England and Wales Care Standards Tribunal

Chandra & Anor v Commission for Social Care Inspection [2006] EWCST 825(EA) (25 June 2007)

Girish Chandra and Birbala Chandra

Appellants

-v-

The Commission for Social Care Inspection

Respondent

[Kingshaven Care Home, Southsea]

[2006] 825 & 826.EA

[2007] 874 & 875.EA

-Before-

Mr Tony Askham (Nominated Chairman)

Mrs Carole Alford

Mr Michael Flynn

Decision

Heard on

11,12 and 13 June 2007 at The Queens Hotel, Clarence Parade, Osborne Road, Southsea, Portsmouth, Hampshire.

Representation

The Appellants were represented by Ms Campbell of Counsel and the Respondent was represented by Mr Hugh-Jones of Counsel.

Appeal

The Appellants appeal under Section 21 of The Care Standards Act 2000 against two decisions of the Respondent, the first the decision of the Respondent dated 3 October 2006 to adopt the proposal dated 7 June 2006 to impose conditions upon their registration of Kingshaven Care Home at 27 Whitwell Road, Southsea, Portsmouth, P04 02P (the home) and secondly against a decision of the Respondent dated 18 December 2006 to adopt the notice of a proposal dated 6 October 2006 to cancel the registration of the Appellants in respect of the home.

The Evidence heard

On 11 June 2007 we heard the oral evidence of:

Mr Andrew Mark McMullen, the Regulation Manager of the Respondent; Neil Kingman, a Regulatory Inspector of the Respondent; Janette Everitt, a Regulatory Inspector of the Respondent; Wendy Hughes, a Regulation Manager for the Respondent; Pamela Gneid, formerly a part time Care Assistant at Kingshaven.


 


We read the evidence of:

Elizabeth Normanton, a Regulatory Inspector of the Respondent; Sallyanne Turner, a Business Relationship Manager for the Respondent.

On 12 June 2007 we heard the oral evidence of:

Wendy Bligh, a Care Worker at the home;

Anastasia Dick, a Care Worker at the home;

Renu Chandra, the acting Assistant Manager at the home;

Birbala Chandra, the second Appellant.

We commenced hearing the oral evidence of Girish Chandra the first Appellant.

We also read the evidence of:

Busi Mpofu a care worker in the home; and Sicinginkosi Mlala a care worker in the home.

On the 13 June 2007 we completed hearing the evidence of the first appellant.

