Wendy Piper v Birmingham City Council

It is the unanimous decision of the Tribunal that the Appellant's appeal be dismissed and that the Respondents' decision to refuse registration be upheld.

Witness for the Appellant - Mrs Wendy Piper

Witnesses for the Respondents - Jeffrey Reville Esq, Robert Judges Esq (read)

The Appellant, who until 1985 had worked for some 12 years for Devon County Council, being concerned with the registration of homes for the care of the elderly, physically handicapped and mentally infirm, wanted to open her own Home in Birmingham. She contacted Birmingham Social Services Department. She was aware that if she had only three residents she would not be required to register the home, but that for more than three she would need to have a Certificate of Registration.

She started to alter and expand the home to make it meet with all the requirements, applying for Planning Consent, Building Regulation Approval and the like. There were problems and delays. In about February/March 1986 she took three residents into her home. Throughout this period she liaised with the Social Services Department. She was let down by builders and the work was not completed as quickly as it should have been. She believed that she should wait until the building work was complete before applying for a Certificate of Registration. In the autumn of 1987 she had certain financial problems and in about August and September 1987 she took in three more residents.

In November 1987 the Respondents, acting upon information received, visited the Home. The Appellant admitted under caution that she was aware that she was in breach of the Registered Homes Act. A decision was taken to prosecute her for running an unregistered home for the elderly with 6 residents. There were various adjournments concerning the trial, inter alia because the Appellant apparently originally proposed to plead not guilty. However, in September 1988 the Appellant pleaded guilty at the Birmingham Magistrates' Court. She was given an absolute discharge but ordered to pay £100.00 costs to the prosecution.

In September 1988 the Appellant applied for registration of the Home for 7 elderly residents. [The actual application form is dated 18th October 1988.] In October 1988 the home was visited and discussions took place as to further documentation required to complete the application for registration. By January 1989 plans were apparently being made by the Appellant to transfer three of the existing residents to other establishments, reducing the numbers of residents in her home to three. Arrangements were made in February and March to place three residents in alternative accommodation. During the next few months there were further letters and visits, in particular concerning submission of documentation. The Appellant was formally interviewed as owner and care manager in April 1989. In this month the Elderly Care Sub-Committee resolved to refuse her application for registration. In May, the Appellant indicated that she wished to make representations against the proposal and these were made in July 1989. It was resolved by the Sub-Committee to adopt the proposal to refuse registration. After formal service of the decision the Appellant gave notice of appeal in September 1989.

There were two matters to be considered, the conviction of the Appellant and her experience, both of which really go to the question of fitness. (The ground in section 9(c) is really inappropriate.)

As to the conviction, it is accepted that it is a matter of some seriousness and it is not sought to brush this under the carpet. However, whilst it is a breach of the law and a criminal offence, yet it is not an offence of dishonesty. The Appellant has accepted that it was wrong and that she was extremely foolish. She made no attempt to conceal the truth when questioned by the Respondents' officers. When challenged she accepted that she had broken the law. In the end she pleaded guilty to the charge and it is of considerable importance to reflect on the way in which the Magistrates dealt with the case. She was given an absolute discharge, a sentence able to be imposed by the provisions of section 7 of the Powers of the Criminal Courts Act. In brief, this says that where all the circumstances of the offence and the defendant's character make it inappropriate for some punishment to be imposed, then the magistrates may impose such an absolute discharge. Clearly the magistrates were of the opinion that such a sentence was appropriate.

The important point, however, was not so much whether there was a conviction, but whether there was a real risk of another offence being committed. The Appellant has spoken of her humiliation, and an agreed record of what was said at the court hearing indicates that the magistrates were satisfied the Appellant would not offend again. She has learned her lesson and is confident that she will never again break the provisions of the Registered Homes Act.

There was an implicit suggestion in Mr Reville's evidence which seemed to indicate that it was not possible for the Respondents to share this view. If this is the case, one conviction must of itself make a person unfit. The Respondents have acted inconsistently, then, since there are two other known occasions when the Respondents have prosecuted under the Act in similar circumstances, (in that excess numbers were involved). In neither case did the Respondents take the view that the proprietor was therefore unfit so that registration was refused. It cannot be said that these examples can be distinguished on the grounds that in this case there is an existing home, since an unfit person is unfit, whether the home is already registered or whether an application to register a new home has been made. It should not be assumed that the Appellant will commit further offences. On the evidence, there should be no difficulty in concluding that the Appellant has learned her lesson.

