Mr and Mrs A Bennett v Lancashire County Council

The Tribunal is unanimous that the appeal should be allowed and directs that the decision of the Respondent shall not have effect.

REASONS

Preliminary

The Appellants were first registered in respect of their Home on 28th September 1988. Their previous experience was insufficient to qualify either of them for registration as a manager of the Home; they were registered as the persons in control. A Mrs Wilson had already been engaged as manager in August. She remained in that employment until 16 November 1988. A Mrs Quinn commenced employment as manager on 21st March 1989 and left on 9th April. A Mrs Beddows became manager on 9 October 1989 remaining until 26th March 1990. The statutory fee of £155 was duly paid in respect of each application for registration of a manager. These three ladies gave evidence for the Respondent (as also did a care assistant, Rhona Roach, who was employed in the Home between March and August 1989). Thus in fact the Home was run by the Appellants themselves - chiefly Mrs Bennett - without a registered manager for some 10 out of a total period of approximately 16 months. A notice under regulation 20(1) of the Residential Care Homes Regulations 1984 was served on the Appellants on two occasions - on 31st January and 27th April 1989 - alleging a breach of regulation 10(1)(a) and specifying a period of 21 days within which to remedy it by the appointment of a suitable manager. On neither occasion was the breach of regulation 10(1)(a) taken further.

Responsibility for the inspection of Appleton House was, at all material times, vested in Mr Sloan who took up his duties as an inspector in February 1987. His first contact with the Appellants was on 3rd April 1987. He visited the Home in total six times before registration and some sixteen times thereafter. Towards the end of March 1990 his duties in respect of the Home were allocated to another inspector. Mr Sloan agreed that there is very little of significance relating to the care of the residents that he could criticise before the Tribunal. In his opinion the most serious concern was the degree to which Mr and Mrs Bennett were alleged to have interfered with the managers in their duties of management of the Home. Also it was reported to the registration authority by three of the ladies mentioned that Mr Bennett had, during their short period of employment, behaved towards them in a crude and suggestive manner. The evidence on this topic was not denied and Mr Bennett was not called to give evidence. Perhaps the particular event which precipitated the proposal to cancel registration was the complaint of Mrs Quinn to the registration authority that (some six months after leaving her employment at the Home) she had received a strange variety of unsolicited goods at her home from deferent mail order sources and had discovered that the person responsible for causing the goods to be sent to her was Mrs Bennett. The evidence given to the Tribunal by Mrs Quinn on this topic was not challenged; Mrs Bennett has not denied the facts.

On 12th January 1990 notice was given of a proposal to cancel the registration of the Appellants. On 15th and 19th March 1990 the Special Cases Sub-Committee heard the representations of the Appellants and decided that the proposal should be adopted. A Mrs Jean Hartley became employed as manager at Appleton House on 9th April 1990 and is still so employed. To our surprise she has had no contract of employment, as was the case with the other three managers. She took over after the departure of Mrs Beddows. On 23rd April notice of appeal was sent to the Respondent.

Appleton House

Mr Sloan acknowledged that "the material provision for the residents in the Home is first class". We visited Appleton House ourselves and have no reason to disagree with him. It is a pleasantly appointed and well equipped small home in very good decorative order - no doubt due to the input of Mr Bennett who has been a builder by trade. It is nicely furnished. There are 5 single and 2 double rooms. In almost all respects it was evident that attention had been given to detail. We saw only two of the residents, the others were out doing things, nevertheless one could, without difficulty, detect a homely atmosphere.

Findings

At the outset, we are anxious to emphasise that the parties should not presume from the result of this appeal that, in any real sense, one of them is ‘the winner’ and the other ‘the loser’. Our decision is the outcome of somewhat longer deliberation than is usual in such cases and depends very much on our view of the inferences to be drawn from facts which redound to the advantage of neither side. Both parties, we believe, have something to learn and we trust that they will.

We are satisfied from the evidence of their previous experience that in the beginning Mr Sloan and Mrs Bennett were, in their respective capacities, newcomers. Mrs Bennett (and no doubt her husband) had a vision of Appleton House being a family-run, small but nevertheless profitable care home of high quality with a happy atmosphere. They neither of them had any real experience, but they decided to embark on the venture and we are sure that Mrs Bennett imagined its accomplishment would not be too difficult. She seems to have had but a superficial idea of the various statutory requirements that it would entail and of how it would work out in practical terms. Mr Sloan seemed quickly to grasp the situation and applied himself keenly to ensuring that ‘the letter of the law’ would be observed. It was inevitable that some disappointments must be in store for the Appellants and, not least of these, the requirement that a manager had to be employed. Both Mr Sloan and Mrs Bennett seemed to lack the personality and the ability or expertise to deal with this conceptual clash. Thus, at a time of the greatest importance that each side should understand the other, the necessary rapport was not established and a satisfactory professional relationship never developed.