The findings of the Tribunal on the evidence

1. The evidence presented to us on behalf of the Commission is designed to show that neither of the Appellants was fit to carry on the business of a care home. As a result it was alleged that the establishment was being and has been carried on otherwise than in accordance with Regulation 10(1) of the Care Homes Regulations 2001 (as amended) (the regulations).
2. We were shown substantial evidence of failings of the home to comply with the regulations. Most arose out of inspections carried out by the Respondent. The first of these shown to us was an inspection on 25 November 2003. Seven requirements were listed in the Report of the inspection, two of which were outstanding from a previous inspection. Outstanding requirements were related to insufficient staff recruitment records, and the establishment needing a designated sleep-in facility for relevant staff.
3. A further inspection was carried out on 25 April 2004. The Report of that inspection showed that five requirements were raised, two of which were outstanding. The outstanding requirements were in relation to worn carpeting and lack of staff supervision.
4. A further inspection was carried out on 12 October 2004. The Report of this inspection showed that thirteen requirements were raised with all five requirements from the April 2004 inspection remaining outstanding. Outstanding requirements included issues which were hazardous to service users, namely worn and frayed carpeting, and exposed hot surfaces including radiators and pipes. Due to the outstanding requirements, a requirement in this Report was that the Appellants had to submit details of their accounts and financial business plan.
5. Surprisingly the evidence shows that no responses to the above inspection Reports were ever received from the Appellants. Indeed the first Appellant in his evidence to us accepted that he had taken no efforts to ascertain the outcome of inspections on the home prior to 2005. He told us that this was because he relied on his then registered Manager who had not disclosed the results of the inspections to him. As a result of there being no response to the inspection Reports, a further inspection was made on 7 February 2005. Whilst a new carpet in the hall and stairs had been laid, radiators and pipe work remain exposed despite the timescale for this work to be done having elapsed. The then Manager reported to the Inspector she was not involved in the financial aspects of the home and had no budget to manage. Most of the requirements raised in the inspection of 12 October 2004 were still outstanding.
6. The Respondent was alarmed as the result of their visit and sought a formal meeting at their offices with the two Appellants. The first Appellant appeared and we have seen the notes of that meeting. It was apparent from that meeting that Dr Chandra said that the house was making insufficient income and in fact was making a substantial loss. He sought an extension of the time to meet the requirements by 2005 and asked for copies of the inspection Report of 12 October 2004 as he had clearly not seen it before.
7. There was an announced inspection of the home on 21 July 2005. The Report of this inspection showed of the thirteen requirements raised most were outstanding from previous inspections. A letter detailing the Commission's serious concerns were sent to Dr Chandra on 28 July 2005. He was asked to provide a written response but no response was ever received from him. As a result a further meeting with him was requested. This took place at the Respondent's office on 23 August and again Dr Chandra attended. It was noted that some improvements had been made to the environment but many of the requirements remained outstanding. At that stage Dr Chandra told the Respondent that the Manager had resigned her post and that he was seeking to recruit to the post. We are satisfied from the notes of that meeting and on the evidence that we have heard that Dr Chandra was told in detail the qualifications and experience required for a Manager. He confirmed to the Commission that the financial viability of the home was of concern. Whilst he provided details of the establishment's accounts he stated that it was losing between £6,000 and £7,000 a month. He accepted that the previous Manager had had no knowledge of the relevant legislation governing the operation of the care home but in his evidence to us he denied a statement recorded in the interview that he had no such knowledge.
8. An unannounced inspection was conducted on 3 November 2005. The Report of that inspection showed that ten requirements were raised, nine of which remained outstanding from previous Reports. It was apparent on that inspection that Renu Chandra, whose evidence we have heard, had become the acting Manager of the home on 12 September 2005, but the Respondent had not been notified and was only confirmed in a letter of 9 November 2005. Dr Chandra said he was working full time to look after the care home.
9. The Respondent was notified in January by a concerned caller that there was no manager at the Home. The evidence we heard confirmed that Miss Chandra had been away from immediately after Christmas until the 31 January 2006 without the Respondents being informed. The first Appellant suggested he had telephoned the Respondents in the middle of January once he knew Miss Chandra's return from India would be delayed. There is no evidence of such a call and we do not find it was made. The staff were left for a considerable time without proper supervision and we did not accept the first Appellant's assertions he had been managing the home on a daily basis during that period.
