Mrs Helena Quinn v Hertfordshire County Council

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

Witnesses for the respondents

Susan Mary Lilley
Rosemary Anne Hoy
Claire Stevens
Sunny Murch
Marian Byrne

Witness for the appellant

Mrs Helena Quinn

BACKGROUND

The appellant, Mrs Quinn, was the owner of a property at 85 Radlett Road, Frogmore, St Albans and on 11 April 1996 she submitted to the respondents an application for registration of that property as a home for five/six elderly residents. At that time, Mrs Quinn was employed by the respondents as a home care assistant. Her application was dealt with by Miss Susan Mary Lilley who was one of the inspection and registration officers employed by the respondents. Miss Lilley had previously discussed the appellant's proposed application and had pointed out to her the requirements for a registered home and in addition, the appellant had purchased from the respondents the full registration information pack which provided all necessary information regarding registration and the statutory requirements for the operator of a registered home for elderly residents.

Prior to lodging her application Mrs Quinn, having obtained the necessary planning consents, had an extension built to her property to allow for an additional large bedroom upstairs and two additional rooms downstairs, one of which it was apparently intended to use as a bedroom. However, at the time of Miss Lilley's initial visit to the property on 3 May 1996, the building works were not complete and it was clear that the property as it stood would not accommodate more than a maximum of three residents in addition to Mrs Quinn herself. Accordingly, the application was amended by the appellant by limiting it to three residents.

Referees' names were, of course, provided by the appellant and Miss Lilley duly wrote appropriately to the four nominated referees, three of whom provided perfectly satisfactory references. The remaining referee was Mrs Sunny Murch who had been the appellant's manager as a home care assistant since November 1995. Mrs Murch initially contacted Miss Lilley to indicate that she was not prepared to supply a reference and had grave reservations as to Mrs Quinn's suitability to run a residential care home. She referred in particular to her inadequate paper work and poor attendance record due to sickness. Furthermore, she informed Miss Lilley that disciplinary proceedings were currently being taken by the respondents against Mrs Quinn for gross misconduct in the course of her employment as a home carer. Whilst the Tribunal was not informed of the specific charges in these disciplinary proceedings, it was clear that they related to two matters. The first was that Mrs Quinn had provided residential accommodation for a short period to Mr W for financial reward, Mr W being a home care client. Secondly, in the course of her employment, she had circulated printed cards advertising her proposed residential home.

The outcome of the disciplinary proceedings was that Mrs Quinn was dismissed from her employment as a home care assistant by the respondents in July 1996. It is understood that she subsequently made application to an Industrial Tribunal for unfair dismissal but her claim was not upheld.

As a consequence of the information acquired from Mrs Murch and following consultation with her seniors, Miss Lilley wrote to the appellant on 9 July 1996 suggesting that it would be appropriate for her to withdraw her application. Mrs Quinn replied on 15 July to the effect that her dispute with her employers was irrelevant to her application with which she wished to proceed.

Thereafter, for one reason or another, there was some delay in processing the application and it was not until 5 February 1997 that an interview took place at the appellant's home with Miss Lilley and her senior, Rosemary Hoy, at which a number of questions were put to the appellant in accordance with a prepared interview schedule. At that interview, the appellant failed to convince the two registration officers that she had sufficient knowledge of the appropriate legislation and other requirements for registration as a proprietor of a small home.

Another point at issue was Mrs Quinn's desire to use the large bedroom for two residents which, as had been pointed out to her on more than one occasion, was not acceptable to the respondents unless the two residents indicated positively that they wished to share. It was made clear to the appellant that the respondents would not register a home for three persons unless there were three suitable bedrooms available which was not the case at that time.

There was also the difficulty with regard to an employer's reference which Mrs Quinn endeavoured to overcome by providing the names of four further potential referees. Miss Lilley endeavoured to contact these but was unable to trace three of them. The fourth was Claire Stevens, who had been Mrs Quinn's manager as a home care assistant from May to October 1995. Mrs Stevens felt unable to provide the appellant with a positive reference.

As a consequence of this situation, Miss Lilley felt unable to recommend the registration of the appellant and on 17 June 1977, a formal letter was sent from the respondents to Mrs Quinn that her application was refused.

RESPONDENTS' CASE

In their formal statement of reasons pursuant to the rules, the respondents set out five main reasons for their rejection of the application which can be summarised as follows:-

The evidence adduced to support their contentions was that of the two registration officers, Miss Lilley and Mrs Hoy and the two home care managers, Sunny Murch and Claire Stevens and finally the Area Manager of the Home Care Department, Marian Byrne. The statements of these witnesses had, of course, been prepared in advance and submitted to the appellant and to the Tribunal and it is not thought necessary to comment in detail on the evidence given which has already been outlined above. It should, however, be noted that with regard to reason (c), the appellant had submitted certain costings which were referred by Miss Lilley to the respondents' Social Services Financial Unit for consideration. It was this reference that led to some of the delay that occurred between October 1996 and January 1997. In his report dated 7 January 1997 the Head of Finance concluded with the following recommendation:

"Whilst there are some potential problems, on balance I would recommend registration of this home."

