Decision 352
This decision may be freely reproduced and distributed. It should be drawn to the attention of registration and inspection staff and legal advisers.
GEOFFREY CAUSER ESQ AND MRS MURIEL ANN WAIT | APPELLANT |
v |
|
WEST BERKSHIRE DISTRICT COUNCIL (FORMERLY BERKSHIRE | RESPONDENT |
The decision of the Tribunal sitting at the Queen's Hotel, The Promenade. Llandudno, North Wales, on Monday 15th, Tuesday 16th and Wednesday 17th June 1998 to hear an appeal in respect of the Park Hall Hotel, Bangor Road, Conwy.
Tribunal: | Margaret Rutherford QC |
Representation
Appellant | The two Appellants represented themselves |
Respondent: | Roger McCarthy QC instructed by Ms Janet Hughes of Conwy County Borough Council for the Respondents |
Witnesses
Appellant | The Appellants called no witnesses but both gave evidence |
Respondent: | John Williams Esq |
BRIEF BACKGROUND TO THE DISPUTE
In January 1992 the Respondents were made aware that Mr and Mrs Wait were offering holidays at Bryn Twrog (Bryn). Literature sent to prospective clients stated that disabled people could be accommodated there. It was thought that some guests might be receiving personal care. The Respondents visited and discussed small homes legislation. Information was sent about this to Mrs Wait.
In March 1992 the Respondents visited again. Mrs Wait said she was aware of the requirements concerning registration and would discuss them if they decided to proceed. In April 1993 Mrs Wait was reminded that if she continued to offer care to people without being registered she would be committing an offence. In April 1994 a social worker asked about the status of the hotel, as she had seen an advertisement for Bryn. Geoffrey Causer was now running this establishment with his partner and Mrs Wait had moved to Rockwood which was a hotel for disabled people. The Appellants were again reminded of the requirement to register if personal care and board were provided, regardless of the title/description of the premises.
In April 1993 Mrs Wait applied to be registered as owner in respect of Bryn, as a small home. However, this was not pursued.
In September 1994 Mr and Mrs Wait applied to register Rockwood, a building owned by the Methodist Homes for the Aged. Holidays were provided by the Appellants at this home from mid-1993 through to December 1995. During this period Mrs Wait was visited by the Respondents and told very clearly of the need to register if personal care was to be provided. During a visit in June 1994 Respondent officers concluded that personal care was being provided to a resident, and later various concerns were noted, such as the fact that there were 28 residents including two in single rooms, and one bedroom having four beds in it. In September Respondent officers found 22 people in residence, some of whom were receiving board, accommodation and personal (assistance with dressing and toiletting, etc). They also received some complaints from residents, mainly about the lack of facilities, and there were two complaints from people to whom money was owed by Mrs Wait. On 23rd May 1995 a bankruptcy order in respect of Mrs Wait was made for failure to pay rent for Rockwood. Rockwood failed as a business and went into receivership in July 1995 before the registration process was completed.
Almost immediately Mrs Wait moved her business to Park Hall Hotel (the Hotel). In July 1995 a bankruptcy order was made in respect of Mr Wait. Visits were made by the Respondents in June, July and August 1995. During these visits Mrs Wait admitted that there were six guests in the house, two of whom were wheelchair bound and whom she helped with washing and dressing. She was both reminded and asked again about her intention to register. She stated that she provided a service and would provide personal care if necessary. She was interviewed under caution in August 1995. In September 1995 it was confirmed by the Official Receiver that both Mr and Mrs Wait had been declared bankrupt.
An application to register the Hotel as a "small" residential care home to care for up to 3 elderly residents was made on 13th September 1995 in the joint names of Geoffrey Causer and Keith Day as persons in control and Mrs Muriel Wait, Geoffrey Causer's mother, as Manager of the Residential Home. Mr Day was an employee of Mrs Wait at Rockwood, premises which were operating as a holiday home. Mr Day and Mr Causer are named directors of a company called Trudy Wait Care Holidays Ltd. This application was not fully processed until the end of April 1996.
