Mr and Mrs Hughes v Norfolk County Council

The Tribunal unanimously allows the appeal and directs that the Respondent's decision to refuse registration shall not have effect, and also directs that a condition that the registration be for four mentally handicapped persons shall have effect in respect of the home.

REASONS

From Mr Hughes' curriculum vitae it is clear that in qualifications, experience and aptitude, he is well suited to caring for mentally handicapped persons, and he has the support and assistance of his wife and other members of his family. During 1986 and 1987 he was the tenant of a hotel at Pulham Market in Norfolk called "The Bumbles". Over a period of some months he was negotiating with Norfolk's officers for the possible registration of a part of the hotel complex as a registered home for a small number of mentally handicapped persons. The negotiations never reached the stage of a formal application because Mr Hughes' plans to purchase The Bumbles fell through.

He then purchased The Faymar at Great Yarmouth, with the intention of developing it in broadly the same way as he had planned to develop The Bumbles. The Faymar consists of numbers 25, 26, 27 and 28 Paget Road, which is a short road at right angles to Marine Parade which runs along the sea-front. Paget Road and the roads in its immediate vicinity consist almost exclusively of terraced small hotels and boarding houses with no front or back gardens. Marine Parade contains of a variety of places of entertainment including at least one disco close to Paget Road, and a few hundred yards inland is the main coach station from which day trippers find their way to Marine Parade, often along Paget Road although that is not the most direct route.

Each of the four terrace houses that make up The Faymar consists of a basement, ground, first and second floors. The hotel consists of the whole of numbers 27 and 28, together with the second floor of number 26 (the second floor of number 25 being reserved for accommodation for Mr and Mrs Hughes and their family), the first floor of number 26 and the back parts of the ground floor and basement of number 26. Registration as a registered home is sought in respect of the first and ground floors and basement of number 25 together with the front rooms of the ground floor and of the basement of number 26.

Mr and Mrs Hughes' application for registration was refused by Norfolk on 28 April 1989 for four reasons, all falling under section 9(b) of the 1984 Act. We consider these reasons:

Norfolk's main witness in support of this reason was Mrs Johnson, the Assistant Director (Disabilities) of Norfolk's Social Services Department, who pointed out that the layout of the building would allow access to the proposed care home by the changing population of the hotel. This would not enable the residents to live in privacy, dignity and security in a place which has clear boundaries. We agreed (and so does Mr Hughes) with the principles so clearly set out by Mrs Johnson, but we are not satisfied that the threat to the privacy, dignity and security of the residents is a substantial one. Number 25 has its own entrance from the street, but access from the hotel to the home is possible at three points. The first is in the basement where there is a doorway between the hotel kitchen and the care home kitchen. We see no difficulty here. The hotel guests do not go into the hotel kitchen, and because both kitchens and their staffing are under the control of Mr and Mrs Hughes it should not be unduly difficult for them to ensure that the residents are not disturbed by strangers in their kitchen. The second point of access between the hotel and the care home is also in the basement, in the form of a door between the hotel dining room and the care home dining/recreation room. It is so placed that hotel guests would hardly be aware of it, and a suitable notice on it would reduce the likelihood of hotel guests walking through it. It would constitute very little threat to the residents' privacy. The third point of access is on the ground floor, being a door from the residents' TV lounge of the care home to the corridor forming part of the main entrance to the hotel. The possibility of hotel guests straying through this door are greater, especially because there is no reception desk and a newly arrived guest might think that the words "LOUNGE PRIVATE" on the door might indicate that the management can be contacted there. A more obvious sign drawing the attention of newly arrived guests to the bell they are supposed to ring might be helpful.

In our view, therefore, the existence of these three points of access between the hotel and the care home does not threaten the privacy, dignity and security of residents to such an extent as to render the premises unfit to be used for the purposes of the care home, and section 9(b) of the Act is not applicable. This does not mean the premises are ideal, and we anticipate that Mr and Mrs Hughes will have to exercise more than usual care in carrying on the home so as to ensure that the privacy, dignity and security of residents are not in fact infringed so as to bring section 9(c) into operation.

