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Cite as: [2002] EWCST 83(NC)

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Brown & Anor (High Ridge Children’s Home) v National Care Standards Commission [2002] EWCST 83(NC) (25 May 2003)

Application No: 2002.83.NC
CORVILLE BROWN & MARION BROWN (HIGH RIDGE CHILDREN’S HOME) - Appellants
-v-
NATIONAL CARE STANDARDS COMMISSION - Respondent
BEFORE
Mr A Wadling (Chairman)
Ms J Cross
Ms M Harris

1. The appeal was heard on 14, 15, 16, 22, 23, 24 and 25 April and 9 May 2003.

The appeal was brought in response to a decision of Northamptonshire County Council to cancel the registration of the High Ridge Children’s Home pursuant to section 63 and Schedule 6 paragraph 4(3) of the Children Act 1989.

2. At the hearing of the appeal a ruling was made under paragraph 18 of SI 2002/816 prohibiting the publication at any time of any matter likely to lead members of the public to identify any child placed at High Ridge Children’s Home.

3. The Appellants were represented by Ms Markanza Cudby of counsel instructed by Scott Fowler of Northampton and the Respondent was represented by Mr Daniel Oudkerk instructed by Bevan Ashford, London.

4. Oral evidence was given by 27 witnesses whose names and employment are listed in an appendix to this decision. The tribunal also had regard to some 3,000 pages of documentary material provided by the parties.

5. We were not specifically addressed by the parties on the issue canvassed in previous Residential Homes Tribunal appeals as to where the burden of proof lies in an appeal such as this one. It appeared to us that in the course of submissions and evidence the Respondent implicitly accepted that it did have the burden and so we have adopted that approach to the issue. As to the standard of proof, we have applied the standard set out in the following passage;

"When assessing the probabilities the court will have in mind as a factor, to whatever extent it is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability....

The more the improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established".

Re H and others [1996] 1All ER 1 per Lord Nicholls of Birkenhead at 16h to 17a.

Background;

6. Mr and Mrs Brown applied to Northamptonshire County Council (NCC) for High Ridge to be registered as a Children’s Home in April 1999. The application process was delayed in part by the difficulty in finding a suitable manager. Although neither Mr nor Mrs Brown had any experience of managing a children’s home, Mrs Brown put herself forward as a candidate but was rejected, rightly in our view, as was another candidate put forward by the Browns.

7. In January 2000 Michelle Evans (Worrad) was proposed as manager and accepted by NCC as suitably qualified. High Ridge was then registered as "a children’s home for up to 8 children aged between 8 and 14 years." Between 28 February 2000 and16 February 2001 a total of eleven young persons were variously in residence.

8. Michelle Evans began work on 28 February with two young persons in residence, but following a dispute with Mrs Brown on 18 March, she resigned and left High Ridge.

Discussions then took place between Mrs Brown and the Inspectorate as a result of which it was agreed that Mrs Brown would run High Ridge pending the appointment of a new manager. In these circumstances the Inspectorate informed Mrs Brown that it did not consider it appropriate for any further admissions to take place until a new manager was in post. Soon after receiving this advice, Mrs Brown admitted another young person (G).

8. In May 2000 Glen Smith applied for the post of manager. He was approved by NCC and started work at High Ridge in July. Mr Smith was employed as manager until February 2001 when he made a series of complaints to the Inspectorate concerning Mrs and Mr Brown and the running of High Ridge, he then resigned.

9. The local authorities who had young persons placed at High Ridge were notified of the subject matter of the complaints and related matters and by 16 February the last young person had been removed. A number of current and ex-staff members were then interviewed, records from High Ridge were reviewed by NCC and other information obtained. On 1 March NCC gave the Appellants notice of a proposal to cancel their registration.

Findings

10 The matters relied upon by the Respondent relating to the operation of High Ridge and the conduct of the Appellants fall under a number of headings. We have not made findings on each and every one of these matters. Because of the volume of the documentary evidence produced to us both before and during the course of the hearing, we have not set out the evidence in full on each issue. The fact that only the main points of that evidence are included in our findings should not be taken to mean that we have not taken into account all the evidence and arguments put before us. Although we read the three statements identified in Appendix 1, we did not attribute significant weight to any of them unless supported by other evidence.