On 26th March 1997 a Notice of Proposal to Refuse Registration with respect to Geoffrey Causer, Keith Day and Mrs Wait was sent to the Appellants. On 10th April 1997 a bankruptcy order was made in relation to Mrs Wait. On 2nd July 1997 the Appellants made representations to the Council. The decision was postponed pending further information and undertakings. A further meeting of the Registered Homes Sub-Committee took place on 1st September 1997 and a decision was made to refuse registration. On 12th November 1997 Notice was given to the Appellants that the Respondents had decided to (i) amend the application in that the name of Keith Day should be deleted therefrom and (ii) to refuse the application for registration under section 9(2) of the Act. The Appellants appealed on 9th December 1997.
APPLICATION FOR ADJOURNMENT
On the first day of the hearing Mrs Wait did not turn up but her son, Mr Causer, did. It appeared that although the Appellants had had legal representation, the solicitors concerned were no longer acting. No documents, including Grounds of Appeal, had been served on the Respondents. The Hotel had been visited by the Respondents on 8th June and Mrs Wait had informed them that she intended to pursue the appeal and would be bringing witnesses to the hearing. The Tribunal treated this as an application for an adjournment by the Appellants.
Mr Causer explained that his solicitor had left the firm at short notice about 2 months ago and that the replacement advised the Appellants that she would not be able to deal with the case as it was a specialised area. He would need a barrister. As the Appellants could not afford one they decided to represent themselves. Mrs Wait undertook all the preparation eg the witnesses. Mr Causer took no part in the preparation. Over this weekend, however (ie 13th/14th June), immediately before the start of the hearing) Mrs Wait's "adopted father, who had lived with them for the last four years as a member of the family", as he explained, suddenly died. Mr Causer explained that he was the personal carer to this gentlemen, bathing him, assisting him with all personal care tasks, and so on. The funeral was arranged for the coming Friday.
Mr Causer was cross-examined by the Respondents, and it was elicited that the deceased gentlemen, Mr F, who was no relation, had not paid anything for his board and lodging. He had, however, donated some £15 - 18,000.00 towards the cost of a conservatory for the Hotel. Mr Causer was very vague as to the precise nature of the financial arrangements. However, as a consequence of the conservatory costing more than this amount. And Mr Wait having "signed on behalf of Mr F", she was made bankrupt. It was elicited that, although Mrs Wait was apparently extremely distressed by the death, she had worked out what she was going to say at the hearing and had made arrangement for two witnesses to attend. Mr Causer had only to deal with the matter of the Death Certificate the following morning. He said that he though his mother would be prepared to come to the hearing.
The Tribunal adjourned to allow Mr Causer time (it adjourned until 1400) to talk to his mother on the telephone, and to bring her to the hearing if that was her wish. He later notified the Clerk that he would be setting off to collect his mother.
In the afternoon Mrs Wait, who turned up for the resumed hearing, reiterated her son's request for an adjournment until after Mr F's funeral on Friday. She explained the problems with her solicitors, and to the fact that her own father had died as recently as May this year. She said they had decided to represent themselves, and had collected papers from her solicitors expecting to find some help in the files. There was nothing and she had intended to prepare for the hearing this Sunday. Regrettably, Mr F had died and she had to go to the hospital to pick up his belongings, to make arrangements with the undertaker and so on. The Respondents asked her if she was really intending to got on the with the appeal. She made it quite clear that she did so intend and that she could carry on.
The Tribunal, after a further adjournment to consider the application, unanimously rejected it, and the hearing continued, although throughout the 3 days the Tribunal was most solicitous of the Appellants, and in particular Mrs Wait, who was clearly still upset about her recent bereavement.
SUBSTANCE OF THE RESPONDENTS' CASE
The Respondents' case that both Appellants are not fit persons to be concerned in carrying on a residential care home emerges from its Notice of Proposal to Refuse Registration, its Reasons for refusal of registration, from the evidence of its own witnesses at the hearing and the cross-examination of the Appellants, which are summarised in the closing submissions. The Respondents say that Mrs Wait, with the support of her son and Mr Day, have intentionally and consistently continued to provide personal care for elderly people over a four year period. They have been repeatedly warned as to the law but this has not changed the service provided by them.
The Reasons on which the Respondents relied for refusal of registration
1. Mr Causer had not demonstrated the degree of expertise that was considered necessary to be able to run a residential home. In his interview his lack of knowledge on basic and fundamental issues involving residential care were apparent. Although he has made some effort to increase his knowledge and gain qualifications which would render him more suitable for the position, the present circumstances appertaining at the Hotel militate against him appearing as a person being able to, and actually being in, control.
