England and Wales Care Standards Tribunal

Marubbi v National Assembly of Wales [2004] EWCST 495(EW-W) (31 August 2005)

Carolyn Ann Marubbi v National Assembly of Wales [2005] 0495.EA-W Before: Mr Laurence J Bennett (Chairman) Ms Michele Tynan Mr John Hutchinson

The Tribunal convened in Liverpool on 25^th August 2005 to consider the written submissions of both parties. Neither party requested a hearing nor was present.

Appeal

1. Miss Marubbi appeals against the decision made 14^th April 2005 by the National Assembly of Wales to refuse her application for registration as Manager of Ael y Bryn, Ynys, Talsarnau intended to be used as a children's home.

Law

2. Section 12(1) of the Care Standards Act 2000 states:

A person seeking to be registered under this Part shall make an application to the registration authority.

Section 13(2) states:

If the registration authority is satisfied that –

(a) the requirements of regulations under section 22; and

(b) the requirements of any other enactment, which appears, to the registration authority to be relevant,

are being and will continue to be complied with (so far as applicable) in relation to the establishment or agency, it shall grant the application; otherwise it shall refuse it.

3. The relevant regulations under section 22 are the Children's Homes (Wales) Regulations 2002. Paragraph 8 of the Regulations states:

(1) A person is not fit to manage a children's home unless he or she is fit to do so.

(2) A person is not fit to manage a children's home unless –

(a) he or she is of suitable integrity and good character to manage the children's home.

(b) having regard to the size of the children's home, its statement of purpose and the number and needs (including any needs arising from any disability) of the children accommodated there –

(i) he or she has the qualifications, skills and experience necessary to manage the children's home; and

(ii) he or she is physically and mentally fit to manage the children's home; and

(c) full and satisfactory information or documentation is available in relation to him or her –

(i) except where paragraph (3) applies, in respect of each matter specified in paragraphs 1 to 6 of Schedule 2;

Schedule 2 specifies that the following information is required in respect of persons seeking to carry on or manage or work at a children's home:

Proof of identity including a recent photograph.

Not relevant to the issues

Two written references, including a reference from the last employer, if any.

Where a person has previously worked in a position whose duties involved work with children or vulnerable adults, so far as reasonably practicable verification of the reason why the employment or position ended.

Documentary evidence of any relevant qualification.

A full employment history, together with a satisfactory written explanation of any gaps in employment.

Not relevant to the issues

4. This law (although relating to similar provisions of the relevant English Regulations) has been considered by the High Court and the Court of Appeal on appeal from a decision of the Care Standards Tribunal, case references [2004] EWHC 918(Admin) and [2004] EWCA Civ. This established that:

The burden of proof is on the applicant in any appeal to the Care Standards Tribunal to establish fitness for registration.

The requirements and definitions of fitness are defined by statute and are mandatory requirements

The requirement of suitable integrity and good character to "manage the children's home," to which if the answer is negative the statute prescribes that he or she is not fit to manage the children's home, should not be construed as requiring perfection

If the answer is positive, consideration must be given as to whether the applicant has the qualifications, skills and experience necessary to manage the children's home and if positive

Whether he or she is physically and mentally fit to do so.

In summary, each of the relevant provisions of Paragraph 8 of the Regulations is a necessary condition for registration.

Facts

Application for Registration

5. On 30^th April 2004, Miss Marubbi applied to the Care Standards Inspectorate for Wales (CSIW) for registration as a Manager for Little Island's Communities for Children, Children's Home at Ael y Bryn, Ynys, Talsarnau. The application was logged into the Inspectorate's database on 12^th May 2004. Checks, consultations, visits and interviews took place and a Notice of Proposal to Refuse Registration dated 26^th January 2005 was given under section 17(3) of the Care Standards Act 2000 by National Assembly of Wales, the Registration Authority. The Notice referred to the Regulations and gave "grounds in support of this reason" which can be summarised:

a. Sufficient integrity – Regulation 8(2)(a) arising from:

