TI v Commission for Social Care Inspection [2003] EWCST 0223(EA)  (6 September 2004)

TI
 - v - 
Commission for Social Care Inspection
[2003] 0223.EA

CERTIFICATE

As nominated Chairman in this case and in exercise of my discretion under Regulation 29(3) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, I CERTIFY the following:

At Paragraph 4 of the Tribunal’s decision in the above case the words FSA Paragraph 30 should be deleted and the words FSA Paragraph 50 substituted.

Andrea Rivers
Chairman
6th September 2004

TI v Commission for Social Care Inspection [2003] EWCST 0223(EA)  (15 July 2004)
TI v Commission for Social Care Inspection
			                      [2003] 0223.EA

Heard on May 10th , 11th , 12th , 13th , 14th , 17th , 18th , 19th , 20th , 21st ,    
                    24th , 25th , 26th , 27th , 28th and June 3rd 2004

				BEFORE

			   Andrea Rivers (chair)
				        Claire Trencher
				           Ken Coleman

           Counsel for the Appellant was John Buck, 
            (instructed by Ashton Graham Solicitors)
       Counsel for the Respondent was Vincent Nelson QC
		              (instructed by Mills & Reeve Solicitors)

DECISION

Introduction

1.	This was an appeal under Section 21 of the Care Standards Act 2000 against a decision of the respondent, dated 21st August 2003, to refuse the appellant’s application to register an independent fostering agency. The appeal was lodged on 16th September 2003.

2.	On 12th November 2003 and 21st January 2004 the President issued Directions for the hearing of the appeal, including a direction that there be a restricted reporting order, prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any vulnerable child, this to continue up until the commencement of the hearing. On the first day of the hearing the tribunal renewed that direction and it remains in force and for this reason the names of all children and foster carers have been initialised.

The Law

3.	Section 11(1) of the Care Standards Act 2000 (CSA) provides that:

“Any person who carries on or manages an establishment or agency of any description without being registered…in respect of it…shall be guilty of an offence”.

4.	On 1st April 2002 the Fostering Services Regulations 2002 (FSR) came into force and accordingly it became necessary to register independent fostering agencies. However, in recognition of the fact that it would be impractical to enforce the new regulations on the date of their implementation a transitional period was allowed. Thus, pursuant to CSA Schedule 5 Paragraph 1 and FSA Paragraph 30, agencies who had submitted an application to register by 1st April 2002 were deemed registered pending determination of their application. The relevant registration authority at that time was the National Care Standards Commission (NCSC).

5.	CSA Section 13(2) provides that:

If the registration authority is satisfied that –

(a) the requirements of regulations…; and

(b) the requirements of any other enactment which appears to the registration authority to be relevant

are being and will continue to be complied with…it shall grant the application; otherwise it shall refuse it.

6.	In the case of a refusal to register the applicant has a right to appeal to the Care Standards tribunal who may, under CSA Section 21(3):

confirm the decision or direct that it shall cease to have effect.

7.	Pursuant to Section 21(5) the tribunal also has the power:

(c) to direct that any such condition as it thinks fit shall have effect in respect of the…agency”.

8.	Paragraph 5(1) stipulates that:

A person shall not carry on a fostering agency unless he is fit to do so.

9.	A definition of “fit person” is set out in Paragraph 5(3). He is required to be:

(a)…of integrity and good character

(b)…physically and mentally fit to carry on the fostering agency
	
	     and there must be

(c) full and satisfactory information…available in relation to him.

10.	It is also relevant to this appeal to note that Paragraph 6 provides that an individual, referred to in Paragraph 8 as a “registered manager” is to be appointed manager of the agency and that this must not be the person responsible for the organisation. Paragraph 7 goes on to impose a requirement of fitness upon the manager who must have the necessary “qualifications, skills and experience”.

Standard and Burden of Proof

11.	The standard of proof applied is that of balance of probability.

12.	The question of burden of proof was the subject of submissions by both counsel.

13.	Mr Nelson, for the respondent, argued that the burden of proof lay with the Appellant. He referred to the recent analogous case of R v Jones, ex parte National Care Standards Commission [2004] EWHC 918 where Sullivan J, said, obiter, that Regulation 9 of the Care Homes Regulations, (like Regulation 6 of the Fostering Standards Regulations):

“…provides that a person shall not manage a care home unless he is fit to do so. It seems to me that it is at least arguable that under the new statutory scheme the burden lies upon an appellant to satisfy the Tribunal to the civil standard that he or she is a fit person to manage a care home as defined by Regulation 9 and Part II of the Act. It appears to be common ground that this is the position at first instance when the application is made to the Commission. The applicant for registration must satisfy the Commission that he or she is a fit person. Why that burden should shift to the Commission on appeal is by no means clear to me. Insofar as it is correct to speak of a “burden of proof” when deciding such judgmental issues, one would expect the onus to be upon the appellant to persuade the Tribunal that the Commission’s decision was wrong”.

14.	Mr Buck, for the appellant, submitted that the burden of proof lay with the Respondent and he referred us to previous decisions of this tribunal in which that approach had been adopted.

15.	So far as our decision in this case is concerned the issue of burden of proof did not play a major part in our deliberations since we were clear and unanimous in concluding that the evidence before us supported the findings which led to that decision.  Insofar as we did take it into account we considered that where the issue before us related to requirements as to procedure and documentation it was the responsibility of the appellant to demonstrate to us that these requirements had been satisfied. Clearly if there is an issue as to whether or not necessary checks have been carried out and whether requirements for documentation and record keeping have been complied with it must be for the appellant to provide evidence of this to the tribunal. In relation to fitness we note that Sullivan J was equivocal as to whether or not the notion of “burden of proof” was an appropriate one and take the view that in this respect the burden is a neutral one, that is, it is for us to make our own decision on the basis of the evidence before us. The exception to this was where specific allegations of bad faith were made, when we considered that the burden of proof lay on the maker of the allegation, on the basis that “he who asserts must prove.” 

Definition of Integrity and Good Character

16.	Mr Buck referred us to decisions of the Registered Homes Tribunal which provided definitions of the meaning of “fitness”. In Decision No 76 it was said that “it is probably much easier to recognise the quality of fitness than to attempt to define it.” However, under the new legislation the regulations themselves define fitness using the words “integrity and good character”, as set out in Paragraph 5(3). The problem, as he pointed out, was that they provide no definitions of integrity or good character.  

17.	Mr Nelson proposed that good character meant that there was “nothing in the appellant’s distant or recent past of a criminal nature for which he has been convicted or for which there is convincing evidence that he would have been convicted if prosecuted.” He submitted that the word “integrity” had a wider meaning. He referred us to the entry in the Oxford English Dictionary which includes “soundness of moral principle; the character of uncorrupted virtue, esp. in relation to truth and fair dealing; uprightness, honesty, sincerity.” He further submitted that “if an individual knowingly misleads the regulatory authority in any material respect, or knowingly and persistently fails to observe the Regulations, that person can be said to lack integrity within the context of Regulation 5.” 

18.	We took account of these submissions in making the findings which are set out below.

Background

19.	We heard evidence from 27 witnesses over a period of 16 days. In addition to this oral evidence we were provided with witness statements together with over 2,000 pages of additional documentation. We heard detailed evidence about the foundation of TIPF, the role played in its running by its proprietor, Mrs OB, and the circumstances surrounding the application to register. The evidence was complex and the many factual issues were often intertwined.  We have therefore set out the relevant background facts in the form of a chronological narrative in order to explain clearly the basis of our findings.

TIPF

20.	TIPF is a fostering agency, specialising in providing permanent or long term foster placements for children. Most of these children are in the care of their local authority and many have a history of placement breakdown and behavioural problems. The function of this and other independent fostering agencies is to provide placing authorities with suitable families for children in their care. Each placement is supported jointly by the placing authority, through the child’s own social worker, and by a link worker, employed by the agency to provide support for the carers. The agency contracts with the placing authority and is paid by them to provide the services specified in the contract and carers are paid by the agency. In almost all cases the placing authority has parental responsibility for the children the only exception being when they are voluntarily accommodated by the local authority at the request of a birth parent who therefore retains parental responsibility.

