Charles and Patricia Riley v Lancashire County Council

It is the unanimous decision of the Tribunal that the Appellants' appeal be dismissed and that the decision of the Respondents to cancel the registration of the Appellants in respect of Glen Cairn be confirmed.

Very briefly, the substance of the history of the dispute is as follows. The Appellants, a married couple, were registered as the proprietors of a home for six mentally handicapped persons on 13th.August 1984. This was prior to the coming into force of the Registered Homes Act 1984, which event occurred on l1st January 1985. A new certificate was issued on the l0th October 1985 to comply with the Act. Mrs Riley had previous experience, having worked in Brockhall Hospital. Mr Riley had no relevant experience. At the time of the initial registration it was proposed that Mrs Riley would be responsible for the care of the residents and that Mr Riley would be the manager, doing the accounts, work on the building and so forth.

The marriage of Mr and Mrs Riley, however, was under some stress at this time. Even at the time that alterations were being made to Glen Cairn they were, apparently, living separately (Mrs Riley living near Glen Cairn, at 442 Padiham Road), whilst both still continued to work at/in the home. However, their relationship was deteriorating and from 23rd.August 1988 Mrs Riley ceased to visit Glen Cairn. They were subsequently divorced. The Respondents were ignorant of these facts.

Since 1984 it was known to the Respondents that the intention of the Appellants was eventually to increase the numbers in Glen Cairn from six residents to twelve. Building works were carried out, inter alia, to provide a further three bedrooms on the second floor in view of the anticipated increase in numbers. An application to do this was made to the Special Cases Sub Committee and heard on 23rd.November 1987 and the application was -approved. It should be noted, however, that in the interim (i.e. in early May 1987) a new policy on restricting numbers in such homes to no more than six residents had been adopted by the authority. However, the approval was given in view of the fact that the date at which the Respondents were aware of the Appellants' intention to increase numbers, preceded the policy.

A revised certificate of registration was deemed necessary, and a new application form was completed but the understanding was that it would not be issued until such time as all necessary work, e.g. compliance with fire regulations, had been completed and certificates given to indicate that all required to be done had in fact been done, and a final inspection taken place. By early 1988 major building works had been completed but various matters, e.g. relating to the external fire escape, were still outstanding. No final inspection had taken place.

In March 1987 pre-arranged visit to the home occurred. The failure to maintain a number of records was noted. Mr and Mrs Riley were informed of the shortcomings, a supply of forms was sent and specific reference was made to the need for the safe storage of medication. In February 1988 a further, pre-arranged visit occurred. Shortcomings were still found, particularly in relation to the recording and safe keeping of drugs and matters relating to fire precautions. Concern was expressed about the overall management of the home and the lack of Mr Riley's lack of awareness and professionalism regarding the care of mentally handicapped persons. In March a letter was received from Meanwood Park Hospital, Leeds. It suggested that more than six persons were being accommodated 2t Glen Cairn. As a consequence, an unannounced visit was made on 23rd.March 1988 by two of the Respondents' officers.

This visit caused much concern. A care assistant (24 years) and Y.T.S student (16 years) were there alone. Neither Appellant was there. Mr Riley was apparently at his home but neither his address nor telephone number was known. It was thought that Mrs Riley was visiting a friend locally and would be back by evening. (She was, in fact, in Birmingham.) It was said that six persons were resident at Glen Cairn but that Mrs Riley and her daughter had others living with them. The officers found ten persons present but only six files were found. There was no available key to the box inside the drugs cupboard. Prescribed drugs were found in an unlocked drawer in a place accessible to residents. The fire alarm system was inoperative. The care assistants (another one [19 years] had arrived) were unaware of emergency procedures in the event of fire. It was clear from made up beds and other evidence that more than six people were sleeping at Glen Cairn. The officers thought there were ten. The officers called the Principal Officer, and he arrived at about 9.00 p.m. shortly after Mr Riley returned. Mr Riley was questioned about the fire alarm, the number of residents, the drugs and the staffing situation. Further inspection revealed that the room from which the fire escape leads, had its floor covered in tools and cable, and that there were other obstructions such as a plank and a-stepladder. Discrepancies and gaps were found in the records.

