Mr and Mrs L Clubbe v West Glamorgan County Council

The Tribunal unanimously allows the appeal and directs that the Respondent's decision to cancel the registration of the Appellations in respect of Bryn Morgan Villa and Bryn Morgan House shall not have effect.

REASONS

Background and Issues

In 1985 Mr and Mrs Clubbe decided to take persons with learning difficulties into their home, Bryn Morgan Villa, under the West Glamorgan Family Placement Scheme. Soon thereafter they started proceedings for the registration of Bryn Morgan Villa as a registered care home for six persons with learning difficulties.

This registration was granted in 1987 at first for 6 and then for 7 residents. In 1988 the Clubbe's were granted registration in addition in respect of Bryn Morgan House for 6 psychiatrically disabled persons. Mrs Clubbe, a State Enrolled Nurse, is the officer-in-charge at Bryn Morgan House, and her daughter, Cynthia, is the officer-in-charge at Bryn Morgan Villa. Mr Clubbe is also a member of staff at Bryn Morgan Villa and Mrs Clubbe's mother helps there with the cooking.

The issues before us fell within a very narrow compass, and all turned on the fitness of the Clubbe's as home owners -

Apart from these allegation there was no criticism put before us of either of the two homes or of the care of the residents in them. Indeed evidence from some of the Respondent's witnesses and from independent persons was very favourable to the Appellants both as regards the amenities in the homes and as regards the care shown to what was in many cases a very difficult client group.

Failure of staff to be in attendance

The main incident relating to the apparent absence of staff was on 1 November 1991: indeed this was the only incident detailed on the Respondent's Statement of Reasons for cancellation or brought before the relevant Committee.

On that day Mr E and Mr C attended the Neath Abbey day centre from where they usually returned between about 4.45pm and 5.00pm, Miss F attended a centre in Swansea and Miss A the day centre at Port-ar-dawe from where she was usually returned about 4.30, but sometimes a little earlier. That afternoon Mrs Clubbe and Cynthia were in Swansea with Mr B and Mr D doing last minute shopping for their departure with most of the residents for Malta the next day. Mr Clubbe was on the property, though not in the building as he was repairing first a fence on the boundary and then mending a goat shed some 20 yards or so from the house.

The practice was to leave the front door locked and the side door unlocked so that residents returning could let themselves in as they arrived back. Mr Clubbe did not see Mr E and Mr C return but on going back to the house during the afternoon he saw that they had come back and had gone into the sitting room. He went back to the goat shed, returning to the house a little later when he heard the telephone ringing. He was not in time to answer it, but on this occasion he saw that Miss A had also returned. He went back again to the shed coming back to the house to find his wife had returned. A Mr B had arrived at about this time to collect his daughter as he did every Friday. This made Mr Clubbe think that it must have been about 6.30pm. Miss B had also returned from her day centre and must have let herself in. Mr Clubbe said that on one other occasion during the afternoon he had heard the telephone ringing but thinking that he would not reach it in time he made no effort to answer it. The telephone is in the kitchen and the internal door to the kitchen is kept locked.

The evidence for the Respondent of the events of this afternoon comes from Mr West and Ms Firth. Mr West said he brought Miss A from the day centre at about 4.30. The house appeared to be in darkness and Miss A was unable to get in by either door. He, therefore, took her with him to drop two other passengers from the day centre and returned about 5.10 to find Mr E by the side door having a cigarette. Mr West saw Miss A in and turned on the lights, but found no member of staff in the house. He waited until 5.30, returned to the day centre and telephoned Ms Firth from there about 6.00pm at her home.

Ms Firth said she rang Bryn Morgan Villa six or seven times between 6.00 and 6.30 but got no reply. At about 7.00 she went to the home where the door was opened by Miss B who told her that Mrs Clubbe was out shopping and would be in later, but declined, because of standing instructions to let her in. On return home Ms Firth rang another two or three times and finally heard Mrs Clubbe reply at about 7.35.

The obvious conflict between these two versions relates to the times. The Clubbes all said they were in the house by about 6.30 and gave a reason for this connected with Mr B's calling. There are probabilities in favour of each version and we found it impossible to say that either the Clubbes or Ms Firth had been deliberately untruthful: we cannot find against the Clubbes on a balance of probabilities. But even on Mr Clubbe's version we feel that the returning residents should not have been left on a wet November later afternoon to find their own ways into an unstaffed home and to look after themselves for some two hours without access to food or drink. Mr Clubbe should have been giving the proper attention and not devoting himself to work outside.

We do not think, however, that this failure is a sufficient indication that the Clubbes are not fit persons to be concerned in the running of a home. The residents concerned were used to arriving home and seeing to themselves: it was part of the system to make them as self-reliant as possible, and there was no evidence to show that they came to any harm, but they should have been under some care and supervision. Even if we had found, which we could not do, that they had been on their own until 7.35 we do not think that single incident of itself would be sufficient to show that the Clubbes were not fit persons.

