England and Wales Care Standards Tribunal

 


Simpson v Commission for Social Care Inspection [2004] UKCST 255(EA) (27 April 2004)

Michael Raoul Simpson

Appellant

and

Commission for Social Care Inspection

(Formerly the National Care Standards Commission)

Respondent

Application Number: [2004]255.EA

Before:

Mrs Meleri Tudur (Chair)

Ms Susan Gilhespie

Mr Mike Jobbins

On 26^th April 2004

The Appellant appeals under Section 21 of the Care Standards Act 2000 against the refusal of the Commission for Social Care Inspection ("CSCI") (formerly the National Care Standards Commission) to register him as manager of a care home, pursuant to Regulation 9 of the Care Homes Regulations 2001.

The Appellant appeared in person and the Respondent was represented by Mr Michael Pearce, Counsel instructed by Hill Dickinson, Solicitors.

Facts

1. The Appellant, Michael Raoul Simpson was born on the 10^th January 1948 and on the 12^th May 2003, was appointed as manager of the Catterall House Residential Home, a care home in Catterall, Lancashire.
2. On the 26th June 2003, the Appellant made an application for registration to the National Care Standards Commission ("NCSC") as a manager of a care home for older people, pursuant to section 12 of the Care Standards Act 2000.
3. At a meeting with the lead inspector, Ms J Hughes, on the 19^th May 2003, the Appellant had been informed that he would be required to submit an application for registration and further information about himself to the NCSC, including an enhanced Criminal Records Bureau ("CRB") disclosure, identifying any previous convictions. The Appellant contacted the CRB in the presence of the inspector to request an application form but did not mention during the course of the conversation that he had any previous convictions.
4. The application for Registration Form R3 requests personal information and details about the applicant. Section 3 is headed "Disclosure and Declarations. 3.1 states as follows:

" 3.1 NCSC Disclosure Document – Criminal Convictions, Investigations and Disciplinary Action

You are required to declare any convictions, cautions and bindovers associated with social and health care in establishments/agencies which are covered by the Rehabilitation of Offenders Act (Exceptions Orders) 1975, which for the purposes of considering an applicant for registration includes any 'spent convictions'.

A criminal conviction will not necessarily lead to a refusal of your application. However, failure to disclose any conviction could lead to either your application being refused or, if your application is successful, cancellation of your registration if it is subsequently learnt that you have a criminal conviction."

Under this paragraph, the appellant provided his full name and address and date of birth. The next sentence asked:

"Have you ever been convicted of a criminal offence, cautioned or bound over by any court? Yes/No

If Yes, please give details:"

To this question, the Appellant replied "Yes" and submitted in answer to the request for details "25 years ago. Driving offence, driving with no insurance."

