England and Wales Care Standards Tribunal

 


BRIAN WILLIAM WILKINSON -v- NATIONAL CARE STANDARDS COMMISSION [2003]231.EA
Miss Helen Clarke, Chairman Mr David Allman Mr Graham Harper

On February 6th 2004 at Blackpool County Court

Proceedings

1. This hearing is from an appeal made on September 30th 2003 by Brian William Wilkinson (the Appellant) against the refusal of the National Care Standards Commission (the Respondent) on September 15th 2003 to grant the Appellant registration as the manager of the Care Home known as Cleveleys Park, 2 Stockdale Way, Cleveleys, Blackpool, Lancashire FY5 2AP (Cleveleys Park).
2. The Respondent initially challenged the Appellant's appeal on the grounds that the Appeal was lodged more than 28 days after service on the Appellant of the notice of the decision made by the National Care Standards Commission dated August 26th 2003 and therefore it was claimed that the appeal was time barred.

His Honour Judge David Pearl considered this and other issues at the direction hearings heard on November 21st 2003.

3. On the December 4th 2003 a certificate under Regulation 29.3 of the Care Standards Regulations 2001 was issued stating that the Appeal by the Appellant was not lodged more than 28 days after service on him of the notice of the decision and that the Appeal was not time barred.
4. At the Tribunal hearing the Appellant represented himself. The Respondent was represented by Ms Anne Whyte of Counsel instructed by Miss Digiacomo of Hill Dickinson, solicitors, Liverpool.
5. In refusing the registration and opposing the appeal the Respondent submitted

(a) That there were concerns about the conduct of the Appellant when employed by a previous employer, Priory Hospitals Limited as the Appellant had been dismissed for gross misconduct. The Respondent was concerned that the grounds for the dismissal included verbal abuse by the Appellant towards a service user and placing the service user and other members of staff at risk and these were matters that indicated that the Appellant was unsuitable to be registered as a manager at Cleveleys Park.

(b) That the Appellant in his application for registration as the manager of Cleveleys Park gave incomplete and misleading information about the circumstances of his dismissal and that this had seriously compromised the Appellant's integrity. As integrity goes to the very heart of the fitness to be registered as a manager the Respondent was of the view that this matter supported the decision to refuse registration.

6. At the start of the proceedings the Respondent's representative acknowledged and confirmed that no concerns were being raised by the Appellant's ability to manage Cleveleys Park.

Background History

7. The Appellant was born on December 25th 1956, he joined the nursing profession in 1989 and qualified as a registered nurse in 1993, since then he has been employed by the NHS and the private health care sector. Between March 1999 and July 2000 the Appellant was employed initially by Priory Hospitals Limited and subsequently by Westminster Health Care in a unit called Chadwick Lodge.

An allegation was made that the Appellant had used inappropriate language and threatening behavior towards a patient and following an investigation the Appellant was dismissed for gross misconduct. The Appellant then appealed through the internal procedures but the appeal failed, he then made an application to the Employment Tribunal claiming unfair dismissal.

The case was settled through ACAS and a payment of £4,000.00 was made by Westminster Health Care Limited (the successors to Priory Hospital Ltd) to the Appellant.

8. When the Appellant completed his application form for registration as a manager at paragraph 2.10 (page 120 of the Tribunal bundle) in response to the question

"Have you ever been subject to disciplinary action, formal warning, suspension and / or dismissal from a place of employment" the Appellant had written "yes" and then stated "Chadwick Lodge - DISMISSED. Case taken to Tribunal, case won with compensatory damages."

9. Following receipt of this information the Respondent decided that further information should be gathered about the manner of the Appellant's dismissal. The senior inspector, Mrs Diane Ruth Gordon (Mrs Gordon), instructed the inspector with responsibility for Cleveleys Park, Mrs Ruth Lillian Edgington (Mrs Edgington), to gather further information when she conducted the interview with the Appellant.
10. As a result of further investigation, culminating in a letter from the Appellant's previous employers, the Respondent discovered that although the Appellant had been dismissed for gross misconduct, and that he then made a claim against his employer for unfair dismissal the case had never reached the Tribunal but had been settled prior to the hearing.
11. The Respondent regarded the Appellant's initial response as being misleading and that it undermined the integrity and credibility of the Appellant.Mr Allan Jefferson (Mr Jefferson) the National Care Standards Commission North West Regional Director considered the written representations lodged by the Appellant in respect of the proposal to refuse and gave details of his reasons for upholding the refusal in a written report dated August 22nd 2003.

