Noel and Edith Fallon v Lancashire County Council

It is the unanimous decision of the Tribunal that the Appellants' appeal be dismissed and that the cancellation of the registration of the Appellant be confirmed.

The Tribunal read the affidavit of Mrs Helen Taylor together with the statements of Mrs Ada Ormrod, Mrs Kathleen Miller, Miss Sarah Bowman, Mrs Josephine Scholes, Mr Richard Evans and Mrs Muriel Blakeley. None of these persons were present before the Tribunal. The Tribunal received a bundle of documents submitted on behalf of the Inspection Unit numbered R1 to R48, an unpaginated bundle of documents from the Respondents beginning with their letter, to Mr and Mrs Fallon, dated 20 February 1991 and a similar letter dated 7 October 1992. The Respondents introduced in evidence during the course of the proceedings a letter from the Department of Health and Social Security, addressed to a Mrs B Clay, dated 28 November 1991. The Appellants submitted a bundle of documents paginated number 1 to number 95. The Respondents also submitted a folder consisting of photographs of the Hotel Mayfair and Mayfair House.

BACKGROUND

The Appellants are proprietors of 2 Residential Care Homes known as Hotel Mayfair and Mayfair House. Both of these Homes were registered in 1984. We have heard evidence to the effect that they are within about 200 yards of each other. Essentially the Homes are maintained and run as a family concern by Mr and Mrs Fallon, their son Peter, and daughters Gena and Jayne. The Appellants, and their children, have no formal qualifications in the care of elderly people but this, of course, is not of itself a factor justifying cancellation of registration. The Respondents' Officers visited the 2 premises over a period of a number of years and became progressively concerned as a result of what they found during those visits and as a result of various comments made to them.

The general tenor of the Respondents' case is that the Fallons are not fit persons to be concerned in carrying on a Residential Care Home because of physical and verbal abuse of residents, fear of reprisals should any resident complain, lack of co-operation with and verbal aggression towards Inspecting Officers, inadequate maintenance of records including those relating to staff cover and rotas and allegations of financial irregularities. On 6 December 1991 the concern of the Respondent was such that they served upon the Appellant notice under Section 12 of the 1984 Act. As a result of representations subsequently made by the Appellants, a Special Cases Sub-Committee was convened and held on 30 June 1992 and 1, 2 and 3 July 1992. That sub-committee heard from all of the officers of the Council who gave evidence to the Tribunal together with all members of the Fallon family and Mrs Margaret Morgan, who also gave evidence to the Tribunal. It was the decision of that sub-committee to cancel the registration of the Appellants, the Appellants subsequently having appealed against this decision. The basis of the Appellants' case is that they deny in total the allegations made against them. In particular they maintain they provide a good standard of personal care for their residents, that they have at no time physically or verbally abused them and that as a consequence there can be no suggestion of any fear of reprisal in case of complaints by any residents. The Appellants also strongly deny the allegation that they have failed to co-operate with and have been aggressive towards Inspecting Officers; they also maintain that they have at all times provided proper records and that there are and were no financial irregularities.

The relevant law is contained in the Registered Homes Act 1984. Section 9 provides that the Registration Authority may refuse to register an applicant for registration in respect of a Residential Care Home if satisfied that that applicant, or any other person concerned or intended to be concerned in carrying on the home, is not a fit person to be concerned in carrying on a Residential Care Home and Section 10(a) provides that the Registration Authority may cancel the registration on any ground which would have entitled them to refuse an application for registration. The burden of proof is upon the Respondent, the test is the balance of probabilities.

REASONS

We have reached our decision after carefully considering all that we have read, seen and heard. We should say at the outset that we were impressed by the quality of evidence given by the Officers of the Social Services Department; without exception they gave their evidence in clear, cogent and convincing terms without any hint of embellishment or animosity towards the Appellants or their family. The oral evidence from the Appellants and their children, however, was of a different quality. Mr Fallon's evidence was in general vague and when pressed for replies to specific questions he frequently responded that the relevant questions would have to be addressed to his wife whom, he explained, dealt with matters of administration. We were not fully convinced that Mr Fallon had a sound grasp of the matters that needed to be addressed by the Tribunal and the same applies only to a slightly lesser extent to his wife and daughter, Gena, both of whom were, in their oral evidence, evasive and had difficulty answering directly clear questions put to them by counsel for the Respondent.