11. Following the removal of the young persons from High Ridge the Inspection Unit carried out inquiries into various matters relating to their care. The results of some of these inquiries are summarised below.

12. A number of staff members were offered employment and then began working at High Ridge before they had been subject to the mandatory checks made through the police to ensure there were no grounds for them not to be working in a children’s home. High Ridge’s records show that there were in excess of 90 shifts between May 2000 and mid February 2001 when a minimum of two unchecked staff were on duty. Even though there were delays in processing these checks, the number of unchecked staff and the time over which this practice continued evidences an indifference to the importance of this procedure. Mrs Brown told us that she understood the importance of the checks but we find that she gave the issue a very low priority.

13. An example of the consequences of inadequate staffing was that between April 2000 and February 2001 in excess of 60 shifts were led by staff who in the view of the Inspection Unit lacked sufficient experience given the particular needs and problems of the young persons at High Ridge.

14. The particular consequences of inadequate staffing are evidenced by the experience of GR. He was resident at High Ridge for 32 days in July and August 2000. The risk assessment carried out on arrival noted his violent and aggressive behaviour and concern about his attitude to women in authority. Despite this assessment at least 18 day shifts were staffed wholly by females when a number of incidents took place culminating in a serious assault on a female staff member when no male members of staff were present. No incident report was made out in respect of this event. There were also 26 occasions when staff numbers on daytime shifts were insufficient to meet GR’s requirement of a 2:1 staff ratio because there were other young persons in residence.

15. The problems of staffing were made more difficult by the absence of any domestic staff which meant care staff carrying out this work and so having less time with the young persons. The shortage of staff also led to the significant use of agency staff on both day and night shifts.

16. It was never suggested to us in evidence that there was a shortage of prospective care staff suitably qualified for the difficult task of looking after these young persons. Nor was it suggested that there was insufficient money to fund the employment of suitably qualified and experienced care or domestic staff. In these circumstances we found it all the more surprising that the Brown’s 16 year old daughter was employed for 12 months from about March 2000 to work shifts and on her evidence even on one occasion to lead a shift. Also, Mrs Brown elected to employ several care workers without relevant experience or qualifications such as Ms Maynard (Palmer), Ms Murray, Ms Harley-Peters and Ms Andrews.

17. From information concerning 30 staff members analysed by the Inspection Unit, 13 had no induction at all when commencing work at High Ridge, 9 others did not work an extra shift for the purposes of induction training. Others said in evidence that they had some induction and others again that a full induction was given. There were differing views given in evidence as to what might constitute an adequate induction. However, it is evident that there was not a consistent approach taken at High Ridge on this issue.

18. Such post induction (if any) staff training as took place was limited because there were insufficient staff to run High Ridge and to allow training sessions.

19. It was of particular concern to us that there was no staff training of appropriate methods of restraining young persons when it was clear from the information provided to High Ridge by the placing authorities that it was at least probable that such a procedure might be necessary for some of those within their care.

20. One such incident led to Mr Brown becoming involved in restraining a young person without having undertaken any training or instruction in restraint techniques. Mr Brown told us that he "occasionally" worked shifts at High Ridge although he had no training or experience in residential child care.

21. The incident involved GH who was 7 years old and previously the victim of sexual abuse. Mr Brown told us that at the time he was not aware of her history. The note made by the care worker suggests that Mr Brown took the leading role in restraining GH, which we accept was necessary. We did not accept his claim in evidence that by holding GH’s arms while the care worker held her legs for several minutes that he believed he "was not directly concerned in restraining the child,…I was assisting."

22. There were a number of similar incidents when young persons had to be restrained involving other staff members. The presence of a staff member who had received restraint training when restraint was required appears to have been a matter of fortunate coincidence. We find such a situation quite unacceptable.

23. Mr Toner of the Inspection Unit and a colleague made an unannounced visit to High Ridge in January 2001. They found one care worker looking after 3 young persons "who presented as bored and lacking in direction. It was evident that no programme was being followed."

24. On a later visit by Mr Toner, it became apparent that there was no written policy in respect of bullying. Mrs Brown told him that there was a policy but it was not written down. It is clear from evidence given to us by care staff that there had been a number of incidents of bullying at High Ridge prior to this visit but no proper recording of these events appears to have taken place and little or no action taken to prevent its reoccurrence.

