England and Wales Care Standards Tribunal

 


CERTIFICATE ISSUED PURSUANT TO REGULATION 29(3)

On reading the letter from the Respondent dated 1^st March 2004, I hereby amend the clerical mistake in the document (below) recording the decision of the Tribunal signed on 19^th February 2004 as follows:

The name Jean Thornton on the first page of the document is replaced by the name Jennifer Thornton.

His Honour Judge David Pearl

President

9^th March 2004.

Pamela Murphy v National Care Standards Commission (NCSC) [2003] 199.NC

Tribunal sitting at Care Standards Tribunal, Pocock Street, London on 26^th and 27^th January 2004 to hear an appeal in respect of a cancellation of registration of the Appellant.

Before:	Maureen Roberts – Chair
	Margaret Halstead
	Michael Jobbins

Representation Appellant: Ms Lisa Sinclair of Counsel instructed by Davis & Co Solicitors

Respondent: Mr Dijen Basu of Counsel instructed by Mills and Reeve Solicitors

DECISION

It is the unanimous decision of the Tribunal that the appeal be dismissed and that the decision of the Respondent be confirmed.

WITNESSES

For the Respondent:	Ms Katarina Djordjevic, Inspector for NCSC
	Guy Page, Area Manager NCSC
	Tony Fraher, Regional Manager NCSC
	Jean Thornton (Statement)

For the Appellant:	Mrs J Gibbs, Manager MIND Charity Shop
	Mrs Debbie Murphy, employee and daughter-in-law of Appellant
	Mrs E Bradley, ex-employee of Appellant
	Mrs Pamela Murphy, Appellant
	David Lomas (Statement)
	Dr David Farmer (Statement)
	Sue Ormond (Statement)

1. . The Appellant, Mrs Pamela Murphy, appealed against the Notice of Cancellation of Registration of Church View Residential Home under S.14(1)(d) of the Care Standards Act 2000. The Notice of Cancellation was dated 23^rd June 2003 and cited breaches by the Appellant of Regulations 7(1) (2)(a) and (3)(a) and Regulation 11(a) and (b) in that, in summary, she had failed to remain of integrity and good character by virtue of her conviction on 13^th February 2003 for an offence under the Social Security Administration Act 1992, and had failed to notify the NCSC of that conviction. The appeal form B1, was signed by the Appellant on 22^nd July 2003.

   THE BACKGROUND

2. . In June 2000 the Appellant purchased the business of a residential home known as Danross in Derby. The name was later changed to Church View. The home was registered for seven residents. She ran it as a going concern.

3. . Prior to her purchase of the home, the Appellant had some 16 years' experience as a Care Assistant and then (from 1994) as an Assistant Manager in Local Authority Homes.

4. . On 5^th November 2001 the Appellant provided a false statement to the Department for Work and Pensions (DWP) of the names of staff who worked at her residential home. She entered a guilty plea and was convicted on 13.02.03 and sentenced on 18.03.03 (sentenced to 2 months in prison, later reduced to 200 hours CPO on appeal).

5. . The Appellant's registration under the Care Standards Act 2000 was cancelled and she was notified, after the internal appeal procedure, on 11.07.03. Whilst we note that there had been some concern about complaints from former, staff which were unsubstantiated, and some concern about poor record keeping, the only ground for the cancellation of the Appellant's registration arose from her conviction for fraud.

6. . The Tribunal was asked therefore to hear and read the evidence and determine whether the Appellant was a fit person to be the registered proprietor of a residential home for seven elderly people.

   PREVIOUS HEARING

7. . At an earlier hearing on 18^th December 2003 before the panel, but with a different chair, an adjournment had been agreed to reluctantly and the following order made.

   "Upon hearing Counsel for the Appellant and Respondent, it is ordered, and the Tribunal directs that, this appeal stand adjourned to 26^th and 27^th January, and that, no later than 5 pm on 12^th January 2004, the parties shall file and serve further evidence with regard to the following matters:

   i) The circumstances of the conviction of Mrs Debra Murphy and any other person employed at Church View Residential Home also convicted in relation to similar offences during the relevant period, to include the total amounts of fraudulently claimed benefit, the sentences received by each person and the sentencing comments made by the presiding magistrate or judge about Ms Debra Murphy, her colleagues and Mrs Pamela Murphy.

   ii) The arrangements made by Mrs Pamela Murphy for the management of Church View Residential Home prior to sentencing and thereafter, including details of who remained employed there and how staffing and management levels to the appropriate standards were to be provided and maintained."

