England and Wales Care Standards Tribunal

 


Marshall (Harvest Residential Care Home) v-Commission for Social Care Inspection [2007] EWCST 1189(EA) (13 October 2008)

Marjorie Marshall (Harvest Residential Care Home)
-v-
Commission for Social Care Inspection No. [2007] 1189.EA
DECISION
Before Mr I Robertson (Chairman) Ms J Funnell Ms J Wade

Sitting in Pocock Street

On 12 June and 29 and 30 September 2008

Representations

The Appellant was represented by Mr W Lewis of counsel

The Respondents were represented by Ms S Broadfoot of counsel

THE BACKGROUND

1. This application relates to a Care Home known as Harvest 1. Its proprietor is Marjorie Marshall. It was registered as a care home for up to 3 persons in the category of mental disorder on 10 October 2001 by the London Borough of Croydon. On 26 September 2005 Ms Marshall submitted an application to be registered as a provider of a new care home "Harvest 2". It transpired that on that application form Ms Marshall, had given a false date of birth, had failed to disclose previous convictions and had failed to reveal details of a previous surname that she had been known by. Her application was refused and she appealed this refusal.
2. That appeal was heard by the Care Standards Tribunal on 17 and 18 November 2006. In a carefully worded decision the Tribunal dismissed the appeal finding;

"We therefore conclude that the decision by Ms Marshall to omit her name and details of previous convictions from the application form was a deliberate attempt on her part to deceive the Commission into believing that she had no previous convictions and similarly in relation to her non disclosure of her former name of Wilkinson on the CRB form that this was an attempt to prevent the Commission from finding out about her previous convictions"

3. The Commission, once the decision was promulgated (and confirmed upon review), looked carefully at both the running of Harvest 1 and also the documentation presented to the local authority at the time the Home was registered. It became apparent that the same deception had been practised on the original application. The Commission also had concerns about Ms Marshall's probity in other areas of her practice and also about the running of the home generally. A Notice of proposal to cancel registration was served on 10 September 2007 and Notice of Cancellation served on 1 November 2007 for the breach of the requirements of the Care Home Regulations 2001 (the Regulations) citing that the requirements of Regulation 7 (personal integrity), Regulation 10 (management issues) and Regulation 19 (employment of staff) had been breached. Ms Marshall did not respond to the Notice of proposal to cancel registration other than on 3 October to state that she was seeking legal advice. Ms Marshall appealed to this Tribunal on or around 3 December (although the application is undated).
4. Application was made by the Commission to strike out the Appeal. This application was heard by the deputy President on 25 March 2008 when he dismissed it giving detailed reasons for this. On 12 June we adjourned the matter to be heard on 29 September with a time estimate of 4 days

PRELIMINARY POINT ON PROCEDURE

5. The Commission's case in opposing the appeal has two strands. To put matters crudely the first relates to fitness and integrity and the second to the running of the home. It is well established that in cancellation appeals the burden of proof normally lies upon the Respondent. It is equally well established that on appeals against refusal of registration the burden is shifted to the appellant. The rationale for this is that in the case of cancellation one is taking away a person's livelihood and it is for the Commission to show that this is both reasonable and proportionate. In refusal cases it is the appellant who is setting up a new business and it is for them to show that they are fit to do this and that what they offer is appropriate.
6. The Court of appeal in Peter Jones v CSCI CI/2004/1007 considered, inter alia, the question of the burden of proof (this was a refusal case) Lord Justice Thomas said as follows;

"I add a very short word of my own because of the general importance of the issue on the burden of proof. Bodies charged with regulation are frequently entrusted with the task of determining whether a person who seeks to hold a position of trust is a fit and proper person to hold such a position. There have been instances where the regulatory body has been uneasy as to whether the person in fact is a fit and proper person; in such cases, because the provisions of some regulatory systems have been interpreted as placing the burden of proof on the regulator, the regulatory body has felt constrained to allow such a person to occupy such a position of trust, despite its doubts. To state that outcome demonstrates the fact that in such a case there may have been a failure of the legislative scheme in seeing that, in the public interest, positions of trust are occupied by persons who are demonstrably fit and proper, The interpretation of any legislative scheme is a matter of the construction of the particular scheme,"

