Anthony McSweeney v Coventry City Council

It is the unanimous decision of the Tribunal that the Appellant s appeal succeeds and that his application to Increase numbers at Bablake House from 40 to 46 be granted.

BRIEF BACKGROUND TO THE DISPUTE

The Appellant and his wife jointly carry on Bablake House, which was first registered in 1984 for a maximum of 10 residents. The House was later extended and registration was granted for 17 residents. In April 1986 the Appellant obtained planning permission for a further extension to provide inter alia, 37 new bedrooms. In August 1987 the Respondent approved new guidelines for the registration of residential care homes. Among the requirements was one about size to the effect that from January 1988 only Homes for 30 or less residents would be considered for registration and that those larger Homes should provide for small group living. In October 1 987 the Appellant was told by the Respondent s officers that the maximum number of 40 residents would be recommended. This represented a compromise between the new policy and the fact that the Appellant s extension had actually begun in that footings had been laid. The Respondent was under the impression that the Appellant had agreed the compromise that is to say was prepared to accept the figure of 40 rather than 54. In February 1988 the Sub-Committee approved the variation of the condition so that numbers should not exceed 40.

In May 1988 the Appellant asked for Variation to permit the maximum number to be 46. There was subsequently a formal request oral representation before the sub-committee and a decision in September 1989 to limit the numbers to 40. The Appellant appealed against the decision.

PRELIMINARY POINT OF LAW

The question arose as to whether in the light of the Coombs decision (to be decided by the High Court apparently at the end of the year) the Tribunal had jurisdiction to hear the appeal. The Tribunal heard submissions from both Counsel to the effect that (a) the Respondents were not prepared to rely on the possible lack of jurisdiction and would support the Appellant s View that the matter be dealt with forthwith and (b) the Appellant maintained the Tribunal had jurisdiction and should deal with the matter on its merits. Its reasons were that Coombs could be distinguished. There was clearly a "decision" in this case. There had been a proposal representations had been made and a decision followed. The Appellant had been informed of that decision reasons had been asked for and given and he had been advised of his right to appeal. The documents clearly show the distinction between the two cases.

The Tribunal accepted this argument and noting that both parties were not relying on the jurisdiction point the Respondent supporting the Appellant s view that the matter should be dealt with forthwith and decided on its merits proceeded to hear the evidence.

SUBSTANCE OF THE RESPONDENT S CASE

The substance of the Respondent s case is that a Home for 46 residents is too large, both as to the general principle and as to this particular Home. The dangers inherent in large Homes include the lack of close relationships between residents and between staff and residents. The overriding consideration is to safeguard and promote the welfare of residents and meet their individual needs and it is their opinion supported by Home Life (para 3.3) that establishments providing for large numbers are unable to provide a good quality of care. Smaller Homes are preferable providing a better quality of life, obviating the danger of institutionalisation and loss of personal identity. There is a drift in favour of smaller Homes in other local authorities.

There is no criticism of Bablake House other than that it is too large. It is well run. Past inspection reports have been full of praise and apparently there is a waiting list of residents who wish to live there. However this does not mean that it will be able to meet the needs of 46 residents. The danger is that the human aspect becomes secondary to physical factors. The Guidelines (1988) said that the maximum numbers should be 30. Above that number there should be provision for small group living which is not a feature of Bablake House. Witnesses are unanimous in saying that small numbers provide a better standard of care allowing for a more stimulating environment a better quality of life and better relationships between residents and residents and staff.

The inspection reports referred to of course refer to the times when Bablake House had fewer residents.(10 17 and then 27). The Appellant whist it is conceded he has done a good job has ignored advice relating to the policy to restrict numbers. He ignored Mr Tompkin's (Inspector with the Social Services Department) advice and comments made in a previous Tribunal's decision. He ignored advice about the utilisation of upstairs rooms and he brought it on himself that he was now left with six empty rooms. He gave the impression to Respondent s officers that he would restrict numbers to 40. He has ridden rough-shod over the policy Guidelines despite the very reasonable compromise offered by the Respondent. The policy Guideline is for 30 residents and the Appellant has asked for 46.

