Mohammud Saheed Bhatoo v Bradford Metropolitan Council

It is the unanimous decision of the Tribunal that the Appellant's appeal against the order made by a justice of the peace, pursuant to section 11, should be dismissed and that the said order be confirmed. It is also the unanimous decision of the Tribunal that the Appellant's appeal against the decision of the registration authority, pursuant to section 12, should be dismissed and that the said decision be confirmed.

Brief history of the dispute

The Appellant was registered in October 1988 for ten residents. In June 1990 Sister Dillon began to visit the Home. (By the summer of 1990 there were only four residents in the Home.) Later, certain concerns were noted, and as a consequence the Appellant and his manager, Mrs Smith, were invited to attend at Olicana House for an interview in September. In particular they discussed the fact that there were no sleepers, no seniors or references for such having been received, and the care of incontinent patients. On 5th November Albert J had a slight stroke and Sister Dillon began daily visits. On 9th November he had a fall, as a consequence of which he was admitted to hospital on 13th November after having had a visit by his doctor. There was another interview with the Appellant at Olicana House on 30th November. Various matters continued to be of concern to the Respondents, including sleeping in staff.

On 25th January 1991 a resident, Stanley R, was transferred from Sherrington (a nearby residential care home). On 26th January 1991 three further residents were admitted from Sherrington, and the following day, a Sunday, three more residents were admitted, staff were also transferred from Sherrington to the Home. On 28th January Jack G was transferred from Sherrington. (It is not entirely clear whether 7 or 8 residents were transferred - ?)

For some three weeks prior to these events the manager had been on holiday and on 29th January 1991 she returned. On 2nd February a complaint was received concerning Hilda L, who had been admitted to hospital on the same date. On 13th February a complaint was made to the Respondents after a visit to the Home by the District Nurse, following a comment that Jack G's condition had deteriorated. He was taken into hospital and the consultant geriatrician stated that he showed evidence of substantial care neglect, possibly over a period of several days. On 14th February the Home was closed following an inter partes application to a Magistrate. On the same day a notice of intention to cancel the registration under sections 10, 12 and 13 of the Act was served on both the Appellant and Mrs Smith, and a notice of the decision to adopt a proposal to deregister was served on 22nd March 1991. The Appellant appealed against both decisions. The section 12 notice was also served on Mrs Smith. She has not appealed on the grounds that she could not afford to do so.

The Appellant's case

The Appellant argued before the Magistrate that at that time there was no serious risk and that the Home should continue to run whilst the section 12 procedure progressed. He did not seek to blame Mrs Smith entirely, nor does he now. All the documentary evidence, statements of staff and so forth which were available just before the Tribunal hearing were not available then. It is argued today with the benefit of hindsight, without criticising the Respondents or the Magistrate, that a section 11 order need not have been made. There were alternatives. Respondents' or agency staff could have continued to run the Home under a new manager until the facts became clearer and a more considered judgement as to serious risk could be made. The Appellant can now say that, from all the evidence, it would have been possible for the Home to continue to run in the absence of Jack G and Mrs Smith without there being a serious risk to the residents remaining in the Home. It would be possible in this case for the section 11 appeal to fail but the section 12 appeal to succeed, the section 11 being based on the cancellation of Mrs Smith's registration, rather than that of the Appellant. The onus of proof in both cases is on the Respondents and they have to establish not that the Appellant is fit, but that he is unfit. Not only does the onus of proof lie of the Respondents, but the standard of proof must reflect the gravity of the issues involved. The civil standard is on the balance of probabilities but it is established law that the test must reflect the consequences which flow from the judicial decision which follows. The urgent closure of an old peoples' Home is a judicial decision of the utmost gravity, involving distress and trauma for the residents in particular, and also for staff and relatives. In this particular case the finding of unfitness will have the most sad consequences for the Appellant: he will face the probability of dismissal and of course deregistration of his Home in Leeds. This is a prospect, for a man who has devoted twenty-seven years to the caring of others, too horrific to consider.

Regulation 19 sets out minimum obligations of a proprietor. But there is no requirement that the manager needs to report in writing if the proprietor visits at least once a month. The Appellant visited more. The manager is required to be registered in his/her own right, and it is not essential law that the manager is directly responsible to the Respondents for the delivery of care. There is a direct supervisory relationship between the Respondents and the registered manager: it does not go through the proprietor. Decision No 81 is the closest case on this particular point.