Misleading by failing to disclose reason for termination of employment with Gwynedd County Council with "additionally" submitting misleading information in a National Care Standards Commission application form

Failure to clarify circumstances of termination of employment with Gwynedd County Council at interview

Lack of disclosure of dismissal to subsequent employers

Discrepancy in information following reasons for leaving employment at Messrs Sure Care

Failure to present accurately and discuss matters openly with the Inspectorate

b. Lack of qualification, skills and experience necessary to manage the children's home Regulation8(2)(b)(i)

Qualifications - not yet achieved NVQ Level 4 in accordance with the National Minimum Standards for Children's Homes.

Lack of at least five years experience in accordance with National Minimum Standards for Children's Homes together with lack of demonstrated experience during written test and interview.

Skills – failure to demonstrate comprehensive understanding of legislative regime and role of regulation during interview and written test.

c. Failure to supply full and satisfactory information by Regulation 8(2)(c).

Misleading information supplied relating to previous employment including reasons for leaving, promotion and job status relating to Sure Care and Gwynedd Social Services

Accumulated inaccuracies and misleading information in the application.

6. Following receipt of the Notice, Miss Marubbi made representations to the National Assembly for Wales by the Regional Director CSIW North West Wales. The refusal was confirmed in a "Notice of Decision to Refuse Registration" dated 14^th April 2005. On 16^th May 2005, Miss Marubbi forwarded Notice of Appeal to the Tribunal.

Integrity – Regulation 8(2)(a)

7. In a statement prepared for the Tribunal appeal Ms Louise Bayliss-Chapman, Inspector of the North West region of the Care Standards Inspectorate for Wales sets out why she questioned Miss Marubbi's integrity. Miss Marubbi submitted two C.V's with her application which contained details of her employment history and promotions, including employment with Gwynedd Social Services and the DSS Benefits Agency Medical Service. Details were also included of her work on various boards and employment with Sure Care North Wales. Investigations made by and on behalf of CSIW led to discovery of discrepancies in the information given by Miss Marubbi in relation to promotions, activities and reasons for cessation of employment. When put to Miss Marubbi the erroneous information was explained as an oversight or mistake. In a letter dated 14^th April 2005, Ms Deborah Russell, Regional Director of CSIW referred to these discrepancies and stated: "Further, as registered manager, it is vitally important in the interest of the children you will be responsible for that you have an open and honest relationship with CSIW and that you can be relied on to provide accurate information about the service when required. I also note that there are further inconsistencies between your account of your reasons for leaving Sure Care and that given by your former employer, Mr Kervin."
8. Miss Marubbi wrote on 26^th February 2005 'to whom it may concern' and 1^st August 2005 by way of written submissions to the Tribunal. She made comments regarding the attitude of those who conducted her interviews and enquiries and accepts in both letters that she did not give the information on the application form or mention it at interview because of "genuine mistake" and "oversight on my behalf while at my interview." She apologised about "the major error." There are discrepancies in the two letters regarding the instances to which she refers and further information is given about her employment history. She referred to underlying facts leading to cessation of employment with Gwynedd Social Services.
9. A decision of the Industrial Tribunal case number 48695/81 Folio number 06S/002/041 held on 15^th April and 2^nd June 1992 at Abergele records that: "The applicant claims she was unfairly dismissed by the respondent Local Authority on 17 September 1991. the respondents, on the other hand, resist the claim and allege that the applicant was dismissed on the grounds of gross misconduct" and contains the findings that: "As indicated above we found that the respondents established the reason for dismissal as some reason relating to conduct. We also found that Mr Fitzgerald carried out a thorough investigation based upon the evidence available to him at that time. He had reports from Home Care Organisers, he broached the applicant with their allegations. He suspended the applicant whilst he carried out further investigations, which involved him seeing Nurse Chick to verify a statement by the applicant. He saw Mrs Luther, the source of the original complaint and also considered the time sheets of Mrs Thomas, who gave evidence at the disciplinary hearing. The applicant maintained that she did not get a fair hearing at the disciplinary hearing although she felt (contrary to what her representative suggested) that she did have a fair appeal hearing. We found the disciplinary hearing was fair and the applicant was given a full opportunity to deal with matters that were being put to her, she was represented at that hearing by her union representative. We found that the dismissal was within the band of reasonable responses to the applicant's conduct as was seen by the respondents on the evidence available to them at that time. Accordingly, and not without sympathy for the position the applicant finds herself in today, we must dismiss her application."
10. In an application dated 24^th June 2005 for employment as a Manager of a children's home with the Bryn Melyn Group, the applicant gave details of employment with Gwynedd Social Services between April 1975 and April 1989 stating that the reason for leaving as: "Disagreement with my Area Officer, I was excuse of misuse of Disabled Badge & a time sheet, he suspended me, I took them to a Tribunal and won. I carried on with my nursing job." This contrasts with comments made by Miss Marubbi in a letter to Mrs Williams, Director Gwynedd Social Services dated 22^nd February 2000. "When I was dismissed on Sept 17 1991 by yourselfs, I took it further to an Industrial Tribunals, in Wed 15 April 1992 + Tue 2^nd June 1999 which unfortunately went in your favour. As my solicitor said it could of gone either way (but I have to live with that). Problems where No. 1 some discrepancy in time sheet, No. 2 misuse of orange Badge. That is what I was excused of !! I know I cannot do much about this now, as it was 9 years ago."
11. Miss Marubbi answered a question in a National Care Standards Commission application form which in error accompanied the application for registration. "Have you ever been subject to disciplinary action, formal warning, suspension and/or dismissal from a place of employment? – Answer NO." The form contained a declaration: "I hereby declare that the information detailed above is accurate to the best of my knowledge. I understand that it is an offence knowingly to make a statement which is false or misleading in a material respect in this Application or any of the documents submitted with this form as part of this Application. I understand that a false declaration may lead to refusal of this application." She signed and dated the form 30^th April 2004.
12. In her reasons for appeal Miss Marubbi drew attention to the fact that the underlying events were in 1991 and stated that undue emphasis has been placed upon them.

