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First-tier Tribunal (Health Education and Social Care Chamber)
You are here: BAILII >> Databases >> First-tier Tribunal (Health Education and Social Care Chamber) >> Synergy Child Services Ltd (SCS) & Oras v OFSTED [2009] UKFTT 260 (HESC) (16 October 2009)
URL: http://www.bailii.org/uk/cases/UKFTT/HESC/2009/260.html
Cite as: [2009] UKFTT 260 (HESC)
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- The appeals are brought by the Appellants ( SCS, BJ and CK) against decisions by the Respondent (OFSTED previously the CSCI) of 18 June 2007 to cancel their respective registrations to operate children's homes and as managers in respect of two single person children's homes, the Den 63 Bancombe Road Somerton and 59 St Cleers, 59 St Cleer's Orchard Somerton.
- The legal basis for the Respondent's decisions is found in section 14 (1) of the Care Standards Act 2000 (the Act). It provides that the Respondent may at any time cancel registrations in respect of an establishment on any ground specified by the regulations or on the grounds that ' the establishment is being or has at any time been, carried on otherwise than in accordance with the relevant requirements ' which are defined as requirements imposed by the Act and any other relevant enactment.
- The Children's Homes Regulations 2001 provide the regulations which are to be complied with by the registered providers and managers.
- Regulations 9 (Registered person – general requirements), 11 (Promotion of welfare), 16 (Arrangements for the protection of children), 17 (Behaviour management, discipline and restraint), 23 (Hazards and safety), 25 (Staffing of children's homes), 26 (fitness of workers) and 30 (Notifiable events) were are all cited as relevant regulations in respect of the notice of proposal to cancel and the subsequent notice of decision to cancel registration.
- The Children's Homes National Minimum Standards (March 2002) provides standards for homes and requires, for example, that (Standard 20) persons notify the appropriate authorities within 24 hours of the occurrence of significant events. Standard 21 provides that relationships between staff and children must be based on clear professional and personal boundaries.
- The Tribunal makes a restricted reporting order under Rule 14 (1) (b) of the Tribunal Procedure (First Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (the Rules), prohibiting the disclosure or publication of the names of the clients involved in the case and directing that reference to them shall be by their initials so as to protect their private lives.
- It is for the Respondent to satisfy the Tribunal of the matters set out the Notices of cancellation and so they bear the burden of proof. The standard of proof is the civil standard of proof. The Tribunal held in Gedara [2007] 1158.PVA 1159.PC that,
- Before looking at some of the legal submissions and the main allegations made during the hearing we have set out a short history of the events leading to the issue of the notices of cancellation and describing briefly the main incident which led to the investigations by Respondent.
- In 1989 the Prospects Care Services Ltd organisation was set up by Mr Hyland. The company was a voluntary not for profit organisation and ran specialist children's placements for very disturbed children. Its registration was cancelled in March 2000. However the Registered Homes Tribunal allowed an appeal by Prospects Care Services Ltd which was upheld by the High Court. This decision by the RHT (decision 415) gave the background to Mr Hyland and the Prospects organisation. A number of the findings and observations in that decision will be referred to later in this decision. In 2000 SCS, Synergy Children's Services Ltd, also a voluntary not for profit company, was established by Mr Hyland. He was the director of the company and Mrs Hyland was the company secretary. Mr Hyland was nominated as the responsible individual.
- Mr Jacobs started working for Prospect Care Services Ltd, later SCS in November 1999; he started as a care assistant. Mr Jacobs was registered as a manager in 2002. He became the senior manager in January 2004 and has been the general manager since January 2005. The third appellant Mrs Kelly (née Dipper) started working for SCS as a residential care worker in February 2002 she was a registered manager from June 2004 a senior manager in January 2005 and appointed head of care in September 2006; she was away on maternity leave from 15 July 2005 to 2 January 2006.
- SCS provided specialist residential children's placements on a basis of single occupancy for children with severe emotional and learning disabilities and challenging behaviour. The homes were based in the Somerton area. The children cared for by SCS came from all over the United Kingdom and were clearly some of the most challenging cases to deal with in the children's care sector.
- On 7 March 2004 EC a young female person at SCS made an allegation that she had been hurt by a male member of staff. There was concern by the Respondent as to the way in which the matter had been handled in that Mr Hyland had conducted an initial discussion with EC at 9-45pm at night before the matter was reported to the relevant authorities.
- On 19 July 2005 there was an incident involving a young female resident SM and Mr Hyland. Following this incident the matter was investigated by the Respondent who was concerned about what had happened the way that it had been investigated and the failure to report it to the placing authority as soon as reasonably practicable contrary to Regulation 30 of the Children's Homes Regulations. In March 2006 the Respondent (CSCI) issued a report in respect of the SM incident, which required, inter alia, "Mr Hyland must undertake to work with young people only within clear professional boundaries: including zero alcohol usage when working and that the application of child protection procedures within the organisation are reviewed to ensure that no person (eg Mr Hyland) can effectively be beyond their reach."
- In September 2005 SCS took the children to Crete for a holiday; there was complaint after that holiday by two other holidaymakers at the resort that the party had been very loud and that in particular Mr Hyland had been drinking in the presence of children. The complaint was sent to the Respondent. The complaint was strongly refuted by SCS and no specific steps were taken in respect of it by the Respondent.
- On 12 December 2006 there was an incident involving EC. EC had gone to the Somerton Hotel, a public house in Somerton, and met Mr Hyland there. She was accompanied by two members of staff Ms Lawrie and Ms Stephen. Mr Hyland had drunk alcohol during the evening. At about 9:30 pm EC left the Somerton Hotel with Mr Hyland Ms Lawrie and Ms Stephen to walk home. There was a dispute between her and Mr Hyland regarding her mobile phone. On the way home EC was taken down to the pavement by Mr Hyland. When the group got back to her flat at Linden house Mr Hyland went into her bedroom with her and during a further exchange fell on top of her.
- The members of staff were very upset about what they had seen; they were clearly of the view that Mr Hyland had assaulted EC. Mr Hyland maintained that he had justifiably restrained EC. Mr Hyland Ms Lawrie and Mrs Docherty (the on-call manager who attended at Linden house to speak to the staff) all wrote up their accounts of what had happened on the evening of 12 December 2006.
- As a consequence of this incident the assault was reported to the police by Ms Lawrie (on 14.12.06) and reported to the Respondent by Ms Docherty (on 18.12.06). EC was removed from the placement by her placing authority on 20th December 2006. The Respondent interviewed Mr Jacobs and Mrs Kelly on 21 December 2006 and advised that Mr Hyland should be suspended while the matter was investigated. Ms Kelly and Mr Jacobs were further interviewed on the 7 and 9 February 2007 respectively. The Respondent attempted to interview Mr Hyland but this could not be arranged owing to his ill health.
- Notices of proposal to cancel registrations of SCS, Mr Jacob and Mrs Kelly were issued on 28 March 2007. The Appellants submitted their response to those proposals; these were considered by the Respondent and decisions to cancel registrations issued on 18 June 2007.
- The police investigated the allegations of 12 December 2006 and Mr Hyland was charged with common assault on EC on 1 February 2007. The matter came to court in April 2008. The tribunal had sight of the transcript of the criminal trial which took 19 days on various dates from 3 June 2008 until 23 April 2009.The verdict, guilty, was given with reasons on the 13th July 2009.
- SCS.
- Brett Jacobs and Claire Kelly
- The Notices of Proposal to cancel registration cited the relevant regulations, and gave the background and details of the grounds amounting to 29 pages for SCS and 24 pages for the other two Appellants. The notices stated that that SCS was 'no longer a fit provider to carry on its registered children's homes' and that Mr Jacobs and Ms Kelly were each, 'no longer a fit person to manage the three children's homes'. Following consideration of the Appellants written representations, 43 pages prepared by their solicitors, notices of cancellation were issued.
- One of the central issues in the matter for the Appellants was their view that the Respondent had not acted in accordance with due process and had breached the Appellants' human rights. Mr Hyland also denied that he had committed an assault and Mr Jacobs and Ms Kelly denied they had acted wrongly in response to the incident of the 12 December 2006. They denied the other grounds of the notices.
- For the Respondent, as outlined in the grounds for cancellation, the central issue was the incident of the 12 December 2006 and, the more general failure, to adhere to professional boundaries. These are the critical issues and therefore dealt with at length by the tribunal. The tribunal had read 15 lever arch files and sat for 19 days to hear the witnesses listed above. Much of the evidence on other matters is more shortly summarised in so far as it formed the background to the appeals and the decisions.