21.	The proprietor of TIPF is Mrs OB who set it up in 1999. She is also the chief executive of a limited company operating three businesses, one specialising in school skiing trips to Slovakia, another which arranges cosmetic surgery in Prague and a third which renovates French holiday properties. However, she told us that she gave most of her time to TIPF.

22.	Prior to setting up these businesses she had been a foster carer for Suffolk Social Services, jointly with her husband between 1994 and 1996 and as a sole carer, following his death in 1996, until 1999. During that time she cared for a number of children, the last of these being twins who were with her for four years. They had had a difficult history and seem to have thrived in her care. In 1999, however, she parted company with Suffolk Social Services. The twins left her care and she decided to set up her own fostering agency. In her statement she describes her motives for setting up the agency. She says, “I generally came to the view that children who are hard to place were not getting the level of service that their very difficult circumstances demanded…it seemed to me that it must be possible to devise sufficient support for foster parents, professional standing and recompense to make the task of fostering difficult children more rewarding and sustainable for the children placed in their care”.

23.	At around that time she responded to an advertisement in Community Care magazine and met William Orr, an experienced social worker who began working with her for TIPF on a self-employed basis.  Mrs OB told us that she had engaged him to advise in the setting up of the new agency and she described him as “our senior social worker who advised on all aspects to do with Social Work practice”. She also engaged the services of Mavis Cox to manage the finance and administration of the agency. David Cox, Mrs Cox’s husband, also advised as TIPF’s accountant.  

24.	In April 2000 Lincolnshire placed a child, NJ, with Mrs OB, through TIPF. In July Bedfordshire also placed two brothers, RL and CL with a Mr and Mrs RI, through the agency of TIPF. 

25.	The placement of NJ seems to have been initially extremely successful. In the annual placement review NJ’s social worker, Philip Brown writes that Mrs OB had “shown total commitment to NJ….the alternative to this would have been a succession of disruptive placements with each breakdown feeding into his low self esteem and making his behaviours even more extreme.”

26.	In January of 2001 Graham Buddery, an experienced social worker who was a friend and colleague of William Orr  began to do sessional work for TIPF, organising training courses for foster carers. He told us that in the February he organised a “Prepare to Care” course, attended by ten prospective carers and a further course in the September on the management of difficult behaviour.  He was also employed to act as an Independent Reviewing Officer, responsible for undertaking annual reviews of four of TIPF’s carers, including his employer, Mrs OB.

The New Regulations

27.	At around that time preparations were being made for the new Fostering Services Regulations which were to come into force on April 1st 2002, in conjunction with the publication of a set of Minimum Standards for Fostering Services. The Regulations were more a statutory tightening up and improvement of existing practices than a totally new scheme and they set out clear procedures for the approval of agency foster carers. Initially they were to be assessed by a social worker from the agency using a well-established format known as Form F and designed to explore the backgrounds, experience, motivation and general suitability of potential carers. This would be signed by the assessing social worker and countersigned by the agency manager. Other checks would be made, including medical checks, checks with their local authority to see if they had any information about them and, most importantly, police checks. Prior to April 2002 police checks had been done locally but at around this time the Criminal Records Bureau (CRB) took over this function and information was now to be stored and recorded on a national database. The agency social worker would present the prospective carer, together with their Form F and the documents evidencing the completed checks, to a panel, to be set up by the agency pursuant to the regulations. The agency panel would then make a recommendation as to whether or not the carer should be approved by the agency, and if so, the ages and type of  children suitable to be placed with them.

28.	Prior to the implementation of the regulations arrangements for approving foster carers had been less clear. Approval could be given by the child’s individual social worker, or by a panel set up by the placing authority and agencies were not required to have their own panels. Apart from that, however, similar checks and investigations were carried out. 

29.	As the time for the implementation of the regulations approached local authorities began reviewing their own procedures and the procedures of independent agencies used by them, with a view to working towards meeting the new requirements. Groups of local authorities had formed consortia with each authority responsible for visiting agencies they themselves used and pooling the information with the group.  

Lincolnshire and TIPF 

30.	We heard evidence from Leila Barron, Lincolnshire’s Fostering and Adoption Department Manager, that as part of this process she and colleagues were looking at the placement of NJ, with a view to the requirements of the East Midlands Fostering Consortium’s Approved Provider List. They had no concerns for his welfare but they did have some concerns about Mrs OB’s relationship with the placing authority, for instance, that she had taken NJ abroad without their consent.  In her statement Mrs OB agreed that she and taken NJ with her “to various European destinations…on about 10 occasions” but that “each time prior notification of the intended trip was made to the responsible authority who never refused permission for him to go.”

31.	There had also been problems between Mrs OB and their contracting department involving what Mrs Barron described as “heated phone calls” about financial issues and staff had complained about her manner.

32.	On 23 May 2001 Sue Bates, their Contracting Officer, wrote to Mrs OB. The letter was headed “Spot Purchase of Foster Care Services” and dealt briefly with financial issues which had now been resolved. The rest of the letter set out information about the accreditation process and the need to visit each agency for this purpose. It referred to an earlier conversation with Mrs OB in which, according to the letter, she had declined to attend a meeting with Sue Bates and Leila Barron, and asked her to re-consider their request. 

33.	On 25th May 2001 Mrs OB wrote to say that she was not willing to attend such a meeting. She felt that Lincolnshire’s request was a “tool for price negotations” and an “abuse of statutory powers”. She said “We are fully aware of the national standards for foster care…and will comply with the regulation accordingly”. Mrs Barron wrote back on 11th June, setting out their position in more detail. She said, “Our wish to visit you is to satisfy ourselves that you currently work within the regulations and are working towards compliance and not about individual payment negotiations”. Mrs OB replied on June 13th. “May I assure you”, she wrote, “that I am not only fully aware of the incoming regulations but also hope to play a contributing part in the shaping of the public and private partnership agenda.”  So far as any meeting was concerned she said that “I, as the TIPF director, would be more than happy to meet  you and your contracting department if Lincolnshire has any proposal for a tendering of a block fostering contract (we are currently discussing with one local authority for unaccompanied children, Asylum seekers, there are 40 of them).” 

Peterborough and TIPF

34.	On 8th August 2001 Peterborough Social Services entered into an emergency placement contract with TIPF to provide a carer for NM, a 14 year old girl moving directly from secure accommodation into foster care.  She was placed with Mrs W, a sole carer. We heard evidence from Helene Carr, their Contracts Review Officer and we were also provided with documentation in relation to the placement.  The contract included the provision by TIPF of one hour a week therapy, to be provided by the NSPCC, and nine hours a week individual tuition. The placement began on 13th August and it was problematic from the outset. There was a statutory visit on August 20th at which, it is recorded, no one from TIPF was present. NM was unhappy about the education being provided. According to Mrs W she wanted singing and dancing lesson instead. She began staying out late and on 22nd August Mrs W told NM’s social worker that four men had been calling the house in the night. NM had been to a night club and “met an American man with his own flat”. Also, she had been allowed to stay overnight with a neighbour, who had not been police checked, and in relation to whom approval had not been sought from the local authority. 

35.	In her statement Ms Carr said that when she had tried to discuss these problems with Mrs OB “she appeared untroubled…” and that “she took no active steps to resolve the situation and the relationship between the authority and Treasure Island deteriorated”. On 5th September NM was removed from the placement. 

36.	In her oral evidence she added that it was “very difficult to communicate with her. She wouldn’t listen to comments or constructive criticism. She became very defensive, very personal.”  In her evidence to us Mrs OB said that “they moved the child before I could reply to the criticisms” and that so far as communication problems were concerned “If I have a view, I will say it.”

37.	In her statement she also said that account should be taken of her Chinese culture, heritage and speech patterns. “It is true to say that I tend to talk quite quickly and I tend to be specific when speaking and will question very purposely things which are said to me which I do not understand and which I want further explanation about”. In oral evidence she described herself as a competitive person who always tried to do her best. When it was put to her, in cross-examination, that she was aggressive she produced a dictionary definition of the word and, referring to it, agreed that this could be true in a number of positive ways.