8. . In response to this order the Appellant filed a number of supplemental statements, a bundle of rota schedules to show cover for the home, and a schedule of persons convicted of DWP fraud working at her home. On the first day of the hearing the Tribunal was given a copy of the pre-sentence report for the Appellant. On the second day of the hearing the Tribunal received the copy charge against the Appellant and the summary of facts from the DWP in Derby. We therefore summarise the facts of the conviction.

   THE CONVICTION

9. . The Appellant was in some respects vague about the exact details of her conviction. We had the benefit of seeing her original false statement to the DWP 05.11.01, the inspector, Katarina Djordjevic's statement to the DWP, the charge sheet, Pre-sentence Report and newspaper report of the Magistrates Court proceedings.

10. . We were able to establish from this that the Appellant was convicted under S112 of the Social Security Act 1969 of a charge that she had "furnished a document which she knew to be false in a material particular in that it purported to provide but did not provide full details of all persons employed by her in the business of Church View Residential Home."

11. . From the DWP summary of facts sheet there were four additional proposed charges that the DWP had considered putting to the Appellant – namely that between May and September 2001 she had given false information on employees' returns for the DWP (or Local Authority). The DWP did not proceed with these charges.

12. . Six of her employees were convicted of DWP fraud, i.e. working and claiming. The extent of financial loss to the state from the Appellant's fraud was placed at £10,852.00. The persons convicted were as follows:

    	Pamela Murphy	200 hours' Community Service
    	Debbie Murphy (née Hunt)	Fine £600
    	Sue Ormond	80 hours' Community Service
    	Emma Brindley	Caution
    	Ken Palmer	Four months' custodial sentence
    	Doreen Derbyshire	100 hours' Community Service
    	Debbie Corden	120 hours' Community Service

13. . It was accepted in the Pre Sentence Report, and by the Tribunal that the Appellant had not directly gained financially from the fraud. On the form of 05.11.01 the Appellant had omitted Debbie Hunt, now Murphy, and Doreen Derbyshire and Debbie Corden, all of whom she admitted were working for her at the time. In addition, in a covering statement she specifically "explained" the circumstances surrounding Mrs Derbyshire's proposed work for her, which was plainly untrue.

14. . The Tribunal are fully aware that the Appellant was sentenced for one offence (as set out in the certificate of conviction and recited above). However the sentence imposed (2 months' custody) indicates how seriously the Bench viewed the offence. We accept the Crown Court reduced the sentence to 200 hours' Community Punishment Order on appeal.

    THE ISSUES

15. . The issues before the Tribunal were:

    a) Were the allegations and subsequent conviction of the Appellant so serious as to make her unfit person?

    b) Did the Appellant fail to notify the Respondent of her conviction contrary to Regulation 11 of the Care Standards Act regulations?

    THE RESPONDENT'S EVIDENCE

16. . The Inspecting Officer, Katarina Djordjevic, struck the Tribunal as an honest and reliable witness who was doing her job. She had carried out a number of inspections in 2000 onwards, with recommendations. She was informed by the DWP of the proposed prosecution on 17 January 2002. To some extent therefore she knew about the investigation and prospective court proceedings from the DWP. It is also evident that she had discussed the possible effect of a conviction with the Appellant and warned her that it could lead to the cancellation of her registration.

17. . On 17^th February 2003 (four days after her conviction but prior to sentence) the Appellant replied to Ms Djordjevic's request for an Action Plan. She said that it was "quite harsh" for her to have to complete these requirements "prior to knowing the outcome of any court proceedings". She said that Ms Djordjevic had told her that she would recommend cancellation of her registration upon her receiving a conviction and that "therefore I am not in a position, financially, to complete work that may not be relevant".

18. . The Appellant goes on to say that she specifically wrote to the Respondents on 20^th February 2003 informing them of her conviction. Ms Djordjevic denied ever seeing or receiving the letter. A copy of the handwritten letter was provided by the Appellant in the bundle to the Tribunal.

19. . Once the Appellant's conviction was known to the Respondents' officer Ms Djordjevic and, before the Appellant was sentenced, Ms Djordjevic saw her line manager (Mr Gorsuch) and it was agreed that she would write a report recommending that the Appellant cease to be registered.