2. Mr Causer and his mother have demonstrated over a considerable period a cavalier attitude towards the Respondents. They have consistently ignored advice, have refrained from making application for registration when they clearly should have done so and have failed to act on advice and guidance given in relation to their previous operations at Bryn Twrog (Bryn) and Rockwood.
3. The lack of importance given by Mr Causer and his mother to the general administration process involving registered homes was considered significant. There was a clear lack of management skills in the backgrounds of both. There appeared to be an unwillingness to engage suitably qualified staff, and generally matters involving administration and efficient management do not appear to have been addressed in a satisfactory or consistent manner. In particular the production of suitable references, particularly professional references, does not appear to have been considered as significant by either.
4. The influence exerted by Mrs Wait was considered particularly significant. During the interviews with Mr Causer and Mr Day it was clear that Mrs Wait was the very dominant influence in all the residential homes ventures involving Bryn, Rockwood and the Hotel. The lack of proper management appears to have been a strong contributory factor in the failure of the Rockwood venture in particular. Although the registration process had not been completed there is little doubt that Mrs Wait's bankruptcy at this time emanated from her care and management of a residential home that should have been registered.
5. Despite claiming to have no involvement in the actual administration of the Hotel it is significant that Mrs Wait's second bankruptcy, a bankruptcy imposed on her whilst she was already undischarged bankrupt, resulted directly from the administration of the Hotel. The liability in respect of which the first order was made included outstanding rental payments on the Rockwood premises. The liability in respect of which the second order was made in connection with Mrs Wait having entered into a contact for the provision of a conservatory at the Hotel. This conservatory was to be partly financed in some manner by a resident at the hotel. This incident clearly demonstrates that the administration of the premises was clearly in the hands and under the control of Mrs Wait, a premise which is supported by the comments made by Mr Causer and Mr Day in their interviews.
The Respondents' closing submissions
The importance of this case relates not just to the Appellants, the Respondent authority or the guests at the Hotel, but in general terms to the number of hybrid establishments, that is to say those which are part small care homes/part which are not. An example of such a "hybrid" might be an establishment with a core group of residents who receive personal care even though there are others in the building who do not, such as temporary visitors. It is essential before registration to ensure that small homes will be run in accordance with legislative requirements. In Decision No 266 there is a fairly concise summary of what to look for in small homes. A "lighter touch" is to be applied. However, there are still a number of formalities and requirements that operators of such homes are bound to comply with, in particular to ensure that no more than three residents are provided with personal care. Beyond that the Registered Homes (Amendment) (No 2) Regulations 1992, are quite extensive, even regarding small homes. For example, they contain some additional provisions and amend Regulations 10 and 14 of the 1984 Regulations. The records which need to be kept are quite extensive, for example a daily register of all residents. The various amendments, in particular relating to the Schedules, indicate that a "lighter touch" does not mean no touch; it simply means that such requirements should not be onerous.
The Appellants' expectations and requirements are that they are allowed to run the Hotel as they wish, in terms of who they accept, how many guests they accommodate and what services they provide for them, without any intervention at all from the Respondents/the Council. The Appellants, and in particular Mrs Wait, has made it very, very clear - and up to this very week her argument has remained the same - that the Hotel is not a residential care home but a holiday facility. That attitude explains the chronology of event between the Respondents and their predecessors and the Appellants regarding the Hotel. In a nutshell, the Appellants do not consider they should have to submit to the registration process.
The Respondents say that it is quite impossible realistically to predict that the Appellants' attitude will miraculously change, because on the first day of the hearing they understood from the preliminary view expressed by the Chairman, subject to further information, that they cannot avoid the need for registration by providing staff under a device of agency. Therefore the Respondents say that it is only reasonable to predict the likelihood of the Appellants continuing to run the Hotel under the present culture, the present prospects and the present procedures. As a consequence the Hotel will be running at all times with the evident prospect of being over-numbers if registered as a small home. It will also be running with totally inadequate procedures as there is no dividing line between people for whom they can provide sufficient care and those for whom they can not. In summary, they have no assessment procedure at all.