The evidence on behalf of the Respondent

12. The Tribunal received written documentation submitted by both parties and contained in the Tribunal bundle including the written statements from Mrs Gordon and Mrs Edgington, who both gave oral evidence and were cross examined by the Appellant.

It was established during the course of the hearing that the Respondent required the Applicant to complete a fit person questionnaire prior to an interview with two officers of the National Care Standards Commission.

Evidence of Mrs Gordon

13. Mrs Gordon stated that after the Appellant had revealed during his interview that he had been dismissed for gross misconduct she had been concerned to gain further information about the Appellant's dismissal. Mrs Gordon stated "I had expressly asked Mrs Edgington to explore gross misconduct in the interview".

Mrs Gordon stated that when she did discover that the Appellant's Employment Tribunal claim had been settled rather than won she was "very shocked, I felt I had been hoodwinked into believing something."

Mrs Gordon had gained the impression from Mrs Edgington that the Appellant had been reluctant to supply the information concerning his previous employer. An offer by the Appellant to Mrs Edington to obtain further information via the Appellant's solicitor was rejected as Mrs Gordon wanted to find out what had happened from Priory Health Limited.The failure by the Appellant to agree to immediately produce the information gave a negative impression to Mrs Gordon who " interpreted that as a reluctance to provide the detail".

14. Under cross examination by the Appellant Mrs Gordon confirmed that she had never met the Appellant. Mrs Gordon was asked why she did not ask the Appellant directly for further information. Her response was that she was beginning to have doubts about the information the Appellant had supplied and she wanted to find out further detail but considered that the Appellant had already been asked the questions.
15. Mrs Gordon was asked by Tribunal why after she had received a one page letter with a list of bullet points concerning the grounds for the Appellant's gross misconduct she had not asked for further information from Priory Hospitals Limited.Mrs Gordon stated that she was satisfied with the information she had received and in any event she more concerned about the issue of integrity and non-disclosure not just about the misconduct itself.

Mrs Gordon was asked why she had not had a meeting with the Appellant to try to understand the apparent inconsistency between the inspection reports which indicated that the Appellant was a competent manager and her view that the Appellant's integrity had been compromised. Mrs Gordon replied "No, I felt that it should be tested at the representation hearing."

Mrs Gordon was also asked whether in view of the Appellant's dismissal for gross misconduct she had checked with Priory Hospital Ltd, whether as would be anticipated in such a situation the matter had been reported to the Nursing and Midwifery Council. Mrs Gordon could not remember whether she had raised this point with Priory Hospital Ltd.

Mrs Edgington

16. Mrs Ruth Edgington confirmed the details of her signed statement. Mrs Edgington confirmed that a standard set of questions was normally used in the" fitness" interviews.In the Appellant's interview at the conclusion of the questions Mrs Edgington then raised the issue of the dismissal and asked the Appellant to provide further information . The Appellant had explained that there had been an incident in a car when he and other members of staff had been transporting a resident .Mrs Edgington thought the subsequent complaint had arisen because an agency member of staff had been discussing the incident in the car and that this had been overheard and then followed up by another member of staff.

Under cross examination she was asked about the terms of the settlement and she had stated "he said he had been awarded compensation. I understood that he had won the Tribunal hearing.

17. Mrs Edgington was specifically asked about the Appellant's response to the request to get in contact with his previous employer. She stated that the Appellant had stated that he would have preferred that contact was made through his solicitor as he did not want his previous employers to know where he was now working. This information was relayed back to Mrs Gordon who insisted that Mrs Edgington inform the Appellant that he must provide information concerning the previous employer.

When questioned by the Tribunal Mrs Edgington acknowledged that personally she would have at least tried to have contacted the solicitor to see what information could have been obtained before pursuing the employer direct.

