Kushwat Kaur Chauli v Coventry City Council

It is the unanimous decision of the Tribunal that the Appeal be dismissed.

REASONS FOR DECISION

Introduction

The Appellant

The Appellant has cared for people with learning difficulties for many years. She came to this through working as a cook at Maurice Edelman House and becoming interested in the residents. She expressed an interest in fostering. Two of the residents began visiting her and her family and, in 1988, she and her husband were approved to provide up to three adult family placements and the two residents were placed with them. When the provisions of the Registered Homes Act 1984 were extended to "small homes" in 1993, she and her husband were registered under the Act. The registration initially permitted not more than three persons with learning difficulties (MH) to live in the home and be provided with board and personal care there. It was later varied to refer to two persons with learning difficulties (MH) and one elderly person (I). Sadly, the Appellant's husband died in November 1997 after a period of illness. Her children are now grown up. She alone is registered in respect of the home.

The premises

277 and 279 Anstey Road are adjoining terraced houses, linked on the ground floor via a conservatory which extends across the back of both houses and on the first floor by a door between the two hallways. Both houses continue to have their own kitchens and bathrooms and, to some extent, have been seen as separate establishments; 277 being the Appellants' home and 279 being where the resident live. Thus, the residents have not been quite as much part of the same household as the proprietor as is often the case with "small homes".

The residents

In 1998, there were three residents and, unusually, we have received oral evidence from two of them. They were all men.

JM is in his late 50s. He has learning difficulties and limited verbal skills. He was one of the two first residents to come and live with the Appellant in 1988. He left in 1998. We heard a certain amount of evidence about how that came about but it is not necessary for us to explain the circumstances here. He was the resident from whom we did not hear evidence.

AD is in his 40s. He too has learning difficulties but he is very articulate. He lived with the Appellant from 1992 until 1998. He gave evidence for the Respondents who clearly placed some reliance on what he had said to them when they proposed the cancellation of the Appellant's registration. What he says is very plausible but we have been wary of accepting his evidence except where it is corroborated. There are two reasons for this. Firstly, he did not appear to us to be accurate on matters of detail. He himself admitted that he was no good at dates and he did not appear to be very good with sums of money either. There were other respects in which his evidence wavered when he was pressed to explain specific events. Each statement was, by itself, quite plausible but it was often impossible to tell whether one of two slightly different statements represented his recollection or whether his recollection was hazy and both statements were equally unreliable attempts at conveying it. That happened sufficiently often for us to be reluctant to place any weight on any of his evidence on matters where the detail of events is important in order to assess their significance. None of this is particularly surprising given AD's learning difficulties. The second reason for being cautious is that we accept the evidence of Mrs Evans who has known him for 20 years and expressed the view that he romances, likes being the centre of attention and is easily influenced. We think that it is quite likely that AD was influenced by Mrs Stevens' view of the home to which we shall refer below. We do not suggest that Mrs Stevens was deliberately leading him into falsehoods but we do consider that it is possible that he told her what he thought she wanted to hear and then came to believe it. We note that Mrs Stevens was present on the occasions when he was interviewed by Mr Kivell for the Respondents on 16 and 17 June 1998. Cancellation of registration is a serious matter and needs to be based on solid evidence.

SP is in his 80s. He lived at 281 Anstey Road for 70 years and so lived next door to the home. When he felt unable to live alone any longer, following a spell in hospital, he decided that he would like to be cared for by the Appellant and her husband with whom he had been friendly. SP does not have any learning difficulty and the condition of registration was altered specifically to enable SP to be cared for in the home. He gave evidence for the Appellant. He was clearly an honest witness, although we accept the point that he is easily pleased and to that extent less likely to criticize than others might be.

When SP first went to live with the Appellant, he was self-funding. Subsequently his care was paid for by the local authority. However, we were told by Mrs Hawtin that he had recently been assessed as not requiring "personal care". If the Appellant were content, he could of course continue to live with the Appellant on an ordinary board and lodging basis.