The four major issues concerned three particular patients and the transfer of residents from Sherrington. These will be dealt with later. Additionally, there were a number of smaller issues, some of which included the following. As to Eliza, Mrs Knox, with no formal qualifications, condemned her, but she had certificates and assessments of her abilities. As to the difficulty of contacting the Appellant in emergencies, numerous witnesses have said that his home and work telephone numbers were on display and there is not one instance of any staff attempting to contact him and failing. As to allegedly inadequate starting levels, the only reason the Appellant was personally involved in the rota was to ensure staff levels were properly maintained. As to the allegedly poor menus or paucity of provisions, the people who work in the Home say otherwise. If the menu book is opened anywhere at random it is clear it was not a "mince-dominated menu", and there is no evidence that residents were kept hungry, or lacked cleaning materials. As to the allegedly limited crockery, cutlery and linen, the evidence is not clear on this. The people who worked at the Home had no complaints, and as to the kettle, Mrs Smith says she bought a new one. There was no evidence that the Appellant ever refused any request to purchase items.

The major issues concerned:

What is the Appellants culpability? The main point against him is that he was said to be on duty that Sunday, but there is very little clear evidence on that point. It is possible Mrs Hughes saw him on that Sunday but she does not say he was on duty, and her statement does not mention him. The worst evidence against him is the rota, which had disappeared and which the Appellant himself found and placed before the Tribunal. He was happy to present the document and he has challenged its accuracy. For example, it shows the Appellant on duty when he could not have been, as he was working late at the hospital. Mrs Knox finally agreed that rotas do not necessarily reflect what actually happened. And the Appellant himself in evidence stated that he went out to dinner at a restaurant with his wife. It is not proved that he was on duty that Sunday, he is beyond blame. If he was on duty, then he is as blameworthy as Albert J's own relatives (and these, apparently, were relatives of Mrs Smith). On the Sunday night the Smith family spent the night at the Home. The mother-in-law was on duty from 5.30 - 9.30, Mr Smith did the sleeping duty and it is more probable than not that Mrs Smith was there as well. Mrs Knox had said in her statement that she noted all staff were on duty that weekend. Between Albert J's fall and the GP's visit everyone, including the Appellant, was there. However, this incident was not seen by the Respondents as deserving anything more than a warning. It has not been the Respondents' case that every time a resident falls in a residential home, with no evidence of injury or pain, a doctor should be informed.

Perhaps the Appellant was a little frightened of the Respondents? He did his best. It was not his fault. The people working at the relevant time said it was not chaotic, that the residents did not appear to be distressed, although with such inevitable activity there was bound to be some temporary disorientation experienced. People coped, however, and took the influx in their stride. When Mrs Smith returned from holiday she lied when she suggested there was chaos; no one else says there was. (She also lied when she said that Hilda L had deteriorated whilst she was on holiday. In the same interview with the Respondents after the Home was closed she also said that she and her husband wanted to get sorted out and to buy a home of their own. This was not in her evidence at the hearing. When pressed, however, she could not bring herself to rule it out.)

It must also be stressed that staff from Sherrington, familiar with the residents transferred, and in particular Jack G, also transferred at the same time, ensuring continuity of care. Also, within the home a number of care assistants, in particular Mrs Pullan, Mrs Hughes and Mrs Rhodes, had had previous experience with simple kinds of residents. The influx of staff also enabled the Appellant to return to the role he sought.

(d)Jack G - Before the case began the Respondents must have tried to anticipate what the Appellant would say - that the standard of care at the Home was high? That there was no cause for concern? That Mrs Smith was to blame? In reality any such simplistic approach is inaccurate. With regard to Jack G, who else is there to blame? Perhaps the doctor who called in to see him the day before his admission to hospital on 13th February 1991? Mrs Pullan gave evidence as to the last time she helped him. Mrs Johnson (who was not called) was very critical of Mrs Smith, and this tallies exactly with what Mrs Pullan says. His decline was sudden and dramatic. The doctor was called and saw him on 12th February. The next day (13th) the District Nurse came to see him and he was taken into hospital. At no time did the Appellant have any involvement. Mrs Smith has to be blamed - and the Doctor. Perhaps, as Mrs Rhodes says, everyone concerned in his care shares the blame.

