Stephen Lang v Avon County Council

The unanimous decision of the Tribunal is that the appeal be allowed in part and that the permitted number of residents be varied from 12 to 11.

REASONS

Background

Erminia Lodge was purchased in 1978. In consultation with the registration authority the premises were converted from a guest-house to a residential home for elderly persons comprising 6 single and 3 double bedrooms. Registration for an occupancy of 12 was granted in October 1981. The floor area of one of the single bedrooms (room 9) was 73.30 square feet. In mid-1985 the Appellant, of his own volition, converted one of the 3 double bedrooms to single with en suite bathroom, since when the home has accommodated, and been capable of accommodating, 11 residents only.

In about October 1985, guidelines were issued by the Respondent stipulating a minimum of 108 square feet for the area of a single bedroom and setting a limit on the provision of double bedrooms identical to the ratio referred to in paragraph 5.3 of Local Authority Building Note No.2.

In November 1986 it was pointed out to the Appellant by one of the registration officers, in effect, that applying the latest guidelines to this home no double room was permitted unless 8 single rooms were also provided and consideration should be given to the enlargement of room 9.

On 14 September 1987 the Social Services Committee determined (inter alia) "that existing homes for seven, eight and nine residents be permitted to contain one double bedroom and those for ten or more residents, two double bedrooms, where there is a proven demand". This decision was followed by a review, and report in January 1988, on the extent to which registered private and voluntary homes in Avon were complying with the 'spatial standards requirements' of October 1985 and September 1987.

There were then meetings between social services and representatives of private and voluntary home owners. The review, and no doubt the meetings, "revealed a good deal of uncertainty and lack of clarity about the requirements and the timescale for compliance", and brought about proposals for certain variations and amendments to the registration criteria. On 23 February 1988 the General Purposes Sub-Committee adopted a statement of intent which included the following:

"homes for 7 - 19 residents may be permitted one double room and homes for 20 residents and over, one double room for every 10 residents";

"the minimum size for single bedrooms is 100 sq ft and for double bedrooms 150 sq ft....", and approved the date of 1 January 1990 for compliance.

In May 1988, in a letter summarising a recent annual inspection, the inspecting officer (Mrs Maureen Hayter) wrote to the Appellant: "We discussed the fact a number of the bedrooms are below the spatial standards and conforming to the new standards would result in the closure of approximately 6 beds, leaving only 5 places. Subsequent to my visit to you I have been advised that proprietors who wish to appeal for special consideration from the Social Services Committee should in the first instance write to me stating intentions and grounds for appeal. If it is your intention to do this, would you write to me as soon as possible." The Appellant wrote on 1st June requesting special consideration.

On 28 October 1988 the Respondent's Social Services Policy Implementation (Casework) Sub-Committee considered a report and heard representations concerning Erminia Lodge. It gave favourable consideration in respect of 3 of the single bedrooms and resolved that a notice under section 12 be issued proposing the reduction from 12 to 9 now under appeal.

On 2 December 1988 the same sub-committee considered the same report, heard (no doubt similar) representations, decided that the proposal be confirmed, and resolved that a notice under section 14 of the decision be issued.

The Respondent's reasons for the decision were twofold: firstly that room 9 "is not fit to be used for the purposes of the Home", and secondly that "there should be only one double room to accord with the Authority's policy on registration criteria in accordance with the code of practice of residential care Home Life".

Erminia Lodge

We paid an unannounced visit to the home- accompanied by Mrs Hayter and the Appellant. Our general impressions of the home were entirely favourable. The interior was well decorated and furnished and appeared to be maintained to a high standard. The dining room tables were attractively laid for lunch. Even during our short visit it was apparent that residents are free to exercise choice as to how and where they spend their time. Many had items of their own furniture in the home and the bedrooms had a distinct air of individuality. Some of the residents were in the lounge, others in their bedrooms, and those that we saw gave every indication of being happy and well looked after. It also seemed evident that harmonious working relationships existed between the Appellant, his staff and Mrs Hayter. On the first floor we inspected the bedrooms paying particular attention to room 9. The view from the window is of the building next door and, taking into account the bed, a wardrobe and other furniture already installed, room 9 possesses no attributes except those one would expect of a very small bedroom. For a resident who might prefer to remain there in privacy during the day - perhaps to sit near the window and read or observe activity outside - it is an utterly impractical place. We emphatically agree with both parties to this appeal that room 9 must be enlarged. This room is occupied by a lady of 94 who took up residence at the home in about October 1983, and we accept the evidence of the Appellant that this room suits her very well and matches her preference for several reasons. We agree also that there can be no question of enlargement until the room becomes vacant in the course of time nor any question of the present occupant being obliged to move to other accommodation even temporarily whilst the necessary work is carried out.

Our Conclusions

Much evidence was aimed at establishing the soundness and the reasonableness of the Respondent's policy as regards the ratio of double to single rooms to be permitted in residential homes, but we do not consider it necessary or desirable to express an opinion on these matters. The thrust of the appeal really concerns the alleged unreasonableness of a strict application of that policy to this small, already established and well-run home in the private sector.

We uphold the principles stated in paragraphs 2.5.1 and 3.5 of Home Life. We stress, however, that if a registration authority formulates rigid guidelines, particularly concerning matters such as occupancy and space, it must nevertheless take account of the totality of each situation presented and be ready to apply them flexibly in an appropriate case. Such an approach was visualised in paragraph 9 of Local Authority Circular (86)6 by the statement: "Decisions on the size and occupancy of bedrooms will need to take account not only of the design and construction of the premises but also of the levels of dependency of prospective residents and their likely needs for privacy and care". We appreciate the conflicting considerations often faced by a registration authority; on the one hand it is expected positively and confidently to apply its policies without suspicion of weakness or favouritism but on the other hand it has to do so in a sensible way that takes account of the circumstances of each individual case, and therefore may appear to be discriminatory. The final decision must always be a matter of judgement and not, as it rather appears to have been in this case, one of purely arithmetical calculation.

We consider that the Respondent was too rigid in the application of its registration policy-in reaching its decision aimed simply at prohibiting the use as a double room of one (unspecified) of the two double rooms available. We attach great importance to the positive evidence of the inspection reports which indicate consistent satisfaction with the Appellant's running of the home. We note also that in many of the Respondent's own homes the ratio will not be achieved for a number of years because of financial and other constraints. We take into account that the Appellant has hitherto acted responsibly and done much to enhance the facilities available at Erminia Lodge. In all the circumstances we think it would be unfair to expect immediate compliance by him though we endorse his stated aim to convert one of those rooms to a single at some future time. We are of the opinion that this is not a matter of immediate or vital importance so long as he continues otherwise to maintain the existing high standards of the home. In any event we are satisfied that it would be quite wrong to confirm a decision the inevitable result of which is to require at once the removal of two of the residents from this small home. Despite argument by Mr Blohm to the contrary, we can see no way in which such a decision can properly be qualified by a Tribunal or be regarded as having anything but immediate effect.