- On the first day of the hearing the Appellants submitted a 34 page skeleton argument to the tribunal and the Respondent outlining a number of alleged breaches of the Respondent's procedure and their human rights in particular article 6 of the European Convention on Human Rights (ECHR).
- They said 'The appellants believe that OFSTED has acted in a manner that is in clear breach of its statutory obligations and enforcement policy in using its statutory enforcement powers in the manner that it has. The appellants believe that this procedural irregularity therefore renders the decisions to cancel registrations as unlawful and therefore we respectfully argue that the appeals should immediately be upheld. It is our understanding that the tribunal are duty bound to consider the human rights and various other factors such as natural justice and the 'right to fully know the case against you' and the expectation of a 'fair and appropriate investigation process'.
- The Appellants said that the investigation by the Respondent's inspectors was flawed and not in conformity with their human rights. They repeatedly told the hearing that they considered the Respondent had acted unfairly, had made its mind up before concluding its investigations and only asked witnesses questions about the negative aspects of the case. The Appellants submitted throughout the hearing that the Respondent had not followed its own procedures and had not acted with due process.
- The Appellants argued that the Respondent had failed to provide adequate details of the nature of the case against them prior to the service of the notices of proposal to cancel registration. The Appellants said they never had the allegations against them specified until just before the tribunal hearing. They went on to say that article 6 of the convention (right to a fair trial) was being breached mainly because they did not know the allegations against them and because the whole procedure and due process was so faulty they argued the tribunal should find in their favour on that ground and stop the hearing.
- At an early stage, having read the papers supplied to us before the hearing and heard the Appellants submissions, we concluded that there was no breach of procedure or policy on the face of the investigation by the inspectors and that the Appellants did know the allegations being investigated. We further indicated that the issue would be borne in mind as the hearing progressed and as evidence was heard from the Respondent's inspectors.
- A further application on the grounds of a breach of human rights was made on the 13th July 2009 by the Appellants. The basis of this application was that the regulator had 'elicited information to suit their agenda rather than taking the lawfully required stance of full inquiry.' They requested that the lead inspector Mr Smith was called to give evidence next (and out of the proposed order of witnesses). The tribunal declined this request. Mr Smith gave evidence in chief on the afternoon of 14 July. He was cross examined for the afternoon of 20 July, all day 21st July and the morning of 22 July 2009.
- The tribunal was referred to the National Occupational Standards for Inspectors of health and social care for adults and children. We were also referred to CSCI's own document Policy and Guidance: Enforcement Policy. It appeared to the tribunal that the NOS document was a manual to be used for training; however we looked at that part of the document which addresses compliance with legislation through negotiation and enforcement procedures and we were satisfied that the Respondent had complied with the guidance in that document albeit that they said that it was not a document which they used in their work practice.
- The relevant paragraph provides 'civil law decisions are based on balanced opinion about fitness. Registration and inspection officers must provide sufficient valid evidence to support their judgement this means evidence of continuing failure to meet legal conditions and/or standards or of a very serious breach or action (our italics) which creates unfitness to look after children or vulnerable adults. Registered persons have the right to make written representations to the regulatory authority against any of these legal steps and have a right of appeal to a tribunal.' The NOS states that inspection officers need to issue the correct legal notices following appropriate legal procedures and present a report justifying the proposed action.
- Under the CSCI's own policy and guidance the Respondent states that it will enforce in a way that is fair, efficient and effective, transparent, proportionate and consistent across the organisation. The Respondent is bound by statute law and regulations. It is also bound by its own guidance and policy on enforcement.
- The Respondent said it was mindful of previous incidents and of the requirements and recommendations issued after the SM incident. They were also aware that the outcome from the inspections of CSCI prior to December 2006 were uniformly good. Mr Smith said that he considered that he had had a good relationship with the Appellants until January 2007.
- The Respondent maintained that a serious allegation had been made, and that it was duty bound to investigate what had been said. At the heart of the Appellants complaint was an issue of natural justice as to whether the inspectors had gone about their investigation with an open mind. In the circumstances of this case the Inspectorate believed that there had been a serious breach of the regulations during and following the incident of 12 December 2006. They followed their procedure of liaising with other agencies, social services and the police and in conducting their own investigations.
- On the 21 December 2006 they interviewed Mr Jacobs and Ms Kelly together and spoke about the incident on 12 December. They interviewed a number of members of staff. In addition Ms Kelly was interviewed on the 7th February 2007 and Mr Jacobs on 9th February to ascertain their side of events. Both were legally represented at the interviews in February.
- We noted that Mr Jacobs made a formal complaint to the Respondent on 7th February 2007, 'we feel that CSCI's current investigation is prejudiced and request that Ken Smith is removed from the investigation and replaced by an impartial person, prior to any further enquiries'. The Respondent replied that the complaint was noted and added "Please note that at this very preliminary stage, CSCI cannot accede to these requests. We have no information to suggest that this course is necessary, and so arrangements for the regulation of your service will continue unchanged. However the matters you raise will be considered in the course of the investigation of your complaint."
- The Respondent made attempts at the beginning of February and mid March, to interview Mr Hyland but were then told that he had been signed off sick until mid April. The Respondent then determined to serve the notices of proposal to cancel registration without that interview.
- The Appellants stated that there was no audit trail or plan for the investigation. However in this case there was essentially one central occurrence being investigated with Mr Smith as the lead and co-ordinating inspector in charge throughout. We noted that the Respondent had considered using the emergency cancellation procedure but decided not to do so and conducted the investigation the results of which were before us.
- We further conclude that the Appellants knew the main issues being investigated. These were addressed at the meeting on 21st December 2006, in the interviews in February 2007, the notices of the proposal to cancel, their own response to those notices and in the final notices of cancellation. We noted that the Appellants had legal representation and advice throughout the proceedings until the end of 2008.
- Tribunal hearing itself is compliant under article 6 of the Human Rights convention. Throughout the hearing we kept in mind the complaint of the Appellants regarding any possible instances of failure in procedure or natural justice. The tribunal rehears the whole matter. We were guided by the overriding objective of rule 2 of The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, 'to deal with cases fairly and justly.' The tribunal were especially mindful of the fact that the Appellants were acting in person. It endeavoured to be as flexible and, accommodating as possible to the Appellants; accepting the submission of additional documents and referral to documents throughout the hearing and being flexible in the way Appellants had time to question witnesses.
- We accept that the inspectors kept an open mind in their collection of evidence. They knew, by mid January 2007, that the CPS had indicated that Mr Hyland would be charged with the assault on a young person in his care; he was so charged on 1 February 2007. We find that the Respondent inspectors had conducted themselves properly. The incident was investigated, witnesses interviewed, two of the Appellants interviewed and a decision made. The Appellants were legally represented. There was no breach of due process or breach of the Appellants' human rights so as to justify the cessation of these proceedings. In addition the tribunal itself reheard the matter.
- EC is a female child who came to SCS in March 2003 when she was 14 years old. At the time of the incident she was 17 years old. She was a child who had had a troubled upbringing and was considered possibly to have Asberger's syndrome. She was on occasion violent, and could be aggressive. She was supervised by two members of staff at all times. There was a conflict of evidence about her presentation prior to the incident on 12 December 2006. Mr Hyland considered that she had been behaving aggressively just prior to the incident whereas other members of staff felt that EC had been behaving well and had been reasonably settled.
- On the night of 11th December EC had been upset and on the morning of the 12th December the witnesses Teresa Lawrie and Sue Stephen had taken her to see Mr Hyland at the smallholding owned by the company called Moorview. Mr Hyland said that EC should go to the doctor and the members of staff took her to her psychiatrist where EC talked about feeling stressed and not sleeping; the psychiatrist prescribed some medication to help with this. Ms Lawrie considered that EC had been fine during the rest of the day. Staff worked 24 hour shifts and Ms Lawrie and Ms Stephens worked from 9-30am on the 12 December to 9-30am on the 13 December 2006.
- Later that day, 12 December 2006, it was Mr Hyland's suggestion that EC was brought to the Somerton Hotel a public house in Somerton after her evening meal if she had behaved well during the day. The tribunal was told that in the past EC had made inappropriate phone calls on her mobile phone and her possession and use of the phone was subject to staff monitoring. While they were in the pub Ms Lawrie had EC's mobile phone because EC did not have a pocket or bag to put it in and had asked Ms Lawrie to look after it for her.
