The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008

Dian Walker
and
Stephen Walker

-v-
Care Quality Commission

 [2010] 1747.EA
[2010] 1729.EA 

Decision

Before:	Mrs Meleri Tudur (Tribunal Judge)
		Mr Graham Harper, Specialist Member
		Mrs Susan Last, Specialist Member

Heard at the Liverpool Family and Civil Court Centre on the 15th 16th 17th 18th and 19th November 2010.
Mr R Grey, counsel for the Appellants instructed by Russell Jones and Davies, solicitors.
Mr A Fuller, counsel for the Respondents, instructed by Hempsons, solicitors.
 
Appeal

1.	Mr Stephen Walker (“the First Appellant”) is the registered provider of services at Rosehaven, 12 Egerton Park, Rock Ferry, Wirral (“the Home”).  The Home is a care home that provides personal care for up to 13 people whose primary needs for care are in the category of old age.

2.	Mrs Dian Walker (“the Second Appellant”) is the wife of the First Appellant and is the Registered Manager of the Home.

3.	The First Appellant appeals under Section 21 of the Care Standards Act 2000 against the decision of the Respondent dated 19 January 2010 to cancel his registration as provider of the Home.

4.	The Second Appellant appeals under Section 21 of the Care Standards Act 2000 against the decision of the Respondent dated 19 March 2010 to cancel her registration as Registered Manager of the Home.

The Law 

5.	Section14 of the Care Standards Act 2000 provides that:

“(1)	The registration authority may at any time cancel the registration of a person in respect of an establishment or agency –
(a)	………………………..;

(b)	………………………..;

(c)	On the ground that the establishment or agency is being or has at any time been carried on otherwise than in accordance with the relevant requirements;

(d)	On any ground specified by regulations.

(2)…..

(3)	In this section “relevant requirements” means:-

(a)	any requirements or conditions imposed by or under this Part; and

(b)	any requirements of any other enactment which appear to the registration authority to be relevant”
6.	Section 16 of the Care Standards Act 2000 provides that:

“(1)	Regulations may make provision about the registration of persons under this Part in respect of establishments or agencies and in particular about –

(a)	the making of applications for registration;

(b)	the contents of certificates of registration.”

7.	Section 22 of the Care Standards Act 2000 provides that:

“(1)	Regulations may impose in relation to establishments and agencies any requirements which the appropriate Minister thinks fit for the purposes of this Part and may in particular make any provision such as is mentioned in subsection (2), (7) or (8).”

8.	The Care Homes Regulations 2001 (“the Regulations”) came into force on the 1 April 2002 and extend to England only.  They apply to care homes that are not specifically excluded from the provisions of the Regulations.

9	Both appeals are made under Section 21 of the Care Standards Act 2000 which provides that an appeal against a decision of the registration authority shall lie to the Tribunal.

10.	On appeal against a decision of the registration authority, pursuant  to section 21 (3) the Tribunal may confirm the decision or direct that it shall not have effect and pursuant to section 21(5), the Tribunal shall also have power on an appeal against a decision or order to vary any condition for the time being in force in respect of the establishment or agency to which the appeal relates; direct that any such condition shall cease to have effect or to direction that any such condition as it thinks fit shall have effect or to vary the period of any suspension.

11.	The burden of proof is upon the Secretary of State.  The standard of proof is the 	civil standard and the Tribunal must find the case proved upon the balance of 	probabilities.

12.	The Tribunal conducts a full rehearing of the case, and decides upon the appeal as at the date of the final hearing.

Background

13.	The Home and the Second Appellant had been registered with the Respondent since 26 September 2003.

14.		On the 16 December 2009, the Respondent served a notice of proposal to cancel the First Appellant’s registration as the registered provider of the Home.

15.	On the 9 January 2010, the Respondent served a notice of proposal to cancel the Second Appellant’s registration as the Registered Manager of the Home.

16.	Both of the Notices of Proposal relied on grounds that were almost identical, namely that contrary to section 14 of the Care Standards Act 2000, the Home is or has, at any time, been carried on otherwise than in accordance with the relevant requirements.

17.	The relevant requirements relied upon in relation to both Appellants were Regulations 10, 12, 13, 15, 16, 18, 23, and 24 of the Care Home Regulations 2000. The First Appellant was further alleged to have breached Regulations 24A and 25.

18.	The First Respondent did not respond to the Notice of Proposal by making written representations and his cancellation was confirmed by letter dated 19 January 2010.

19.	On the 16 February 2010, the First Appellant emailed to the Tribunal a 21 page detailed response with the comment “I will contact the office to see if any other form is required.”  

20.	On the 18 February 2010, the Tribunal secretariat sent to the First Appellant the correct form in order that he could submit the appeal.

21.	Time for making the appeal expired on the 19 February 2010.

22.	On the 26 February 2010, the appeal form was received by the Tribunal completed by the First Appellant.  No request for an extension of time for making the appeal was included with the form.

23.	On the 15 March 2010, the Respondent’s solicitors requested that the appeal should be struck out by reason that it was out of time.

24.	On the 16 March 2010, the request was considered by the Tribunal Judge who concluded that the appeal should be struck out.

25.	On the 12 April 2010, an application was received for the decision of the 16 March 2010 to be set aside.  The application was considered by the Tribunal Judge and refused.

26.	On the 14 May 2010, an application for permission to appeal the decision was received by the Tribunal and the decision reviewed on the 8 June 2010.  The Tribunal Judge set aside the decision and reinstated the appeal.

27.	The Second Appellant made written submissions in response to the Notice of Proposal in respect of her registration and submitted them to the Respondent on the 8 February 2010.

28.	The written representations were considered by the North West Regional Director of the Respondent and by letter dated 19 March 2010 she informed the Second Appellant that having examined the notice of proposal and supporting evidence as well as the written representations, she had concluded that the statutory requirements in relation to the Home had not been addressed and there remained “significant systemic shortcomings that the Registered Manager had not resolved over time, and the decision made to cancel her registration as Registered Manager.

