MR CHAND COORMIAH Appellant
and
CHESHIRE COUNTY COUNCIL Respondents
Decision of the Registered Homes Tribunal held at Cheshire Records Office, Duke Street, Chester on Monday 13 and Tuesday 14 March 1989.
Appeal by Mr Chand Coormiah against the decision of the Cheshire County Council to refuse to register him in respect of a proposed residential care home at The Limes, 68 Cinnamon Lane, Fearnhead, Warrington, Cheshire on the basis that he was deemed to be an "unfit person" for the purpose of managing a residential home.
The Tribunal:
Mr William Morris Jones (Chairman)
Dr Barbara Joyce Gray
Mr Robert Bessell
Representation
Mr Michael Booth of Counsel, instructed by Spittle & Frank Howard, Solicitors of Warrington for the Appellant
Mr Michael Chambers of Counsel, instructed by the County Secretary and Solicitors of the Cheshire County Council for the Director of Social Services for the Respondent
Interpretation
"The 1984 Act" means the Registered Homes Act 1984.
"The 1984 Regulations" means the Residential Care Homes Regulations 1984 S1 1345 of 1984 (as amended).
The Tribunal adopt Regulation 1(2) of the 1984 Regulations.
"The Appellant" means Mr Chand Coormiah.
"The Respondents" means the Cheshire County Council.
"The Limes" means The Limes, 68 Cinnamon Lane, Fearnhead, Warrington, Cheshire.
"Home Life" means Home Life - a code of practice for residential care being a report of a working party sponsored by the Department of Health and Social Security and convened by the Centre for Policy on the Ageing under the Chairmanship of Kina, Lady Avebury, first published 1984, reprinted 1985 (with corrections).
Head of Appeal
The decision of the Respondents that the Appellant is not a fit person within Section 9(a) of the 1984 Act is not accepted. The Appellant then went on to invite the Tribunal to consider 6 points set out in the document "Statement of the Grounds of Appeal", delivered to the Respondents by post on 16 February 1989.
Decision
The Tribunal unanimously confirm the decision of the Respondents, and dismiss the appeal of the Appellant.
Witnesses
For the Appellants
The Appellant
Mrs Colina Harrower-Wilson, Nursing Officer
Mr Gary James Largent SRN, RMN Nursing Officer
Mr John Wallace Stapleton - General Manager of Delft Park Nursing Home
For the Respondents:
Mr David Wakefield, Director of Social Services of the Respondents
Mr Robert John Ashcroft - Officer-in-Charge of Polgate House, a home run by the Respondents.
Mr William James Ambross Stratton - a Principal Officer with the Respondent's Social Services Department.
The Law
As the result of a matter raised by the learned Counsel, the Tribunal indicated that the Respondents are bound by the contents of the Statement of Reasons dated 10 February 1989 signed on their behalf by the County Secretary and Solicitor pursuant to the requirement of Section 12 of the 1984 Act.
This said Statement of Reasons does not include the references to alleged misconduct on the part of the Appellant mentioned in oral evidence in or about 1984 and later in 1988 as a ground of their decision in respect of the Appellant.
The Said Statement of Reasons is the document served on he Appellant in the place of pleadings which would normally be served in civil proceedings in a Court hearing, and to which the Appellant should answer. To introduce a fresh ground of complaint at the hearing which the Appellant has not had the opportunity to answer, cannot be allowed to stand.
It is also indicated that the allegations of misconduct of 1984 and of 1988 in question have not been the subject of disciplinary enquiries and it is not part of the duties of the Tribunal to hear fresh evidence to consider the validity of these said alleged suggestions of misconduct against the Appellant.
Counsel for the Appellant submitted that the Tribunal might consider imposing conditions upon the Appellant in arriving at their decision. This they cannot do in the light of the Appeal - Warwickshire County Council v Valerie McSweeney CO/1923/87 heard on 8 December 1988 before Roch J.