- The staff and EC went to the pub at about 6-30pm. Mr Hyland was already there; Sue Stephens said he used the phrase that he was, ' a bit pissed'. Mr Hyland said he had met friends before EC arrived. At the time he was on 'sick leave' as he had had an operation on his foot some two or three weeks previously. He was wearing an orthopaedic support on one foot and was using a walking stick. He had had a drink before EC came he played pool with her and did some magic tricks with her. On his own evidence he had drunk, a minimum of three alcoholic drinks whilst he was in the pub. Neither the staff nor EC had drunk alcohol.
- At about 9:20 PM EC and the staff went to leave the pub; Mr Hyland was with them. As they left the pub EC asked for her mobile phone back and Ms Lawrie said that at that point Mr Hyland became angry, his nose was touching EC's. She was standing with her back to the wall with Mr Hyland in her face. EC began to ask for the phone back and Mr Hyland asked her why she wanted it. He became very angry and was shouting at EC. He commented about her father saying 'did she want to go back to Reading after what he did to you'. (Apparently she had been abused by her father). Ms Lawrie said that they stopped and Mr Hyland grabbed EC's shoulder and pushed her along then they stopped again and he went close to her face again shouting at her; then as they walked along she said that Mr Hyland took EC down and EC was on the floor. She could not remember exactly how it had happened but that she was shocked and considered that it was not warranted. She said EC did not need to be restrained. Ms Lawrie then helped her up and said words to the effect, 'let's get back to the placement you'll be safe there.'
- Ms Stevens went ahead to open the placement. When EC Ms Lawrie and Mr Hyland got to the placement EC went straight to her bedroom and Ms Lawrie and Mr Hyland went into the bedroom with her. Ms Lawrie said that Mr Hyland was still shouting at EC and poking her and there was blood on EC's shoulder. She said that he brought his head close to EC's and then fell on top of her. He quickly got off and calmed down.
- Ms Stephens did not see this as she was calling the on call manager Ms Docherty. Ms Docherty came, as the on-call manager. She said that there was an atmosphere and that the smell of alcohol in the bedroom was 'quite overpowering'. The staff were very subdued and EC was 'very very quiet'. Mr Hyland said to Ms Docherty 'EC assaulted me this evening'; he then left. Ms Docherty said that Ms Lawrie then began to cry and said 'Steve assaulted EC' and she was upset because she had not stepped in to stop him. Ms Lawrie did not fill out a restraint form at that point but did make a handwritten note of the events later that evening which the tribunal had.
- In all important respects Ms Stevens confirmed the evidence given by Ms Lawrie. She said she could not remember the conversation on the walk back to the placement but that suddenly EC was on the pavement lying on her back: saying "it isn't fair".
- Mr Hyland in his evidence confirmed that he believed EC had been behaving in an unpredictable and potentially aggressive fashion in the days prior to the incident. He confirmed that he had met EC and the members of staff in the pub and that he had had a drink before they arrived. He was adamantly of the view that EC was about to 'kick-off ' just prior to the incident and that he had restrained her using a correct and accepted technique in order to protect her and himself. He said that EC had bitten him on his finger just before the restraint took place. When they got back to the placement he agreed that he had gone into EC's bedroom and said that he had accidentally fallen on her because he had overbalanced due to the fact that he was wearing a surgical boot following the surgery on his foot.
- The tribunal had the advantage of seeing the SCS physical intervention/restraint record completed by Mr Hyland; he said that he had dictated the information to the office. It was not clear when it had been done; it was countersigned by Mr Jacobs. In that report Mr Hyland confirms what happened on the evening he says that when the party 'began to walk towards the flat. After a few yards EC turned and bit me on the right index finger. As I (SH) felt her teeth enter my flesh I pulled her EC backwards onto the floor and released my finger'. We note that the report does not mention that Mr Hyland had been in the pub with EC until 9:20 and does not mention that he had been drinking nor does he mention the incident which happened in EC's bedroom when they got home.
- We saw the hand written notes made by Ms Lawrie on the night of the incident; she confirmed the accuracy of the notes in the evidence she gave verbally to the tribunal. She described that, 'SH then caught hold of EC's hair still pushing EC forward in the direction of the placement EC continued to shout that this was not her home, S Hyland then took EC down to the ground, after approximately 30 seconds SH and TL helped EC to her feet.' She recorded that SH continued to shout at EC when they got back to the placement, saying 'this has got to stop'. SH accused EC of biting him and explained that was why he had restrained EC.
- Finally we had the restraint form which had been completed by Ms Docherty after she spoke to the staff; this form had not been handed in to SCS. It was written on the morning of 13 December 2006 before Ms Docherty went on duty. It confirmed the details of the incident as explained by the two members of staff.
- We accept the evidence of the staff involved. They were sober when the situation took place. They were measured and careful in their evidence and very upset that they had not been able to protect EC. Mr Hyland had not wavered in his evidence but he had clearly been drinking and his report does not tell the whole story. We prefer the evidence of the two members of staff who were present in the street when the assault took place and, in the case of Ms Lawrie, present in the bedroom afterwards.
- On the evidence to the tribunal, we accept that what occurred was not a restraint on EC but was an assault. When the tribunal heard the evidence of Ms Lawrie and Ms Stevens the verdict of the criminal trial was not known. Both witnesses had given evidence at the trial. Subsequently on 13 July 2009 the District Judge in the magistrates' court found Mr Hyland guilty of an assault. We had the benefit of seeing his full judgement in the case.
- The District Judge said that he was "satisfied to the criminal standard that he (Mr Hyland) was intoxicated and that that intoxication induced him to behave in the manner he did. His lack of judgement no doubt caused by alcohol was monumental. When off duty to call EC to licensed premises when he had been drinking and continue to drink is wrong. He was off duty and to go back with Ms Lawrie and Ms Stephens was wrong. He was off duty and incapacitated. Then to go into her bedroom was the final straw of lack of judgement that evening… he tries to blame EC, a girl (en)trusted to his care for his own human frailties." The Judge did not accept that EC bit Mr Hyland or that she was doing anything wrong. He further accepted that EC's head banged the wall in the bedroom because of his action. We note that Mr Hyland is appealing the conviction however for the purposes of our deliberations the conviction stands.
- We accept that what took place was an assault. We also accept that the incident was an occurrence, a Child Protection issue, which was required to be recorded and reported to the placing authority under Regulation 30 and that it was not so reported within the time limits of the regulations or national standards.
- There was considerably conflicting evidence about what had happened after the incident on 12 December in particular what had been said, and when, to the two Appellants Mr Jacobs and Ms Kelly. Ms Lawrie said that she had not completed the standard restraint form; she said as she had not been involved in the ' restraint ' and did not consider that it was her duty to do that. However as noted above she had completed a three-page handwritten note of an account of what happened on the evening. She completed it that night. Mr Hyland completed a SCS restraint report. Ms Docherty completed a SCS restraint form; she did not hand in to SCS. Later it was made available to the Respondent.
- Ms Docherty attended at the property at about 9:50pm. She said that she had telephoned Ms Kelly before she got there and that she had telephoned her after speaking to the staff and had mentioned what had happened to EC. There was a conversation between Ms Docherty as on-call manager and Ms Lawrie and Ms Stevens after the incident. Certainly Ms Docherty remembers both members of staff being upset and that they told her Mr Hyland had assaulted EC.
- There was confusion as to how many telephone calls had been made by Ms Docherty and we saw two phone print outs; it is not critical to the decision but we accept that there were two calls one before she got to the house and one afterwards. The issue was whether she had mentioned an assault or not. Ms Kelly denied that Ms Docherty had told her of an assault on the phone that night. We accept that Ms Kelly was focused on the information about the new arrival at the house CH, but we do accept that Ms Docherty mentioned the incident with EC and that Ms Kelly said she would deal with it in the morning.
- On the morning of 13 December 2006 Ms Lawrie and Ms Stevens say that they went to see Ms Kelly; this is not in dispute. Ms Lawrie and Stevens both say that they told her that there had been an assault on EC by Mr Hyland and that they were confused and concerned about what had happened. Ms Lawrie said that Ms Kelly had told her that it would have to be investigated at a higher level or outside the organisation.
- Ms Kelly denied that they had used the word assault but she did acknowledge that Ms Lawrie had handed to her a photocopy of her notes made on the evening after the incident. However she said that she did not read these notes but put them on one side with her own notes of the meeting with the staff and that later these were handed over to Mr Jacobs. Ms Kelly became upset when questioned about this meeting. She said 'If I could turn back the clock I would. I should have read the notes' and 'I did something wrong.' We noted that Ms Lawrie had not given her original notes to Ms Kelly as she was concerned they might be changed or destroyed; she said she was unsure who to trust.