25. Part of the problem relating to the recruitment of staff was the approach of the Appellants to the funding of High Ridge. Mrs Brown told us in evidence that there was an "open budget" for staff given to both Michelle Evans (who recruited no staff) and Glen Smith. According to Mr Brown, a staff budget would have been given to Glen Smith when he was settled in the Home. This had not happened in the eight months that he was the manager of High Ridge.

26. It was not in dispute that Mrs Brown played a far more active role in the affairs of High Ridge than did Mr Brown who described his role as that of bursar. Nevertheless it was not suggested to us that Mr Brown was not aware or in anyway misled as to the nature and extent of the problems at High Ridge.

27. As regards events between July 2000 and February 2001, the Respondents case in general terms was that any failings or inadequacies in the running of High Ridge were the result of the failings of Glen Smith as the manager throughout this period. This was Mr Smith’s first appointment and as he agreed in evidence, "I could have done with more experience at High Ridge". However, we find that that the evidence does not support the assertion that the problems of High Ridge were attributable to Mr Smith. They had begun before Mr Smith was appointed and when Mrs Brown was effectively the manager. We accept the evidence of Mr Smith that he had warned Mrs Brown that the young persons and staff were at risk by reason of the problems identified below. As he obtained no positive response, he rightly took his concerns to the Inspection Unit.

28. As part of their case as to the character of Mr Smith, the Appellants called evidence in respect of apparent inappropriate use of a computer kept in the office used by him. However, having heard evidence to the effect that a number of different people had access to that office and computer at the material time, we find there is no evidential basis for such a conclusion.

29. When considering the significance of the various matters relied on by the Respondent, we had particular regard to the needs and problems of the young persons who were resident at various times. These matters are identified in the care plans and other records. These documents disclose the acute vulnerabilities of these young persons and evidence the critical importance of adequate numbers of appropriately qualified and properly trained staff to care for them.

The number of staff at High Ridge and their experience and qualifications were not adequate to ensure the welfare of the children accommodated there was safeguarded and promoted at all times contrary to paragraph 5(1) of the Children’s Homes Regulations 1991. We find that the primary cause of this situation was the failure of the Appellants to ensure that suitably qualified and experienced staff were recruited and trained to cope with the difficult and complex task of caring for the young persons in their care. It is from this initial failure that the failures to comply with the Act, Regulations and NCC Standards arise.

Conclusion

We therefore find that High Ridge Children’s Home was "being carried on otherwise than in accordance with the relevant requirements" within the meaning of Schedule 6 paragraph 4(3) of the Children Act 1989.

Accordingly, it is the unanimous decision of the tribunal that the appeal is dismissed.

Ms M Harris
Ms J Cross
A Wadling (Chairman)
25 May 2003

APPENDIX

Witnesses for the Respondent

Gill Ager – Manager Northampton County Council Inspection Unit
Hazel Hudson-Green – Sr Inspector Northampton County Council Inspection Unit
Roger Gordon – Inspector Northampton County Council Inspection Unit
David Jones – Inspector Northampton County Council Inspection Unit
Patrick Toner – Inspector Northampton County Council Inspection Unit
Nicola Hines – Care Worker
Kim Lyte - Care Worker
Tanya Maynard - Care Worker
Madeline (Polly) Hilery - Care Worker
rLeona Murray - Care Worker
Helen Hooton - Care Worker
Claire Mobely - Care Worker
Sheila Bannister - Care Worker
Glen Smith – Manager High Ridge from July 2000 to February 2001

We also read the following statements

Hilary Grimshaw - Care Worker
Michelle (Evans) Worrad - Manager High Ridge from February to March 2000

Witnesses for the Appellants

Marion Brown – Appellant
Corville Brown – Appellant
Vanessa Brown – Care worker
Elizabeth Brighton – "Independent Visitor" at High Ridge and Head of the Preparatory School of Overstone Park School
Susan Boyce – Care worker
Summers Andrew - Care worker
Ladonna Harley-Peters - Care worker
Neil Manns – Maintenance Operative Overstone Park School
Patricia Lee – School Secretary Overstone Park School
Judith Kirby – Assistant School Secretary Overstone Park School
David Urquhart – Systems Manager
David Benjamin – Care Worker
Samantha McFarlane – Care Worker

We also read the following statement

Dawn Louise York – Teacher Overstone Park School

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