England and Wales Care Standards Tribunal

Hillier v Commission for Social Care Inspection [2003] EWCST 0187(NC) (7 February 2005)

NORMAN HILLIER -and- THE COMMISSION FOR SOCIAL CARE INSPECTION [2003] 0187.NC DECISION

On 25, 26 November 2003, 22, 23 January 2004 and 24,25,26 and 27 January 2005 sitting at The Care Standards Tribunal hearing centre, 18 Pocock Street, London

Before:

Mr. I Robertson (Chairman)

Ms B Chatfield

Mrs L Elliot

Ms M McDonald (counsel) instructed by Carol Triplett for the Appellant

Mr. B Sylvester (counsel) instructed by Mills and Reeve for the Respondents

BACKGROUND

The Appellant in this case is Mr. Norman Hillier (DOB 28/5/46). He is an Enrolled Nurse having been admitted to the roll for Nurses for the Mentally ill on 12 May 1981. He was owner / manager of a Residential Home called Ivor House in Leicestershire (at two different addresses) from 1985 until he sold the business in 2000 as it went into liquidation. From 2000 until today he has been employed by Prime Life a large company running over 50 residential establishments covering a range of service users. He initially worked as a senior nurse before being promoted to manage a 20 bedded unit in a 60 bed Home run by the company called Bradgate Park. On 17 August 2002 he was appointed by Prime Life as acting manager of one of their establishments, Brockshill Woodlands in Oadby, Leicestershire. This is a Residential Care Home registered for 26 older people with provision for 5 places for persons suffering dementia, 5 suffering from other mental disorder and 2 with physical disability.

On 16 October 2002 Mr. Hillier applied to the National Care Standards Commission for registration as manager. On 27 January 2003 he undertook a Fit Person interview at the Commission's offices, undertaken by two inspectors Ms Shaw and Mr. Charlton, and was interviewed further on 19 February 2003 by the same inspectors. At that second meeting he was told that their recommendation would be that he be refused registration for two reasons, firstly his performance at the Fit Person interview and secondly issues regarding his running of Ivor House. On 13 March 2003 a Notice of Proposal to Refuse Registration was issued and representations were invited. That Notice cites his performance at the interview and issues found by inspectors on inspection at the Brockshill Woodlands Home on 16 December 2002 and 24 January 2003 as being the basis of refusal. The refusal was on the basis that Mr. Hillier was not a Fit Person under Regulation 9 of the Care Homes Regulations 2001. So far as Ivor House is concerned it was merely cited as being evidence that Mr. Hillier had previous experience and accordingly should have been able to demonstrate an adequate understanding of his role.

The appellant sent in written representations on 14 April 2003 and formal Notice of Refusal was sent by the Commission on 28 May 2003 relying upon the reasons set out in the Notice of Proposal to Refuse Registration. The Appellant appealed to this Tribunal on 6 August 2003 and the final hearing of that Appeal was listed for 25 and 26 November and 1 December 2003.

HISTORY OF PROCEEDINGS

As stated above the matter first came before this Tribunal on 25 November 2003 when evidence was heard over two days from Ms Shaw and her line manager Ms Staines. Unfortunately even though the date of the hearing had been known well in advance Mr. Charlton was not available to give evidence as he was on holiday out of the country. Accordingly the case was adjourned on 26 November 2003 to 22 January 2004 to enable him to give evidence.

Midway through the evidence of Mr. Hillier on 23 January 2004 it became evident that an issue had arisen that was critical to the issue before the Tribunal, namely the death of a Resident JJ on 30 April 2003, due to scalding in a bath in the early hours of the morning. We were told that this death was the subject of a Police and Health and Safety investigation and that an inquest was due shortly. Given that the Commission's case was that Mr. Hillier was not a fit person and that an aspect of that case related to Health and Safety issues it was clearly critical that this issue should also be considered. Accordingly the matter was adjourned until after the inquest. That inquest took place on 23, 24 and 25 August 2004 and produced a verdict (through a jury) of "Accidental death contributed to by negligence". We have been told that this verdict is subject to a judicial review application.

The Commission were given leave to amend their Reasons for Refusal and they added a number of matters related to JJ's death although they did not rely upon the verdict per se in their amended reasons. They also added a number of other issues that had arisen as a result of inspections that had been ongoing during the period of adjournment. The Appellant served an amended position statement in response to the amended grounds and the matter was set down for a further week commencing 24 January 2005. The Tribunal had before it over 800 pages of documentation and both sets of Legal representatives are to be commended for the focused and measured manner in which this case was presented as in the event the oral hearing concluded on 27 January 2005.