20. . This report, dated 10^th March, was submitted to Guy Page, Area Manager of the Derbyshire Area Office. The Tribunal had a copy of this report before it. The proposal was that the Appellant was cancelled both as registered person and registered manager. The report further noted in "Background" that a number of complaints had been received about the operation of the home. However these had been either anonymous or from ex-employees and had been difficult to investigate and conclude categorically. Some matters had been identified and substantiated: inaccuracies in recording staff availability, unsatisfactory recruitment practice, poor care record keeping and poor management supervision.

21. . Having said that the report made it clear that the main ground for the recommendation was the Appellant's conviction and her failure to inform the Respondents of that conviction.

22. . The report concluded:

    "It is concluded that the evidence provided in the background section of this report suggests that Mrs Pamela Murphy is unfit to carry on a care home. The nature of the offence for which she has been convicted deems her unfit as she can no longer be considered to be of integrity and good character. The Care Home Regulations 2001 state:

    Regulation 7:

    (1) A person shall not carry on a care home unless he is fit to do so.

    (2) A person is not fit to carry on a care home unless the person –

    (a) is an individual who carries on the care home

    (3) The requirements are that

    (a) he is of integrity and good character.

    It is also concluded that the evidence provided in the background of this report suggests that Mrs Pamela Murphy is unfit to manage a care home. The nature of the offence for which she has been convicted deems her unfit as she can no longer be considered to be of integrity and good character. The Care Homes Regulations 2001 state:

    Regulation 9:

    (1) A person is not fit to manage a care home unless he is fit to do so.

    (2) A person is not fit to manage a care home unless –

    (a) he is of integrity and good character

    The evidence provided in the background of this report suggests that Mrs Pamela Murphy has not complied with the requirement to notify the National Care Standards Commission of any offences. The Care Homes Regulations 2001 state:

    Regulation 11: Where the registered person or the responsible individual is convicted of any criminal offence, whether in England or Wales, or elsewhere, he shall forthwith give notice in writing to the Commission of:

    a) the date and place of conviction

    b) the offence of which he was convicted, and

    c) the penalty imposed on him in respect of the offence.

    It is suggested that failure to comply with these requirements provide grounds for the cancellation of Mrs Pamela Murphy's registration as registered person and registered manager under S14 (1)(d) of the Care Standards Act 2000."

23. . This report was accepted by Mr Guy Page, the Area Manager for NCSC in Derbyshire. In his evidence he said he was aware of the background information and the fact of the conviction. He could not recall when he had read the Appellant's file. He said he was clear at the time that while he did not know every detail of the conviction, it was a serious matter. He took the view that the conviction and the failure to inform the Respondents of it, affected the relationship between owner and regulator. He said that it is a basic tenet that the Respondent can trust people and that owners will be open and honest with the Respondent. He considered that that relationship 'did not exist any more' between the Appellant and Respondent. He considered that the conviction went to the question of the integrity of the Appellant.

24. . By the time the matter came to Mr Tony Fraher (Regional Manager for NCSC) the Appellant had been notified of the decision and invited to submit any additional evidence for his consideration. The Tribunal read the report (as mentioned) from the NCSC submitted to Mr Fraher and the supporting letters and references from the Appellant including a reference from her Community Punishment Order placement (Mrs Gibbs, who also gave evidence to us) and a letter signed by the residents of her home. All the documents from the Appellant had been read and considered by Mr Fraher.

25. . In turn Mr Fraher upheld the decision to cancel registration based on the evidence before him. He was criticised in cross-examination for failing to interview some of the people who had provided written evidence. However we accept that his statutory obligations under S18 of the Care Standards Act provide for him to make his decision on written representations.

25. . He stated, in a letter dated 28^th May 2003:

    "At the outset can I clarify that the matter on which I have made my decision relates to your fitness as the registered provider given that you have been convicted of an offence which calls into question your integrity and good character.

    The offence for which you were convicted seriously calls into question your integrity and good character. It is also disappointing to note that you did not declare the conviction to the National Care Standards Commission. This again raises concerns about your willingness to be open and honest about this matter given your registration status with this body."

    He therefore upheld the decision made by the Area Office. The Tribunal found both Mr Page and Mr Fraher competent and reliable witnesses. For example when Mr Page was unable to remember when he saw the Appellants file he was honest in admitting that fact.

