B Newoor v Enfield Borough Council

The Tribunal unanimously dismisses both appeals and confirms both the order of the magistrate and the decision of the respondent.

REASONS

General History

The premises at 91 Fox Lane, Palmers Green were first opened as a residential home in 1975. With the introduction of the Registered Homes Act it was registered originally for 9 residents. By 1988 when the then owners were seeking to sell it this number had been reduced to 7. At first a Miss Chetty, the appellant's sister-in-law was negotiating to buy the home, but was unable to find the necessary finance. It was then that the appellant came into the picture. He purchased the property and applied for registration in his own name. He had no experience or qualification in the field of care and an interview apparently showed little understanding of what was involved in caring for elderly residents.

In the event he was registered as the owner on 6 December 1988 on the basis that the home would be managed by Miss Chetty whom the authority accepted as an approved manager. At this time it was understood that the authority required some work to be done on the premises, specifically in regard to altering the situation of and access to the laundry. It was also understood that the appellant was going to make extensions to increase the capacity of the home, the authority having pointed out to him the difficulty of making such a small home economically viable. It was stressed that care would be necessary to ensure that any disturbance of the residents should be kept to a minimum during the building operations.

With the exception of one resident who was mentally infirm, all the residents were over 80 and fairly heavily dependent, one being in her late 90s and another partially sighted. It was made clear to the appellant that it would be necessary for there to be two care staff on duty during the day and two staff sleeping in at night. In addition there would have to be ancillary domestic help. These requirements have never been challenged by the appellant.

All seemed to go well at first with Miss Chetty as the manager and inspections on 12 April and 30 June 1989 revealed nothing of any substance amiss. However, on 14 August Mrs Mansfield, an officer of the authority, found that the storage and recording of medicines and their administration was unsatisfactory and that the room of the most elderly resident on the first floor which she shared with another smelt strongly of urine. More seriously it appeared that Miss Chetty had been away for about 2 months and that the appellant was unsure when she would be returning. No steps had been taken to inform the authority of her absence or to obtain approval for an acting or substitute manager.

Main Shortcomings

Between 14 August and 28 November there were 10 visits by officials of the authority to the home. On 9 November there was found to be present Mr Newoor, Mr Deence whom he was seeking to register as manager and one care assistant. On 25 September there was only one care assistant present between noon and about 1.45 pm when Mr Newoor arrived. On 25 November only Mrs Newoor was present from 6.30 pm to 8.50 pm. On 23 November there was only one care assistant present, being helped to some extent by a person who had come to be interviewed for employment. On the other 6 occasions there was only one care assistant present but with Mr Newoor there as well. He, though the registered owner, had had no previous experience of caring for elderly people and from his reaction to criticisms made of him by Mrs Mansfield showed little or no understanding of how to deal with the confused and in some cases incontinent residents. At no time were there any domestic staff to free the care assistants for the necessary tasks of caring for and stimulating the residents.

This led to a most unsatisfactory situation in the home. Both Mrs Mansfield and Mrs McAndrew who accompanied her on two occasions were struck by the uncared for appearance of some of the residents and by the unsatisfactory way in which they were looked after. On one occasion elderly women were led all day in their night clothes sitting on incontinence pads and not attended to for a long period. This clearly had a detrimental effect on the outlook and on the well-being of the residents. This is entirely understandable with neither Mr nor Mrs Newoor having any experience of how to deal with the heavily dependent persons in their charge.

Although after being prompted in September Mr Newoor brought in a qualified person to help in running the home and to replace Miss Chetty he was not called to give evidence though sitting next to Mr Newoor and advising him throughout the hearing.

The need for a full staff was all the more necessary because of the inconvenience, disruption and even danger caused by the continuous building works. These involved a temporary partition in the hardly adequate lounge/dining area to allow for the construction of a ground floor addition and the construction of a lift shaft to provide a means of travel between the ground floor and the conversion planned for a second floor, though this was not proceeded with before the closure.

We are quite satisfied that Mrs Mansfield and Mrs McAndrew have given an accurate account of the shortcomings which flowed from the shortage of staff and the lack of understanding by whomever was in charge of the staff after 14 August, of the needs of the residents and of the care required. They were borne out by the evidence of the two practice officers who as emergency ambulance men, moved the most elderly resident to hospital on 3 December. They spoke about the shabbiness of the room and the unkempt appearance of its two occupants on the afternoon of that day. Their evidence is also of some significance in regard to the somewhat brusque and uncaring attitude of the care assistant in handling this elderly lady.

Mr Newoor did not give evidence or call any witnesses on his behalf after he had had explained to him the options open to him.

On the evidence as a whole we are entirely satisfied that the authority’s decision to cancel the registration under section 10 of the Act must be upheld. The home was not being run satisfactorily despite the many efforts made to persuade Mr Newoor to change his ways and comply with the repeated requests and suggestions made to him.

The section 11 closure

On about 4 December the officials were considering what steps should be taken to withdraw the appellant’s registration. He had been warned in a number of letters that this was a course which was being considered. They received a report from the hospital to which the very frail resident had been taken on the previous day expressing concern about the bruising on her legs and face. They also received a report of the impressions formed by the police though not directly from the police. These reports indicated that the old lady had been fairly roughly treated and had in fact been slapped by a member of the care staff. Fearing that there had been an assault on the resident but being unable to get a full statement from the police the officials decided to seek a section 11 order for immediate closure. To avoid unnecessary disruption in the home it was arranged with Mr Newoor that an official would move in to the home on the evening of 5 December. This was done and the magistrate’s order was obtained on the morning of 6 December.

The two police officers gave evidence before us. They were clearly worried by the uncaring and unsympathetic treatment by the care assistant of the old lady, but they were equally clear in their very fair evidence that there was nothing in the nature of an assault or a slapping.

To the extent that the statement put before the magistrate as required by section 11(2) referred to a member of the care staff being seen to slap the resident in such a way as to constitute an assault it was not borne out by the police evidence to us.

The fact that the magistrate was given and must have relied upon facts which it is now clear cannot be substantiated has given us some cause for concern. We do not think that any of the officials deliberately misled the magistrate but it makes it necessary for us to consider very carefully whether the other evidence established that there was a serious risk to the health or well-being of the residents in the home which would have continued had the order not been made.

We think that the persistence in understaffing, together with the clear lack of understanding by Mr Newoor of what was required to ensure proper care of these elderly people had led to a situation where their health and well-being were seriously at risk. In many cases they were not being cared for with the regard to their dignity that is requisite, and that little if anything was done to keep them interested and active as the staff had no time to attend to such things. This situation had persisted from August to December and there was no real promise of it improving.

For these reasons we think that there was justification for the granting of the closure order on 6 December and this order is confirmed.

(Signed) J C R FIELDSEND (Chairman)
K COLEMAN
K J WHITE