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Cite as: [2007] EWCST 1133(EA)

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Janice Hutton v The Commission for Social Care Inspection [2007] EWCST 1133(EA) (4 September 2008)

Janice Hutton

v

The Commission for Social Care Inspection

[2007] 1133 EA.JP

Before:

Stewart Hunter (Nominated Chairman)

Ms Gillian McGregor

Mr Peter Sarll

Decision

Heard on the 6^th, 7th, and 8^th of May 2008 and the 7^th and 8^th of July 2008.

Sitting at the Birmingham Combined Court Centre, Priory Courts, 33 Bull Street, Birmingham, B4 6DS.

Representation

The Appellant was represented by Miss N Khalique of Counsel.

The Respondent was represented by Mr P Spencer of Counsel

Appeal

This is an appeal by Mrs Janice Hutton under Section 21 (1) of the Care Standards Act 2000 against the decision of a Justice of the Peace sitting at Birmingham Magistrates Court on the 7^th September 2007, under Section 20 (1) of the 2000 Act to cancel her registration in respect on an establishment known as MH situated at 1 BR Birmingham.

Preliminary issues

On the 11^th December 2007 the President of the Tribunal made a Restricted Reporting order under Regulation 18 (1) of the Protection of Children and Vulnerable Adults of Care Standards Regulations 2001 ("The regulations"), prohibiting the publication (including by electronic means) in a written publication available to the public, in the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any service user.

At the conclusion of the hearing the Tribunal re-affirmed that the restricted reporting order should remain in force until further order.

Evidence

The inspection reports prepared by the Respondent in respect of MH indicate that it is registered as a care home for 3 people, over 65 years of age with learning disabilities. The recorded registered proprietors are Mrs J Hutton and Mr F Hutton, with Mrs J Hutton being the registered manager. Evidence presented on behalf of the Appellant indicated that MH had first been registered as a care home in 1993.

The description of the services provided at MH are set out in the inspection reports has remained consistent throughout the reports produced in these proceedings, covering a period between December 2004 and February 2007.

The description reads as follows: -

"B R is a 100 year old, domestic style end of terrace property situated in a residential area and in close proximately to a school within the WE vicinity of Birmingham. A home offers accommodation to three people with learning difficulties who have lived at the home for a significant number of years. The facilities include lounge, dining room, kitchen, laundry, rear garden, one ground floor and two first floor bedrooms and a small office. The registered manager has arranged a sheltered area with seating within the rear garden for the service user who smokes; the facility permits staff observation from the kitchen window. The parking facilities for the home are some distance away from the home.

The first floor of the home was extended approximately five years ago with a view to increasing the accommodation to 6 service users; to date this has not been progressed although an application was submitted two years ago as it does not meet the existing standard and the application is unresolved. The home is well situated for local amenities, being close to bus and train routes and W E shopping facilities. Care is offered with normal life style principals and service users are allowed to go out unaccompanied."

One of the Respondent's inspectors who carried out a number of the inspections of MH is Ms Susan Scully, who signed a witness statement in these proceedings dated the 12^th February 2008 and also gave oral evidence. She stated that she had been the inspector of the Appellant's service from 2005 and that her last inspection of MH was on the 19^th February 2007. She stated that MH was situated at 1 BR which was a semi-detached property. The Appellant owned the neighbouring property at number 3 and possibly other properties in the same road. There was an alleyway that ran alongside number 1. There was no internal door or external pathway between the properties. There was a fence dividing the properties at the back, it had been noted in one of the inspection reports that the fence had come down and a requirement had been made that the fence should be put back up which the Appellant had done. Ms Scully could not recall whether the fence between number 1 and number 3 at the rear of the properties was up or not in September 2007.

An adult protection meeting Chaired by Ms L Heale of Birmingham City Council was held on the 7^th September 2007 to discuss events which had occurred at MH on that date. The minutes of the meeting record under the heading "Service provider status" that the meeting was told that: -

"1 BR is known as MH and Sue stated that Supported Lodgings is also known also known as MH. Birmingham City Council Adults and Communities have a contractual arrangement with 1 BR. Mrs Hutton also owns 3, 12 and 49 BR. The Supporting People Programme confirms that numbers 12 and 49 BR are supporting people schemes primarily for people with mental health issues. The status of number 3 BR is not known."

7. The Appellant signed a witness statement in these proceedings dated the 12^th February 2008 and also gave oral evidence. At paragraph 9 of her witness statement she stated:

There is a property next door ("number 3") which provides supported accommodation for two ladies and a man. Support workers attend number 3 from 7.30am. The service users at MH have a good relationship with those at number 3 and as explained below visit them on an almost daily basis."

There are three services users at number 1 BR having been placed at the care home by Birmingham City Council: -

• Mr "N" aged 49 who has been at MH since about 2002, he was described by Ms Scully in her witness statement as having challenging behaviour and being prone to outbursts. She stated he was also epileptic and received medication. Ms Hutton agreed he was epileptic, but stated that he had moderate learning difficulties. She also indicated he was very active and independent often going out on his own. He attended a day centre two to four times a week. He had formed a close relationship with "Y" who lived at number 3.

• Mr "J" aged 71 had been at MH since 1995/1996. Ms Scully described him as being prone to outbursts. The Appellant described J as having mild learning difficulties and as being very independent. He went to the day centre five days a week, travelled to the city centre and Birmingham Airport on his own, he also went out with N on the bus and also went out with Y.

• Mr "G" aged 73 had lived at MH since 1995/1996 and was described by Ms Scully as needing help carrying out everyday tasks and requiring 24 hour care. He was diabetic and on medication. The Appellant stated that he was not diabetic, but his diet had to be controlled. He was very dependent for personal care and had either half an hour or one hour one to one supervision for personal care in the mornings. After breakfast he generally went next door to visit his close friend "J". He went to the day centre 4 days a week, but was always taken on the minibus. In a written assessment prepared by MH for G under the heading "Psychological." sub heading, "G's mental state".

• G was described as having moderate learning difficulties being manic depressive (history of Bipolar) and having a hearing impairment. He was also said to be asthmatic (staff assist/administer his inhalers as and when required).

Amongst the documents produced to the Tribunal were handwritten notes signed by one of the Respondent's inspectors (Ms Brenda O'Neil) in relation to a visit made by himself and Ms Scully to 1 BR on the 7^th September 2007. The notes indicated that they had spoken to the Appellant. In the notes written against "number 3" was: -

"YR (female) JP (female) and DS (male)" and alongside was written: -

"…Supported living not funded by supporting people – s/o fund via housing benefit. I am manager/assistant manager – Keeling Hutton manager next door."

In the minutes of the Adult Protection Meeting held on the 7^th September 2007 mention is made of YR and JP being known to Mental Health and there being no information on DS.