10. On 2 February 2006 there was a visit by the Respondent to the home and the necessity for registering a Manager was discussed with Miss Chandra. She felt she was not ready to take on the role of the Manager and did not know what the first Appellant had in mind. As a consequence, because the Commission rightly in our view were very concerned about the failure to have a registered Manager, a Statutory Requirement Notice was served on the first Appellant on 14 February 2006 stating that he must appoint a suitably qualified and experienced Manager and submit an application to register the person by 28 March 2006. Other matters of concern were discovered during a visit of 2 February 2006. A staff member had been working seventy two hours each week for three weeks, the staff were not receiving supervision, testing the fire alarm system was not occurring and there had been no check on the establishment's electrical wiring despite a repeated requirement to undertake this, and as a result a further Statutory Requirement Notice was served on the first Appellant on 14 February 2006.
11. The Commission then arranged a further meeting with the first Appellant at their offices on 17 March 2006. At that meeting the first Appellant said that Miss Chandra was submitting an application for registration as Manager. The Commission had not received it and the Commission made it clear at the meeting they could not allow the current situation to continue.
12. On 24 April 2006 there was an unannounced inspection. The Report of that inspection showed eleven requirements were raised with five requirements again being outstanding from previous inspection. Of continuing concern was the fact that further staff had been recruited without the necessary POVA or CRB checks despite the Statutory Notice having been served. The establishment's overall rating was "poor". As a result, the Commission decided that it would serve a Notice on the Appellants to impose a condition on the establishment's registration. That condition stated "that no further service users are to be admitted into the home until such time as there is a registered Manager in post and the requirement set out in the inspection Report of 24 April 2006 had been complied with". This Notice was served on 7 June 2006 and it is against that first decision that the first appeal lies to this Tribunal.
13. The application to register Miss Chandra as Manager was received by the Respondent on 20 March 2006. The Commission refused her application on the basis that she was not suitably experienced and did not possess suitable qualifications. We are satisfied on the evidence that we have heard that the first Appellant must have known that would be the situation. Miss Chandra continued to remain the acting Manager of Kingshaven and, although she told us she was now the Deputy Manager, her evidence made it clear that she was effectively carrying out exactly the same role as she had when she was described as the Manager.
14. On 6 September 2006, the Commission received what was an anonymous telephone call from the staff at the home. The staff member declared a number of concerns regarding the management of the home, the reduction of the staff hours and the attitude of management staff. It transpires that the person concerned was Miss Gneid whose evidence we subsequently heard. The effect however of the phone call was to lead to the Respondent to carry out a random unannounced inspection on the morning of 8 September 2006. As a result of that unannounced early morning inspection it was suggested by the Respondent there was only one member of care staff on duty between 08.00hrs and 16.00hrs, that being Miss Chandra. There was a cook on duty at 08.00hrs and a cleaner arrived at 10.00hrs. One of the night staff had been asked to remain on duty to care for residents because Miss Chandra needed to deal with the inspection. The Commission were concerned that seven of the nine users were up and dressed and the waking night staff member who was going off duty told the Commission staff that the night staff woke up dependent service users at 07.00hrs to get them up and dressed. The evidence before us was clear that the night staff member concerned had indeed said that. This was confirmed by Miss Dick in her evidence to us. The evidence suggested that waking of the residents might have started at 06.00hrs. She and Miss Bligh deny that they have ever been given any instruction to this effect and Miss Chandra and Dr Chandra deny that they have ever put out any order to that effect. We find it is likely that this has become a working practice of the home.
15. On the same visit one service user was said to have been asleep at the breakfast table. Again this is denied by the witnesses who have given evidence before us who told us that the service user concerned always adopted that posture she was in that day whenever she was sat at the table. It was clear to the Respondent that there had been a reduction in staffing numbers. This was because the business could not afford extra staffing to cover leave, and as a result Miss Chandra was working in excess of fifty hours each week. There had also been an issue as to withholding of holiday pay. Dr Chandra had had a staff meeting in which he had told the staff that he was not able to pay them when they were on holiday immediately but would do so within two or three months if they decided to take a holiday. The evidence before us was that the people had been paid some time after their holiday. It became apparent that whilst Dr Chandra provided some training for his staff additional training was expected to be funded by the staff themselves. A further concern was noted that again a member of staff had been appointed, this time without a reference from her previous employer. The previous employer was another care home and Miss Chandra in her evidence before us told us that that care home refused to provide a reference. It seemed to us that the issue of recruitment and the need to protect vulnerable service users from inappropriately appointed staff was still something which was not clear to either Miss Chandra or the Appellants.
