Arthur and Brenda Hancox v City of Liverpool Council

The Tribunal unanimously allows the appeal and directs that the decision of the Respondent shall not have effect.

Submissions

In brief and general terms, the reason why the Tribunal was asked not to investigate the matter was as follows. Because the consensual procedure was used concerning conditions, the Committee did not adjudicate on the merits of the application. They simply approved the agreement which they believed existed between the Appellants and the Respondent. Apparently the question of agreement is in doubt. A decision made on the assumption that an agreement had been reached is no decision at all. Thus the status of the decision, and the proper approach to it is in doubt, as is the role of the Tribunal, that is to say, whether an appeal from an uninvestigated decision is the correct avenue of approach? The Respondent has suggested from an early stage, and still maintains, that the proper course of action is for the matter to revert to the Committee who can then take a decision on the merits. It is therefore wrong for the Respondent to seek to justify the decision, to open the case and call evidence. It is a peculiar situation since it is unusual, if not unique, for a Tribunal to be asked to investigate and lay down an approach to policy. Here there is a broad issue, that is to say, what an authority's approach ought to be regarding numbers and multi-occupancy of bedrooms. Further, there is the matter of Counsellor Hancox's statement (she is no relation to the Appellants), which does not coincide with the grounds of appeal and which in effect says that the decision made by her Committee is not a decision of its constitutionally elected members. This goes to the very root of the matter and is not evidence which should be heard. If the decision did not truly reflect the views of the Committee it should be attacked by the correct procedure. The whole matter should go back before the Committee, and the Tribunal should not be concerned with the agreement. The Appellants would suffer no prejudice by the further delay.

Counsel for the Appellants argued that ground 3 of the appeal, relying on McSweeney, is ultra vires. As to the procedural points in paragraph one of the appeal, the Appellants do not concede that an agreement was made, neither do they contest it. They are content for the matter to proceed. It is normal for the Minutes to be a conclusive record of what took place. The decision was made on 3 occasions – by the preliminary Sub-Committee, in notes which were later adopted by the Social Services Committee and later adopted by the City Council. Notwithstanding there might be a mistake or misunderstanding which led to it, it is now a decision of the registration authority. It follows, as night follows day, that section 15 is brought into force since this appeal is against that decision. The issues simply seek the answer to the question: whether the home is suitable for 10 or 12 residents? The policy indicates that 10 could be admitted without more. However, if two of the rooms were shared a special application would have to be made on each occasion. It is idle to spend time deciding what the members of the Committee believed.

The Appellants have a home fit for 12 residents. They have 10. The delay has cost them money, and further delay will cause further loss. The appeal should be heard.

The Tribunal, after considering both the law and the interests of justice, made the following ruling. It is satisfied on the balance of probabilities that a decision was made, on whatever basis, by the Sub-Committee on or about 22nd December 1988, which was confirmed by the Social Services Committee on or about 9th January 1989 and by the City Council on or about 25th January 1989. Therefore it is satisfied, and so finds, that there is a decision within the provisions of section 15(1)(a) against which the Appellants can appeal.

The Tribunal said that it was usual for the Respondent to open. However, since the Appellants were content to open, they would both open and close.

Brief History of the Dispute

In April 1987 an application was made by the Appellants to Liverpool City Council for planning permission to convert their home into a residential care home for nine residents. They learned that two lounges would be required for eight residents. They decided to build an extension in order that twelve residents in total could be accommodated, including two lounges. After the building there were ten bedrooms, eight being single and two double. The local authority was in touch throughout the building period. No objections were raised.

In September 1988 an application was made for registration for twelve elderly residents. Visits had been made by the Fire Officer, Environmental Health Officer and Building Surveyors. The Registration Officer also visited. The home was ready to receive twelve residents. No mention of any reduction in numbers was made. A further visit took place by the Registration Officer, this time accompanied by two other officers. Again there was no mention of reduction in numbers.

A meeting of the Residential and Community Services Sub-Committee took place in December 1988. It was recommended that the home be registered for twelve persons. Later, at a further meeting, there was an oral report that the Appellants had confirmed their agreement to a variation to ten persons. The Registration Officer afterwards informed the Appellants that the number of residents had been reduced to ten. He suggested that when the Certificate was issued it would be for 10/12 residents, i.e. a limit of 10, but that this could be increased to 12 with permission of the Registration Officer for the two shared rooms.