29.	The Second Appellant appealed against the decision on the 16 April 2010 but did not include with the appeal form a copy of the decision letter against which the appeal was made.  The letter was received by the Tribunal on the 21 April 2010.

30.	The Respondent’s solicitors applied for the appeal to be struck out.

31.	In a decision dated 14 May 2010, time for complying with The Health Education and Social Care Chamber (First tier tribunal) Procedure Rules 2008, rule 20(3) was extended and the application to strike out the appeal dismissed.

Issues

32.		The Notices of Proposal contained a large number of allegations of failures to comply with the statutory requirement in relation to the Home.

33.	By the final hearing, both the Appellants had conceded a number of the allegations made and there remained only a core of allegations in respect of which there was a dispute of fact.

34.	The issues for consideration by the Tribunal included breaches of:

(i)	 Regulation 12	enabling service users to make decisions about their care 
(ii)   Regulation 13(2) 	recording, safekeeping and safe administration of medicines;
(iii)  Regulation 13(6)	safeguarding service users from harm or abuse;
(iv)  Regulation 15	maintaining care plans
(v)   Regulation 16	adequate facilities and services
(vi)  Regulation 18	staff training
(vii) Regulation 19	recruitment
(viii)Regulation 20	dealing with personal finances of service users
(ix)  Regulation 23	fitness of premises
(x)   Regulation 24	maintaining quality of service
(xi)  Regulation 24(A)	improvement plan
(xii) Regulation 25	financial viability

Background

35.	The Respondent relied in evidence on the inspections of the Home carried out since 2006.  From that time, it became apparent that the relevant requirements of the Care Home Regulations 2001 were being breached and each inspection report set out after its conclusions the statutory requirements made as a result.

36.	Each of the statutory requirements imposed set out a timescale for compliance.

37.	Four of the statutory requirements imposed in August 2007 remained outstanding in January 2009 and had been identified as statutory requirements on three previous inspection reports.  

36.	In February 2008, although some areas of the Home had improved, it was noted by the inspectors that many areas of improvement remained outstanding and new concerns had arisen.

37.	In November 2008, the Respondent requested the Appellants’ Annual Quality Assurance Assessment pursuant to Regulation 24.  This document was not received by the Respondent until February 2010.

38.	In January 2009 a further 19 statutory requirements were identified, making a total of 23 statutory requirements.

39.	The refurbishment of the Home and the movement of residents into another home on a temporary basis led to new concerns about breaches of Regulation 12 between January 2009 and October 2009 in relation to the residents’ choice of care and having regard to their wishes and feelings.

40.	A further inspection took place on the 10 September and 2 October 2009 and in both that inspection and the January 2009 inspection, the Home was rated as “poor” and received a no stars rating.

41.	The Appellants’ failure to address the regulatory issues raised and their failure to remedy the statutory requirements imposed on the Home led the Respondent to the conclusion that neither the First nor the Second Respondent was acting with sufficient care, competence and skill and both were thus in breach of Regulation 10.

42.	In their appeal, the Appellants claimed that they had been unfairly treated, that a change of inspector and inspection methods had led to their being unfairly assessed and that there was a strong element of personal opinion in the imposition of the Regulations leading to an inconsistent approach by the Respondent.  They made serious allegations of racial discrimination against the inspectors, claiming that their findings had been exaggerated and maintained that the Home met with the required standards. 

Evidence

43.	The Respondent relied on the evidence of the inspectors who inspected the home between 2006 and 2009 and on a representative from Wirral Social Services Department.

44.	Ms D Corcoran was the lead inspector at the Home between 2006 and 2008 and visited the Home with the new lead inspector, Ms Julie Garrity, in January 2009.  The Tribunal heard oral evidence from Ms Corcoran about her visits to the Home.

45.	She had been the lead inspector at the Home when, following key inspections in August 2006 and August 2007, the environment there had been rated as “poor”.  At a further unannounced visit in February 2008, Ms Corcoran had warned the Second Appellant that she judged the service to be continuing to provide poor outcomes for people living at the home with regards to the home environment.  Her first visit to the Home was held on the 31 August 2006 and 14 requirements were made under the Care Home Regulations including three made following a previous visit which were still unmet.  Of the concerns identified in that inspection, care planning, environment, staff training, staff recruitment and quality control and the absence of a maintenance plan were all issues that remained when the notices of proposal to cancel was issued in 2009.

46.	In oral evidence, Ms Corcoran expressed her disappointment at the failure of the Home to make and maintain the necessary improvements to ensure compliance with the Care Home Regulations.  She explained that she had been on leave from early 2008 for the rest of the Year and returned in 2009.  She stated that she had given the Appellants a great deal of time to comply with the requirements, but that although some improvements had been made, they had not been sustained over time.

47.	Ms Corcoran further confirmed that she had identified the major concerns to the Second Appellant at the end of each visit.  Her main concerns related to the Home’s practice in staff recruitment, in that two references were not obtained and if they were obtained then they were not always from appropriate referees in that they were not from the previous employer.  The second recurring issue was care planning: care plans were not up to date, were not appropriately reviewed.  The third issue was lack of quality auditing; the fourth, the quality of the environment; fifth was safeguarding of service users and finally, poor staff training.  She stated that there were other issues such as the lack of activities arranged for service users, but these were the six identified major areas of concern.  

48.	She described the home on her first visit as being malodorous and cluttered.  There was no dedicated cleaner and it wasn’t very clean.  This led to safety concerns in respect of service users. There could be a risk to service users from hazardous substances or health and safety risks from tripping.  She had then requested a maintenance plan but none had been forthcoming.

49.	Ms Corcoran conducted a random inspection in February 2007 and noted some improvements but six of the 2006 requirements remained outstanding.  She noted that the provider had taken some action and that there was some improvement in the environment, but the work had not been completed and some issues still remained.  New members of staff had only one reference and care plans were still not being reviewed on a regular basis.