    THE APPELLANT'S EVIDENCE

27. . We heard from Mrs Gibbs who ran the local MIND charity shop where the Appellant served her Community Punishment Order. She was a credible and caring witness but when she wrote her initial letter of support had only known the Appellant for a few weeks. We accept that she thought well of the Appellant and trusted her. She knew the nature of her offence but not its seriousness.

28. . Mrs Debbie Murphy, the Appellant's daughter-in-law, was a single parent in receipt of benefit when she started helping the Appellant in her residential home in the summer of 2000 on an unpaid basis. She had had a child (then aged 12) by the Appellant's son but then had separated from him for some five years. She had got back together with the Appellant's son in 2000 before she started working for the Appellant. She said she started working in an unpaid capacity just helping out and by Christmas 2000 she was being paid. She was married to the Appellant's son on 13^th July 2002.

29. . When the Appellant signed the DWP form on 05.11.01 declaring her employees, Debbie Hunt, as she then was, was an employee and the Appellant failed to declare this. Debbie Murphy (née Hunt) said her mother-in-law, the Appellant, did not know she was on benefit prior to her marriage. We find this difficult to believe. Mrs Debbie Murphy had been on Income Support, Housing Benefit and Council Tax Benefit for some considerable time by the time she started working at Christmas 2000. She knew she should have declared the work and in fact she was convicted of DWP fraud herself and received a fine. As the girlfriend and partner of the Appellant's son we consider that firstly the Appellant would have known she was on benefit when she completed the false statement for the DWP on 05.11.01. Appellant should have listed her as an employee on the form of 05.11.01 and she did not do so.

30. . Debbie Murphy said she had not told the Appellant she was on benefit. However she was inclined to answer 'don't' know' to a number of questions and was muddled about dates.

31. . Emma Brindley, who had worked for the Appellant, was initially on Family Credit for which the Appellant had to sign forms. While between two sets of employment (not with the Appellant) she applied for income support. She said that she did not know whether anyone else at the Appellant's home was claiming and working. She was also inclined to be muddled about dates. Her name was declared on the DWP form of 05.11.01. She received a caution for failing to declare two weeks' work.

32. . The Appellant gave evidence to us. We accept she has considerable experience of being employed in residential homes, but no experience as a registered proprietor and little formal training.

33. . She accepted the fact of her conviction but explained away the errors on the form because her mother was critically ill (and later died) and one of her sons had been sent to prison at about that time. She could not remember completing the list of staff for the DWP nor signing the supporting statement regarding her staff and in particular the situation of Mrs Derbyshire. She said she did not know any member of staff was on benefit apart from Doreen Derbyshire whom she did know was on benefit and about whose circumstances she made a completely untrue statement to DWP, designed to mislead them into thinking she was just about to start work in November 2001 when in fact she had been working for over a year.

    34. Following a full Inspection on 12.08.02 the Report to the Appellant advised her to attend Training on Adult Protection procedures as a matter of priority. It also recorded that the requirements for NVQ Level 4 for the manager was discussed with her. The Appellant did not give a satisfactory explanation about why she had not done the training on Adult Protection procedures nor why she had not started her NVQ4 training – a requirement which will be needed by her by the end of 2004. None of her staff had NVQ2 and 50% of them will need that level of training by the end of 2004.

35. . On the question of notification of conviction and the hand-written letter of 20.02.03, the Appellant said she could not remember where she was when she wrote it or who photocopied it and posted it. She then said that she must have posted it.

36. . Finally the Appellant in her letter of appeal of 9^th May 2003 had complained about Katarina Djordjevic. She wrote:

    "What concerns me more is the totally unprofessional stance taken by Katarina Djordjevic, my Inspector at the time, and her vindictive attitude and behaviour toward personally."

    "Quite simply, I was made to feel undermined in many aspects of my management by Ms Djordjevic and would question her motives since most of her concerns were usually surrounding whether or not I actually resided at Church View on a regular basis, rather than around the welfare and well-being of the residents."

    The Appellant revised her opinion in evidence to say that she "questioned her [Ms Djordjevic's] motives".

    These points were not put to Ms Djordjevic in cross-examination. In reply to the Tribunal's questions Mr Page stated that there had been no other complaints about Ms Djordjevic. We conclude that there is no substance to these allegations made by the Appellant.