However, the respondents' case was that the appellant had failed to demonstrate appropriate understanding, breadth of knowledge or ability in financial and business matters and that the figures she produced did not demonstrate long-term financial stability. Under reason (d), the respondents also sought to rely upon the fact that the hours of work that Mrs Quinn proposed for herself were excessive and were inconsistent with her previous sickness record, evidence of which was given by Sunny Murch and Claire Stevens.

APPELLANT'S CASE

The Appellant contended that the Respondent had placed undue reliance on the opinion of her capability of her manager, Sunny Murch, who had presented an unfair picture. She relied upon what she described as her thirty years' record of satisfactory work as a carer as indicating that she could operate within the legislation and did not consider that the staff management skills that would be required of her were very different from those she had demonstrated by successfully bringing up single handed a family of four children. She maintained that she had a proven ability to handle money by virtue of ten years' employment by an insurance company and that she would be able to call on the services of an accountant to assist her with the necessary book keeping. She further maintained that her proposed hours of work were no more than she was at present doing and as she would be living on the premises they would not present a problem. With regard to the question of room sharing, she strongly maintained that she would never require elderly persons to share a room unless they positively wished to do so and, over all, that her proven record as a home carer should establish that she is a fit and proper person to operate a residential home for three elderly people.

EVIDENCE

The Tribunal does not consider it necessary to review the whole of the evidence in this decision. The evidence for the respondents has, in effect, been summarised above and so far as the appellant is concerned, she too submitted a lengthy written statement amplifying the above which was subsequently confirmed by her on oath.

FINDINGS OF THE TRIBUNAL AND REASONS FOR THEIR DECISION

The Tribunal, having given very careful consideration to all the evidence and the brief but pertinent closing submissions made by the representatives of the parties, ultimately reached the unanimous decision that the decision of the respondents to refuse the appellant's application for registration should be upheld.

This does not, of course, mean that the whole of the respondents' case was accepted and that the whole of the appellant's submissions were rejected. Indeed, the Tribunal feel constrained to criticise to some degree the statements that were presented on behalf of the respondents which, in some respects, proved to be inaccurate or exaggerated. It was also noted that whilst the respondents produced a very comprehensive handbook for the registration and inspection of residential homes generally, the separate handbook relating to small residential care homes consisted of only two pages.

Therein it was clearly acknowledged by the respondents that it was the intention of the legislature that a lighter touch should be applied to applications for small homes but the Tribunal felt that the respondents' officers had, in fact, failed to appreciate this and had, to the contrary, adopted a somewhat heavy handed approach to this application.

Having said that, when considering the whole of the evidence, and in particular that of the appellant herself, the Tribunal are satisfied that the respondents had established that she was not a fit and proper person for registration as the proprietor/manager of a small residential care home.

So far as the specific reasons given by the respondents for their decision, the Tribunal agree with (a), (b) and (c) as set out above. The Appellants' submission that because she had worked as a home carer during a period of thirty-odd years she was fully aware of the statutory requirements was manifestly not the case. Even at the hearing she was unable to identify the principal Act of Parliament under which she would be operating, namely the Registered Homes Act 1984. She failed to demonstrate any adequate knowledge as to the records that she would be required to keep. As to staff management, the suggestion that because she had managed to bring up a family of four children single handed she could cope with staff problems did not impress the Tribunal.

So far as the financial aspects are concerned, although it is true that the Finance Department of the respondent's Social Services considered that the castings were viable, the expert knowledge of the Tribunal was to the contrary. The Tribunal is entitled to use its own experience in these matters and consider that if the registration had been permitted to go ahead, it would not have been very long before Mrs Quinn was in considerable financial difficulty.

The Tribunal did not, however, agree with the respondents' reasons (d) and (e). So far as experience in ownership and management is concerned, the Tribunal consider that the lighter touch that is recommended for small homes was not applied to Mrs Quinn. She was, after all, intending to look after three elderly persons and, through her experience as a home carer over a number of years, the Tribunal feels that she should have been given the benefit of the doubt on this aspect. Were it otherwise, it would mean that every person who was applying to operate a small home would have to demonstrate previous experience and the Tribunal do not believe that this was the purpose of the legislation.

Finally, to deal with reason (e), the Tribunal do not accept that the rigid stance adopted by the respondents as to room sharing can be justified. They do, of course, entirely endorse the view that no resident should be required to share a room unless they specifically wished to but consider that the registration authority's approach should be more flexible and in appropriate cases can see no reason why a registration which takes into account the possibility of room sharing should not be permitted in the first instance.

Nevertheless, the Tribunal is satisfied that the first three reasons given by the respondents for their decision have been established and it is the unanimous decision of the Tribunal that the appeal should fail and the respondents' decision should be upheld.

Mr R Cradick
Miss Graham
Mr Watts