As to the question of the Appellant's experience, whilst it is clear she lacks formal training, yet even though her lack of "hands on" experience does not strictly fall within para 3 on page 34 of the Birmingham City Council Guidelines, her experience with Devon must have given her considerable insight into the needs of residents. If it is not accepted that this brings her within para 3, then the guidelines should not be regarded as "tablets of stone". They should be flexibly applied, with a common sense approach, not treated like statute. She has the necessary experience to run a home for 7 residents, proved by her experience in Devon and her (admittedly short) experience in Warwickshire. As to this latter, the Tribunal should disregard the hearsay evidence it admitted. The Appellant's explanation for her short stay there, and for not originally disclosing her experience there, are entirely plausible. It should not be concluded that the explanation lay in the fact that she conducted her duties unsatisfactorily.

She has also run her own home for 3 years, of itself a most valuable "hands on" experience. It is pointless to speak of unconfirmed, alleged complaints. She has run the home successfully, as is supported by the references, not only from relatives but from professional people, which have been adduced in evidence. It is unrealistic and unreasonable to suggest that the Appellant lacks the experience necessary to run a home for 7 residents. She will run it satisfactorily.

It is accepted that there are really only two issues and that they both fall within the fit-person issue. It is conceded that the issues are the conviction and the Appellant's experience.

As to the first, it is accepted that both Home Life and the Respondents' Guidelines impose high standards. Questions of dishonesty/deceitfulness are very important matters. In this case a person with experience of the law deliberately flouted it. Whether this was dishonest or merely deceitful is a matter of debate. It was said in evidence that the offence was analogous to a conviction for driving without due care and attention. This is not the case. In that example a driver neither derives a financial benefit, nor misleads others, as did the Appellant. This is what goes to the heart of the matter - the Appellant's breach of the law for almost two years. It is difficult for local authorities to maintain standards if this sort of breach is allowed. It is recognised and accepted that for a conviction of an offence under Part 1 of the Act there is no mandatory refusal of registration. The Tribunal decision of Harben favours this view but the Respondents seek to distinguish it. Whilst it is true that a conviction under section 2 does not automatically disqualify a person, yet it does not follow that it cannot amount to a finding of unfitness.

As to the significance of the absolute discharge, whilst it is accepted that this is relevant, yet the situation which prevailed before the magistrates was that the prosecution cannot press for any particular penalty. They are obliged to present the case neutrally and the magistrates were quite properly influenced by the fact of the conviction on the Appellant's future likelihood. The difficulties of the registration process were laid before the magistrates and it was obvious why the point was made as to the conviction adversely affecting the registration. The Appellant was and is unfit.

It has been suggested that the Appellant was not motivated by greed. This is accepted. However, she was motivated by financial aspects of running the home, which was why she was prepared to flout the law. The magistrates thought the Appellant would not repeat the act. But here she was, some 16 months later, continuing to break the law. It is conceded, that time was needed to effect the relocation of the extra residents - but not 16 months! These residents all went in or about February 1989. It was a huge coincidence that they all left at the same time when the case was looming. The fact is that the Appellant wished to accommodate the extra residents because of her lack of means. A daily repeat of a breach of the law shows a lack of integrity.

As to the second matter, the question of the Appellant's experience. The requirements are not written in stone and are flexible. However, the Appellant does not meet the criteria and never has. There has been no "shifting of the goalposts" since 1986. Her experience does not meet the guidelines on page 34. There is nothing there about "less than 12 months". The experience in Devon cannot be of significance. It is the day-to-day experience which is important, which is why the guidelines are phrased as they are She has not had the 12 months experience at senior level. It is clear, if the Tribunal accepts the hearsay evidence, that she did not meet the Warwickshire criteria and required an induction process. She left after some two months and it is very surprising that she did not disclose this experience until later. Perhaps this was because she did not want detailed enquiries to be made? The letter from the authority is significant in that it says nothing.

It is rejected that the Appellant had this "hands on" experience by running her own home for 3 years. There was no monitoring, so one simply does not know that the home was being run satisfactorily.

The Appellant lacks experience. This is apparent in her inability to make appropriate plans, with proper foresight, in 1985, as a consequence of which she ran into financial difficulties. The delays of which she complains only amount to some 4 months. Her comments about planning consent (granted on 22 August 1985 and not September 1987) go to her credibility and integrity. Her lack of experience was also shown in her continuation to flout the law.

