Dr A Zaman v Lancashire County Council

The unanimous decision of the Tribunal is that the decision of the registration authority be confirmed.

REASONS

Background

Since about 1981 the Appellant, a general medical practitioner, had been manager of a residential care home for 10 elderly people at Suri House. In January 1988 he made a general enquiry of the Respondent regarding the possibility of using the premises instead as a home for persons with mental handicap. In response he was informed that "the maximum registration is for 6 places, preferably with single bedroom accommodation". On 25th February 1988 he applied for registration in respect of the accommodation of ten male or female adults of any age, suffering mental disorder (other than mental handicap). It was at once repeated that the Respondent's policy was to limit the number of such residents to six and Dr Zaman was told that "the Special Cases Sub-Committee will be required to consider your application if you intend to pursue your proposal to register Suri House for ten persons". The Appellant did pursue it. Notice of intention to refuse the application was issued on 27th September by the Special Cases Sub-Committee and, after hearing representations on 24th October, the Sub-Committee gave notice of its decision to refuse the application. The reason specified in each of the notices is that the way in which it was intended to carry on the home was such as not to provide services or facilities reasonably required because it was "contrary to the County Council's draft strategy document on mental health services which recommends that homes to accommodate persons with a mental disorder should not be registered for more than six persons". The 'detailed' statement of reasons furnished pursuant to rule 5(2) of the Registered Homes Tribunals Rules 1984 gives four indications, in very general terms, why the Respondent is contending that the Appellant's proposal for a home of ten 'is contrary to the principles of normalisation and good professional practice'. Only three of these are of any importance in this appeal. It is said that in a residential unit of that size

The Witnesses

For the Respondent we received written and oral evidence from Mr S M Newton, currently employed as Controller (Mental Health) in the Social Services Department, and from Mr R Thomson, General Manager of Newham Special Needs Housing Consortium; and for the Appellant, in addition to written and oral evidence from Dr Zaman himself and a consultant psychiatrist Dr P T Saleem, we received an affidavit of Mrs M P Sumner and a letter from a Dr Maurice Silverman. None or the witnesses, other than the Appellant and (many years ago) Mrs Sumner, was acquainted with the premises.

Suri House

The property was converted to a single dwelling from two terraced houses nearly 100 years ago. Mrs Sumner, the eldest of 7 children, lived there very happily with her family for many years and nothing about the house itself or the numbers within it hindered her parents' enjoyment of their individual interests or inhibited the children in developing as individuals. There is no doubt that Suri House is conveniently situated for the purposes of a residential care home. The principal accommodation comprises a lounge/dining room of 300 square feet, and six bedrooms of generous proportions. The Respondent had permitted, and the Appellant arranged, four of them to be shared as double rooms when the premises were in use as a home for elderly people.

Grounds of Appeal

It was submitted

The Tribunal accepts the first two of those submissions; indeed, had there been no evidence whatever other than the Respondent's policy, this Tribunal would have felt obliged to allow the appeal. We gained the distinct impression from the Appellant's evidence that it was not his, or his wife's, intention to be active participants in the day-to-day running of Suri House; also we note that details of management and staff were omitted from the form of application for registration (although it was the Appellant's stated intention to consult the registration authority about these matters - presumably within the short period of 7 weeks before the date of opening the Home as estimated by him). Instead of management details he wrote "To be decided after permission for change of usage obtained", which suggests that the application he was making was merely intended - rather in the manner of a preliminary planning application - as a request for approval in principle. It seemed to achieve an exactly corresponding decision from the Respondent. However, both sides were agreed that - whatever might be the limitations of the statement of reasons - we should have regard to all the evidence put before us when deciding whether or not it had been proved that the way in which Dr Zaman intends to carry on the home "is such as not to provide services or facilities reasonably required" in terms of section 9(c). The Appellant contended that "having regard to the nature and situation of Suri House and the service intended, ten residents is a suitable number for the premises"; the statement of the grounds of appeal enlarged upon this contention with considerable particularity and Dr Zaman gave evidence about it.