The Respondents

Registration of "small homes" in Coventry is the responsibility of the Small Homes and Adult Placement Service Unit of which Mrs Joan Hawtin is the head. This has grown out of the Adult Family Placement Unit and, as its name suggests, is responsible for placements as well as registration. It is entirely separate from the unit with responsibility for the registration of larger homes. This is an unconventional arrangement, although Mrs Hawtin told us that she knew of two or three other authorities that organised themselves along the same lines. As operated by the Respondents, it has some disadvantages which Mrs Hawtin said had come to be recognised.

Paragraph 3 of the Guidance issued with Circular No. LAC (92)10 when "small homes" were brought within the scope of the 1984 Act says:

That guidance was issued under section 7 of the Local Authority Social Services Act 1970 and so the Respondents were obliged to act in accordance with it, but there appear to us to have been two features of the Respondents' approach which meant that the "lighter touch" became almost no touch at all.

The most important is that the Small Homes and Adult Placement Service Unit did not issue formal written guidance to home owners as to what was expected of them in the way that most registration authorities do and the Respondents do for owners of larger homes. There were regular meetings for home owners at which advice was given and in connection with which some written guidance was sent out but that is not the same as having a proper guidance manual. We accept that home owners have a responsibility to use commonsense and to acquaint themselves with modern practice but it nevertheless seems unsatisfactory that owners of "small homes" should receive less advice than owners of larger homes on issues that affect both. We also accept that residents in many "small homes" live as members of their carers' families to a greater extent than in this case so that guidance in relation to some issues may be superfluous. Nonetheless, it seems to us that it is often difficult to criticise a person for failing to follow a certain practice if that practice is not statutory and the person has never been told that it should be followed. We understand that some guidance is now being developed. We also accept that the problem may have been exacerbated in the present case because those who had been approved for adult placements seem to have been registered under the 1984 Act in 1993 with very little formality.

The second feature of the Respondents' approach is that visits to homes by the Small Homes and Adult Placement Service Unit were made but were made in their role of support for placements rather than their role in regulating small homes. That was consistent with the Ministerial guidance but the fact that there is a visit by a regulating body can suggest that practice upon which no comment is made is satisfactory. In the present case, the lack of a smoke alarm on the first floor went unremarked upon for years. The Respondents now carry out annual monitoring visits. It appears to be generally accepted that the Ministerial guidance is a little out of date. If there are no routine checks there seems to be little point in having registration. These days, proper regulation is usually seen as supportive of both home owners and residents and as promoting good practice. Routine checks are not incompatible with a lighter touch for small homes than for larger ones.

It was suggested by the Appellant that the Small Homes and Adult Placement Service Unit unjustifiably failed to place residents in her home. It is true that they have never placed residents there of their own initiative; they have always come through other contacts. However, she accepted that she had no evidence that there had been a potential resident for whom her home was particularly suitable. We do not accept that the Unit has acted improperly.

We heard evidence from Mrs Hawtin and Mr Clive Kivell, a registration and placement officer in the Small Homes and Adult Placement Service Unit. We accept their honesty but, of course, on some matters they were relying on what they had been told by others.

Events leading to the proposal to cancel the registration

In early 1997, Mrs Theresa Stevens went to work at the home as a cleaner. Generally she worked for two hours a day, four days a week. She was sometimes asked to do other work such as peeling vegetables. She even did some decorating while the residents were away on holiday. She was shocked by the state of the premises when she first started and continued to have a number of concerns about the running of the home. In January 1998, the Appellant decided to go to India for four weeks. She asked Mrs Stevens to come in every evening, seven days a week, to cook for the residents. Mrs Stevens said that she did not know how to cook but the Appellant judged her to have sufficient skills and it was eventually arranged that she would cook on five nights and the Appellant's younger daughter, who was on vacation from university and was the only other member of her family still living with her, would cook on the other two nights. During those four weeks, she had further concerns about the way the home was being run. She got herself a job in a newsagents and ceased working at the home when the Appellant returned from India. However, she remained in touch with the residents and particularly AD.