There were a number of allegations raised by the Respondent and we deal with these in turn.

At the conclusion of the evidence for both parties counsel for the Respondent withdrew the allegation of physical abuse. Accordingly it forms no part of our decision.

As to financial irregularities the Respondents' case is that they discovered, following a complaint in 1984, that 2 residents loaned to Mr and Mrs Fallon the sum of £15,000 so that a lift could be installed in one of the Homes. This matter was investigated by Mrs Edgington (together with the Divisional Director), and reports of the investigation are contained at documents R2-R4 inclusive of the Inspection Unit's documents. Letters passed between solicitors for the residents and those acting on behalf of Mr and Mrs Fallon and these are contained at documents 1-5 inclusive in the Respondents' bundle. Mr and Mrs Fallon in essence maintain that the sum of money, £14,000 not £15,000, was a discounted lump sum payment in respect of accommodation in advance. It is significant in our judgement that the first letter written on behalf of the residents, dated 11 October 1984, refers to payment for accommodation and board in advance. There is no suggestion in the subsequent correspondence that the payment was for any purpose other than this. Instead the dispute at that time was about a refund of part of the lump sum payment because the residents left the accommodation early. Somewhat surprisingly in evidence Mrs Fallon maintained that although the payment was for 18 months accommodation and the residents left after about 12 months the accommodation was kept upon by her and her husband for the remainder of the period. In our judgement this is inherently improbable. Also in cross-examination Mr Fallon accepted that a lift was installed in about October 1984. The timing of that is in our judgement significant. From the solicitors letter of 12 October 1984 it appears that the money was paid on 2 February of that year, and from the statement of Mr Harris (confirmed on oath in evidence) that would have been before the registration of Mayfair Hotel 10 December 1984, or Mayfair House, 30 May 1984. In our judgement the Registration Authority, in deciding to cancel registration, was entitled to take account of events that occurred before registration was effected. We find that there is insufficient evidence to enable us to conclude that the payment was anything other than discounted payment in advance for accommodation but this in itself, is, we find, an unsatisfactory practice on the part of those setting themselves up in business to provide personal care for the elderly. This incident, though, happened a long time ago and would not by itself have justified the Respondents in cancelling registration. Nonetheless it is a factor we have taken account of in our decision as being part and parcel of the Respondents' case against the Appellants. It thus acquires greater importance by virtue of as being combined with other relevant factors.

As to the alleged inadequacies in the maintenance of records and the difficulties in assessing the adequacy of staff cover the Respondents maintain that there has been a consistent failure to maintain proper records, staff rotas and drug records. The tenor of the Appellants' response is that as the 2 Homes were run by one family unit this made it difficult and, indeed, in their view unnecessary for them to maintain such records but that nonetheless the records required by the Respondents were maintained.

We have seen copies of many letters in which reference is made to these records. The Appellants have accepted in evidence that there was no day to day involvement by their accountants or solicitors in maintaining the records, consequently any inadequacies could not be attributed to delay or involvement by any other persons.

From the evidence we have seen and heard it is clear that the maintenance of records had been a continuing source of concern to the Respondents. It is true that the Respondents' letter of 1 July 1986 indicated that the records were found to be satisfactory and their letter of 27 January 1992 referred to the continued maintenance of records in a satisfactory manner but that letter was qualified by reference to confusion concerning management cover. Again the Respondents' letter of 20 February 1991 indicated that "in the main" the records were satisfactory but again qualified this general statement by pointing out that the residents' financial records in respect of Mayfair House were kept at the Hotel Mayfair. They should, in fact, have been maintained at the place where the residents were then living.