It was pointed out to Mr Riley that the situation was serious. He admitted that more than six residents had slept there before and that there were more than six sleeping there on this particular night. However, it was decided in the interests of the residents not to disturb them so late at night. Subject to certain safeguards, e.g. the fire exits were cleared, an electrician repaired the fire alarm, two persons would remain on duty that night, and so on, and after giving warning about the consequences, which might include a prosecution, the officers left.

The next day, 24th.March 1988,two of the officers visited Glen Cairn once more. According to them there were now eleven residents at Glen Cairn. Both Mr and Mrs Riley were present, and arrangements were made so that five residents would remain at the home, three would live with Mrs Riley, two would live with a married daughter and one would live with an unmarried daughter, each of whom had her own house.

Letters were subsequently sent to both Appellants, setting out areas of concern. Further visits occurred. On 11th.May 1988 the Special Cases Sub-Committee of the Social Services Committee made a proposal to cancel the registration of Mr and Mrs Riley, it being alleged, inter alia, that neither was a fit person. The Sub-Committee also recommended that Mr and Mrs Riley be prosecuted for an offence under section 5(5) of the Act. Both Appellants were convicted at Burnley Magistrates' Court on 19th.August 1988 for failing to comply with a condition of registration, i.e. concerning numbers of residents. They were fined £500.00 each plus costs. Mrs Riley, as has already been mentioned ceased to have anything to do with Glen Cairn from 23rd.August 1988. On 24th.August 1988 the Special Cases Sub Committee of the Social Services Committee heard representations on behalf of Mr and Mrs Riley and resolved to adopt its proposal to cancel the registration, made on 11th May 1988. The Appellants appealed to the Crown Court against conviction and sentence, later abandoning the appeal against conviction. The appeal was heard on 13th.January 1989 and the appeal as to sentence failed.

2.Witnesses

Witnesses for the Appellants:

Mr Charles Riley

Mrs Patricia Riley

Miss Celia Riley, a care assistant at Glen Cairn,

Miss Serena Higham, a care assistant at Glen Cairn

Witnesses for the Respondent:

Mr Jack Peel, Manager Children and Mental Health Services

Mrs-.Gladys Oldham, Assistant Manager Children and Mental Health Services

Mr David Charnley, Principal Officer

At the request of the parties the Tribunal paid a short visit to the home in order to familiarise itself with the layout and be better able to follow references to that layout which might emerge in the evidence.

Due to local and national postal delivery disruption in late 1988, and other factors, there were certain procedural irregularities concerning receipt of notices and a notice of appeal on behalf of Mrs Riley. These were waived by both sides. Mrs Riley confirmed that she would be appealing and this was submitted in writing at the commencement of the hearing.

The power to discharge functions by the Social Services Committee and the delegation of such powers (under the Social Services Act 1970 and the Local Government Act 1972) were considered. A resolution to increase numbers from six to twelve was passed by Lancashire County Council although no certificate of registration was ever granted as the works were incomplete. However, there was a clear understanding that once the building work was complete the home would be suitable for twelve residents. There were discrepancies and anomalies regarding the application forms completed by the Appellants. The Appellants have been accused, inter alia, of imperfectly keeping records. They were not alone. Even the Respondents' officers had difficulty in achieving difficult standards laid down on them.

There is no evidence that any requirement exists for proprietors to disclose their marital status, or any change which might occur in that status. The failure to disclose such information does not indicate an unfitness. As to records, it is not disputed by the Appellants that standards had been bad. They were worked on, however, and by June 1988 there was some improvement. The main criticism seems to have concerned reviews, but there is no evidence that these reviews were maintained in record form, nor that any form for maintaining such a record was included in the information/booklet supplied by the Respondent. To go from very few records to monthly summaries indicates improvement, and further improvements can be brought about with the help, support and assistance of the Respondents.