October 2001 to April 2002

38.	In October 2001 Mrs OB attended a Department of Health Seminar about the draft Fostering Standards and Regulations. Leila Barron was also there and in the afternoon they found themselves in the same small working group and she recalled Mrs OB asking questions about the impact of the new standards and regulations on small businesses. She told us that timescales for applications for registration were discussed at the meeting and participants were told that the regulations would be in force by April 2002. She and a colleague had introduced themselves to Mrs OB in the coffee break and she did not find her difficult to get on with.  Shortly after that Anne Johnson, a practice manager from Lincolnshire, visited TIPF to talk to Mrs OB about the new standards, with particular reference to NJ’s placement. This was a successful meeting and Anne Johnson recorded that “her manner throughout is one of a woman who is already on board with most of the standards and who genuinely tries to provide a quality service”.

39.	At this time Mrs OB was herself making representations to the Department of Health and contributing to the consultation process pending the implementation of the new standards and regulations. In November she received a letter to say that in response to her comments it was no longer proposed that independent fostering agencies be required to be limited companies. 

40.	Towards the end of 2001 Brent Social Services were in discussion with Mrs OB because they were considering placing one of their children, TD, with TIPF foster carers, Mr and Mrs B. Like Lincolnshire they belonged to a group of local authorities, the Pan London Consortium, working towards the new standards and regulations. Dyelia Morgan, who gave evidence to us, was acting manager of the Brent Long Term Fostering Team at that time, responsible for reading the Bs’ Form F and ensuring a “safe and appropriate match for TD”. TD was thirteen and had already had a large number of placements including four years in a Residential Children’s Home. In her statement Dyelia Morgan said that he “presented with challenging behaviour and had been sexually and physically abused in previous placements”. She said that, “On 11th January 2002 Brent Panel recommended the interim approval of the Bs for the next three months whilst further work was done.”  A condition for final approval was that TIPF was to pursue affiliation with the Pan London Consortium and Sarah Cruddas, a Development Officer in Brent’s Family Placement Team, was asked to carry this forward.

41.	It was also at around this time that Mr and Mrs R applied to be carers. They met Mrs OB and Mr Orr and it was arranged that Mr Orr would undertake their Form F assessment.

42.	On January 18th 2002 Graham Buddery, who gave evidence to the Tribunal, resigned from TIPF. He told us that problems had arisen around his annual review of Mrs OB’s status as a carer and her ability to meet NJ’s needs. He said that, “She was annoyed about some of the issues I had raised and demanded changes. I am happy to discuss legitimate issues and to make changes if things are factually wrong. But I couldn’t alter something I didn’t agree with.” As well as being a qualified social worker Mr Buddery has management qualifications and he wrote to her, criticising the structure of TIPF. He felt that she needed “clear, defined lines within the company”, to have a “principle social worker responsible for the day to day management of social work staff and carers” and that as the proprietor she should “take a more strategic role instead of the day to day management of the agency”. He said that Mrs OB rejected his advice. Mr Buddery’s letter of resignation records that on 14th January he had telephoned Mrs OB in response to a number of lengthy messages left on his answerphone. According to him she had been planning to place a child in a school without reference to the Local Authority and he was phoning to advise her not to do this. There had followed what he described as fifteen minutes of abuse in a conversation lasting seventeen minutes. After that he decided he could not continue to work for TIPF, though he told us that he did not actually write the letter for another three days to give him time to reflect on the matter. His letter referred to her as ignoring his professional advice on a number of occasions, as  “losing her temper and shouting at those attempting to offer advice” and he referred to the “bullying tactics you use to get your own way”. He told her that she had “no respect for anyone who challenges your position, social workers generally….because of course you know best”. In his evidence to us he expressed the view that she “had insufficient knowledge of law or practice to run the organisation without professional support or advice.” Mrs OB in her statement said that she had been “disappointed in his conduct. He had not responded to telephone calls, he had not provided certain items of paper work that I was expecting.”   

43.	On 12th and 13th February 2002 Sarah Cruddas visited TIPF in connection with the Pan London inspection required by Brent. Unfortunately Mrs OB was away at this time but it was arranged that she would be interviewed on February 25th although it appears that this meeting did not take place. Prior to the visit Sarah Cruddas had sent a questionnaire dealing with such matters as the staff, constitution and structures of the agency, a request for an authorisation for references, together with an outline of the documentation available in the agency. At the inspection she found a number of shortfalls in the documentation, for instance, a number of Form Fs had not been signed or dated or they had been added to or amended at a later date, a sample of five or six files revealed no local authority checks and there were no records of staff cvs, proofs of identity or qualifications. She was particularly concerned about the lack of police checks on staff files and noted that “most information for the staff files had been requested subsequent to the knowledge that the agency would be inspected”. She spoke to Mrs OB on her return from holiday about the need for these checks and in her statement she says, “It was clear to me that she had no knowledge of the process. I was concerned about her fundamental lack of knowledge.” She told us that on 4th April she wrote to Mrs OB requesting clarification and documentary evidence that checks had been carried out and says that the reply she received from Mrs OB did not clarify the situation. 

44.	In March 2002 the Department of Health published a Guide for Registered Providers explaining the new registration procedures and giving contact details of local NCSC offices and a helpline number. As explained in Paragraph 4 above it would be necessary for TIPF to apply to register by April 1st if they were to continue to operate within the law. However, they did not do so.

Placement of NJ with Mr and Mrs R

45.	On 2nd April 2002 Mrs OB reported an incident of restraint on the previous day, involving herself and NJ. According to the notes of his social worker his behaviour often deteriorated when he was due to see his birth mother. He had also become upset because Mrs OB’s male au pair, with whom he had formed a close bond, had returned to his native country. There is conflicting evidence about precisely what happened at this point. Mrs OB says that there was an introductory period towards the end of March, with visits by Mr and Mrs R to her home and visits by NJ to their home. In a letter written nearly a year later, on 22nd March 2003, she said that “the introduction for respite started in March, this usually started with one or two short visits from the Rs visiting NJ in our house, and I and NJ subsequently to the Rs’ house for one or two visits lasting for one or two hours.”  However, the first written record she had was for a visit on April 4th, this being a record of payment to the Rs in respect of NJ. Mrs R said that the first time they met NJ was on April 3rd, although William Orr had visited them on March 28th and told them about him. According to her statement he said that NJ and Mrs OB might need “a break from each other” but that this was unlikely to be in the near future. Mrs OB had then phoned them on April 2nd to say that “things were going to move quite quickly with the respite placement” and, following a visit from NJ and Mrs OB on April 3rd, he stayed overnight with the Rs on April 4th. She says that the next day NJ was returned to Mrs OB who asked if they could have him for the weekend. On April 6th he came to stay and on the way back in the car he asked whether he could call them Mum and Dad now that he was coming to live with them. He did not leave, except for the purposes of respite care, until the breakdown of the placement a little over a year later. 

46.	At this stage Mr and Mrs Rs’ Form F assessments by William Orr had not been processed. They had not provided the necessary medical checks and had not yet been police checked. Requests submitted to the Suffolk local police by Mrs OB earlier that year, prior to the start of the CRB system, had been returned to TIPF because the information held by the police was inconsistent with the disclosure provided by both Mr and Mrs R.  By this time the new CRB procedures were in operation. Under the new system the Rs were required to request personalised forms from the CRB which had to be countersigned by an approved body and sent off to be checked against a national database. It was not until the following September that they finally sent the forms off, together with the accompanying documents, and the police checks themselves were not issued until January of the following year. 