The Evidence

Mr Thomson's practical knowledge and experience of the accommodation needs of persons with problems of mental health led him firmly to conclude that Suri House would not be a suitable establishment nor the sort of environment that they would choose. Whilst the vast majority would prefer a home of their own, he stressed in particular the importance of sharing, if one has to, with a person one wants to share with. Mr Newton told us that an exception to the policy can be made, and had in one other case been made, according to the merits of a scheme put forward; but he could see no merit in the scheme proposed by the Appellant and explained why. On the other hand, Dr Silverman considered ten a not unreasonable number having regard to the "current realities of the situation" although "from the point of view of long-term planning the theoretical ideal of six residents in a home would indeed be a desirable objective". Dr Saleem went further by stating that "clients with mental illness problems need a range of residential facilities… as a progression from the total dependency of the psychiatric ward through to the independence associated with an ordinary flat". He considered that many with long-term mental health problems would benefit by spending 12 to 18 months in a transitional hostel-type facility to prepare them for the move to a small and independent residential setting. The Appellant does not believe that a hostel of ten is too large, nor that ten would be too many for Suri House, and he told us that with a limit of six residents, neither this nor any other private sector home would be a financially viable proposition. He spoke of his intentions with regard to the likely categories of client to be accommodated and the method of their accommodation. It is those intentions which form the basis for our decision, because section 9 of the Registered Homes Act is just as much concerned with intentions as with actualities.

Findings

Section 9 of the Act exists for the protection of both present and future occupants of a residential care home. We consider that it is the primary duty of the Tribunal to have regard to their interests. The services and facilities reasonably required in a home for mentally disordered people are not the same as those required for elderly people. We do not agree with Dr Zaman in thinking that if Suri House was acceptable to the registration authority as a home for ten elderly people so also should it be acceptable for ten persons who are mentally ill. The residents envisaged by Dr Zaman were to be adults of any age; they might be long-stay, or transitional. All would require some degree of supervision. All would deserve a hoped-for improvement in their condition. In describing the facilities which he intends to provide in the home, Dr Zaman indicated that, as before when the Home was registered for elderly people, only two of the six bedrooms would be available for single occupancy. In our opinion ten mentally disordered occupants in Suri House, eight of whom would be required to share in double rooms, would be an entirely unsatisfactory arrangement. We think that a substantial preponderance of single rooms is reasonably required in any premises, and certainly in Suri House, in order to afford the greater number a choice of privacy, to encourage individuality and independence, and to reduce the likelihood of "interpersonal relationship difficulties" (to which Dr Saleem referred), bearing in mind that the 'careful selection of client groups' is always difficult, sometimes not practicable, and often unsuccessful.

The larger the group living together, the greater will be the restriction of choice and the fewer the opportunities for individual decision-making. We consider that there is a strong likelihood that most of the proposed ten occupants of Suri House would use the available communal space in a group at the same times (e.g. meals, evenings, and weekends). The suggested conversion of the garage to a games room might ameliorate but could not altogether eliminate the ensuing disadvantages. We are satisfied that ten would be an undesirably large number having regard to the necessary consequence of combining the use of the dining area for both meals and recreation. In addition, it would in our opinion be essential to erect a wall or some other substantial division between the dining room and the lounge - the effect of which would be further to reduce the limited space in the Home available for communal activities, and that is a consequence which we find quite unacceptable. Moreover, with all the foregoing considerations in mind, we see the evident impracticality of organising anything other than a central cooking facility as an additional drawback.

It seems to us that the use of the word "may" in section 9 must be construed as being purely permissive. We do not accept that the word means, in the context, 'may or may not' for we very much doubt that Parliament would have intended to confer a discretion in favour of registration in circumstances where a registration authority must first have become satisfied of unfitness in terms of paragraph (a) or (b), or of an inadequacy of the kind and degree described by paragraph (c). However, even if we thought that we had a discretion in the matter, we consider that an exercise of it in favour of this application would be a significant disservice to the future occupants of Suri House.

Based on the limited amount of factual evidence that we have heard and the explanation of his intentions we are satisfied that the way in which the Appellant intends to carry on the Home at Suri House is such as not to provide the facilities reasonably required for ten mentally disordered people.

Accordingly we dismiss the appeal and the decision of the registration authority is confirmed.

May 1989