As to 23rd.March 1988 the substance of the evidence adduced by the Respondents' witnesses is not denied. The officers' concern was justified, as was the consideration of whether or not to institute the urgent procedure forthwith. In the event such procedure was not taken. It is not disputed that in excess of six persons slept at Glen Cairn on 22nd.and 23rd. What was disputed was-what constituted "residence", since it appeared that some of the ladies lived outside of Glen Cairn, but attended there during the day. In any event, when Mr Riley was questioned by the Respondents' officers concerning numbers in excess of his certificate, he was not previously cautioned nor given the opportunity to have his solicitor present. This is a further example of the Respondents' officers having difficulty in maintaining the difficult standards put upon them.

Clearly the Appellants TOGETHER are unfit to be concerned in the running of a home, since the evidence is that following the breakdown of their marriage, the failure of communication between them extended ultimately into the management of Glen Cairn. However, individually they are not unfit. They must each have a degree of management skills, be able to deal with necessary work modifications, be able to select suitable staff, organise, instruct as necessary, supervise staffing duties, keep proper records and so on, so as to meet the needs of residents. Mrs Riley has this necessary expertise. She was responsible for most of the records and the failures were pointed out to her. Of itself this cannot be reason to hold that she is unfit, because during this time the Respondents approved an application for the numbers at Glen Cairn to be increased to twelve, (23/11/87). That decision was made with due consideration.

As to her absence on 22nd.March, and going off to Birmingham without telling Mr Riley or the staff, this was an isolated occurrence. The explanation lay in the lack of communication between the parties. She failed to make sure that drugs were properly stored and recorded, but she has explained this, in particular about the Largactyl. There was a risk on 23rd.March but matters as to drugs have been rectified, and there was no evidence of harm that night. She failed to tell the Respondents she was divorced. This has been dealt with. Is it the Respondents' case that she sought to defraud the D.H.S.S.? They have adduced no evidence other than a confidential letter to the Respondents by the D.H.S.S. Mrs Riley is experienced and cares for the girls presently in her care.

As for Mr Riley, he has had no previous experience of the mentally handicapped but in 1984 he was considered a responsible person to carry on a residential home. During 1984 - 1989 he has learned a lot, and has been concerned at a senior level with the running of a home. The day to day care, record keeping and suchlike is the task of others. He has had no intention to deceive. He acknowledges his limitations. Since August 1988 he has been solely responsible for the home. Under stress, of previous good character, he has since been convicted of an offence, but he has continued to try to improve matters, a fact acknowledged by the Respondents. He sought advice from them and made arrangements about staffing. He can only employ someone to fill the gap left by his ex-wife and elder daughter after the Tribunal decision, when he knows the outcome of their deliberations. Improvements can be made when the future of Glen Cairn is known.

He is not unfit because the fire system was inoperative for a short while, because doors were left open and obstructions blocked fire exits. That particular day was an isolated occurrence. Apart from 23rd no evidence has been adduced that, with the exception of matters (a) and (r) in the Regulations there were any other complaints. As to (a), taking into account the size of the home and so on, a tolerable situation exists which could be improved. As to (r) arrangements have been made and continue to be made concerning attendance at centres, clubs, etc.

It would appear that the Respondents formulated some sort of policy relating to restriction of numbers, made an exception with regard to the Appellants and then, having suddenly realised that this could operate against them, sought to rely on the events of March 23rd to extricate themselves from a potentially embarrassing decision. Not only was it contrary to the policy regarding numbers but it was also contrary to the policy on accommodation - i.e. there are only six bedrooms and these should accommodate no more than two residents in each. Thus there would be nowhere for any on-call staff to sleep on the premises.

The evidence of matters of fact are largely undisputed. There has been acknowledgement that certain things have been done wrongly. However, the residents have been well cared for. They attend centres run by the Respondents who would be bound to learn of any serious shortcomings if there were any. It is true that March 23^rd was a disaster. However, the passage of time since that date has indicated substantial improvements have been made and deficiencies resolved.