The Appellant at paragraph 9 of her witness statement stated as follows: -

"There is a property next door ("number 3") which provides supported accommodation for two ladies and a man. Support workers attend number 3 from 7.30am. The service users at MH have a good relationship with those at number 3 and as explained below, visit them on an almost daily basis by exiting MH through the back door."

The Appellant stated in her witness statement that her philosophy in running MH was one of "…promoting independent living in a homely environment based on individual needs."

The Appellant gave her address as being in the Hall Green area of Birmingham. She said that in 1982, 1 BR had been her home. In running MH as a care home she had a bedroom on the 1^st floor where she slept overnight three or four times a week. G lived on the ground floor, he had an en-suite shower and toilet, also situated on the ground floor was the lounge, dining room and kitchen, there was also a bathroom/shower room which was used by the Appellant and members of staff. In the kitchen was a fridge, freezer, cupboards (plates stored in the lower cupboard, food on the top cupboard) an Aga cooker, dishwasher and microwave. The fire exits were at the back door, the bottom of the stairs and the end of the corridor adjoining the lounge.

On the first floor as well as the Appellant's bedroom was her office were N and J's rooms, a bathroom for use by N and J, a sleeping room and a spare room.

Ms Linda Richards signed a witness statement dated the 12^th February 2008 and gave oral evidence. She stated that she had been a part time support worker at MH since 1998. She normally worked from 8am until 10am on average four times a week, she also did sleep-ins two or three nights a week, some of her morning shifts followed on from sleep-ins. On average Ms Richards said she worked three or four evenings a week, starting at 6pm through to 8pm, there might be a sleep-in shift after that, if not she would go home at 8pm or it might be later. Ms Richards said she did the hours asked for by the Appellant and that her hours varied.

Mr Panthon Hutton also signed a witness statement, his was dated the 11^th February 2008 and he also gave oral evidence. He stated that he was a support worker for MH (number 1 BR and also for Mercian Community Care (number 3 BR), he was studying for his NVQ 3. He said that his hours varied from week to week. In the day time he was either at number 1 or number 3, on average 10 hours a week at number 3 and 30 hours at number 1, but this could change. As far as sleep-ins were concerned he was very flexible. He said that his grandmother did not live at number 1, but he could not say if she slept there, maybe she did on the odd occasion. Keeling Hutton worked at number 3.

There were no witness statements submitted from Keeling Hutton or Lillian Branga and they did not give oral evidence.

The Tribunal were shown a number of inspection reports relating to inspections carried out by the Respondent's inspectors on the 15^th December 2004, 7^th March 2005, 26^th August 2005, 24^th February 2006 and the 19^th February 2007.

On the 18^th June 2004 the Appellant wrote to the Respondent indicating that she wanted to make a formal complaint regarding the way in which she claimed to have been treated by the Respondent. The complaint was headed as being against "CSCI/Julie Preston"). The Appellant explained that Julie Preston had been MH's lead inspector since 2001. The complaint was investigated by the Respondent's business relations manager Ms Anna Lis. The Appellant had set out her complaint under five headings, Ms Lis in a letter dated the 15^th March 2005 upheld one of those complaints, namely that the Appellant had been "treated totally unfairly - not equal"). Ms Lis included the following comments: -

"The investigation confirmed that the reports of the two inspections were both sent out in March 2004. This was due entirely to pressures experienced by the NCSC in completing reports of inspections carried out during 2003/2004. Such delays and patterns of receiving reports were experienced by many providers in Birmingham in that year. The Commission acknowledges that such delays are not conducive to good outcomes as endeavouring to improve its practice by setting clear targets and time scales for delivery of reports.

With regard to reporting on your responses to statutory requirements, the investigation has found some examples within the Commission's reports which reflect the current status of required action but do not reflect the progress made. An example includes reporting that action to complete the Statement of Purpose was outstanding with no clear recognition but some action had been taken to improve the document.

The investigation confirmed a further example of negative recording of an incident identified in the inspection of the 24^th March 2004 relating to a service user using the garage as a place to smoke. The report made reference for the need for the proprietor to take the necessary action without noting that the Inspector had been informed that the required action had been taken immediately following the inspection.

These findings do indicate that reporting practice fell short of the standard the Commission would wish. In light of these, I have undertaken a review of a wide range of reports undertaken and have found practice to vary across a broad section of providers. The Commission is introducing a new report format from 1^st April 2005 for all inspections conducted from that date. The training for inspectors will support a transparent and positive approach to reporting. This complaint is upheld."

An inspection was carried out on the 15^th December 2004, the report of that inspection indicated that the inspectors who carried out the inspection were Ms S Scully and Ms B O'Neil. It was described as an "Unannounced Inspection." Miss Scully in her evidence stated that she had been part of the inspection team inspecting MH between 2005 and 2007. The inspection was carried out whilst the Appellants complaint of the 18^th June 2004 was still being considered by the Respondent. The report indicated that there were 40 statutory requirements made in the previous inspection report which remained outstanding. The inspectors imposed 46 requirements as a result of their inspection on the 15^th December 2004, in respect of all but six of those recommendations the inspectors had noted: -

"The inspectors were unable to access compliance; records were not available for inspections."

In the summary of the inspector's findings, the following comment was included: -

"The visit was disappointing, as the inspectors could not complete a true reflection of the home and the experience and expectation of service users living at the home."

The next inspection took place on the 7^th March 2005 the report describing it as an "Unannounced inspection" carried out by Ms S Scully and Ms B O'Neil. In her evidence Ms Scully said that after two unsuccessful attempts the Respondent had written and told the Appellant that they would be attending on the 7^th March 2005. The inspection report listed 20 statutory requirements of which 8 had endorsed against them: -

"This standard had not been inspected."

Three of the 20 statutory requirements related to staffing issues. Ms Scully said that this was not the normal amount of requirements and that she would have expected better. The report contained a detailed summary of the inspector's findings including the following comments: -

"At the time of the visit the inspectors had the opportunity to speak with service users. The home was clean and fresh with good décor."

and

"The manager had redeveloped the care plan since the last inspection….

The inspectors were pleased with the progress that had been made to the care plans."

On page 22 of the report within the section looking at compliance with the National Minimum Standards ("NMS") Standard 15 (relationships) the inspectors noted: -

"One service user told the inspectors that they could have visitors when they wanted. Evidence seen in care plans indicated that service users maintain family links."

and the standard was found by the inspectors to be met.

Also on the same page, Standard 17 (meals and meal times) the inspectors included the following: -

"The manager gave the inspectors a copy of the menu; Monday to Friday there is a choice of cereals, toast for breakfast. Service users attend a day centre where they have their main meal. Indicated on the menu is a set tea with supper referring to the service users choice."

This Standard was said to be almost met.