47.	Information about the police checks only emerged piecemeal during the course of the hearing. Indeed in her statement Mrs OB had disputed the allegation that they had not been carried out and exhibited what appeared to be the last pages of two CRB forms, signed and dated by Mr and Mrs R on 10th May and 12th April respectively. Only when the Respondent questioned the validity of the exhibits and made some enquiries of their own did Mrs OB produce more helpful documentation and it was not until one of the last days of the hearing that the CRB checks were finally produced by her. These showed that Mr R’s check had been issued on 22nd January 2003 and Mrs R’s on 17th January 2003. When it was put to Mrs OB that her statement and exhibits had been misleading she told us that she had made the statement in her lawyer’s office. She had brought a lot of documents with her and her lawyers had selected the exhibits. She herself had been working through the night and hadn’t had time to check with her administrative staff. 

48.	On April 19th 2002 there was a statutory review of NJ’s placement and it was decided that NJ would stay with Mrs OB with regular respite visits to the Rs alternate weekends and holidays. However, on 24th April she wrote to Philip Brown, NJ’s Linclolnshire social worker to say that she had spoken to the Rs and to NJ and it had been agreed that he would stay with them the whole week. She also reported that NJ was “unhappy about the frequency of the respite, he felt every other weekend and the school holiday was not enough”. She said that she had already discussed this arrangement with William Orr, the Rs’ TIPF link worker and that he supported the arrangement. She said that she would “continue to liase with the Rs to take into consideration NJ’s demands and his needs, so we can make the most suitable arrangement for his respite flexibly.”  She concluded “I hope this is OK with you”. 

49.	In a report dealing with the situation at that time William Orr specifically denied that he had been in agreement with the arrangement. He described the circumstances around the placement as follows: “I had barely finished the assessment Form F for the Rs when NJ became extremely violent towards his carer Mrs OB and he had to be moved very quickly. I spoke to his social worker and told him that Mrs OB wanted to move NJ to the Rs. The Rs agreed to have NJ and said they would take him to and from school. Mrs OB agreed to pay them several hundred pounds per month mileage in addition to the fostering fee.” The Form F assessment he referred to was dated 5th May. In a section about training it recorded that Mr and Mrs R, “spoke enthusiastically about the courses attended” and felt “they learned a tremendous amount”. In fact they had attended only one course, on sexually abused children, and had missed the initial preparatory training, a foundation course for all prospective carers, apparently because their car had a flat tyre.  

50.	Philip Brown was unhappy about the contents of Mrs OB’s letter of April 24th. He wrote to her on May 17th re-stating the plan agreed at the statutory review and asking why it had not been adhered to. He was concerned that NJ was “getting confusing messages about his future” and we heard that he had recorded in a file note of May 7th that NJ had told him that he was staying with the Rs full time and didn’t want to go back to Mrs OB.

51.	Mrs OB responded on 27th May. “As I have explained to you”, she said, “We were going to make the arrangement flexible.” She told Philip Brown that NJ was going abroad on a two week holiday with the Rs and she would be sending further details of this under separate cover.

52.	On June 20th there was a planning meeting in relation to NJ’s placement and it was agreed that it should be a permanent one with occasional respite visits to Mrs OB. A file note of a conversation between Anne Johnson, a Lincolnshire practice manager, and Cecilia McKillop, an NCSC inspector, on 24th March 2003, records that she expressed the view that they had been “stitched up by the agency and the move was supposed to be respite and it evolved into a move.” She then said that “the child was happy in the placement and was doing well. He would be difficult to place and they felt between a rock and a hard place although they had considered moving him. She said that they found themselves with few choices, given his age.” 

53.	On July 20th Eddie Birmingham, who gave evidence to us, took over from Philip Brown as NJ’s social worker. He soon became aware that the placement of NJ with the Rs was problematic. When he checked NJ’s file he was also concerned to discover that there was no Form F and also “nothing to show that checks had been commenced when the child was placed”.  

54.	On July 25th William Orr resigned from Treasure Island saying that he was concerned about his relationships with placing authorities and felt he was being “pushed around”. He also said that he was feeling overworked, especially as he was always on call. This was not the first time he had resigned. The previous November he had also written a letter of resignation in which he had said that, “I have never been disloyal to your agency but I am never prepared to compromise my professional reputation by colluding with you to go behind the back of a local authority…they are his legal parent, not the Education Office…I have tried to discuss your relationships with Social Services but you seem unable to listen….You are fundamentally a very kind woman and a very gifted carer. But you are also a bully and I do not respond well to being bullied.” However, it seems that he and Mrs OB had managed to settle their differences and that he had resumed his work for TIPF.

55.	By this time the deadline for applications to the NCSC for registration was long past although Cecilia McKillop, an NCSC inspector had become aware of the existence of TIPF through advertisements in the local paper and had written to them on April 9th  suggesting they contact the NCSC.

The Second Pan London Inspection

56.	For reasons which were not clear to us it appears that no progress had been made in relation to the Pan London inspection and the shortfalls in documentation identified during the February visit. However, on August 14th Sarah Cruddas, together with Barbara Flight, her team manager, once again visited TIPF. They also wanted to talk to Mrs OB about concerns which Brent had about the placement of TD and had asked for William Orr to be present at the meeting. Notwithstanding his resignation the previous month he did attend. The visit lasted two hours. According to Sarah Cruddas Mrs OB wanted to discuss the statutory registration process. She told them that she had applied for an application pack and that her lawyer was looking at it and at this point it became clear that she had not applied for registration. Sarah Cruddas phoned the NCSC there and then to consult them about this. They said that in the circumstances the application form should be returned by the end of the week. She said that she told Mrs OB that she was trading illegally and that she could be shut down if she didn’t make the application. Mrs OB described her behaviour as “extremely powerful and oppressive” though Sarah Cruddas denied that her behaviour had been antagonistic. Following the visit she said she still had concerns about the agency’s paperwork.

Response of the NCSC

57.	On the same day Mrs OB phoned Gordon Chadwick, the Locality Manager of the Suffolk office of the NCSC, to complain about the Pan London visit. He says that he found her incoherent and asked her to write in. She did so immediately. Her letter requested information on a particular point raised by Pan London about the regulatory requirement to have a registered manager who was to be separate from the registered provider. She requested clarification from him as to what she termed “confusion regarding the new legislation”. In her view the TIPF “team“ which included a finance manager (Mavis Cox), a senior social worker (William Orr) and herself met the requirement of manager. To expect them to engage anyone else was unfair and unreasonable and demonstrated that, in her view “the regulations continue to be arbitrary and prejudicial”. She would be seeking legal advice about this.

58.	The following day she wrote to Sarah Cruddas to register her “serious concerns” about the Pan London inspection. She said that “This agency reserves the right to seek compensation for the distress you have caused”. She also wrote a letter to the Head of Fostering at the Department of Health complaining that consortia such as Pan London were operating alongside the NCSC despite having no apparent legal right to do so. She said that, “As the proprietor of this agency I now face thousands of pages of rules and forms from several local authorities, social services consortiums etc.” All these letters were variously copied to senior members of the NCSC, her MP and the Department of Health.

59.	On August 29th Gordon Chadwick wrote to Mrs OB setting out the position of the NCSC. He told her that TIPF had not complied with the mandatory requirement to register and that “accordingly, you are a person carrying on a fostering agency…illegally…and are liable to prosecution.” Under “Action Required” he told her that:

•	She must return the application form by September 14th or face the possibility of prosecution
•	She must explain the reason for the delay immediately
•	She must immediately provide details of all children in placement with TIPF families, to include the names of their placing authorities and social workers.
•	For the time being she must make no more placements.

Placement of RL and CL

60.	On August 30th problems arose in connection with the placement of the brothers RL and CL who had been with Mr and Mrs RI since July 2002.  There had been an incident between one of the boys and Mrs RI at a scout camp on August 13th which she had reported to Pam Blackmore, the boy’s social worker. Prior to that there had been a couple of incidents when it was felt that the RIs had been over strict with the boys. However, there had been a review of the placement on August 22nd at which it was decided that notwithstanding the incident the placement was continuing to go well. There was even talk of adoption. 