The reasons for cancelling the registration were that Mr and Mrs Riley were not fit persons to be concerned in the carrying on of a residential care home; that for reasons connected with staffing the home was not fit to be used as a residential care home and that the way the home was carried on was such as not to provide the services or facilities reasonably required of a residential care home. The evidence establishes that all three grounds are satisfied for both Mr and Mrs Riley.

It is common ground that at the time of the original registration certificate, it was considered that Mr and Mrs Riley JOINTLY were fit persons according to the criteria present at that time (i.e. pre 1984 Act). However, it has been conceded and admitted that they cannot jointly continue to operate Glen Cairn. Indeed they have not done so since 23rd.August 1988. At the time of the original registration it was known and anticipated by the Respondents that they would be, in effect, a husband and wife combination, he undertaking the practical side of things and she dealing with the care and management of the residents. From that time, and due to intervening events, the situation is different and the consequences are that neither is fit-In particular, considering Mrs Riley first, she now has nothing to do with Glen Cairn concerning the premises or the way in which the home is carried on. The part she has played and her general attitude demonstrate her unfitness. Like Mr Riley (post), she has failed to appreciate the effect that their deteriorating relationship played on the management and running of Glen Cairn. The mere fact of the separation and divorce are irrelevant, but what is very important is the effect that this had on the residents. It is quite clear from the evidence that there was an increasing lack of cooperation between them which inevitably led to a complete breakdown of management between the two proprietors. Neither had sufficient degree of responsibility to notify the local authority of the effect of the breakdown, and they both failed to override their personal differences so as properly to coordinate the running of the home. Mrs Riley did not even know his telephone number and had no means of communicating with him. On the night of 22nd/23rd.March 1988 she allowed her personal considerations to override the interests of handicapped and vulnerable residents, in that she disappeared, without notifying anyone where she was. Further, her action resulted in the three residents whom she had staying at her own house having to sleep that night at Glen Cairn. Her lack of foresight into the consequences of her actions and her lack of concern demonstrate her unfitness. She was in charge of record keeping until 1988, yet from the evidence she fell short of the standards required in this and in management skills. It was not a case where only on one day was there a breakdown. The letters indicate that over a long period of time there were deficiencies about which she did little. Shortcomings were pointed out to her yet there was little improvement. After the debacle in March and even by July (the summons was served at the end of June and at about this time the notice of intention to cancel had been sent) when she was in receipt of legal advice, she had still failed to put her house in order. Even now it is still not "up to scratch". Even making all due allowances for her marital difficulties and the sad illness of her son, both at the time of cancellation and at the present she was, and is, unfit.

As to Mr Riley's unfitness, he has no real skills, and betrays a woeful lack of understanding of the personal care and needs of residents. On his own admission he has "no skills whatsoever" concerning the mentally handicapped, however well meaning or well intentioned he is. He failed to appreciate the effect the increasing bitterness and strain of his relationship with his wife was having on the running of the home. He failed to take any or adequate steps to ensure the proper supervision of the home. He failed to heed or properly to act on complaints which had been made by the Respondents. As to "disaster day" - the 23rd.March, - was this in fact an isolated incident? Looking at the chronology of events this was not the case. The letters of complaint indicate an on-going situation, and even after 23rd, although there was some improvement, there was not enough. He has said that many of the functions, e.g. concerning the maintenance of records, were not his responsibility but were the responsibility of Mrs Riley. However, he failed to take steps to see that she was carrying out work for which he was jointly responsible. As to the area of his own acknowledged responsibility, the completion of the fire books do not indicate that he has learned a lot between 1984 - 1989. He failed to appreciate the needs and requirements of people who were in a vulnerable position. He failed to carry out his obligations. On the first unannounced visit by the Respondents' officers there was an inoperative fire alarm, he gave no warnings that he was leaving, told no one, gave no indication of how and where he could be contacted, and showed insufficient regard for the residents, even to give Mrs Riley his telephone number. He put his private interests above those of the residents. When he assumed sole responsibility he found no suitable replacement for his wife and elder daughter who had provided personal care for the residents, a matter of which he admitted he knew nothing. He said that he had nothing to do with the residents, yet the duty chart drawn up by his younger daughter indicated that he was on duty, in charge of the shift, on four nights of the week, being on call for the remaining three nights. From this and from Miss Higham's evidence it is not true that he had nothing to do with the running of Glen Cairn. The staffing levels were unsatisfactory, not as to number but as to quality. As to the excess numbers on two nights, it was never suggested that this was as a result of misinterpreting the promise to increase numbers. The conviction was not relied on since the approval of the resolution to cancel predated the conviction.