LEGAL FRAMEWORK

Regulation 9 of The Care Homes Regulations 2001 states as follows;

(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-

(i) he has the qualifications, skills and experience necessary for managing the care home; and

(ii) he is physically and mentally fit to manage the home; and

(c) full and satisfactory information is available in relation to him in respect of the following matters –

(i) the matters specified in paragraphs 1 to 5 and 7 of schedule 2."

We are pleased to say that it was common ground that the only element of Regulation 9 that was the subject of the proceedings was Mr. Hillier's "qualifications, skills and experience" and frankly in reality the issue actually came down to his skills.

In his opening submissions prepared in November 2003 Mr. Sylvester indicated that the burden of proof lay on the Commission in proving unfitness and indeed opened the case accordingly. This was the accepted position under the Residential Homes Act 1984 which was the regulatory framework for Care Homes prior to the Care Standards Act 2000. By the time this matter came before us in January 2005 however the Court of Appeal in Jones v. Commission for Social Care Inspection [2004] EWCA Civ 1713 (16/12/2004) had the opportunity of considering the question in detail. In this case (in which both Mr. Sylvester and Ms McDonald appeared) the Court of Appeal held that the burden of proof in "refusal cases" under Regulation 9 rested with the Appellant. As Mr. Sylvester in his helpful closing submissions said;

1. The judgment in the Court of Appeal made a number of important points:

   (1) Unlike the RHA 1984 (under which the registration authority was only permitted to refuse registration to an applicant if satisfied that he was not a fit person) the CSA 2000 and, in particular the CH Regs 2001 made there under, are in mandatory terms that, by reg.9, a person shall not manage a care home unless he is fit to do so.

   (2) Reg.9 goes on to provide that a person is not fit to manage a care home unless (a) he is of integrity and good character and (b) having regard to the size of the home, the statement of purpose, and the number and needs of the service users – (i) he has the qualifications, skills and experience necessary for managing the care home [per Brooke L.J. at paras.10-11].

   (3) Hence, "an applicant must demonstrate to the Commission and, if there is an appeal, to the Care Standards Tribunal that he is a fit person before he can be qualified for registration…They are stringent requirements (the explicit obligations set out in Regulation 17 and Schedules 3 and 4 of the 2001 Regulations show why the new scheme attaches such importance to integrity and good character, and the need for a manager to have the requisite qualifications, skills and experience), and it would be absurd if the onus of proof was on the Commission to demonstrate unfitness before it could refuse registration." (para.12)

   The importance of this is really summed up in the short but important judgement of Lord Justice Thomas at paragraph 29

   "I agree that the provisions of the Care Homes Regulations 2001 are very clear in placing the burden on an applicant. It is entirely in the public interest that they should do so. A manager of a care home occupies an important position of trust and must, as my Lord has held, demonstrate that he is fit and proper to hold such a position; any doubts must be resolved against registration. This does not deprive an applicant of earning his living as a nurse or in some other occupation, but prevents him, in the public interest, occupying a position of trust, unless he can demonstrate to the Commission that he is fit and proper to occupy that position"

   The other issue that is relevant in considering the legal framework under which we are to consider this matter is the date that we have to take into account. It is common ground that we have to decide fitness at the date of the hearing.

   EVIDENCE

   As indicated above we had before us over 800 pages of written material contained in one main bundle, three supplemental bundles and an inquest bundle containing statements obtained for the inquest. Ms McDonald objected to our seeing some of these papers but it appeared to us under Rule 22 (1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 that this was all material that we were entitled to see but that the weight attached to the matters contained therein had to be considered in the knowledge that certain statements were contentious and untested by cross examination. We did not accept Ms McDonald's submission that certain statements were not relevant to what we had to consider. We make it clear that no findings have been made based on any uncorroborated statements where that evidence has been countered by live evidence.