On the 22^nd August 2005 an inspection was carried out on an "Announced" basis. The lead inspector was stated to be Ms S Scully. There were 8 statutory requirements made as a result of this inspection. The inspection report gave details as to which of the NMS had been assessed and gave a scale score rating against each such Standard ranging from 1 – not met to 4 - Standard exceeded. In the case of MH 19 Standards were assessed, 12 were said to be met and 7 almost met.

In the summary to their August 2005 report the inspectors described the residents of MH to whom they had spoken as saying that "they were happy and comfortable." In oral evidence Ms Scully said that she was aware by this stage that service users in number 1 BR had friends at number 3 and that J and N also used public transport. In relation to Standards 6 to 10 ("individual needs and choices"), the inspectors set out the evidence they had seen in support of the intended outcomes. The inspectors noting the following: -

"All three residents have an individual care plan detailing their assessed needs"

and also: -

"Risk assessments are completed for residents ailments, health and general wellbeing."

It was also noted in the evidence found by the inspectors relating to the NMS covering "lifestyle" that: -

"Each resident has a daily activity plan giving details of activities the residents participate in. On of the residents is quoted as saying to the inspectors "we are all going to Jamaica again and I really enjoyed the holiday, it was lovely."

Ms Scully said in evidence that after the inspection the Appellant would have submitted an Action plan to address the outstanding requirements.

The next inspection took place on the 26^th February 2006 and was led by Ms Scully. The inspection report described it as an "Unannounced inspection", but Ms Scully said in evidence that she did not know whether in fact notice had been given.

In the summary to the report it was stated under the heading "what the service does well" as follows: -

"BR has improved significantly over the last three inspections, the manager has shown her commitment to improving the service. Health care needs are monitored and reviewed regularly and any changing needs identified and action taken. BR is run like a family home where residents goals, expectations of a service is foremost."

Ms Scully confirmed in evidence that there were no outstanding statutory requirements as a result of this inspection.

In looking at compliance with the NMS under "staffing" the evidence found by the inspectors was that: -

"The manager operates a robust recruitment procedure."

On "conduct and management of the home" the inspectors noted that: -

"Policies and procedures are reviewed on a regular basis. Equipment such as electrical testing is completed. Regular testing of fire alarms and fire drills are completed."

In respect of "concerns, complaints and protection.", the evidence recorded included the following: -

"Financial records were sampled; each transaction is recorded with receipts maintained. All monies balanced and adequate records were completed."

As with the previous inspection report the inspectors scored the outcomes of the NMS that they had inspected. They inspected 12 and all were met, there were no statutory requirements arising from the inspection.

There was no further inspections for a year, the next one taking place on the 14^th February 2007, again the lead inspector was Ms Scully. The inspection report described the visit as a "Key Unannounced inspection", but Ms Scully in evidence said that it was in fact an inspection on notice. In the summary to the report the inspectors recorded that the service users said they were well looked after and lived comfortably. The inspectors also noted that the care plans were detailed and showed the service user's health needs were being met. In the section entitled "what they could do better" the inspectors comments indicated the need for financial records to be more robust and to demonstrate that adequate audits were completed. The recruitment needed to remain robust and all staff should have the same checks completed when employment had been interrupted for any length of time and the quality audit needed to be completed.

The "lifestyle" section of the reported outcomes against the relevant NMS recorded that: -

"Service users experience a lifestyle that suits their needs and preferences."

The inspectors went on to state that service users were involved in the preparation and cooking of food and were supervised.

The "concerns, complaints and protection" section gave more information regarding the inspectors concerns about financial recording at MH, noting that two service users financial record showed that they were always in debt.

In relation to the "environment" the inspectors stated that: -

"The building was clean and tidy at the time of the inspection. The service users said they were happy with their bedrooms. The bedrooms were personal to the individual with personal belongings. The home was clean and tidy and free from offensive odours throughout."

In relation to "staffing" the inspectors found that: -

"The quality in this outcome area is adequate."

However, they also noted: -

"Since the last inspection a member of staff has returned to work at the home. The manager has not completed the return to work interview or a POVA first check. A CRB had not been completed. The manager said she was in the process of completing a CRB and said the staff member had been working in the home as required for some time in between completing nurse training."

The scoring against the NMS was assessed by the inspectors and indicated that 22 standards had been inspected of which 15 were met and 7 were almost met. There were 7 statutory requirements to be met by the 1^st April 2007 relating to daily records, risk assessments, financial records, recruitment and supervision of staff, quality assurance and the reporting of accidents and incidents to CSCI.

Ms Scully said that the Appellant was required to submit an Action plan following the inspection which she had done.

On the 4^th May 2007 the Respondent wrote to the Appellant saying there had been an error in the quality rating assigned for the Appellant's service by the Respondent and the correct rating for BR was "adequate".

Ms Scully said that it was agreed by the Respondent that MH would be the subject of a further inspection to take place on the 7^th September 2007 undertaken by herself and Ms O'Neil. The matters to be covered during the inspection had been planned in advance. Ms Scully's handwritten notes of that planning process included the outstanding requirements from the last inspection on the 19^th February 2007 were to be discussed they also noted that: -

"Lynn Wood attending re major variation to increase to 6 beds."

Ms Scully said that it was not necessarily important for the Appellant to be there as long as there was a qualified person. If there were any concerns they could have discussed them with the Appellant at a later date.

Ms Scully stated that she had arrived at MH on the 7^th September at around 8am, her colleague Ms O'Neil arrived late at about 8.20am. Ms O'Neil had parked about 50 yards from the property and Ms Scully had gone and sat in Ms O'Neil's car to discuss the inspection. Whilst Ms Scully was taking a telephone call Ms O'Neil had said to her that she had seen the Appellant driving away. Ms Scully said in evidence that it had not seemed prudent to stop the Appellant and speak to her. Ms Scully said that this was about 8.50am.

At about 9.10am the inspectors had gone to MH and Ms Scully had knocked on the front door, there was no answer so Ms Scully had continued to knock. Ms Scully said that through the glass panel in the door she saw service user N come to the door and try the handle, Ms Scully had continued knocking and N had retreated. She then phoned MH and spoke to service user J who said he did not think there was any staff on duty. J had tried to open the front door, but was unable to do so.

Ms Scully stated that whilst this was happening, Ms O'Neil had knocked at number 3, because they knew it was connected to the Appellant, but there had been no answer.

Ms Scully had also gone down the alleyway to the side of number 1, but could not gain access to number 1 and could not see the back door.

