Leicester Family Housing Association v Leicestershire County Council

It is the unanimous decision of the Tribunal that the Appellant's Appeal be dismissed and that the Respondents' decision to reduce the number in the Home to eight residents be upheld.

Witness for the Respondents; Robert Eglington Esq

Witness for the Appellant:
Farouk Haider Esq Officer in Charge of the Home
Dr Val Marett Member of the Advisory Committee
Ms Denise O'Sullivan Director of the Leicester Family Housing Association

The Leicester Family Housing Association Ltd, own and run ASHRAM, a residential care home for Asian elders. It was registered in March 1987 for a maximum of 10 elderly persons. There are nine rooms, one being a double room intended for a couple. In fact the home has never been fully occupied, numbers having ranged from 7 to 9. At the time of registration the authority's minimum requirements in respect of night staffing were: in homes with less than 10 residents, one experienced member of staff on call in the home every night. In homes with between 10-19 residents, one waking member of staff and one experienced member of staff on call in the home. The Appellant's home, registered for 10 persons, fell on the borderline.

On March 1st 1988 the Personal Services Sub-committee amended its requirements so that in homes with less than 8 residents one experienced member of staff should be on call in the home every night. For homes accommodating 8-12 residents there should be one waking experienced member of staff plus one member of staff on call nearby (i.e. within 5 minutes of the home), alternatively, 2 persons on call in the home, one of whom must be experienced.

The only matter in dispute between the Appellant and the Respondents is the question of night staffing. No criticism is made on the standard of care or accommodation at ASHRAM. However, the parties have been unable to agree, the Appellant contending that one sleeping member of staff in the home and others on call nearby is adequate. The Respondents were minded to impose a condition as to the provision of waking member of staff at night, or to reduce the number of residents to a maximum of 8. By section 5(3) of the Act it is not possible to impose a condition as to night staffing and so the Respondents made a decision to reduce the number of residents. The appellant appealed against this decision on 24 July 1989.

The gap between the parties is extremely narrow. The only issue is the night staffing arrangements. There has been no night-time incident and the Respondents have said that they are satisfied that the well-being of the residents is secured, apart from night-time cover. The Respondents say that the night cover is adequate for 8 but not for 10. In March 1987 the existing arrangements were acceptable. In March 1988 the Respondents revised their own guidelines. The Appellant contents, having regard to the size of the home and the circumstances and needs of the residents, that additional night-time cover is not needed to ASHRAM.

Guidelines should remain guidelines: they should not become fixed. They should provide a starting point. Regulation 10(1)(a) should be looked at in the context of Regulations 10(1)(b)-(s). The question to be decided is whether one person on sleeping duty at night is adequate for the well-being of 10 residents housed in 9 rooms on 2 floors. There is no definition of "adequacy" or "well-being" in the Regulations. Well-being goes beyond a minimum safety level, that is to say care and essential risk management. The touchstone test is adequacy. The Tribunal has to make an independent, common sense judgement in the light of its findings of fact about ASHRAM. The factors to consider in determining the test of adequacy include the assessment of night-time needs and risks at the home, aspects of safety, and social and emotional needs. A common sense approach must be adopted as to the management of risks and needs so as to balance the two extremes of residents being left alone on the one hand, or having "minders" in each room, on the other. There must be the availability of care sufficient to respond to the needs of residents overnight, in particular as to their being taken ill, needing assistance with bodily functions and to be given comfort when lonely or distressed. What is it about these risks for 10 residents which require waking cover, whereas when there are 8 of them such cover is not required? Whether that cover is sleeping/waking becomes an issue when the needs of the residents require it. This is not a nursing home. Mr Eglington spoke of a person on waking night-duty spending time on other duties, such as catering, laundry, and administration - all activities which could well be carried on away from the residents.

The particular circumstances of ASHRAM, and the home's experience in caring from residents overnight, show that there is an excellent alarm system, with which all residents are familiar. The system is designed to ensure effective communication through doors and walls. There is no suppression of night-time needs. Residents have a real and genuine choice to summon assistance at night. Their needs have been few and the night-staff have coped admirably. There is a clear guidance to all staff on duties and procedures, particularly as to emergencies. The Officer in Charge has a BT "bleeper" and can be summoned at any time. There are members of the Advisory Committee who can get to ASHRAM within 10 minutes of receiving a telephone call. Home Life confirms that decisions as to night-staffing should be made on an individual basis. The research papers also indicate that the individual circumstances of each home are the crucial factor. ASHRAM has been well managed and well run on existing night-time staffing levels. The incidence of night-time attendance by sleeping-in staff has been minimal. The present arrangements are adequate and sufficient for the type of residents presently living there, and present arrangements have been worked well for over two years. The dependency levels of the residents are not high. The Appellant accepts that there is SOME risk in not having patrolling waking night-time cover but that, according to experience, the risk is so low that the requirement is excessive in meeting that risk. If the Tribunal considers that the existing night-staff arrangements (i.e. one sleeping member and others nearby on call) are adequate for the residents, it should allow the appeal.