16. The Respondent felt that as a result of this visit and the anonymous phone call the home had moved from a position of being one which was poorly managed but where users were not seriously at risk to one which was a seriously failing service with outcomes for its residents becoming more and more negative. This was due to the actions of the management, the lack of financial viability and the lack of robust and competent management.
17. As a consequence the Respondent served on the Appellants a Notice of Proposal to cancel their registration on 6 October 2006. In particular the Respondent was concerned that the home had been without a registered Manager since 12 September 2005. That Notice of Proposal became a decision on 18 December 2006 and it is against that decision that the Appellants' second appeal lies.
18. We should add some additional facts which are important in our decision making. First, the Respondent refused the application for registration of Miss Chandra as the registered Manager on 9 August 2006 and no appeal against that decision has been made. Miss Chandra has been working very hard not only in the home but also in attending two Colleges to attain her level 3 and 4 GNVQ to enable her to reapply for the position of Manager of the home. Having met Miss Chandra and heard her evidence we remain concerned that even if she achieves her qualification that it is unlikely in the short term that she will be perceived to be suitable to manage a home which is currently failing, given her admitted poor English skills and her lack of appropriate experience.
19. As a result we presume of the refusal to register Miss Chandra, the first Appellant Dr Chandra applied for registration as Manager on 28 August 2006. For some reason his application seems to have taken a very long time to be processed by the Respondent, but on 27 March 2007 they provided a Notice of Proposal to refuse his application and his application was ultimately refused.
20. In February 2007 the Respondent delivered to service users and relatives comment cards for completion. We have seen those comment cards and as a general rule the views of the residents are very positive. We have also seen a very positive note to the Respondent from a resident's family and we have also had evidence from Wendy Bligh of the service users' satisfaction statements that she had obtained from all of the current residents. There are currently six residents with a seventh who is currently in hospital.
21. After the service of the Notices to which we have referred a further inspection was carried out by the Respondent on 21 March 2007. This inspection was unannounced. In the Report of that visit the Respondent accepts that the responses from the service users and the relative surveys were positive and that the home provided a clean homely environment for service users who are able to personalise their own space. It was accepted by the Respondent that the staff were dedicated to the service users and understood their needs and had good relationships with them. The service user provided a nutritious and varied diet. The Respondent's inspection also showed that there had been improvement since the last inspection. Staff now had training profiles and that there was some mandatory training in place which was being funded by the Appellants. The staff were undertaking NVQ level 2 training, which was being resourced free and a consultancy company had been brought in to design systems and review and implement a number of policies and procedures. The consultancy had apparently been recommended by a company from whom the Appellants were seeking a loan. As a result, a number of standards were for the first time being consistently met but there were considerable ongoing short comings and in particular in the question of management. As a result, the Notice listed eleven statutory requirements. In their evidence before us Dr Chandra and Renu Chandra gave conflicting views as to whether these had now all been complied with. The evidence suggested that some had been complied with, some had been started on and some remained unaltered. We noted that in particular there was severely damaged furniture in one service user's bedroom at the time of the inspection.
22. As we have indicated, Dr Chandra had called upon the services of an independent consultancy to assist in managing the home. In a Report dated 1 November 2006, which was delivered to the Respondent, it was stated that "Kingshaven's main problems are that the owners and acting Manager do not seem to comprehend how to begin to meet the standards and to run an efficient up to date care home. It is not because of lack of caring or eagerness to do so, but rather being unable to organise things in priority order to begin to address all of the fifteen standards that have failed."
23. Dr Chandra told us that the consultants had been employed on a three month contract and had put in a computer system to deal with policies and procedures and the home's administration to help ensure compliance. He had not renewed the contract at the end of the three months. There appeared to be no position paper or action plan at the end of the consultancy.