It is important to consider what the Appellant's belief and expectations were at the time, not with the wisdom of hindsight. He had become aware, not through instances of neglect but from what the staff were saying, that Mrs Smith was unsatisfactory. He did not suspect her of trying to "cover her own back". He knew she could not handle staff and would dwell on irrelevancies. He did not, and could not, know that she would sit down and let Hilda L and Jack G deteriorate. He may have been frightened and unsure. The Smith family spoke to him in an unusual way. Mrs Smith had her family at the Home, she had once threatened that all of them would walk out and that he could not allow. She was at the Home on the back of a reference from the Respondents, having been concerned in one of their Homes. To some extent it could be said that she worked with the Respondents in exploring the fitness of others for other homes.

The Appellant has said that Mrs Hutchinson and Mrs Smith were friends, and that the former had said of the latter that she was the "best manager in Bradford". Mrs Hutchinson has said as to the friendship that no reasonable person could possibly conclude this but others gave evidence that this was talk within the Home. Even it the Appellant cannot prove the relationship, it is proved that he reasonably believed that there was such a relationship between them. This he might have thought would affect the question of his sacking Mrs Smith, going to an Industrial Tribunal, she having the support of the Respondents, and so on. Perhaps this is how the Appellant saw it at the time?

This has been for the Appellant his "terrible time". He wonders why twenty seven years of caring for others counted for nothing when the Respondents decided which horse to back. If it was so obvious that Mrs Smith was unfit how was it she was a witness for the Respondents? The Appellant asks the Tribunal most carefully to read the references. Since the consequences for him are so serious, the Tribunal is urged most strongly to allow his appeal.

The Respondents' Case

As to the section 11 procedure, the hearing before the Magistrate was inter partes, ie. notice had been given to the Appellant and both sides had the opportunity to put their case. Amongst those present was Mr Brown, the Appellants' solicitor. As well as oral evidence, the Magistrate also had various relevant documents before him, including the report from Dr Young concerning Jack G, the medical report from Dr Findlay concerning Hilda L, notes of the interview with the Appellant on 30th November 1990, file notes written by Mrs Knox concerning various visits to the Home, a statement by Mrs Hutchinson in relation to Jack G, and a statement from the District Nurse. The Respondents outlined their concerns about the residents and the way in which the Home was run. Their contention was that the incident relating to Jack G was not a "one off", not a bolt from the blue, but was the culmination of a series of events. The Appellant's solicitor had made a submission to the court, in particular referring to the fact that he thought there was no serious risk left to the residents in the Home. This was denied by the Respondents. They felt that if the care practices persisted there would be such a risk, particularly in view of what had happened to Albert J, Jack G and Hilda L. In general they were also concerned because of the relationship between the manager/staff/the Appellant.

The section 11 decision should be upheld. On that day there was a serious risk to the life, health or welfare of those residents still within the Home. What had happened to Jack G, Hilda L and Albert J reflected what was going on in the Home, and this represented a grave risk to those remaining. Jack G cannot be regarded as a special case. He was a very singular case, he was violent and aggressive and he needed very special care. It may well have been that he was an exceptional resident but the two other cases showed that other residents, of different types and without his special problems, had also been at serious risk. The Act does not differentiate between what a manager does and what a proprietor does. It says that it the Home is being run so as to cause that serious risk to residents, then a Magistrate is entitled to make a closure order. On the particular day in question he had before him oral evidence and various documents about the three residents. The medical evidence concerning Hilda L does not indicate any serious state of neglect. However, evidence was adduced as to her serious decline, her state on admission to hospital and so forth. There was also evidence about Albert J. Whether or not the Appellant and Mrs Pullan checked him carefully, the fact remains that he had a fractured kneecap, an injury which requires particular force to cause, and which must have been very painful. That injury could not have happened over the weekend as suggested, but over the weekend - not all at once - physical signs, such as bruising and swelling, had begun to appear. The Appellant has said that the Respondents were very selective in what evidence was before the sub-committee meeting. If all the details have been submitted, for example those indicating that, having in fact a fractured kneecap, he had been moved around, perhaps even more concern might have been felt.

As to the section 12 decision, much of the same evidence as that relied on for the section 11 closure applies. There are five main areas of concern to the Respondents.