61.	However, the incident was also reported by members of the public to Buckinghamshire Social Services who passed on the reports to Bedfordshire who received them on Friday 30th August and made a decision that same day to remove boys from the RIs forthwith on a temporary basis, so that the incident could be investigated.  We heard evidence about the events of that day from Pam Blackmore, from Christine Conquest, a senior social worker, also involved with management at that time, and also from Mrs OB. It seems that there were a number of telephone calls and faxes that afternoon. According to Christine Conquest it was agreed with Mrs OB that the boys would be removed and taken to Mr and Mrs C, TIPF respite carers, on the Saturday. TIPF would be responsible for organising this as no one from Bedfordshire was available that weekend. Mr Orr, the RIs’ link worker was strongly opposed to the decision. He had voiced his displeasure to Christine Conquest on the phone and in her statement she says that she “had found the call so distressing that I had to put the phone down.” 

62.	The following Monday Christine Conquest returned to work to discover that the boys were still with the RIs. A letter from Mrs OB dated 1st September explained that having spoken to the RIs, their link worker Catherine Howes (William Orr’s daughter) and the boys themselves it had been decided that they would not, after all, be moving to the Cs. In her view this would not be in their best interests. Instead they had been introduced to the Cs with a view to future respite placements. She had advised Mrs RI about how to avoid problems at any future scouting events. She acknowledged that they had not attended the course on “managing challenging behaviour” and said that they would be attending the next one. Christine Conquest said that, “I felt that Mrs OB had totally disregarded the Local Authority’s decision”. Following this episode William Orr once again resigned from TIPF for the third and final time. 

63.	Mrs RI herself gave evidence to the tribunal. She and her husband had found TIPF to be supportive of the placement which, despite Bedfordshire’s concerns, has proved to be a successful one with both boys remaining in their care.

The Welfare Visit

64.	It was proposed that two NCSC inspectors, Gordon Chadwick and Bridget Forrest, would visit TIPF on 11th September. This was not an official inspection and was called a “Welfare Visit”. Jennifer Smith, a social worker who was also a foster carer for TIPF, had joined the staff of TIPF on 9th September with a view to becoming its registered manager and she helped to prepare for the inspectors’ visit. Following the visit the inspectors said that they “felt that Mrs OB understood the gravity of the situation” although they identified a number of regulatory breaches. They referred to unresolved child protection matters and said that “the development of (and in some cases creation of) records and policy documentation was required.” This was to include “a system so that contemporaneous accounts of contact with placing authorities can be recorded and verified.” In relation to the problem with the RIs they observed that “the lack of any written records available on site from the agency’s support worker, the absence of records held at the agency left it particularly vulnerable.” Gordon Chadwick was also going to contact Suffolk to find out more information about the circumstances in which Mrs OB had ceased to be a foster carer for them. Mrs OB said she had become confused with the two sets of documentation (NCSC and Pan London). She had said, “You become overwhelmed with paperwork” and that the NCSC application had been “put to one side”. 

65.	They also told her that they would be sending a questionnaire to all TIPF’s placing authorities seeking information about the agency and in fact a number of the Respondent’s witnesses who came to give evidence at the hearing were representatives of local authorities who had placed children with TIPF carers. It was part of Mrs OB’s case that the NCSC had deliberately sought negative information about her in their enquiries, although the letters accompanying the questionnaires, which were sent out on September 23rd were neutrally worded. 

66.	However, at a later stage, an internal NCSC staff memo dated 21st November 2002 did indeed refer to “the dossier that Ipswich are building on Mrs OB” and in a letter to Peterborough, written on the same day they said that “the commission has serious concerns and we are contacting a number of local authorities to gather evidence with a view to refusing the agency’s application.” 

67.	The NCSC followed up the Welfare Visit with a letter dated September 26th  from Gordon Chadwick to Mrs OB. In it he summarised the requirements identified at the welfare visit, pending completion of the Commission’s full report.  He said that, “While the Commission does not wish to move the matter of the late return of your application form forward the welfare visit has given further areas of concern”. If the requirements of the legislation were not met, however, they would consider refusing her application.

68.	On October 8th the NCSC sent Mrs OB a report of the Welfare Visit. Jennifer Smith responded on 22nd October listing the issues raised by the Commission and explaining what action TIPF had taken to address them. She attached a Register of Carers.

69.	The following December questionnaires were sent out to carers and placing authorities which included questions about their views about TIPF and similar questionnaires were also sent out in February 2003 and April 2004. There were not many responses to the any of these questionnaires. Those that we saw contained both negative and positive comments about TIPF.

The Application Form

70.	On September 3rd, prior to the Welfare Visit, Mrs OB had told Gordon Chadwick  that she was in the process of completing the registration pack and asking for clarification about filling out the forms. She wrote that William Orr had left and implied that this was due to the need for him to undergo years of training in financial matters in order to become a registered manager in compliance with the regulations. She said that they had been told by Sarah Cruddas that if he were to become a registered manager he would require “executive power”, free of “interference from the proprietor”. She described this as being “like some kind of trade union agenda coming through the backdoor of legislation and inspection” and said “I think this is legislation overkill”. She objected to being told to “suspend all activities” and said she was unhappy with the new statutory requirement for agencies to set up their own fostering panels. Once again she copied her letter to senior members of the NCSC, the Department of Health and the Fostering Network, as well as to her MP.

71.	The application form was duly received on 13th September. The NCSC, noting that the application had been returned “within the specified timescales”, observed that “the Commission may be of the view that prosecution is not the best way forward in this matter.” However, they repeated their “strong” advice to her not to make any further placements.

72.	When asked in cross examination why she had taken so long to complete her application form Mrs OB said “I didn’t spend those months filling the form out….We were putting all our energies into Pan London. There were a lot of things to sign. I had to take legal advice before signing and also for this form.”

73.	In the form Mrs OB was required to provide a full cv giving her past employment history, to explain any gaps and to provide reasons for leaving each job. Her cv was attached but did not give reasons for leaving any of the jobs listed. It showed that in 1990 she had begun to work as an Assistant Manager for Trusthouse Forte and as a Mencap Care Assistant but no information was given as to when or why she had left either job, although Mavis Cox had told Sarah Cruddas at the February Pan London inspection that she had “left Little Chef in dispute”. Apart from that her cv showed a commitment to public service, in particular on behalf of the Chinese community, including chairmanship of the Suffolk Chinese Family Welfare Association and membership of the steering committee of her local Black and Ethnic Minority Regional Network. 

74.	In response to the question about the size of the service she answered “around 30 foster carers, continued expansion, by 10-20 carers per annum.” When challenged in cross examination as to the accuracy of this figure she agreed it was potentially misleading but said that the inaccuracy was “without intention and without benefit”. She felt she was being asked for an indication of the size of the agency. “I didn’t count. I had a rough idea”. She was open in giving details of a bind over she had recently received in relation to a parking dispute and explained the background to some rather complex court proceedings around the incident. In the section asking for details of training provided to foster carers she wrote that, “All carers attend the following training courses: 1) Prepare to Care 2) Managing Behaviour 3) Living with children who have been sexually abused.”.  When questioned in cross examination about this statement Mrs OB agreed it was inaccurate. She said the problem was with her English. “I should have said, we intend to send them.”

75.	She duly signed the declaration stating that the information she had given was accurate and that in making the application she agreed to comply with the relevant National Minimum Standards and the Regulations but added below her signature: “I will retain the right to seek either judicial review or take the government to court if the legal advice obtained indicates that part of the legislation may be arbitrary, prejudicial and infringe my rights under European Community Law and of course we will continue to seek political representations.”  

Mrs OB and Suffolk

76.	On September 27th Mrs OB sent Mr Chadwick a letter setting out the circumstances in which she had stopped being a foster carer for Suffolk. She explained that she and her husband had been specialist carers providing a long term placement for twin boys as part of a Suffolk project involving a number of carers. They had returned from holiday to find that the project had collapsed whereupon they had decided to become independent carers offering services on their own conditions. Following her husband’s death difficulties had arisen in the placement and there had been some disagreement between her and the social worker who felt they should be given more freedom. The problems had escalated and Mrs OB had told Suffolk that “I would not be able to continue to offer them the services, if they insisted on (that) kind of childcare ideology”.  Suffolk then told her that they were no longer operating the specialist carer scheme and would now be paying her at the ordinary rate instead of the enhanced rate. She had tried to negotiate a different independent financial arrangement with them and her proposal had been considered but it was narrowly outvoted with the result that, “I asked to be de-registered as Suffolk’s carer”. 