Mrs Stevens' concerns were brought to the attention of the Small Homes and Adult Placement Service Unit on 3 June 1998 by a friend of hers. She was interviewed on 11 June 1998 and in consequence of what she said an unannounced inspection visit was made to the home by Mrs Hawtin and Mr Kivell on 12 June 1998. This resulted in a large number of matters of concern being drawn to the attention of the Appellant and in a notice being issued under regulation 20 of the Residential Care Homes Regulations 1984 requiring specified action to be taken. Further interviews were conducted with Mrs Stevens, the residents and the Appellant over the next few months.

Cancellation of the registration was proposed in January 1999 and the proposal was adopted on 19 March 1999.

It was suggested by the Appellant that Mrs Stevens might have had a grudge against her arising out of her employment and that her evidence should therefore be discounted. We do not accept that suggestion. Having heard her, we consider that she was honest. We nonetheless have reservations about some of her evidence. She was clearly concerned about the care the residents were receiving. Some of those concerns may have been justified but we consider that her expectations may have been unrealistic and some of her concerns misplaced. Further, she clearly communicated her concerns to AD and this may well have led him to make complaints to her about matters that he would otherwise rightly have regarded as innocuous or which were simply not true, particularly after she had ceased working at the home. They may both have, on occasion, become carried away with their roles in the investigation. Consequently, some matters have been blown out of proportion and some complaints have been generated out of nothing. One example of the latter is the suggestion that JM and AD were being treated by the Appellant less favourably than SP because the latter had branded breakfast cereal and the others did not. The truth is that SP was exercising his right to choose his own cereal, which he kept in his own room, because he was unhappy about the personal hygiene of the other residents who did not always wash their hands between using the lavatory and pouring out their cereal. On matters of simple fact, based on her own observation, we generally accept Mrs Stevens' evidence. Where the point of an allegation depends on a degree of interpretation, we have been more wary. We consider that the Respondents were sensible not to raise before us all the matters reported to them.

The substantive allegations

Unsatisfactory management and recording of residents' finances

This was a matter that had been raised by Mr Kivell when monitoring the placements of JM and AD on 21 November 1997. The Appellant acted as appointee for JM and as agent for AD in relation to their social security benefits. Each of them was in receipt of income support and the lower rate of the mobility component of disability living allowance. Mr Kivell did not look at the records but was told by the Appellant that she kept records regarding the income support but not the disability living allowance. He gave her forms designed for the record-keeping and read to her paragraph 17 of Schedule 2 to the Residential Care Homes Regulations 1984 which requires records to be kept of money received on behalf of a resident and returned to the resident. On the inspection visit on 12 June 1998, the records were found not to be up-to-date and a further inspection of the records was made by a senior accountant in the Social Services Department and Mr Kivell on 25 August 1998.

The records were both inadequate and inaccurate. At the June inspection it was found that recording that had started following the November 1997 visit had ceased in April. By the time of the August inspection some attempt had been made to make retrospective entries, without any supporting receipts, by a process that can at best have been guesswork. Deductions had been made in respect of sums said to be owed to the Appellant, without any explanation as to why. They were said to be in respect of a holiday but there was no evidence in the records of a prior agreement that the residents would contribute to the cost of the holiday. Deductions were also made in respect of "savings" without the sums being accounted for separately. Deductions were made from AD's money in respect of dog food. The amount did not vary, except when there was a benefit up-rating, and there were no receipts. The records also suggest that benefit orders were cashed weekly and money given to the residents weekly whereas, in fact, a number of orders were sometimes cashed at once and money was sometimes given to JM daily. Thus, the records did not reflect reality. There were some simple arithmetical errors. Worst of all, there was a deduction of £25 recorded in respect of a bus pass for AD at a time when he received a free bus pass from the college he was attending. The Appellant said that Mr Kivell had told her that that was acceptable. It is possible that he said that it did not matter a great deal what the records said as long as there were records, or something like that, but we do not see how the Appellant can reasonably have thought that it was acceptable to record a deduction that was plainly false.