Against this background we have no doubt that Mr and Mrs Bennett tried hard - and under some stress - to pursue their initial objective. So far as the Home itself and the quality of care of the residents were concerned, they succeeded. In some respects they appear to have infringed the regulations. They incurred the displeasure of the registration authority, but they did not do so to an extent, or with a wilfulness or disregard, which satisfies us that they are unfit, or which in our opinion merits cancellation of their registration, in terms of the appropriate paragraph of section 9.

The principal matters which give rise to an element of doubt as to their fitness are the allegations concerning their conduct towards certain members of their staff - and it is these which have given this Tribunal the greatest difficulty.

Mr Bennett’s rather coarse behaviour, as described by the several female witnesses and not challenged, might have been acceptable by the standards of a young and frolicsome female employee in the possibly greater intimacy of a small builder’s office. Understandably it was not acceptable to those ladies who complained about it; nor was it regarded by the registration authority as acceptable behaviour on the part of a registered proprietor in a residential care home. However, in the absence of an explanation from Mr Bennett himself, we were left wondering whether such conduct was typical of him, or indicative of some sexual or madcap propensity, or a spontaneous and inelegant piece of tomfoolery. We doubted that such tactless behaviour was necessarily intended to be expulsive and found lacking any evidence as to what (if any) was his motive. Having given all the evidence available the most anxious consideration, we cannot say we are satisfied of the likelihood that he intended to insult or annoy, or that he expected his conduct to be taken so seriously, or that he will ever be so foolish or impulsive as to repeat such behaviour towards any staff of the Home again. With regard to his alleged preoccupation with finances, we have no doubt of his understandable concern that the Home should be run on a profitable basis; this does not appear to us to have materially affected the standard of care provided nor his conduct or attitude towards the residents. He was described as a perfectionist and accused of being over-critical of staff. However, we doubt that it would be right or justifiable to draw the inference from any particular aspect of the evidence about him, or the cumulative effect of the whole of it, that he is not a fit person to be concerned in carrying on a residential care home.

Of particular concern to us is the suggestion that Mrs Bennett may by nature be a spiteful or vindictive woman. We have come to the conclusion that such is not the case, but that when under stress she has shown herself to be capable of reacting with erratic or even slightly unscrupulous behaviour. Quoting regulation 9(3), the Home can hardly be said to have been "maintained on the basis of good personal and professional relationships between the Appellants and certain members of their staff during its first year of operation. That we think was partly due to the individual faults and inexperience of both Appellants but largely due to their managerial predicament and inability to cope with that. On the other hand we consider that the difficulties of the Appellants were magnified by Mr Sloan’s inability to form a trusting and facilitating relationship with them, his rather too rigid stance, his omission to raise and discuss with them promptly his concerns, and his erroneous perception of those early managers as being approved agents of the registration authority. With regard to the ordering of goods in the pretence that she was Mrs Quinn, Mrs Bennett strongly implied in her evidence before the Tribunal that her actions were more or less spontaneous and there was no proof to the contrary. She told the Tribunal that she does not know to this day what - apart from frustration - made her do such a thing and that it is something which she will regret for the rest of her life. We accept her evidence as to that. When questioned by the police she admitted to them what she had done, no proceedings have resulted. Having regard to the favourable evidence about her from other people we think it likely that such conduct is uncharacteristic and unlikely to be repeated in the same or any similar form. Applying the burden and the appropriate standard of proof to all the evidence concerning Mrs Bennett we cannot say that we are satisfied of the probability that she is unfit in terms of section 9(a).

CONCLUDING REMARKS

In allowing the appeal we feel bound to express some anxiety concerning the future. Notwithstanding the apparently satisfactory professional relationships that exist between the Appellants and Mrs Hartley and, presumably, the present inspector, we remain uneasy that these may be but rather fragile foundations upon which to support the operational structure of Appleton House for the time being. With two double rooms in such a small home there can be no guarantee of freedom from financial stress. It is vital that the Appellants - especially Mrs Bennett - develop a far more thorough knowledge and understanding of the principles of effective ownership and management of a residential home. It surprises us that hitherto they do not appear to have sought the support of membership of a local residential homes association. If a suitable training course becomes available, advantage of it should be taken - and the code of practice for residential care, "Home Life", should be read and read again with particular emphasis on Chapter 5. We suggest that in relation to the Home Mr Bennett should consider confining his activities entirely to office administration and, as soon as practicable, transfer the paperwork in connection with his building business to some place elsewhere. If the managership of Mrs Hartley is as successful as we have been given to believe, she should now be given the opportunity, if she wishes, to have the support and security of a written contract of employment. We hope that the parties to this appeal will take every opportunity to discuss issues and difficulties that arise from time to time in the care of residents, and relate to the running of the home and, in particular, clarify and achieve agreement concerning lines of demarcation to distinguish between the duties of the proprietors and those of the manager. Finally we trust that in due time, when Mrs Bennett has acquired sufficient knowledge and experience, the standards now being upheld at Appleton House will enable the Respondents to grant her the managership she has been seeking if she still desires it.

G F HARWOOD
M WOODIER
G HARPER