77.	Suffolk’s account of the matter was set out in a letter to Gordon Chadwick dated 13th December 2002. They said of Mr and Mrs OB “In their first review in March 1995 their fostering support worker recommended that they be considered for de-registration as there had been major difficulties in the working relationship between the department and Mr and Mrs OB…It was decided that in recognition of the catalogue of difficulties the OBs should no longer be general carers but remained named carers…Mrs OB agreed to resign as a Suffolk foster carer when negotiations about how Suffolk might be involved in her project to set up a new independent agency ended”. They enclosed a letter they had sent to William Orr in response to his request for a reference for Mrs OB in 1999. The writer said that, “It is my view that Mrs OB would need to consider how she might be better able to work in partnership with placing authorities in order to ensure wholly satisfactory outcomes.”

Death of William Orr

78.	On 18th November 2002 William Orr died. We heard evidence from his daughter, Catherine Howes, who had been a link worker for TIPF on a freelance basis. Following his death she also decided to resign. She described a difficult relationship between her father and Mrs OB and said that he had left TIPF “due to a breakdown of the working relationship between them”. She described a “lack of agreed decision making”, a “lack of clarity” about “agency policy”. There had been insufficient clarity of role between himself as a social worker and Mrs OB as the owner. “I regarded Mrs OB as the manager”, she said. “That’s how she operates. She is manager and owner”. Her own work had not been supervised and she admitted to us that she didn’t keep proper records. She told us she had left because she, like her father felt that changes were not being made and problems remained unresolved. However, “Knowing that Mrs OB can be volatile and can’t take criticism I didn’t have the strength to tell her my real reasons for leaving”.  

Resignation/dismissal of Jennifer Smith

79.	Jennifer Smith was now operating as the manager of TIPF, although she had not yet fulfilled the regulatory requirement to register. A TIPF panel had been assembled, pursuant to the new regulations and they were shortly due to have their first meeting.  Jennifer Smith had been referring to Gordon Chadwick for advice on regulatory issues and on November 20th, while Mrs OB was away, she cancelled the panel meeting on the grounds that the members had not received the necessary training.  

80.	On her return the following day Mrs OB was dismayed to discover what had happened. According to the Respondent she made six calls that day to the NCSC Ipswich office and two to the Cambridge office to report her concerns about Gordon Chadwick in response to which Norwyn Cole, the NCSC area manager, sent her details of their complaints procedure. The next day she wrote to Gordon Chadwick objecting to the fact that he had been giving advice to Jennifer Smith and complaining that he had instructed Jennifer Smith to cancel the panel, something which he denied.  The day after that Jennifer Smith hand delivered a letter of resignation to Mrs OB at 7.30am. Mrs OB responded the following day by dismissing her. In a letter dated 24th November she said that Jennifer Smith had disobeyed her instructions not to deal with such matters on the phone. There must have been continuing acrimony between them because following her departure Mrs OB wrote to Jennifer Smith on January 7th 2003 to say that although she was entitled to complain to the NCSC, TIPF would take legal action if she slandered them.

81.	On 25th November Gordon Chadwick says that he “received a telephone call from a very angry Mrs OB who informed me that I had abused my power and had been interfering with the running of TIPF.” That same day he wrote three letters to her in one of which he objected to her “conduct over the phone with administrative support staff at the area office.”  The situation deteriorated further on November 28th when Mrs OB phoned Gordon Chadwick to say that she was sending his letters to more senior NCSC officials and that he would be hearing from her solicitors. He said that, “he had never experienced a call of such anger and inappropriateness during my time in regulation from any provider in any client group”. 

82.	There was a great deal more correspondence involving Mrs OB and the NCSC and on 26th December she wrote to Ron Kerr, Chief Executive of the NCSC. In her letter she said that the requirements for “written policies and procedures and systems” required by the NCSC “are using up unacceptable amounts of time and money”. She claimed that TIPF required their carers to “attend minimum six full days training in three separate sessions within a year.” She referred to “vested interests”, “agendas more suitable for social workers’ trade unions” and “restricted trade practices”. Copies of her letter were sent to her MP, the Department of Health, the Secretary of State for Health and the Shadow Secretary of State for Health.

NJ

83.	On 23 September NJ was excluded from school. By this time William Orr had left and the Rs had no TIPF link worker. According to his social worker, Eddie Birmingham, they were sending the incident reports about NJ’s behaviour to Mavis Cox, the TIPF administrator and it was she who arranged for Suffolk Education Department to send school work to NJ. 

84.	Despite these problems the placement was thought to be a successful one. Following the placement review on 27th November Lincolnshire noted that it had “all the hallmarks of an excellent placement which appears to be catering for all NJ’s needs.” Moreover Jacky Hill, who re-did their Form F assessment, observed that Mr and Mrs R were “not experienced foster carers, yet they have successfully cared for NJ over the past eight months. ..My overall impression of the applicants is that they have the capacity to offer children of all ages an emotionally warm, safe and secure environment.”

85.	The Rs themselves, however, were becoming extremely unhappy with the situation. They had been caring for NJ at home for several weeks while he was suspended from school and they felt they had had little support from TIPF. In December they went on holiday at short notice while NJ went to another TIPF family, the Cs, for respite care. The Rs sent TIPF an ultimatum. They set out a number of conditions and wrote that if they were not met by 28th December NJ would have to leave. Their demands were: a backdated pay increase, regular respite, an assessment of NJ’s behavioural problems and regular support from a link worker. Mrs OB spoke to Mr R on December 28th rejecting his demand for a pay increase. She said he was very aggressive towards her. According to Eddie Birmingham he received calls from both of them on December 30th. In view of the problems now surrounding this placement he said he was beginning to wonder whether it was, after all, suitable for NJ. 

86.	In the meantime Eddie Birmingham had finally received the Rs’ Form F on September 30th. He considered it unsatisfactory and noted that the space for dates for statutory checks was marked “pending”. Jennifer Smith agreed it was inadequate and said that this would be rectified. The form needed to be ready in time for November 20th as the Rs were due to be presented to the Lincolnshire panel on that date. However it was not finally completed until 27th November. It also became clear that even the old style police checks had not been done. TIPF assured him that the CRB checks would be back in two weeks. 

87.	The dispute between the Rs and Mrs OB continued and the NCSC became involved. On April 9th  2003 Cecilia McKillop phoned the Rs and it was agreed that they would make a formal complaint about Mrs OB, to be investigated by Jo Staines, an NCSC inspector. The complaint dealt with circumstances around the placement of NJ and specified lack of foster care training, lack of support from TIPF, failure to provide necessary information about NJ, failure to provide a home tutor while NJ had been suspended from school and failure to provide respite care. In their view TIPF should also have taken responsibility for paying the vet’s bills when their dog fell ill as they believed that he had been poisoned by NJ, who had a history of similar behaviour, something about which they said they had not been warned. Jo Staines and a colleague visited TIPF to discuss these allegations. So far as training was concerned Mrs OB told him that the Rs had attended a two day “Prepare to Care” course, a three day course on dealing with children who had been sexually abused and a two day course on managing challenging behaviour.  She personally had hand delivered to them a big envelope of information about NJ, though she had no record of so doing. After speaking to both sides the inspectors examined records and spoke to Eddie Birmingham, Jennifer Smith and Jacky Hill, the TIPF social worker who had completed the Rs’ Form F.  The report of the investigation into the Rs’ complaints appeared on June 27th  2003 and most of them were upheld. By that time NJ had left the Rs, the placement having finally broken down.

