Mr and Mrs Vincent v Dyfed County Council

The Tribunal unanimously allows the appeal and directs that the Respondent's decision to refuse registration shall not have effect.

REASONS

Mrs Vincent has for some 10 years been committed to caring for the elderly and the mentally handicapped and those recovering from mental illness. She worked for 3 years as a nursing assistant at a residential care home for the mentally ill at Cudham in Kent, which was run by the London Borough of Bromley. In 1981 she was accepted by Farnborough Hospital for training as a State Enrolled Nurse. She achieved this qualification after training at Farnborough, Bromley and Orpington Hospitals. During this training she worked for 12 months in a geriatric ward, for 3 months on a ward for disabled children and for 3 months at a day centre for the mentally handicapped. Before this training was completed she and her husband (who at that time was the owner/manager of an electrical business which he ran for 29 years) decided to buy and live in a large 5-bedroomed house at Biggin Hill, in order to care for not more than 3 elderly persons or other persons in need of care. By reason of section 1(4) of the Registered Homes Act 1984 it was not necessary to register with Bromley, the registration authority for the area, but the Vincents approached the Bromley office of the Bromley Department of Social Services, which inspected their home and arranged to place clients with them. This was done, and the neighbouring Penge Social Services office, working in co-operation with the Bromley office, also placed some clients.

We heard evidence about all these placements, but it is unnecessary to go into it in detail because it can be summed up by saying that from the outset relationships between the Social Services Department at its Bromley and Penge offices and the Vincents were good, and the placements were generally successful. The unsuccessful ones were cases which the Vincents were simply not equipped to handle, and the resulting difficulties were satisfactorily handled by the Vincents, Bromley and Penge.

Bromley's placements were under its family placement scheme, which initially provided for payment to the caring family at the board and lodging rate dispensed by the Department of Health and Social Security. In August 1986 Bromley successfully appealed to a Social Security Appeal Tribunal on behalf of one of the clients placed with the Vincents for payment at the rate appropriate to a resident in a residential care home. This successful appeal (to which it will be necessary to return later) unfortunately led to a mutual loss of confidence between Bromley and the Vincents. The Vincents then approached the Lewisham Department of Social Services, which made 3 placements with them before they moved to Wales in March 1988.

The move to Wales involved the sale of the Biggin Hill house and Mr Vincent's business and the acquisition of Solbury Mountain Farm Cottages, which Mr and Mrs Vincent propose to run as a registered home for 4 mentally handicapped adults and 4 persons recovering from mental illness, specifically to prepare them to cope with life in the community. They seek registration as joint owners, Mrs Vincent to be manageress and Mr Vincent to be in charge of maintenance.

The Vincents completed Dyfed's standard application form on 30 November 1987, Mrs Vincent duly entering the names of 4 referees. And here the trouble started. Mrs Vincent did not contact any of her referees before giving their names, explaining to us that she thought they would be more unbiased if she did not forewarn them. One of her referees, Mrs Eddleston, gave a strongly adverse reference, which led Dyfed to make enquiries of Bromley. In return they received a letter from Miss Mogridge, the Bromley Assistant Director, Services for Adults, which was also adverse. Dyfed gave the most careful attention to this information and to the Vincents' submissions, the case coming before the council committees or sub-committees on no less than 7 occasions. In the result the application for registration was rejected under section 9(a) of the 1984 Act on the ground that Mrs Vincent was not a fit person to be concerned in carrying on a residential care home. Dyfed's statement of reasons served under rule 5(2) quoted from Mrs Eddleston's and Miss Mogridge's letters and continued:

Leaving aside the possibility, irrelevant for the purpose of this case, that an applicant might have a personality rendering her markedly less suitable for employment in the public sector than for conducting her own enterprise, or vice versa, we think this was a correct approach. And, on the information before them, we think Dyfed came to the right decision.

If Mrs Vincent had been an applicant for employment in one of Dyfed's homes the matter would have ended there. But because she is not an applicant for employment but an applicant for a registration under the 1984 Act the matter did not end there. Mr and Mrs Vincent appealed and this Tribunal has been able to go behind Mrs Eddleston's and Miss Mogridge's letters to an extent that Dyfed's committees and sub-committees and officers could not possibly have been expected to go.