The Guidelines are flexibly interpreted. Since the Appellant had laid his plans for an extension prior to their coming into force the Respondent had reached a compromise and permitted him to extend the number of his residents from 26 to 40 even though they firmly felt that 30 was the ideal number. They had been very accommodating to the Appellant indeed there had been a 4-fold increase in numbers of residents during the last five years. It was now time to call a halt and say that 6 further residents would make the Home too large with the danger of institutionalisation. The Respondent has in accordance with its policy reduced numbers in its own Homes.

The Appellant notwithstanding he had planning permission for some 50 bedrooms was aware of and it had been made clear to him that the Respondent s intention was to lime him to 40. This number itself was a compromise being in excess of the Guidelines maximum. It is agreed that there is room in the Home for 46 but H was felt to be not appropriate to increase numbers. The Respondent felt that the Appellant had impliedly, if not expressly agreed to 40. The Appellant has now encountered financial difficulties and needs to utilise the six extra bedrooms. He chose to go ahead with the extension however and although economic factors are to be taken into account yet they are not an overriding consideration.

Mr Tompkins supported the figure of 46 but he did this because he felt there was little else he could do in the circumstances being presented with a fait accompli. He also qualified his support by saying that it was contrary to the Respondent's policy which "was related to the philosophy of care." In any event the Council Sub-Committee chose to ignore his recommendation.

The level of residents should be kept down to 40 even though this is a Home nun on the Hotel-made philosophy. Both the criteria in Home Life and the policy Guidelines should be addressed and from those and the evidence adduced, the conclusion should be reached that it is appropriate to say 40 residents are sufficient. The appeal should be dismissed.

SUBSTANCE OF THE APPELLANT S CASE

There is overwhelming evidence from all the people who know the Home (Mr Tompkins; Mr Jones an Inspector and Mr MacGregor the Principal Inspector) that Bablake House is an extremely successful Home. Their reports indicate that the residents are happy care is provided on an individual basis the services are very good there is a waiting list for places which indicates the high reputation the Home has residents have as much freedom as possible and that it is wan excellent establishment". The person most closely concerned Mr Tompkins not surprisingly recommended in his private report to the Sub-Committee that the addition of 6 residents would have lithe effect on the quality of life of the residents. The consistently high standards justified the increase to 46. The only possible explanation of the refusal to accede was the policy decision as to numbers. It was alleged the Appellant had appeared to appeared the subsequent figure of 40 and that the lack of reaction of the Appellant when informed that 40 would be the maximum number was "taken to be acceptance". The Appellant however had made it plain that he wanted larger numbers. He is a man of great credit in that he established maintained and ran the best Home. The evidence is beyond doubt that the extra 6 residents will in no way effect the quality of care and the appeal should be allowed.

THE REASONS FOR THE TRIBUNAL'S DECISION

The Tribunal was persuaded by the argument of Counsel for the Appellant and by the evidence adduced before it, both oral and written that Bablake House was suitable to take 46 residents that is to say to increase the current numbers by six. (The Tribunal did not consider it necessary to visit the Home since there was no dispute as to the facilities both physical and otherwise provided). What persuaded it in particular was firstly the undisputed and overwhelming evidence that the Home is a very good Home. It appears to cope very well with 40 residents at present and there are six empty new bedrooms awaiting further residents for which there is a waking list. It is well run has a positive and caring staff and excellent facilities. Every bed-sitting room as single and all save two have en-suite bathrooms affording residents the dignity and right to individual privacy. There are five lounges affording residents the choice of communal environments. The management appears to be capable workmanlike and caring. The Tribunal finds that there is no question that but for the Guidelines and the new policy to restrict the size of Homes this Home would have been considered absolutely suitable for 46 residents.

The second matter which persuaded the Tribunal was that it was satisfied on the balance of probabilities that the only reason why the Respondent refused to comply with the Appellant's request to increase numbers from 40 - 46 was that such numbers conflicted with its present policy. It did not give equal consideration to the particular merits of this application.