   In addition to the written evidence we heard live evidence from Ms Lynn Staines, Area Manager at the Leicestershire and Rutland office of the National Care Standards Commission (now the Commission for Social Care Inspection), Ms Sue Shaw who conducted the Fit Person interview, Mr. Charlton who was the lead inspector for the Home until 2003 and also conducted the Fit Person interview, Ms Kim Cowley who has been lead inspector since 2003, Mr. Hillier, Ms Julie Johnson who is Mr. Hillier's line manager and supervisor for Prime Life Homes and Mr. Peter Van Herrewege who is the Managing Director of Prime Life Homes. We also read a number of testimonials from residents, relatives and staff attesting to Mr. Hillier's competence and caring nature.

   FINDINGS

   As we stated at the outset it is clear that there is no issue about Mr. Hillier's honesty and integrity. He faced some criticism for the manner in which Ivor House changed ownership. We cannot however make any findings about this save to say that Mr. Hillier was clearly in serious financial difficulties and was trying all that he could to extricate himself and keep the home running. Whether he did all that he should in those circumstances is open to question but does not we find impugn his integrity. Equally there is no issue regarding his mental or physical capacities. On the face of it he is suitably qualified to run the home. He is an enrolled nurse and is in the process of completeing his NVQ4 (although we feel given the number of modules he has left that he is being optimistic in suggesting that he will finish this by April as required by the current standards). On the face of it he also has the relevant experience having owned and managed his own home for 15 years and having been Acting Manager at Brockshill Woodlands for two and a half years. The issue really turns around his skills. Does he have the ability to turn his qualifications and experience into the practice of successfully running an efficient, friendly and safe establishment meeting the needs of all its residents? The CSCI say he does not and it is for Mr. Hillier to satisfy us that they are wrong.

   We say from the outset that Mr. Hillier is clearly a very caring individual. We formed a very favourable view of his compassion and sincerity when he gave evidence. He is clearly suited to working with people with difficulties and his skills as a carer are manifest as supported by the testimonials we received and adopt. A good carer cannot necessarily make the transition to a good manager and there is the rub in this case.

   Having heard all the evidence, considered the documentation and heard submissions we feel that the issues in this case fall into six specific areas and we would like to deal with these in turn.

   THE FIT PERSON INTERVIEW

   This is the method used by the Commission to assist in assessing fitness on a reasonably standardised basis. The applicant is invited to an interview. Applicants are asked to complete a questionnaire before the meeting which raises issues about the Regulations and National Minimum Standards and is designed to get applicants thinking about issues and reading up on the relevant legislation and guidance. At the interview that knowledge is tested by reference to standardised issues in a fit person pro forma document used by the inspectors. The inspectors can choose which areas to cover and may adjust this according to the answers given at interview or in the questionnaire.

   Ms Shaw made it clear that this was a very new process at the time of the interview on 27 January 2003 and that the system had been refined over time. It was clear that the interviewers conducted the interview without the benefit of the questionnaire that Mr. Hillier said he had completed and handed in but was not seen by either interviewer or referred to by them at the interview. This is an oversight that received considerable criticism from Ms McDonald but in our view in the context of the interview made no difference whatsoever. Mr. Hillier did appallingly at the interview. We have seen the completed pro forma and the superficiality of his answers is really very worrying. When Mr. Hillier gave evidence it became apparent why. Despite the fact that he had been acting manager for 7 months, had apparently completed the questionnaire which asked for knowledge of the National Minimum Standards and Regulations and was part of a large organisation with training programmes, supervision and line management, he attended the interview without having read the Regulations or National Minimum Standards.

   Mr. Hillier accepted in evidence that his answers at the Fit Person interview were poor, although we were a little disturbed that he was still reluctant to accept fully the very poor level of understanding displayed. We have no doubt at all that the Commission were right to refuse registration on the basis of that interview alone. We have to say also that we were very disturbed that after 7 months with Prime Life the senior managers had not picked up on the really very poor level of understanding shown and had done nothing to correct this or prepare him for the interview. We were also concerned by the attitude of Mr. Van Herrewege in particular in refusing to accept the shortfalls identified and instead blaming the Commission and starting on a course of confrontation with the Commission that reflects badly upon him. If Prime Life had accepted the legitimate concerns of the Commission at the outset and tailored supervision and training for Mr. Hillier to make good the defects then we may not be in the position we are today. What Mr. Hillier needed were "Critical Friends" instead what he got were "uncritical friends" and this ultimately has done him a disservice.