Mrs Eddleston gave evidence before us and we found her a very impressive witness. She is a State Registered Nurse of some experience, married to a surgeon, and is resident warden of a Bromley sheltered housing establishment at Biggin Hill. She is an obviously responsible and concerned person whose evidence was well balanced and in no way prone to exaggeration. Her evidence, in essence, was that she had met Mrs Vincent at St John's training sessions in 1985 or 1986 and had been in contact, but not particularly close contact, with her ever since. Mrs Vincent had appeared to her to be under stress with which she was not coping adequately. She was highly-strung, anxious, worried and beset on all sides by problems. The strain of caring on a 24 hour a day basis for 2 elderly people appeared to be too much for her. She was in disagreement with the general practitioner of one of her clients on a question of treatment, she had financial problems, rumours that she was drinking heavily were confirmed by a person who knew her well, and she herself informed Mrs Eddleston that she had attempted suicide.

This evidence was not challenged, but it was explained to our complete satisfaction. During the period of which Mrs Eddleston spoke, but unknown to her, Mrs Vincent was suffering from bouts of serious depression, and during one such bout she attempted suicide by taking a drug overdose combined with heavy drinking. She then consulted a psychiatrist who gave her a clean bill of psychiatric health and, suspecting a hormonal problem, referred her to a specialist. The specialist confirmed the psychiatrist's tentative diagnosis and cured the problem with an implant which he renews about every 9 months. Mrs Vincent gave evidence before us for a full day and was subjected to a cross-examination which, while scrupulously fair, can properly be described as gruelling and calculated to reveal any inability to cope with stress. She acquitted herself with good humour and no sign of tension, and this fact alone, together with her obvious candour, left us in no doubt that her explanation for the bad impression she had given to Mrs Eddleston was correct.

The other details then fell into place. Mrs Farrant, the person from whom Mrs Eddleston had sought confirmation or otherwise of the rumours about Mrs Vincent's excessive drinking, explained that she told Mrs Eddleston about the occasion of the suicide attempt in which a drug overdose had been combined with heavy drinking. This was, of course, sufficient to confirm the disturbing rumours Mrs Eddleston had heard, but when seen in its proper context it does not indicate that Mrs Vincent, cured of her hormonal problem and resulting depression, has an alcohol problem. Mrs Farrant assured us she did not, and we find her artless evidence acceptable. The disagreement with the general practitioner does Mrs Vincent no discredit. She had 2 elderly patients, one of whom had terminal cancer and was in pain. His hospice nurses and Mrs Vincent thought his diamorphine injections ought to be continued but the general practitioner decided they should be discontinued as they were apparently making him vomit. Mrs Vincent thought (rightly as it turned out) the other patient had cancer and wanted the general practitioner to visit her, which he did not do. Being unhappy at this situation she asked the advice of Mrs Eddleston, a nurse with higher qualifications and greater experience, whose husband was a surgeon. This was a wise move to take, and not only did Mrs Vincent and the general practitioner remain on good terms but he has given her a good reference for the purposes of this appeal. The financial problem to which Mrs Eddleston referred resulted from the successful appeal to the Social Security Appeal Tribunal. Expecting a substantial back-payment, Mrs Vincent and her husband went into overdraft but in the end the back-payment was not forthcoming. This is water under the bridge, as Mrs Vincent is no longer suffering from depression and she and her husband are not now in financial difficulties despite the refusal of their application for registration.

The letter from Bromley Social Services, signed by Miss Mogridge, was elaborated by Miss Phillips, who gave evidence before us and who joined the Bromley Adult Home Finding Team in September 1986.

Bromley's first complaint was that after the successful appeal to the Social Security Appeal Tribunal Mrs Vincent "was unwilling to adapt her domestic regime to provide a more homely environment." It is clear to us that in this respect she did not understand, and can be forgiven for not understanding, exactly what Bromley wanted. No doubt Bromley's officers understood very well that, for the clients placed with Mrs Vincent to be entitled to their appropriate increased rate of supplementary benefit, Mrs Vincent's home must continue to qualify as a "residential care home" for the purposes of the Supplementary Benefit (Requirements) Regulations 1983 Schedule 1A para 1 read with para 6(1)(a). That is, that it must continue to be a home which, but for section 1(4) of the 1984 Act (exempting homes with fewer than 4 residents) would be registered as a residential care home under part 1 of the Act. Bromley therefore set out its requirements in a lengthy letter dated 15 October 1986 which bewildered Mrs Vincent because she was already complying with some of its requirements and others, such as "a daily menu plan should be available on a weekly basis and there for the residents' benefit" seemed to her a move away from her existing homely atmosphere. The official mind and the bewildered mind moved further apart, and Bromley's report to Dyfed that Mrs Vincent was "unwilling to adapt" has proved on full examination to be an unfair assessment.