It is plain from the records that no attempt was made to involve AD in the management of his money. It is not perhaps of great significance that his benefit was not cashed at regular intervals or that he did not know the precise name of the benefits he was receiving but he ought to have been made aware of the amounts deducted from his benefit and spent or saved on his behalf even if he did not always remember what he was being told. He was also entitled to access to his benefit book although we shall consider that issue further below.

These are matters of some concern because it is important that money belonging to a resident should be accounted for and that efforts be made to develop in residents with learning difficulties an understanding of money and an ability to manage it. On the other hand, it is right to stress that the amounts were not large, £14 45 p.w. income support (after the deduction of the fee due to the Appellant) and £13.60 p.w. disability living allowance, and that the Respondents did not allege dishonesty, accepting that the Appellant probably subsidised the residents to some extent. It became clear during the hearing that AD had very much more than the £5 p.w. spending money recorded but the precise amount remained uncertain and, in any event, he had another source of money in the form of a small amount of earnings.

The Appellant admitted that the records were inadequate. She said that her husband had dealt with them while he was alive and she blamed inadequate guidance from the Respondents. Those are not adequate excuses. It is possible that the Appellant is just incompetent but it seems more probable that she did not understand the purpose of keeping records and could not be bothered with them.

We accept that there was unsatisfactory management and recording of residents' finances.

Health and safety hazards

These were discovered on the inspection visit on 12 June 1998, many of them having been mentioned to the Respondents by Mrs Stevens. In particular, the Respondents allege that there were unsafe electrical appliances, unsafe storage of cleaning materials, unsafe mixing of cleaning fluids and an inoperative smoke alarm.

It is not disputed that there was an electrical fault in the hob in the kitchen of 279 Anstey Road which caused the sink to become live. Mrs Stevens received a severe electric shock from the sink while she was working there during the Appellant's absence in India in January or February 1998. AD said he had received a similar, although less severe, shock before then but had not told the Appellant. It is not clear that the Appellant should have been aware of the problem before Mrs Stevens' shock. After that, the hob was switched off at the mains. Mrs Stevens was allowed to cook in the kitchen at 277 Anstey Road but in fact preferred to cook at her home. The hob had still not been repaired by the time of the inspection visit in June.

The kettle was the other unsafe electrical appliance. The plug was found to be unsafe but we doubt that the Appellant had any reason to know that. The kettle did not turn itself off automatically and, apart from this being unwise due to residents having learning difficulties, it was unsafe because an extension lead was used and the plug was in the tray with the kettle so that if the kettle overflowed the plug was liable to get wet.

A box of soda crystals was found stored next to packets of food. That is obviously bad practice. There were also cleaning materials that were not properly labelled.

A washing-up liquid bottle was found to contain a mixture of washing-up liquid and bleach. It was standing on a ledge above the kitchen sink. The Appellant said that it was used only for cleaning the sink but there was an obvious risk that residents might think that it was simply washing-up liquid and use it as such. She said that residents had no need to wash up in that sink but there was evidence that they had in fact done so using a similar mixture. Mrs Stevens also told us that she had been instructed to use a mixture of washing-up liquid and bleach when cleaning particularly dirty pans,. We accept that evidence. It was something she mentioned to the Respondents on 11 June, before the inspection visit. It may well be the case that the mixture was not intended to be used for ordinary washing-up but it was plainly dangerous to have it in an ordinary washing-up liquid bottle without any special warning.

It is not disputed that there was no battery in the smoke alarm on the ground floor on 12 June 1998. However, AD had a fascination for batteries, even acquiring a charger, and it is quite possible that he removed the battery as the Appellant suggests. He told us himself that he had previously taken the battery out of the smoke alarm to test it on his tongue. He said he put it back. He also said that the alarm was not working but he had not told anyone. Clearly the risk of AD removing the battery had to be guarded against but the Appellant says that she did check the alarm every now and then. We have our doubts but we are not sufficiently sure that the Appellant was at fault to hold this matter against her. The Respondents do not rely on the lack of any smoke alarm upstairs as showing unfitness, there being no evidence that anyone ever suggested to the Appellant until 12 June 1998 that an alarm there was necessary.

