Raymond Hannon v Cheshire County Council

It is the unanimous decision of the Tribunal that the Appellant's appeal be dismissed and that the decision of the Registration Authority is confirmed.

Brief History of the Dispute

The Appellant was registered as proprietor of Claremont Residential Home on 9 October 1989 for 18 elderly people. From the beginning certain problems arose. These included the unsuitability and dismissal of one registered manager (Mrs Hindley) and the resignation of the replacement registered manager (Mrs Ali). Concerns were recorded by the Respondents as to individual client records, staffing generally and fire precautions. Complaints were received as to lack of food for residents, medication staffing, tire prevention and the proprietor's attitude towards staff. Two members of staff who had left the Home received Solicitors' letters from the Appellant.

The Environmental Health Officer visited the Home on 8 June 1990 in connection with a number of unmarked, damaged cans of food found in the store at the Home. On 9 August 1990 a letter was sent by the Respondents to the Appellant warning him of the possibility of legal proceedings being taken against him. The Respondents were informed by the Fire Prevention Officer that a fire-incident - (smoke remaining in the system, following a fire involving a cloth and toaster, so that the bells would not turn off) - had occurred on 27 August 1990. The Respondents had not been informed.

On 7 September 1990 the Appellant was informed of a proposal to prosecute him for breach of Regulations. [After the court hearing in January 1991 the matter was not pursued because of the proposal to de-register the Appellant]. During this time and over the next few months further concerns were noted by the Respondents, in particular regarding medication and staffing problems. In January 1991 the manager, Mrs Foster, resigned. The Appellant informed the Respondents he proposed to lease the Home to a Mrs Goodship, later saying that he would not in fact be leasing the Home to her but wished to have her registered as manager. The Respondents did not approve of this registration. The Respondents continued to express various concerns.

On 29 January 1991 the Appellant was given written notice of a proposal to cancel his registration. In February the Appellant gave written notice of his intention to make representations. The Sub-Committee meeting arranged for 15 March was cancelled at the Appellant's request. The Respondents continued to express their concerns. Mrs Goodship remained as the unregistered manager of the Home. On 8 July 1991 a Regulation 20 notice, concerning locked doors and the lack of adequate precautions against the risk of fire was sent to the Appellant. On 22 July 1991 the Sub-Committee met to hear the Appellant's appeal and upheld the proposal to cancel his registration. In August the Appellant appealed to a Tribunal.

In October 1999 another Regulation 20 notice (on substantially the same grounds) was served on the Appellant.

Applications for Adjournments

First Application

By a letter dated 12 May 1992 the Solicitors then acting for the Appellant wrote to the Secretariat requesting an adjournment on the grounds that the Statement of Reasons and the bundle of documents had been received on 22 April, out of the 30-day time limit imposed by the Rules. They said that in view of the far-ranging and detailed allegations made by the Respondents they needed much more time to consider these with the Appellant. They said that witness statements had been received outside the 14-day period contemplated by the Rules, and that there was insufficient time to consider all the evidence and allegations, and to take instructions, prepare necessary proofs and so on.

They also felt that the case might be likely to continue for more than the two days set down, and that it may prove necessary for the Respondents to call more witnesses. They said that, in the absence of the adjournment being granted on the documents alone, they would not be present and that the Appellant would attend in person at the hearing to renew the application. The Respondents opposed this application and the Chairman decided that, since the issue was contested, it would be appropriate for the Appellant to make his application at the beginning of the hearing when full argument by both parties could be heard.

Second Application

At the beginning of the hearing the Appellant made a second application for an adjournment. The Appellant merely stated that his solicitors' letter "sums up the whole thing". The Respondents' submissions, in brief, dealt with the need to see the application against the background of the case, that the Appellant's registration had been cancelled in July 1991, that there were presently eighteen residents at the Home and that the uncertainty caused to them by this continued delay was contrary to their welfare. Provisional arrangements had been made to rehouse them in the eventuality of the Appellant's appeal failing, but it was against that background that the objections were made.

