Mountforest Ltd v Leicestershire County Council

The majority (Mr Christie and Mr Dunn) orders that the condition for the time being in force that the number of residents shall not exceed 21 be varied by reducing the number to 20. The minority (Miss Woodier) would reduce the number to 19.

REASONS

A preliminary hearing on points of law was held on the 24th April 1989 and is reported as decision 111. The present hearing is to consider the merits of the appeal in accordance with the direction given on 24th April. The sole issue is whether the two rooms, presently numbered 10 and 11, that were created by sub-dividing an existing double room, are suitable for occupation by residents.

It is common cause that Brockshill Woodlands is an attractive and well run home, and it is also common cause that the sub-division of the double room was carried out for the best of motives. The room was occupied by two elderly ladies who suffered from incontinence, but had a mutual understanding of each other's problems. When one of these ladies died the lady who remained expressed anxiety about sharing the room with any new resident who might not be so understanding. Mr Van Herrewege, managing director of Mountforest Ltd, discussed the matter with her and with the manager of the home, and all agreed that the best solution would be to sub-divide the room into two single rooms. In reaching this decision Mr Van Herrewege also took into account that one of the Leicestershire's Officers had previously suggested the possibility of courtesy screens in double rooms. He also took into account the general desirability of single rather than double rooms.

The work was put in hand without any prior consultation with Leicestershire, Mr Van Herrewege explaining to us that he did not regard prior approval necessary because no alteration to the registration was involved.

Technically, this is correct, but a homeowner who makes material alterations to the structure of the home without prior consultation with the registration authority is taking a risk. The risk is that, as a result of the alteration, the authority may no longer be satisfied with the fitness of the premises. As the Tribunal said in Mitchell v Worthing (decision 75), a nursing home case:

"If, without previously consulting the health authority, the owner of a home carries out significant alterations to the Home, she may be creating a situation in which the health authority will feel obliged to cancel the registration because of the unsuitability of the home in its altered state".

No question of cancellation arises in the present case, but Leicestershire was correct in notifying Mountforest that it would have to consider whether the two newly created single room were suitable for accommodating residents, or whether the number for which the home was registered might have to be reduced.

Since 1983 Leicestershire, in common with most other registration authorities, has prescribed a minimum size of 10 square metres for a single room, and it is agreed that rooms 10 and 11 both fall short of this minimum. By how much they fall short has not been accurately measured. Mr Van Herrewege calculated room 10 as 9.5 square metres and room 11 as 9.03 square metres. Mr Eglinton, Leicestershire's registration officer, calculates room 10 as 9.10 square metres and room 11 as 9.03 square metres. The differences have been left unresolved because both parties correctly take the view that he exact amount by which each room falls short of the minimum is not important, because the minimum should not be rigidly applied and what really matters is the configuration of the rooms. That is, whether their shapes and the placing of doors, windows and other fittings is such as to enable them to be furnished and used in conformity wit the principles set out in Home Life.

Before considering the configuration of these rooms it is necessary to mention three arguments which we were urged to take into account. The first may be described (adopting a phase of Mr Van Herrewege's) as the "proof of the pudding" argument. Each room is presently occupied by a lady who has specially chosen it and is happy there. This we accept, but we do not accept that the suitability of the room is thereby established. Registration authorities and the Tribunal have a duty to ensure that the accommodation in homes comes up to an objective standard. The fact that a particular resident chose and is happy in a particular room is evidence, but no conclusive evidence, of the suitability of the room. We accept it as a salutory reminder that, in seeking the welfare of residents objective standards are not the only criterion. Residents' wishes much also be taken into account. The second argument was that some of the rooms in Leicestershire's own homes were less than 10 square metres in area, and an authority should not impose on home owners a standard with which it does not itself comply. See Palmer v Derbyshire (decision 24). Mr Eglinton explained that in the two Leicestershire homes in which some rooms were less than 10 square metres in area the rooms had been purpose built, so their configuration was satisfactory. In addition, these two homes were not for elderly residents, who might need wheelchairs, Zimmer frames and lifting in and out of bed, but for younger mentally handicapped residents. On the facts therefore the argument that Leicestershire is imposing higher standards on private homes than on its own homes does not apply.