- Ms Kelly phoned Mr Jacobs, at 10-00am, during her meeting with the staff. He told her to make a note of what the staff were saying and clarify whether staff were saying that EC had been harmed. Mr Jacobs spoke to Ms Kelly at 10-30am when he arrived at the office and said he would look into matters but that it might take a few days. Ms Docherty's evidence was that she had spoken to Mr Jacobs about the matter on the phone on the 13th December. She said that she told him what Ms Lawrie and Ms Stephens had said and that he had replied to her with a sigh and said, ' Oh Maggie I'll deal with this and get back to you'.
- Mr Jacobs denied that there had been any conversation between himself and Ms Docherty on the 13th or any other date about the incident of 12 December. He remembered being given some notes by Ms Kelly but he said they were in a poly pocket and that he did not think he had actually taken them but that they had been put in his in tray. He denied that he had read them at that stage and could not recall when he had read them. Both he and Ms Kelly said that later, they had been advised by their legal adviser not to read the notes prior to interviews by the Respondent.
- Mr Jacobs spoke with Mr Hyland about the incident on 13 December 2006 and Mr Hyland asked Mr Jacobs to ascertain what staff members were saying about the incident. Mr Jacobs telephoned the members of staff on duty with EC on the morning of 13 December and instructed them to take EC to Moorview to feed her rabbits and to see Mr Hyland to discuss the incident of the previous evening. We saw the staff note of that meeting. In it Mr Hyland tells EC that 'she will not be allowed to use violence towards anyone, that charges of assault could happen if she continued to display violence to anyone.'
- Mr Jacobs told the tribunal that it was his intention to speak to the members of staff about the incident before he read the notes. However because he was on leave from the 13th till 19 December he did not get an opportunity to do this. Despite his leave arrangements he came into work on the 13th and 14th of December 2006 and attended a number of meetings including a meeting with the placing authority for EC. In that meeting he informed them that an incident of restraint had taken place and that EC had bitten SH's finger.
- Both Mr Jacobs and Ms Kelly repeatedly said that they had checked that EC was alright and unharmed; this appeared to be their sole focus. Both denied that they had been told by any of the staff that the incident had been an assault by Mr Hyland on EC.
- The tribunal accept the evidence of Ms Lawrie and Ms Stevens that they did use the word assault in respect of the incident of 12 December to Ms Kelly. We also accept that Ms Docherty gave the details to Mr Jacobs. We do not find it credible that neither Ms Kelly nor Mr Jacobs read the notes that they had been given. We find that Ms Kelly did at least look at Ms Lawrie's notes and realising the seriousness of what was being alleged passed the matter to Mr Jacobs. We also find that Mr Jacobs knew the contents of the notes and the seriousness of what was being said. With that in miond, Mr Jacobs should not have instructed staff to take EC to see Mr Hyland on the morning of the 13 December.
- We note that the District Judge also concluded that, 'Ms Dipper (Kelly) and Mr Jacobs knew more about this incident but did nothing about it'. Even if we accepted their evidence that they did not read the notes (which we do not) they remain in breach of the regulations in that they did not report the incident in accordance with the regulations. In addition they have shown a lack of fitness in not investigating further the information they say they had. We conclude that if Ms Lawrie had not gone to the police and Ms Docherty to the Respondent the matter would probably never have come to light.
- The members of staff who had written reports and spoken to senior managers said that they were expecting to hear that the incident had been reported. When they did not hear from senior managers about further investigations Ms Lawrie took her report to the police on 14 December 2006 and Ms Docherty took her report to the Respondents on 18 December 2006. As a result of this information coming to the attention of the authorities further investigations were made by both police and the Respondents.
- The police conducted their own interviews and had an interview under caution with Mr Hyland on 11 January 2007. The tribunal had a copy of this interview. Following the police investigation Mr Hyland was charged with common assault on 1 February 2007 and as noted above was convicted of this offence on 13 August 2009 after a hearing of 20 days.
- As a result of the report by Ms Docherty to the Respondent, they in turn spoke to Reading, the placing authority for EC. On 20 December, there was an inter agency strategy meeting in the morning with the Respondent the placing authority for EC the local authority and the police. Later that day the placing authority attended at SCS with the police to remove EC from the placement. On the same day the Respondent contacted Mr Jacobs to request that he and Ms Kelly attend an interview at their offices on 21st December 2006. There was disputed evidence as to what had been told to the Appellants at that stage.
- On the evidence to the tribunal and the notes made by Mr Jacobs the tribunal accept that Mr Jacobs and Ms Kelly were aware that the incident being investigated related to the events of 12 December. Further Mr Jacobs had a conversation with Ms Fenton on the evening of the 20 December about the removal of EC and, we accept that he had asked her what staff knew about the EC incident. Clearly Mr Jacobs and Ms Kelly were concerned by the removal of EC from SCS.
- The tribunal saw the notes made by the Respondent of the meeting of 21st December and some brief notes made by Mr Jacobs. The reporting of the incident of 12th December and the inter agency Child Protection strategy meeting held on 20 December 2006 were discussed. The Respondent made it clear that Mr Hyland should be suspended immediately pending the outcome of the investigations that were being carried out by the Respondent and the police. They handed a pre-prepared suspension notice for Mr Hyland, to Mr Jacobs and Ms Kelly at the meeting.
- The tribunal saw the terms of the suspension of Mr Hyland. We noted the evidence of Mr Smith for the Respondent that Mr Jacobs and Ms Kelly had both expressed concern about the suspension and indicated that Mr Hyland should be attending a Christmas party that evening and that there might be occasions where he would meet one of the young people in Somerton as it was a small place and Mr Hyland had other business interests in the area. Mr Smith was clear at the meeting and in evidence that 'suspension meant suspension' and that Mr Hyland should not visit the houses or have any contact with any of the children.
- Mr Jacobs and Ms Kelly gave further evidence about their steps to put in place the suspension. They said that they were quite clear that Mr Hyland was suspended and would have no further part in the running of the organisation. They said they had an agreement that Mr Hyland would voluntarily withdraw from planned contact with young people.
- However it was evident that Mr Hyland had attended a Christmas party (at the Somerton Hotel) on the day when he was suspended, 21 December 2006. The following day he had gone to the Somerton Hotel and one of the young people, LE, was there with the men from the Town and Country Company owned by Mr Hyland. He therefore had contact with him.
- It was admitted by Mr Jacobs that there had been the odd instance of contact between Mr Hyland and some of the children after that date, however he said there was no danger to the children. On Mr Hyland's own admission he had come into the office from time to time. Ms Kelly said in evidence that staff had been told not to take the young people to the Somerton Hotel or Moorview (smallholding next to Mr Hyland's home) after the suspension was put in place.
- Mr Jacobs said that they relied on the advice given to them by Employment consultants and lawyers. No steps were taken to notify Mr Hyland or members of staff in writing of the suspension or its effect. Mr Jacobs and Ms Kelly acknowledged that they should have formally notified staff.
- The suspension was not imposed on Mr Hyland but instead was referred to as 'an agreement that Mr Hyland would voluntarily withdraw from planned contact with young people'. This was not in compliance with the request made by the Respondent. In addition Mr Jacobs and Ms Kelly did not enforce the suspension, against Mr Hyland, as it would normally have been done in any other organisation e.g. by a letter of suspension to Mr Hyland, notification to staff, removal of keys etc.
- It was agreed by Mr Smith and Mr Jacobs that no further admissions would be made to SCS while Mr Hyland was suspended and matters were being investigated unless a letter of explanation had been sent to prospective placing authorities.
- The tribunal saw one of the letters that had been sent. Mr Jacobs had written to Gloucestershire Social Services in March 2007, ' prior to this placement being formalised, we consider it important to notify you that CSCI is currently conducting an investigation into an incident which occurred recently where a young person bit our managing director and was restrained. As part of this investigation we are required to notify CSCI of any prospective placements.'
- Mr Smith on behalf or the Respondents wrote to Gloucestershire the next day informing them,' following your letter of 7th March 2007 from SCS I can confirm that CSCI have become involved in an investigation into practice in this company. This follows an incident in December 2006 which, once reported, became the subject of the child protection investigation by the police. This has resulted in the CPS decision to charge the managing director of SCS with common assault on a young person in their care. The charge is denied and CSCI do not presume any outcome.'
- The tribunal also noted the letters from SCS to current placing authorities, Nottingham (10.1.07) and Cardiff (21.12.06 and 10.1.07). They gave SCS's view of the situation. Ms Kelly said she thought they were balanced showing the facts as they knew them.