50.	At a further random inspection in August 2007 six of the statutory requirements remained outstanding from 12 months earlier.  Her concerns at this point related to medication and the failure to notify the Respondent of incidents between service users. 

51.	It was of concern to Ms Corcoran at the inspection in August 2007 that the Home was not addressing matters that could be very easily remedied such as safely storing food and maintaining the home’s environment, so that it was tidy and uncluttered.  The First Appellant had failed to provide the maintenance plan and annual quality assessment.

52.	At her final random inspection in February 2008, Ms Corcoran noted that the environment at the Home hadn’t improved with hazardous substances being left where they might be available to service users; there were additional medication issues identified and the review of care plans was again an issue.  There were seven statutory requirements which covered the same areas as previously.

53.	Ms Corcoran explained that initially there had been a whole range of concerns but most of the areas were assessed as “adequate” with the environment rated as “poor”.  At the key inspection on 9 August 2007, she had noted some improvements but saw some common themes that continued to be problematic namely, the environment, infection control, food safety and quality control.  In her view, the issues in relation to environment and infection control had the biggest effect on the service users because of its impact upon their dignity and safety.  She described how she had detailed discussion with the Second Respondent about the environment to try to ensure that improvements were made and maintained.  She confirmed that her conclusions as to the poor outcomes in relation to the home environment using the guidance “Key Lines of Regulatory Assessment.”  Nine statutory requirements were made following that visit and six were unmet from the previous inspection in August 2006.

53.	At the random unannounced inspection on the 14 February 2008, Ms Corcoran noted that the care plans had not been reviewed on a monthly basis, a care plan did not reflect a service user’s changing needs and another did not identify how to support the person with their emotional and behavioural needs both of which were fundamental aspects of the person’s care and support needs.  Although medication was managed effectively on the whole, there were some examples of the medication administration records not being completed in sufficient details and some creams and eye drops not being stored appropriately.  There were still concerns with food storage.  The home environment had improved but there were still many areas identified as needing improvement remained outstanding and further concerns were identified. The cleanliness of the home and infection control practices were not being maintained to an appropriate standard.  There was no maintenance plan for the home and the registered person had been requested to produce one following the previous three inspections and none had been forthcoming.  Seven requirements were unmet from the previous inspection although there were no new requirements identified.

54.	Ms Corcoran explained that she had then left for a period of leave at the end of February 2008 and returned to work in January 2009.  On her return to work, she was requested to attend at the Home as the second inspector with the new lead inspector, Ms Julie Garrity.  She attended at the Home on the 20 January 2009 and on their arrival, the Second Appellant was not present.  A member of staff contacted the Second Appellant who arrived at the home about an hour later.  She described to Ms Corcoran her plans to refurbish the Home but Ms Corcoran observed that many of the areas identified as needing to be improved in the previous key and random inspection reports remained outstanding.  The main hallway and downstairs toilet was malodorous and there was no cleaning schedule to ensure regular cleaning. None of the bathrooms or toilets had soap or towels in place to enable hand washing and drying and to prevent the spread of infection.  Food stored in the kitchen was out of date and the laundry room was dirty untidy and cluttered and the flooring was not suitable to maintain appropriate standards of hygiene.  Because the laundry room was left open, this presented a hazard to the service users.  Doors throughout the home were wedged open including the kitchen door and fire doors.

55.	Ms Julie Garrity gave evidence that she was allocated the Home to her workload in October 2008.  From that date she became the lead inspector.  She gave evidence in her statements that she had requested a copy of the Annual Quality Assurance Assessment (AQAA) from Mrs Walker in the course of a telephone call on the 13 November 2008 and during that conversation , the Second Appellant confirmed that it was overdue  and had not been returned.  She had also confirmed that a copy would be sent by email the following day.  The AQAA was not received.

56.	Ms Garrity gave evidence about her key inspection of the Home on the 20 January 2009.  She observed a member of staff giving out medications at lunchtime by allocating the medications into pots and leaving the pots in front of two ladies.  On checking the medication administration records (MARs), the entries for both ladies indicated that it had been administered to both ladies.  The member of staff confirmed that she had received training from the local pharmacist on the administration of medicines, but did not understand the practice of leaving medicines on the table for service users to take at their leisure as being bad practice.  The member of staff was requested to ensure that the practice was not allowed to continue and during the feedback at the end of the inspection, the matter was also drawn to the Second appellant’s attention.  Ms Garrity identified other issues in relation to the administration, storage and disposal of medications.  In the draft report, she wrote as a requirement that medications must be audited in order to determine that they are given correctly and to ensure that instructions for the administration of medications detailed the name, amount, frequency and times that medications were to be given, with a second requirement that medications are to be stored correctly and safely.

57.	Ms Garrity further identified issues in relation to the staff understanding adult safeguarding policies and believing that responsibility for reporting incidents lay only with the Home’s manager.  The practice described did not correspond with the locally agreed multi-agency policy regarding adult protection.

58.	She also noted concerns about the environment.  Services users had mentioned that the roof was leaking and staff had explained that the food freezers were kept upstairs.  Later on during the visit, at about 4pm, Ms Garrity went up to the top floor to look at the food in the freezers and for signs of a leaking roof and found a man in a dark room on the top floor.  As she was about to leave, she noticed a woman in the bed and a young child at the bottom of the bed.  She enquired who they were and was told that they had arrived the previous day and had stayed in the home overnight. The lady informed her that she was due to start working in another home owned by the Appellants the following week.  None of the staff nor the Second Appellant had informed the inspectors of the presence of the family in the Home.  Ms Garrity informed Ms Corcoran of what she had seen and both went to discuss this with the Second Appellant.  She initially claimed that the family were relatives of hers who had stayed at the Home overnight.  She subsequently confirmed that the lady had been recruited to work in Harding House, the other home owned by the Appellants.  No fitness checks had been carried out on the man, although the Second Appellant confirmed that she had undertaken fitness checks on the lady but that the records were at Harding House.  It was explained to the Second Appellant that she had allowed unchecked individuals to stay overnight in the Home with direct access to eight vulnerable people.  The Appellants did not make any challenge to the contents of the draft inspection report.