Qualifications, Skills and Experience – Regulation 8(2)(b)(i)

13. Miss Marubbi has achieved NVQ Level 3 in Childcare. Ms Russell's letter accompanying the Notice of Decision dated 14^th April 2005 stated: "I have considered whether you have the necessary qualification, skills and experience necessary to manager a children's home. Although you do not meet the National Minimum Standards in relation to experience and qualification I note that you are only just short of the 5 years required in NMS 27.3 and that you are working towards obtaining NVQ Level 4 in care. I accept therefore that this would not be a good reason to refuse your application. I am concerned however that both during interview and in your written test you failed to demonstrate a comprehensive understanding of the legislative regime, the role of regulation and the importance of the role of registered manager. I am concerned as to your ability to communicate effectively and accurately. Your written communication skills do not appear to be sufficient to meet the demands of the regulation both in relation to children and staff as evidenced both in your correspondence and in the written test. The transcript of your interview shows that you have failed to demonstrate sound working knowledge of the statutory requirements including both regulations and national minimum standards which should form the framework of your working practices. Whilst I have no doubt that your genuine desire is to provide for the children in your care as best you can you have not been able to provide evidence that would persuade me that you are fully competent to meet the demands placed on a registered manager and at the present time do not meet the high criteria that is expected of such a person."
14. Ms Bayliss-Chapman set out in her statement details of enquiries of Miss Marubbi's employers relating to completion of units of NVQ Level 4 in Care by 17^th November 2004. However, on 23^rd November 2004 Miss Marubbi "explained she hoped to complete the NVQ in 2-3 months." She has undertaken various other courses and qualifications and it is stated that she achieved NVQ Level 3 in Caring for Children and Young People on 15^th September 2004. Ms Bayliss-Chapman stated that CSIW would normally require NVQ Level 4 in Care obtained in a childcare setting and NVQ Level 4 in Management Care by 1^st April 2005. She referred to a requirement for five years experience in a residential childcare setting, two years at senior level and pointed out that Miss Marubbi's relevant experience was around four and a half years.
15. Ms Bayliss-Chapman drew attention to "misrepresentations" in Miss Marubbi's description of her management experience during her earlier career and during her written exercise and interview forming part of the application procedure. She concluded that: "In reviewing both the Fit Person interview and the written exercise, I formed the opinion that Ms Marubbi did not have sufficient knowledge or skills to be considered suitable to become a registered manager."
16. Miss Marubbi's letters refer to her NVQ Level 3 in Childcare and her progress in NVQ Level 4 suggesting that she has "at least five units." She also stated: "I do admit that I do need to brush up on some of the legislation, however, I do understand Care Standards Act and their Regs and my understanding of legislative was weak but it has greatly improved."