   It is of course not sufficient to say that the Commission were correct in their initial decision. We have a duty to consider fitness today two years on. That means we have to review Mr. Hillier's performance in situ over those two years. This is what the bulk of the documentation dealt with. The first issue that we have to tackle is the death of JJ.

   DEATH OF JJ

   JJ (dob 12/3/20) died at around 3.30 am on 30 April 2003. He was found fully clothed in a bath full of scalding water by two night care staff. He was taken from the bath by the staff who took him to his bedroom and put him on his bed. They then called Mr. Hillier at home. He arrived at the home at 4.30 am, looked at JJ, decided that he was dead and attempted to call the Prime Life doctor. The doctor eventually arrived and pronounced death at 6.02am at which point he called the Police. At no point did the staff or Mr. Hillier call the emergency services before this. The Commission submit that this failure renders Mr Hillier unfit per se as it demonstrates his inability to understand the broader issues relating to his role as care manager and to act appropriately in an emergency.

   They point to the fact that in response to questioning by the Tribunal Mr. Hillier still seemed not to have grasped the necessity to call the Police given this was an unexplained death, that could have been suspicious, although we accept that it was in the event a tragic accident. We agree that failure to call the emergency services was a grave oversight but does not in our view render him unfit per se. It is rather illustrative of Mr. Hillier's reactive response to issues. This is a theme that has emerged time and time again in the papers and as the evidence has been heard. Mr. Hillier used the word "hindsight" on innumerable occasions when giving evidence and this sums up his failings. He understands that things need correcting when they are pointed out to him but he cannot foresee the problems in advance thereby preventing the problem in the first place.

   This is demonstrated by the other aspect of JJ's death that causes us concern. A risk assessment for JJ was carried out on 27 November 2002 which states as follows;

   "RISK IDENTIFIED

   As JJ is partially sighted in only one eye, he is a risk from scolding (sic) himself if left unsupervised in bathroom and bedroom.

   AIM/GOAL

   To prevent JJ from bathing or washing himself without supervision at all times to prevent from scolding (sic) himself

   ACTION

   All staff to supervise when using hot water in sink or bath. All staff to test water before JJ uses sink or bath. All staff to make sure temperature of water is below 40 Centigrade."

   We pause here to note that it was accepted by Mr. Hillier in evidence that prior to JJ's death there were no thermometers in the bathrooms.

   The Risk assessment continues;

   "27/11/02 – JJ is at risk from scolding (sic) and should not be left when washing or bathing. As he is at risk from scolding, will review in a months time

   23/3/03 – (entry signed by Mr. Hillier) No change in risk will review in one month.

   27/4/03 – (entry signed by Mr. Hillier) No change in risk at this time."

   Since the original risk assessment a number of matters had changed. JJ had become more difficult and his behaviour more unpredictable. He was ambulant and had been found wandering. A Community Psychiatric Nurse, Mr Davis had been asked to assess JJ on 20 November 2002. His view was that JJ had cognitive impairment of mild to moderate severity. He stated that this was probably caused by dementia of some kind. He kept JJ under review and reported his views to Mr. Hillier.

   At an inspection on 14, 19 and 28 March 2003 Mr. Charlton pointed out to Mr. Hillier that water was running out of the taps at 51 centigrade against the minimum standard of 43 centigrade. A great deal of our time has been spent listening to arguments as to whether this tap temperature was pointed out in the context of the need to keep the temperature in the boiler above 60 centigrade to prevent Legionella. Mr. Van Herrewege in particular was very exercised by this. We find however that this is demonstrative of the breakdown in relationships at this point. If there is a risk assessment that someone is in danger of scalding and the water temperature at the tap enhances that risk then any sensible person would take account of that and the changes in the person's behaviour, and reflect it in an amended risk assessment. Instead Mr. Hillier recorded that nothing in the risk assessment had changed.

   It is notable that Thermostatic Mixing Valves (TMV) were installed on baths and showers after JJs death. Mr. Hillier was well aware of the value of these as he had them in Ivor House. Yet at no point did he enquire with Prime Life about fitting them in the context of risk assessment, nor did he consider the proximity of a bathroom to JJs bedroom, the ultimate site of his sad demise. Instead as stated above he recorded that there was no change. We find that the process used to evaluate risk was fundamentally flawed and the recording of the same inadequate. The fault for this lies squarely at Mr. Hillier's door.

