Tripp and Others v London Borough of Harrow

The Tribunal unanimously allows the appeal, directs that the respondent's decision shall not have effect and varies the condition imposed by the respondent by increasing the maximum number of residents from 38 to 40.

REASONS

The appellants seek to increase their maximum number of residents from 38 to 41. Until the High Court rules on the question, it is doubtful whether an appeal lies to this Tribunal from a registration authority's decision not to vary a condition specifying the maximum number of residents, so with the ready co-operation of the solicitors on both sides the application was not presented to the registration authority as an application to vary a condition, but as a full blown application for registration for 41 residents, it being agreed that the existing registration for 38 residents would not be jeopardised. The registration authority granted the application subject to the condition that the maximum number of residents be limited to 38 (in effect rejecting the application to increase numbers from 38 to 41). Counsel on both sides were in agreement that the procedure that had been adopted conferred jurisdiction on the Tribunal, and we see no reason to question the correctness of this view.

The issue raised by the appeal is whether the communal space at the home is sufficient to justify the increase in numbers. Harrow, the registration authority, says it is not really sufficient for the present 38 residents, and although Harrow has been prepared to stretch a point up to now, the point cannot be stretched any further. The Tripp family, the appellants, say the communal space is adequate and will still be adequate if three more residents are accepted. This issue has to be examined in the light of the unusual nature of the home, which is run on the model of a high class residential hotel and is jointly registered by Harrow under Part I of the 1984 Act as a residential care home for 38 residents, and by the appropriate health authority (which takes no part in this appeal) under Part II of the Act as a nursing home for 16 patients.

The physical attributes of the home

Kestrel Grove was the headquarters of Fighter Command during the war, and is an imposing house standing in five acres of ground between a built up area and open country. The Tripp family opened it as a residential care home in 1966, since when they have added two extensions. Each of these extensions is basically a two storey bedroom wing with a single corridor, and at the far end of the upper corridor of the newer of these wings is a sun lounge of approximately 37 square metres, opening onto a large balcony or terrace. The remaining communal space is all situated on the ground floor of the original house. It consists of a lounge of approximately 53 square metres, a dining room of approximately 58 square metres, an octagonal central hail and two sitting areas, one down four steps and outside the secretary s office, and one by the reception desk, in each of which areas there are two armchairs. The physical measurements of these various rooms and spaces are not in dispute, but there is disagreement about whether the entire area of the octagonal hall and the two small sitting areas ought to be counted as communal space or whether only a proportion ought to be included because each of these three areas also serves as a passage way and circulating space. This disagreement is not important, because Harrow does not rest its case on mathematical calculation based on a rigid application of its guidelines, which it applies flexibly. Nor do the Tripps rest their case on a mathematical calculation. They rely more heavily on the nature of the residents' rooms. They are all single rooms, but most of them are of such a size that they would make adequate double rooms, and in fact one room is presently occupied by a married couple. Many of the rooms have private bathrooms attached, and almost all of them can properly be described as bedsitting rooms, with ample space for two or three armchairs, occasional tables, writing desks and similar furniture according to residents' individual preferences. We agree with Mr Tripp that because of the size and nature of residents' individual rooms the standard guidelines laying down the amount of communal space required for each resident are less applicable to this home than they are to a home with smaller bedrooms.

The present application to increase the number of residents from moving some members of staff to new staff accommodation in the grounds. This has made available sufficient rooms to accommodate three more residents.

We inspected the home and were impressed by its architecture and by the high standard of its furnishing and equipment. Mr Clough, who was a member of the Home Life Working Party and has long and wide experience of registered homes, gave evidence for the Tripps and rated the physical attributes very highly indeed. So highly, in fact, and with so many superlatives that we felt his evidence was lacking in objectivity. Our own opinion does not quite match Mr Clough's. We agree that the physical attributes of the home are of a high standard, even a very high standard, but our inspection did not cause us to express ourselves in superlatives. In particular we were struck by the lack of an amenity that one would expect to find in any good residential hotel, and certainly in one which aims at a high standard. The missing amenity is a small lounge, which might be described in an hotel as a writing room, a card room, a reading room or even a smoking room. In a residential home H would not be appropriate to lime its potential uses by giving it any of these restrictive names. We will return to this after considering the way in which Kestrel Grove is run.

The method of operation of the home

Kestrel Grove is run on the hotel model, for residents who have been used to a high standard of life. It aims at the top end of the market, successfully because it does not need to advertise but has no difficulty filling its places. A typical resident will be widowed, and unable through advancing years to keep up his or her comfortable home. He or she will have chosen to move to what is in effect a good class country hotel with care staff and, should it become necessary, nursing staff. Some residents retain their membership of the neighbouring golf club and in general their families remain in very dose contact with them and take them out regularly. The residents were described to us by Mr Tripp as being fiercely independent, making use of their rooms as bedsitting rooms and more accustomed to giving orders than to being organised. If they or their families had any cause for complaint they would no hesitate to mention H.

Although the residential care home and the nursing home are, of course, separately registered with different authorities, they are in effect run as a unit. They are under the same roof, use the same communal space, are fed from the same kitchen and are managed by the one matron. There is no lack of well qualified staff, and it has never been necessary to resort to agency staff.

The method of unit living is not practised. In homes with large numbers of residents it is standard practice to eliminate or at least reduce the institutional atmosphere by dividing the residents into units. Harrow does this in its own larger homes, and Mr Lee, Harrow's Registration and Service Standards Manager, commented on the lack of any such system at Kestrel Grove. Mr Tripp's answer was that this system would simply not be appropriate for the residents he has and the hotel model of home that he runs. The only relevance of this discussion (for it could not properly be described as a dispute) is to the question of whether the number of residents could be increased without detracting from the general high standard of care and without moving towards an institutional atmosphere.

We are satisfied on this point. The home is what it sets out to be - a residential hotel with ample care and nursing - and we agree with Mr Tripp that the addition of another three residents would not endanger the existing atmosphere. Unit living would not become any more necessary with the addition of another three residents than it is now.

The Tribunal is, of course, not bound by Harrow's policy of limiting numbers in residential care homes to 40 unless there are clear reasons for permitting a greater number. The adoption of such a policy by a registration authority no doubt serves a useful purpose in giving advance notice of the authority's requirements to owners proposing to open new homes or expand existing ones, but in the present case there is no magic in the number 40. What we have to consider is not whether the existing facilities would be overstrained by increasing the number of residents from 38 to 41, but whether they would be overstrained by increasing the number of residents/patients from 53 to 57. Bearing in mind that the hotel model of the home does not lend itself to the introduction of a unit living system, we do not consider there would be any material effect on the standard of care and the welfare of residents by admitting three additional residents.

Conclusion

We are not, however, prepared to authorise an increase of more than two additional residents. Our reason has nothing to do with limiting residents to 40 in accordance with Harrow's policy. Our sole concern is with the adequacy of the present communal space. As we have said, there is presently no small lounge. We accept that residents and their families have not complained about she lack of a small lounge, and make full use of their bedsitting rooms, but it is almost a truism in homes that what is not provided is not missed and if a small lounge were provided we have no doubt residents would use it and their quality of life would be further enhanced.

Rooms have become available as a result of moving members of staff to new accommodation. If we authorised the filling of all these rooms with residents there would be no room available for the small lounge that is so obviously lacking.