5. On the 14^th August 2003, the NCSC received from the CRB a copy of the Appellant's enhanced disclosure. The form included details of 14 sets of previous convictions, making a total of 25 offences over a period of 20 years from 1964 to 1984. The offences included several convictions for theft; one embezzlement (including attempts); obtaining property by deception and theft by an employee. The Appellant had received six sentences of imprisonment, the longest being for two years; 1 suspended sentence (which was breached); three probation orders; one community sentence and one period of detention as a juvenile.
6. On the 19^th August, Ms Hughes, the lead inspector, met with the Appellant at the Home to discuss the CRB disclosure and the Appellant informed her that neither his present nor his former employers knew about the previous convictions. He explained to her that he had tried to "brush them under the carpet" in the hope that they would go away. Ms Hughes suggested to him two possible options, either to withdraw his application or to pursue his application and appeal if he was refused. She asked him to inform his current employer of the situation.
7. On the 28th August 2003, the Appellant had a further meeting with the lead inspector. He was warned about the seriousness of his position, particularly about the fact that he had failed to disclose his previous convictions in his application. The Appellant's only explanation for his conduct was that he had blanked out his early life and was ashamed of his conduct then and he acknowledged that he had made a serious error of judgment in not disclosing the information on his application form. He had decided to proceed with his application and a date was arranged for the "fit person" interview, which was the 19^th September 2003. The Appellant informed the inspector that he had still not informed his employer about the convictions. During the intervening period, the inspector obtained reference from his referees and a medical reference from the Appellant's General Practitioner.
8. On the 18^th September 2003, the Appellant wrote a letter explaining his failure to disclose the convictions to the NCSC. In it he apologised for not being "entirely honest" when filling in his application form and said that he had blanked out his early life.
9. On the 24th September 2003, the NCSC issued a Notice of Proposal to refuse registration. The Notice stated that the reasons for proposing to refuse registration were that on applying for a CRB disclosure, Mr Simpson gave no indication of 14 past criminal convictions, which was seen as provision of incomplete information and that he gave no indication on his application form of the convictions and signed to declare that the information was accurate, also choosing not to inform his employer immediately when the matters came to light. Both of these were regarded as issues which compromised the Appellant's integrity and honesty which led the NCSC to the decision that the decision to refuse registration was supported. The Appellant made written submissions in defence of the notice. In the submissions, he again claimed that he had blanked out his early life, but acknowledged that he had not completed the form correctly and that it was misleading.
10. On the 9th December 2003, the North West and West Midlands Regional Director considered the Appellant's submissions. He confirmed the decision to refuse to register, and on the 15th December 2003, a Notice of Refusal of Registration was sent to the Appellant. He appealed against the decision.
11. In the appeal, the burden of proof lies with the Respondent to show that the Appellant is an unfit person to be registered.
12. At a hearing on the 26th April 2004, the Respondent submitted that on the basis of the information provided, the Appellant was not a fit and proper person, as required by Regulation 9 of the Care Standards Regulations to be registered as manager of a care home because of the number and nature of his previous convictions and because his failure to disclose in his application form had compromised his integrity and his honesty.
13. Ms Jennifer Hughes gave oral evidence, confirming the contents of her written statement made on the 30^th March 2004. She had first met the Appellant shortly after he was first appointed as manager of the home, in May 2003. She had noted at the time of his appointment his lack of experience in a management capacity, but noted that he appeared to understand the issues that Catterall House needed to address to comply with the necessary standards. Ms Hughes had been extremely surprised to note the disclosure form the CRB revealing the Appellant's previous convictions. It was clear from the reference of his previous employer that he had not disclosed the convictions to them either. Ms Hughes expressed that her concern was twofold: she was concerned that the Appellant had failed to disclose the convictions and she was concerned about the nature of the convictions because they were for theft, larceny, obtaining property by deception and other offences of dishonesty, and she was aware that the manager of a care home has access to the finances of very vulnerable service users. At the meeting on the 19^th august 2003, Ms Hughes had explained to the Appellant that he must prove to the NCSC that he is a person of integrity and therefore a "fit person" to manage a care home. She told him that the fact that he had failed to declare on his application form that he had been convicted of such offences caused her concern as the failure to declare led her to question his honesty and his integrity. She told the Appellant at that meeting that he should inform his employers about his convictions. At the end of the meeting, Ms Hughes made a note of the improvements that she had noted at Catterall House since the appellant had taken over the management there. On her next visit to Catterall House, the Appellant informed her that he had not yet informed his employers of his convictions. She conducted a formal "fit person" interview on the 19^th September 2003 with Ms Sue Dale. During the interview, all of the Appellant's responses showed that he had a sound knowledge of appropriate care practices and the policies and procedures required to meet the requirements of the legislation. The Appellant produced a letter dated the 18^th September 2003, in which he apologised for his failure to disclose and explaining that he had sought to "blank out" that period of his life. She explained that her concern was that if the appellant was unable to be honest with the NCSC at the point of making his application, would he be able to be honest if something happened in the future? She confirmed that her only concern in relation to the application was the Appellant's honesty and integrity and that in all other aspects she had no concerns about his application for registration.