Briefly, if the documents were outside the 30-day limit, which was not accepted, it was only by a day or two. If the bundle was served on 22 April, the 30-day period could be deemed to have ended on 19^th. This was a weekend. The Respondents erred, in making this date, on the cautious side, giving the Appellant the benefit of the doubt. The documents were sent to the solicitors then acting for the Appellant by DX (Document Exchange) on 15 April. In any event, the substance of the documents contained in the material had been available to the Appellant for a long time. He had had all the papers. He had received the Sub-Committee Report of their meeting in July 1991 when the decision to cancel had been upheld. The Report did not name names but it was difficult to see how the mere supply of identifies made any difference to the case.

Three weeks was a long enough period in which it must be possible to prepare a case of this nature, given that it is fairly substantial with some 52 documents. Any competent solicitor, particularly a firm which specialises in this kind of Tribunal work, should be able to assimilate the allegations and be able to prepare adequately. The allegations were crystal clear. They had been known since July 1991, having been put to the Appellant in numerous correspondence. In these wide ranging, detailed allegations none can be found which had not been made known before. The Respondents were very cynical to this application. The longer this appeal lasted the longer the Home would remain open. The residents were entitled to know where their future lay.

As to the witness statements, the Rules do not specifically require such statements to be served. The Respondents interviewed a number of residents, for example, but they did not intend them to give evidence before the Tribunal. There was a degree of flexibility. This was not a court of law, although the rules of evidence could not be abandoned completely. Most of the witness statements were from Respondents officers. The essence of the case against the Appellant depended on them. One or two other witnesses had been unable to be traced. Some made no statements. But none, it was hoped, would take the Appellant by surprise. For every allegation made there was a reference in the detailed introduction. Even though the Appellant was unrepresented, it was in the interests of justice that the Tribunal continued.

A footnote was added. Concern was expressed regarding the Appellant being left, if the solicitors were in funds, to address the Tribunal himself, without a legal representative. This was a gun being held to the heads of all involved, that is to say, that if the application to adjourn were not granted, the hearing would proceed immediately with the Appellant unrepresented.

The Tribunal, after hearing these submissions, and after retiring for ten minutes to reread the relevant letters and to decide when or not to grant the application, dismissed it. It adopted the submissions of the Respondents and rejected those of the Appellant.

Third Application

At the conclusion of the Respondents' case the Appellant was asked if he was ready to proceed. He said yes. He was asked how many witnesses he proposed to call. He said ten. The Tribunal asked for a list of names. He asked for time to think about this and write them down. He was asked if they were ready to give evidence. He said yes. He was asked if any was in court. He said no. He said he had notified them but that his solicitor had not had time to take statements. He asked to consult with his solicitor by telephone and the Tribunal expressed surprise that this had not been done when his adjournment was refused. He asked for an adjournment in order to do this. This was given.

On his return the Appellant said that his solicitor had advised him to ask again for an adjournment on the grounds of the late time of the Respondents in serving papers and statements. He said he had not had an appropriate opportunity to prepare his case. The Respondents, when invited to respond, raised the same objections that had been given earlier that morning. They added that at the July Sub-Committee meeting apparently a similar situation prevailed. At the outset the Appellant alleged he had not received the papers and asked that the meeting should not proceed. That application had been heard in detail and was discussed for a considerable time. After hearing the Respondents' case the Appellant again expressed ignorance as to the proceedings and asked for the case to go off since he had no witnesses available. This renewed application was regarded with cynicism. Whilst one was prepared to accommodate and sympathise with unrepresented persons, yet it was inconceivable that the Appellant was not in a position to go on today. The witnesses did not appear to have been warned or interviewed. However, very reluctantly, the Respondents would be prepared to accept an adjournment until the next morning, during which period witnesses could be made ready.

The Tribunal again refused the application to adjourn generally but allowed an adjournment until the following morning (it was 14.45) in order to give the Appellant the opportunity to get together his witnesses.

