QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF "W"||(CLAIMANT)|
|NATIONAL CARE STANDARDS COMMISSION||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR ROGER McCarthy QC and MISS TINA COOK and MR A WITHENDON (instructed by Legal Department of National Care Standards Commission) appeared on behalf of the DEFENDANT
Crown Copyright ©
"You are not a fit person to be concerned in carrying on a residential care home."
Six main allegations were given in support of that notice.
The legislative background
"ought to be possible for an appellant and a tribunal to discern from the [statement] the factual matters in issue and the legislation relied on."
"The appellant, the registration authority or any witness may produce in evidence any document or information notwithstanding that such document would be inadmissible in a court of law and the tribunal may receive in evidence such document or information if the chairman of the tribunal is satisfied that it is desirable in the interests of justice to receive it."
Thus the tribunal is not bound by the rules of evidence and the chairman is given a wide discretion to include all evidence he or she thinks it is just to receive. At the conclusion of the hearing the tribunal is bound by Rule 11 (2) to -
"notify the appellant and registration authority in writing of the decision and the reasons for the decision."
The Statement of Reasons
"There was no conclusive evidence about this and even if we accept that she did it it does not invalidate all of what she said. We bore it in mind when weighing up the evidence."
"used bad, foul and blasphemous language on a regular basis to both staff and residents and that the use of such language in a residential home is unprofessional and could be intimidating and demeaning to the recipient."
The tribunal went on to remind itself this was one aspect only of the test of fitness.
"We find that the appellant was unable to detach her personal views and feelings about some professionals, in the interest of the residents, and as part of an ongoing professional relationship."
" ..... if this was the only matter complained of it would not be a ground for cancellation in itself. The late reporting was a mistake but there was no attempt to cover up or hide the allegation. Where the allegation is so serious ..... we would expect a home owner to submit the report to the respondent in writing."
"a sound witness. She had no reason to make up such an event."
They found this ground made out.
"After considering the oral and written evidence we have found a substantial number of the respondent's reasons for cancellation to be well founded. We therefore find that the appellant is not a fit person. It was with some hesitation that we came to this conclusion. The appellant is a forthright woman in her early forties, who spent her own childhood in the care system. She stated that her motivation in starting her care work was to show that someone with her background could overcome it and help others. We do not doubt her sincerity and we expect that in the early years of her homes she was successful in her aims. We accept that many of the residents improved initially while at one of the appellant's homes. However by early 1999 she had 5 homes, 24 residents and 42 staff. The nature of the residents had changed in that they were a more challenging and complex group of people. In addition care practices develop and change, and the appellant failed to keep up with current methods of caring for such a client group, with particular reference to control and restraint, and encouraging independent living. In response to this investigation, while we bear in mind that she complained that the allegations were not specific enough, her response was one of denial.
She has failed to be open minded and we do not consider that she is likely to be able to change her management style. She is a very determined woman who insists on having her own way. We find that her means of dealing with staff residents or professionals who disagreed with her is one of confrontation and intimidation. With the increasing demands on her and her staff her response was one of control and rigidity. She did care for the residents but she could not accept criticism or even suggestions for change, and she was not able to listen to advice."
They therefore dismissed the appeal. In this part of their decision the tribunal was plainly concerned to reach its overall view standing back from the particular allegations with which, no doubt, most of the hearing had been concerned.
"The duty to give reasons pursuant to statute is a responsible one and cannot be discharged by the use of vague general words which are not sufficient to bring to the mind of the recipient a clear understanding of why his request ..... is being refused."
"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted."
That passage suggests a three-stage process, the outlining of the story, the summary of basic findings of fact and a statement as to why and how those findings of fact lead to the final decision.
"So far as the findings of fact are concerned, it is helpful to the parties to give some explanation of them, but it is not obligatory."
"That reasons have to be given for the exercise by a tribunal of a power, even a discretionary power, is not in dispute ..... But it is not necessary, in my judgment, that the decision-maker should tabulate in his decision each and every factor either way which he took into account in reaching his decision, with the consequence that the decision can be challenged if it can be suggested that anything not actually specified in the decision as taken into account could have been relevant. The position is much the same as with decisions of industrial tribunals."
The question of the general atmosphere in the homes
Dealings with other professionals
"We find that the appellant was unable to detach her personal views and feelings about some professionals, in the interest of the residents, and as part of an ongoing professional relationship." [emphasis added].