The Tribunal is satisfied that the Respondent's policy founded on Its collective experience and strong belief that the quality of care is enhanced and promoted by smaller rather than larger units (which in its opinion ensure the individuality of residents provide better interaction between residents and residents and staff provide a more stimulating environment and continuity of care for residents and blend into the neighbourhood) is a good one and generally to be encouraged. However the guideline of 30 as a maximum number (recognising the need for homes to be economically viable) is the Tribunal feels unnecessarily inflexible and fails to take account of other factors for example that in a hotel-mode Home there can be small group living arising naturally from the numbers of residents and that there does not necessarily need to be a move towards smaller Homes to achieve this. So much depends on the choice of the residents particularly those who are less dependent.

Another factor which influenced the Tribunal was that this Home comprises about 2/3 private and about 1/3 assisted residents that is to say the 2/3 have a choice whether to be accommodated at Bablake House or not. They have chosen what they think to be the best managed Home with the tremendously important factor of privacy in that they even have their own bathrooms. It say 80% of the residents were in receipt of benefits it would be justifiable to hold a totally different view in that residents would have been Paced there after assessment, by definition the highly dependent who most likely would be unable to make considered judgments thus lacking the vital element of choice. This warehousing has no application at-present to Bablake House. The residents choose to go there to spend their own money on what they consider to be important exercising their freedom of choice.

Another factor which influenced the Tribunal was the evidence of both Mr Tompkins and Mr Bette. As to the former the Tribunal was impressed by his obvious integrity and the honest views he expressed eg. as to it being "difficult to argue that the residents were not cared for" that he had "no reasons to doubt" that this was one of the best managed Homes in Coventry that there was a "demand for places" there and so forth. The misgivings he had heard aired from a couple of residents as to their anxieties if the Home developed were Insufficiently strong even to mention in his recommendation to the Sub-Committee. He thought that the Home could manage perfectly properly with 46 residents and agreed that the objection was not as to the fitness of the Home but just as to policy "related to the philosophy of care". He agreed that the position furnishings and physical amenities were of the highest standard and agreed that apart from the policy relating to numbers 46 residents Could be accommodated in the Home within the Guidelines.

As to Mr Bette the Tribunal was most impressed with his fair and balanced evidence. He had visited hundreds of Homes and placed Bablake House within the stop 25%" as to its amenities facilities its extremely positive approach its single rooms wits very positive attitude to care by a good staff who know what they are doing. He spoke of his support of small group living being semi independent within an environment as well as "hotel models of care" Bablake being in the latter category. He put the emphasis on freedom of choice for the residents on their needs and preferences. It residents were semi independent and capable of exercising choice they might be better off in an hotel model. He supported croup living for the highly dependent resident but not necessarily reduction of numbers. Homes can be from 4 - 60. He did not necessarily agree that there should be a movement towards smaller Homes. Whilst he totally supported what Home Life had to say he said that it should be considered in the context of the particular Home. The preference for small group living was one line of professional thinking but there were significant differences in others. The Respondent was preoccupied with the group living principle being imposed on every Home and this militates against choice. Balances should be made and they should be in response to individuals and groups founded on the principle of choice. In any event group living is perfectly feasible within an hotel model.

His evidence convinced the Tribunal that individuality was safe-guarded at Bablake House despite the large numbers in that different things with residents enjoying the privacy of their own bed sitting rooms. The individual has choice there "are things going on" at Bablake House which are "very positive". There is no lack of individuality and interaction. The environment is stimulating and there is no question of the Home dominating Its area. Mr Bette felt that it was a misguided approach to set a fixed number for residents. It was "unwise to pursue a numbers policy". Amongst other considerations wit militates against choice." The Respondent should consider any application against policy guidelines and it the Home meets with those criteria then the application should be accepted. The Tribunal agreed with this.

The Tribunal whilst recognising that economic Considerations are important did not rely on the evidence concerning the Appellant s current financial difficulties in reaching its decision.

As to Guidelines the Tribunal has these observations to make. They are of course minimum requirements in respect of important aspects of the conduct of residential Homes. However they are simply that; they should not be inflexible and they do not have the force of law although they are of persuasive authority. They provide a starting point. Local authorities are right to have formulae for home-owners as guidance or ground rules. 1ms not only reasonable but essential that they constantly strive to improve standards. However all minimum requirements are fraught with difficulties and in particular there will always be hard cases which come on the division if numerical formulae are used.