Fourth Application

The following morning the Appellant made his fourth application for an adjournment. He said his lawyers advised him to say that it was contrary to natural justice to proceed with the case, that they had only had a short time with the papers. He said he did not wish to participate in the hearing due to a breach of the Tribunal Rules. He was not withdrawing from the appeal but wished for an adjournment since there had not been enough time to prepare his case. The Respondents were in total breach of the Tribunal Rules.

In response to this the Respondents found it difficult to add to what had been said previously. They were unclear which Rules had been breached. If Rule 5(2), then the Respondents say that they have complied with the time limits. Even if they have not, the Rules are not mandatory in that an adjournment would automatically be granted. In any event Rule 5(2) refers to the Statement of Reasons and not to the evidence by which such Reasons are to be proved. The Tribunal had a complete discretion, set out in the Rules, to regulate the proceedings, including the power to adjourn if necessary. It was submitted that the Tribunal had listened with very great tolerance to two previous applications yesterday and bent over backwards to adhere to the rules of natural justice in processing those applications.

The Tribunal adjourned once more to consider the application, in particular to consider the rules of natural justice and whether the Appellant had been given the opportunity to know the case against him and to answer it. It retired for thirty three minutes.

The Tribunal then caused the solicitor for the Respondents who had prepared the bundle, to be sworn and asked her questions as to when and how the bundle was despatched. They were sent on a Wednesday (15 April), and the solicitors concerned stated that they "received them" on 22nd. It was important to note that the weekend was the Easter weekend. It was also relevant that the Appellant's solicitors did not write until 30 April notwithstanding their alleged receipt of the documents on 22nd April. The Tribunal again rejected the application for an adjournment, being satisfied that there was no breach of the rules of natural justice.

The Appellant decided to call no witnesses and declined to give evidence. Throughout the Respondents' case he declined to cross examine any of the witnesses. The Tribunal explained to him what the lack of cross examination meant, (e.g "you have challenged none of their evidence - "Correct". "Do you realise the implications?" "I do" etc). However, when it was put to him that, if the appeal failed his registration would be terminated forthwith, he replied "No, I did not know. I do now, now you have told me." It was explained to him that if he gave evidence he would both be able to put forward favourable evidence as to his fitness but that he would also be liable to cross examination.

Anxious to afford the Appellant every chance, the Tribunal adjourned the hearing at 11.55 in order to give the Appellant a further opportunity to reflect on whether he should give evidence. After the luncheon break, during which time he had apparently again consulted on the telephone with his solicitors, he said he would like to give evidence.

The Respondents' Case

The Reasons on which the Respondents relied to support their cancellation related to fire procedures (for example that staff training on emergency procedures in the event of fire was highlighted as an issue and also the need to carry out checks on emergency fire procedure: this was not done); to staffing (for example night staffing had been highlighted as an issue and an agreement had been reached with the Appellant as to the required numbers. Despite this, on several occasions it was found that this was not being adhered to and that there was inadequate cover); food (for example, Environmental Health Officers found food kept on the premises in an unsuitable condition which could have led to a food poisoning problem in the Home), and medication, (for example medicines incorrectly administered by inexperienced and untrained staff). All these allegations were supported by inspection reports, statements by officers, statements and comments from staff both past and present, letters between the parties, and other letters, and so forth, set out in more than fifty pages of written evidence.

The case was largely factual with little law involved. The Respondents, because of their powers, have an enormous responsibility to exercise their discretion fairly when dealing with the registration of a Home. This is not only because there is a right to appeal any decision they may take, but also because it is in the interests of good local government that proper, well-run Homes are provided in which residents can be happy and contented, and where officers can respose confidence in the staff which run such Homes.