Both parties to this dispute have much common ground. The fact the only point at issue is a narrow one, albeit an important one. Both parties concentrate solely on the question of waking staff at night. The Respondents have not adopted the requirements of two sleeping-in members of staff and the Appellant has indicated that it wishes to argue on the merits of waking staff only, not the other option.

Difficulties have arisen because there are guidelines. These are minimum requirements in respect of certain important aspects of the conduct of registered homes. However, the authority is right to have formulas for home-owners as guidance/ground rules. All minimum requirements are fraught with difficulties. The only question is the adequacy of the night-staffing arrangements. This must not be confused with minimum acceptable night staff, as adequacy means more than the minimum. A hypothetical question might be, what is a resident in the home entitled to expect? and the answer is, more than the minimum; in short, an appropriate level of care. Too much emphasis on the question of responding to emergencies, however, verges onto the minimum standards rather than those which are adequate, since other aspects, such as social and emotional aspects, assume considerable importance. It has been suggested that it would be oppressive, rather than respecting autonomy of the residents, to have patrolling night staff. This, however, is care, not oppression. To suggest that the provision of night staff would result in loss of autonomy, with residents becoming dependent on staff and the institution, is unreal. One does not lead to the other. For example, as the residents of the home age, it is likely that incontinence (at present no problem) will increase. This could be demeaning, causing some residents to lose their self-respect. This could be dealt with by waking night staff, being positive assistance to residents, rather than an intrusion on their autonomy.

The Respondents rely on the evidence of their Registration Officer, Mr Eglignton. The substance of his written and oral testimony is that it was felt by the Respondents' officers in the light of experience and representations made by home-owners, that minimum requirements be changed, time being provided to allow home-owners to comply. If there is a waking member of staff the residents will know this, and appreciate that someone is there at night to attend to their needs. Residents can be looked-in-on to see that everything is alright. Research indicates that of 61 other registration authorities 46 had more stringent requirements than Leicestershire, 31 requiring waking staff for all homes, regardless of size, and a further 10 required night staff for being 5-9 residents.

It is recognised that much depends on the particular circumstances at the home. As a principle of general application night staffing should be adequate not only to cover emergencies or serious situations, but also to provide care or attention to residents who might benefit from being made comfortable, e.g. residents who are incontinent, and also having someone to talk to if they are lonely or confused. Care is needed for the elderly not merely for their physical ailments but for their social or emotional needs.

As to the layout of ASHRAM, it has very substantial fire doors which are heavy to open and which make it difficult for the sleeping member of staff to hear any incident/accident which might occur if a resident were unable to reach the bell. No commodes are provided for residents so that means that those needing to go to the lavatory at night would have to get up and walk the corridors.

There have never been more than 9 residents in occupation. Two are registered blind. Their condition, both as to the past and into the future needs to be considered. At the time of their admission several were in a poor state, having problems over and above those of elderly people in general. Many suffered from mobility problems or had alcoholic or other problems of isolation within the community. They would have needed time to settle in. In the future there is an overwhelming probability of a risk of deterioration. Registration is a licence enabling the home to admit new residents in similar conditions, and those residents presently there may well deteriorate over the years. The home must plan to provide a proper standard of care, not only for the present but the future.

The evidence as to the alarm system revealed that there was a list of telephone numbers as the existence of a bleeper. However adequate this might sound, it is no substitute for staff actively on duty. There is no guarantee that someone is in, there is no roster, no guarantee that the person "bleeped" is readily available. Even the alarm bell system presents a risk that it would not operate in certain circumstances. When residents leave their rooms they would be unable to sound the alarm. There is a serious risk that the person would not be heard. Other residents should not be relied on to sound their alarms, apart from the fact that there is evidence to indicate that some residents are heard of hearing. Another point is the very few alarm calls that there have been. It is quite likely that on admission a resident might not readily understand the system, i.e. what happens when the button is pressed? Would a man or a woman answer it? The resident might not be aware of the benefits of sounding the alarm. Residents do not complain; they may not wish to call out staff or cause inconvenience. It is a very delicate business to encourage autonomy and yet to do what is best for the residents. It might be possible that residents could get the "wrong end of the stick", feeling that an alarm bell should be pressed only in an emergency. This, however, fails to deal with social and emotional care of residents.