The Law

Section 14 of the Care Standards Act 2000 provides that:-

(1) The registration and authority may at any time cancel the registration of a person in respect of an establishment - (c) on the ground that the establishment is being, or has at any time been, carried on otherwise than in accordance with the relevant requirements."

The Care Home Regulations 2001 (as amended) provide:-

" Regulation 7 (1) (2) (a) (ii) (3) (a)

7(1) A person shall not carry on a acre home unless he is fit to do so.

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

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

(ii) in partnership with others, and he and each of his partners satisfies the requirements set out in paragraph (3);

(3) The requirements are that -

(a) he is of integrity and good character;

Regulation 8 (1) (a) (b) (i) (2) (a) (b)

8(1) The registered provider shall appoint an individual to manage the care home where -

(a) there is no registered manager in respect of the care home;

(b) the registered provider -

(i) is an organisation or partnership;

(2) "Where the registered provider appoints a person to manage the care home he shall forthwith give notice to the Commission of;

(a) the name of the person so appointed; and

(b) the date on which the appointment is to take effect."

Regulation 9 (2) (a) (b) (i) (ii): 9 (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 care home."

Regulation 10(1):

10 (1) "The registered provider and registered manager shall, having regard to the size of the care home, the statement of purpose, and the number and needs of the service users, carry on or manage the care home (as the case may be) with sufficient care, competence and skill."

Regulation 10 (2) (C)

10(2) "If the registered provider is; (c) a partnership, it shall ensure that one of the partnership undertakes, from time to time such training as is appropriate to ensure that he has the experience and skills necessary for carrying on the care home."

Regulation 12 (1) (a) (b), (2), (3):

12(1) "The registered person shall ensure that the care home is conducted so as;

(a) to promote and make proper provision for the health and welfare of service users.

(b) To make proper provision for the care and, where appropriate, treatment, education and supervision of service users.

(2) The registered person shall so far as is reasonably practicable enable service users, to make decisions with respect to the care they are to receive and their health and welfare.

(3) The registered person shall, for the purposes of providing care to service users, and making proper provision for their health and welfare, so far as practicable ascertain and take into account their wishes and feelings."

Regulation 12(5) (a):

12(5) "The registered provider and registered manager (if any) shall, in relation to the conduct of the care home;

(a) maintain good personal and professional relationships with each other and with the service users and staff."

Regulation 18 (1)(a) (2)(a)

18(1) "The registered person shall, having regard to the size of the care home, the statement of purpose and the number and the number of needs of service users;

(a) ensure that at all times suitably qualified, competent and experienced
persons are working at the care home in such numbers as are
appropriate for the health and welfare of service users."

(2) The registered person shall ensure that -

(b) persons working at the care home are appropriately supervised; and

Regulation 19 (1)(a)(b) 5(d)(i): Schedule 2

19(1) "The registered person shall not employ a person to work at the care home unless;

(a) the person is fit to work at the care home

(b) subject to paragraphs (6), (8) and (9), he has obtained in respect of that person the information and documents specified in paragraphs 1 to 9 of schedule 2;

(5) For the purposes of paragraphs (1) and (4), a person is not fit to work at a care home unless-

(c) subject to paragraphs (4A), (6), (8) and (9), full and satisfactory
information is available in relation to him in respect of the following
matters -

(i) each of the matters specified in paragraphs 1 to 9 of Schedule 2;

SCHEDULE 2:

1. Proof of identity, including a recent photograph.

2. Details of any criminal offences;

(a) of which the person has been convicted, including the details of any convictions which are spent within the meaning of section 1 of the Rehabilitation of Offenders Act 1974(a) and which may be disclosed by virtue of the Rehabilitation of Offenders Act 1974 (Exceptions Order) 1975(b) or;

(b) in respect of which he has been cautioned by a constable and which, at the time the caution was given, he admitted.

3. Two written references, including, where applicable, a reference relating to the persons last period of employment, which involved the work with children or vulnerable adults, of not less than three months duration.

4. Where a person has previously worked in a position which involved contact with children or vulnerable adults, written verification of the reason why he ceased to work in that position unless it is not reasonably practicable to obtain such verification.

5. Documentary evidence of any relevant qualifications and training.

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

7. Either;

(a) where the certificate is required for a purpose relating to section 115(5)(ea) of the 1997 Act (registration under Part 2 of the Care Standards Act 2000), or the position falls within sections 115(3) or (4) of that Act, and enhanced criminal record certificate issued under section 115 of that Act, or

(b) in any other case, a criminal record certificate issued under section 113 of the Act, including, where applicable, the matters specified in sections 113(3A) and 115(6A) of that Act and the following provisions namely section 113(C) (a) and (b) and section 115(6) (a) and (b) of that Act.