Availability of staff and facilities to residents

The Respondents allege that there have been occasions when there has been no-one on the premises to care for the residents either because there was no-one in either 277 or 279 Anstey Road or because there was someone at 277 but the communicating doors were locked. The doors do not appear to have been locked very often - at least during the day - and Mrs Hawtin conceded that, given these particular residents, what was required was not so much that the doors should be unlocked but that there should be adequate means of summoning assistance from the other side if they were locked. Apart from Mrs Stevens' evidence, which relates primarily to the time when the Appellant was in India, the only evidence we had was from AD and we are not persuaded that there were any significant periods, save when the Appellant was in India, when there was no-one available at all.

We do not agree with the Respondents' submission that regulation 10(1)(a) of the Residential Care Homes Regulations 1984 necessarily requires there to be a carer present in the home whenever a resident is there, irrespective of the needs of the resident. Indeed, the Respondents accepted that there are circumstances where a resident's care manager might agree that he or she could on occasion be left alone. It may in some cases be perfectly acceptable in a small home for the only person on duty to go to a local shop or something like that. AD and JM did not have such severe learning difficulties that they could not travel about Coventry by themselves and SP could certainly be left on his own for short periods.

There is some evidence that while the Appellant was in India there were significant periods when there was no-one available to care for the residents but we are not satisfied that that was with the authority of the Appellant. On the other hand, there is a serious question in our minds as to the clarity of the instructions the Appellant left her daughter when she went. Furthermore, both then and on other occasions the home seems to have been left in the hands of friends who were not known to the residents and who did not know the residents and there were times when the residents did not know who was present in 277 and responsible for the home. There also seem to have been times when the residents were left very much to their own devices for long periods, when the "carer" was asleep. We note, however, that the monitoring visit in November 1997 did not throw up concerns about the care of the residents.

What seems most serious is that the Appellant does not seem to have had any very clear idea what cover was required when she was not herself available. This may be a problem that developed with the illness and death of her husband and with her children leaving home. It may be that the need to change the registration certificate following the Appellants' husband's death could have provided an opportunity for the Respondents to arrange to discuss with the Appellant how she was going to cope with caring for the three residents without him and what additional help she might need to arrange. Indeed, the need to discuss with the Social Services Department the level of cover required, if it is thought that residents do not require continual supervision, is a matter that could usefully be included in general guidance issued to all small home owners. In the absence of such guidance, it is not unreasonable for home owners to believe that they are entitled to use their own judgement.

It is not disputed that there was no telephone in 279 and that residents had to use the telephone in 277. They did not have free and easy access to it and obviously had no access when the connecting doors were locked. We do not suggest that a separate telephone need be available for residents in all small homes but we consider it would be appropriate here, given the relative independence of the residents and the practical division of the premises. On the other hand, this is the sort of issue that would have been picked up and resolved long ago if there had ever been an inspection of the premises.

Food preparation concerns

The Respondents complain that the Appellant instructed Mrs Stevens to prepare food in advance for up to 7 days at a time, keeping it in the refrigerator and reheating it as necessary and that she also instructed her to put mouldy onions in their food. The Appellant indignantly refutes these allegations, pointing out that she is a trained cook.

The first allegation arises from the time when the Appellant was trying to persuade Mrs Stevens to cook for the residents while she was in India. Mrs Stevens says that the Appellant suggested to her that she cook potatoes in advance for 7 days at a time although she declined to follow the suggestion. We do not accept that allegation. There is no evidence of any substance that the Appellant herself ever followed that practice and we do not consider it likely that she would have suggested it. There may have been some misunderstanding between her and Mrs Stevens.