59.	A total of 19 requirements were identified at the end of the inspection.  Of these, four requirements were outstanding from two previous visits and thirteen of the requirements had appeared as part or all of a requirement of previous reports.  This led to the service being rated as poor and given a nil star rating.

60.	On the 2 February 2009, Ms Garrity received a telephone call from the First Appellant where he contested the content of the inspection report and claimed that the Second Appellant had stayed at the Home with the family found on the top floor.  Ms Garrity confirmed that this was the first time that such a claim had been made.

61.	In oral evidence at the hearing, Ms Garrity confirmed that she hadn’t seen an AQAA document in respect of the Home in February 2009 and had never been told by the Appellants that an AQAA was available for the Home.  She also stated that she had requested an improvement plan which had not been received and that she had prepared an improvement plan for the First Appellant and sent it to him on the 2 April 2009 but had not received any response to it.

62.	Ms Garrity gave evidence that on the 14 May 2009, she had received an email from the Contracts Officer at Wirral Council informing her that they had visited the Home that day and found it empty.  All the service users had been moved from the Home to Harding House.

63.	She subsequently visited the Home with Ms Jeanette Fielding, another CQC inspector, but the property was empty and no workmen on site.  They could not identify that any work had been done by looking through the windows.

64.	On the 10 September 2009, Ms Garrity conducted another unannounced inspection of the Home with Ms M Howells, a specialist pharmacist inspector.  On that visit, Ms Garrity issued a Code B notice under the Police and Criminal Evidence Act detailing the rights of the provider and the commission’s powers in relation to taking copies or original evidence.  On that occasion, records relating to the residents remained at Harding House, although the service users had returned to the Home some four days previously.  The Second Appellant agreed to bring the records over to the Home after 5.30pm.

65.	Ms Garrity’s inspection of the staff training records indicated that staff training was not up to date and training for safeguarding for the staff had not been renewed since 2008.  Two staff members had not received adult protection training in the previous three years.  On the other staff files, none of the ten files examined had evidence of Criminal Records Bureau checks relevant to the Home before they started working in the service and seven of the staff did not have two or more references.  Two had been recruited to work at Harding House and had not received an induction into the Home and one person with a CRB had convictions listed, but no evidence that the Second Respondent had risk assessed the situation. Two members of staff had non-British passports and no evidence that they were entitled to work in the UK.

66.	On that inspection, Ms Garrity noted poor practice in relation to fire safety, moving and handling, infection control and dealing with food.  She noted that staff did not have the skills needed to maintain the safety of service users.  She also noted that the controlled drugs cupboard had been removed and placed on the floor.  There were no records to indicate that members of staff had been assessed as competent to give out medications.  An inspection of the kitchen found out of date food, seals on the fridges were torn and damaged and health and safety audits were not made available.  Furniture in the dining room and lounge was torn and the Second Appellant explained that the furniture from Harding House had not yet been delivered. Neither the downstairs toilet nor the bathroom upstairs had a toilet roll or disposable towels.  Numerous other issues were identified which did not appear to be disputed by the Appellants at the hearing. 

67.	At the hearing, she identified her main concerns about the running of the Home as being the issues around medication; the fact that there was no process to determine the competency of staff; the lack of understanding about safeguarding issues and the staff’s ignorance about the safeguarding policy and procedures; staff training generally; care planning; infection control; issues around food and food hygiene and lack of choice for service users.

68.	Ms Garrity described particular areas of concern which included the lack of recording of the Home managing a service user’s money and the failure by the staff to identify a potential issue with service users losing weight over a period of time.  she described how she had believed that the Second Appellant had taken on board the issues discussed at the end of the first inspection in January 2009 and that she believed that improvements within the home would be made and maintained.  She had been disappointed to note that this was not the case and that when the service users eventually returned to the Home on the 7 September 2009, contrary to her understanding, the whole home had not been refurbished and that many of the identified issues remained.  Photographs had been taken of the home both in September and October 2009 which showed the condition of the Home after the refurbishment.  In her view, the environmental issues were still not addressed.  Of particular concern was that the toilets and bathrooms still did not have paper towels or liquid soap; there was out of date food in the fridge and a sandwich offered to a service user on the day of the inspection contained out of date ham.  

69.	Ms Garrity was invited to consider a number of documents produced in the course of appeal which appeared to address some of the concerns raised by her on her inspections.  These included care plans, risk assessments, a receipt for the monies paid to resident TJ on a weekly basis from 2006 to 2009, all signed by the Second Appellant.  She confirmed that she had not previously seen the documents, and drew attention to a number of inconsistencies within the document such as a reference within a monthly review of a care plan dated June, making reference to the service user enjoying the Christmas break, the August review referring to another visit from a professional in February and the May 2009 review of service user HH making reference to the service user looking forward to the transfer to Harding House, when the service users had already moved there in April 2009.  She confirmed that none of those documents had been available at the time of her inspections and that she had not seen them before the appeal.

69.	Ms Denise Fagan, contracts officer within the department of Adult Social Services at Wirral Council gave evidence at the hearing that she had received a telephone call from the First Appellant in about January 2009 informing her that the services users residing at the Home would be relocated to Harding House Nursing Home whilst remedial work was undertaken at the Home.  At that time eight of the service users were funded by Wirral Council.  A letter was sent from the department to the First Appellant dated 27 February 2009 informing him of the requirements for agreeing to a proposed merger.  This included a reference to the need for consultation by the Department of Adult Social Services with the relevant service users, relatives and representatives.