After having heard all the evidence and read all the documents submitted to us, and after having given the matter most careful and anxious thought, we rejected the arguments adduced on behalf of the Appellants and accepted the arguments adduced on behalf of the Respondents. We considered that both Appellants were unfit.

As to Mrs Riley, her experience was of a limited nature. We were satisfied on the balance of probabilities that her understanding of her responsibilities was severely lacking. She did not seem to appreciate the importance and purpose of records. As to the keeping of individual records, that is to say those dealing with medical and other treatment, inter alia, this was not done in respect of residents under her control. She seemed quite unaware of the importance to individual residents that these records should be most carefully completed in order to protect them and prevent abuse. She lacked the understanding of the seriousness of the situation. For example, concerning the "weaning off drugs",( which was to her credit,) she failed to record the consultation she says she had with Dr O'Reilly regarding a resident, she failed to record "the very high dose" which she says was prescribed, she says she" locked the medicine in a drawer" and "none was given out" but failed to record when the dosage ceased and how the stock was disposed of. It is her lack of understanding of the purpose of such records which Causes us concern. There was a different issue relating to the recording of drugs and medicines as a stock control. Again she seemed unaware of the importance of these records in order to prevent abuse. She had no understanding whatsoever that in any event drugs should only be available to senior members of staff. Junior members should not have been allowed access to them.

Another matter which we considered significant, was her attitude to the reaction of her staff concerning fire drills. "They treated it as fun. If there had been a fire they would have panicked," she said. A responsible person would have organised drills, or seen that fire drills were arranged. The attitude of the staff on that particular occasion should have alerted her and been a trigger for better and more responsible training..

Her irresponsibility was further illustrated, we felt, in her attitude concerning her failure to inform the Respondent authority of the breakdown in relationship between herself and her ex-husband. There is no obligation to disclose marital status. However, her marriage breakdown totally destroyed all meaningful communication between herself and Mr Riley. That breakdown in communication affected the residents in their joint care. Therefore we-feel that such a breakdown between partners of any kind, i.e. married persons or otherwise, should have been disclosed. It was significant, we felt, that when asked the question in cross-examination, "Why did you not inform Mr Peel? "(she has disclosed that the "situation was impossible"), she replied, "I didn't think it would do the business any good".

As to changing residents about (three ladies slept at her house and others at the house of her daughter - these were not necessarily the same ladies each night), this appears to have been for the convenience of the householders rather than part of a plan to equip the residents for normal daily living. Mrs Riley had no understanding of what an individual programme might be. She was also irresponsible when she went off, leaving juniors in charge of the home, having made no arrangements as to where her three ladies would sleep that night. Her attitude shown in the way in which she responded to criticisms about menu sheets (not to the menus themselves, to which the Tribunal attaches little importance), further underlines her lack of understanding of how people with mental handicaps should be cared for. She reiterated that "it was an ordinary home", but of course however homely such a place is, the presence of six vulnerable people with mental handicaps resident there imposed special responsibilities and obligations upon the person/s in charge. To that extent such a place could never be "an ordinary home".

As to Mr Riley, he just did not understand that he had a joint responsibility in the home, confining himself to practical aspects, such as building works and business matters. At the time the original registration certificate was given perhaps the concept was to match two sets of skills. But he accepted that he had no understanding of or experience in the care of people with a mental handicap. The home was not properly staffed the evening he left. It was irresponsible of him not to tell anyone where he was going or how he could be contacted. We were impressed with the very straightforward way in which he answered questions truthfully and openly acknowledged his shortcomings. We were impressed with his good intentions. However, these are not enough.