The second allegation arises from an earlier occasion when the Mrs Stevens was peeling onions and put on one side some that she considered mouldy. She said that she was told to put them in the food for the residents on the basis that the cooking would kill the bacteria. By her own account, Mrs Stevens was not an experienced cook and, as she described them to us, there does not seem to have been a great deal wrong with the onions. We are not satisfied that the Appellant's instructions were unreasonable.

It is also said that food was inadequately heated before being served to the residents. This may have happened on an isolated occasion but does not seem to us to indicate that the Appellant is unfit to run the home.

It is not disputed that there were some out-of-date tins of food in the kitchen. Plainly, the Appellant should have disposed of them.

Conduct of the Appellant towards the residents

The Respondents submit that the Appellant became inappropriately involved with he sale of SP's former home to a relative of hers and that she did not assist an independent advocate to see him. The Appellant arranged for two valuations and for SP to see a solicitor who, SP told us, satisfied himself that he knew what he was doing and contacted SP's brother. SP told us that he was quite happy with the transaction and he had not wanted social services to get involved as he had all his faculties. There is some force in the suggestion that the Appellant ought to have had a better understanding of the reason why the independent advocate was concerned but we are not satisfied that the Appellant in fact acted inappropriately.

The Respondents also allege that the Appellant acted insensitively towards AD when his dog was ill and died and refused him access to his benefit book which would have enabled him to obtain free assistance from the P.D.S.A.. AD reporting this to Mrs Stevens seems to have triggered her informing the Respondents of all her concerns. We have a lack of reliable evidence as to the precise sequence of events. Certainly the Appellant is less sentimental about animals than Mrs Stevens. There was a conflict between her and AD as to the amount of trouble AD took to care for his own dog and as to what should have been done for the dog. On the evidence available to us, it is difficult to decide whether her attitude to the dog was unreasonable or not. However, it is not disputed that she denied AD his benefit book. She said that was because she did not want Mrs Stevens to know how much she received for caring for AD. (The amount of income support paid to AD included the fee payable to the Appellant.) She also told the Respondents that he did not need the book. However, Mrs Hawtin contacted the P.D.S.A. who confirmed that free treatment would be provided only if proof of entitlement to an income-related benefit were forthcoming in the form of a benefit book. We appreciate that the Appellant may have wished to keep her financial affairs from Mrs Stevens and she may also have been justified in thinking that there was not much point in taking the dog to the P.D.S.A. but that did not entitle her effectively to prevent AD from doing so if he wished. Ultimately, he had a right to have the benefit book and to tell Mrs Stevens about his finances. The Appellant had no basis for any belief that the book was not relevant to the obtaining of free treatment and she did not check her belief or enquire whether some other form of evidence of entitlement to benefit would be acceptable in the circumstances. We accept that she failed to give AD appropriate support.

It is also alleged that the Appellant used demeaning and inappropriate language about the residents when speaking to Mrs Stevens. When trying to persuade Mrs Stevens to cook for the resident while she was away, she may well have said that it would be no different from cooking for children but in that context we do not think the reference to "children" was demeaning. We are inclined to accept that there were other occasions when she told Mrs Stevens that the understanding of JM or AD was like that of children or that one of them was, on a particular occasion, "stupid" but we are not satisfied that she routinely used such language or that it reflected an inappropriate attitude to the residents on the rare occasions when she did.

More serious is the allegation that the Appellant sought to restrict contact between AD and JM on the one hand and those outside the home on the other. In particular, AD complained that he had not been allowed to telephone his sister and that messages from her were not passed on. The Appellant denied obstructing that contact. We are not satisfied that she deliberately did so although it is possible that some messages were not passed on. There was also written evidence that the Appellant had not encouraged JM and his sister to develop their relationship but we did not hear oral evidence on this point.

