Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 59

P1247/14

 

OPINION OF THE LORD PRESIDENT

in the cause

ALT-NA-CRAIG LIMITED

Petitioner;

against

SOCIAL CARE AND SOCIAL WORK IMPROVEMENT SCOTLAND

Respondent

 

for judicial review of a decision by the respondent dated 19 March 2014 and published on 28 October 2014

 

For the petitioner:  RG Anderson; TLT LLP

For the respondent:  Carmichael QC; Simpson & Marwick

21 May 2015

Introduction

[1]        The petitioner operates a care home known as Alt-Na-Craig in Greenock.  The respondent, SCSWIS, is better known as the Care Inspectorate.  It is the statutory body responsible for maintaining standards in care services in Scotland.  Alt-Na-Craig is registered with the respondent under section 59 of the Public Services Reform (Scotland) Act 2010 (the 2010 Act). 

[2]        In its annual inspection report on Alt-Na-Craig dated 19 March 2014 and published on 28 October 2014, the respondent down-graded it on three of four aspects of its service.  The petitioner seeks judicial review of that decision. 

 

The statutory framework

[3]        The respondent is authorised to inspect care homes by section 53 of the 2010 Act.  Section 53(2) provides inter alia as follows:

“53  Inspections

(1)  SCSWIS may inspect –

(a) any social service …

 

(2) The purposes of an inspection under [subsection (1)(a) or (b)] may include-

(a) reviewing and evaluating the effectiveness of the provision of the services which are the subject of the inspection,

(b) encouraging improvement in the provision of those services,

(c) enabling consideration as to the need for any recommendations to be prepared as to any such improvement to be included in the report prepared under section 57,

(d) investigating any incident, event or cause for concern,

(e) in the case of care services, enabling consideration as to the need for –

(i) an improvement notice under section 62,

(ii) a condition notice under section 66 or a local authority condition notice under section 85

(f) reviewing and evaluating the extent to which the social service is complying with the integration delivery principles and contributing to achieving the national health and wellbeing outcomes,

(g) reviewing and evaluating the extent to which the planning, organisation or co-ordination of social services, services provided under the health service and services provided by an independent health care service is complying with the integration delivery principles and contributing to achieving the national health and wellbeing outcomes,

(h) reviewing and evaluating the effectiveness of a strategic plan prepared under section 29 of the 2014 Act in complying with the integration delivery principles and contributing to achieving the national health and wellbeing outcomes,

(i) encouraging improvement in the extent to which implementation of a strategic plan prepared under section 29 of the 2014 Act complies with the integration delivery principles and contributes to achieving the national health and wellbeing outcomes, and

(j) enabling consideration as to the need for any recommendations to be prepared as to any such improvement to be included in the report prepared under section 57 … ”

 

Paragraphs (a) to (c) appear to contemplate the making of periodical inspections to monitor the provision of services at care homes.  Paragraph (d) provides for an  ad hoc inspection to be made; for example, in response to an emergency.  Paragraphs (e) to (j) appear to set out purposes of inspection of a more general nature.

 

[4]        Section 54 provides inter alia as follows:

“54- Inspections under section 53: best regulatory practice

 

(1)  SCSWIS must prepare a plan for carrying out inspections in accordance with best regulatory practice.

(2)  The plan-

(a)  Must set out arrangements for inspections to be so carried out (including inspections of those services subject to self-evaluation),

(b)  May make different provision for different purposes.

(3)  For the purposes of subsection (1), “best regulatory practice” means practice under which (in particular) inspections should be carried out in a way that is transparent, accountable, proportionate and consistent … “

 

[5]        Regulation 3A of the Public Services Reform (Social Services Inspections) (Scotland) Regulations 2011 (SSI No 185) provides inter alia as follows:

“3A – Type and frequency of inspections

(1)  SCSWIS must inspect the care services listed in paragraph (3) at least once in every year.

(2)  SCSWIS must not give any notice of the date or time of an inspection to such a care service.

(3)   The care services referred to in paragraph (1) are –

a)  a care home service … ”

 

Factual background
The contract with the local authority
[6]        By contract dated 30 July 2013, the petitioner entered into a national care home contract with Inverclyde Council.  The contract regulates the petitioner’s duties in the management of Alt-Na-Craig and the payments made to it by the Council. 

[7]        An Enhanced Quality Award that supplements the contract rates is paid by the Council to care homes that attain a certain Quality Assessment Framework grade.  The down-grading of the petitioner’s care home has therefore had a financial impact on the petitioner. 