Placement of TD

88.	The placement of TD with the Bs was also becoming problematic. On April 12th Dyelia Morgan had written to William Orr setting out Brent’s concerns. She noted that Mr B had not been able to attend the training course in respect of sexually abused children. In her evidence to us she told us that this was particularly important in relation to this child and she had understood that it would be another year before TIPF would be providing a similar course. TD had also been allowed to stay overnight with the Bs’ grandmother without Brent’s approval having been sought.

89.	There were also problems over a knife incident involving TD. Because of this the Bs said they were no longer prepared to have him. On January 10th 2003 Mrs OB phoned Brent to say that Russ Edwards, the Bs’ TIPF link worker, felt that the placement could break down at any minute. She proposed that TD be moved to the Cs and she sent a follow up fax saying that “C family is offered as a short term solution with a long term possibility. We may need to facilitate the move soon”. Four days later she phoned to say that unless she heard from Brent TD would be moving to the Cs in three days’ time.

90.	Brent failed to respond to her messages. Dyelia Morgan told us in evidence that they had had their own plans for TD. They were not keen to use TIPF again and were considering the Form Fs of alternative proposed carers from another agency. A meeting was planned for January 21st to make arrangements for moving TD.

91.	On 17th January TD’s luggage was moved to the Cs. This co-incided with a Brent Awayday and only a duty social worker was available to deal with the matter. She asked Mrs B to keep TD for a few more days to give time for Brent to sort out their own placement. Mrs B agreed to this, provided his things were returned to them. Mrs OB was unhappy about this. She took the view that the Bs were being pressurised by Brent.  In the circumstances Brent decided to give emergency approval to TD’s placement with the Cs but they felt that TIPF had pre-empted their own decision. We heard that TD’s respite placement with the Cs has now become permanent and TD has remained with them ever since.

First NCSC Inspection and Fit Person Interview

92.	Preparations were now being made for the NCSC’s first official inspection of TIPF. Because of the problems between Mrs OB and Gordon Chadwick it was decided that another inspector, Cecilia McKillop, would conduct the inspection. She would be accompanied by Peter Bentley. He told us that he was employed by the NCSC as a consultant with a remit to work with inspectors as and when needed on a national basis and to provide an independent view. He and Cecilia McKillop met with Mrs OB and Mavis Cox to discuss the forthcoming inspection after which  Cecilia McKillop sent them an outline of the inspection plan. The inspection took place on a number of days between 26th February and 10th March 2003 and as soon as it had been completed Mrs OB wrote to the NCSC immediately to express her concerns about the inspectors.

93.	During the course of the inspection, on March 3rd, Frank Brady, a social worker, signed a contract to become TIPF’s full-time, salaried manager with a view to becoming registered. 

94.	On March 14th Cecilia McKillop and Peter Bentley attended a feedback meeting with Mrs OB. According to Mrs McKillop it was extremely acrimonious with Mrs OB repeatedly querying the inspectors’ legal basis for conducting the inspections. She said that it was impossible to focus on the issues she had come to discuss and she  “eventually drew the meeting to an end without completing the feedback.” 

95.	Mrs OB sent two letters to Cecilia McKillop that same day. She questioned the competence and good faith of the inspectors. She said, “We are aghast that inspectors can personally interpret the law as they see fit and are applying them without any regard to common sense, purely out of some kind of institutional power craze, or just to silence any proper debate.” She accused them of “knowingly exceeding (their) powers” and “knowingly breaking the law” because they were seeking to “impose this trade union agenda”. This appears to have been in relation to their view that the role of registered manager and the assessments of carers should be carried out by social workers, something which she did not consider to be a regulatory requirement.

96.	According to Cecilia McKillop Mrs OB sent five letters to the NCSC on March 22nd dealing with a number of different issues and on March 24th she made a total of six telephone calls, including one to say that she intended to make a complaint about Norwyn Cole. This was followed up by a faxed confirmation. On that day there was an NCSC review meeting and the general view was that TIPF was “not fit to be operating”.

97.	Mrs OB’s complaints about Gordon Chadwick and Norwyn Cole were investigated by an independent investigator, Roger Harris.  His report, dated 25th March did not uphold her complaints. Indeed he said that Gordon Chadwick and Norwyn Cole had “acted in a highly professional way”. In his view Mrs OB had “hit on the idea of making a complaint in order to head off the inspectors from undertaking their work”. Mrs OB told us that she did not consider the investigation to have been impartial because Norwyn Cole had sent Roger Harris an e-mail “congratulating him on his excellent report”. She told us that she was within her rights to complain and that if this was to be held against her then information about complaints procedures should “carry a health warning”.

98.	On March 31st her fit person interview took place.  It was conducted by Cecilia McKillop and Peter Bentley and Mrs OB brought with her David Cox, TIPF’s accountant, as a friend. Following the interview, on 3rd April Norwyn Cole wrote to her informing her that the NCSC were proposing to refuse her application. 

99.	Mrs OB was sent the draft report of the February inspection on April 11th. It identified 20 regulatory shortfalls and gave timescales for compliance in respect of each regulation, together with twenty recommendations in respect of failure to meet National Minimum Standards. 

Action Plan and Provider’s Response

100.	Her response was swift. Two days later she faxed an Action Plan to Norwyn Cole. This was a point by point response, detailing how TIPF intended to address each of the problems identified. It ended with the following words: “In view of the findings of the NCSC inspectors TIPF intends to conduct a comprehensive review of its practices. The Registered Manager will be responsible for leading this review.…We would aim to complete this process within a 12 week period. TIPF will endeavour to create a culture of openness. NCSC Inspectors and officers from responsible authorities will be welcome to access the working documents at any time”. It also said that “The Manager will immediately assume total responsibility for care practice….The proprietor will cease to have contact with carers, local authorities, children and their families.” 

101.	The NCSC were impressed with the Action Plan. Gordon Chadwick said “I felt that the response was balanced and was surprised that there were no fundamental objections to the report’s findings.” 

102.	However, it was followed, on April 24th by a 30 page “Provider’s Response” from Mrs OB, containing strong criticism of the NCSC. Normally a Provider’s Response would be published on the internet following the inspection report but the NCSC were not willing to accept this lengthy document and on 16th May Mrs OB provided a shorter version. In it, she referred to the agency’s success and accused the NCSC of injustice. Readers were referred to the earlier, more comprehensive report, which could be “accessed by contacting either the NCSC or the Provider”.

Notice of Proposal

103.	On May 19th a formal Notice of Proposal to refuse registration was sent to Mrs OB. There were 17 pages of reasons. These included: obstruction of the NCSC, failure to co-operate with the NCSC, inappropriate and unprofessional behaviour, failure to take account of legislation, inability to work with senior social workers and managers, inability to work with foster carers, issues concerning child protection, practice and regulatory shortfall, failure to adhere to prescribed time limits and failure to provide complete information. This was followed by a list of alleged regulatory breaches.

104.	On the same day the manager, Frank Brady, entered into a new contract with TIPF whereby he was to work for only 20 hours a week on a self-employed basis, to allow him to do another job at the same time. 

105.	On May 21st there was a meeting at the NCSC offices, held at Mrs OB’s request and attended by her and her solicitor, David Cox, Norwyn Cole, Cecilia McKillop and the NCSC Regional Legal Administrator. Mrs OB said that TIPF were now on target to meet the requirements of registration and that Frank Brady, as manager, had the appropriate skills and experience to take matters forward. Norwyn Cole agreed that he had the right skills, qualifications and experience but said that the Commission “were not satisfied that the agency was able to run a satisfactory service or that it could protect vulnerable children.” He said that the original Provider’s Response “included statements of fundamental disagreement with Commission processes”.  

106.	Two days later, Mrs OB telephoned Norwyn Cole to tell him that Frank Brady was reducing his hours on a temporary basis and would be returning to full-time work after three months although in fact he never did. She later wrote to say that Jacky Hill would be offering professional support during his absence. 

107.	On May 27th she sent a further copy of the Action Plan followed by a “Task Monitor” outlining the plan for implementation. At this time she and her solicitors were also challenging the legal basis for Gordon Chadwick’s earlier instruction to suspend placements and on June 16th her solicitors wrote to say that they had advised her to continue to “function as normal and place children following approval”.