In contrast with these relatively isolated instances when the Respondents expressed some degree of satisfaction with the records they had seen there are many other copy letters from which it is abundantly clear that the Respondents were not happy with the information provided by the Appellants. On 8 December 1988 the Respondents letter to the Appellants specifically requested a copy of an up to date staff rota and, to assist the Appellants, a specimen rota was enclosed.

That letter also pointed out that the drug records at that time were not up to date. Additionally the staff records were not available on the visit to which that letter referred, 22 November 1988, and the letter indicates that the Appellants told the Respondents that the records were in the possession of the accountants. This does not square with the evidence given by the Appellants in the course of the hearings. In view of the lack of response to this letter the Respondents again wrote to the Appellants, on 2 February 1989, and asked for the relevant staff details within 7 days of the date of that letter. On 21 February 1989, the Respondents in referring to a visit to the Appellants premises 4 days earlier, urgently requested work rotas for both Homes. A further visit was made one week after the date of that letter and on the day of that visit, 28 February 1989, the Respondents asked the Appellants to provide detailed information including management and staff cover for each Home by 13 March of that year. The Respondents subsequently obtained from the Appellants some information but in the view of the Respondents that information was inadequate to comply with the Regulations and this prompted a further visit from the Respondents to the Appellants on 5 April 1989. Reference was again made to the Appellants failure to supply adequate records in Respondents' letters of 10 January 1990, 19 January 1990 and 6 December 1990. We have also heard evidence from the Respondents that on one occasion on a visit Mrs Fallon and her daughter,Gena, took about one and a half hours to produce documentary records. Miss Fallon disputed this and said that it only took about 5 minutes to produce those records. On this point we prefer the evidence of the Respondents. In the latter instance the Respondents pointed out that it was an offence, under Regulation 20 "to fail or contravene the Regulations relating to the setting up and keeping of records". Regulation 20 is included in the Residential Care Homes Regulations 1984.

This refers, amongst other things, to Regulation 6 which provides that the person registered shall compile the records specified in Schedule 2: This schedule in turn provides a comprehensive list of records that must be maintained and, by Regulation 6, those records shall be kept at the relevant Home and shall be available for inspection by authorised officers of the Registration Authority.

We find that the relevant records have not been property maintained or produced by the Appellants. Their evidence to the effect that it was difficult to compile such records, because of the fact that the Homes were run as part and parcel of a family unit, but that they did their best and did in fact come up with the relevant information, lacks conviction and is contrary to the clear and specific evidence given by the Registration Authority' officers that despite repeated requests and offers of help in the compilation of such records the Appellants consistently, over a long period of time, failed to supply the necessary information. The Appellnts in our view have failed to grasp the importance of keeping these records and seemed to have regarded the Respondents' attitude as an unnecessary and irrelevant bureaucratic intervention in the running of their Homes. We understand that the compilation and maintenance of those records may be time consuming matters but they are statutory requirements and compliance is not optional. Mrs Gordon, cross-examined, said that good record keeping was an indication of good care and was to do with protecting residents. That remark is, we feel, most pertinent. We are bound to say, though, that the Appellants never seemed to have accepted their obligations in this respect.

There is another matter concerning records and financial procedures which has not been proved against the Appellants to our satisfaction: At a visit on 2 August 1991 Mr Harrison and Mrs Gordon obtained the signatures of 5 residents including Mrs Jackson and Mrs Ormrod.

The Department of Social Security subsequently informed the respondents that those signatures did not match with the originals held in the possession of the Department. The Respondents clearly believed that the Appellants had been signing and cashing the residents' pension book orders without their knowledge or consent. The fact that the Department has taken no action in view of the apparent discrepancy over 2 signatures is inconclusive - there may be any number of explanations about that but in any event we have seen no conclusive evidence to support the Respondents suspicions in this regard.