There was evidence that on two occasions early in 1991 the home was not staffed for the arrival back of residents from the day centre. On these occasions, however, staff arrived within a short time and residents were not left to find their own way in. These incidents have little importance save, to show that the Clubbes knew there should always be staff in attendance.

Lack of self-control

There was general evidence from some of the Respondent's witnesses about Mrs Clubbe's volatility, loss of temper with officials, and critical and abusive language towards them. This was not relied on in the Statement of Reason nor before as a ground for cancellation, though it may well have underlain the officials' attitude to Mrs Clubbe.

The incident specifically relied on was that of 27 November 1991, the background to this was that Mr Thomas, a senior official, had taken Mrs Clubbe to task on 21 November over the events of 1 November. Mrs and Miss Clubbe were annoyed at what they regarded as an unjustified accusation based upon the report of the driver of the transport on 1 November, and his entry into the home.

They went out on 22 November to confront the driver of the bus that arrived that morning but found that it was not the man who had returned Miss A on 1 November. Both Mrs and Miss Clubbe became angry at what they regarded as his unco-operative attitude and we accept that they shouted at and abused Mr Gregory, the driver, and his companion. Miss A was in the bus at the time as were two other persons unconnected with Bryn Morgan Villa also going to the day centre.

The shouting upset these two persons, but only the woman showed it. She stood up, shouting out, though she had no coherent speech and waving her arms about in an agitated way. It was said that Miss Clubbe imitated her and that as the bus moved off Mrs Clubbe shouted "look at them, they are like animals, animals".

In view of what we have heard of the way that for many years the Clubbes have cared for their residents we find it difficult to believe that they would have vented their anger on any of the passenger in the bus. Miss Clubbe may have become excited and waved her arms about but we do not think that she was mocking the passenger in the bus, nor do we thank that, ever assuming Mrs Clubbe uttered the words alleged, they were directed at the passengers in the bus.

There is no evidence to show that the Clubbes ever treated their resident in anything but a caring and considerate way and we feel that their behaviour that morning must have been misinterpreted by Mr Gregory and his assistant.

Injury to Miss A

Miss A was a highly disturbed person who came to Bryn Morgan Villa because her mother and another home had been unable to manager her. At Bryn Morgan Villa she settled down and gradually she improved. She did have tantrums on occasions and she formed something of a fixation for Miss Clubbe.

We were told that in the past she had been known to make fake allegations about both residents and staff in a previous home, and even to scratch herself to show what she had to complain of, though usually she did persist in them.

On 24 January 1992 she was seen at the day centre to have two scratches and an abrasion on the front of her neck. When asked by Mr West how she had come by these marks, she said that Mrs Clubbe had pulled her hair so hard that she had nearly fainted. When asked again she said that Mrs Clubbe was much stronger than Cynthia and went on to say that Mrs Clubbe had pulled her down by her hair and then held her round the neck.

She was then seen by Ms Firth and said much the same thing, adding that Miss Clubbe had held her hair while Mrs Clubbe held her throat, and that this had happened on Wednesday (22 January). She seemed upset and confused, saying "it has been going on for at least two week or so now", adding when asked that she had been having "an emotional disturbance" which might have lead to it.

She told WPC O'Connor later that day that she had been attached by Mrs and Miss Clubbe, and when seen by a doctor that evening she said that she had been punched on the head and neck and that her hair had been pulled. The doctor identified only a scratch and two mild abrasions on the neck.

Mrs and Miss Clubbe denied any assault on Miss A. Miss Clubbe said that on 22 January Miss A had had a tantrum and had overturned a coffee table and that earlier that day she had reprimanded her for coming into the bedroom of a man she was shaving.

The conflict here is between the denial on oath by Mrs and Miss Clubbe that has been tested in cross-examination and the reports made by Miss A to other persons. The latter are strictly not admissible but we have a discretion to receive such evidence and to give it the weight we consider appropriate. There is the fact in favour of the veracity of Miss A's reports that she has persisted in blaming the Clubbes although she knew that such persistence would prevent her returning to Bryn Morgan Villa where she had been happy.

On the other hand the differences between her accounts to different people give rise to some doubts. This was not a case of immediate complaint made by a person assaulted. It was only when asked about her scratches that Miss A gave any details, and the story on continuing assaults and of being dragged to the floor by her hair do not ring true, particularly as there were no other injuries displayed or found. The fact that Miss A told the doctor she had been punched is a further factor which raises doubts as to her credibility.

We cannot accept that the injuries to Miss A were caused by the Clubbes, nor can we say that their presence necessarily reflects any failure on their part to take proper care of her.

Conclusion

We are quite satisfied that there is nothing in the incidents relied upon by the Respondent, whether taken individually or cumulatively to show that the Clubbes are not fits persons. It is our unanimous opinion that the appeal must be allowed and we direct that the Respondent's decision to cancel the registration shall not have effect.

We hope, however, that the relationship between the Clubbes and particularly between Mrs Clubbe and the Respondent's officers will not be affected in the future by the Clubbe's volatility and her tenancy to criticise the actions of those involved in dealing with the home and its residents.

J C R Fieldsend
M G Joynson
J I Stephens