History
The Appellant started his nursing career as a nursing assistant and later as a pupil nurse at Preston Hospital in 1973. He is aged 36. He qualified as an SEN (mental) in 1975. For 7 or 8 months he was employed as an SEN at Wallsgrove Psychiatric Unit before transferring to Withington Hospital Psychiatric Department, also as an SEN. In 1978 the Appellant took up residence as a Community Psychiatric Nurse attached to St Thomas's Hospital (Stepping Hill Hospital) in Stockport Cheshire. During this period, the Appellant also spent some time as a Bank Nurse at Cheadle Royal Hospital.
In 1979, the Appellant transferred to Delph Hospital as an SEN working in the rehabilitation of the mentally ill, and remained there until 1981.
In 1982, the Appellant began his career with the Respondents' Social Services working as a Relief Deputy Officer in Charge for a period of 4 years.
In 1986, the Appellant was demoted but continued to be employed by the Respondents in the capacity of Senior Care Officer at Padgate House Hostel, later at Salisbury House, which is a home for the Rehabilitation of the mentally ill.
Early in 1988, the Appellant indicated in his evidence that further allegations of misconduct were made against him. In the event, the Appellant resigned from his appointment with the Respondents, so that the precise nature of these allegations were never formulated, nor was there any disciplinary enquiry.
The Appellant
The evidence before the Tribunal indicated that the Appellant showed skill and dedication in his work. Furthermore, he worked long hours and at the time of the hearing he had 2 jobs.
In or about October 1986 the Respondents conducted a formal enquiry into complaints against the Appellant by three female members of staff of sexual harassment while he was in their employ as a Travelling Relief Deputy Officer in Charge. (Two of the complainants were mature women in their forties working as night care staff and one was a 17 year old girl working as a domestic in a home.)
The allegations against the Appellant were:-
encouragement of night care staff to leave the home unsupervised.
drinking whilst on "sleeping in duty" and
sexual harassment of members of female staff.
As indicated above, the Respondents commenced the normal procedure, which culminated in a disciplinary hearing at which the Appellant was present. In his Statement of Grounds the Appellant claims (inter alia) that "(b) The Appellant did not have the benefit of Legal Representation" and "(c) No Appeal was made by the Appellant on the advice of Cheshire NALGO". The Appellant does not need to be represented. He may appear in person, but the choice is his. So far as an appeal against the decision of the Respondents after the hearing of the disciplinary hearing in 1986 is concerned, this is entirely a matter for the Appellant. He is at liberty to seek advice and to accept or reject it as he may see fit.
In the events, the Appellant in evidence agreed that the facts relied upon by the Respondents in 1986 were correct. That, according to his own evidence, he had no problem in what he said to others - "it was how they perceived it". He agreed that some of his remarks to female members of staff were not accepted as he meant them.
The Tribunal found the Appellant was a voluble man and upon cross-examination tended to give full replies to the questions put to him.
The Appellant agreed that in his various jobs and appointments, he had always been subject to supervision and/or he had somebody readily available for consultation.
The Appellant completed the application form for registration, but did not include any information in Paragraph 8 thereof. He had a drink-driving conviction which led to a year's disqualification and, of course, his disciplinary proceedings. The Tribunal considered that, in view of the note to Paragraph 8 of the said form of application, to the effect that the "spent provisions" under the Rehabilitation of Offenders Act 1974 does not apply, then both these matters should have been divulged in the form. The Appellant claimed in his evidence that he had misunderstood the question in the said form.
The Case for the Appellant
The result of the disciplinary hearing in 1986 was a demotion in his appointment, but a continuity of employment with the Respondents, coupled with a warning.
That the matters of misconduct would not be taken into account after his elapse of 2 years of the date for the hearing in 1986.
That Section 9(a) of the 1984 Act does not include the term "manager".
That some of the Appellant's remarks were misinterpreted.
That the Appellant thought that, as his appeal in 1986 lay to a panel of counsellors, he would not be likely to get an impartial hearing.
That the members of staff in respect of which allegations had been made were not called to give evidence.