8. A statement by the person as to his mental and physical health.

9. Details and evidence of registration with, or membership of, any professional
body."

Regulation 25(1):

25(1) "The registered provider shall carry on the care home in such manner as is likely to ensure that the care home will be financially viable for the purpose of achieving the aims and objectives set out in the statement of purpose "

Conclusions

24. We have looked at this matter in two ways. First, are the Appellants persons who are "fit to carry on a care home" and secondly, are the grounds set out in the Notice of Proposal of 6 October 2006 and the adoption of the proposal of 18 December 2006 to cancel the registration sufficiently made out to justify the imposition of the cancellation (similarly we have given consideration to whether the grounds set out in the Notice of Proposal of 7 June 2006 and the adoption of that proposal on 3 October 2006 to impose a condition was sufficiently made out). We started first however by considering the issue of whether or not the Appellants were fit to be proprietors of the care home and we have concluded that they are not.
25. Our reasons for this are that the two Appellants have owned this home for some seven years following its purchase in the year 2000. It appears to us from the evidence that we have seen that throughout that period, and certainly since the coming into force of the new regulatory regime there has been little or no evidence of on going compliance with the legal and regulatory requirements laid down for the carrying on of such a business. We conclude that the Appellants are not so fit for the reasons that we set out hereunder and we cannot find that we can trust them to run a care home in accordance with the regulations going forward. Our view is strengthened by their own evidence to us which we found confused and inconsistent in many key areas.
26. The written evidence before us, including the evidence of the inspections and non compliance issues arising from those inspections, and the evidence given to us by both of the Appellants lead us to conclude without hesitation that either the Appellants do not understand the statutory and regulatory requirements imposed on them or if they do, they have no ability to implement suitable policies and procedures to discharge their responsibilities. Dr Chandra, the first Appellant, accepted that his difficulties were around interpretation of the regulations and their implementation. This position was clearly illustrated to us in the course of Dr Chandra's evidence when he told us that even on the final day of the Hearing before us he had still not read the outcome of the inspections arising in the years 2003 and 2004.
27. Dr Chandra told us, and we accept, that he is not a business man. He has never complied with the request of the Respondent on two occasions to furnish them with an ongoing business plan for the home. He told us in evidence that he now had a business plan which had been prepared by his Accountants and was with them, but he had not produced it to us in evidence, nor could he effectively talk through it.
28. We have no confidence in the Appellants' judgement. That lack of judgment is evidenced in his failure to resolve the issue of the management of the home. Dr Chandra accepts that he was told in very clear terms by the Respondent in interview what was required of a registered Manager. Both he and the second Appellant accept now at the Hearing and they say from 2005 onwards that they needed to recruit an experienced and competent Manager to be registered. Despite this, the Appellants put forward Renu Chandra to be registered as the Manager, knowing on their own admission that she had serious difficulties about writing English and comprehending English but also that she did not either have the suitable management experience nor the qualifications required for the post, despite these having been explained to the first Appellant. When she was rightly refused registration by the Respondent the Appellants still proceeded to allow her to continue to manage the home. Faced with concerns expressed to them about this by the Respondent their response was to allow the first Appellant to apply himself to become the registered Manager even though he knew he had no experience and had not the correct qualifications.
29. In addition, their attempts to find a suitably qualified Manager and dealing with the management issue has in our view been unsatisfactory, insufficient and inadequate. The Appellants' case is that they have inserted the maximum of four advertisements in the local press. They put advertisements in the local Post Office and other shops in the area. They seem to have no knowledge or understanding of how properly to recruit a Manager. Over the past two years there has been no attempt to advertise in the professional press, no attempt to find a Locum or Agency Manager or to use Job Centre Plus. Dr Chandra's evidence suggested that he was intending to remunerate a Manager on the basis of £10.00 to £12.00 an hour which in the Tribunal's knowledge is considerably below the market level for the job concerned. Even if an applicant could be found it is clear from the first Appellant's evidence that he was not prepared to give a Manager full management responsibility. Our view of the fitness of the Appellants to be registered proprietors is also supported by the views of their own Consultants whose view we have set out in the facts above (see paragraph 20 of the evidence heard).