 

The complaints

[8]        Four complaints were made to the respondent about Alt-Na-Craig in 2013-2014.  In each case, the respondent made an unannounced inspection as soon as the complaint was received.  Some months later, it issued a letter setting out, inter alia, a detailed account of its findings and recommendations.  When the respondent investigates a complaint, the identity of the complainer is not disclosed in any correspondence with the operators of the care home.  However, the nature and terms of the complaint, the respondent’s inspection and its discussions with the senior management and staff will, I think, generally make the identity of the complainer obvious.  In each case, the respondent’s report discloses that on the occasion of their inspection its inspectors talked with, among others, several members of staff, and in each case with the petitioner’s solicitor. 

 

Complaint 1 – failure to communicate

[9]        Between 29 July and 21 October 2013 the respondent investigated several complaints by Ms O, whose mother is a resident at the home.  One of her complaints was that the petitioner had failed to carry out an arrangement made with the Council’s social work department that it would provide a weekly email to the family about the day-to-day care of her mother.  The respondent’s inspector made an unannounced visit on 1 August and an announced visit on 6 August.  The manager of the home told her that the arrangement had not been adhered to because of other priorities and time constraints.  The respondent upheld this complaint. 

 

Complaint 2 – failure to manage a resident’s constipation

[10]      Between October 2013 and 8 January 2014 the respondent investigated a complaint alleging that the petitioner had failed adequately to manage a resident’s constipation.  An inspector made unannounced visits on 2 and 7 October 2013.  She found that there had been a failure to administer the prescribed medication, and that there had been poor record-keeping in relation to the management of the problem and the administration of the medication.  The respondent upheld the complaint to that extent.

 

Complaint 3 – failure to record and respond to complaints

[11]      Between November 2013 and 4 December 2013 the respondent investigated a complaint that the petitioner had failed adequately to record and respond to certain complaints.  Two inspectors made an unannounced visit on 13 November 2013.  They found that a complaint made to the petitioner by a relative of a resident had not been recorded by the petitioner or treated as a complaint.  The respondent upheld the complaint. 

[12]      A letter from the respondent to the petitioner dated 23 December 2013 containing “revised additional findings” from this investigation said inter alia:

“During our complaint investigation on 13 November 2013, the following areas of concern were identified which were outwith the original complaint issues:

 

During our visit Mr Caplan talked to us by telephone.  He asked us to leave the premises and told us he was not prepared to provide information.

 

Mr Caplan discussed the complainant and the complainant’s relative in an inappropriate and unacceptable manner.  We intend to discuss this with Inverclyde Council commissioning team. 

 

We concluded that the quality of management and leadership was unsatisfactory when relatives cannot discuss concerns or complaints confidently and comfortably.”

 

Mr Tony Caplan is the husband of Mrs Sheena Caplan, the sole shareholder and director of the petitioner, and is the petitioner’s solicitor. 

[13]      As a result of this investigation, the respondent identified two areas of “expected action”:  first, that the petitioner should provide assistance to authorised persons to enable them to exercise the power of entry and inspection conferred by section 53(3) of the 2010 Act; and second, that the petitioner should ensure that any person holding or accountable for information would produce it if an authorised person were to consider it necessary or expedient.

 

Complaint 4 – termination of a service agreement

[14]      Between January 2014 and 22 April 2014 the respondent investigated a complaint relating to the termination of a resident’s service agreement.  An inspector made an unannounced visit lasting seven hours on 9 January 2014.  The petitioner was aware of the identity of the resident in question.  The respondent upheld the complaint.

 

Ms O

[15]      In 2012 Ms O was involved in acrimonious proceedings on an application for a guardianship order over her mother.  In her judgment the sheriff said of Ms O that “she considers that everyone is out-of-step with her mother’s wellbeing except her.”  The sheriff noted that Ms O opposed the application because of a family dispute. 

[16]      The making of the order led the Council’s social work department to arrange for the weekly email to which complaint 1 related. 

[17]      On being notified that the respondent proposed to uphold the complaint, Mr Caplan contacted Ms O’s siblings by telephone and by email to inform them of the complaint and to seek their comments.  In replying to the email, the other family members evinced hostility towards Ms O.   They indicated that they were pleased with the level of care being received by their mother and, in particular, with the level of communication regarding her care. 

 

The 2014 annual inspection

[18]      On 19 March 2014 the respondent carried out an annual inspection of Alt-Na-Craig in terms of Regulation 3A (supra).  Its report commented on “recent regulatory activity” concerning the petitioner’s compliance with recommendations made by its inspectors.  It mentioned the complaints that had been upheld;  but since the report related to an annual inspection, it detailed all aspects of the service provided by the home.  The respondent down-graded Alt-Na-Craig on three counts; namely, care and support; quality of staffing and management and leadership. 