The Appellant has stated that Sherrington was experiencing serious financial problems and that he understood the Respondents would be closing it down shortly. He was asked by the proprietors to take in some of the residents, and finally agreed since he was selling his Home and it was better to sell it if it were full. The Home suddenly changed from having three residents to nine. At the time of the transfers the Appellant's manager was on holiday and a newly appointed deputy was in charge. Everyone was surprised by the move. The residents who had been transferred from Sherrington had been given no choice. There had been no introductory visits, no interviews. Jack G was taken because he was "part of a package from Sherrington", a phrase used by the Appellant to his solicitor at the hearing before the Magistrate. The Appellant said that the acting manager knew of the transfer, but Mrs Rhodes' evidence was that she did not know. She received little or no support from the Appellant. On Mrs Smith's return from holiday she was equally surprised, being greeted with "a sea of new faces", not knowing new residents or new staff. She had never met any of them before and the Appellant gave her no support or supervision - this to someone who had a poor record of staff management, a lady who at that time was not talking to the Appellant because he had fired her husband, and who, for the same reason, was refusing to complete records. The Appellant has said that it was all Sherrington's fault, that it all happened very suddenly. This is not good enough. The Appellant had been a regular visitor to Sherrington, his niece being the proprietor. He had been saying for some time that residents were going to be transferred but that is no excuse for the way in which they were transferred. He felt no concern for those residents. At the relevant time the Home had little equipment, not enough bed linen or food stuffs.

There was the recurring story of the dryer which did not work and the promises to buy a new one: similarly the washing machine. On one occasion washing had to be taken down to Sherrington for it to be done, the linen being dried over radiators at the Home. The residents were incontinent. There was a lack of crockery noted by Respondents' officers, a leaking kettle, not much spare linen. There were worn mats, and some of the decoration in rooms caused concern. The Respondents made allowances - the Appellant had bought from an owner who had been closed down and they thought that the Appellant and the manager should be given a chance to bring the Home up to standard. They never did. The Appellant was struggling because of financial problems but the Respondents did try to help and it is denied that they were unhelpful. They made allowances, but when things became worse they were obliged to invite the Appellant to a formal interview.

There were many practices which caused concern, in particular the habit of commoding residents in rooms of other residents. One lady, for example, had been commoded in Albert J's room. The District Nurse had expressed continuing concern as to incontinent residents being kept in two pads. Albert J's pressure sore kept breaking down and he was "always sopping wet". There was concern about Eliza, a senior, who did not know anything about procedures to deal with incontinent residents. Records were found on visits to be not up to date. (At the time of closure some records were lost, for example the day and night book concerning Albert J, which later turned up.) There were no fire drills. One resident was put to bed with a chair at the side of the bed. There was a patent lack of checking up on residents, in particular Hilda L, Albert J and Jack G. The day and night book, used by staff on duty, should have alerted staff that Albert J had had a stroke and would need careful checking. There was a pay phone and not everyone knew how to override it in the eventuality of their needing to contact the Appellant or other help.

However, the major area of concern was the type of resident in the Home, psycho-geriatric, - Jack, in particular - and there was no training for staff. Mrs Smith, who should, as manager, have arranged this, failed to do so. The Appellant, on the rota, called in at other times and being an integral part of the Home, should have known that the staff were not trained to cope with those residents.

In the relevant period there were some 22 different staff, a considerable turnover. The worries consequent on this concerned lack of continuity, the type of staff employed and gaps in the staffing profile. The Appellant answers this by saying that this turnover was due to Mrs Smith's character. He should have known it there was a problem and he should have known it there were any contributory factors, such as rates of pay. It was said that posts were advertised, people did not turn up for interviews, and posts were not filled. The Respondents had been concerned for a long time about the lack of someone sleeping in. The Appellant says that with only three residents this was not necessary, but that is not the point. The Home was registered for ten and the residents gradually went down to three, all of whom needed care slightly above the norm. Albert J had had a stroke, he was a heavy man and could not walk, Hilda L had difficulties in walking and they were incontinent. It was not the number of residents but the type and care they required. Someone sleeping in was needed all the time. The Appellant did not have a close relationship with the staff, he was hard to get hold of and he did not stop and talk. He had a full-time job at Westwood Hospital and was proprietor of another Home in Leeds.

He claims that all the responsibility falls on Mrs Smith. This cannot be the case since he is an integral part of the Home, he was on the staffing rota of a Home which was short staffed. He was rung up by staff and told about problems. He was told of the Respondents' concerns and attended interviews in September and November. He was given advice - about not admitting Jack G, that he was not appropriate for the Home. But still things were allowed to happen. After the Interview with the Respondents the Appellant had said he was quite satisfied with Mrs Smith as manager. The Respondents concern about her working with the Appellant was that Mrs Smith had said she could work with him provided she could talk to him. However, she could not, and never did.