A high degree of integrity is required for persons in charge of residential care homes. The Appellant has failed to show this, both by reason of her conviction and her lack of experience. The Sub-Committee reached the right decision which should be confirmed, since it is inappropriate to register this home.

The Tribunal considers that it is a serious matter for a person carrying on a residential care home to commit an offence under section 2 of the Act. There would be no proper statutory controls in an unregistered home and the consequences for residents could be serious. A conviction goes to the credibility of a person. However, the fact of a conviction under the Act does not necessarily mean that the registration would be automatically cancelled, since the wording of section 10 is "may" and not "must". A person guilty of an offence under section 2 is liable on summary conviction to a fine, and the Tribunal has carefully noted that the Appellant was given an absolute discharge by the magistrates. Prima facie, on the balance of probability, the Tribunal finds that the fact of the Appellant's conviction, without more, does not of itself make the Appellant an unfit person.

However, the Tribunal finds on the evidence that the Appellant's integrity is very seriously in question and for these reasons. Firstly, the Appellant, as a person experienced in matters of registration, knew very much better than most than when she took in the three extra residents she was deliberately breaking the law. Secondly, although she avers in her evidence that she "kept Social Services fully informed verbally and in writing" and that she "worked in close liaison with all officers at Social Services", she did not discuss her financial and other problems with them. There was a period of some 18 months when there was no contact between her and the authority. She acted deceitfully in keeping the existence of the three extra residents a secret. She herself made no disclosure of the excess numbers and it was only after information was received, prompting the Respondents to investigate the allegations, that the true facts came to light.

Thirdly, (and this, in the opinion of the Tribunal, is the most serious matter of all), the continuation of the offence after November 1987 until March 1989 is indefensible. Even after the visit by the Officers in November 1987 and the admission by the Appellant that she realise and accepted she was in breach of the law, even after the warning was given that a prosecution might be brought, even after a summons was issued in early January 1988, even after further adjournments, and finally even after her conviction in September 1988, she took no steps to rectify the situation and comply with the law. She did not submit her application for registration until 20/9/88, (the date of the solicitors letter enclosing the application for registration is 28 September, received on 29 September 1988), shortly after her conviction. It was not until February/March of 1989 that she ceased to run an unregistered home. She states, quite properly, that she "was not prepared to throw (the three extra residents) out on the street". However, she also admitted that by keeping them for some sixteen months she derived financial benefit. Clearly a certain amount of time would be required to arrange placements for the "extra" residents. However, sixteen months is totally unreasonable. The Tribunal concludes that by failing to take corrective action, or to submit her application for registration, particularly in the light of her previous experience and knowledge of such matters, the Appellant deliberately continued to flout the law for financial gain.

The Appellant's integrity is most seriously in question to the extent that she is not, in the Tribunal's unanimous opinion, a fit person to be concerned in carrying on a residential care home.

Home Life sets out (para 5.9) the qualifications and experience necessary for a person in charge of the day to day running of a residential care home. The Birmingham Guidelines are more specific (see pages 33 and 34). Measuring the Appellant's qualifications/experience against (a) Home Life, excluding her experience as Deputy matron for 4½ months, and excluding her experience at Mayflower (both with 3 and then 6 residents, ie the latter is an unregistered situation), the Tribunal considers that her experience with Devon as Senior Officer, Residential and Day Services, as analogous to the requirements in para 5.9; and (b) Birmingham Guidelines, again the experience is analogous with Guideline 3 (page 34). The Tribunal regards residential care work as work in the residential care sector or setting (not in residence) and clearly the Appellant was so involved with that client group. Her experience with Devon was related to the tasks of private care home managers. The Tribunal feels that in general terms the kind of experience she had would normally be accepted as valuable. In short, by virtue of her past experience with the client group over 12 years, (even possibly her more recent, possibly successful although unmonitored, practical experience of over 3 years? - although the Tribunal does not take this latter into account), the Tribunal finds that the Appellant cannot fail in her appeal on the grounds that she lacks adequate experience.

However, for the avoidance of doubt, the Tribunal is satisfied that on the first ground alone, ie the fact of the Appellant's conviction and her continuation of the offence, the Appellant is not a fit person to be concerned in carrying on a residential care home. Accordingly it dismisses the Appellant's appeal and upholds the decision of the Social Services Committee of Birmingham City Council to refuse her registration.

Margaret Rutherford
Jack Hanson
John Regan