfare of the residents at heart.

Having dealt with the principle witnesses for the Respondent, the Tribunal also makes the following findings.

Margaret Rutherford
John Regan
Reginald Humphries