Delrose Haynes-McManus v Metropolitan Borough of Wirral

The unanimous decision of the Tribunal is that the appeal is allowed and that the above decision of the Respondent registration authority shall not have effect.

The Tribunal also had regard to the various documents in the bundles produced by the parties and a viewing of Hilbre Court on 15 April 2002.

BACKGROUND

The Appellant was registered as the Owner of Hilbre Court on 13 October 2000. The registration was limited to a maximum of 14 residents being elderly persons with a mental disorder. In 1991 the Appellant was and continues to be registered with her husband as joint owners of Hilbre House, a Residential Care Home adjacent to Hilbre Court. The Appellant was for a time also involved in the running of a third Residential Home, Hilbre Lodge.

The evidence shows that the relationship between the Appellant and the Wirral Inspection Unit ("IU") has not been an easy one for either party. In 1999 the Appellant made a complaint to Wirral Social Services concerning the IU. The complaint was investigated and it appears that prior to the registration of Hilbre Court an effort was made by both parties to put their relationship on a better footing. However the history of events following the registration in October 2000 is that the relationship rapidly deteriorated. It is our view that this deterioration contributed significantly to the events leading up to the Respondent's decision of 11 October 2001.

FINDINGS OF THE TRIBUNAL AND REASONS FOR THE DECISION

Because of the volume and diversity of the factual issues constituting the subject matter of this appeal, we have not set out each party's evidence in full but where necessary we have summarised a party's case as part of our findings.

We have found it convenient to consider the matters complained by the Respondent under the following general headings:

In addition to the material before the Respondent on 11 October 2001 we have had the benefit of hearing and seeing evidence in respect of events since that date. We have also been assisted by the helpful oral and written submissions by counsel for both parties. The fact that only the main points of that evidence are included in our findings should not be taken to mean that we have not taken into account all the evidence and arguments put before us.

Staffing issues

It was a requirement of registration that the Appellant employ a manager for Hilbre Court. Unfortunately the appointed manager resigned four days after registration and the Appellant has carried out that role since then. The failure of the Appellant to appoint a new manager and to employ sufficient members of suitably qualified staff was a significant part of the Respondent's case. We accept that attracting and retaining staff for Care Homes has been for some time and continues to be a serious problem for owners and managers. This has been the case for Hilbre Court. The Appellant sought to alleviate the problem in part by using staff from Hilbre House and working very long hours herself, particularly to try and meet the IU's requirement for two waking night staff. We consider that to impose such a requirement without reference to the particular needs of the residents to be unnecessarily onerous given the staffing problems it causes. The staff records kept by the Appellant were not of an acceptable standard and there was insufficient in-house training for new staff.

The Respondent relied very much upon the staff rotas to support its case on lack of sufficient staff and related matters. We do not regard these rotas as such as a particularly reliable source of evidence as to actual staffing at any given time and we adopt the observations of the tribunal in RHT Decision 190 on this point.

We looked for evidence of any lack of care or other adverse effect on the residents arising from the staffing problems. In this context and also in respect of the other matters relied upon by the Respondent we did not find any such evidence. The evidence we heard from the relatives of three residents was that they are happy and well cared for although we have also noted the written evidence of complaints made in 2001 concerning one resident. Mr Fawcett, the Appellant's independent expert visited Hilbre Court on 4 April this year and "found the standard of care provided to residents was very high". We were also told that the Respondent placed residents in Hilbre Court even after the date on which the Appellant was notified that the IU intended to seek cancellation of her registration.

The Appellant has recently invested much time and money in arranging to bring in suitably qualified workers from the Philippines to meet the problem of staff shortages. This new staffing arrangement should allow the Appellant the opportunity to make good the deficiencies in records and training of staff

Care Plans and Medical Assessment records

The Care Plans created for residents seen by the IU were thoroughly unsatisfactory and acknowledged to be so by the Appellant and Mr Fawcett. However on 4 April 2002 the staff he spoke to "had a very good understanding of each individual resident's needs, and the action to be taken in difficult circumstances, e. g. coping with challenging behaviour." We were told that steps are now being taken to remedy this situation.

When the IU inspected the residents' files, in some cases there was an absence of documentation to evidence that residents fell within the category of MP/E for which Hilbre Court was registered. By the time that Mr Fawcett came to inspect the files, this deficiency had been remedied and we found no reason to suppose that any resident was inappropriately placed. In any event, all residents placed by a local authority or from hospital would have been assessed as suitable prior to any placement.

Also within the respondent's case of the absence of proper record keeping was the absence of any evidence of menu planning. Criticism was also made of the adequacy of food stocks. We are not aware of any complaints of inadequate amounts of food being provided to residents on the part of relatives or others nor of any resident being malnourished.

The condition of the premises

A lift had been installed in Hilbre Court prior to registration. A dispute between the Appellant and the installation company meant that the lift remained out of action for a considerable time but is now working. We do not regard this situation as satisfactory but the consequences of the lift being out of action were not significant.

On a number of occasions the IU and others found that fire doors at Hilbre Court were being wedged open and there was no record of any fire drills having taken place. The practice of wedging doors has stopped however we regard these matters as serious particularly given the Appellant's apparent attempts to justify the practice.

Administration of drugs

On two occasions in February and March 2001 the IU found errors in Hilbre Court residents' medical administration records. There is no suggestion that such errors have occurred since.

In February and March 2002 two ex-members of the care staff made statements for the purposes of this appeal. In these statements and their oral evidence they assert for the first time that sometime between November and December 2000 residents may have been given drugs for non-medical reasons. The matter was not reported to the IU or elsewhere and both staff members continued to work at Hilbre Court after they say their suspicions were aroused. They even asked the IU to be considered for the post of manager. The oral evidence of these witnesses was both vague and inconsistent in various respects and given the serious nature of the allegation we do not find it proved.

Obstruction of the IU

It was unfortunate for the relationship of the IU and the Appellant that very shortly after the registration of Hilbre Court the IU in effect altered their waking night staff requirement from one to two. This created an immediate staffing problem for the Appellant and an additional financial burden.

Thereafter Inspectors visited HilbreCourt weekly on monitoring visits. A formal letter itemising various deficiencies and requesting a response as to when they were to be remedied followed almost all these visits. We do not find that this practice was motivated by any hostility towards the Appellant but she saw it as harassment and evidence of the IU's lack of any intention to adopt a new approach. In her circumstances of trying to set up and run a new Home with a staff shortage we have some sympathy with the Appellant's view. The situation was made worse by the Appellant's continuing failure to reply to the Respondent's letters. She explained this in evidence by reference to the burden of work and also her dyslexia, which makes it difficult for her to compose and write letters. This impasse led to a serious deterioration in the relationship between the parties and culminated in the Respondent's decision of 11 October 2001.

The IU could have adopted a more advisory/supportive rather than a formal regulatory approach to the problems at Hilbre Court or at least altered the latter approach when it became apparent that it was not producing the desired results. In which case the instigation of the process culminating in this tribunal hearing may not have taken place. We do however accept that this was a situation for which both parties bear some responsibility.

Conclusions

We have allowed this appeal in part because of the improvements now existing and proposed in the care planning and staffing at Hilbre Court, particularly the prospective appointment of a manager. If it had been possible to recruit and retain a competent manager then in our view the situation that developed in the twelve months after October 2000 might never have come about.

However, if these improvements do not take place and the Appellant does not come to terms with the necessary role played by the regulatory authority in maintaining appropriate standards in the care of those in residential care, then the events which brought about these proceedings could reoccur.

Anthony Wadling

17 June 2002