   MEDICATION

   Issues regarding medication were raised during the December 2002 inspection. A requirement was included that policies and procedures be put in place for receipt of incoming medication. (1 of 28 requirements imposed). In March 2003 a requirement was made that a pharmacist's approval be needed for the Home's medication policies and procedures (one of 27 requirements). In the October 2003 inspection a requirement was added to return unused medication to the pharmacist and train staff in the administration of medication. On 28 October 2003 an Immediate Requirement Notice was raised by Ms Cowley as medication had been signed for but not given. On 7 December 11 2003 pots of pre-dispensed medication were found left on a tray unattended in the unlocked office. Ms Cowley issued an Immediate Requirement Notice in respect of this. On the March 2004 inspection there was a discrepancy between the recorded dosage of Temazepan dispensed and the actual number of tablets remaining.

   We fully accept that no further issues have been raised in respect of medication since this point and that a visiting pharmacist has expressed his satisfaction with systems now in place. Also if looked at in isolation the issues appear to have been dealt with. We cannot however, look at this issue in isolation. These instances coupled with the matters set out below, reveal an inability to give sufficient leadership to staff, priority to good administration and understanding of the broader picture necessary to the proper management of a Care Home

   HEALTH AND SAFETY

   This issue arises again and again on inspection on no less than five occasions. Fire doors are reported to be wedged open. COSHH materials are left accessible to residents on at least two occasions, one of which led to Ms Cowley raising an Immediate Requirement Notice on 4 March 2004. These are not in themselves issues that would lead to immediate suspension of Registration, although we are aware of deaths caused by ingestion of COSHH products, or through fires caused by non compliance with fire regulations. This Tribunal has seen numerous inspection reports where such issues are raised even in the best run Homes, but once again what they do show is a lack of process, forethought and supervision of staff. In evidence Mr. Hillier and Mr. Van Herrewege tried to minimise these issues but this is simply not good enough.

   Another Health and Safety issue that should have been to the forefront of Mr. Hillier's mind in the light of his experience with JJ was that of the risk of scalding. On 9 September 2004 Ms Cowley found two radiators to be hot. One in an en suite bathroom was at 61 centigrade. Mr. Hillier in his evidence stated that the resident "kept fiddling with it". Mr. Hillier also confirmed that this was a resident who was capable of using the toilet in her en suite bathroom unaided. We do not know whether Mr. Hillier realised the import of what he said. A dangerously hot radiator was in a resident's room. He knew about it but did nothing until it was pointed out to him. This inspection was 18 months after JJ's death but only a month after his inquest. Yet Mr. Hillier still had not taken on board risks and consequences.

   PAPER WORK

   We were very impressed by the evidence of Kim Cowley the current lead inspector for Brockshill Woodlands. She appeared to us to be a very experienced and measured inspector. Even Mr. Van Herrewege paid testimony to her professionalism. She also inspects 4 other Prime Life homes and had nothing but praise for them. She was particularly complimentary about the paperwork that is produced centrally by Prime Life and used in all its other Homes. She compared and contrasted that paperwork with what she found at Brockshill Woodlands. Again and again through the inspection reports there are issues about failings in the recordings of care plans, staff supervision records and risk assessments. We highlight two here because these are the most recent after Mr. Hillier had been running the home for two years and which led Ms Cowley to issue Immediate Requirement Notices. These were issued in 28/10/03 and 16/12/04, compared with none at all in the other establishments she visited during this period.

   "11/11/04 – accident book inspected. Entry made 22/9/04 re bruises noticed on service user DS by staff member X. No further record made in case file or anywhere. Mr. Hillier said X had reported this issue to him verbally as well. No VA [vulnerable adult] procedure followed or any other investigation recorded"

   It goes without saying that bruises on a vulnerable person should always be investigated and the conclusions of that investigation carefully recorded. What is notable here is that this was not done again within a month of JJ's inquest when one would have expected Mr. Hillier to be hyper vigilant.

   "16/12/04 – Records relating to a consultant psychiatrist's visit to service user DS were not in place. The acting manager accepted that a consultant had visited in October 2004 but no record had been made of the visit or the outcome. Also visit not followed up by staff as requested by consultant"

   This issue came to light as a result of a complaint by DS's daughter amidst her fears that a place at a nursing home might be lost because of the inaction of staff. This was linked to a further complaint about lack of information following a visit by the District Nurse on 9 December 2004 who was unable to undertake an assessment of the resident because of a lack of records at the home. The records were sparse and inadequate.