The Appellants put to the Tribunal as part of a proposed solution to the dilemma caused by receiving very dependent people, that they might use the services of a care agency. The difficulty is that it would be impossible to say at any given point who will be employed at the home to look after the residents. Further, from oral evidence given by the Appellants, they would have the Tribunal believe that until the first day of the hearing they were in some state of confusion as to what was really required of them and what was lawful. The chronology, which sets out the history of the various events, shows quite clearly that both Appellants had many, many opportunities to learn the lesson: that no personal care was to provided on site without prior registration. Further, there comes a point when what starts off as ignorance becomes sheet bloody-mindedness, what the legal profession calls "wilful blindness". Has Mrs Wait been wilfully blind in the pat? And if she has, has that now evaporated?
The explanation given/stance taken by both Appellants is that to prevent them providing care for their guests when needed is to discriminate against the disabled.
This is a nice idea, the sort which would appear attractive is a newspaper article. But there is no sense in it at all. It is nothing more than an argument tacked on by Mrs Wait to her insistence on being allowed to run her establishment as she think fits. Her son, to his credit, in saying in public, in front of his mother, does not pretend to see discrimination in the requirement to register. It is a shame that he did not take this stance three years ago and try to talk her out of the dispute. Part of the Respondents' case was that they thought that Mr Causer was under his mother's control in running the business. If this is the case then there can be no confidence in him, were the home to be registered, in being able to insist that his mother following the Regulations. He has the beginnings of some ideas, for example regarding assessment, but these have only been reached after a very, very long time and the dispute has gone on for over six years. It is not realistic to predict it is about to happen.
There still remains an enormous dilemma, which arises from the fact that it is not possible to say that, if the home were registered, it would be run strictly in accordance with the legal requirements. In the circumstances it is far better to ensure that the Hotel is not registered so that the Appellants understand it is not open to them to enter into some sort of personal care arrangement which involves some indirect procuring of care. They need to understand their legal obligations. They need to read section 1(1) of the Act. If they cannot understand it, they cannot get off the ground.
In the light of the evidence the appeal should be dismissed. If the Appellants dabble, without reading the Act, are not aware of the Regulations, do not read Home Life, they have not learned their lesson and they should not be taking further decisions regarding the legal framework without obtaining legal advice. They should not attempt to skirt around the registration requirements without taking legal advice and should understand what they are doing.
SUBSTANCE OF THE APPELLANT'S CASE
The Appellant's case emerges from the evidence adduced by each of them at the hearing and from the cross-examination of the Respondents' witnesses, as summarised in the closing submissions.
Mrs Wait explained to the Tribunal how she came to open an Hotel to provide holidays for disabled people. The concept, in summary, was that guests would be picked up from their homes by vehicles belonging to, or hired by, the Appellants, taken to the Hotel, provided with board and lodging, taken out every day, provided with nightly entertainment, and be taken back to their own homes at the end of the holiday. Originally there was no requirement to register. [NB this was prior to the small homes legislation]. When such requirement arose she says she was not interested in becoming a registered home. All they wanted was to provide holidays or respite for carers. Her argument, when it was suggested to her that she should be registered, was that she was not a residential home. She was a holiday facility. She was providing care for one permanent resident and was told she was breaking the law. She did not think she was.
Even at Rockwood she was still in the arguing process. She did not want to be a residential care home. However, she finally agreed to apply for registration, and an application form was sent off. At that time her lease came to an end and that was when big trouble started. There were problems, everything got out of hand. An eviction order was served on her and she given one hour to vacate the premises. At the end of all these problem she was declared bankrupt, not by creditors as such but by the Methodist Homes. Finally she was able to obtain Park Hall (the Hotel). She, a proud person, felt a stigma attached to her. Her son and Mr Day believed in what she was doing, believed in holidays for the disabled, providing them with a good quality of life. That was why they applied to be registered as proprietors with herself as manager.
Mrs Wait gave a full description relating to various problems which arose, for example the very bad start when the premises were struck by lighting, and the visit by Respondents when she was spoke to under caution, being told she was not under arrest, which came to her a big shock.
She says she has explained to the Respondents that she only wants to carry out holidays for the disabled, to carry on as a hotel specialising in holiday packages. She has not objection to registration, in fact she wants to be registered to accommodate the odd guest who requires personal care. She is not ignorant, nor is she a bad person. Dishonesty means theft. She is a caring person with very strong views for the disabled. She would like to work close to the Respondents. The Hotel is very much a family business. It is equipped for handling and lifting people.
