Mr Christopher and Mrs Shelagh Jones v Liverpool City Council

It is a unanimous decision of the Tribunal that the appeal fails and the decision of the respondent registration authority shall have effect.

WITNESSES

Respondents: Written statements had been prepared and served from the following:

Stephen Clare

Tim Burgess

Michael John Clowes

S Devine

Peter Cresswell

Jean Elizabeth Wright

Christine Finnigan.

The only witness on behalf of the appellant was Mrs Shelagh Jones herself.

Prior to the hearing the appellants had written to the Tribunal indicating that they did not propose to attend the hearing and could not afford to be represented. Through their secretary, the Tribunal made it known to the appellants that they considered that it was very much in their interest to attend the Tribunal even without representation and the commencement of the hearing was deferred for some two and a half hours to enable Mrs Jones to attend.

BACKGROUND

On the 15th March 1996 a registration certificate was granted to the appellants in respect of premises known as Belmont Lodge, 79 Belmont Drive, Newsham Park, Liverpool to enable them to carry on a small home for three persons with mental health problems at that address. The premises had previously been operated by the appellants as a bed and breakfast establishment and it was made clear to them by the respondents that this business would have to cease once they commenced operating the residential home for persons in need of care.

On the 25 April 1996 the appellants completed an annual return indicating that there were three residents at Belmont Lodge who came within the category of mental disorder. Shortly after this the appellants indicated to the respondents that they wished to vary the condition of their registration to allow four residents. However when it was pointed out to them that this would bring them within the full provisions of the Registered Homes Act 1984 and that there would be a number of additional requirements as a consequence, that proposal was withdrawn.

On 25 July 1997 an annual visit to the home was carried out by an inspector of the respondent's registration and inspection unit Mr Michael Clowes who was informed by Mrs Jones there were then three female residents namely CS, MDF and LF. All had bedrooms on the first floor. Mr Clowes was informed by Mrs Jones that the second floor of the building was not in use and he did not therefore inspect the second floor.

At about the same time however, the DSS were making enquiries into the occupancy of Belmont Lodge in view of the number of claims for benefit they had received from persons who had given that address as their residence. On 22 July 1997 Mrs Jones was interviewed by an officer of the DSS and made a written statement indicating that there were in fact six residents, as in addition to the above three residents there were two males and another female namely MA, JV and LH.

This information was passed to the respondents and as a consequence there was a further visit to the home by their inspectors on 28 July 1997 when Mrs Jones admitted that MA had been living at the home ever since it started but denied that JV and LH were residents. In fact she maintained that LH had never stayed at the home.

On 29 July Mrs Jones wrote to the Benefits Agency asking them to transfer the claims of MA, JV and LH to other local addresses. In that letter she made the following statement "none of these claimants either live at this address or claim benefit as of today 29.7.97".

As a consequence of this clear evidence of over occupation, the respondent's inspectorate made a recommendation to the appropriate sub committee that the registration certificate in respect of Belmont Lodge should be cancelled. The appellants were given the opportunity to attend a meeting of the sub-committee which was held on 17 December 1997 but elected not to do so although they did make written representations by a way of a letter dated 4 December 1997. In that letter the appellants agreed that there had been over occupancy and that in fact there were five people resident at the relevant time. They maintained that they thought it was alright to have more than three people so long as they were not on care packages.

At the meeting on 17 December 1997 the relevant sub committee of the respondents resolved to cancel the registration and formal notification of that decision was communicated to the appellants on 22 December 1997. By their letter of 5 January 1998 the appellants gave formal notice of appeal.

RESPONDENTS CASE

In their formal notification to the appellants of their decision and in their subsequent statement of reasons pursuant to the Tribunal rules, the respondents gave three reasons for the cancellation of the registration of Belmont Lodge, namely:-

The evidence in support of these contentions was contained in the written statements of the witnesses named above which had of course been prepared in advance and submitted to the appellants and the Tribunal. This evidence was not challenged by the appellants save in minor aspects.

APPELLANTS' CASE

In written submissions to the Tribunal dated 13 June and 1 July 1998 the appellants conceded that there had been over occupancy of the property but maintained that this was consequent upon mis-leading information given by the respondent's officers and that once their mistake had been brought to their attention they had remedied the situation and were now operating the home legally. They further contended that there never were six residents and that a compassionate view should be taken of the situation so as to enable them to continue to provide the high degree of care and attention for the three present residents who regarded Belmont Lodge as their home. They also produced impressive written references confirming the high degree of care that they provided to these residents.