The Registration Certificate, dated 7th February 1989, showed that there was a limit of only ten residents. The Appellants say that they never ever agreed to reduce the numbers to ten. The Respondent says that the Sub-Committee was informed by the Respondent that the Appellants had agreed to the variation of their application. Thereafter there was a prolonged exchange of correspondence. The Appellants insisted that they should have been given notice of the intention to insert conditions, that they were deprived of their opportunity of making representations. The Respondent insisted that the correct procedure should be to resubmit the application to the Sub-Committee for determination.

It has never been disputed by the Respondent that the Registration Officer had no qualms about the suitability of the home (e.g. as to the size of the double rooms, staffing and suchlike) to accommodate 12 persons. It is accepted that the home could accommodate 12.

The Respondent says that multiple occupancy is unusual, rather than usual, and that permission should be sought for approval to put residents in double, rather than single rooms. The Appellants say that they have reasonable accommodation for 12 residents.

The Substance of the Respondent's Case

The essential question was whether some monitoring procedure should exist as regards extending numbers, e.g. from 10 to 12, and if so how it should operate. This question divided into three:

The answer to the first question is that a condition relating to numbers can be imposed by virtue of section 5(3). A "double number", i.e.10/12, is a lawful approach to the exercise of powers given by the Act. As to the second question, the answer is an unhesitating yes. It is desirable. All the evidence (commentary on the Act, reports and suchlike), supports the philosophy that the focus of concern must be the residents, that they are well accommodated and given the dignity of privacy. It is acknowledged that the legacy of multi-occupancy is subject to criticism. Now it is felt that if at all possible persons should have individual accommodation. The process of eliminating multi-occupancy should be maintained, fortified and developed. As to shared rooms, these must continue to exist since it may be the wish of the resident to share, for example, in the case of husbands and wives. However, it is sometimes possible that, by accident or intention, their choice may be influenced. Those that provide accommodation may have different considerations and incentives. There are recurrent problems with shared accommodation, e.g. what happens if a couple who agreed to share later 'fall out'? The Respondent's case is that problems should not be dealt with when they arise, but be prevented in the first place, i.e. when an application is made for shared accommodation a procedure should be set in train to deal with and obviate the worst kind of problems. An informed decision should be made with access to independent advice. This would be a very valuable facility, in harmony with the Act, improving standards.

As to the third question, the process would not be cumbrous or bureaucratic. Most of the factual situations will decide themselves (e.g. married applicants will apply to share a double room). It will only be particular cases where specialised help, as is envisaged, would be required. Far from being unlawful, undesirable or impracticable the Respondent's approach has much to commend it, and is correct and desirable. The system by which numbers are increased by the use of double rooms only by prior consent of the committee, each and every time an application to share is received, protects and advances the interests of both residents and home owners.

The Substance of the Appellants' Case

As to conditions 1 and 2 on the Registration Certificate, which the Respondent accepts are not within section 5(3), these must go. As to the Tribunal being able to impose some structure relating to the machinery to "vet" double room applications, this is outside section 15(6)(c).

As to the three critical questions – is such a system of pre-approval lawful, desirable or practical – the answer to all must be no. The system seems to be that if the authority issues a certificate for 10/12, this means that 10 people can reside there but if double rooms are then required to be used the home owner must comply with the Respondent's policy, by applying to the appropriate sub-committee.

The Act does not provide for "if and but" registration. This is not a section 5(3) condition. It must be decided how many residents can be accommodated and the number must be registered accordingly. Thus it is not lawful. It is not desirable since this is not the way in which the Act was intended to work. Homes in the private sector are not privately funded local government homes. They are run by kindly, intelligent people, under broad supervision. There are various hoops through which they have to pass to become registered, but once registered they should be allowed to get on with their job, not have to seek permission to do this or that. The Regulations set down when proprietors need to report to the authorities. The proprietors should be trusted, so should the managers, and the elderly people themselves. They should usually be able to make reliable and informed decisions. The concept of pre-approval by the local authority being able to diminish the prospect of sharers falling out is hopelessly unrealistic. There is no question of the Tribunal having the power to lay down a suitable procedure, and the evidence adduced as to how this might be done suggests that it will be cumbersome, impracticable and long-winded. If it is not long-winded, i.e. with a full and thorough investigation, it will amount to rubber-stamping and be a pointless exercise.