Appellants' Closing Submissions
Mrs Wait spoke for both Appellants. She said that they came before the Tribunal to prove their fitness. She says their ability or capability in how they administer care was not in question. Her genuine reasons for what they have been doing is to provide a Hotel for the disabled. The Tribunal has really been about how they have not worked within the registration law. Basically the Hotel has been run correctly, records have bene kept, and when asked to produce them they were always there. Anything the Respondents required or asked for was always provided immediately. All they tried to do was to provide excellence for the people who came to them. She herself tried, not only to work for others but with people. She admits she went about it the wrong way, but she strongly denies she has been wilfully blind, and is certain that this is proved by all arguments and conversations with the Respondents at all times. She thinks it was done out of ignorance and the need to provide excellence. Everyone has received nothing but the best service at the Hotel, at Rockwood and at Bryn. If guests became ill, the GP would be immediately contacted. She tried to create a safe environment with self satisfaction. Her main world revolves around retired/disabled people.
As to Mr F and the personal care that she and her son provided to him, she genuinely never though that they were breaking any law, in the same way that she never broke any law when she looked after her father for nine years. The standards of care provided has never been in issue. She attributes the present position to a complete breakdown of communication. She say that to suggest the matter cannot now be rectified is being unfair. The Appellants can very quickly, with legal advice, put to rights their administrative sector. The Respondents can never claim that over seven years she has ever told a lie. She is not a dishonest person and has been treated for seven year with contempt.
REASONS FOR THE TRIBUNAL'S DECISION
Introduction
After having read all the written evidence, after hearing oral evidence and re-reading notes taken during the hearing, and after reading and listening to the closing submissions of Counsel and of the Appellants, and discussing the matter thoroughly, and after most careful and anxious thought, the Tribunal is satisfied and finds that the Respondents have proved their case to a high standard. It unanimously finds that the Appellants' appeals fail and are dismissed.
Burden and Standard of Proof
In civil cases the general rule relating to both the legal and evidential burden of proof is that the party who asserts a fact must prove it. In this matter, the Respondents, on whom the burden squarely falls, are required to prove that each of the Appellants is "not a fit person" within the meaning of the Registered Homes Act. It is not for the Appellants to prove that they are fit persons.
The party bearing the legal burden of proving the facts in issue is required to prove it on a balance of probabilities. The Tribunal does not have to be satisfied beyond reasonable doubt, which is the criminal standard, but simply, (subject to what follows) on a preponderance of probabilities, for example, that it is more likely that the Respondents' version, rather than that of the Appellant, is true. Put even more generally a 51/49% balance of probability would be sufficient.
However, as a consequence of Lyons v Eat Sussex (Tribunal Decision No 78), in certain civil matters a heavier burden lies, namely, that the more serious the issue to be determined, the higher the standard of proof required. These are serious issues and serious consequences will flow from the Tribunal's decision. On the one hand are the interests of the residents/potential residents. They must rank very high since they constitute a vulnerable group, being old and frail. On the other hand, and more particularly, are the interests of the Appellants. The consequences of the appeal being dismissed will be serious for them. The Hotel will not be able to take in residents who require personal care, unless the residents bring their own carers with them. More importantly in the Tribunal's view is the damage to their reputations which would be axiomatic in the light of a declaration of "unfitness". It is therefore imperative that the evidence adduced by the Respondents should be cogent, weighty, credible and persuasive to a high degree if it is to succeed. In view of this the Tribunal has paid assiduous attention to all the evidence, which has been carefully read, heard and re-evaluated.
The Tribunal was satisfied to a high standard that the Respondents have proved that both and each Appellant is unfit to be registered either as a proprietor or manager of a "small Home" for up to 3 elderly residents. The general reason for coming to this conclusion is that the Tribunal accepts the Respondents' evidence which it found weighty, credible and convincing and was not persuaded by the Appellants' evidence that registration should be granted.
The Tribunal will not go through each and every part of the evidence, but will simply highlight certain findings.
Mrs Wait
The Tribunal gave most careful consideration to the evidence given by this Appellant, and to the answers she provided both to its own questions and to those of the Respondents. It is satisfied and finds that her attitude towards the Respondents throughout was, and indeed remains, cavalier. She was absolutely intractable in her conviction that her Hotel was of benefit to disabled people, who, if they required personal care from time to time whilst staying there, would be provided with it whatever anyone said, - ("I still think it is necessary to accommodate people who need care"; "My argument and my fight with them (the Respondents), is the same argument, and that is that people have rights. We are running a business for the retired and disabled. Just, if you like, a lot of disable people in this hotel … It is a packaged, well covered, with a price affordable to the public. If they start to provide their own care they cannot afford to go away (on holiday))".