EVIDENCE

Mrs Jones having confirmed that she did not wish to challenge the written statements of the respondent's witnesses, save in one minor respect, it was agreed that her evidence should be heard first after a brief opening from respondents' counsel who indicated that in his view the issues for the Tribunal were whether or not the appellants had acted innocently or were guilty of deliberate misrepresentation and deceit which would render them unfit to be registered under the provisions of the Act.

Mrs Jones gave evidence during the course of which she conceded that she and her husband had made mistakes and that there had been over occupancy. She prevaricated over the extent of the over occupancy maintaining at one stage that LH had never resided at the premises but subsequently conceding that she had stayed there on occasions. She also conceded that housing benefit had been received by the appellants in respect of a resident GL after he had ceased to reside at the premises and that this had been retained by them. She also conceded that she had received housing benefit in respect of LH whom she had previously maintained had never resided at the home. She also conceded that she had been deceitful in informing Mr Clowes that the second floor of the premises was unused and agreed that she had made this statement because she knew at the time that there should not have been more than three residents at the premises.

Mrs Jones maintained her case that she had been misled by Mr Clowes who she claimed had told her that it would be in order for her to "slip in a fourth resident". It was to deal primarily with this allegation that Mr Clowes was called by the respondents to give evidence. He agreed that he had used the expression "slipping in a fourth resident" but said that he had made it clear to the appellants that they would first need to have a variation in their registration to permit this. In all other respects his evidence was not challenged.

The hearing was concluded by an impassioned plea from Mrs Jones that, having admitted her mistakes and now operating a proper well established and legal home, within the framework of the cancelled registration certificate, the appellants should be given a second chance and be allowed to continue in operation.

FINDINGS OF THE TRIBUNAL AND REASONS FOR THEIR DECISION

The over occupancy of Belmont Lodge was clearly established and indeed conceded by Mrs Jones and the appellants are therefore guilty of an offence under Section 5 of the principal Act. Having heard the evidence of Mrs Jones, the Tribunal regretfully has come to the conclusion that the commission of this offence was not a consequence of naivety but was a deliberate act. The appellants well knew that they were not permitted to have more than three residents at Belmont Lodge but over a lengthy period of time they ignored this restriction. The Tribunal finds that there was an over occupancy varying from time to time by one to three additional residents. Whilst the Tribunal are prepared to accept, as indeed were the respondents, that pecuniary gain may not have been the prime motive of the appellants in allowing such over occupancy, there is no doubt that on the evidence there were financial gains to the appellants.

Accordingly reasons one and two given by the respondents for their decision to cancel the registration are clearly established and accepted by the Tribunal.

So far as the respondent's third reason is concerned, namely that the decision to place residents in accommodation on the second floor was reckless as to their safety, this was not argued before the Tribunal who therefore make no findings in respect thereof.

Whilst the Tribunal are prepared to accept that the appellants are truly caring people whose main intention has been to provide a stable and caring home for vulnerable persons, it is satisfied that the appellants did not act innocently and were well aware of the restrictions as to occupancy which they chose to ignore. In the circumstances it is clear that they are persons unfit to be registered to carry on a small residential home under the provisions of the Registered Homes Act 1984 and Registered Homes (Amendment) Act 1991.

The Tribunal did not have the benefit of hearing any evidence or representation from Mr Christopher Jones and can only therefore conclude that he was as aware of the situation as his wife. The decision of the Tribunal is therefore effective so far as both appellants are concerned.

In conclusion the Tribunal refer to Mrs Jones plea to be given a second chance. Whilst the Tribunal accept that, on the evidence they have heard, Belmont Lodge may now well be operated as a caring residential home within the provisions of the law, they do not consider that it is the Tribunals function to give the appellants a second chance by upholding their appeal. The Tribunal have to consider the decision of the respondents to cancel the registration on the basis of the evidence that was before the relevant sub committee in December 1997. Whilst it is true that, by agreement, the Tribunal can take into account evidence of events subsequently, the fact, if it be the case, that the appellants are now operating Belmont Lodge legally cannot alter the Tribunal's conclusions that they have in the past acted deceitfully and are therefore unfit persons to be registered under the Act.

It is for the respondents to decide whether the appellants should be given a second chance should they make a further application for registration. Had they attended before the sub-committee on 17 December 1997 and had then made a plea such as was made today, it is conceivable that a different decision would have been reached. This Tribunal however certainly cannot find that the decision then made was wrong and the appeal therefore must be dismissed.

R Cradick

M Nash

G Harper