Ms Scully had telephoned her office at around 9.20am and was told to expect a return phone call from the Respondent's business relations manager, Ms P Bailey. In her subsequent telephone conversation with Ms Bailey, Ms Scully said that Ms Bailey had told her that she would contact the police. While waiting for Ms Bailey to call, Ms Scully said that the Appellant was seen walking down the road towards the inspectors speaking on her mobile phone. Ms Scully gave evidence that she then telephoned Ms Bailey to say that the Appellant had arrived back, while she was on the telephone to Ms Bailey, the Appellant had gone to number 3 and unlocked the front door and then unlocked the front door at number 1. About 5 to 7 minutes later Ms Scully stated that approximately 6 people came out of the front door of number 3 including N, J and G and they had walked down the road. Ms Scully also recalled seeing an elderly lady on two sticks. Throughout this time Ms Scully stated that she was still on the telephone to Ms Bailey.

A discussion then followed with the Appellant. Ms Scully said that the Appellant had told her that the three service users at number 1 had gone to number 3 and the Appellant had then gone out for a walk around the block. The Appellant had said that Linda Richards should have been at number 1, but she had left early. Ms Scully said the Appellant was not being very cooperative, she had given Ms Scully a staff rota, but it was very poor and Ms Scully could not identify who was supposed to be on duty. The Appellant had said that there had been a lady on duty at number 3, but she could not produce her staff file because she was not employed at number 1. Ms Scully said she did not know how the service users had got from number 1 to number 3.

Ms Scully said that she spoke again in the telephone with Ms Bailey who had told her that a social worker would be attending at MH. Ms Scully attended an adult protection meeting later that day and also appeared at a hearing in the Birmingham Magistrates Court.

The social worker was Ms Kate Fairgrieve, a senior social worker employed by Birmingham City Council. She signed a witness statement in these proceedings dated the 29^th February 2008 and also gave oral evidence. Ms Fairgrieve stated that she had arrived at number 1 at about 11am and had spoken to the Appellant. She said that the Appellant had told her that earlier that day the three service users from number 1 had gone to their girlfriends at number 3. The Appellant's mother had been in number 1, that the Appellant had gone out for a walk and as nobody needed to go in or out of the front door at number 1 the Appellant had locked it. The Appellant thought that the service users from number 1 must have re-entered number 1 via the back door and that her mother must have unlocked the door for them.

Ms Fairgrieve said that she had reviewed the three services users' files which contained basic information and did not seem to have been reviewed recently, she had looked at the files because the service users were not available to speak to. Ms Fairgrieve also stated that she had some concerns about the part of MH that she had seen. The furniture was grubby and generally sparse, there were children's toys in the lounge. She said that she had stayed at the property no longer then an hour and that the Appellant had been fully cooperative with her.

Ms T Bailey a business relationship manager for the Respondent, signed two witness statements dated the 20^th February and the 4^th March 2008 and also gave oral evidence. She gave evidence that she had spoken by telephone to Ms Scully on the morning of the 7^th September 2007 and had been told by Ms Scully that the inspectors were concerned that service users were in number 1 and could not get out. She stated that she had asked Ms Scully whether she was sure that the residents could not leave the building and Ms Scully had confirmed that she had been around the back of the property and they could not. Later she was told by Ms Scully that the Appellant had returned to number 1, but had been unable to provide a staff rota or names. The inspectors had returned to the office bringing a staff rota with them but it was not easy to understand, it appeared to be a rota that was the same week after week.

Ms Bailey said she later spoke with the Appellant on the telephone at around 12 midday and had told the Appellant that she had not received a satisfactory explanation of what had happened earlier in the day and that there was no satisfactory staff rota. Ms Bailey went on to state that the Appellant had seemed muddled about who lived at number 1 and had asked Ms Bailey to put into writing details of the information she required.

A letter to the Appellant was prepared by Ms Bailey which she said then went to be typed by the Respondent's business services department. A copy of the letter was produced in these proceedings, together with a fax cover sheet indicating that it had been faxed at 2.15pm on the 7^th June 2007. The letter required the Appellant to submit by 2.30pm on the 7^th September: -

"…a detailed copy of the staffing rota from the 7^th September 2007 until the 17^th September 2007. This must indicate names of staff and hours of duty including night staff."

The penultimate paragraph of the letter read as follows: -

"Once I have received this information I will consider if it is acceptable to ensure that the needs of the residents are met. If you fail to provide satisfactory staffing arrangement I will be taking formal legal action."

The final paragraph contained a fax number to which the Appellant was asked to send her response by 2.30pm. Ms Bailey acknowledged in her evidence that the fax number quoted in her letter was the wrong number.

At 2pm Ms Bailey said that she attended an adult protection meeting together with Ms Scully and Ms O'Neil. The meeting was chaired by Ms Lesley Heale a service director with Birmingham City Council. Ms Heale signed a witness statement in these proceedings dated the 17^th March 2008 and also gave oral evidence. The minutes of the meeting indicated that a number of other professionals were also in attendance including social worker Kate Fairgrieve. The minutes record Kate Fairgrieve telling the meeting that she had visited MH earlier in the day and had met the Appellant who had told her that: -

"She locked her mother in the house and the three service users from number 1 visit their girlfriends at number 3 on a regular basis and use the back door. Mrs Hutton said she went for a walk around the block and the sleep in had gone home earlier today."

Adult protection issue were discussed and referred to in the minutes of the meeting at paragraph 6.00. They included concerns about the staffing arrangements and the staff rota. At paragraph 6.02 a discussion about CRB checks is recorded, included the comment: -

"The chair confirmed at the meeting that staff had been employed at 1 BR for over 18 months and had not completed the POVA and CRB checks."

At paragraph 6.03 reference was made to the Appellant's husband Mr Hutton working at the home and that there had previously been an investigation by the Respondent's predecessors into an allegation against Mr Hutton. The minutes concluded: -

"Information on the allegation was not available to the strategy meeting."

At paragraph 8 of the minutes it is indicated that the meeting assessed the risks to the three service users, the factors noted included the following: -

• Three service users were locked in 1 BR with no care staff in the home.

• Care staff have not been POVA and CRB cleared.

• Staff duty rota not available to CSCI

• Levels and standards of care not known

• Failure to cooperate with CSCI.

At paragraph 8.07 of the minutes it was noted as follows: -

"The strategy meeting considered putting in BCC staff to cover the weekend however, the meeting concluded that this was not appropriate as the staffing issue was not a short term problem rather a systemic failure of the provider and registered manager, Mrs Hutton to provide appropriate standards of care for vulnerable adults. Also Mrs Hutton was not cooperating with CSCI."

The meeting concluded by making a number of decisions including that G, J and N should be moved from 1 BR on the 7^th September 2007, also that the Respondent was to apply for a Magistrates Court order under section 20 of the Care Standards Act.

Ms Bailey said that she had, before leaving her office to attend the adult protection meeting, told staff that she was expecting an urgent fax from the Appellant. She had also tried to speak to the Appellant on the telephone whilst at the adult protection meeting, but without success.