 

The grounds of challenge

[19]      The petitioner contends that the decision to down-grade the home was based on the respondent’s decisions upholding the complaints;  that the respondent failed to give sufficient notice of the date and timing of the ad hoc inspections that followed on the complaints;  and that the complaint letters failed to give fair notice of the complaints.  The petitioner further contends that, in deciding whether to down-grade the home, the respondent should have disregarded the complaint of Ms O because she was vexatious.  The petitioner submits that in these respects the decision was unreasonable, contrary to natural justice and contrary to section 54 of the 2010 Act.  

 

Conclusions

The scope of this petition

[20]      This petition challenges the respondent’s decision to down-grade Alt-Na-Craig.  At the outset of the hearing, counsel for the petitioner sought leave to amend the prayer by adding a crave for judicial review of the decisions made by the respondent on the complaints to which I have referred.  In the original draft of the petition that was sent to the respondent on 24 May 2014, part of the prayer was to that effect; but that part was deleted before the petition was lodged.  I refused counsel’s motion on the view that (1) it represented a fundamental change to the basis of the petition; and (2) that it came far too late, the petition having been in dependence since December 2014.  If I had granted the motion I would have had to discharge the hearing.  There would then have followed a process of amendment, answers and adjustment that would in effect have started the process de novo. 

 

The decision complained of

[21]      Since the decisions of the respondent on the complaints are not open to review in this process, they fall to be treated as having been validly made.  But that point, in my view, hardly matters.  The respondent’s handling of the complaints is a side issue.  Of course, the lengthy report referred to the complaints and to the decisions and recommendations that followed them; but its findings were not confined to that.  The report set out a comprehensive evaluation of the petitioner’s standards of care in accordance with the respondent’s criteria.  Its findings were based on a detailed inspection by the respondent’s officials, on their discussions with the management and staff and on their examination of the relevant documentation.   The report specified “areas for improvement”, “requirements” and “recommendations” on aspects of care that were unrelated to the complaints.  For example, the report made a finding that the petitioner had recruited certain members of staff without sufficient references. 

[22]      On the basis of its findings, it was for the respondent as the regulatory authority to decide what action to take.  Section 54 of the 2010 Act required that the respondent’s re-grading exercise should be “transparent, accountable, proportionate and consistent”.  In my view, the respondent complied with that requirement.  The report was shown to the petitioner in draft and its comments were invited and taken into account.  The decision to down-grade the home was amply warranted by the findings in the report.  In my opinion, it was an entirely reasonable exercise of the respondent’s discretion.  

 

The criticisms of the handling of the complaints

[23]      Even if the petitioner’s criticisms relating to the complaints had been relevant in this process, I would have held them to be groundless. 

 

No prior notice of inspections

[24]      I do not accept the argument that because Regulation 3A expressly provides that an annual inspection should be carried out without prior notice, it was therefore the duty of the respondent to give notice of the ad hoc inspections on the complaints.  That does not follow.  The respondent’s statutory duty may require it to carry out an unannounced ad hoc inspection urgently.  If, for example, a resident sustains injury by reason of a possible health and safety breach (cf 2010 Act, s 53(2)(d), supra), it may be essential for the proper investigation of the accident that the respondent’s inspectors should get to the scene before any relevant evidence can be disturbed. 

[25]      I can see no basis for the argument that the evidence from the inspections was obtained by any irregularity;  but even if there had been any such irregularity, I would have thought that the respondent’s paramount responsibility for the welfare and safety of the residents would have required it to take notice of such evidence and, if need be, act upon it. 

 

Alleged lack of notice of the substance of the complaints

[26]      Although the letters intimating the substance of the complaints were anonymised, the identity of the resident concerned was obvious to the petitioner in each case.  The petitioner’s manager and staff were able to provide detailed answers to each complaint.  The respondent’s reports bear that out.  Counsel for the petitioner argued that in each case the interval between the initial letter given by the respondent on the day of an ad hoc inspection and the subsequent letter detailing the complaint and the respondent’s conclusions meant that the specification of the complaint was given only after the decision had been made.  I do not accept that.  The petitioner was never in any material doubt as to the nature of the complaints.  I have been given no evidence to suggest that the petitioner was in any way disadvantaged by the manner in which the investigations were carried out.    

 

Alleged vexatiousness of Ms O

[27]      It was for the respondent to judge whether or not to entertain Ms O’s complaint.  I fail to see why the sheriff’s comments on her in the guardianship proceedings could justify the conclusion that she was vexatious in relation to the petitioner;  but in any event, I cannot see how she can be described as having been vexatious in making a complaint that was upheld in part. 

 

Disposal

[28]      I refuse the prayer of the petition.