Even more unfair was the assessment that she and her husband did not offer the level of emotional support or physical care which clients required. Bromley's letter to Dyfed based this assessment on a number of examples to which it referred, but the evidence on appeal showed all these examples to be without substance. The client who lost weight and complained of being hungry and was threatened that she would have to "go into a home" if she ate too much or if she did not comply with Mrs Vincent's routines turned out to be a lady by the name of Cynthia. She had medium level learning difficulties and suffered from obesity, anxiety and an arthritic hip. Working according to the principles set out in Home Life, Mrs Vincent cared for Cynthia for 2 years and very substantially improved her quality of life. Her weight reduced from 12½ stone to 9½ stone and stabilised there, with her reduction in weight and special shoes her mobility improved, she became more careful of her cleanliness and personal appearance, she was prepared for confirmation, and she became sufficiently self-confident to make the daily journey by public transport to and from a day centre. We were shown photographs of Cynthia and she also made brief appearances in a video which was shown to us, and they support the evidence of Mrs Vincent, which we accept. Mrs Vincent is entitled to regard Cynthia as one of her successes. Yet from talking to Cynthia, Miss Phillips became so alarmed that Cynthia was removed without prior warning to Mrs Vincent. With the advantage of hindsight we think Miss Phillips would almost certainly not have found it necessary to remove Cynthia if she had been more thorough in investigating complaints from a client with learning difficulties and a tendency to be manipulative, and if she had discussed these complaints fully with Mrs Vincent. She would then have discovered that Cynthia's weight had been stable at 9½ stone for a year, and was checked regularly at the day centre, that her stopping at a cafe on the way home was a matter of habit not hunger, that for supper she could always have what she liked, that she was never deprived of her glass of milk, that she preferred to watch TV upstairs with an elderly lady to whom she was greatly attached, that she could play her gramophone records when she liked, and that she had never been threatened that she might have to go into a home.

Bromley's final complaint, of a home that was clinically clean and with a regimented atmosphere, was also without substance. Miss Phillips, if she had asked, would have found that the breakfast trays she saw already set out in the afternoon were not an example of regimentation. They had been prepared early by Mrs Vincent because she knew very well what her clients wanted for breakfast and she knew equally well she was going to have to sit up all night with an elderly person who was dying.

In the result, Mrs Eddleston's letter and Miss Mogridge's letter from Bromley justified Dyfed in reaching its decision to refuse registration, but these letters do not in fact give a true assessment of Mrs Vincent's fitness to be concerned in carrying on a residential care home. She has submitted favourable references from a number of persons, including 2 general practitioners and a senior social worker from Lewisham Hospital, all of whom have worked professionally with her and with clients in her care. These favourable references agree with our own assessment of Mrs Vincent as we have observed her while giving evidence. It is only necessary to add (without reflecting on her fitness) that she ought to take expert advice on the difficulties that may arise from permitting young clients to treat her husband and herself as their parents, and from permitting elderly clients to leave legacies to members of staff.

There was one minor complaint which arose since the Vincents moved to Solbury Mountain. It concerned a complaint received by Mr Tilley, Dyfed's Principal Assistant, Policy Section, Social Services, from a relative of an elderly client about mouldy food in the refrigerator and the Vincents not always being present. Mr Tilley very fairly said that if this had been the only matter of complaint he would have talked it through with the Vincents and would not have laid it before the relevant sub-committee. It was sufficiently aired in evidence to be treated as if it had been talked through between Mr Tilley and the Vincents, and can be dismissed with the comment that the complaint has been noted but its reliability has not been established.

At the end of the hearing it became apparent that Dyfed, as the registration authority, had not yet completed its normal registration process. The taking up of references was one step in this process, and when its enquiries into these references produced adverse results it refused the application under section 9(a) of the Act. As it understood the position, a successful appeal by the Vincents would not result in immediate registration, but the registration process would continue and in the course of this process it might become necessary to refuse registration under section 9(b) or (c).