After attending the adult protection meeting Ms Bailey said that she had attended a hearing at Birmingham Magistrates Court. Whilst waiting at the court she had spoken to the Appellant on the telephone at 4.45pm. Ms Bailey said that she had told the Appellant that they had not received the rota. The clerk at Birmingham Magistrates Court had also spoken on the telephone to the Appellant.

The Respondent's had then made their application to the Magistrates for the cancellation of the registration of MH, pursuant to section 20 (1) of the 2000 Act. The Appellant was not present at the hearing. Ms Scully and Ms Bailey gave oral evidence to the Magistrate. The magistrate's clerk made notes of the evidence and those notes were included within the Tribunal papers. The notes indicate that Ms Scully told the magistrate that J needed 24 hours care. In her witness statement in these proceedings Ms Scully stated: -

"I do not believe I would have given evidence that J requires 24 hour care as he does not. Only G requires 24 hour care."

In oral evidence Ms Scully stated that saying "G requires 24 hour care" was her terminology. What she meant by this was that someone needed to be present with G if he was at the care home or day centre, someone would also need to travel with him.

It was also recorded in the clerk's notes of the evidence that Ms Scully had said that N had been assessed as needing 24 hour care. In relaying to the magistrate the events of the morning of the 7^th September the clerk's notes also record Ms Scully as saying: -

"Police spoke to Mrs Hutton and entered the premises."

Ms Bailey also gave oral evidence to the magistrates. The clerk's notes indicate that one of Ms Bailey's concerns were the staff rotas, and earlier that day at 1.25pm a fax had been sent to the Appellant asking her to fax certain information and that "no response received to fax".

The Appellant signed a witness statement in these proceedings dated the 12^th February 2008 and also gave oral evidence. She stated that she had slept at MH on the night of the 6^th/7^th September in a bedroom on the first floor. Linda Richards had done the sleep-in and then provided one-to-one personal care for G in the morning, that personal care normally lasted between 30 minutes and 1 hour. Linda Richards had left MH between 8.20 and 8.30am as she had finished giving G his one-to-one care. The three services users N, J and G had by this time left MH by the rear door at around 8.15am going to number 3. They were able to do this because the Appellant had previously taken away part of the rear fencing between number 1 and number 3. The usual routine was for the service users to go to the day care centre on the bus or the Appellant would take them in the mini bus. On this day J and N said they wanted to go on the minibus with Y.

The Appellant said that she was killing time waiting to take the minibus with the service users to the day centre, she normally left in the minibus from number 3. She had gone round to number 3 and J, G and N were all in the lounge. She had told Panthon Hutton, who was on duty at number 3 that she was going for a walk, all three service users were said to have her mobile phone number. The Appellant said that she had gone back to number 1 through the back door and then gone out of number 1 through the front door. The Appellant' mother was in number 1 and as the Appellant had not anticipated N, G or J returning to number 1 she had locked the front door after exiting. The Appellant had then gone for a walk returning to MH at about 9.50am.

The Appellant said she was talking to a friend on her mobile telephone, she saw Ms. Scully and Ms. O'Neill and proceeded to speak to them. Ms. Scully had told her that service users were locked in No. 1. BR. The Appellant had replied by saying that they were in No. 3. The Appellant had then gone into No. 3 and reported back to the inspectors that the service users were in No. 3 and there was no-one in No. 1. At that point N, J and Y had come out of No. 3 and the Appellant had spoken to them and told them that she would not be able to take them to the day care centre, but a staff member would.

The Appellant said that she had received a telephone call from the police regarding the well being of the service users and she had told the police that the service users were in No. 3.

There had been a discussion about staffing with the Inspectors and the Appellant said that she had gone upstairs in No. 1 and photocopied a staff rota and given it to Ms. Scully. The Appellant said it was a rolling rota which Ms. Scully had seen before. The Appellant had explained that if a member of staff shown on the rota was off for any reason someone else would fill in and that it should be understood that it was only a small team of staff.

Later in the morning between 11.15am and 11.30am the Appellant said that she had spoken to Ms. Bailey on the telephone. The Appellant had asked Ms. Bailey to put in writing the information that Ms. Bailey required from her and the Appellant subsequently received a faxed letter from Ms. Bailey at 2.15pm on that day. The Appellant said that she had responded by fax at 2.40pm to the fax number given in Ms. Bailey's earlier letter. The Appellant produced a fax confirmation note indicating that 3 pages were sent.

At 4.45pm the Appellant gave evidence that she had received a telephone call from Ms. Bailey who said that she was at the Magistrates Court because she had not received a fax from the Appellant. At which the point the Appellant said that she told Ms. Bailey that she had sent a fax and had got the receipt, to which Ms. Bailey is said to have replied that it did not matter because she was at Court and the Respondents were applying to de-register the Appellant and the hearing was due to start at 6.00pm. The Appellant said that she told Ms. Bailey that she could not attend as she did not have any staff cover until 6.00pm and she had no legal representation.

The Appellant said that she then spoke to the Magistrate's Court Clerk who confirmed the nature of the application being made by the Respondents, said the hearing was due to start at 6.00pm and that it was important that the Appellant attended.

In giving evidence in these proceedings the Appellant was asked a number of questions about the running of MH including matters relating to staffing rotas, care plans, risk assessments, staff records and service users finances. In relation to staff rotas the Appellant said that it was a rolling rota. She did not normally put sleep-ins on to the rota. She purposefully left them blank. It was a small team of staff and the Appellant would ask a member staff to do a sleep in when needed.

As far as risk assessments were concerned the Appellant referred to the assessments for N and J which were in the Tribunal bundle. G was also said to have a risk assessment, but the Appellant stated that the social worked had taken it when looking at the files on the 7^th September, 2005. There were also care plans for each of the service users, the Appellant referred to the plans in the Tribunal bundle (which appear to be dated the 11^th March, 2008) and said that the Inspectors had seen care plans for the service users.

In relation to staffing both Panthon Hutton and Linda Richards they had CRB checks and that the inspectors had been told that renewals had been applied for. The Tribunal were referred to the notes made by Ms. Scully dated the 7^th September, 2007. In relation to Panthon Hutton; his file was said to contain a "letter from West Midland Care saying CRB application received on the 4^th September, 2007 – POVA 21/8/07". In respect of Linda Richards alongside the abbreviation "CRB" the notes read "Janice says they are on their way." There was another person (Linda Branga) who was doing nurse training and she came in occasionally to cover if staff were off sick. The Appellant said that in the circumstances she had not thought a CRB check was necessary, the matter had been discussed with the inspectors during the February, 2007 inspection.