- The letters from Mr Jacobs to the placing authorities gave only one side of the story and sought to minimise what was being alleged. The letter to the prospective placing authority was misleading. By the date of the letter of 7.3.2007, Mr Hyland had been charged with assault and this is not mentioned.
- On the 19th of July 2005 there was incident involving Mr Hyland and a young woman SM. The young woman who had just passed her 18th birthday had been with SCS since 2004 and on the night in question she had met with Mr Hyland in a pub garden. It was evident that Mr Hyland had had some alcohol to drink and that SM had also consumed some alcohol although we noted that Mr Hyland said that he ensured that she was only served low alcohol lager. Later Mr Hyland took SM and a young man (KL) who had also been in care with SCS for a pizza and then agreed for SM to sleep at K L's house and not at her own placement. Mr Hyland then decided to be on sole duty in that house. Subsequently SM was sick and Mr Hyland ended up in her bedroom with the young person naked. He was alone with her and during this incident Mr Hyland saw that SM had significant damage to her genital area. He called for staff to help him and told them SM was injured. She was taken to hospital.
- The tribunal saw the reports by Mr Hyland and Mr Brazier about the incident. However there was no evidence that the matter had been reported to the placing authority. We accept the evidence that it only came to light when SM returned to her home area in August 2006 and spoke to Mr Douglas.
- As a result of the seriousness of the matter the Respondent's carried out an investigation. The tribunal saw the full report from the Respondent about the matter and the required actions and recommendations made at the conclusion of that report. The report was discussed with Mr Hyland and Mr Jacobs in March 2006.
- The required actions on the part of the registered persons were recorded as follows:
- The recommendations on the part of registered persons were as follows:
- Mr Jacobs told the tribunal that after the meeting he and Mr Hyland had spoken about the report and that they were expecting a final amended report to be sent to them with an action plan; they did not receive these. Mr Hyland said he told the meeting that he acknowledged that he had made some mistakes. Mr Jacobs also said that he had reviewed the policies of SCS to check that they were compliant with the requirements and recommendations of the Respondent. Mr Jacobs said that they had been very careful that Mr Hyland was never alone with an SCS child after this incident. The conclusions of the report were never communicated to staff.
- The tribunal noted that these findings and recommendations had been made in March 2006. They were equally valid following the EC incident on 12th December 2006. With the exception of ensuring that Mr Hyland was never alone with an SCS child, none of them had been put into effect and nothing had changed in the practice of SCS following the report.
- The tribunal heard a great deal of evidence about the rules concerning drinking whilst on duty. All members of staff told us that the rule was that you were not to drink within 12 hours of coming on duty and that exceptionally they might have one unit of alcohol at a special occasion. Staff went on to say that the policy of SCS was to permit off duty staff to drink moderately at social occasions so as to provide a good role model for the children.
- The Appellants produced to us the Local Authority Circular LAC(94)4 'Guidelines on smoking and alcohol consumption in residential child care establishments' which refers to the sensible use of alcohol and that 'professional staff involved in caring for young people have a particular responsibility in relation to alcohol use, especially in a residential care setting.' They also produced a Metropolitan Police guide (undated) on alcohol and drugs which stated 'set a good example by drinking sensibly yourself' – however the advice did not concern child care facilities.
- There had been a complaint to the Respondent, by members of the public, after a holiday in 2005; that the party of children and staff and Mr Hyland in particular had been very noisy on holiday and that staff and Mr Hyland had been drinking when they were with the children. The complaint was received by the Respondent when it was investigating the SM incident which also involved alcohol. We saw the investigation into this matter and the letters written by members of staff. We also saw the original letter of complaint. On balance we accept there was probably a good deal of high spirits and noise on the holiday and that the people who complained were not expecting to have such a group at the hotel. However in another organisation this might have led to a reconsideration of the use of alcohol by staff in the presence of the children.
- There was clearly concern on more than one occasion that Mr Hyland had been drinking when he had been with the children. For example on occasion a child would be taken to his own house quite late at night when he had had more to drink than would be permitted under the drink-driving laws, preventing him from travelling to the child.
- We were given quite a considerable number of occasions when it was said alcohol was consumed by Mr. Hyland for example; a BBQ at Moorview, a 'Round the world party' when he did the cooking, a Christmas party in 2005. On the latter occasion one witness said that Mr. Hyland had drunk a lot and that he was physically pushed by Mr. Hyland during the event. Having heard both sides of that incident we accept that there was an altercation between Mr Taylor and Mr Hyland and that Mr Hyland apologized verbally, to Mr Taylor, the next day.
- There were the incidents involving SM in July 2005 and EC in December 2006. We made a finding recorded above that on the night of the incident on 12 December 2006 Mr Hyland had been drinking and that this contributed towards what happened. Mr Hyland was at pains to say that he only drank when he was off duty and that on no occasion was he on duty with the child concerned. Mr Jacobs also took this view and said that 'Steve never used alcohol when on duty and working with children.' However it is evident that he was working with the children and in their presence having consumed alcohol.
- Finally we were told that one of the children, KL who was placed with SCS had had a drink problem as a young boy. He continued to drink alcohol and we noted three occasions when he had drunk alcohol to excess; we know that he was over 18 at this time and therefore technically not in the care of SCS. We appreciate that teenage children go to pubs with their parents. However the children at SCS were in their care and many had difficult childhoods involving the abuse of alcohol. In those circumstances extra care and thought needed to be given to the role of pubs and alcohol at social events.
- We conclude that Mr Hyland drank in the presence of the SCS children and that he did blur professional boundaries when he drank when socializing with them. We are not concluding that he was drunk with the children but his behaviour raises concerns regarding his attitude towards drinking alcohol in the presence of children placed in his care. In a residential setting he needed to be aware of the fact that he was 'working with' the children even when he was technically not on duty. Mr Hyland as the managing director and a 'father' figure to the children needed to reflect on setting the highest standard. This was especially the case after the Respondent's report into the incident involving SM in July 2005. Equally neither Mr Jacobs nor Ms Kelly sought to challenge this attitude towards alcohol use by Mr Hyland in the presence of the children.
- Whilst the incident of 12 December 2006 and the failure to report the incident as required by the regulations and national minimum standards in the context of the earlier SM complaint, form the main grounds of this decision there were certain other matters which were brought to the attention of the tribunal and about which the tribunal heard considerable evidence. As noted above we are recording some of these in so far as they provide relevant background information.
- The tribunal saw a number of documents about the legal status of SCS. The company is a voluntary not for profit limited company formed to run specialist children's placements. This is the same system as was used in the Prospects company. Because the organisation is a voluntary not-for-profit one it is governed by the Children Act 1989. We saw a letter sent by SCS confirming the terms of the placement of a child and a standard contract from SCS; we also had sight of the prospectus. The fees for the placements were in the region of £6000 per week. A contract we had sight of, quoted fees of £6250-00 in October 2005. As noted above the organisation had facilities to care for six children in single placements.
- Nearly all the members of staff who gave evidence to the tribunal had joined SCS without previous experience of the care sector. For example like Mr Jacobs or Ms Kelly they had joined when they were young or come from other sectors of work. All the staff had received considerable internal training mainly from Mr Hyland. Mr Hyland's background is that he is a karate instructor and he told the tribunal that his area of speciality is restraint procedures. All members of staff who we saw had been encouraged to take an Open University course K100 Understanding Health and Social Care. Some staff, like Mr Jacobs had undertaken further training. We noted that there was no qualified social worker on the staff during the period we looked at i.e. from 2004 to 2007.
- Mr Jacobs even though he was the general manager and in day to day charge of SCS did not act independently of Mr Hyland in significant decisions, for example in disputes with placing authorities. One of the placing authority's managers described him as 'wooden and scripted' and needing to get Mr Hyland's instructions before taking a decision.
- Mr Hyland as the managing director and founder of the company was a strong leader. Staff referred to a number of his catch phrases. One of them, which we accept he used mainly when training was 'My way or the highway'. This, he said, was to reinforce correct practice by staff, however it also neatly sums up Mr Hyland's approach to the running of SCS. On the one hand he cared passionately about the children but unfortunately this meant, that he blurred professional boundaries. It was as if he treated the whole organisation and the children as an extended family. He could not step back or reflect on his practice when advised to do so or when he was signed off sick.
- Mrs Hyland was in charge of the financial side of the business and worked from the Rosebank offices. She was also involved in some of the meetings.
- Unlike some voluntary not-for-profit organizations, SCS was solely under the control of Mr and Mrs Hyland and for example there was no Board of Trustees or other similar body used to formulate policy for the organisation or provide a forum for discussion of new developments and practice in this challenging area of care.