70.	On the 14 May 2009, Ms Fagan and another officer visited the Home to make an unannounced monitoring visit.  They found the property empty.  They then visited Harding House and discovered that the service users had been moved and relocated in Harding House.  The Second Appellant was asked about the consultation process and she stated that a meeting had taken place with service users and relatives to discuss the relocation but she was unable to produce any documentary evidence to support this.

71.	Ms Fagan gave evidence that she had consulted with the families of service users and submitted to the Respondent a matrix setting out the information obtained about consultation done with service users and their families and representatives prior to the move.  None of the service users or their families made reference to a consultation meeting.  Ms Fagan took the view that the service users had been moved without sufficient consultation and that the First Appellant had failed to comply with the requirements notified by DASS in February 2009.  She concluded that the service users had been moved without the consent or permission of the funding authority.

72.	In oral evidence at the hearing, Ms Fagan confirmed that she had a telephone conversation with the First Appellant in about December 2008 when the possible cancellation of the registration of Harding House was discussed and the possibility of the temporary transfer of residents there from the Home.  She did not recall any subsequent notification of moving the service users and took the view that the DASS had not been consulted to ensure that the service users had a choice about the move and were aware of the options available to them.

73.	In her further evidence, Ms Fagan confirmed that she had visited the Home in September 2009 before the service users returned.  The Wirral Council had received an email from the Second Respondent dated 28 August 2009 and had visited the Home.  She confirmed in cross examination that she had no concerns about the service users moving back to the Home at that time.

74.	Ms Margaret Howells gave evidence about her role as specialist pharmacy inspector and her visits to the Home in September 2009.  She identified her concerns about the administration, recording, storage, audit and disposal of medications and highlighted in her oral evidence the particular concerns relating to the leaving of medication out on the table for service users to take at their leisure and the difficulties in relation to completing MAR sheets when staff had not seen service users taking the medication.  She defined “administration” using the Royal Pharmaceutical Society guidelines and the guidance of the Respondent, stating that it means giving and seeing the service user take the medication.  A different term of “making available” was used where the medication is simply made available to the service user.

75.	She confirmed that there was an issue in relation to the storage of controlled drugs, given the change in the Regulations in 2007 and a statutory requirement issued in January 2009 that the safe storage of controlled drugs had to be addressed.  She discovered that none of the current stock of medication could be accounted for as no records had been made of medication entering the Home on the return of the service users from Harding House.  Further she noted that the poor practice previously identified in relation to placing service users’ medication on the table and letting them take it without supervision was continuing and that the medication was entered onto the MAR sheets as taken, before the service users had taken it.  Further, she noted that a member of staff who had been identified as not having had medication training was beginning to administer eye ointment to a service user without washing her hands and by asking another member of staff which eye was to be medicated.

76.	Ms Howells accompanied Ms Garrity on a tour of the building, taking photographs of hazards, poor maintenance and breaches of regulations.  She noted that in the downstairs toilet no toilet tissue was available and found out of date medication in the trolley. 

77.	In a statement dated 27 September 2010 Mr Dave O’Connor confirmed that he had contacted the First Appellant regarding the AQAA but in its absence a decision was taken to refer the matter to the Enforcement Team.  On the 28 December 2008, a statutory requirement notice was issued to the First Appellant by the Enforcement team manager as a result of the breach in the Regulation relating to non return of the AQAA.  On the 2 April 2009, following the publication of the inspection report rating the Home as a “poor” service, the First Appellant was requested to provide an improvement plan.  In the absence of production of the improvement plan, a statutory requirement notice was issued on the 11 June 2009 in response to the breach of the Regulations in respect of the improvement plan.  This evidence was not contested by the First Appellant and Mr O’Connor did not give oral evidence at the hearing.

The Appellant’s evidence
	
78.	The First Appellant gave evidence in a statement and orally at the hearing.  He confirmed that he had been the Registered Proprietor of the Home since 2002 and gave his view that there had been no problems there until January 2009 when cancellation notices were served in relation to it.  He gave evidence that he had sent an email to the Respondent regarding the Home that day attaching an AQAA in relation to the Home.

79.	He confirmed that he had spoken on the telephone with Ms P Smithson, the local area manager for the Respondent in late December 2008.  He explained that he had been told by Ms Smithson that he should contact Wirral Council Social Services Department about the planned move of service users from the Home to Harding House and he gave evidence that he had proceeded on that basis.  He stated that he could not recall responding in writing to the request for information made to him on the 29 February 2009 but believed that he did not do so because he had already communicated the information to Ms D Fagan.  He delegated the responsibility for conducting discussions with the service users and their families to the Second Appellant and confirmed that he had not kept any notes himself about the consultation process, making notes in his head and confirming that the Second Appellant kept notes of all discussions. He agreed to the refurbishment, which he stated in oral evidence did not involve any building work only cosmetic changes to the Home.  He did not attend a consultation meeting with the service users but was clear in his own mind that adequate consultation had taken place between December 2008 and March 2009.

80.	He explained that he had received a request from the Respondent for a copy of his accounts for the Home in December 2008 but that they had not been specific about the year that they required.  He also claimed that the Respondents had asked for the accounts to be certified by a bank, which he considered to be an unreasonable request and he had not provided them.  He explained that the Home had encountered financial difficulties towards the end of 2008 because they had been obliged to fund one service user for a period of about 18 months without payment.  She had initially been self-funding, but her solicitor who was responsible for the management of her estate had died and no arrangement secured through the Court of Protection for payment of her fees until she was assessed as eligible for local authority funding in January 2008.  He claimed that this left the home with a deficit in the region of £10 000.  As a result of this, he delayed paying the bed fees to the Respondent for both homes in December 2008.

81.	On cross examination, the First Respondent confirmed his view that the Home did not have any major problems at all at the Home until January 2009.  He took the view that Ms D Corcoran had worked with the Home from 2006 to 2007 to improve the Home and he maintained that the Home did not have a poor outcome at all until 2009.  He described how each of the shortfalls were covered after the inspections with a major part of the home being refurbished every year.