The Reasons for Our Decision

We find that conditions 2 and 3 on the Registration Certificate are ultra vires section 5(3). Accordingly they are null and void.

We find that the Appellants' home is suitable for 12 residents notwithstanding that there are eight single and two double bedrooms, i.e. that four residents will have to share. We find, on the balance of probability, that the reason the Certificate was made out as to ten residents, and that Mr Griffiths thought the registration would be for "10/12" was due to a policy, if policy there was, promulgated some four weeks before the hearing which reflected the Council's disapproval of shared accommodation.

We accept the considerations urged on us by the Respondent, that it is extremely important that the dignity of residents be preserved, that they enjoy privacy and individuality, that they should be able to get up and go to bed when they want and suchlike. We accept that a shared room is prima facie an invasion of that privacy in the vast majority of cases. We accept and applaud the Respondent's desire to increase standards in homes by protecting this right to privacy and dignity by, inter alia, discouraging multi-occupancy rooms. We accept that shared rooms can sometimes produce problems, for example where one of the couple dies (does the room then become a "single" or would another resident be brought in to fill the vacancy?) or where a couple, initially very happy to share, have a falling out (does one have to leave the home, if the other rooms are fully occupied?) We accept the argument that even a most respectable and responsible home owner, financially motivated to keep all available beds filled, could unintentionally or even deliberately persuade an elderly person to agree to share, in circumstances where the resident's consent was not entirely voluntary. We accept that there is potential risk.

However, after long and careful thought and after having heard the evidence, in particular that of Mr Hancox, it seems clear to us and we find, that, IN THIS PARTICULAR HOME (and for the avoidance of doubt we make it clear that we are not laying down any principles of general application), it would not be inappropriate to have two double rooms in order to accommodate residents who wanted to share, (e.g. sisters, spouses, very old friends), or were prepared to share, (e.g. persons who felt that they could get along together and who might even be prepared to do so from financial considerations, provided that that was their considered wish). We are confident in this case that, such is the relationship between Mr Hancox and Mr Griffiths, an officer of the highest integrity, and one who would always put the interests of the residents first, any request for shared accommodation in this home will be looked at most meticulously, that the consent of the resident will be most carefully sought and that the interests of the residents will be paramount.

It is, as Counsel for the Respondent suggested, unusual if not unique for a Tribunal to be asked to lay down an approach to policy. We agree and do not do so.

Thus we will comment on the so-called policy of the Respondents only insofar as it is relevant to the issue of whether these particular Appellants should have ten or twelve residents, and further to explain the reasons for our decision. We are quite unconvinced with the Respondent's argument that the Registration authority, through the relevant committees, should "vet" all applications for double rooms and then decide whether or not to allow them. We feel that this policy, whilst formulated with the very highest motives and best intentions, is impracticable.

It may possibly be thought to be of some assistance for us, whilst in no way attempting to lay down policy, to offer some suggestions which reflect the feelings of this particular Tribunal.

We feel that the correct criteria for shared rooms (and we are only talking of double rooms since any greater multiple-sharing is in our view quite unacceptable), should first and foremost be the choice of the residents themselves. This accords with the principles laid down in Home Life that residents have a fundamental right to self-determination and individuality. We feel that flexibility might be desirable (i.e. there should be no fixed ratios) so far as this is practical, but subject to the general underlying principle that all rooms would be single and that only a very small proportion should be available for sharing. This also accords with Home Life: that it is highly desirable that all residents in long-term care should have their own room (unless they prefer otherwise). We feel that generally the home owner or manager, hopefully in consultation with the Registration Officers or relevant social worker concerned (and particularly so if there is any problem, actual or anticipated), is probably the best person to decide whether to accept residents who require to share a room. We feel that visits and inspections by relevant people (i.e. not only Registration Officers, but doctors, social workers, relatives, potential residents and so forth), both before and after admissions, should be sufficient protection for those residents who are sharing / propose to share.

Signed

MARGARET RUTHERFORD (CHAIRMAN)
JOHN REGAN ESQ
MICHAEL BURRELL ESQ