- One professional witness reported another provider describing SCS as cult like in intensity. While we would not go so far as that in our conclusion, we do conclude that Mr Hyland was a dominant leader of SCS and SCS was a controlling organisation. It was an intense working atmosphere and we heard no evidence that any member of staff or the other two Appellants ever seriously challenged Mr Hyland. There is no doubt about the genuine concern that the Appellants had for the children but the style of care was containing and restrictive.
- The tribunal accepted without reservation that Mr Hyland had set up the organisation in order to help children with very challenging behaviours. He explained to us that many children came to SCS having had 20 or 30 prior failed placements. We heard and accept that many of the children did well and achieved educational qualifications and enjoyed sporting and leisure pursuits; EC was learning to drive albeit with two members of staff in the car during lessons.
- We also accepted that in many cases such children would require a high level of staffing and physical intervention in order to keep them safe. However in many cases the children appeared to still have the same level of staffing and constraints as they had done on arrival, two or three years after they came to SCS. In the case of the two young people who attained their 18th birthdays whilst at SCS (KL and SM) planning and agreeing their future care had caused difficulties and SM had returned to her home area. We noted that one professional witness said that SCS thought that their children were unique, in their level of difficulty, and that this was not the case.
- We also saw some of the remarks by the children about the control that they experienced. RP, who had come from a secure unit said that she'd had more freedom in the secure unit. SM complained when she got home that SCS had been very controlling and gave examples of them not letting her go out with friends without permission, not letting her use her mobile and she was told that her parents don't want her, therefore returning home was not an option. One member of staff noted that the level of staffing for EC had not changed since she had started at SCS.
- Mrs Marsh was critical of SCS. She told the tribunal in evidence that she believed that SCS wanted RP to remain with them until she was an adult. She said after the first LAC review 'I felt the regime wasn't what the authority wanted it was ' too controlling, oppressive, dictatorial. Mr Hyland's manner was inappropriate in the meeting.' RP had given a negative review and when she attended the meeting Mr Hyland told her (twice) to look into his eyes and said to her 'you didn't mean to write it did you'.
- It was evident that SCS had gone to considerable trouble to ensure that they had forms to report incidents of restraint and any other occurrences affecting the children. We saw considerable recording of the plans and daily activities and reports for the children. As far as we could tell notifiable events had generally been investigated correctly and reported normally within the time limits.
- However the tribunal had details of incidents involving EC in March 2005, SM in July 2005, EC in June 2006 and most significantly the incident involving EC in December 2006. There had been a number of complaints about the way that these matters had been initially investigated and the fact that two of the incidents involving Mr Hyland had not been reported 'without delay' to the placing authorities (SM in July 2005 and EC in December 2006) .
- The tribunal saw correspondence between the placing authorities and SCS. It also had the benefit of hearing from officers of a number of placing authorities. It was evident that relations had broken down between SCS and four of the placing authorities. We noted that in those cases formal complaints had been lodged by SCS against various officers in the placing authorities. There was considerable friction when the placing authorities attempted to move children away from SCS or to request a breakdown of the fees charged at SCS. The tribunal saw no break down of the fees or budgetary information for SCS.
- Relationships with placing authorities had been a feature of the Prospects case where the tribunal had concluded that Mr Hyland's concern was for the welfare of the young people and not commercial concern but that 'he did not challenge them in an acceptable and effective way.. he is also hectoring in his manner when dealing with some social workers face to face.'
- The tribunal read a number of letters signed by Mr Hyland and Mr Jacobs which were confrontational in their tone. A young person RP aged 11 had been placed with SCS on 31 October 2005. Prior to her placement she had been in a secure unit. Mr Jacobs wrote to the Isle of Wight on 24 January 2006, disagreeing with plans for contact and saying 'I expect you will be aware that interagency communication has been consistently identified as an area of failure within enquiry after enquiry into incidents of child abuse and death.' The placing authority took exception to this reference, as it turned out, to the Laming report as explained by Mr Jacobs at a subsequent meeting.
- They also noted in a reply to SCS, on 25 January 2006, ' there is also a concern regarding staff at SCS not managing to follow agreed plans or sharing information if it is of significance. The LAC meeting that I attended appeared to be very oppressive and dominated by SCS and the approaches of covert communication unhealthy and unethical. We believe in being fair and open in dealings with families and involve them as fully as possible in the decision-making process.' In reply to this Mr Hyland asked for further details of what was being alleged.
- Matters did not improve between the placing authority and SCS and in March/April 2006 the child, RP was removed from SCS to a placement closer to her home. Following this removal the authority wrote to the Respondent, on 24 May 2006, outlining their concerns about SCS and reporting that by the time of the removal the relationship had 'totally broken down and the child and her family were expressing considerable unhappiness about the placement.'
- We heard evidence from Nottinghamshire County Council concerning the placement of a young person BB. He had been placed at SCS in March 2002 and in the summer of 2006 meetings were taking place to consider his way forward. SCS disagreed with proposals that were being made and complained on two occasions about BB's social worker saying that he had failed to grasp the complexities of the case, failed to acknowledge the amount of first-hand information that SCS had,' regardless of the abundant evidence and opinion to the contrary Mr D appears to be pursuing personally constructed plans that are not borne out of an analysis of these needs or capabilities and are not truly a result of the required planning processes of consultation, analysis of need and evidenced-based practice.' at a subsequent meeting Mr Hyland told Mr D that his proposed plans were ' nonsense'.
- Subsequently in 2007 the matter was taken by BB to the High Court in an attempt to prevent his removal from SCS. On the day of the hearing in May 2007 he agreed to a planned move to alternative accommodation in Nottinghamshire within a month. He eventually moved in September 2007.
- The tribunal heard form Cardiff City Council concerning the placement of a young person CH. He started his placement on 12 December 2006. It was the placing authority's evidence that it was always intended that this placement would be of any short duration. When they began to discuss CH's move from SCS they considered they were met with resistance. We saw the notes of meetings and have evidence of acrimonious exchanges between the placing authority and SCS. CH eventually left SCS in February 2007. Mr Cove who gave evidence said that at a meeting in January 2007 Mr Jacobs had become angry and quite threatening and that as a result of the level of aggression he decided to give notice to end the placement. At that point Mr Jacobs told him that 'you'll hear from my legal services'.
- All the above incidents together with the removal of EC involved formal complaints to the placing authorities by SCS. We accept the Appellant's view that these matters do not concern the tribunal unless they show that the poor relationship harms the welfare of the children/young person looked after by the organisation. We acknowledge that we have not heard evidence from the young people concerned, however the evidence from the officers from the placing authorities was such that we accept that whatever the rights and interests of the children were, they would have been affected by the conflict between the placing authority and SCS. It is clear that on occasion the children attended review meetings and therefore would have been aware of what was being said and the conflict caused distress and concern to the children involved as they became worried about their future placement. All the placing authorities said that they had never encountered such an approach with any other provider.
- The Appellants had the care and control of the young person placed with them however they did not have parental responsibility, the monopoly of the information about that young person, or the right to insist on their own plan for that young person. They took the view that they were always right and that if a placing authority suggested an alternative there was no attempt to compromise or resolve issues by discussion. Instead sharply worded, lengthy complaining letters would be sent and the relationship between placing authority and the Appellants would deteriorate. All the placing authorities giving evidence to us complained that it was difficult to get SCS to move on with the children placed with them. This did not benefit the young people placed with the Appellants and potentially harmed and upset them.
- The Tribunal find that the grounds set out in the notices of proposal to cancel and confirmed in the notices of cancellation are made out. Having made that decision we turn to each Appellant in turn to determine whether the cancellation decision is a just and fair one in the context of the evidence which we heard and our findings.
- The organisation SCS comprises Mr Hyland as the managing director and Mrs Hyland as the company secretary: it was also clear that she was in charge of the financial side of the organisation and business and in regular attendance at the office. She also did some on-call duties and stepped up her involvement once her husband, Mr Hyland had withdrawn from SCS in December 2006.
- A number of issues that were featured in the Registered Homes Tribunal decision in September 2000 reappeared. For example the Appellant had complained about the Inspectorate's procedure and the tribunal were critical of the Inspectorate in that area on that occasion. That decision acknowledged Mr Hyland's commitment to young people with challenging behaviour however they said that he should recognise the need to collaborate with someone who can write, in respect of letters to the placing authorities. Their view was that his letters went beyond ' what is acceptable' he needed to reflect on the disproportionate amount of time it must take to answer his more confrontational letters and the consequences of the unnecessary souring of relationships. It noted that he resorted to formal complaints procedures regardless of the inconvenience it would cause to the placing authorities. This criticism remains a valid one. Both Mr Hyland and Mr Jacobs appeared to operate on the principle that if something was said or written over and over again, at length and with force that the recipient would 'give in.'