This view of the law came, we think, as a surprise to Mr Manning-Davies, and he was not able to urge it strongly upon us. But he does not concede that his client's view is wrong so we are required to rule on it.

It is necessary to determine the intention of the legislature in enacting section 9. There are two possible interpretations. The first is that section 9 gives a registration authority only one opportunity to refuse to register an applicant for registration, which opportunity it may exercise on any or all of the grounds set out in sub-sections (a), (b) and (c). The second interpretation is that the section gives an authority three opportunities for refusal, which it may exercise seriatim on the grounds set out in sub-sections (a), (b) and (c).

We can find nothing in the wording of the Act to point conclusively to either interpretation as correct, so we look at the practical results of each interpretation in order to decide which better fulfils the probable intention of the legislature. Whenever an authority proposes to refuse an application it must give notice of its intention under section 12(3) and its reasons under section 12(5). The procedure set out in sections 13, 14 and 15 then swings into action. If the matter proceeds as far as section 15 (appeals), representation by counsel or solicitor is envisaged by section 43(1)(c) and permitted by rule 6 of the Registered Homes Tribunal Rules 1984. No provision is made for costs. What all this means is that every refusal triggers off a process that may take months to complete, may take up a lot of the authority's time and may involve the applicant and the authority in heavy legal costs which they cannot recover even if they are successful.

If this might happen three times instead of once for each application the effect on the parties concerned is obvious. The authority's potential loss of staff time, members' time and the public money it controls may be trebled. The applicant's potential loss of his own time and money and loss of profits through delay in opening the home may also be trebled. And no less important, the potential residents may have to wait three times as long for the home to open or may find that it never opens at all because the delay and expense overstretch the resources of the applicant.

There is a salutary maxim interest reipublicae ut sit finis litium, which may be translated "it is in the public interest that there be finality in litigation". An interpretation of section 9 which entitles an authority to say to an applicant "you have won your appeal under section 9(a), but we now propose to refuse your application under section 9(b), and if you win an appeal against that refusal we will have a look at section 9(c)" flies in the face of this maxim. For this reason we cannot accept that this interpretation accords with the intention of the legislature.

It follows that, on a proper interpretation of the Act, when an authority gives the reasons for its decision as required by rule 5(2), it nails its colours to the mast, and if the mast is shot away on appeal it cannot fall back on new colours and a new mast. In other words the authority's statement of reasons carries the corollary that it has no other reasons for refusal and will therefore register if its reasons are held inadequate or unjustified on appeal. If the Tribunal directs that the authority's decision shall have no effect, the authority must register the applicant.

It follows in the present case that Dyfed is legally obliged, on receipt of this decision, to register Mr and Mrs Vincent.

We appreciate that, because of Dyfed's misinterpretation of the legal position, this may cause practical difficulties if grounds for refusal under section 9(b) or (c) come to light. If this happens, the correct procedure will be for Dyfed, having registered Mr and Mrs Vincent, to give notice under section 12(4) of a proposal to cancel the registration (or to proceed under section 11 if appropriate).

In the hope that action for cancellation could be avoided we announced our decision at the end of the hearing, making it clear that the Tribunal does not consider its decision to be binding on the parties until notified in writing with reasons, as required by rule 11(2). Our object in forewarning the parties in this way was to encourage Dyfed to complete its normal registration procedure as soon as humanly possible, in co-operation with Mr and Mrs Vincent so that if any building alterations or fire precautions have to be carried out the work can be put in hand without delay. The Tribunal has often stressed how necessary it is for home-owners and registration authorities to work in close co-operation for the benefit of residents. We were encouraged to hear both from Mr Tilley and Mrs Vincent that they saw no difficulties in the way of such co-operation, and this leads us to believe there may be no necessity for a proposal to cancel the registration. We cannot help observing that the breakdown in communications that occurred between Mrs Vincent and Bromley could so easily have been prevented by less reserve on both sides, and Mr and Mrs Vincent were undoubtedly at fault in going off on holiday without letting Bromley know in advance, even if there had been no objection to their doing this on previous occasions. Teamwork requires a positive state of mind, not a grudging acceptance of obligations.

April 1989