82.	The First Respondent relied on the fact that the Home had not received any complaints from service users or their families about the service provided there.  He described the Home as always being clean and tidy and criticised the January 2009 inspection for making reference to the laundry room as an issue when this was not a room used by the service users.  He rejected the criticism of the Home contained in the report following the January 2009 inspection.  He took the view that discussing the proposals for refurbishing the Home with the inspector every six months was sufficient to identify the maintenance plan, stating that the plan requested was just a piece of paper whereas the plan he outlined in discussions with the inspectors had been carried out.  he stated that he had discussed an improvement plan both with the Second Appellant and with Ms Garrity during her inspection but had not sent in a written improvement plan because by then the service users had already been relocated to Harding House and the January 2009 report contained many errors.  The Home was empty throughout the summer and it had been his intention to produce an improvement plan after the service users had returned in September.

83.	In relation to the preparation of the AQAA, the First Appellant claimed that he had provided the AQAA to the Respondent in February 2010, that he had prepared the document in 2008 and that it had been revised several time before its final submission.

84.	It was stressed by the First Appellant that all of the staff members were robustly recruited and a budget prepared for the purposes of training staff and all new staff were immediately enrolled onto NVQ courses.  He claimed that the information regarding the training records and CRB checks were completely wrong with all the staff CRB checked  and appropriately trained.  He claimed to have reprimanded the Registered Manager for telling a member of staff to say that she was an agency worker because her staff file was incomplete when the inspectors arrived on the .. 10th September 2009.  He did not have any written record of the action taken to discipline her.  He denied that the Home had any out of date food on the premises and denied that medication was an issue.

85.	The Second Appellant also gave evidence in a lengthy statement and in oral evidence at the hearing.  Mrs Walker had produced a number of documents to support her contention that the Home had all the necessary paperwork in place and was well managed and run.

86.	In relation to the AQAA, she confirmed that she had assisted in the preparation of the document but that it was her husband, the First Appellant who had been responsible for physically sending it on to the Respondent.

87.	She described how the Home had been the subject of criticism about the environment on numerous occasions and explained her view that the criticism at each inspection was in relation to different aspects of the environment and consequently did not reflect the allegation that the difficulties were not being addressed. She confirmed that work was done over the years to improve the physical environment and that she had, following the inspections in 2008 persuaded the First Appellant to fund a total refurbishment of the property to see whether such a drastic refurbishment would “get the monkeys off her back”.  She described how she had approached the consultation process on a one to one basis, discussing the proposal with service users individually first to introduce them to the concept of a temporary relocation in order to gauge their reaction.  She stated that she had continued the consultation process orally, but recorded the days on which she had discussed with various service users in the day book.  She confirmed that she had not had any verbal or written communication with the Respondent regarding the proposed move.  As the time approached for the service users to move, she called a meeting, inviting all the service users and their families which was held on the 13 April 2009.  All agreed to the move which had been intended to end on the 20 July 2009 and the service users were transferred to Harding House the following Monday.  She confirmed in oral evidence that she had compiled the record of the meeting from her recollection when preparing the appeal.

88.	The Second Appellant described how she had panicked when the family were found in the top floor flat of the Home by the inspectors, and admitted that she had tried to mislead the inspectors by telling them that they were members of her family, when in fact they were not.  She also admitted that she had asked a care worker to lie about her status as an agency worker because she felt that she had been under tremendous stress since January 2009 and had left the care worker’s file in Harding House. In her statement, the Second Respondent placed the blame for placing a frozen chicken on top of the filing cabinet in the office in the Home with the two inspectors who visited in October 2009, however, she retracted this version of events in oral evidence, having heard the evidence of the inspectors in the appeal and their recollection that the Second Appellant had turned up at the Home with her shopping on the day of the inspection.

89.	She described how she had tried to review care plans on a monthly basis and had obtained a risk assessment form from the local Primary Health Trust in order to risk assess the service users to decide whether they were capable of self-administering their medications.  She was unable to explain why the risk assessment for TJ indicated that he could not self-medicate, the rest of the form being incomplete and unsigned by him, yet his care plan recorded that his medication was to be left for him to take at his leisure.  She explained that she had done what she could to ensure that all pharmacy training was up to date, as was the staff training.  Certificates had been produced in relation to some members of staff but there was no evidence to support their attendance on the courses.  She stated that the certificates were genuine documents provided to her by the staff members.  She also maintained that the diary entries were genuine as was the record of payment of monies to TJ, countersigned by her personally every week without fail since 2006.  She confirmed however that some of the documents did not exist in their present form in 2009 and had been compiled from handwritten documents which had not been presented in evidence.  She described the out of date food as an oversight for which she apologised.

90.	When asked about the relevance of the Regulations, Mrs Walker stated that it was guidance put in place for providers to follow put there by the law for providers to uphold. 

Tribunal’s conclusions

91.	We considered all the evidence produced in the Tribunal bundle together with the additional documentary evidence produced during the course of the hearing and the oral evidence heard during the five days of the hearing.  There are two appeals to consider, one made by the First Appellant against the proposal to cancel his registration as a provider and the second made by the Second Appellant against the proposal to cancel her registration as the Registered Manager and both in relation to Rosehaven Home.

92.	Both the cancellation notices were based on the same facts and evidence but differed slightly in relation to the First Appellant because of his additional responsibilities as the registered individual.
 
93.	We considered the First Appellant’s appeal individually before considering the evidence in respect of those issues relevant to both Appellants.  Specifically the allegations which related to the First Appellant only were the failures to produce the AQAAs in 2008 and 2009, the failure to provide a maintenance plan from 2006, the failure to prepare and send to the Respondent an improvement plan from 2008 and the failure to provide a copy of the accounts relating to the Home despite requests being made following three consecutive inspections.