As regards financial matters the Appellant confirmed that service users were charged for Sky TV depending on the particular package they had, they were also charged for using the minibus. The Appellant stated that the inspectors had in the past made comments in relation to the recording of the service users' money as J and N were always shown to be in deficit. The Appellant had been advised that she should use a different system. The Appellant stated that she had not been investigated by the police or social services regarding service users' finances.

Linda Richards told the Tribunal that if she was not available to do a particular sleep-in she would telephone the Appellant. She was shown a copy of a staffing rota but said that she did most of them but not all of them. When she was at MH she was always working with another member of staff. When working in the morning her duties were between 8.00am and 10.00am. She was there as G's worker, although normally she would get breakfast for all the service users, but on occasions N and J would go next door. In the evenings the Appellant cooked the service users a meal.

On the 7^th September she had done a sleep in the night before, G had showered early in the morning and Ms. Richards had agreed with the Appellant that she could leave early. She had left at about 8.15/8.20am by which time all the service users had gone to No. 3. Ms. Richards also told the Tribunal that the Appellant employed a cleaner to do N and J's rooms and the cleaner normally came in sometime between 9.00am and 10.00am.

Ms. Richards gave evidence that she had had a CRB check until it had run out, she had completed a renewal form a few months before September, 2007 but did not recall receiving anything back.

Mr. Panthon Hutton gave evidence that he was a support worker at No. 3 and had been there for four years. He had completed a CRB application form in 2004, and a further form at least two months prior to September, 2007. He did not know what the abbreviation POVA stood for and had not himself made the application. He had filled in a form in 2004 which either the Appellant or Keeling Hutton would have processed. He had filled in a further form in 2007.

On the 7^th September, 2007 Mr. Hutton said that he had arrived at work before 8.00am and had been on duty at No. 3. He said that it was a regular occurrence that residents from No. 1 came round the back to No. 3 to see their friends. There was a rear fence between No. 1 and No. 3, but panels from the fence had been taken out. The three service users at No. 1 N, J and G had come over to No. 3. The Appellant had spoken to him on that morning and said that she was going for a walk. Mr. Hutton said that he regarded that as unusual as she did not normally go out for walks at that time. He had not been aware that any of the three service users from No. 1 had gone back to No.1. He thought somebody must have let them in.

He was aware of the needs of N, J and G and was also familiar with the eating arrangements at No. 1. He said that there was a bulk cleaning at No. 1 on Mondays.

The Appellant not being able to attend the Magistrate's Court hearing on the 7^th September said that she had contacted a friend a Mr. Lloyd Blake and asked him to attend on her behalf. Mr. Blake signed a witness statement dated 10^th February, 2008 in these proceedings and gave oral evidence. He said that he had spoken to the Appellant on the telephone on the 7^th September and he had agreed to go to the Magistrate's Court on her behalf which he duly did arriving at about 6.30pm, by which time the hearing was already underway. The Magistrate having heard Mr. Blake, refused to adjourn the hearing and matters continued. Mr. Blake said that he was later allowed to speak by the Magistrate and he relayed to the Magistrate information about the day's events at MH that had been given to him by the Appellant, including her assertion that she had sent a fax to the Respondents at 2.40pm that day. The Magistrate having heard the evidence made an order cancelling the Appellant's registration.

After the hearing Mr. Blake said that he went to MH, he having been made aware that the Respondents were proposing to move the service users immediately. He was at the premises when officers from the Respondents arrived. He did not think that matters were dealt with fairly. He considered that the action of the officers was more like "a police raid". He described the Appellant as being unbelievably calm. When the service users were told they had to go, there had been some crying and screaming.

Mr. Blake said that he had gone into different rooms at MH on the 7^th September and the place was impeccably clean. He had not seen any room in a poor state and in particular he had not seen a bed supported by bricks.

Ms. Bailey, Ms. Fairgrieve and Ms. Heale all gave evidence that they had attended MH on the evening of the 7^th September. In addition, Ms. Sharon Muxworthy, a Project Manager with Birmingham City Council Learning Disabilities Service gave evidence in a written witness statement dated 19^th March, 2008 and also attended the Tribunal hearing stating that she had attended.

Ms. Bailey stated that she had attended MH to serve the Cancellation Notice on the Appellant. She had been accompanied by Ms. Heale and some social workers from her team. The social workers had spoken to the service users and started to prepare them for their move. Ms. Bailey stated that she had found the Appellant to be very uncooperative. She had not readily provided the service users medication, care plans or their cash and valuables. Ms Bailey had gone into one of the service users' bedrooms which she had found to be in a poor condition and smelling of urine.

Ms. Heale's evidence was that she had arrived at 1 BR at around 7.30pm. She had looked into the kitchen and seen cupboards with padlocks and that she could not recall having seen a cooker. Further that there had been children's toys in the living room and clothes on the downstairs bedroom floor. She had noticed that G's bed was wet and that there was a strong smell of urine. She had travelled with N to the alternative accommodation that had been arranged at Brook House. On arrival all three service users said they were hungry.

In the case of Ms. Muxworthy she stated that she was present on the evening of the 7^th September to assist with the transfer of the service users from MH to Brook House. Whilst at MH she had gone into various rooms including the service users rooms and the living room. The conditions in N's room she described as poor, with the bed being broken and the mattress stained. G's room smelt heavily of urine and was sparse with very few personal items on display. The living room was relatively bare and unclean.

Ms. Muxworthy was concerned about the lack of financial records produced by the Appellant in relation to the service users' finances.

She said that she had not weighed the service users on arrival at Brook House and she had no real concerns about their weight.

The Appellant gave evidence that the cupboards in the kitchen were locked. There were some children's toys in the lounge, but it was untrue that the service users' bedrooms or any other part of the house were unclean or in a poor condition.

The Appellant said that when she had been told by Mr. Blake of the outcome of the Magistrate's Court hearing, after the service users had had their tea, she had told J and N the position. They had "got uptight" but the Appellant had told them to be pleasant to those that were coming to collect them and that the Appellant would sort matters out. The Appellant had not told G, he was 73 and had been at MH since 1995 and the shock of being told that he had to move, might harm him. He went to bed.

When Ms. Bailey and the others arrived the Appellant got G up, brought him into the lounge, he was extremely distressed and had started screaming. The Appellant had handed over to Ms. Bailey J and G's bank books, but had told her that N had his own book. She had been asked for the service users' medication which she had also handed over to Ms. Bailey.

The Findings of the Tribunal on the Evidence

MH has been a registered care home since 1993. It is an end of terrace property with rooms on the ground and first floor. The registered proprietors are Mrs. Janice Hutton and Mr. Festus Hutton. Mrs. Hutton also has an interest in other properties in BR, next door at No. 3 and also No's 12 and 49, all of which are said to be providing supported accommodation.