This case has proved one of the most bizarre ever encountered by Counsel because of the attitude adopted by the Appellant to the proceedings. His various applications for adjournments were demonstrative of an obtuse and obstructive approach to the entire business of the investigation of his Home. It has been suggested that he says what people want to hear. The unchallenged evidence of the Respondents made it difficult for Counsel as an advocate to deal with. But time and time again the Appellant had been told about deficiencies. Whilst he may have "smartened up his act" temporarily, yet these deficiencies kept cropping up. Whether dealing with his attitude to staffing, to staff leaving, residents going hungry, medication problems, fire prevention, there was not, as the Appellant suggested, a short period of difficulties due to one troublesome manager. History kept repeating itself. There were initial investigations in May 1990, then allegations made by Mrs Ali. Similar allegations were made by Ms Maxine Bramall, again obliquely by Mrs Foster, again by Mrs Giles and by Mrs Marsden. All were staff who had worked in the Home and all said that the Home was not run properly. There was the second-hand evidence of the residents themselves, who witnessed unpleasant scenes, who were intimidated. There were clear indications that medication had been administered in an inappropriate way.

The Appellant's response to these allegations was to brush them aside, to state that they were simply untrue. Yet he offered no motive as to why these people, genuinely concerned about the residents in their care, were saying such things. When Mrs Ali, the manager resigned, she received a letter from the Appellant's family solicitors threatening an action for defamation and breach of confidentiality. It is bizarre on consideration of the papers that solicitors are suggesting that a lady who complains to the registration authority should be breaching confidentiality. All the indications are that the Appellant runs the Home purely as a business and not as a vocation or a care-centred project. His attitude towards Mrs Goodship is the major example of that. He refuses to co-operate with the Respondents regarding their attitude towards her. They had, it will be recalled, refused to register her as manager. One would have thought that any proprietor, the care of whose residents was uppermost in his mind, would comply with their views, no matter how much he did not accept them.

At the end of the day, experienced Respondents, who had been letting proceedings evolve since the inception of the Act, and who do not make allegations lightly, who gave many opportunities for the Appellant to put things right, only in 1991 indicated that they would be cancelling the registration. The Respondents written evidence speaks very clearly of all the concerns. The appeal should be dismissed.

The Appellant's Case

The Home had been open approximately two and a half years. There had only been troubles for some five months of that time. Prior to the opening, the Appellant had run another Home, for some three or four years. He was a fit person to run that and also a fit person up to and since, the five months of trouble at the present Home. He had several letters from residents and staff regarding his fitness. The Appellant thought the "trouble period" was about five months, possibly longer, say from May 1990 - January 1991. After January there were no problems. As to the locking of doors, this was put in hand. It was admitted that it was wrong to lock the front door and remove the key. However, it is important to state that, like other Homes, there are several means of escape and this Home had six means of escape. There were eighteen residents there at present, but this had been a slow build up. During the troubled times the numbers varied from five to nine residents, and since then it had filled up slowly.

If there had been anything of major concern to the Respondents they would have closed the Home a long time ago. There was nothing major wrong at all. The present day staff was good and the general running of the Home was good.

The Tribunal's Reasons for its Decision

The Tribunal most carefully read and studied the bundles of documents with which it was provided. These included accounts of inspection visits, letters, evidence from witnesses who were not called (for example concerning Maxine Bramall, as told to and written by Marion Turnbull but signed by Ms Bramall), reports and so forth. It also carefully read documents which were submitted later, such as letters produced by the Appellant at the hearing. It heard evidence from six of the Respondents' witnesses, none of whom was cross examined by the Appellant. It listened most attentively to what the Appellant had to say, particularly in cross examination and in answer to their own questions.

It accepts the Respondents' evidence as to fire procedures (eg as to the fact that fire doors were consistently left wedged open despite advice to the contrary); as to staffing, (e.g that lack of staff has been a continuous problem and that staff have been left in charge on at least one occasion who were not, in the Respondents opinion, of an age or experience to be able to cope); as to food (e.g. that lack of food in the Home had been a continuous complaint and one reason given for a manager's resignation); and as to medication (e.g that the keeping of medication, and its administration has been a continuous difficulty with the medicine cupboard being left open and, on occasions, medicines administered incorrectly by inexperienced and untrained staff). it finds that all the allegations were substantiated. On the evidence it is satisfied that the Appellant is not a fit person to be concerned in carrying on a residential care home, and it confirms the Respondents' decision to cancel his registration.