The Respondents were also very concerned about the relationships between the Appellant and his registered manager, between whom there was clear contact, and between the proprietor, manager and staff. No one would argue that Mrs Smith was not a fit person, but Reg 9 clearly specifies that it is for the person registered to arrange for the good management of the Home. The manager appointed by the Appellant was responsible for ensuring the good management of the Home, and she was directly responsible to the Appellant who was equally responsible. He has to ensure that she is carrying out her duties, and a good responsible proprietor will ensure that the Home is run properly in a variety of ways; he will obtain satisfactory and full reports from his manager, inspect the Home and, in the Appellant's case, observe the way the Home is running both when undertaking staff duties, during the time he brought in the shopping, during the time he spoke with the residents and in conversations with the staff. The Act provides no defence to a registered proprietor of denying he knew what was going on. Neither is it a defence to say that one is frightened of one's manager.

The Appellant's believe that Mrs Smith and Mrs Hutchinson were friends is not a valid reason for not doing anything to improve conditions in the Home. As to this alleged friendship, it was said that the belief was formed after the Appellant heard gossip in the Home. But he did not check this with anyone, he did not test it in any way. He did not give a warning to Mrs Smith. He said he was in the process of doing something but that no one would help him by putting complaints in writing. The Respondents contention is that it he had put in any effort at all he would have been able to gather evidence against Mrs Smith. He said he could not get rid of her as she had threatened to take her family with her. At another point he said he could find no replacement and that he was on a course. If the Appellant is saying now he could have put in agency staff, why did he not do it at the relevant time? The reason was that he could not afford it, and the whole tenor of his evidence was how hard it was to make both ends meet. There were improper care practices going on at the Home and the Appellant, as proprietor, should have known about them. The District Nurse and others had voiced concerns about incontinent residents, washing being dried on the radiators, and so on. The Respondents case was that the Appellant himself contributed to/condoned the improper practices.

(a   )Albert J

The Appellant was on duty when he fell; it was noted in the book. The Appellant says that Albert J appeared fine and no medical assistance was sought. But this was only a week after Albert J had had a stroke and the day and night book had indicated that he could be very shaky. With such a resident, the degree of concern should have been greater; he should have been checked and monitored carefully after any fall. The Appellant was also on the rota after the fall. The fall was on Friday 9th and the Appellant was on duty on the Saturday and Sunday, between 1730 and 2130. This has been denied but the Respondents believe that he was, especially on the Sunday. They found it very surprising that the Appellant did not take great pains to point out to them at a very early stage that he was not on duty that weekend. Certainly in the interview it had been put to him that all staff were on duty over that weekend and the Appellant was regarded as a member of staff when he did duties - he so regarded himself, he has told us. He did not hasten to explain or submit that he was not on duty after Albert fell and he did not seek to clarify it. Such an important issue would have been expected to be a clarion call throughout. But it is not in his statement to the Tribunal. He said he was on duty at Westwood Hospital and the rota shows he worked the early shift. He says he worked extra hours but there is no record of that. He claims he went out to a meal on the Sunday night at the Kashmir Restaurant and invites us to ask them, as they will prove this, knowing that this is impossible. He relies on the rota he produced, showing that Mrs Smith was on duty. It was pointed out that it shows him on duty too, and his response is that the rota is wrong. Mrs Smith was on sleeping duty. Sister Dillon was particularly concerned about the fall. But whether he was there or not does not really matter. If he was there his culpability is greater. It he was not there this does not affect the grounds of the section 11 closure or the section 12 proceedings.

Mrs Hutchinson had advised the Appellant not to admit him as he was unsuitable for the Home. The Appellant had said that he was an experienced nurse and could nurse him. He gave the impression that he would have a large input Into Jack's care, that he would be nursed in a single room under his supervision. But he made no such input. Jack G was left to the staff. Those from Sherrington, for example Mrs Dodd, knew him. However, no staff at the Home knew him, there had been no introductory visit, nothing had been explained to them about him and they were frightened of him. They had been told that Jack "thumped and kicked", that he might try to throw himself out of windows, that he urinated in drawers, turned drawers out, moved furniture - that he was generally a very difficult man to handle. The fact that the staff were frightened might possibly explain why he was left for long periods unattended. If his arrival from Sherrington was a surprise, the Appellant should have checked and helped staff. Mrs Smith knew nothing of Jack or his arrival. The Appellant has said that he was not worried since the Sherrington staff, who knew him, were experienced in handling him. However, it was staff from Sherrington who locked him in his bedroom. If the Appellant knew that Jack was coming, then he should have used his nursing skills and helped the staff to cope with him.

