CROFT ACRES LIMITED Appellant
and
CITY OF SHEFFIELD Respondent
Decision of the Tribunal sitting at the Town Hall, Sheffield, on 6 November 1990.
Before: | R H Christie (Chairman) |
| D Browne |
| Dr B J Gray |
Appeal against the decision of the City of Sheffield to refuse to register the applicant in respect of Croft Acres residential care home.
Representation
For the Appellant: | Clive Smith, of Counsel, instructed by Tierney & Co |
For the Respondent: | J Ward, City Solicitor's Office |
DECISION
The Tribunal unanimously allows the appeal and directs that the Respondent's decision to refuse registration shall not have effect.
REASONS
Croft Acres is a new, purpose-built home for 25 elderly residents. The City Council is satisfied with all aspects of the home itself and is prepared to register the intended manager, but it has two objections under section 9(a) of the Act. These are:
Mr William Bradshaw, who is a person concerned or intended to be concerned in carrying on the home is not a fit person to be concerned in carrying on a registered care home by reason of his past conduct as a landlord.
2 The Appellant company is not a fit person to be concerned in carrying on a residential care home by reason of the lack of awareness of a proper relationship between the owner and the manager of the home.
To justify refusal on the first of these grounds it is necessary for the City Council to be satisfied in two respects: that William Bradshaw is not a fit person and that he is concerned or intended to be concerned in carrying on the home. In our view the City Council succeeds in the first respect but not in the second.
William Bradshaw describes himself as having a strong personality and a tendency to voice his opinion and witnesses described him as blunt, outspoken and the patriarch of his family. He is or was the landlord of various flats and houses, and from 1986 to 1989 Sheffield's Landlord/Tenant Relations Officers have recorded six complaints by different tenants against him.
In 1989 he was convicted on two charges of illegal eviction under the Protection of Eviction Act 1977, fined £250 for each offence and ordered to pay £500 costs. Because of the vulnerability of elderly residence in residential care homes we have no hesitation in agreeing with the City Council that he is not a fit person to be concerned in carrying on such a home.
To explain why we disagree with the City Council whether William Bradshaw is concerned or intended to be concerned in carrying on the home it is necessary to outline the history of the application for registration. William, who is aged 71, and his sons Roger and Peter worked together for many years in a company call J W Bradshaw (Sheffield) Ltd as wholesale and retail fruit and vegetable merchants. Through their hard work the company has prospered, and in 1989 Roger and his mother Gladys (William's wife) set up and became directors of a new company, Croft Acres Ltd, the present Appellant, to build and carry on a residential care home. The new company was financed by Gladys' personal savings, a bank loan and a loan from J W Bradshaw (Sheffield) Ltd. Early in 1990, before the application for registration was prepared, William suffered from a heart attack, retired from business and withdrew entirely from J W Bradshaw (Sheffield) Ltd, of which he is no longer a shareholder or director or company secretary. He has never had any involvement in Croft Acres Ltd.
Nevertheless it appeared to the City Council's Registered Homes Panel that he was involved, for two reasons. First, the proposed manager, Fiona Williams, said at her registration interview on 11 June 1990 that she was under the impression that William was one of the owners of the home. Shortly afterwards she discovered that she was in error on this point. The second reason was that Mr Haynes, the registration officer, had also seen William at the home on a number of occasions while it was being furnished and prepared for opening. The members of the Panel were no doubt concerned that William might influence the running of the home, either directly or indirectly through his wife.
The facts were conveyed by the City Council to Gladys, who was at that time a joint applicant for registration with her son Roger, and the family took immediate action in an effort to remove the difficulties. Through their adviser Mrs Sylvia Foster they engaged the services of Mr Beddoe, who is managing director of an independent social and health care consultancy. On his advice Gladys resigned as a director of Croft Acres Ltd, leaving Roger as the sole director. His brother Peter came in purely as company secretary. William offered an undertaking not to be involved in any way in the affairs of the company or the home, and to record the reason for his visit if ever he should have occasion to visit the home. The Panel was advised that such an undertaking could not be enforced as a condition of registration, and the Panel was therefore not prepared to rely on it.