A recording and transcript of the interview that took place on 23^rd November 2004 was submitted by the National Assembly with a copy of the written exercise completed by Miss Marubbi on 9^th November 2004.

Regulation 8(2)(c) failure to supply full and satisfactory information

17. Ms Russell stated in her letter dated 14^th April 2005 addressed to Miss Marubbi: "Whilst you may not have intended to deliberately mislead CSIW, I am disappointed that you did not feel able to be open about this matter. Disciplinary matters even those relating to events several years ago must always be discussed with CSIW. I am further concerned that at best you misunderstood the relevance of the incidents to your application to be a registered manager and at worst you tried to mislead CSIW."

Paragraph 8(2)(b)(ii) – Physical and Mental Fitness to Manage

18. Although not mentioned or referred to in the Notice of Proposal to Refuse Registration, Ms Russell's letter of 14^th April 2005 contains: "Finally, I was sorry to read in your letter of 2^nd March 2005 of your poor health of late. Clearly you are not physically fit enough to perform your duties at the present time. I hope that you will make a full recovery but without additional medical reports I am not in position to judge whether these difficulties would have a further bearing on your application for registration. Ms Bayliss-Chapman sets out in her statement: "It was my view at the time of issuing the notice of proposal to refuse registration that due to Miss Marubbi's ongoing medical conditions and previous health history CSIW should monitor new health events as they arose. Since that notice was issued, from the information received from Miss Marubbi as detailed above, it is my opinion that Miss Marubbi needs to satisfy CSIW that she is currently suitably physically fit." A request was made for a medical declaration form.
19. His Honour Judge David Pearl, President of the Tribunal directed on 11^th July 2005 that: "The Appellant provide a current medical reference from a medical practitioner detailing any medical treatment that the Appellant is receiving: any serious physical, emotional or mental illness the Appellant may have; and any prognosis in respect of any current on-going medical conditions. This information shall be used solely for the purposes of the appeal and the information should be sent to the Tribunal by 5^th August 2005." Medical certificates dated 6^th and 14^th July 2005 were submitted to the Tribunal. Ms Bayliss-Chapman's second statement highlights differences between the certificate contents. She concluded: "I cannot presently say whether Miss Marubbi meets the relevant legislative requirements with regard to her medical fitness."
20. Statements were submitted on behalf of the National Assembly from:

Ms Susan Adams, Senior Inspector North West region CSIW describing the fitness interview and written test and commenting upon the grounds for refusal of registration.

Ms Russell, referring to the procedural steps followed in reaching the decision

Mr Jag Dhanak, Human Resources Director of Little Islands Communities for Children (North) Ltd advising that at the time of the statement (1^st August 2005), Miss Marubbi was currently on sick leave and detailing her history with his company.

Tribunal's conclusions with reasons

We have carefully considered the written evidence and submissions presented to the Tribunal and the recording of Miss Marubbi's fitness interview.