As to Jack's condition when he was taken into hospital as an emergency, by ambulance, it was very serious. The consultant geriatrician speaks of substantial care neglect. His condition was obvious the moment the nurses opened the door of his room. There was no excuse for the state that poor man had reached. All the Appellant's staff including Mrs Smith, failed to take care of him, and shared the blame for the state he was in. The Respondents do not say that the Appellant was on duty during this period: he was not. However, he did not act as a good proprietor knowing the circumstances of the move. The Appellant's main concern seemed to be paring expenses down to the bone, saving money. with only three residents in the Home of course it was hard. However, with economies and no support given to the manager, the residents suffered, and the Respondents' contention is that the Appellant is not a fit person to run a Home.

The statements say she was discovered slumped over her meal. This is a bit of a puzzle since she seemed to be progressing well, particularly when she was looked after by Mrs Rhodes. She then deteriorated very rapidly. It was alleged at the Magistrate's application that she had been neglected. Dr Findlay said that no pressure sores were found but evidence came from a staff Nurse at the Bradford Royal Infirmary that, on admission, her finder and toenails were long and dirty and her feet were very dirty. She had been accompanied by a young girl who knew nothing about her and there was no one at the Home who could give the nurse further information. The evidence suggested that she had been kept in bed for two days before the doctor was called.

The Tribunal's Reasons for its Decision

I.   Serious risk - section 11 proceedings.

After much careful and anxious thought the Tribunal unanimously decided that there was a serious risk to the life, health or well-being of the residents in the Home on the day on which the order was made by the Magistrate. In reaching this decision the Tribunal found that over a period of time various concerns had been felt about the Home, concerns which had been brought to the attention of the Appellant. It found that these concerns had considerably increased by the New Year and were sufficient to lead the Respondents to believe that the Home was not being conducted in the way required to ensure proper care and treatment of residents. On February 13th Jack G was discovered by the District Nurse to be in such an appalling condition that she considered his admission into hospital urgent. The Tribunal noted that on Jack G's admission the consultant geriatrician found he had suffered from gross neglect. This most serious development, coupled with evidence of bad practices, negligence concerning one, and possibly two, other residents and evidence of bad management noted in the past, gave the Respondents real fears for the life, health and safety of the residents of the Home, a fear which the Tribunal found in all the circumstances to be reasonable and justified. Further, the Tribunal found that there was also clear evidence at this time of a poor relationship existing between the Appellant and Mrs Smith. Such a breakdown of cooperation between the two key figures in the Home, between them responsible for the care and well being of very vulnerable people, gave the Respondents real fears for the remaining residents at the Home, actual or potential, justifying the application for closure. The Tribunal is satisfied and ends that there was serious risk and that the emergency closure was justified.

II.   That the Appellant is not a fit person - section 12 proceedings.

After careful and anxious consideration of the evidence the Tribunal is satisfied and unanimously finds that the Appellant, both by his acts and omissions to carry out his responsibilities towards the vulnerable residents, is not a fit person to be concerned in carrying on a residential care Home. It finds that much of the evidence as to his dealings with the Home indicate a lack of clear directions control and (indirect) management that is reasonable to expect of any proprietor and in particular one who worked in the Home from time to time. It finds that he failed to ensure the well being of residents as would be expected in a properly run Home. It ends that despite having issues brought to his attention by the Respondents from time to time he failed repeatedly to address these issues, let alone resolve them.

The Tribunal is satisfied and finds he knowingly allowed an unfit person to "manage" the Home, having acknowledged his concerns about her. It finds he took no significant or effective action following complaints, and failed to provide the close supervision and/or support necessary to ensure that such an inadequate manager could properly perform her duties. It finds, for example, he allowed inaccurate start rotas to remain unchallenged. It finds he accepted the unfit manager's refusal (shortly before the closure of the Home) to write the necessary reports on the Home and the lack of care programmes for ill and incontinent residents.

