MR STEPHEN BELCHER APPELLANT
CHESHIRE COUNTY COUNCIL RESPONDENT
Hearing of the Registered Homes Tribunal held at the Council Chamber, County Hall, Chester on Tuesday 5 May 1992, Wednesday 6 May 1992 and Tuesday 16 June 1992.
Appeal by Mr Stephen Thomas Belcher against the decision of Cheshire County Council that he is not a fit person to be concerned in carrying on a residential care home at Sable Cottage Residential Home for the Elderly, Chester Road, Kelsall, Cheshire.
The Tribunal
Mr William Morris Jones (Chairman)
Mr W James C Churchill
Mr John I Stephens
Representation
Mr Peter J McGowan of Lace Mawer Solicitors (Manchester).
Mr Michael Chambers of Counsel for the County Legal and Member Services Officer for the Respondent County Council.
Heads of Appeal
1. The appellant denies insufficient staffing or in the alternative that he was alone responsible for such.
2. The appellant had not been drunk upon the premises at any time nor had he disturbed residents when he was in such a state.
3. The appellant has not harassed staff sexually nor has he caused them to be fearful.
4. The appellant has maintained good professional relationships with the staff.
5. The payment of fees by two residents had been paid into the appellant's personal bank account did not amount to misappropriation.
History
The appellant Stephen Thomas Belcher was married to Celia Ann Minshall in or about 1987. Due to the appellant's vision and with his efforts and the assistance of Mrs Minshall, he had the custom built residential care home designed for 36 elderly people set up at Kelsall in Cheshire. The parties entered into a business arrangement of a partnership to nun the home and it was duly registered on 12 July 1990 for 36 elderly people, the proprietors being the appellant and his wife then Celia Ann Belcher.
Witnesses
For the appellant: | Mrs Thelma King |
| Mrs Pamela Mavis Findler |
| Mrs Yvonne Aitken |
| The appellant |
For the respondent: | Mrs Beryl Joan Raven |
| Mr Kevin Dickins FCA |
| Miss Ann-Marie Birchall |
| Miss Susan Jane Stephan |
| Mrs Celia Ann Minshall (formerly Belsher) |
| Mr Kevin James Donovan |
| Mrs Janice Burgess |
| Mr Hubert Cooper |
Decision
The tribunal unanimously allow the appeal of the appellant and direct that the decision of the respondent counsel shall not have effect.
The Law
On behalf of the appellant some doubts were cast on the way in which the respondent counsel reached their decision. With reference to Decision 166 on page 832 that point was considered and correctly and eloquently set out indicating that it is not for the tribunal to comment on how the decision was made which led up to the de-registering of the appellant as a proprietor of Sable Cottage Residential Home. There is a decision and the tribunal considered the appellant's appeal from that decision.
The weight of evidence
So far as the standard of proof is concerned this has been considered by Mr Justice Farquharson in Lyons versus East Sussex County Council, reference CO/555/87 heard on 10 July 1987 on page 10 line B and it is for the authority to satisfy the tribunal of the truth of their allegations on the balance of probabilities. The degree of probability will depend on the gravity of the issue which the tribunal is called upon to decide. This is also referred to and confirmed in Decision 166 (above referred to) on page 822 with which this tribunal agree. It is for the respondent to show that the appellant is unfit and not for the appellant to prove that he is fit.
The registration of Sable Cottage Residential Home is in the names of the appellant and of his former wife, and the tribunal do not consider that the respondent have acted improperly in any way in de-registering one of the two registered proprietors.
Substance of the respondent's case
It was claimed the appellant was not a fit person and the tribunal were referred to Decision No 76-Azzopardi versus London Borough of Havering on page 350 in the paragraph "conclusion" there is no statutory definition of a fit or unfit person. It is probably much easier to recognise the quality of fitness than to attempt to define it. However, the words 'trust, integrity, uprightness, honourable and truthful' spring to mind. A fit person is one who can be trusted in whom one has confidence who acts according to high principles and it follows that a person will be unfit if he or she is untrustworthy or dishonest.