The third argument is that in a home for elderly residents all rooms should be of such a size and configuration that all likely needs of residents in that category (elderly) can be met. Each room should therefore be capable of being used as a bedsitting room, there should be space for a wheelchair or Zimmer frame to be manoeuvred, and there should be space to place the bed so that access can be gained from both sides. Miss Woodier accepts this argument, taking note especially of the undesirability of having to move a resident from her old familiar room as her mobility and general condition deteriorate and more space is necessary to provide her with extra facilities and care that she needs. Mr Christie and Mr Dunn would accept this argument if the design of a new, purpose built, home were being considered, but are prepared to allow some latitude to a home such as Brockshill Woodlands in a building originally designed for a different purpose.

Against the background of these arguments we examine the configuration of the two rooms.

Room 10 is approximately twice as long as it is wide, but is not a simple rectangle because the walls on the long sides are irregular "stepped". It can and does contain all the furniture recommended in Home Life, but fitted in so closely that the room gives an impression of being rather like the inside of a caravan. The bed could be arrange so as to give access to both sides, but this would further reduce the available space, and the manoeuvring of wheelchair or Zimmer frame would then be problematical. The window is small but gives adequate light on a bright day. The furniture, which is supplied by the home, is well designed and contributes towards the neat but cramped look of the room. Mr Christie and Mr Dunn accept that this room is suitable for an elderly resident, but Miss Woodier considers it is too cramped and not suitable.

Room 10 is of the same length as room 11, with the addition of a bow-window at the one end. But it is noticeably narrower, so that the bed would barely fit across it and would certainly leave no room to walk past. Because the door occupies half of the short wall opposite the bay window, the only practical place for the bed is alongside the door, leaving no room for a bedside table. The furniture belongs to the present resident and is there at her special request, so we take no account of the fact that it is too heavy and dark to fit comfortably in the room. Even with furniture as carefully chosen as that in room 10 we are unanimous in thinking that the room is simply too small and too long and narrow ever to be suitable. We heard evidence of the difficulties the staff had in transferring the previous resident of this room from her wheelchair to the bed and back again. From our inspection of the room we are satisfied that these difficulties were great, and it is to the credit of the staff that they were able to surmount them at all. Although we accept that the present resident is happy in the room, our unanimous decision is that it is not suitable for occupation by an elderly resident.

Counsel made representations to us on the desirability of giving Mountforest a period of time to put its house in order (literally) so as to maintain its present registration for 21 residents (ignoring, by consent, the further increase that has resulted from the completion of additional rooms since the start of these proceedings). We do not think it is necessary to decide the disputed question of whether we have jurisdiction to make an order but suspend its operation, for a period. Mr Van Herrewege informed us in evidence that the conversion of the old double room into the present rooms 10 and 11 took about three weeks, and he thought the process could be reversed in about two weeks, which seems a reasonable estimate. At the end of the hearing we announced our majority decision to vary the condition for the time being in force that the number of residents should not exceed 21, by reducing the figure form 21 to 20. We explained that the majority found room 10 satisfactory and room 11 unsatisfactory. We also explained that we were announcing our decision so the parties would have time to consider their positions before receiving our written decision and reasons, which would take effect from the date they were received. Because of the inevitable delay in producing our decision and reasons in writing we are satisfied that the procedure we have adopted gives Mountforest ample time to consider its position and, if it decides to reconvert the two single rooms into a double room, to complete the work before our decision becomes binding. For guidance of both parties it is only necessary to add that our decision relates to the state of facts at the time of hearing. If, at the time our written decision and reasons received, these facts have been changed by the re-conversion of the two single rooms into a double room, Leicestershire's proper course of action would be to ignore our decision and permit the registration for 21 residents to remain.

R Christie
G Dunn
M Woodier