MH is registered for three service users with learning disabilities over the age of 65. As at the 7^th September, 2007 there were three male service users in residence. We did not have the benefit of seeing social worker assessments of their level of disability and needs or social work reviews of their needs. It would appear however from the evidence that N is aged 49 has been MH since 2002, and is epileptic, for which he receives some medication, he has some learning difficulties, is active and independent, attends a Day Care Centre and has a close relationship with a lady "Y" at No. 3. J is aged 71, has been MH since 1995/96, has some learning difficulties, is independent, attends the Day Centre and is also friendly with Y. G is aged 73, has been at MH since 1996/96. Ms. Scully stated that G needed 24 hour care was diabetic and on medication. We saw no medical records relating to G, but the Appellant stated that he was not diabetic but that his diet needed to be controlled. She also said that he was very dependent for personal care, that he attended the Day Centre, but was always taken on a minibus. At No. 3 it was reported that there were three service users, two female Y and J and one male D.

MH has been inspected by the Respondent on five occasions between the 15^th December, 2004 and the 19^th February, 2007, copies of those inspection reports were produced in these proceedings. In June, 2004 the Appellant had made a formal complaint against the Respondent and the inspector who up to that point had been the lead Inspector for MH. One aspect of the Appellant's complaint was upheld by the Respondent. The inspector concerned was not involved in any of the inspections to which we were referred.

Ms. Scully told us that she had been involved in all inspections between 2005 and 2007. The inspection reports suggest that she was accompanied on these inspections by another inspector Ms. B. O'Neill from whom we did not hear any evidence. The inspection which took place in February, 2007 produced seven statutory requirements which were to be complied with by the 1^st April, 2007.

In the event, the Respondent did not re-inspect MH until the 7^th September, 2007 when Ms. Scully and Ms. O'Neill attended. They met outside the premises at about 8.20am. Ms. Scully gave evidence that while she was in discussions with Ms O'Neill in Ms. O'Neill's car, that she had been told by Ms. O'Neill that she had seen the Appellant drive away. Ms. Scully said in evidence that it had not seemed prudent to stop the Appellant and speak to her. We find this surprising given that there were outstanding statutory requirements from the previous inspection that the Inspectors wanted to discuss with the Appellant.

We accept Ms. Scully's evidence that she had knocked at No. 1 and that she had seen N and J come to the front door and try and unlock it without success. Whilst this was happening Ms. Scully stated that Ms. O'Neill had knocked at No. 3 and obtained no answer. It is not clear that Ms. Scully actually saw Ms. O'Neill do this and we heard no evidence from Ms. O'Neill herself.

Later, after the Appellant's return N, J and G had all come out of No. 3, there is no suggestion that they had passed in front of the inspectors from No. 1 to No. 3, therefore the only credible explanation in our view is that they must at some point have gone via the rear of the properties. Mr. Panthon Hutton whose evidence we accept, said that it was possible to go through the properties via a missing panel in the rear fence and that on the morning of the 7^th September, the three service users from No. 1 had come round to No. 3 in that way to see their friends. The fact that they had friends at No. 3 is not in dispute and is referred to in the inspection reports.

After they had reached No. 3, Mr. Hutton says that his mother came round and told him that she was going for a walk. The Appellant gave evidence that she had locked the front door at No. 1 and this probably accounts for the fact that neither N nor J were able to open the front door for the inspectors. We find that on the balance of probability, that N, J and G did go from No. 1 to No. 3 via the rear of the properties.

81. The question then arises as to how N and J got back into No. 1 to be seen by the inspectors. The Appellant and Mr. Hutton gave evidence that the Appellant's mother an elderly and frail lady was in No. 1 that morning. Given the time that these events took place, we think it likely that she had stayed at the property overnight. On a balance of probability and in the absence of any other credible explanation we take the view that N and J were let back into No. 1 by the Appellant's mother. N and J subsequently appeared at the front of No. 3, it must be assumed therefore that they went round the back of the properties again.

Where the service users put at serious risk at this time?

The Appellant had let the sleep-in member of staff, Linda Richards go early and then had herself left No. 1 for about 1 hour. There was some dispute as to why and where she had gone during that period, but that is perhaps not the most material factor, the important point in our view is that she had left No. 1 with no member of staff in attendance. However, we accept her evidence supported by both Ms. Richards and Mr. Hutton that she had left at a time when she had ascertained that the three service users from No. 1 were at No. 3.

Although Mr. Hutton was employed as a support worker at No. 3 he also stated and we accept, that he worked at No. 1 and was familiar with the needs of the service users, including for example N's epilepsy. We therefore take the view that he was in a position to care for the service users during the Appellant's absence. It is true to say that N and J had returned to No. 1 without his knowledge, but given the close proximity of No. 1 and the level of independence of both N and J, coupled with the fact that they were familiar with going between the two properties, we do not consider that they were seriously at risk. They were not locked into No. 1 as evidenced by there entry and exit, we note that all three service users were seen to leave No. 3 by the two inspectors but no attempt was made by either inspector to speak to them or to ascertain whether they were concerned or upset in any way with what had happened.

Mr. Spencer in his submissions said that in looking at the Respondent's decision to seek an urgent cancellation of the Appellant's registration and the Magistrate's decision to grant that application, we should look at all the evidence regarding the Appellant's running of MH. Mr. Spencer set out various matters which the Respondent considered made the Appellant unfit to be registered, including matters relating to the staff rotas, staff checks, the state and use of MH, residents' finances, medication, risk assessment and care plans.

The appeal to the Tribunal is a re-hearing and therefore we can admit evidence which may have previously been overlooked or which related to events after the Magistrate's decision. In this case a number of matters to which Mr. Spencer drew our attention were considered by the Respondent in making the application to the Magistrate.

However in this case we consider that the matters referred to by Mr. Spencer and indeed the totality of the way in which the Appellant has run MH, must be seen in the context of the inspections of MH carried out by the Respondent, particularly those between December, 2004 and February, 2007. There were a total of five inspections in a period of just over two years.

There had clearly been difficulties in the relationship between the Appellant and the Respondent prior to June, 2004 but it would appear that from the time Ms. Scully became the lead inspector relationships had improved.

At the end of the March 2005 inspection, there were 21 outstanding statutory requirements compared to 46 in December 2004. In August 2005, this was reduced to 8 and all of the National Minimum Standard ("NMS") inspected had either been met or nearly met. In February 2006, there were no outstanding requirements. The Inspectors recorded on that occasion that:-

"BR is improved significantly over the last three inspections and the manager has shown commitment to improving the service…"

The most recent inspection took place on 19^th February 2007 when all NMS assessed were either met or almost met. There were 8 statutory requirements to be complied with by 1^st April 2007. Despite proposing the date of 1^st April 2007, the Respondent did not try to inspect again until 7^th September 2007. It must be concluded from that these were not matters which the Respondent considered so serious that it was contemplating any sort of enforcement procedure on the 1^st April, if there was no compliance .