Mrs Edgington has been an inspector for Cleveleys Park for many years and she confirmed that the standard of the care home was satisfactory. She was asked about her opinion of the Appellant and said "he is co-operative, he has built the business up. I have no reason to mis-trust him."

Appellant's Evidence

18. The Appellant chose not to give evidence in person. The Tribunal reminded the Appellant that by not giving evidence the Tribunal would have to rely on the papers and information previous submitted and that it would not be appropriate to introduce additional evidence during the Appellant's closing submissions. The Appellant however was quite clear that he was prepared to allow the Tribunal to reach its conclusions based on the information previously submitted,and therefore did not want to give evidence

Submissions by the Respondent

19. The Respondent's representative submitted that the decision by the Appellant not to give evidence meant that it was not possible to test the credibility of the Appellant's claims. It was submitted that the Appellant's failure to recognise the significance of the non-disclosure caused the Respondent concern. It was submitted that for ten months the Respondent had thought there had been an Employment Tribunal finding in favour of the Appellant and that compensation had been paid. The Appellant knew that he had to demonstrate his fitness for registration as the care manager, he had known the answer and could have provided information concerning the unfair dismissal claim but he had chosen not to disclose that information.
20. It was submitted that the Appellant should have known the difference between winning a case and compromising or settling a case. It was submitted that the continued lack of understanding by the Appellant of the concerns raised by the Respondent was relevant. In the Appellant's letter dated August 16th 2003, pages 49 and 50 of the bundle there was no evidence that the Appellant had shown remorse and was willing to apologise for the misrepresentation.

The Appellant's ability and competence to run the home was not an issue. However his failure to recognise the importance of disclosing the appropriate information and not misleading the Respondent meant the Respondent felt that they could not trust him and therefore the decision to refuse the application was justified.

Appellant's Submissions

21. The Appellant submitted that his unfair dismissal claim which had been due to be heard before an Employment Tribunal had been settled through ACAS by solicitors acting on his behalf and that the payment of £4,000 to him by his previous employer had vindicated his claim.

The Appellant also drew attention to the fact that both of the Notices of Proposal to Refuse Registration, the first being dated June 11th 2003( first notice), and the second being dated July 31st 2003 ( second notice), referred to the reasons given by Priory Hospitals Limited for the dismissal of the Appellant for gross misconduct but that there was no reference in either of the notices to the issue of the Appellant's integrity which was subsequently mentioned by Mrs Gordon in her written report and in her witness statement.

The Appellant submitted that as he had been served notice of a proposal to refuse registration under S17of the Care Standards Act 2000 (CSA 2000) the Respondent was bound by S18 (2) (a) of the CSA 2000 which states that the Respondent "shall not determine any matter to which the notice relates until ------ any person on whom the notice was served has made written representations to it concerning the matter"

The Respondent's failure to include any reference to the issue of integrity or the allegation of misleading information in either the first or second notice precluded the Respondent's from adding this issue in at a later stage as the Appellant did not know at the time when he made his written representations that this allegation was to be included.

The Tribunal's Analysis and Findings

22. The Tribunal was conscious that the Appellant's decision not to give oral evidence meant that the Respondent had not been able to test or challenge the Appellant's statements. By contrast the Appellant, though not legally represented at the hearing, had taken the opportunity to cross-examine in person the Respondent's witnesses.

The Court of Appeal in the case of the Secretary of State for Health v C [2003] criticised a Care Standards Tribunal which had failed to consider what inference if any should be drawn from the failure of the claimant to appear before a Tribunal as a witness.

The position in this case is slightly different as the Appellant has been present during the Tribunal and has had the opportunity to test the Respondent's evidence. The Appellant was specifically asked by the Tribunal whether he wished to give evidence and he stated that he did not intend to do so. The Appellant's reason was that he had already set out in his written evidence all the points that he wished to make and he felt that he had nothing further to add.

23. Counsel for the Respondent would clearly have preferred to have had the opportunity to challenge the Appellant's evidence. The Tribunal decided not to ask any questions on the Appellant's evidence.