It reasons for reaching this decision are simply that it was completely convinced by the evidence adduced by the Respondents, written and oral, on whom the burden of proof lay. This burden was discharged on the preponderance of probabilities.

The Tribunal also found the evidence of the Appellant, particularly that adduced in cross examination, confirmed much of the Respondents' evidence in certain material respects. In particular, (apart from finding as to matters of fact, for example, that the front door was locked without a key on numerous occasions and that the Appellant, having been told about this on several occasions, allowed the situation to continue), the Tribunal is also satisfied that the Appellant is not a fit person because he appears to have no comprehension of the role of proprietor, and the responsibilities which running a Home entail. When asked what he understood to be such responsibilities of a proprietor towards his residents he replied, "Everything, Entertainment, taking them out, taking some to Community Centres, entertaining and visiting them ...". When asked how he ensured their safety he replied, "I am in there most of the time ... at set times. I do the breakfasts seven days a week. I open the post, distribute papers, arrange for the chiropodist to visit ...". He also appears to lack insight into his failure to understand his responsibilities .

He has little comprehension as to what constitutes good care practices and appears to have made no attempt to improve his knowledge as to the responsibilities of a proprietor, for example, never having been on a course or seminar, or similar. This is particularly relevant since his most recent manager, Mrs Goodship, employed from January 7th 1991 to the present time, was unregistered, and had been refused registration by the Respondents [against which an appeal had been made]. He seemed unable to take decisive action when this was required (for example about making arrangements for fire practices). He did not appear to appreciate the need to comply with the Respondents' recommendations. He appeared unable to foresee the results of his acts and betrayed an astonishing lack of comprehension as to the seriousness of the allegations made against him and as to their consequences. Whether he was deliberately obstructive towards the Respondents is hard to say, although the Tribunal had some doubts as to his apparent naivete and professed ignorance. If he were, this would be evidence of his unfitness. If he were not deliberately obstructive and simply failed to recognise the need to take effective action (such as regarding fire precautions) then he is probably unfit in any event, since his irresponsible attitude could have serious implications for the vulnerable people entrusted to his care.

The Tribunal was also concerned with his ambivalent attitude concerning Ms Lee's position, since this could reflect on the manager's authority and on the welfare of the residents. Ms Lee is the Appellant's girl friend/fiancee. She lives immediately opposite the Home and has an ill-defined yet significant role in the running of the Home. He said that Ms Lee, with no relevant qualifications, "sort of run the Home", that she "plays a major role in the general running of the Home", in particular "toileting, wages, buying food, taking out residents". He said she "was not a deputy matron nor on the rota". When asked what the hierarchy in the Home was he responded, "me, matron, Kath Owen (the deputy)," yet later, when asked where Ms Lee stood in relation to this hierarchy, he said, "on the same level as myself. She plays a key role"

The Tribunal was also very unimpressed with the irresponsibility he showed towards his legal obligations and shared the concerns expressed by the Respondents as to his attempts to delay the resolution of the dispute for as long as possible. There were also times during the Appellant's cross-examination when the Tribunal was unconvinced of his sincerity. For example, he alleged that Ms Maxine Bramall deliberately falsified her age on her job application form. He said he had all such forms with him but, when asked to produce that relating to Maxine he said that it was inexplicably lost. It found such evidence unconvincing.

Although Ms Hunt, in giving evidence, said that there were presently no major problems, yet there still remain outstanding issues, for example care plans. The Tribunal is satisfied that the Respondents have clearly proved their case and that the appeal should be dismissed.

Margaret Rutherford
Derek James
Frank Edwards