One of the Respondents major concerns was that relating to verbal abuse from Appellants and their failure to provide co-operation with Inspecting Officers. This aspect has been a continuing thread in the evidence given by each and every one of the Respondents' Officers. They all gave forceful and convincing evidence as to the attitude displayed by the Appellants. We have heard from the Respondents that visiting officers had to attend the 2 premises in pairs, the normal practice in other homes being for officers to visit individually. The Appellants, on the other hand, maintained that they had not been verbally abusive or aggressive, rather, they say that they had not simply accepted without question what the Respondents had had to say but they have exercised their lawful right to make proper enquiries. There is a wide gulf between the parties and, we find, between perception and reality on this issue.

Mr Harris referred in his statement to a visit some years ago when he saw Mr Fallon senior. That statement refers to Mr Fallon as exhibiting a surly attitude with hostility towards bureaucracy. Mr Harris was quite clear in evidence that Mr Fallon accused him of wanting to take bribes although in his evidence Mr Fallon denied this.

Mr Carr in his statement referred to Mr Fallon senior as being angry and flippant, Mrs Edgington indicated that during visits "the whole family would tend to congregate round and would all talk at once" and that Mr Fallon senior and the family generally were defensive and had difficulties in remaining calm. In his statement Mr Donnelly indicated that Mr Fallon senior was aggressive, during a visit in December 1989 and a subsequent visit, with Mrs Edgington, on 29 November 1990. That statement also referred to "a torrent of abuse". Mrs Russell's statement referred to a visit in November 1988 when Mr Fallon senior was agitated and in which a family row ensued as it did in December 1991.

Most of the allegations of abuse relate to Mr Fallon senior but Mrs Gordon's statement refers to a visit on 29 July 1991 when Miss Gena Fallon was aggressive (along with her father) and when, Mrs Gordon said, she was "accosted by the family in front of residents" with the Appellants shouting. The remainder of Mrs Gordon's statement refers to lack of co-operation and verbal aggression on other occasions. The same is true of the statement of Mr Harrison in which he makes a reference to the Fallons attitude upsetting residents.

By and large, the Respondents maintain, theres were no serious problems with Mrs Fallon or with Miss Gena Fallon but that great difficulties arose because of the attitude displayed by Mr Fallon senior who, according to the Respondents, was without exception uncooperative and at times physically threatening.

Some of the Respondents Witnesses referred to what were clearly eyeball to eyeball confrontations with Mr Fallon senior in hostile and extremely difficult situations, some of which took place through no fault of the Respondents' Officers, in front of residents and must clearly have had a most distressing effect upon them.

The Respondents' Officers were consistent and straightforward in giving evidence. That evidence, we find, had the ring of truth about it, not diminished by the fact that some of the incidents referred to took place several years ago. We accept that Mr Fallon at all material times was physically threatening and verbally abusive, unco-operative and hostile towards the Respondents' Officers when they went about their lawful business. We also accept that the Fallon family as a whole placed unnecessary obstacles in the path of the Respondents' Officers making it virtually impossible for them to carry out normal inspection visits whether announced or unannounced. Although the allegations are primarily against Mr and Mrs Fallon, the Appellants by virtue of their being joint registered proprietors, we find that we are entitled to take into account actions by other members of their family since they were members of staff, and in theory at any rate, subject to the control of the Appellants. That degree of control, however, seems to have been of little or no practical effect, as witness the family arguments with the Respondents' Inspecting Officers, sometimes in the presence of residents.

The Respondents refer to one incident, amongst many, when Mr Peter Fallon asked a resident, Mrs Kieron, to leave.