Night staffing is essential for the well-being of the residents, for the provision of service to them and for their social and emotional care. Regulation 10(1)(a) speaks of the "well-being of residents" and the provision of staff "where necessary by night. This is wider than merely responding to an emergency. The Regulation speaks of "adequacy".

The Tribunal visited the home and was greatly impressed with the comfort, cleanliness and very high standard of furniture and furnishings there. The kitchens were excellently equipped and absolutely spotless. Young members of staff seemed bright, happy and very friendly. The few residents seen had to dignity provided by light and bright rooms, and obviously very good food. They were well dressed.

However, it is clear from the evidence and from the glimpses given to the Tribunal on its visit, that some of the residents were particularly vulnerable. This vulnerability will, regrettably but inevitably, increase as time goes by.

After very careful thought, the Tribunal does not consider the present arrangements are adequate, whereby one person sleeps in the home (registered for ten residents) at night, with others on call nearby. Accordingly it dismisses the Appellant's appeal and upholds the Respondents' decision that one waking member of staff at night is required in this home for 9 or more residents. Alternatively, that the present arrangements require that the home be registered for only 8 residents, since such numbers will not require a sleeping-in member of staff according to the local authority's revised guidelines.

The evidence which has been adduced has satisfied the Tribunal that the Respondents have most carefully considered both the general principles of night cover and the particular circumstances of ASHRAM, and it can see no reason why it should overturn their decision. It considers that it is reasonable constantly to strive to improve standards, and that the standards set by the Respondents are entirely reasonable. As to the particular circumstances of ASHRAM, the factor which most influenced the Tribunal was the sleeping accommodation which was on two floors, with two residents' rooms on the second floor and seven residents' rooms on the first floor. The sleeping-in member of staff was separated from the residents' rooms by a minimum of three heavy fire doors. The Tribunal most carefully considered the argument about alarm bells being in each bedroom but was concerned as to the possibility of a resident falling or needing assistance once outside their room, away from their bell. All, apparently, used the lavatories rather than commodes and thus might, from time to time, require to leave their rooms at night. There was absolutely no possibility of a sleeping-in member of staff being able to hear a fall or a cry.

Furthermore, the Tribunal did not find the existing "emergency" arrangements adequate. In particular, there was a guarantee that any of the people on call would even be in, or available, or able to get to the home in reasonable time. There was neither a roster nor any firm commitment for anyone to be at a particular place at and for a specified time.

The Tribunal was asked to give views on appropriate levels of cover if it felt able to, particularly since little general guidance is provided by Home Life or the Regulations. Of course it is impossible to generalise, since every home is different, has residents with different needs and requirements different physical arrangements and so forth. However, having looked at ASHRAM, it is possible, the Tribunal feels, to proffer its views, albeit with some diffidence, as to what would be suitable for this particular home. The Tribunal only offers these views in response to a particular request to do so, since otherwise such commentary would be inappropriate, being in excess of powers given to the Tribunal under section 15 of the Act.

The division between homes of under 8 and above must, of necessity, be a fairly arbitrary one. However, the Tribunal agrees that, notwithstanding there will always be hard cases which will come on the division, a waking member of staff must always be preferable to two sleeping members of staff. It can understand why the question of two sleeping staff arose - cases of married couples were cited - but apart from the fact that, when both are wakened, two pairs of hands are better than one, two sleeping people will be no better than one sleeping person in the case of emergencies and the giving of emotional support. As a general principal, unrelated to any formula of numbers, a waking member of staff can make periodic inspections (and the Tribunal does not consider that this could ever constitute an intrusion on the privacy of residents), thus being aware of emergencies, helping with personal tasks (i.e. taking someone to the lavatory) and giving that comfort and tremendous feeling of security to residents who find themselves sleepless, frightened or lonely. Just to know that someone else is awake gives very great comfort in these circumstances.

If the Tribunal may offer a further comment, to have one waking member of staff art night would free another bedroom (previously accommodating the sleeping-in member of staff) so that a further resident could be accommodated. Thus, the Home could run at full capacity (1) utilising its present 9 rooms (one of which is apparently a double) plus the extra one. It might also apply to accommodate 11 elderly residents? This might well offset the additional financial burden of employing a waking member of staff.

The Tribunal would like to add how extremely gratifying it has been to observe the constructive co-operation which exists between this local authority and the Housing Association. Both bodies are devoted to promoting the physical, social and emotional welfare of elderly and vulnerable people and they are to be sincerely applauded for the thorough sensible way in which they seek to fulfil their mutual aims.

MARGARET RUTHERFORD
KAY WELLS
ROBERT BESSELL ESQ