14. Ms J Denham gave evidence as the Regulatory Manager for the Commission for Social Care Inspection that she was the Acting Area Manager at the time of the decision to issue a Notice of Proposal to Refuse Registration. The responsibility for the decision lay with her but was informed by Ms J Hughes. She expressed her view that the non-declaration of the convictions cast serious doubt on the Appellant's integrity and honesty. She had not been swayed by the Appellant's assertion that he had blanked out the convictions because she considered it an anomaly that he had seen fit to declare one of the more minor offences. She stated that she had reached the conclusion on the basis of the non-declaration, the nature of the convictions and the failure to disclose to his employers. She also confirmed that the nature of the convictions in the sense that they appeared to escalate in seriousness was also of concern to her. She confirmed that the only area of concern in relation to the application for registration was the issue of integrity and good character, the Appellant having satisfied all other aspects of the regulations.
15. Mr Simpson had submitted to the tribunal a letter dated the 3^rd March 2004. In it he questioned the reason why he had been allowed to continue in his post for almost a year after concerns had been raised about his registration and identified areas where he had made measurable improvements in the running of Catterall House. He expressed his feelings of shame for the offences committed 20 years ago and identified qualifications that he had obtained in the care field to further his career. He expressed his view that he had changed and that this was evidenced by the fact that he had not been convicted of any offences after 1984. At the hearing, he explained that he had been born in Liverpool and had lost his father as a young man and as a result fell in with the wrong crowd, sleeping rough and travelling the country for many years. He informed the tribunal that none of the offences were for violence. In 1984, he had met his wife and step-children and ran his own business for 12 years. His step-children had been to college and were now successful in their chosen fields. He had gone into the care field, obtained qualifications and his assessor's award and had received a letter of support from the family of one of the residents at Catterall House, which he disclosed to the tribunal. He referred to the letter of support that he had received from his employers. In cross-examination, he confirmed the circumstances of the various offences as best he could, although he could not remember the details of some of them. A conviction in Skegness had been following the theft of £5 from the proceeds of sale of a raffle at the Butlins camp where he worked. A conviction in Lancaster was the result of the theft of a watch from a work colleague at a holiday camp in Morecambe. Two offences of obtaining property by deception were the result of cashing cheques, when there were no funds in the bank to honour them and embezzlement of £6000 from his employers in Stirling. He also confirmed that the conviction for driving without insurance arose from his having taken a vehicle without the owner's consent. When asked why he had not disclosed the other offences, the Appellant gave evidence that the form asked for details of "a criminal offence" rather than "criminal offences" and that he had therefore only disclosed one offence. He claimed that if the form had stated the word "offences" then he would have listed them all. He confirmed what had been said in his letter of the 18^th September 2003, which was that he had wanted to forget that period of time, that he wanted to "blank it out" in the sense of sweeping the convictions under the carpet. He didn't want the convictions to stand in the way of his job as a manager but that none of his three most recent employers had made any enquiries of him about any previous convictions. He was aware that there were two types of CRB checks and that his hope had been that his convictions would not be disclosed. He accepted that his completion of that part of the form had been deceitful in only mentioning one conviction.
16. Mr Pearce submitted that the only issue for the tribunal is whether the Appellant is a man of "integrity and good character" as required by Regulation 9 of the Care Homes Regulations 2001. He referred to the case of National Care Standards Commission and Jones, which was an appeal to the High Court of a previous decision by the tribunal where an appeal against refusal to register had been allowed. The decision, made by Sullivan J. on the 21^st April 2004, was at the time of the hearing, available only in its short form, a full transcript of the judgement had not yet been made available. The resume of the judgement indicted that the definition of fitness is contained in Regulation 9 and must be applied by the tribunal. In the CSCI submission, the appellant was neither of good character nor a man of integrity. He had a history of serious offences over a significant period and on the basis that these were too serious and over too long a time and had relevance to the situation in the home for the appellant to be described as a man of good character despite the fact that 20 years had elapsed since the last conviction. He submitted that the case in respect of the appellant's integrity was even stronger: he had admitted to having lied in the application, he was therefore not honest when he signed the declaration and since then he had offered three different explanations as to why he had done so. He claimed that he had blanked them out – not in the sense of forgetting them, but in the sense of sweeping them under the carpet. At the hearing, he offered a different explanation in that the form requested only one conviction. Mr Pearce therefore submitted that the appellant could not be described as a man of integrity.
17. Mr Simpson submitted to the tribunal that they should consider the evidence that he had changed during the last 20 years: he referred to the fact that he had no blemish on his record since 1984; that he had lived a good life and worked hard, attaining relevant qualifications for his chosen field of work and the respect he had earned at Catterall House since he had started working there. He submitted that he would not be responsible for the financial side of the business, handling only small amounts of petty cash every week. He apologised for not declaring his previous convictions and expressed his hope that the tribunal could look at the wider picture and suggested that they consider the possibility of making his registration conditional and that his position could be kept under review and looked at again in six or twelve months' time.