30. Finally, so far as the first Appellant is concerned, he has on his own evidence been closely involved in the Management of the home for the last two years. Despite that close involvement, or indeed because of it, there have been ongoing difficulties about its management and ongoing requirements imposed by the Respondent seeking improvement.
31. So far as the second Appellant is concerned, on her own evidence she is clearly a "sleeping partner" and leaves the management of the business entirely to the first Appellant.
32. In her evidence to us it was clear that she spends most of her time in London and little time in the home. This is inconsistent with her written Statement which was before us.
33. In her own evidence before us it was clear that she did not understand her
    responsibilities as a registered owner and she did not understand her duty under
    Regulation 26, nor indeed what the regulation provided.
34. Whilst she told us that she left everything to the first Appellant to deal with, it is quite clear to us that she knew what was happening and knew particularly about the inspections and problems which had arisen between 2005 and the present time. Despite that she has taken no action herself to try and resolve the issue.
35. It is apparent to us that neither of the Appellants have sought to obtain any training on their responsibilities as proprietors and for all these reasons we have concluded that neither are fit to remain as registered proprietors of the home. Our conclusion in that respect therefore is sufficient to resolve this case in favour of the Respondent.
36. However, we thought it was also right to set out our conclusions in respect of the Respondent's case based on the alleged repeated breaches of the regulations.
37. We are satisfied, and indeed it is not really disputed by the Appellants, that there have been repeated ongoing and serious breaches of Regulation 8 (1) (a) (b) (i) (ii) (a) (b), Regulation 9 (2) (a) (b) (i) (ii), Regulation 10 (1), Regulation 10 (2) (c), Regulation 12 (1) (a) (b) (2) (3), Regulation 12 (5) (a), Regulation 18 (1) (a) (2) (a), Regulation 18 (1) (c) (i) (ii), Regulation 19 (1) (a) (b) (5) (d) (i) and Schedule 2 and Regulation 25 (1).
38. Some of the failures set out in the requirements arising out of inspections were in our view serious health and safety issues and it is fortunate that no harm was occasioned to service users. Examples in our view of this is the failure to provide an electrical wiring certificate (the evidence suggested that the wiring was not satisfactory and required work to be done prior to the certificate being granted), frayed and dangerous carpets, the failure to protect radiators and pipes, and the failure to deal with the issue of the temperature of hot water in basins.
39. The evidence suggested that the training regime for the staff in the home until the last six months has been poor.
40. The evidence about recruitment, even until the present time, is that there has been a cavalier approach to the employment of staff without obtaining references, or proper POVA or CRB checks. All of these go to the quality of the service being provided to service users and their protection.
41. If we were dealing with the issue purely on the breaches of the regulations and not the question of the fitness of the two Appellants we would have considered the fact that the evidence suggested that the six residents are happy with the care that they are currently receiving, as are some of their relatives. This is shown both by the work which the home had done on quality assurance but also by the independent review of the Respondent. We are however satisfied that the continued breach of the regulations have and continue to put the residents at risk and it would be wrong therefore for us to give any thought to allowing the home to continue under its present proprietors and management system.
42. Whilst it was argued that it would be stressful to move residents in any event the evidence before us suggested that unless there is an increase in the number of residents in a very short period of time, this business is not viable and, as Dr Chandra himself accepted, the business may have to close within six to twelve months so that in any event the residents will have to move at that stage.
43. For the reasons therefore that we have set out, we dismiss the appeals both against the original imposition of the condition and then upon the decision to cease to register the Appellants as the providers of the home.

Concluding Remarks

We noted with some concern that the Respondent's approach to the presentation of their inspection Reports seems to involve (and this was confirmed to us in evidence) the first and second page of the Report merely being copied from the previous Report. In this case therefore, the second page giving service information on each Report reported that "the home was a welcoming, friendly atmosphere and service users well cared for". Whilst that might have been a fair description in some of the early Reports it was not a description which the content of the Report maintained. Similarly Reports incorrectly named the Manager, which was a major failing, given the persistent complaints about the lack of a suitable Manager. We recommend the Commission should give attention to how the initial pages of each Report are presented in the future.

Accordingly, our Unanimous decision is:

APPEAL DISMISSED

Mr Toy Askham

(Nominated Chairman)

Mrs Carole Alford

Mr Michael Flynn

Date: 25 June 2007