This ground of refusal is concerned with the same three points of access between the hotel and the care home, but envisages the mentally handicapped residents walking through the doors into the hotel rather than the hotel guests walking through the doors into the care home. This causes us more concern because the probability of the residents entering the hotel is greater than the probability of the guests entering the care home. There are two reasons for this greater probability. The first is that, by reason of their mental handicaps, the residents may tend to stray. Awareness of this tendency, and controlling it were necessary, are constituent parts of the caring process, and a high ratio of care staff to residents will reduce the likelihood of inadequate care. Mr Hughes has consistently presented his proposals on the basis of the ratio of one staff member to one resident and a maximum of four residents at any one time. We are satisfied that these are his true intentions, based on his training and experience. He is manifestly not the sort of person to put forward specious proposals in the hope of gaining a favourable decision, and it is equally clear that he is not "in it for the money". We therefore feel justified in accepting that he is likely to maintain sufficient care staff to control as necessary any tendency of residents to stray into the hotel. We have no jurisdiction to impose a condition relating to the number of staff, but we do have jurisdiction under section 15(6) to limit the number of residents to four, and we do so.

The second reason why residents are likely to walk through to the hotel is to gain access to their own dining/recreation room and kitchen in the basement. They have two alternative routes. One is through the door from their TV lounge on the ground floor to the entrance corridor of the hotel, down the hotel stairs to the door of their dining/recreation room which is in an alcove in the corner of the hotel dining room and adjacent to the hotel kitchen door. The other is by stairs leading from the back of their entrance corridor down to a small covered area or yard and then down to their kitchen which of course interconnects with their dining/recreation room. These stairs are not well designed, and an active person has to exercise some care in negotiating them, so it is easy to imagine mentally handicapped residents (some of whom may well have some degree of physical handicap) preferring to use the hotel stairs.

This situation is not satisfactory, but we do not consider it so unsatisfactory as to render the premises unfit to be used as a care home. However, if Mr Hughes is wise (as we believe him to be) he will no doubt consult with Norfolk's registration officers about how to improve the situation. During our inspection of the premises there was some discussion of the possibility of redesigning the unsatisfactory back stairs, blocking off the door from the residents' TV lounge to the hotel, and directing hotel guests to the stairs at the far end of their dining room rather than to the stairs adjacent to the care home. We make no comment on these possibilities beyond recording them as indications that there seems to be scope for improvement of the present situation. We also note that planning approval of the change of use to a residential care home has been granted for a limited period of two years expiring on 26 September 1990, so Mr Hughes has an additional incentive to improve the fitness of the premises as soon as possible.

We accept the evidence of Mr Leech, the Fire Prevention Officer, that as the premises presently stand the care home and the hotel cannot be separated from each other by keeping the interconnecting doors locked. He made it clear, however, that the present fire prevention requirements present no insuperable difficulty and that the possibility of improving the back staircase and blocking up the door from the residents' TV lounge to the hotel would also present no insuperable difficulty. We are satisfied, therefore, that the necessary standard of safety can be achieved and need not be impaired by any alterations that may be agreed between Mr Hughes and the registration officers.

The situation of The Faymar is certainly not ideal for a residential care home for mentally handicapped persons, but in this respect also we do not consider the premises unfit to be used for that purpose. Chief Inspector Hoyle's evidence gave a very clear picture of an area of town in which crime statistics are high because of the presence of day trippers coming from and returning to the coach station and the proximity of discos, pubs and other places of entertainment. It is vary far from being a "no go" area, however, and the danger of residents becoming involved in unpleasant incidents can, we consider, be kept at an acceptable level.

To sum up, by choosing this building in this area, Mr and Mrs Hughes have set themselves a difficult task, but not so difficult as to render the premises unfit within section 9(b). If, perhaps after carrying out some alterations, Mr and Mrs Hughes succeed in carrying on a satisfactory care home, they will be performing a much needed service. If they fail to carry on the home satisfactorily, Norfolk will have to consider cancellation of their registration under section 9(c). We therefore allow the appeal.

Mr Lamb submitted that if we allowed the appeal, registration would not follow automatically, but that the application would go back to the authority for further consideration. A similar submission was considered and rejected by the Tribunal in Vincent v Dyfed (Decision 102) and we are not persuaded that we ought to depart from that decision. It is now Norfolk's duty to register Mr and Mrs Hughes, and rapid teamwork by Mr and Mrs Hughes and Norfolk's registration officers will be required in order to keep the spectre of cancellation under section 9(c) at bay.