The Tribunal has taken into account when considering the Appellant's evidence the fact that the Appellant had not given evidence in person. As the Appellant was not legally represented the Tribunal accepts that the Appellant might perceive himself to be at a disadvantage if he gave oral evidence and was the subject to cross examination by the Respondent's representative. The Tribunal therefore has not drawn any adverse inference from the fact that the Appellant has chosen not to give evidence in person.

24. This case is not about the ability of the Appellant to competently manage a care home, it is about the Appellant's integrity which has been questioned as a result of a statement made in the Appellant's original application for registration form.
25. The oral evidence given by Mrs Gordon was somewhat inconsistent notwithstanding that by her own admission she was a "very experienced regulatory officer". Despite this experience the first and second notice sent to the Appellant did not include any reference to the Appellant's integrity and Mrs Gordon had no explanation as to why there had been this omission as she considered integrity to be "a major issue from the outset".

Mrs Gordon in her written statement at paragraph 18 states "I believed that Mr Wilkinson had provided incomplete and misleading information and thereby had compromised his integrity". In her evidence she said that she was very shocked and felt that she had been "hoodwinked".

Somewhat surprisingly Mrs Gordon chose not to make any contact with the appellant and in fact had never met the Appellant face to face until the day of the hearing. Nevertheless Mrs Gordon quickly reached a decision following the fitness interview that she wanted further information concerning his previous employer and rejected the suggestion by Mrs Edgington that this information could be obtained via the Appellant's solicitor.

26. Mrs Gordon stressed that integrity was the fundamental issue and this was emphasised in the last paragraph of her report to Mr Jefferson dated August 5^th 2003. Yet when questioned she conceded that there was no reference in the notices to doubts about the Appellant's integrity or that the Appellant had misled the Respondent.

Mrs Gordon, when questioned by the Tribunal considered that an employer would only dismiss an employee for gross misconduct if there was sufficient weight of evidence to substantiate the claim. Mr Jefferson in his report at page 53 and 54 states "dismissing a member of staff for gross misconduct is a very serious step which an employer would only take if they were properly satisfied by the weight of evidence that was put before them. In the absence of any objective evidence that the incident did not constitute gross misconduct I am bound to conclude that there are reasonable concerns about Mr Wilkinson's handling of the incident."

Mr Jefferson appears to have made the assumption that no employer would make an allegation of gross misconduct unless they had good reason. The Tribunal does not share Mr Jefferson's confidence in all employers. There was no information concerning the disciplinary hearing that took place and this matter was settled prior to any of allegations being tested in the Employment Tribunal. The Respondent chose to rely on the single page letter from the Appellant's previous employer whom the Appellant had sued for unfair dismissal.

Mr Wilkinson, in his written submissions, considered that he had in effect "won" the claim because the matter had been settled by a firm of solicitors acting on his behalf and through the auspices of ACAS and he had received the not insignificant sum of £4,000.00.

It is not the function of this Tribunal to comment on whether the unfair dismissal claim lodged by the Appellant was justified or not as the matter was settled. The Tribunal has been provided with limited information concerning the grounds for the allegation of gross misconduct and no detailed information about the investigation undertaken and internal hearing conducted by the Appellant's previous employer. Faced with such a lack of information the Tribunal is unable to make a finding of fact concerning the allegations of gross misconduct. However the Tribunal accepts that once the Respondent became aware of the allegations the Respondent had no choice but to investigate the matter further.

27. Mrs Edgington, (who unlike Mr Jefferson and Mrs Gordon, had actually spoken to the Appellant) when asked whether she believed the Appellant's account that he had been unfairly dismissed stated that she had no reason not to believe him. She also was under the impression that there had been no formal complaint by the staff in the car with the Appellant at the time of the incident and that initially the incident had not been reported .Some time later an agency member of staff had been discussing the incident and it had been overheard by others within the organization and subsequently the incident was investigated by the management.
28. Mr Jefferson in the concluding paragraph of his report states "In my view, the use of the words" won" and "damages" to describe an voluntary settlement made without admission of liability goes beyond a harmless attempt to put a favourable "gloss" on difficult events and moves into the area of providing incomplete and misleading information".
29. The Tribunal, whilst accepting the word "won" was an unfortunate choice of word by the Appellant does not consider the inappropriate use of the word to be so important that taking into account the overall information about the Appellant it significantly undermines the integrity and trust that the Respondent could place in the Appellant.
30. There have been regular inspections of Cleveleys Park throughout the duration of this appeal process which have concluded that the care in the home is satifactory.In view of the fact that the home was continuing to run in a satisfactory way the Tribunal is surprised that Mrs Gordon, an experienced inspector, did not choose to have a direct face to face meeting with the Appellant to test for her own satisfaction whether the issue of integrity was one that should continue to concern her.