- Mr Hyland continues to control the organisation; he is both powerful and domineering. He is clearly in a commanding position in relation to his staff presenting as the Managing Director and, a karate and restraint procedure expert.
- Of significance to the tribunal was the fact that following the incident involving SM, Mr Hyland had taken no substantial steps to reflect on or address the requirements and recommendations raised.
- He said that he was unwell on a number of occasions and at the beginning of 2005 he had purported to take a less active role in SCS and appointed Mr Jacobs as the general manager. Mr Jacobs said that Mr Hyland was available for advice and discussion. However it was evident that he continued to play an active part in correspondence with placing authorities and seeing the children on a number of occasions.
- As we record above his actions involving EM on 12 of December 2006 amounts to an assault on her and that he had been drinking. He sought to displace the blame for that matter on EC by telling her on more than one occasion that 'she must stop assaulting people' (on the night and the next morning).He did not enable or encourage an open investigation of what had happened. This incident involving EC, in the context of the report from the SM incident, is sufficient to bring into question Mr Hyland's fitness in terms of his integrity and good character and justify the cancellation of registration of SCS. He also has a criminal conviction (subject to his appeal).
- Mr Hyland accepted with the beauty of hindsight, that mistakes were made. He said possibly it would have been better if he'd thought it through and had not had a drink. However this is the first time he has made such an admission throughout all the proceedings. He is appealing his conviction and, in this respect does not accept that he has done anything wrong.
- The tribunal is aware that Mrs Hyland is also affected by these proceedings. She is the secretary for SCS and was in charge of the financial side of the organisation. We also saw considerable evidence of her involvement with the running of SCS particularly when Mr Hyland was away for any reason. For all these reasons we take the view that she was an integral part of SCS and is affected by the outcome in the same way as her husband.
- With reference to Mr Jacobs we noted that he continued to defend the alcohol policy of SCS albeit that he had the knowledge that Mr Hyland was with the children on occasions when he had been drinking. He did add at the hearing 'with hindsight perhaps I should have enquired about drinking'. With reference to the EC incident he maintained that it was acceptable for Mr Hyland to drink when he was with EC in the pub. However he said that Mr Hyland should not have been involved in a restraint when he had been drinking.
- We noted the letters from Mr Jacobs to the placing of authorities of a confrontational nature. We also accept that he was very angry with Mr Cove on being told of the proposed removal of CH. We conclude that the lack of co-operation and disputes with the placing authorities did impact on the care to those children; much as children are affected by angry arguing parents.
- Mr Jacobs failed to deal with a child protection matter in relation to EC in accordance with SCS procedures or with the requirements of the Children's Home Regulations and safeguarding children framework; he continued to refer to the event as a restraint and to explain that it had been instigated because EC had bitten Mr Hyland when we accept he had reason to believe that an assault had taken place. He did not take steps to investigate for himself what had happened at the time and then said, once the Police and Respondent were involved, that he had been told by the Police, not to carry out investigations.
- Mr. Jacobs did not take immediate steps to suspend Mr. Hyland nor did he implement the suspension rigorously. The tribunal accept that Mr Jacobs would want to check the situation with the lawyers and employment consultants. He might need to check that he had authority to suspend Mr Hyland. As noted above the suspension was not formally notified to members of staff. The matter of suspension is specifically Mr Jacobs' responsibility as general manager.
- During the tribunal Mr Jacobs told us on of a number of additional qualifications which he has obtained and that he has nearly completed his social work training. However he has no experience in any other care organisation. He still has to undertake his practical placements in his current training.
- Mr Jacobs had neither the experience nor the authority to take steps independently of SCS. He failed to carry out his duty as the general manager to investigate when a serious allegation was being made. He failed to ensure that the suspension/voluntary withdrawal by Mr Hyland was adhered to by him and to understand that 'voluntary withdrawal' is not the same as suspension.
- Mr Jacobs was asked if he would do anything differently. He said that he would have looked at the documents available to him, gone to the local safeguarding children board to ask what they thought and spoken to the staff straight away. However this is the first time he has acknowledged possible errors. We do not consider that he believed that he or the other two Appellants had done anything wrong in respect of the EC incident.
- The tribunal conclude that Mr Jacobs is no longer a fit person; he has not shown independence of judgement or a professional attitude in his duties as the general manager of SCS. He has followed Mr Hyland in all matters. He has not acted with integrity and independence in respect of the EC incident. He did not act on the clear requirements and recommendations following the SM incident.
- As far as the tribunal could ascertain from the evidence Ms Kelly was not involved directly in any of the incidents involving alcohol. She did not go on the holidays and was away on maternity leave (15 July 2005 to 2 January 2006) when some of the other events took place.
- She was not involved in the incident involving SM in July 2005 nor was she present during the meeting concerning the reports about the incident between the Respondents, SCS and Mr Jacobs. But having said that she admitted that she was aware of what the report recommended.
- With reference to the incident on 12 December 2006 she does bear part of the responsibility of what happened following the incident; as noted above we accept that she knew the matter was serious and that for this reason she passed it to Mr. Jacobs. This does not exonerate her but it does limit her involvement with what happened. The tribunal noted that she expressed regret about what had happened. As noted above, she said 'If I could turn back the clock I would…I should have read the notes' and 'I did something wrong.'
- We note that Ms Kelly was in attendance at the meeting which discussed the suspension however in all the circumstances we accept that it was for Mr Jacobs to ensure that the suspension took place and that the main responsibility was his.
- Ms Kelly was 19 when she joined SCS. She had no experience of any other care provider. She had become head of care in September 2006, when she was 23. Ms Kelly's youth, lack of experience, and recent promotion is not an excuse for what she did or did not do on 13 December 2006 and thereafter; although it is a mitigating factor and we note her expression of remorse for her actions or lack of them.
- In addition she was significantly junior to Mr Hyland and Mr Jacobs. She was not directly involved in many of the earlier events and her role, as head of care, in the 12 December 2006 incident was relatively minor. We do not find that she is 'not a fit person'. With hindsight she might have been well advised to have taken separate legal advice and to have dealt with the Respondents independently.
Synergy Child Services Ltd (SCS) & Oras v OFSTED [2009] UKFTT 260 (HESC) (16 October 2009)
Schedule 1 cases: Establishments and Agencies
Cancellation of registration (proprietor/manager)
Case No: [2007] 1042, 1071.CH
[2007] 1043, 1044.CH
[2007] 1072, 1073. CH
IN THE FIRST TIER TRIBUNAL
HEALTH, EDUCATION AND SOCIAL CARE CHAMBER
BETWEEN
SYNERGY CHILD SERVICES LTD (SCS)
BRETT JACOBS
CLAIRE KELLY (NEE DIPPER)
Appellants
-and-
OFSTED
Respondent
BEFORE
Maureen Roberts (nominated tribunal judge)
Ronald Radley (specialist member)
Christopher Wakefield (specialist member)
Sitting at the Castle Hotel Taunton on 6,7,8,9,10, 13,14,15,17,20,21,22,23, 29, 30 July 2009 and sitting at the North Somerset Courts Weston super Mare on 14,15,16, and 17 September 2009.
The Appellants represented themselves. Mr Stephen Hyland the managing director of SCS acted as the main advocate but when he was absent because of ill health or for other reasons then Mr Brett Jacobs the second Appellant took over the work of representation. Mrs Rachel Hyland the company secretary and financial director for SCS was present throughout the majority of the proceedings. Ms Claire Kelly was present except on the 14,15, and 16 September.
Mr Rodney Dixon of Counsel instructed by Laura Smith of Bevan Brittan represented the Respondent.
The tribunal heard from the following witnesses, unless otherwise stated they appeared for the Respondent. They are listed in the order that we heard from them and their position at the time of cancellation is noted together with their present work position.
Theresa Lawrie: from April 2004 to January 2007 care worker (and for a while trainee manager) for SCS. Currently a housing and support worker for Knightstone Housing Association.
Susan Stephens: from January 2006 to February 2007 care worker for SCS. Currently a purchase ledger clerk.
Fiona Bates: from June 2005 until February 2007 care worker for SCS and presently a community care assistant employed by Somerset County Council working with people with profound learning difficulties.