Mr Fallon maintained in evidence that Mrs Kieron was a short term resident who was independent and able bodied but the plain fact of the matter is that she was a resident at the time he asked her to leave, with no notice and apparently in a fit of pique because of an argument about some pillows, and with no consultation with his father or mother. Whether or not Mrs Kieron was indeed fit, active and had alternative accommodation does not materially affect the issue which, apart from allegations of a hostile attitude on the part of Mr Peter Fallon, relates to questions of judgement, control by the proprietors and of the need to display an understanding and caring attitude notwithstanding that staff and proprietors may not at all times have an inner sympathy or agreement with the views expressed by residents. We have heard evidence from Mrs Wymark and Mrs Bowman, friends of Mrs Kieron, who on the day of the incident accompanied her and helped her to remove her belongings. They were consistent in their evidence that Peter was aggressive and unhelpful and that he, in effect, created a hostile atmosphere in the presence of this resident. That is denied by Mr Peter Fallon. We have also heard from an employee of the Appellants, Mrs Morgan, who supports the account given by Mr Fallon. Mrs Morgan said that Mr Fallon was calm and that she heard no screaming or shouting. As with the other allegations there is an irreconcilable divergence of opinion as to what happened. We prefer the evidence of the Respondents on this point.

We find that the Respondents' allegations of lack of co-operation with Inspecting Officers and of verbal abuse are made out. Those allegations are also relevant to the issue of fear of reprisals on the part of residents, should they complain.

We have seen documentary evidence from some residents who do indeed indicate that they were afraid of reprisals but balanced against that is the evidence, from residents and their relatives, contained in the Appellants' bundle of documents, such evidence indicating that there were no problems of this nature.

In our judgement the attitude displayed by Mr Peter Fallon to Mrs Kieron could not have been an isolated incident on the part of himself or other members of the family. Having regard to the overall attitude of the Appellants and members of staff towards the Inspecting Officers, taking account of the fact that some arguments happened in front of residents and considering the documentary evidence we accept that at the very least there would have been an atmosphere of apprehension felt by most residents and that this would inhibit them in making any complaints direct to the Appellants or through the Registration Authority. The fact that the Appellants were liable to fly off the handle when they had to meet Inspecting Officers is in our judgement indicative of their general attitude towards what they perceived as complaints and interference.

Although we do not feel it forms a significant part of the Respondents' complaints against the Appellants we heard evidence that the Respondents were not satisfied with the fact that the meals were cooked at one of the Homes and transported to the other. This by itself would not provide grounds for cancelling registration, nonetheless we consider it to be an undesirable practice. Similarly the Respondents have referred to the fact that some residents rooms had mortice type locks: In the view of the Respondents this was an unsatisfactory practice since it could have led to residents locking themselves in and being inaccessible to care staff.

The Appellants, however, maintained that the locks were inoperable since no keys were available and we accept this. Nonetheless we were concerned to hear that one resident, Mrs Margaret Johnson, had her room used by the visiting hairdresser from time to time. The Appellants maintained that Mrs Johnson had a good relationship with the hairdresser and that hairdressers as such had a particular fascination for Mrs Johnson. Consequently, Miss Gena Fallon maintained, it was simply complying with Mrs Johnson's wishes that she be allowed to be in contact with the hairdresser. Miss Fallon also said in evidence, however, that Mrs Johnson was schizophrenic. She could, as an elderly and mentally infirm resident, scarcely be expected to decide what was in her best interests and the use of her room by the visiting hairdresser on a regular and frequent basis was an unacceptable practice as being an invasion of the privacy of the resident. Irrespective of Mrs Johnson's perceived wishes that practice should not have been allowed to continue. The fact that it was is in our judgement a further example of the lack of appreciation by the Appellants of the particularly sensitive nature of their role and of the duties and responsibilities incumbent upon them as a result.

We find, therefore, that the Appellants are not fit persons to be concerned in carrying on a Residential Care Home and we uphold the decision of the Registration Authority to that effect. We are somewhat concerned that, despite the serious nature of some of the allegations, the matters the Respondents now complain of and in which we have found in their favour went on for a number of years. It is clear from some of the letters we have seen from the Respondents that they tried to remedy the situation but without success.

We would have thought that the Respondents would have been able to take much earlier action than they did in order to bring matters to a head. Notwithstanding that the strength of the Respondents case is not affected by the passage of time.

Mr S J Pacey
Miss M O Woodier
Mr J I Stephens