MRS V BEEJOOA First Appellant
MRS S MAMOUN Second Appellant
and
MANCHESTER CITY COUNCIL Respondent
Decision of the Tribunal sitting on 8, 9, 10 June 1992 at the Whitebrook Unit, Whitebrook Road, Fallowfield, on 13 July 1992 at the Council Chamber, The Town Hall, and on 9 November 1992, at Wythenshawe hall, Wythenshawe Park, Manchester.
Before: G F Harwood - Chairman
D Browne
F L Watts
Appeal against the decision of the Respondent to cancel the registration of the Appellants pursuant to section 10 (a) & (c)(i) of the Act in response of Parkfield Residential Care Home, 654 Wilmslow Road, Didsbury, Manchester, a registered home for elderly persons.
Representation
The First Appellant was not represented at the hearing.
For the Second Appellant: Mr David Heaton (of counsel) instructed by Messrs. Farrell & Hobbs (solicitors) of 718 Wilmslow Road, Didsbury, Manchester.
For the Respondent: Mr David Eccles (of counsel) instructed by the City Solicitor, Manchester City Council.
DECISION
The appeal of the First Appellant, having been withdrawn by notice in writing dated 15th May 1992, is deemed – by virtue of rule 12 of the Registered Homes Tribunal Rules 1984 - to have been dismissed.
By the unanimous decision of the Tribunal, the appeal of the Second Appellant is allowed and, in relation to her, the Tribunal directs that the decision of the Manchester City Council shall not have effect.
REASONS
By letter dated 7th May 1992, nine reasons were relied upon by the Respondent for the cancellation of the registration of both Appellants. By letter dated 18th May, solicitors for the Second Appellant filed her grounds of appeal, with full particularity. The case for the Respondent was opened by counsel on 8th June, followed during the course of three days by the evidence of eleven of thirteen witnesses for the Respondent. The hearing was then adjourned to 13th July. On that date bother counsel requested a further adjournment to enable Mrs Mamoun to continue running Parkfield with monitoring by regular and frequent visits of the inspectorate. The Tribunal acceded to this request and the hearing was again adjourned.
At the hearing on 9th November the Tribunal was furnished with documents upon the basis of which a submission was made, by counsel, that justified the abandonment of all further proceedings. Accordingly counsel for the Respondent refrained from calling the remaining two witnesses, and the Tribunal formally announced that the appeal of the Second Appellant would be allowed.
3.(a) The Tribunal need not mention the matters that were in dispute. However, one of the reasons for the decision to cancel registration was the undisputed failure of bother Appellants, for a period of some fifteen months from the 23rd January 1990, to conduct any fire drill at the Home – contrary to regulation 10(1)(i) of the Residential Care Homes Regulations 1984. They had both been served with a notice under regulation 20, dated 12th April 1991, specifying the matters prescribed by paragraphs (a) and (c) of sub-regulation (1), and default proceedings were subsequently instituted pursuant to sub-regulation (2). The notice appears to this Tribunal to be technically defective for omitting to comply with paragraph (b) of sub-regulation (1). Moreover, at the City of Manchester Magistrates Court sitting at Crown Square on the 15th November 1991 both Appellants were convicted on their please of guilt to an offence with response to which, on the evidence put before us, the charge was arguably bad for duplicity. Each of the Appellants was fined £500 and ordered to pay costs of £175.
It seemed to us that the conviction of Mrs Mamoun, if it stands, is likely to have an unfortunate and hitherto unrecognised effect upon the financial viability of the Home and therefore the future success of her running of it. This is because an amendment of section 26 of the National Assistance Act 1948 (by section ?2) in Part III of the National Health Services and Community Care Act 1990) will operate with effect from its commencement (probably the beginning of April 1993) so as to prevent the City Council, solely by reason of the conviction, from making referrals of publicly-funded elderly persons to accommodation at Parkfield whilst the Home continues to be run by Mrs Mamoun. The application of section 26(1)(D) of the National Assistant Act 1948, when in force, appears to preclude the exercise by a local authority of any discretion in such a case. By contrast, a registration authority and this Tribunal clearly does have a discretion when considering the cancellation of a person's registration pursuant to section 10(c)(i) of the Registered Homes Act 1984 on the ground of a conviction. At the conclusion of the hearing we understood from counsel for the Respondent that the conviction of Mrs Mamoun would not have been relied upon for that purpose in this appeal. We feel that it is also fair and proper for us to observe that Mrs Mamoun's conviction would not of itself, or in conjunction with the other grounds, have been a sufficient reason to persuade us to dismiss her appeal on the evidence as it stands.
G. F Harwood
D Brown
F L Watts