We do, however, accept that, once the investigation started in June 1998, the Appellant tried to persuade AD to stop seeing Mrs Stevens. That is consistent with her desire to stop, by inappropriate means, him from continuing to make his allegations. We accept that when she was interviewed by Mrs Hawtin on 7 July 1998, she effectively said that AD should leave her home unless he withdrew the allegations. She suggested that AD should leave the home for a month and that Mr Kivell should ask AD whether he wished to continue with the allegations. A temporary placement elsewhere was arranged. On 10 July 1998, the Appellant took him out from the place where he was staying to his mother's grave. That day, he signed a statement withdrawing his allegations. On 16 July 1998, he expressed the desire not to return to the Appellant's home and said that, although he had signed the withdrawal, his statements were true and he wished the investigation to continue. The Appellant denied putting any undue pressure on AD and said that he had volunteered to withdraw the allegations when he saw she was upset. It is doubtless less heinous to ask someone to withdraw allegations that are false than to ask them to withdraw allegations that are true but even if the Appellant believed the allegations to be false it was inappropriate for her to approach AD directly at that stage of the investigation. It is unclear quite what did pass between the two of them but the sequence of events does suggest that AD was led temporarily into withdrawing allegations which he has otherwise maintained and we do not consider that the Appellant's action in obtaining the withdrawal was appropriate.

We also consider that she acted inappropriately towards JM. JM expressed to the Social Services Department a desire to move from the Appellant's home. On 5 August 1998, he was taken to visit another home. We accept the written evidence from the owner of that home that, on 8 August 1998, JM visited her by himself in a very agitated state and said that the Appellant had told him that he would not be able to see his sister or do various other things if he moved to that home. He said the same to Mr Kivell and another social worker on 12 August 1998. We conclude that the Appellant gave him the false impression that his social activities depended on his staying in her home. We consider that that must have been deliberate and it was plainly inappropriate.

Failure to acknowledge responsibilities and lack of co-operation

We consider these allegations separately because they seem to us not so much to be independent matters of concern but to be relevant to the question of what action we should take in the light of our findings on the substantive allegations.

Failure to acknowledge responsibilities

The Respondents suggested that the Appellant had failed to acknowledge her responsibilities by trivialising incidents and blaming others. However, it seems to us that most of the points made by the Appellant (that no-one had died as a result of the faulty hob, that the amounts of money handled on behalf of residents were small, that SP could safely be left on his own for short periods, that AD was liable to remove the battery from the smoke alarm) were legitimate points for her to make and do not necessarily show that she did not accept any responsibility in respect of the relevant duties.

On the other hand, we have said that we do consider that she appreciated her responsibilities in relation to accounting for the residents' money or her responsibility to ensure adequate cover in the home. Furthermore, her apparent belief that Mrs Stevens' desire not to be included on the annual return of people involved in the home was a good reason for omitting her name from the return in March 1998 shows a plain failure to understand her responsibilities in that regard too. (Although it is fair to say that the form we were shown did not make it clear that names should be provided of all those who had worked in the home during the preceding 12 months, rather than those who were working there at the time of the completion of the form, so that it is the Appellant's explanation for the omission that concerns us more than the omission itself.)

The Respondents also suggest that the sheer number of problems identified in the regulation 20 notice that had been present over a substantial period of time shows a failure to appreciate the responsibilities that lie on a home owner. However, Mrs Hawtin fairly conceded that, if she had been satisfied that the Appellant understood her responsibilities by the end of the investigation and had been open with the Respondents, she would probably not have recommended cancellation of the registration on the basis of the matters mentioned in the notice.

Lack of co-operation

On one level, the Appellant co-operated fully with the Respondents. For instance, she regularly attended the meetings arranged for home owners. However, what the Respondents allege is that she was not open with them during the investigation which began in June 1998.

This manifested itself most clearly in what she said about physical defects to the property. In relation to the unsatisfactory kettle and its extension lead, to a faulty light in SP's room and a broken window in AD's room, she told the Respondents that the defects were of recent origin, whereas Mrs Stevens says that the defects had existed when she worked there. In relation to an electric socket beneath a washbasin, she variously said that she did know that it was there and that she had had it disconnected. Both statements could not be true and Mrs Stevens said that she had seen it used for the lawnmower which suggests that neither statement was true.