The Tribunal finds that she knew perfectly well, and for a considerable period of time, that if she continued to provide personal care for her hotel residents the law required that she be registered ([R] "The documents, everything … always told the same story… when inspectors visited …that if you provided care the Respondents were saying you needed to be registered?" [A] "Yes"). She received her first warning that she would be breaking the law if she did not register some six years ago (14th April 1992), and was warned again in writing in December 1993, April 1994, August 1994 (twice), September 1994, June 1995 and several times subsequently. Astonishingly, and with what the Tribunal can only described as breathtaking disregard for the law, she persisted in ignoring such warnings and obstinately insisted that her "interpretation (of the law) is that a person with a disability has a right to go where they wish"; "I was breaking no laws… My interpretation of the law is different from him" (Mr Hughes). She perversely stuck to her opinions even when the weight of evidence was clearly against her, for example in her evidence as to why she considered that registration would be additional burden on her and why she refrained from making/following up such applications she said, inter alia: "I had been assured I'd never get registration. I would not get the appeal - I was told I wouldn't get it, told by Mr Hughes". It was simply not credible and the Tribunal was unable to accept this evidence.
The Tribunal finds that Mrs Wait lacks management skills, and in particular has unrealistic, incoherent plans as to possible solutions to, and rectification plans as to possible solutions to, and rectification of, the problem of continuing to run a hotel for disabled people who from time to time will need personal care. It finds she is either astonishingly ignorant of the legal requirements/obligations relating to the registration of small homes or wilfully and deliberately blind as to what is required of her, and what her responsibilities are. In this regard the Tribunal is satisfied that she has been running the hotel and providing care from time to time for some very dependent residents with totally inadequate procedures, and in particular no assessment procedures. It is also inclined to find that her intransigence does indeed amount to wilful blindness as there does not appear to be any other explanation for her behaviour
It finds that she has been declared bankrupt on two occasions, indicating poor management skills in all three of her ventures, if not financial irresponsibility. It is unsure whether any of the monies that she owed, resulting in such bankruptcies, have ever been repaid? The Tribunal finds that her intransigence and obduracy in her disregard of all help and advice offered over a very long period by the Respondents and conviction that her views alone were correct, show unfitness to be registered as a person concerned in carrying on a home. Further, it finds that such is the undoubted influence/control she has over her son that any possibility of his being able to rectify the present position is quite unfeasible. Without going into the relationship in any detail, it is clear that he is dominated by her and has been unable to stand up to her.
Mr Causer
Regrettably the Tribunal finds Mr Causer unfit to be registered as one concerned in the carrying on of a residential small home. It finds his knowledge of care scant, inadequate and inexplicable. It finds his lack of understanding of the Respondents' statutory role and his ignorance of the generality of the legislation astonishing, particularly in view of his graduate status. It finds his own attitude to the problems which have accumulated over the pat few years, for example, his apparent ignorance of the financial arrangements relating to the purchase of a conservatory, entered into with the resident to whom he provided personal care, and his total lack of knowledge as to what was going on prior to the Tribunal hearing, - ("We were informed we could not use our own staff for caring, even if we were registered. I thought we could. I could not understand. I did not seek information. I thought I would mention it to the solicitor, … waiting for him to come back. I forgot all about it until the Tribunal") - equally extraordinary.
Is it possible that the present situation might change?
The Tribunal finds that Mrs Wait was completely in control of the various residential ventures and that her son (and presumably Mr Day who has dropped out of the scene) were shadowy figures with no independent powers. Based on the evidence relating to the present and previous accommodation, the Tribunal finds that it is bound to make a negative prediction as to how the Hotel will run, if registered as a small home. It has no confidence in either of the Appellants. It has no confidence in the suggestions that have been put forward, that only the maximum of three residents needing care will be admitted at any on time on a first come/first served basis. It finds Mr Causer displays the same entrenched views, and appears as contumacious, as his mother, to such an extent that the Tribunal can repose no confidence that this attitude/the status quo w ill really change.