Our conclusions are:

a. Regulation 8(2)(a) - The first question we must address is whether the Applicant is of suitable integrity and good character to manage a children's home. Little evidence was available about the children's home and its characteristics, save that it is referred to as one-bedded unit for children with complex needs. The issue which is fundamental is whether Miss Marubbi has satisfied us on a balance of probabilities that she is a person of integrity and good character.

b. We have noted the information given by Miss Marubbi in the application documents, interview and written stages of the application process leading to registration. We have taken account of subsequent investigations and the explanation by Miss Marubbi as to why she gave information and responded to questions in the way she did. It is not disputed that there were inaccuracies, which we accept are appropriately described as misleading. We find that she has been evasive, coloured and designed to confuse the underlying truth of the points covered. We highlight particularly the information she gave about her history of employment with Gwynedd Social Services and role and duties for various employers, such as DSS. We find from the evidence provided that she was in that instance, a medical assistant and not an Area Officer.

c. We accept that Miss Marubbi has found challenging the requests for information in the various media she has been asked to participate. We have considered whether the results could be a produce of her own confusion, misunderstanding or poor memory of events. We note however that the questions were consistent; she was given several opportunities to respond on different occasions to the points and similar erroneous information was given in corresponding and later applications. On balance we conclude that Miss Marubbi has been deliberately evasive in her responses and has sought to hide information so that a false impression resulted. We consider this was not just placing herself in the best light but was a tacit acknowledgement that this information was relevant and important to her application. We consider this demonstrates at the very least, a lack of integrity and character such that she is not fit to manage a children's home within the definitions set out in the Regulations.

d. Having regard to the applicant's requirement to satisfy the Tribunal about her fitness, integrity and good character and our conclusion that Miss Marubbi has not, in accordance with the case law referred to above, this is determinative of the matter. It is not necessary for us to consider the other requirements set out in Paragraphs 8(2)(b) and (c) of the Regulations, however, information has been submitted by the parties and we find it appropriate to make comment on that information.

e. Regulation 8(2)(b)(i) – Qualifications, Skills & Experience – It is not disputed that Miss Marubbi has not achieved NVQ Level 4. She has yet to fulfil experience requirements although near the relevant period. These are matters set out in the National Minimum Standards. Whilst there is discretion, taking into account the information available from the material supplied including CV's, interviews and clarifications, we conclude that she neither has the skills nor knowledge necessary; we are particularly persuaded by her lack of appropriate informed or knowledgeable responses in the written tests and fit person interview. Our own knowledge and experience of the duties required to be undertaken and the necessary qualities of persons appointed to such position indicates that Miss Marubbi is far short of the minimum standards required or acceptable.

f. Regulation 8(2)(b)ii) - Although not part of the reasons for original refusal, issue has been raised as to Miss Marubbi's physical and mental fitness to manage a children's home. CSIW on behalf of the National Assembly has taken the opportunity to make further comments in the light of recent medical certificates. They are unable to reach a conclusion, neither are we. We do not find the certificates satisfactory, there are discrepancies and questions arise. It is not appropriate that we form a conclusion, this is clearly a matter that requires further investigation and consideration.

g. Regulation 8(2)(c) – In the light of the evidence recited and our comments and conclusions above, it is clear in many respects that we find documentation submitted by Miss Marubbi unsatisfactory and not in accordance with the Schedule. There have been failures regarding verification of the reason why previous employment ended, lack of documentary evidence of qualifications and a vague employment history. We do not consider that Miss Marubbi has satisfied requirements in that regard.

h. Our unanimous decision is that Miss Marubbi is not fit to manage a children's home and her appeal against the Refusal of Registration by the National Assembly for Wales is dismissed.

Order

Appeal dismissed.

Mr Laurence J Bennett

(Chairman)

Ms Michele Tynan

Mr John Hutchinson

Date: 31 August 2005