Evidence showed that as the result of the break up of the marriage between the appellant and Mrs Minshall and also of apparent difficulties in their partnership so far as the business of Sable Cottage Residential Home is concerned, the appellant made it clear to Mrs Minshall that he wanted cash on account of his share in the partnership in order to defray his day to day expenses and debts which he had incurred. As the result of this impasse the appellant made it known the course of action which he would take and indicated in his evidence that he did so upon the advice of a firm of solicitors. When money on account of fees became due and owing from residents the appellant persuaded the paying parties in six cases to make cheques for fees payable to him personally and not to the business. This enabled him to deal with the cheques and to use the money for his own personal financial requirements. It is clear that in the case of four of those cheques he did not conceal the fact and dealt with these cheques in the accounts of the business which he was then able to do. However in the case of two later cheques it is dear that by this time the management of the business and the business partnership had been effectively made over to Mrs Minshall who exercised exclusive control. This was confirmed in evidence by Mr Kevin Dickins FCA who at that time dead with the business accounts as auditor. He described the quality of the books as "fairly accurate" and "nice and tidy" but there were some difficulties with dates. However, it must be pointed out that the facts in this case can be distinguished from those in Azzopardi.
In that case, the appellant Mrs Azzopardi was charged, tried and found guilty of bringing cannabis into this country concealed inside fruit which was discovered by customs officers, she had pleaded not guilty, but was convicted and sentenced to a term of imprisonment.
The allegation that the appellant was drunk on duty. The tribunal heard no evidence of the appellant being drunk in the premises Sable Cottage Residential Home, although in her evidence Mrs Birchall did indicate that he was smelling of alcohol Upon being cross-examined by the members of the tribunal the same witness indicated that there was no evidence of aggression by the appellant and no conduct or conversation which caused her distress. She went on to indicate that the appellant had worked very hard and did not deserve to be hounded. The appellant did come into the home late on the evening of 7 April 1990 and there was a certain amount of noise, as the result Mrs Mary Gerard, a resident of 86 years of age who is confused came out of her room and wanted to know want the party was all about. In fact there was no such party as she suggested.
There is evidence that the appellant from time to time exercised what he believed to be his absolute right to enter upon the premises either by day or by night. On 29 April 1991 Mrs Burgess prepared a letter addressed to the appellant which was signed by her, Miss Withington, Miss Birchall, Mrs Findler, Miss Stephans and Mrs Aitken. The evidence of those signatories who gave evidence was that at the time they were asked to sign the letter, they did not read it, but listened to the contents read out to them, and indicated that they signed the letter upon the premise that it would be delivered to the appellant personally and that the matter was an internal one to be dealt with within the confines of Sable Cottage Residential Home. They did not know when they signed the letter that it was going to be used in the tribunal proceedings. This letter of 29 April 1991 according to her evidence came into the hands of Mrs Raven when she was manager of the home. In her evidence she said she did not know what to do about it, so she rang up a friend at the Royal College of Nursing and was advised to get in touch with social services which she did. She said that it was her responsibility to act and indeed she did but she could not recall whether she had consulted with Mrs Minshall. All the signatories to the letter of 29 April 1991 expressed in writing in some form or another regret that the fact that that letter had been used in the way which it was. Mrs Burgess then wrote a letter of 24 April 1991 to both the appellant and Mrs Minshall tendering her resignation but in very nice terms, and Miss Withington wrote on 3 June 1991, Miss Aitken on 16 June 1991 to the appellant. Miss Birchall wrote to the appellant on 6 March 1992, Mrs Finlow wrote an undated letter to the appellant and swore an affidavit on 6 March 1992 and Miss Stephan wrote an undated letter to the appellant, which referred to the letter of 29 April 1992. All of these communications addressed to or concerning the appellant were complimentary. They indicated that the Appellant was kind and caring towards the staff and the residents. It was he who was primarily responsible for the high standard of care for the residents and for the working conditions for the staff. They wished the Appellant to continue working at Sable Cottage Residential Home.
The appellant's conduct towards the staff and also the residents has during the course of the evidence been shown to be both conscientious and caring, however, it must be noted that from time to time remarks were made which could have been taken more than one way with a sexual connotation in some instances.