Tribunal's conclusions with reasons

18. We considered the evidence presented both in the papers and orally at the hearing.

The relevant provisions of Regulation 9 of the Care Homes Regulations 2001 states that:

"(1) A person shall not 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;

(b) having regard to the size of the care home, the statement of purpose and the number and needs of the service users – he has the qualifications ,skills and experience necessary for managing the care home and he is physically and mentally fit to manage the care home and

(c) full and satisfactory information is available in relation to him in respect of the following matters - ….."

The three criteria for fitness are clearly independent of each other and each must be considered on their own merits. If any of the identified criteria are not met then it is mandatory that the registration must fail. The tribunal were informed by the CSCI that the Appellant satisfied all the other aspects of the registration criteria, it is therefore the issue of his integrity and good character that we must consider.

19. We considered the question of the Appellant's integrity. The Appellant did not deny that he had completed the application form incorrectly and agreed in evidence that in mentioning one previous conviction and hoping that the enhanced CRB disclosure would not reveal his convictions, his actions had been "deceitful". We found it ironic that he chose to disclose the driving without insurance without mentioning that the car which he was driving at the time had been stolen. His attempt to explain away the fact that only one offence had been named because of the wording on the form was a final blow to his application. We have concluded that his intention was to mislead the NCSC in the making of his application, and his several explanations as to how this came about have failed to reassure us. We have concluded that the appellant, in failing to disclose his convictions as specifically requested on the application form and to his employers, and in his subsequent attempts to justify that action has seriously compromised his integrity.
20. We considered the question of the Appellant's good character. He has, in his past, a long series of convictions for offences, almost exclusively of dishonesty. He obtained the convictions over a period of 20 years when he was aged between 16 and 36 years. The Appellant has explained the circumstances of his offending, but this is a substantial period of time and cannot be attributed to a short period of reaction to the death of his father. Neither can it be described as a period when he was very young and foolish – a substantial part of the period was during his adulthood when he should have been fully responsible for his own actions.
21. We then considered the nature of the convictions: they were almost exclusively offences of dishonesty and several included an element of breach of trust, being thefts by an employee, embezzlement of an employer, theft of raffle proceeds of sale and opportunistic crimes, removing items of property from dwellings which he visited. It is these elements of the nature of the convictions that concerned us because there would be relevance to the proposed registration as a manager of a care home for older persons who are vulnerable in that situation.
22. We acknowledge that the Appellant has not been convicted of any further offences since 1984 and that he appears to have made changes in his life. Considering the evidence we have, however, we concluded that he could not be described as a man of "good character".
23. In the light of our conclusion that the Appellant is not a man of integrity and good character, there are no conditions which can be placed on the registration to remedy the situation. The decision of the NCSC is therefore confirmed and the appeal dismissed.
24. The decision is the unanimous decision of the tribunal.

Meleri Tudur

Susan Gilhespie

Mike Jobbins

27^th April 2004