Margaret Docherty: from May 2004 to mid March 2007 care worker and registered manager. Currently an administrative assistant with Children's Social Care Department Somerset County Council.
Yvonne Haramis for the Appellants: a residential care worker for SCS from January 2004 until August 2007. Presently a matron at a boys' preparatory school.
Nick Taylor: care worker for SCS from summer 2005 until August 2006. Currently a Governor level 5 dealing with drug and substance misuse with prisoners.
Glynis Marsh: a team manager for looked after children 0-16 Isle of Wight County Council. Presently a practise learning co-ordinator for the Council.
Ian Stokoe: at the time assistant team manager with Reading Council Disabled Children's team and from December 2007 assistant team manager Protection and Planning.
Lee Booker for the Appellants: care worker and registered manager for SCS from July 2004 to 1 June 2007. Presently a probationary police officer with the Metropolitan Police.
Debbie Flint: Children's inspector for the Respondent.
Mark Douglas: head of community support in the children's directorate at Northumberland County Council.
Ken Smith: Inspection team manager for the Respondent.
Joe Mohammed for the Appellants: Foster parent; acted as an independent visitor for one of the young people placed at SCS.
Jayne Fenton: care worker and senior supervisor for SCS from mid 2001 until 2007. Presently a support co-ordinator for Autism Solutions.
Carl Solle for the Appellants. Care worker/co-ordinator for SCS from June 2003 to July 2007. Presently working with a company in Southampton.
Maurice Cove: Team manager for Cardiff County Council leaving care and related services.
Dr Alix Brown for the Appellants: Independent consultant, social work trainer and therapist.
Peter Vallelley: at the time service manager for placements panel and emergency duty team Children's and Young People's Services Nottinghamshire County Council. Presently assistant director for safeguarding for Pathways.
Richard Horrobin: Children's inspector for the Respondent and presently retired.
Judy Birch for the Appellants: administration manager for SCS from 2002 until 2007.Presently a receptionist.
Simon Brazier for the Appellants: initially care worker and subsequently head of care for SCS from 2000 until August 2006. From August 2006 until May 2007 bank worker for SCS. Presently a sales representative.
Roger Reed for the Appellants; employed by Town and Country; a maintenance firm owned by Mr Hyland the director of SCS. Also trained and worked as a carer for SCS.
Tamsin Higgins for the Appellants. Care worker for SCS from April 2004 until 2007. Presently working with adults with learning difficulties.
Claire Kelly (nee Dipper). Appellant. Care worker and manager for SCS from 2002; Head of Care from September 2006 until 2007. Presently parent and support adviser for Somerset County Council.
Brett Jacobs. Appellant. Care worker, manager for SCS from 1999; General Manager from January 2005 until 2007. Presently working in family business.
Stephen Hyland. Managing Director SCS, Appellant.
We have referred to the Appellants by name throughout the decision.
The appeals.
The law.
Under the Act appeals are made to the tribunal under section 21. This section provides
21 (1) an appeal against
(a) a decision of the registration authority under this part; or
(b) an order made by a Justice of the peace under section 20
shall lie to the tribunal
(2) no appeal against the decision or order made may be brought by a person more than 28 days after service on him of notice of the decision or order
(3) on an appeal against a decision of the registration authority the tribunal may confirm the decision or direct that it shall not have effect.
(4) on an appeal against an order made by a Justice of the peace the tribunal may confirm the order or direct that it shall cease to have effect.
(5) the tribunal shall also have power on an appeal against a decision or order-
(a) to vary any condition for the time being in force in respect of the establishment or agency to which the appeal relates;
(b) to direct that any such condition shall cease to have effect; or
(c) to direct that any such condition as it thinks fit shall have effect in respect of the establishment or agency.
Regulation 6 provides for the fitness of registered provider
(1) a person shall not carry on a children's home unless he is fit to do so.
(2) a person is not fit to carry on a children's home unless the person –
(c) is an organisation and –
i) the organisation has given notice to the Commission of the name and address and position in the organisation of an individual (in these Regulations referred to as "the responsible individual") who is a director, manager, secretary or other officer of the organisation and is responsible for supervising the management of the children's home; and
(ii) that the individual satisfies the requirements set out in paragraph (3).
(3) requirements are that-
(a) he is of integrity and good character;
(b) he is physically and mentally fit to carry on the children's home; and
(c ) full and satisfactory information and is available in relation to him in respect of each of the matters specified in Schedule 2.
Regulation 8 provides for the fitness of manager
(1) a person shall not manage a children's home unless he is fit to do so
(2) a person is not fit to manage a children's home unless
(a) he is of integrity and good character;
(b) having regard to the size of the children's home, its statement of purpose, and the number and needs (including any needs arising from any disability) of the children accommodated there –
(i) he has the qualifications, skills and experience necessary for managing the children's home; and
(ii) he is physically and mentally fit to manage the children's home; and
(c) full and satisfactory information is available in relation to him in respect of each of the matters specified in schedule 2.
"the civil standard of proof is a single standard, namely the balance of probabilities. The civil standard of proof does not recognise or embody a moving standard according to the gravity of the allegation."
This statement was based on what was said by the House of Lords in Re H and others [1996] AC 563 where Lord Nicholls of Birkenhead said this,
"The standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability... The balance of probability standard means that a court is satisfied an event occurred if the court is satisfied that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability."
The background
The main grounds set out in the Notices of Proposal to cancel and confirmed in the Notices of Cancellation. The issues identified by the parties.
(a) failure on the part of Mr Hyland as the managing director of SCS to establish and maintain clear and safe professional boundaries with children in SCS's care, particularly in light of Mr Hyland's conduct while consuming alcohol in the presence of children;
(b) inappropriate conduct on the part of Mr Hyland towards a young person in SCS's care, EC, in relation to an incident on 12 December 2006;
(c) failure on the part of SCS to deal with this incident as a child protection matter in accordance with the company's child protection procedures, the requirements of the regulations and safeguarding children framework;
(d) failure to adhere to the terms of an agreed suspension of Mr Hyland following EC incident.
(a) an acceptance on the part of Mr Jacobs and Ms Kelly of the conduct and behaviour of Mr Hyland in drinking alcohol in the company of children in SCS's care;
(b) failure on the part of Mr Jacobs and Ms Kelly to deal with the EC incident as a child protection matter in accordance with the company's child protection procedures the requirements of the regulations and the safeguarding children framework; and
(c) failure to adhere to the terms of an agreed suspension of Mr Hyland after the incident involving EC.
Submissions made by the Appellants regarding the fairness of the investigation by the Respondent and their human rights
Finding
The incident of the 12th December 2006
Finding
Events following the assault of 12th December 2006
Finding
Subsequent actions of the Police and the Respondent
The Suspension of Mr Hyland
Finding
Letters to Placing authorities and prospective placing authorities after the incident of 12 December 2006 and Mr Hyland's suspension.
Finding
The incident involving SM
"1. Mr Hyland must reflect upon our judgement and confirm if he believes our conclusions are fair.
2. Mr Hyland must undertake to work with young people only within clear professional boundaries including zero alcohol usage when working.
3. The company must ensure that females accommodated are never staffed overnight by male staff without female staff also being present.
4. It is required that the application of child protection procedures within the organisation are reviewed to ensure that no person (e.g. Mr Hyland) can effectively be beyond their reach."
"1. This is very strongly advised that the company seek ongoing external support to evaluate the appropriateness of practice. An example of this will be for an independent person to undertake regulation 33 visits on behalf of the company, reporting to Mr Hyland (and CSCI). This will ensure that there is a counter view to Mr Hyland's very dominant view within the company. Additionally it will provide independent appraisal of his actions, something which does not occur through the company managers in place.
It is adjudged that this measure can go far to restoring the confidence CSCI has in the company which has been affected by mutual distrust so far only partially dispelled.
2. It is advised that the roles of managers in the organisation are reviewed to ensure that effective lines of operational control and informal processes are not relied on.
3. It is recommended that the use of hotels or pubs in Somerton for meetings/socialising within the working role should be carefully reviewed."
Finding
Professional boundaries and the policy regarding drinking.
Finding
Additional matters.
The structure and organisation of SCS.
Finding
The ethos of SCS towards children in their care, child protection matters and policies for reporting incidents.
Relationships with placing authorities and other agencies.
Finding
Conclusions and decisions.
SCS.
The appeal by SCS is dismissed.
Mr Jacobs
The Tribunal dismisses his appeal.
Ms Kelly
The tribunal allow her appeal.
The decisions are unanimous.
Maureen Roberts
Ronald Radley
Christopher Wakefield
14th October 2009