7. Where there is a judicial finding that goes to the heart of a person's fitness it appears to us clear that the burden shifts even in cancellation cases. In this particular case there has already been a finding by this Tribunal that Ms Marshall is not a fit and proper person. It would make a mockery of the legislative scheme, which is designed to ensure that the regulatory framework protects the vulnerable, to ignore that finding and require the Commission to prove over again that she is unfit. The burden must shift in this case and it is for Ms Marshall to prove that she is a fit person as at the date the Tribunal sits to consider the matter.
8. We decided as a preliminary point therefore that we would hear this case in two stages. At the first stage it was the responsibility of Ms Marshall to prove on the balance of probabilities that she was now a fit person. In other words there had been such changes that we could be persuaded that she was now a person of good character and integrity whom we could have confidence in. If she failed to satisfy us of this her appeal would fail. If she did satisfy us the burden then shifts to the Commission to prove that her running of the home was conducted without sufficient care, competence and skill to justify cancellation. Although this approach may appear slightly cumbersome it is the only logical way to deal with such a hybrid appeal.

FITNESS INTEGRITY AND GOOD CHARACTER

9. In addition to the findings already made by the previous Tribunal in respect of Harvest 2 the Commission also pleaded that a number of additional matters were relevant to this point; namely a letter to the passport office wrongly detailing a Resident's date of admission into care, and an issue regarding the breach of professional boundaries in borrowing money from an employee (not pursued at the hearing). During the course of evidence other issues also arose in particular a false declaration as to the status of a member of staff, exaggerated claims regarding her qualifications and experience and a misrepresentation of her relationship with the Commission.

THE EVIDENCE

10. We had before us over 900 pages of material. Much of it was duplicated and frankly illogically prepared (see the Tribunal's comments and directions following the hearing on 12 June). We heard evidence from Ms Marshall and 3 character witnesses called on her behalf. We also considered other statements tendered by her from colleagues and friends. For the purpose of the first part of the hearing Mr Lewis on behalf of Ms Marshall did not require any of the Commission's witnesses to be cross-examined.
11. Ms Marshall produced two witness statements dated 16 May 2008 and 11 September 2008. She gave evidence before us. Her witness statements are robust and she repeatedly cited her Christian faith as being proof of her repentance of the mistakes that she made with regard to the application forms. She admitted that she had deliberately misled the Local Authority in 2001 but the reason was that she wanted to put the past behind her, This is a theme she returned to again and again in her evidence. Another theme is her belief that she was victimised by a particular inspector even invoking the spectre of racism. What does not emerge in her witness statements is any real contrition or understanding as to why her actions were so wrong.
12. In oral evidence Ms Marshall was hesitant. She appeared to have difficulty at times understanding the paperwork and grasping fully all the issues. Such was our concern and even that of her own counsel, that the Tribunal asked on three occasions whether she was able to read and fully understand the papers. She insisted on each occasion that she could.
13. She was asked in cross-examination about a letter sent to the passport office in January 2007 which erroneously stated that a Resident had been at Harvest 1 since October 2005 (it was October/November 2006). She refused to accept responsibility for this blaming her PA. (The same reason given before the previous tribunal regarding the application form). This letter was discovered following an inspection in January 2007 and she was informed about it in February 2007. She eventually wrote to the passport office on 13 April 2007 after a meeting with inspectors when this issue was specifically raised once more. The original letter may have contained a typographical error, however we are deeply concerned that firstly Ms Marshall blamed others for this mistake when the letter had been signed by her, secondly had failed to notify the authorities in a timely way when the matter was brought to her attention and thirdly when writing to the passport office used the phrase "it has just come to our notice". This is extremely misleading.
14. Of even greater concern was a matter that came out in evidence. During an inspection visit on 20 July 2005 the inspector raised the question of an outstanding CRB check in respect of a member of staff. She was told that the member of staff had left shortly after the previous inspection in February. Upon enquiring with residents and consulting rotas it was clear the staff member was still employed. Ms Marshall therefore deliberately lied. She knew this lie would be an issue for the Tribunal, it was set out in the paperwork, yet she chose not to raise it in either of her witness statements or examination in chief. When cross examined about it she prevaricated until asked bluntly by the Tribunal whether she had lied, at which point she accepted that it had been a deliberate deception.
15. In her witness statement dated 16 May Ms Marshall says as follows;