That Mr Ashcroft, who had befriended the Appellant, had written letters of support for his application for registration upon which he could rely.
That both Mr Turner and Mr Stratton had misled the Appellant in their guidance and advice to him.
That there may have been misunderstanding between the parties in what was said by the one (through their officers) to the other (the Appellant).
That the Appellant did work hard and was complimented upon his diligence and his skills, particularly with the mentally ill.
The Respondents
The Respondents relied upon the Appellant's misconduct proved in 1986.
Considerations
The most important consideration is the health and care of the residents, or in this case, future residents, when the person registered and referred to in Section 9(a) of the 1984 Act will have charge. The fact is that the person registered would have the overall supervision of and the responsibility for the home, whether reference is made to the term "manager" or not. (See Section 5 of the 1984 Act). If there is a manager or, for that matter, any other member of staff, it is the person registered who finds, interviews and appoints him or her.
The tribunal consider that the letters of Mr Ashcroft written on the official letter head and signed by him as PO, written to the Appellant and also to the Registration Officer, were ill-advised, and were prepared, signed and dispatched by him without the knowledge of the Respondent.
The evidence before the Tribunal indicated that the Appellant was and is an extraordinarily hard working man. There is no question of his suitability as a caseworker under proper supervision. He is well-liked by senior colleagues and described by all who have worked with him as a man who "puts the need of clients first". He enrolled on a CSS Course, so as to increase his qualifications in the Social Work field (he had successfully completed a third of the course, when the disciplinary action was taken against him in 1986). The issues which go to the heart of whether the Appellant is a fit person to run a home, therefore, are related not to his professional competence (which is not in question) but to his character.
The tribunal were referred to the Tribunal Decision No. 76 - Azzopardi v London Borough of Havering, and in particular to the two paragraphs at the end under the heading "conclusions". They accept and follow the general principles set out in these paragraphs. However, the facts in this case can be distinguished from those in this case. Mrs Azzopardi was running the home and she went for a holiday abroad. Up n her return, she tried to smuggle drugs into this country, but was caught, tried, convicted and served a term of imprisonment.
In this case, the misconduct occurred within the curtilage of the home, with staff on duty and this must have had an effect upon the efficient running of the home. Such behaviour directly affected the care and welfare of the residents, who, as had been said are the principal concern and of paramount importance when considering a case of fitness.
The Appellant did not appear to feel that his behaviour of misconduct in 1986 had been ill-advised either at the disciplinary hearing or subsequently when cross-examined at this tribunal hearing. He regarded the complaints of these women as of little importance and based on misinterpretations of his behaviour. In this, his insight appears defective. Further, girls and young women often work in homes, either as volunteers, as part-time (school-girl) paid workers or as YTS trainees. Such inexperienced junior staff need the support, even the protection, of senior staff, not to be exposed by them to further trauma. No doubt with reason, the Appellant was confident that the events which led to a charge of gross misconduct did not put any elderly residents at risk. However, the results, had any of the staff responded to his blandishments, might have been quite different.
The tribunal are not satisfied that the Appellant was forthright in his approach to registration and that his activities in 1986 displayed irresponsible behaviour and lack of judgement and proved him as unreliable.
The tribunal also wish to draw attention to some of the procedures and actions of the staff of the Respondents which have caused difficulties in this case, and which could cause difficulties in other independent applications for registration:
The disciplinary letter dated 25 November 1986 before referred to should not have said that it would be removed from the Appellant's personal file with the Respondent's after the period of two years, when it would continue to be relevant for registration purposes.
The Tribunal was unhappy about the evidence of Mr Stratton. In particular, some of his actions could reasonably have led the Appellant to believe that Mr Stratton supported his application for registration, which was denied in his (Mr Stratton's) evidence. This was the more regrettable as Mr Stratton was and continues to be a member of the staff of the Respondents and should have maintained his impartiality.
April 1989
W M JONES (CHAIRMAN)
B J GRAY
R BESSELL