94.	We found the evidence presented on behalf of the First Appellant problematic from the outset.  His statement, submitted in support of his appeal, was peppered with phrases such as “my husband” and it had clearly been prepared for him, without any proof reading or checking of the content, by the Second Appellant.  Furthermore, his oral evidence was that he had not been aware of any difficulties in relation to the Home until the key inspection in January 2009. His suggestion that the attitude of the Respondent had changed following the appointment of Ms Garrity as the lead inspector in October 2008 was not supported by the evidence presented in the inspection reports, and was clearly at odds with the oral evidence of both Ms Garrity and Ms Corcoran.  Issues in relation to the environment in the Home had been a regular source of concern to Ms Corcoran between 2006 and 2008 yet the First Appellant did not appear to accept that those were genuine concerns, or he had been unaware of them.

95.	The First Appellant explained away the failure to produce a copy of the annual accounts on the basis that the Respondent’s request had been unspecific: inspection of the documentary evidence proved this to be incorrect.  The letter of request for a copy of the accounts was very specific in the documentation sought.  The First Appellant then alleged that the demands had been unreasonable, yet the request was formulated using the wording of the Care Home Regulations, indicating that the Respondent was only asking for that which it was entitled to request by law.  We formed the view that the First Appellant was either unable or unwilling to engage with his responsibilities as the registered proprietor and did not accept that the standards sought were the minimum and had to be maintained for the benefit of the service users.  We also formed the conclusion that he had wilfully failed to produce to the Respondent those documents relating to the financial stability of the Home which he was required to provide and was unreasonably trying to justify his refusal to do so.

96.	In relation to the AQAA, the position was complicated in the course of the hearing, because it became apparent that two copies of the AQAA were in existence, one dated October 2008 and the other February 2009 and that neither had been sent to the Respondent but that a copy had been sent to the Wirral Council as an attachment to an email in February 2010.  Closer inspection of the content of the documents revealed that contained information dating back to 2007, were the version of the assessment form produced by the Respondent’s predecessor body, the Commission for Social Care Inspection and was not therefore in the form required by the Respondent.  We found that the form as produced in evidence could not be described as sufficient to meet the statutory requirements as the information contained in it was incomplete and where completed it was several years out of date.

97.	The First Appellant admitted that he had not liaised in writing with the Respondent in relation to a maintenance plan or an improvement plan, believing that a discussion in the course of an inspection was sufficient to satisfy the requirement.  We found the First Appellant’s inability to comprehend the requirement for communication in writing in relation to the running of the home quite surprising. Given that he has been involved in the process since 2002, the requirements to produce documentary evidence should by now, be well ingrained into his work practices.  Instead we found that he was almost totally dismissive of the need for recording or for compliance with the statutory requirements.

98.	On the basis of the First Appellant’s own evidence about his failure to provide the necessary documentation and that of Ms Garrity and Ms Corcoran about the requests made, as supported by the copies of letters in the bundle we found that Mr Walker had breached Regulation 24 in that he had failed to produce a completed AQAA setting out his assessment of the quality of the service in 2009, that he had breached Regulation 24A, by his own admission in that he had failed to produce an improvement plan in response to the inspection report of January 2008 when the service was rated as “poor” and he further breached Regulation 25 by failing to provide on demand by the Respondent copies of the accounts to show that the service was financially viable.

99.	The allegations against both the Appellants relevant to them both was set out in the lengthy notices of proposal subsequently confirmed on cancellation.  At the outset of the hearing, it was conceded that many of the allegations had been accurate at the time of the relevant inspections.  The First Appellant’s contentions were in relation to the inspections carried out in 2009 and the alleged failures in relation to the preparation and delivery of AQAA reports, maintenance and improvement plans, production of accounts and the requirements in relation to moving the service users.  The Second Appellant’s contentions remained in relation to Regulation 12: enabling service users to make decisions about their care; Regulation 13(2): recording, safekeeping and safe administration of medicines; Regulation 13(6):	safeguarding service users from harm or abuse; Regulation 15: maintaining care plans:  Regulation 16:	adequate facilities and services; Regulation 18: staff training; Regulation 19:	recruitment; Regulation 20: dealing with personal finances of service users and Regulation 23: fitness of premises.

100.	We found both Ms Corcoran and Ms Garrity professional and balanced in their approach to the service and noted their expressed disappointment at their failure to encourage the Appellants to make and maintain the required standards to achieve an “adequate” rating for the service. We found the evidence presented in Ms Corcoran’s inspection reports consistent and balanced, and we accepted her explanation about the recording of CRB checks in 2008, although this will no doubt be a salutary lesson to her about accepting the veracity of comments and promises made by Registered Managers.

101.	We preferred the evidence presented by Ms Corcoran and Ms Garrity, which was corroborated by other evidence such as the photographs, the statement of Ms Susan Parsley and in some aspects by the evidence of the First and Second Appellants.  We found them to be honest and truthful and preferred their evidence to that of the Appellants.

102.	We were extremely concerned about the issue of the First and Second Appellants’ integrity and honesty.  Our attention was drawn to various documents which gave the appearance of being tampered with or inaccurately copied.  The Second Appellant sought to explain these issues away as “typos” and apologised for them, however, given her admission that some of the documentation had not existed prior to the appeal and that she had compiled them from handwritten documents which were not in evidence, we consider on a balance of probability that many of the disputed documents, which were risk assessments, monthly reviews of care plans, the monetary records relating to TJ and the staff training certificates were not genuine and had been prepared or edited to be presented to the Tribunal.

103.	The Second Appellant’s own evidence was that she had lied to the inspectors on two occasions and had encouraged a care worker to do so as well.  She admitted that when under pressure, she was capable of lying and that she did not cope well with the stresses placed on her by the administration of the home. She admitted oversights, lapses of judgment and trying to place the blame on others when things went wrong.  We consider that the ability to act with integrity is a vital part of the suitability of a Registered Manager and would further expect a manager to have strategies in place to ensure that administration and the daily running of a home does not become the source of tremendous stress causing knee jerk reactions.  The evidence presented from the inspection reports, and from the Second Appellant’s own evidence was of a lack of planning which meant that key documents and equipment were not in place.  This was particularly evident on the information provided about the return of the service users to the Home on the 7 September 2009, when it was confirmed that the furniture that they required was not delivered for another month.  We are satisfied that this demonstrates a breach of Regulation 16.