The Respondent during the inspections between 2004 and 2007 had ample opportunity to inspect all matters to which Mr Spencer referred and indeed at various times did so.

The picture presented by the inspection reports, which we must assume to be accurate, do in our view show an improving service. Although clearly there were areas to be improved, but not to such an extent to lead us to draw the conclusion about the Appellant's fitness to run a care home that we were invited to make by Mr Spencer.

It is not clear to us that in deciding to proceed with the urgent application to cancel the Appellant's registration that sufficient weight was given to the contents of the Inspectors' reports, or the fact that this was a home which had been run by the Appellant since 1993 and that the inspection reports consistently recorded that the service users, who had been in situ for some time, considered that they were well looked after and comfortable.

At the Adult Protection Meeting held on 7^th September 2007, an assessment of risk was carried out by those present which was no doubt a factor in the Respondent's decision to proceed to Court. We consider that parts of that assessment (as recorded in the minutes of the meeting) were flawed.

It was stated at paragraph 8.02 that:-

"Care staff have not been POVA and CRB cleared".

Mr Spencer in his submissions conceded that it was not compulsory to review CRB checks after three years, although it was good practice. In this case, we accept the evidence from Ms Richards and Mr Hutton that they had had CRB checks and it was their renewals which had not been fully processed. It was therefore not the case in our view that they could be described as not having clear CRB and POVA checks. It is true that there was another member of staff mentioned in the February 2007 inspection, who had been working as required at MH in between completing nursing training, where the Appellant had told the inspectors that she was in the process of completing her CRB check. However, to state that care staff had not been POVA and CRB cleared was in our view misleading.

At paragraph 8.03 it was stated that:-

"Staff duty rota not available to CSCI."

The Respondent had the opportunity during some if not all inspection visits to look at the Appellant's rota's, and a rota had been given to Ms Scully by the Appellant on 7^th September. It may not have been satisfactory from the Respondent's point of view, but again to state that the staff duty rota was not available does not give the whole picture.

At paragraph 8.04, it is stated that:-

"Levels and standard of care not known."

As already indicated, a number of recent inspection reports were available which set out in some detail the standards of care which were being provided.

At paragraph 8.05, it is stated that:-

"Failure to cooperate with CSCI."

The Inspection Reports all convey the impression that the Appellant has been cooperative in their dealings with the Inspectors. On 7^th September 2007, the inspectors may not have liked her attitude, but she had provided a rota and had attempted to fax information.

We have other concerns about the way in which matters were dealt with on 7^th September. Ms Bailey's letter requiring the Appellant to give further information was not sent until 2.14pm despite clearly being urgent, and it only gave the Appellant until 2.30pm to comply. The fax number to which the Appellant was required to send information was wrong.

When at the Magistrates Court, Ms Bailey spoke to the Appellant on the telephone and was told by the Appellant that the information requested had been faxed, yet the Respondent decided to proceed immediately to Court in any event.

At the Hearing, the Magistrates were told that the Appellant had failed to provide staff rota by the deadline. It is not clear whether the Magistrate was told that the Appellant had been given sixteen minutes to comply. It is also suggested in the Court Clerk's notes that it was said that the police had entered the premises, but we heard no evidence that the police had ever attended at MH on that day. It is also not clear that the Magistrate was told about the relationship between the service users at number 1 and number 3.

The Clerk's notes record Ms Scully as saying that J required 24 hour care, although Ms Scully told us that she could not recall having said that. There is no indication that the Magistrate was told how long the three service users had been living at MH, their level of independence or their views previously expressed to Inspectors about their care. Finally, there does not appear to be any reference to the inspection regime and the findings of earlier Inspection Reports.

The Law

Section 20 of the Care Standards Act 2000 provides that on an application to a justice of the peace for an order cancelling the registration of a person in respect of a care home, the justice may make an order cancelling the registration with immediate effect. If she or he is satisfied that, unless an order is made, there will be serious risk to a person's life health or well being.

There is an appeal against the order made by the justice of the peace. On hearing the appeal the Tribunal may confirm the order or direct that it shall cease to have effect. As we have already indicated the appeal is by way of a rehearing.

The Care Standards Act 2000 gives the power for the introduction of Regulations imposing and making provisions in relation to Care Homes. The relevant regulations are the Care Home Regulations 2001.

Section 23 of the 2000 Act empowers the appropriate Minister to prepare and publish statements of national minimum standards applicable to establishment and agencies. Section 23(4) requires the registration authority and the Tribunal to take those standards into account when making any decision.

Conclusions

The basis of an application under Section 20 is where there is a serious risk to a persons life or well being. It is not in our view designed to be used in circumstances where the registration authority has concerns about the running of an establishment, serious as those concerns maybe, where there is not an immediate risk to a persons life or well being. The effect of an immediate closure may have traumatic effect on the service users concerned, many of whom are likely to be very vulnerable. It will also have a dramatic effect on the care home concerned, even if they successfully appeal to this tribunal that is likely to be many months after the home has closed and the original residents have been moved elsewhere.

It therefore follows in our view that the registration authority in making a decision to proceed and use the urgent procedure needs to take account all the surroundings facts, including the outcome of previous inspections and the views of the residents, as well as the particular incident or incidents which may have given rise to the immediate concern.

As we have indicated we do not consider that the residents at MH were at serious risk on the 7^th September 2007 and we have concerns about the way in which the Respondents decided to proceed. Although previous inspection reports did raise some concerns they had not been thought serious enough to warrant any enforcement action. The issues relating to CRB checks, care plans, state of the property and rotas etc are all important but given they had all been inspected in the recent past insufficient weight was given to those findings as against what was found on the 7^th September or indeed since. The staff who were working on the 7^th September had had CRB checks and care plans had previously been seen. A rota did exist, it was far from perfect, but a similar rota had been in operation for some years and there was no evidence that residents had been placed at risk. These were all matters which in our view should have bee dealt with during inspections and not as part of an urgent cancellation.

Again because of the nature of the application it is vital that the information on which it is based is thoroughly checked and confirmed. In this case there were a number of unfortunate errors, which we have already identified, such as the information presented to the adult protection meeting, the use of the wrong fax number and the information given to the magistrate as to the needs of the residents. In circumstances where the magistrate is being asked to make an order, where the care home may not be present or only have received very short notice, it is imperative that all information is correct.

We would not wish to dissuade a registration authority from making an urgent application to protect vulnerable residents, but it needs to be in circumstances were all relevant factors are considered and dealt with considerable care.

Accordingly our unanimous decision is:-

APPEAL ALLOWED

Stewart Hunter

(Nominated Chairman)

Ms Gillian McGregor

Mr Peter Sarll

Date: 4^th September 2008