Staff
It is evident that when Sable Cottage Residential Home first opened with only three residents there were staffing difficulties to commence with while the home was building up but the inspection report of 5 December 1990 when there were eight residents in the home did not indicate any difficulties with the staff although there was a recommendation in paragraph 9 that staff training should be started and on 16 August 1991 an inspection report at a time when there were 21 residents in the home there were no complaints about the staffing. A letter of 8 June 1991 was addressed to both the registered proprietors, the appellant and Mrs Minshall indicating that neither was a fit person to be concerned in carrying on residential home. Among reasons a. failure to employ adequate staff, and b. failure to maintain good and personal professional relationships with persons employed in the home. However, when these matters and others were considered by the respondent's committee on 17 October 1991, it was only the appellant whose registration was withdrawn. Evidence heard before the tribunal tend to show that any earlier difficulties with staffing had been rectified.
Substance of the appellant's case
STAFF
So far as the question of understaffing is concerned on the evidence of the respondents it would appear that any concern had been allayed by the action taken by one or other of the registered proprietors and no longer caused a difficulty.
The allegation that the respondent had been found drunk on the premises at night and had disturbed residents was denied by the appellant. The only incident that could possibly have raised the points complained of occurred at approximately 11.30 pm on the evening of 7 April 1991 when Mrs Mary Gerard, aforementioned resident came out of her room in order to find out what the noise outside in the passage was all about. It should be noted that only one resident was involved.
The appellant gave evidence to the effect that he had suffered with insulin dependent diabetes for many years and produced a medical certificate to that effect. The certificate indicated that alcohol in large quantities could make diabetes unstable and produce hypoglycaemia (low blood sugar) and this could develop into a hypoglycaemic coma. The doctor was not called and no medical evidence as such was accepted but the tribunal took notice of the fact that the appellant suffered from diabetes.
Mrs Minshall called a staff meeting in or about April 1991 at which the appellant was not present. At that meeting she announced that she was proposing to divorce the appellant but that at that time he did not know but she intended to take over and run the home to the exclusion of the appellant. It is quite clear in the evidence that the letter of 29 April 1991 and other similar communications occurred after the announcement by Mrs Minshall to her staff that she intended to divorce the appellant. Mrs Minshall in her evidence indicated that she owned Delamere Cottage House the former matrimonial home of her previous marriage in which the appellant and Mrs Belcher lived after they married which she got as the result of an order for ancillary reset in divorce proceedings in her previous marriage. This property was colateral security for the loan in connection with the servicing of financial arrangements of Sable Cottage Residential Home. She indicated that neither she nor the appellant had had previous experience in looking after old people. There was evidence that Miss Susan Jane Stephan had in fact been taken on by the appellant as a care assistant when he knew that she had formerly suffered from nervous breakdown and he was willing to ensure that she might have a job and thereby recover from her difficulties.
There was no evidence of sexual harassment but only evidence of oral banter and this would appear to have been reciprocal in many cases. There was also evidence that certain rude posters had been put up in the staff room by members of staff. It was submitted on behalf of the appellant that the letter of 29 April 1991 was intended to be used as an informal approach in order to be ventilated internally and not be used for any other purpose. The complaint to the appellant of his coming into Sable Cottage Residential Home at night without announcing that he was doing so, would stop and this he agreed to do. In his evidence, it appears he now lives in accommodation at the rear of the premises and only uses the back door which gives him access to those premises.
All the staff who gave evidence at this tribunal have either returned and are now working at Sable Cottage Residential Care Home or alternatively they have expressed willingness to do so. In general, the work and the Caring attitude by the appellant towards both the residents and staff continue.
The behaviours of the respondent's inspectors indicated to the Tribunal a lack of an even-handed and balanced approach expected of the Registration Authority. This was highlighted by the examination of some members of the staff of Sable Cottage Residential Home at the private house of Mrs Findler.
Conclusions
As the result of the social services being brought into this matter upon the letter of 29 April 1991 being divulged to them, they had a duty to investigate which they did and they cannot be criticised for carrying out that duty. However, it seems that the incident and many of the complaints were raised or occurred after it was known that Mrs Minshall had presented or intended to present a divorce petition to end her marriage with the appellant. Many isolated incidents were pursued when such complaints could reasonably have been resolved internally. The effect of the difficulties between the appellant and Mrs Minshall had the effect of dividing the staff to some extent who simply did not wish to be involved in matters of a domestic nature which concerned neither them nor the activates in the home. It is incumbent upon the respondents to produce evidence to show that the appellant is an unfit person. In the view of the tribunal they have not discharged this responsibility.
William Morris Jones
James Churchill
John Stephens