These developments were all explained to the Panel in the course of representations made in accordance with section 13 of the Act, but the minutes record that the panel was "not convinced that [William] will have no future involvement in the ownership or the running of the home".
In approaching the question in this way we consider that the Panel misdirected itself. A registration authority is not permitted by Section 9 to refuse registration unless it is "satisfied" that one or more of the situations described in that section exists. In this case it was therefore necessary for the Panel to be positively satisfied that William was concerned or intended to be concerned in carrying on the home. It was not necessary for the Appellant to convince the Panel to the contrary. We appreciate and commend the City Council's concern that a person with William's record as a landlord should have nothing to do with the carrying on the home, but unless the evidence was strong enough to satisfy the City Council of William's involvement it had no power to refuse registration. Its responsibility for the welfare of the resident will have to be exercised by monitoring the home and taking action under section 10 or section 11 if necessary.
Because this appeal takes the form of a rehearing of the evidence and submissions, the fact that the City Council misdirected itself is not necessarily fatal to its case. If we were satisfied that the requirements of section 9(a) were fulfilled we would uphold the City Council's decision despite its misdirection of itself. But we cannot be so satisfied. The evidence of Fiona Williams made it clear that at the time of her registration interview she genuinely did not know how the ownership of the home was arranged. She had been 'head-hunted' by Sylvia Foster for the owner or owners, and had not yet reached the stage of finding out to whom she would be responsible. And it was equally clear that William's involvement, as observed by Mr Haynes, went no further than driving his wife (who does not drive) to the home and giving her a hand with such things as furniture and curtains. Against the background of what, we have described as the family's immediate and thorough reaction to the Panel's initial concern, and the family's appreciation that the entire project will be jeopardised if William becomes involved, the evidence falls far short of satisfying us that the requirements of section 9(a) are present.
The City Council's second ground for refusal - the lack of awareness of a proper relationship between the owner and the manager - comes closer to being substantiated. Now that the company has been reconstructed with Roger as sole director, he is for practical purposes the owner. He comes to residential care home ownership as a businessman, not as a carer. He engaged Sylvia Foster as an adviser at the suggestion of his architect, and was content to let her engage Fiona Williams as manager without any personal involvement on his part. Even by the time of Fiona Williams' registration interview he had not explained to her that she was responsible to him. He did not attend the open day of the new home because he was away on holiday. Initially he relied entirely on Sylvia Foster, and now he relies entirely on Mr Beddoe. He has taken no action to join the local home owners' association, he has not Visited other homes or had discussions with other home owners, and he has not arranged for either himself or Fiona Williams to attend training courses. The City Council was right to have misgivings about him.
Against this, he is well aware of his inexperience and employed Sylvia Foster as an adviser from the outset, replacing her with Mr Beddoe when the difficulties over registration arose. Mr Beddoe told us, and we accept, that the success of Croft Acres is as important to him as it is to Roger, and he will use all his professional skill and experience in advising Roger. His current management support contract runs for a year and is renewable. Fiona Williams is not only acceptable to the City Council as a manager, but impressed us as a person with a strong desire to use her training and experience in a homely as opposed to an institutional atmosphere. Mr Haynes, the registration officer, is well aware of Roger's lack of experience and possible lack of aptitude, and can be relied on to offer all the support that is in his power. Roger will be well advised to take advantage, and to encourage Fiona Williams to take advantage of courses offered by the City of Sheffield for new home owners and managers. This is especially important because Fiona Williams' experience has been chiefly in the field of health care. Roger, as a hard working and successful business man, knows that the success of this investment depends not only on good business management but on the maintenance of the best standards of care.
Weighing these factors we have come to the conclusion that, although we share the City Council's Concern about Roger's fitness, we cannot be satisfied that he is not a fit person to be concerned in carrying on a residential care home.
R H CHRISTIE (CHAIRMAN)
D BROWNE
B J GRAY