It finds no evidence that a friendship existed between Mrs Smith and Mrs Hutchinson and accepts Mrs Hutchinson's evidence unreservedly on this matter. It has difficulty in accepting the Appellant's contention that he believed that such a friendship existed. The evidence as to gossip in the Home is unconvincing.

It finds the Appellant, with little thought to the residents, participated in a most unsatisfactory wholesale transfer of a group of them from a neighbouring home to his own Home and was careless or negligent in seeing that arrangements for their well being were made and maintained. It finds that residents and staff were totally unprepared for this transfer and that there was confusion amongst staff and disorientation experienced by the residents as a consequence. It finds that he was careless or negligent in failing to appreciate the social care problems involved, and the lack of choice and dignity experienced by the person concerned, in moving a long-stay female resident out of her room into a single room and then back again to a double room. It finds that his joint job of proprietor and sometime stay member should/must have given him ample insight into the real needs of residents. It ends it should/must also have given him knowledge of staff relationships and performance problems, particularly in view of his admitted knowledge of the manager's deficiencies. Any proprietor has a duty to be aware of what is going on in a home. The Tribunal ends that, possibly because of his full-time job at the hospital, involving inter alia, extra work and attendance at courses, his responsibilities concerning his other Home in Leeds, coupled with his shopping for both Homes, his family responsibilities and suchlike, he was unable to devote sufficient time to this, notwithstanding his periods on the rota. It also finds that many, if not all, of the problems arose as a consequence of the Appellant's financial problems. In reaching this decision the Tribunal preferred and accepted the evidence adduced by the Respondents to that adduced by the Appellant. It is not necessary to go through the witnesses one by one. However, Mrs Smith's and the Appellant's evidence deserve a brief comment.

The Tribunal has no hesitation in finding that Mrs Smith was unfit. It is unnecessary to go further into this question since Mrs Smith withdrew her appeal, apparently on the grounds of inability to afford such a step, and thus the decision of the Respondents that she was not fit is confirmed. She was an important witness for the Respondents, providing both a detailed statement and giving oral evidence at the hearing. However, the Tribunal received her evidence with caution, since it was part of the Appellant's case that, by giving what purported to be her version of the events, she was "covering her back" and the Tribunal could see the force of this suggestion. Nevertheless, there was a ring of truth to some of the evidence she gave, for example, she freely admitted that her husband was sacked for using foul language in front of residents, and she admitted that when she entered Jack G's room shortly before he was found by the District Nurse, the smell was foul, but she did absolutely nothing to check him and see that he was alright. "I didn't think I could cope with him on my own. I didn't feel safe standing him up on my own." Some of her evidence, on the other hand, was difficult or even impossible to accept and was rejected by the Tribunal, in particular concerning Albert, and her knowledge of his fall. From the evidence it heard, both from Mrs Smith and others, the Tribunal is convinced that the finding of her unfitness as a manager was right and proper. However, looking at her as a witness rather than as a party (which of course she was not) the quality of her evidence, and the circumstances in which it was given, cause the Tribunal to attach very little weight to it and it has relied for its findings on evidence from others, and from the Appellant himself.

There were occasions when the Tribunal was unconvinced of the truth of the Appellant's evidence. For example, the Tribunal believed Stanley R's evidence about having been taken for a drink by the Appellant and promised an increase in his pocket money if he would transfer from Sherrington to the Home, rather than the Appellant's account. The Tribunal also did not believe him when he said that Mr Goomany had asked him to take Jack G for a fortnight's holiday to the Home. "I made it very clear it was only for a 2-week holiday." Mrs Hutchinson made no mention of a holiday, and we prefer her evidence in this respect to his. On the balance of probabilities the Tribunal finds that he was on duty during the weekend following Albert J's fall, in particular on the Sunday night. It rejects the evidence of the Appellant that he was at a restaurant with his wife. (Whether or not he was on duty, however, there can be no doubt, and the Tribunal so finds, that he was in the Home for significant periods over the weekend.) Another example of where the Tribunal found it difficult to accept his evidence include his statement that Mrs Hutchinson said that Mrs Smith was "the best manager in Bradford". They preferred Mrs Hutchinson's evidence in this respect.

The Appellant submitted a large and impressive bundle of references and recommendations from people who knew him and/or had worked with him. The Tribunal read these very diligently, and accepted that he had worked well over many years in a caring capacity. However, such was the evidence, that the Tribunal ends it has no alternative but to dismiss both appeals.

Margaret Rutherford
David Browne
Frank Watts