37. . We find that the Appellant was not a convincing witness. As indicated above we did not believe her on certain issues and she was inclined to answer that she 'didn't know' or 'could not remember' on matters of importance.

    THE LAW

38. . Previously, Section 9 of the Registered Homes Act 1984 applied. Section 9(1) provided that:

    "The Registration authority may refuse to register an applicant for registration in respect of a residential care home if they are satisfied –

    (a) that he or any other person concerned or intended to be concerned in carrying on the home is not a fit person to be concerned in carrying on a residential home."

    There was no definition of a "fit person".

    However we were directed to a number of cases decided under the Registered Homes Act concerning the issue and standard of fitness which were helpful and continue to provide guidance.

39. . On 1^st April 2002, the new regime was brought into force. Section 14(1) of the Care Standards Act 2000 provides as follows:

    "The registration authority may at any time cancel the registration of a person in respect of an establishment or agency –

    …

    (d) on any ground specified by regulations."

    Section 22(2)(a) of the 2000 Act provides that "Regulations may make provision as to the persons who are fit to carry on or manage an establishment or agency."

40. . The Care Homes Regulations 2001 were made under that subsection. Regulation 7 provides as follows:

    "Fitness of registered provider

    (1) A person shall not carry on a care home unless he is fit to do so.

    (2) A person is not fit to carry on a care home unless the person –

    (a) is an individual who carries on the care home –

    (i) otherwise than in partnership with others, and he satisfies the requirements set out in paragraph (3);

    (3) The requirements are that –

    (a) he is of integrity and good character…"

    Regulation 9 imposes the same requirements in relation to the fitness of a registered manager.

41. . Regulation 11 provides as follows:

    "Notification of offences

    Where the registered person or the responsible individual is convicted of any criminal offence, whether in England and Wales or elsewhere, he shall forthwith give notice in writing to the Commission of –

    (a) the date and place of the conviction;

    (b) the offence of which he was convicted; and

    (c) the penalty imposed on him in respect of the offence."

    FINDINGS

42. . The Appellant stands convicted of a serious offence of falsifying a document to a government department.

43. . Six members of her staff were convicted of Social Security fraud.

44. . The Appellant says she only knew that one member of staff, Doreen Derbyshire, was on benefit. However we accept on the balance of probabilities that she knew that some other members of staff were on benefits. We draw this conclusion as she had signed forms for staff for their entitlement for various agencies. In addition it is a small home with regular staff and one member of staff was her son's partner later his wife.

45. . Having read a number of cases under the old law regarding the issue of fitness, and looked at the new Act's definition of a person of "integrity and good character", we consider that the Appellant was not honest with the registering authority. We appreciate that as the Court proceedings and conviction drew nearer she was anxious at the prospect of cancellation. But knowing that she faced a conviction for serious dishonesty she was not straightforward and direct with the NCSC. On the balance of probabilities we find that the hand-written letter dated 20.02.03 was not sent, by the Appellant, on that date. She therefore failed to inform the Respondents of her conviction.

46. . It was put to us that a conviction, of itself, does not necessarily mean that a person must have their registration cancelled. This is probably the right approach and we consider that the Respondents did look at the whole picture in making their decision. Having said that they were faced with registered owner and manager who had received a conviction for a serious fraud arising from a false statement to a Government department. The Respondents are entitled to expect very high standards of integrity and honesty from a home owner and /or manager. The fact of the Appellant's conviction on such a charge and which involved her staff at the home, means that she has lost her good character and has fallen short of the standards expected.

47. . The vulnerable residents at the home have not been adversely affected by the conviction. We note that the Respondents considered using an emergency closing procedure but decided, after a risk assessment, that this would not be justified.

48. . Having considered the law relating to the question of fitness and listened and read all the evidence we conclude that the Appellant is not a fit person to be a registered proprietor and manager of a Residential Care Home.

49. . Having said that, we also acknowledge that seven vulnerable and elderly residents are currently in the home, which has been allowed to continue in operation for nearly a year.

    We therefore suggest that the Respondent and Appellant discuss the arrangements for the transfer of the residents to allow this to happen in such a way as to minimise the disruption to their lives.

    Maureen Roberts – Chair

    Margaret Halstead

    Michael Jobbins

    Date: 19 February 2004