   The complaint was upheld by Ms Cowley, who nevertheless noted on a visit on 16 December 2004 that record keeping had improved. Yet again however action was taken after the event. Failure to record basic health information is such a fundamental matter that after 2 ½ years in charge Mr. Hillier has no excuses.

   RESPECT FOR DIGNITY

   In many ways the most critical aspect of running a residential home relates to the ability to ensure the dignity of the Residents (or service users as the current argot would have it). We have often heard that the first impression of a home is its smell. Tidiness and cleanliness speak volumes for the efficiency of the home. Equally the condition of the residents, the appearance of their clothing, their personal hygiene and the attention to the appearance of their private spaces, is indicative of a well run home. We note that once again a frequent trend in inspection reports is the necessity to point out the need to change soiled equipment, replace smelly carpets etc. In the early inspection reports odour control was an issue in reports following inspections in both December 2002 and March 2003.

   It is also noted in the report for October 2003 :

   "that the carpet in room 8 was badly stained and odorous. There was an odour in a bedroom and corridor area, and a small foul stain on a bedroom wall".

   When pointed out the situation was remedied. But again this begs the question why did the defects need pointing out. When dealing with elderly people who often suffer from incontinence, odour control is a priority to maintain dignity. Systems should be in place to respond to accidents and areas of difficulty. The reports once more highlight that these issues were inadequately addressed in the home.

   We noted in particular two instances raised by Ms Cowley, again significantly within the past four months. The first related to D S again, who had been the subject of the complaint outlined above by her daughter. Another element of that complaint was that a) her personal hygiene had been neglected and b) her teeth uncleaned. She had a full set of her own teeth of which she was particularly proud.

   Ms Cowley found the first complaint unproved as D S was well turned out when she visited although Mr. Hillier accepted that there had been problems in the past. Upon inspection of her bedroom her toothbrush however was found to be hard and dry and patently unused. It was clear that her teeth were not being cleaned. Mr. Hillier blamed night staff but this is not good enough, he should have ensured that systems were in place to stop something like this occurring.

   The second issue Ms Cowley talked poignantly about was the inspection in September 2004. She saw three sets of spectacles lined up in the bathroom next to bedroom 5. It was clear that residents had been taken to the bathroom and then taken back minus their glasses. Ms McDonald in cross examination indicated that she felt that this was rather a minor matter to raise as a Requirement. Ms Cowley indicated that she did not see this as minor at all as it went to the heart of the dignity of users. She asked how residents, possibly already confused and unable to articulate concerns, would feel at being led away unable to see and possibly unable to articulate their helplessness. Mr. Hillier reacted when the spectacles were pointed out to him, by returning them but again seemed to fail to comprehend firstly the impact upon the residents and secondly how it was his responsibility to ensure issues like this did not arise.

   We have concentrated on these more recent issues as we would have expected 30 months or so after his appointment and with intensive support and supervision that few problems would remain. The fact that very serious issues continue to be raised show beyond doubt that Mr. Hillier despite his numerous positive qualities does not have the necessary skills to be a Home Manager. Perhaps Mr. Van Herrewege's comment that he would not appoint him as a manager of a larger home where he had little hands on involvement with residents is indicative of a greater awareness of Mr. Hillier's shortcomings than he is prepared to admit.

   We were asked by Ms McDonald to consider allowing the appeal with conditions attached relating to supervision and/or training. Nothing that we have heard from Ms Johnson or Mr. Van Herrewege gives us confidence that they will supervise Mr. Hillier in a manner that will enable him to develop the necessary skills. They have had every opportunity to do so to date and in their evidence rather than accepting the patent deficiencies in his skills as a manager chose to try to defend the indefensible and cast blame in all directions rather than where it belonged with them and Mr. Hillier. We feel that the issue rests with Mr. Hillier and his own capacities, and we cannot see that anything, not even NVQ training, can make up for these basic failings.

   We hope that Mr. Hillier will continue his career as a carer within Prime Life. He is properly highly regarded for his personal qualities and he can be redeployed into a position which makes best use of these.

   DECISION

   Accordingly, we reject the appeal in its entirety and uphold the decision to refuse registration.

   This is the unanimous decision of the Tribunal

   Ian Robertson (Chairman)

   Bez Chatfield

   Linda Elliot

   7 February 2005