In relation to the defective hob, the Appellant at first said that she had checked it after Mrs Stevens had received the electric shock. She said she had done so by boiling a pan of water on it on the same day. When it was later pointed out that she was in India at the time, she said that it was her daughter who had boiled the pan, which is what she told us. It is possible that her first answer was a slip of the tongue and we do not hold it against her. However, she also told the Respondents that she had not had the hob checked by an electrician. Boiling a pan was hardly an adequate check. When she gave evidence to us she said, for the first time (as she had failed to provide a witness statement in advance), that she had had her regular electrician look at it and that he had said she should turn it off and he would come back and repair it when he had time. She said that he did not return so, after about four or six weeks, she found an electrician in the Yellow Pages and he came and told her that it looked all right. She was unable to tell us his name and had no documentary evidence, such as a receipt, to support her assertion. She said that she had told the Respondents about this but, despite all the careful documentation in this case, there is no record of her having done so. We do not believe that she did have an electrician look at the hob. We consider that she simply left the hob switched off at the mains and took no further action. Simply switching the hob off might be excusable. Lying is not.

There are other instances where we do not consider that the Appellant has been straightforward, including her denials of inappropriate conduct towards AD on 10 July 1998 and towards JM in early August 1998.

The Appellant has not been honest with the Respondents or with us. We accept that the Appellant was under considerable pressure during and after the inspection on 12 June 1998. However, it is when things go wrong that it is most important that a home owner is open with a registration authority. For the welfare of the residents it is sometimes necessary for a home owner to bring to the attention of an authority matters which might be to his or her disadvantage. Where a person has been shown not to be open with an authority about matters of which the authority are already aware, it is difficult to trust that person in relation to other matters. That trust is at the very root of a person's fitness to be concerned in the running of a residential care home.

Conclusion

We have found a substantial number of the Respondents' grounds for cancellation to be well-founded. Despite the number of them, we would allow the appeal if we were satisfied that the Appellant would take all reasonable steps to prevent a repetition of the problems. That is because we accept that the lack of support in the form of written guidance and inspection reports may have been a contributory factor and because we consider that the death of the Appellant's husband was almost certainly a contributory factor. Not only was he not there to do what he would previously have done but the Appellant must have been distracted by her loss.

However, we are not satisfied that the Appellant really appreciates her responsibilities and we are not satisfied that she can be relied upon to be open with the Respondents. For those reasons, we do not consider that the Appellant is a fit person to be concerned in carrying on a residential care home.

Section 10(1)(a) of the Registered Homes Act 1984 provides that registration "may" be cancelled where the person registered is not fit to be concerned in carrying on a residential care home. Normally, cancellation is the only proper course of action where a person is found to be unfit in relation to the home concerned.

We therefore dismiss this appeal.

However, a registration authority or tribunal has a residual discretion and the present case illustrates one of the rare instances where it may be of importance. Mrs Hawtin expressed the view that, despite all the concerns about the Appellant, it would be in SP's best interests to remain where he is rather than be moved against his wishes. We agree with her and, if he required "personal care" we would have allowed the appeal but varied the condition of registration to permit care to be provided for not more than one elderly person so that SP could continue to be cared for by the Appellant. As he does not currently require "personal care", he can remain where he is, if he and the Appellant both so wish, despite the dismissal of the appeal. If SP is again assessed as requiring "personal care", the Respondents may be asked to consider registering the Appellant again. Obviously they would have to make a new assessment of the balance of risk to SP at that time but we wish to make it clear that our decision should not be taken to prevent them from registering the Appellant again, subject to an appropriate condition, if they consider that to be desirable in the interests of SP. Indeed, we are not entitled to bind the Respondents in relation to any future application by the Appellant for registration, although no doubt an application intended to allow her to provide "personal care" for anyone other than SP would be unlikely to succeed unless, perhaps, it were to be made jointly with someone who was exceptionally reliable.

MARK ROWLAND
KENNETH COLEMAN
WESLEY DOWRIDGE