104.	From the evidence presented regarding the running of the home between 2008 and 2010, we concluded that the Second Appellant could not demonstrate an understanding of the role of a registered manager and her response to the question about the purpose of the Care Home Regulations demonstrated a complete inability to understand the concept that the Regulations and the imposition of minimum standards are intended to ensure a minimum level of service for the service users and not as she responded “guidelines for providers to follow, put there for us to uphold.”  The purpose of the legislation and the regulator is to ensure a minimum level of service for the service users, and not to seek perfection as suggested by Mrs Walker in the course of her evidence.

105.	We accepted the inspectors’ evidence about the number of breaches of the regulations and concluded that in relation to the other alleged breaches, the case against the Appellants had been proved on a balance of probability.  

106.	We noted that the Appellants had been given a significant length of time during which the Appellants had the opportunity to put right the deficits, particularly in relation to the environment within the home, but that they were incapable of doing so.  It was acknowledged as alleged by Mr Walker that the environmental issues were easily remediable, however, the Appellants showed themselves to be incapable even of putting right those deficits over a period of almost two years. 

107.	Of greatest concern in the context of the service users, was the complete failure on the part of both Appellants to understand the significance and the potential effect of the temporary relocation from the Home to Harding House on those nine service users who lived at the Home.  We did not accept the Second Appellant’s evidence that there had been a meeting to discuss the arrangements as this was not corroborated by any of the service users or their families in response to the enquiries by Wirral Council.  The failure by the First Appellant to engage as requested in the process of ensuring the involvement of other agencies and acknowledging the role of the funding authorities in a proposed move, even when he had been requested to provide written information about the proposals shows a total lack of understanding of the importance of the situation to the individual service users.  The Second Appellant did not show any comprehension that the move from one home to another constituted a significant change which required stringent planning and recording across all aspects of the management of the home, especially the movement of drugs and paperwork so that they continued to be audited and available to the staff and service users.  We concluded that there were clear breaches of Regulation 12 and 13 in this context alone, without considering the issues within the broader aspects of the home.
 
108.	We accepted the evidence of Ms Howells regarding the breaches of Regulation 13 and the administration, recording, auditing and safe keeping of medication in the home.  Although the Second Appellant stated in evidence that having heard the oral evidence about the concerns arising from the administration of the medications within the Home she now accepted that the Home had demonstrated poor practice in the past, we were not satisfied that she was capable of ensuring that the staff did not continue to use that practice as they had done in other areas such as wedging open fire doors and moving service users in wheelchairs without footrests.

109.	We concluded that underlying the Second Appellant’s inability to impose change and good practice was an inability to understand the purpose and function of the documents she was being asked to complete.  This issue was highlighted by the risk assessment forms completed in relation to service users which indicated that they were not able to self-administer medications, which were only partly completed and which were not signed by the service users or their families, yet which were used to justify the inclusion of self administration within the care plans.  We concluded on the basis of the documentary evidence presented, that care plans were not adequate in addressing the care needs of the service users or explaining how their needs are to be met; that the care plans were not reviewed on a monthly basis and that the risk assessments were inadequate and not fit for purpose.  This led to the conclusion that there had been and continued to be breaches of Regulation 15 in relation to the care plans.

110.	The issue of staff recruitment and training can be considered together because we accepted the inspectors’ findings in relation to the documentation produced on inspection.  We have concluded on the basis that the sticky tape used to attach a new name onto the original certificate can be seen on the photocopy, that at least two of the staff training certificates have been tampered with and are false.  Even with the false certificates, the evidence presented showed that staff training was inadequate, did not meet the required minimum and thus placed the service users at risk of harm.  Most glaring in the evidence was the clear misunderstanding by the Second Appellant of the local safeguarding procedure, with her oral evidence at odds with the policy which she had presented in evidence herself.  The issue of allowing unchecked adults to remain in the home overnight without any perception of the safeguarding issues raised is of major concern.  We have concluded that there are clear recorded breaches of Regulation 18 in relation to staff training.

111.	In relation to the recruitment procedures, the absence of CRB checks had been put right by the date of the hearing, but issues remained in relation to the references and where the Second Appellant’s own evidence confirmed that she had told a care worker to lie about the nature of her employment because the relevant paperwork was not available, this demonstrates a total lack of understanding of the purpose of obtaining appropriate checks and references.  We conclude that there were significant breaches of Regulation 19 over a lengthy period of time.

112.	The document produced to show that records had been kept from 2006 as to the provision of money to service user TJ we regard as a total fabrication and we find that the alleged breach of Regulation 20 as to the service user’s money is proved.

113.	Finally, the evidence presented about the continuing unsuitability of the premises, as supported by the photographs taken in October 2009 confirm that despite the attempts made to improve the environment, the premises were still unsatisfactory.  We have therefore found that there were significant and lengthy breaches of Regulation 23.

114.	Taking into consideration all of our findings in relation to the breaches of the Regulations, we have concluded that the Appellants have failed to demonstrate that they can deliver an appropriate service to the service users over a significant period of time.  The number of regulatory breaches which have existed since 2008 and which the Appellants were unable to remedy, fortunately, did not lead to serious incidents or accidents or to complaints from service users.  However, where the Appellants have been allowed a period of almost two years to put right those breaches, and they are still unable to demonstrate an ability to do so, we have concluded that the appeals should fail.

115.	This is the unanimous decision of the panel

Order
Appeals dismissed.

Meleri Tudur
Tribunal Judge, Care Standards
24 November 2010