In reaching this decision it refers again to the utterly inadequate assessment procedures and relies on the evidence of concerns which have continued for six years, despite helpful advice and assistance given patiently over those years by Respondent officers. The combination of these factors - which the Tribunal regrettably regards as a recipe for disaster - prevent it from entertaining more optimistic or positive views.
Consideration of the relevant legislation
The Tribunal, in reaching its decision, was particularly mindful of the legislative requirements of the amending Act and of the background to it which led to its promulgation. It was passed because those individuals who, for various reasons, wished to avoid the responsibilities and obligations imposed by the 1984 legislation, were nevertheless able to offer residential accommodation with board and care for fewer than four persons. There were widely felt concerns about unsuitable people running small homes, including some who had been found unfit to run larger homes. The statutory protection provided to all those vulnerable persons in need of such care by reason of old age, disablement, past or present dependence on alcohol or drugs, or past or present mental disorder, was unavailable to those same groups. Such people were potentially open to exploitation and even abuse without the security of that protective framework, so valiantly serviced throughout the years by various registration authorities across the country.
The Tribunal also gave careful consideration to the principle of the need for the "lighter touch", that it to say, trying to strike "a balance between the complete absence of controls and placing excessive burdens on the operators of small homes and on local authorities". The only ground on which registration can be refused is as regards the fitness of those involved in running the home. The Tribunal paid particular regard to the Residential Care Homes (Amendment) (No 2) Regulations 1992, the Circular LAC(92), and various earlier cases of the Tribunal, in particular Decisions 236 (the first case to be brought under the 1991 Act which came into force in April 1993) and 266. However it was also particularly mindful of the fact that, once a small home is registered, it may not be inspected for lengthy periods, as there is no legal obligation on local authorities to do so at any specific intervals, (Regulation 18 of the 1984 Regulations, amended by Regulation 9 of the 1992 Amendment Regulation). A visit by registration officers every two years, for example, would not be unusual. It is up to the registered proprietors to take the initiative in that they have to make an annual return to the registration authority (Regulation 25 and Schedule 4 of the 1992 Amendment Regulation).
It is therefore absolutely essential that such registration authorities are able to rely with total confidence on the integrity of persons who run small homes. They need to be able to trust them to restrict the number of their residents to a maximum of three and to maintain very high standards of care so that their welfare is protected and promoted at all times. In this respect, whether the residents who require care only stay for short periods in the home is immaterial, as is the fact that the personal care provided is not very extensive. Thus where the arrangement is the sort of establishment which the Appellants were running - ie a hotel for elderly/disabled where from time to time several might need to be provided with personal care - it is absolutely essential that proper assessment procedures are unambiguously set down so that it is clear who can be admitted as resident and who may not.
The Tribunal understands that hotel-type establishments which provide holidays for elderly or disabled persons appear to be an increasing development, and if this is indeed the case, then, when the staff are directly concerned in the provision of care, they must be registered. Respondents need to be confidence that there is financial stability in the home, that it is well managed, that it complies precisely and exactly with the legal requirements. They need to be confident that when advice to owners is proffered, it is accepted in good faith. In the above-mentioned decisions it was said, inter alia, "With any homes, even small homes, it is vital that the integrity of the applicant/owner can be relied upon" (No 236). In the later case (No 266) it stated, inter alia, "We have decided that the high standard of fitness indicated by Decision 76 applies to proprietors of small homes and, with regard to Decision 236, we say "especially with small homes, it is vital that the integrity of the applicant/owner can be relied upon". This Tribunal entirely endorses that principle, particularly in the light of the above.
An observation which the Tribunal hopes will be accepted in the spirit in which it is given.
The Tribunal expresses surprise that the Respondents (or statutory predecessors) do not appear in this particular case to have given more serious consideration to, and initiated, a prosecution. It is the Tribunal's opinion that the evidence suggests such action may well have been justified quite early on in 1996, if not considerably earlier (1994/5?). If such an action had been taken (and it would seem as though it might well have been successful) it would have provided absolute clarification for all concerned. The conviction itself would have been grounds for refusal of registration and the subsequent two year delay and anxieties for all those involved, possibly even this appeal itself, with all of its costs to the public purse, might have been avoided.
MARGARET RUTHERFORD
DAVID STANLEY
FRANKS WATTS