"I worked in other care homes before setting up my own. I was put in charge and ending (sic) up managing some of these care homes"

16. During the course of the 2006 Tribunal Ms Marshall produced a CV. It reveals that her only experience of working in the care home sector was as an agency worker between 1979 and 1983 when aged between 16 and 20. When cross examined about this she prevaricated some more. Firstly questioning the accuracy of her own CV and then saying that she meant that she managed rotas.
17. When describing her relationship with inspectors she says as follows in her witness statement;

"Over the next 5 years up to 2006 I received regular inspection visits to my Harvest Residential Care Home….. The inspectors were very happy with the service and I found then very helpful and supportive"

18. Ms Broadfoot for the Commission went through the inspection reports covering the period and the numerous criticisms complaints and requirements set out therein. It is clear that the phrase "very happy" is at best misplaced at worse a deliberate attempt to show the current inspectors, in comparison, in as bad a light as possible
19. Ms Marshall could not give any evidence that showed that changes had occurred since the finding in 2006. She cited as outlined above her commitment to the Christian faith as being the reason why things are now different. Yet she has become a born again Christian in 1996 and she could not point to anything that had occurred in the past two years that had significantly affected her.
20. Her character witnesses gave evidence as to her general good, kind and caring character. We are sure that Ms Marshall is well meaning, devout and loyal. We also formed a very favourable impression of her genuine desire to help people and use her skills to achieve good. Nothing anyone said however showed fundamental change in a professional setting.

FINDINGS

21. Where an adverse finding has been made against someone going to the heart of their integrity, it is incumbent upon them to show real change. It is an extremely high test. We would have expected Ms Marshall to have made a clean breast of all her misdemeanours in the past and accept full responsibility for them, to show real contrition and remorse, and present a clearly thought through action plan showing how any problems that previously existed would not recur.
22. We found no evidence whatsoever that Ms Marshall had learnt from the past. She failed to take the opportunity of these proceedings to make a clean breast of things. Instead she produced a witness statement that at best exaggerated her own experience, diminished genuine concerns and attempted to shift responsibility and blame onto those entrusted to regulate the service, including completely unacceptable and unsubstantiated claims of racism.
23. In evidence Ms Marshall could offer no real excuses for her lies and evasions other than effectively to say that was then and this is now. The lie that she told the inspector in July 2005 is extremely serious. It was said face to face, it was about a fundamental issue of CRB checks raised time and time again in inspection reports and critically it was stupid and so easily proved to be false. CRB checks are not just an administrative inconvenience as part of some politically correct dogma; they are there to protect both service users and staff from the predation of unscrupulous person's intent on mischief and harm. To treat them in such a cavalier fashion and to lie about failure to seek them shows a fundamental flaw in Ms Marshall's suitability and integrity.
24. In short therefore we found no evidence of change. Indeed what we found was that the lies and deceit were deeper and more profound than found by the Tribunal in 2006. Furthermore not only had Ms Marshall failed to learn from the mistakes she has compounded them, by failing to recognise why integrity and trust are so important. It is only through working in trust and partnership that a provider and regulator can ensure the comfort, safety and security of vulnerable service users.

DECISION

25. Appeal dismissed

This is the unanimous decision of the Tribunal

Signed

Ian Robertson (Chair)

Janice Funnell

Judith Wade

Date: 13^th October 2008