Similarly Mr Jefferson assumed that a single page letter of bullet points from the Appellant's previous employer were correct because they had not received any contrary evidence from the Appellant. Yet Mrs Edgington in her oral evidence and in her handwritten note, (page 43 of the Respondent's bundle), indicated that the incident had been interpreted by others in a different manner.

31. As has been stated in previous cases there is no definition of fitness for the purposes of Part II of the Care Standards Act 2000 or the regulations made under it. Regulation 9 of the Care Homes Regulations 2001 refers to integrity and good character, qualifications, skills and expertise and physical and mental fitness.

The issue for this Tribunal is whether the Appellant's answer to paragraph 2.10 of the application form compromised his integrity and undermined the trust of the Respondent to such an extent that the standard required under regulation 9 was not satisfied.

32. The Appellant in his submission to the Tribunal referred to S17 and S18 of the CSA 2000 which deal with the procedure for any person who is served with a Notice to make written representation to the registration authority concerning any matter which that person wishes to dispute. The Appellant submitted that as the Respondent had not referred to the issue of integrity or misleading representation in either the first or second notice he had not been given the opportunity to make written representation about that particular issue.

The first notice (page 29 on the bundle) does not refer to the Appellant's integrity or any claim that he had misled the Commission. In his written response dated 1st July the Appellant gave a more detailed account of the events that led up to his dismissal from Chadwick Lodge. There is however no reference to his integrity or any concern about his having misled the Respondent because at that time he did not perceive that this was an issue.

It is interesting to note that the letter from the National Care Standards Commission concerning the Appellant's letter of 1st July 2003 appears not to be dated. In view of the very specific dates stated in the letter concerning any further comments it is somewhat surprising that the National Care Standards Commission failed to date that letter.

A further letter dated 1st August 2003 was sent by Mrs Gordon advising of the mistake in the original Notice of Proposal to Refuse Registration and a new Notice was sent on 31st July 2003 and again the main emphasis is on the gross misconduct claim by Priory Hospital Limited. There is a sentence "I am also informed that although you referred the matter to an Employment Tribunal the matter was not heard as you agreed a settlement with Priory Hospital Limited by ACAS without any admission of liability by Priory Hospital Limited. However there is no specific reference to misleading statements or the issue of Mr Wilkinson's integrity, although Mrs Gordon claimed that this would, by implication, be inferred.

The Tribunal does not accept that such an important and fundamental part of the Respondent's grounds for refusing registration should have been left to inference.

33. A report prepared by Mrs Gordon dated 5th August 2003 which does raise as a significant issue Mr Wilkinson's integrity was received by the Appellant on August 9^th 2003. Whilst it is correct that the Appellant still had a further twelve days in which to make a response before Mr Jefferson made his decision the Tribunal is somewhat surprised that the issue of integrity and misrepresentation was not in any of the earlier notices, when according to Mrs Gordon and Mr Jefferson it played such an important part.
34. Having considered all the evidence, both written and oral, the Tribunal has reached the conclusion for reasons previously stated that the Respondent has not established on the balance of probabilities that the Appellant is not a fit person to be registered as care manager .However, the decision to uphold the appeal is based on these specific facts and the Tribunal wishes to stress the need for full disclosure of all relevant information by would be applicants. It is also incumbent on the Respondent to ensure that proper questioning, and where necessary further interviews and information is gathered in a clear coherent and systematic manner and that reports and decisions are based on the facts rather than on assumptions.
35. Having taken all these above matters into account the Tribunal has reached the conclusion that the appeal should be allowed. The Tribunal's decision was unanimous

Signed

Helen Clarke ( Chairman)

David Allman

Graham Harper

Dated 23^rd of February 2004