108.	Following the issue of the Notice of Proposal the NCSC and TIPF both made representations to Rex Barker, the South East Regional Director of the NCSC. The appellant’s Grounds of Appeal states that “following receipt of TIPF’s written representations, the NCSC then served some 58 pages of further written representations…together with over 1,500 pages of evidence and some 17 (unsigned) witness statements, to which, in the very limited time available, TIPF was unable to give any response in detail.” However, she was able to provide a brief document in response to their criticisms. In it she wrote that she accepted the fairness of their criticism of the transfer of NJ and that she was aware of the “gravity of the mistake” and would make sure it did not happen again

109.	On August 21st Rex Barker wrote to Mrs OB’s solicitors to say that he had rejected her representations and on 11th September TIPF lodged its appeal with the Care Standards Commission.

2nd Inspection

110.	Between 3rd and 21st November there was a further inspection of TIPF by the NCSC, once again conducted by Cecilia McKillop and Peter Bentley. Frank Brady, who continued to work for TIPF on a part- time basis was there for part of the time. He still had not responded to their requests for him to provide a CRB police check and he told them that this was because he planned to leave TIPF and indeed on December 18th Mrs OB wrote to Cecilia McKillop informing her that he had resigned and that they would be advertising for a new manager. 

111.	At the November inspection the inspectors reported nine outstanding requirements from the February inspection. They also identified new problems. They were particularly concerned to find that TIPF had employed a new activities worker who would be working with children. There was no documentation to show that the necessary checks had been carried out in respect of this person. Mrs OB responded to their concerns by providing a fax from Suffolk dated 13th  November to say that the person was employed by Suffolk and had been CRB checked. In their report the inspectors identified a total of 21 regulatory requirements not complied with and 17 recommendations in respect of National Minimum Standards. In response TIPF sent a further action plan and provider’s response.

3rd Inspection

112.	On February 13th 2004 there was an incident involving a TIPF placement. This concerned JJ, a 12 year old boy who was placed in the S family with respite care being provided by Mr and Mrs J. There had been previous problems with JJ, involving fire setting and inappropriate sexual behaviour.  However the situation had escalated with incidents of restraint and a knife incident. On February 13th JJ was staying with the respite carers. Mrs J had left him with her daughter-in-law while she went to the hairdressers. JJ was found in bed with Mrs J’s three year old granddaughter, her knickers down and JJ on his side beside her, his hand placed over his groin. The child said he had “touched her minnie”. The matter was reported to the police but they eventually decided to take no action on the matter.

113.	In view of this incident the NCSC decided to visit TIPF to check the documentation around this placement. On March 3rd they notified Mrs OB that Cecilia McKillop and Jo Staines would be carrying out this inspection on the following day. Their file notes record that this was a difficult meeting. Cecilia McKillop felt that Mrs OB was minimising the incident. She describes intimidating behaviour on the part of Mrs OB and Jo Staines reports that Cecilia McKillop had felt it necessary to cut short the inspection.

The Issues

114.  	We were asked to consider the following issues:

1.	Were NCSC’s procedures unfair, flawed or tainted by bias?

2.	Did Mrs OB provide misleading or incomplete information to the NCSC and the placing authorities?

3.	Was she deliberately obstructive or unco-operative towards the NCSC?

4.	Did she show inappropriate behaviour towards carers, placing authorities and the Respondent? Was she unable to sustain stable working relationships with them?

5.	Did she fail to protect the children placed by TIPF?

6.	Did she fail to comply with regulations?

7.	Is she a fit person?

Findings

1. 	Were the NCSC’s procedures unfair, flawed or tainted by bias?

115.	It is the function of this tribunal to reconsider the decision of the registration authority and, if appropriate, to overturn it, rather than to enquire into its decision making processes. We therefore make no findings in this respect. It was the appellant’s case that the respondent had acted unfairly towards her, in particular by emphasising negative aspects at the expense of positive ones and by actively seeking to elicit criticism of her from others.  At the hearing Mrs OB was given every opportunity to redress any perceived imbalance by putting a more positive case and by having the negative evidence of others thoroughly tested through cross examination. 

2. 	Did Mrs OB provide misleading or incomplete information to the NCSC and the placing authorities?

116. 	In her evidence to us Mrs OB admitted that she had given incorrect information on her registration application form. She had stated that all TIPF carers attended three training courses. This was plainly not the case. She said that she should have said “we intend to send them” and that the inaccuracy was due to a problem with her English. We do not accept this. She demonstrated an excellent and precise grasp of English in her evidence to us. Moreover she had also told us, in explaining her reasons for the delay in completing the form, that she had taken legal advice about the form. 

117.	A few months later, in a letter to the Chief Executive of NCSC she repeated  
her claim, this time stating that TIPF carers were required to attend a minimum of six full days training in three separate sessions within a year and she specifically told Jo Staines that the Rs had attended three training courses, something which was also untrue. 

118.	When cross examined about the inaccuracy of the information provided by her on the form about the number of TIPF placements she agreed that what she had put was potentially misleading. She said “I didn’t count. I had a rough idea”. 

119.	We therefore find that she did give misleading information on her application form. We further take note of the fact that, in signing the form, Mrs OB declared that the information given in it was accurate to the best of her knowledge, that she had had ample time in which to complete it and that she must have been aware that it was an important document. 

120.	She also gave incomplete information on the cv attached to the form in that she did not give her reasons for leaving previous jobs, even though this information was specifically requested on the form. One of these jobs, as a Mencap care assistant, was particularly relevant to her application.

121.	She gave misleading and inaccurate information to us in her statement when she said that the Rs’ police checks had been sent off prior to NJ’s placement being confirmed as permanent in June 2002. We find that the pages exhibited to her statement which initially appeared to support this claim were selected to give a false impression and we do not accept that they were chosen by her solicitor without her specific instruction.  We think it most unlikely that she would have handed over such an important responsibility to someone else.

122.	We find that she gave misleading information in her letter to Gordon Chadwick dated September 3rd 2003 when she implied that William Orr had resigned because he was reluctant to undertake the training necessary to become registered manager. Both she and Catherine Howes gave a number of possible reasons for his resignation to us, none of which had anything to do with registration.

123.	At the meeting held on May 21st at her request and attended by herself, the NCSC and legal representatives on both sides, she represented TIPF as being on target for registration, with Frank Brady providing the necessary skill and expertise as manager. She failed to mention that was no longer working full-time for TIPF but was only doing 20 hours a week to enable him to do another job at the same time. This relevant piece of information was only disclosed to Norwyn Cole some time later. She also repeatedly referred to Frank Brady as a registered manager despite the fact that he never sent in a full application for registration during his period of employment with TIPF.  

124.	In respect of other allegations by the respondent in respect of information she provided to placing authorities we make no findings.

3. 	Was Mrs OB deliberately obstructive or unco-operative?

125.	We do not accept the respondent’s allegation that her complaints about NCSC staff were calculated to distract them from the inspection process, even though they may well have had that effect. In this case we consider the burden of proof to be on the Respondent to satisfy us that she deliberately set out to do this and we are not persuaded that this was the case. 

126.	We find that she fundamentally disagreed with the whole regulatory framework, particularly as she saw it as imposing unacceptable burdens on small businesses and that she had decided to fight it, rather than come to terms with it. Her complaints and repeated questioning of the legality of the way in which the inspectors interpreted and enforced the regulatory requirements were aspects of the battle she was fighting. 

127.	The effect of this was indeed that she was obstructive and unco-operative with the inspectors, but we do not accept that she acted as she did in order to achieve this outcome.

4. 	Did she show inappropriate behaviour towards carers, placing authorities and the Respondent? Was she unable to sustain stable working relationships with them?

128.	In considering this allegation we took careful account of the evidence she gave in her statement about her Chinese “culture, heritage and speech patterns” (see paragraph 37 above). We were therefore alive to the possibility that Mrs OB’s cultural origins might have been responsible for communication difficulties. However, we did not find this to be a problem during the hearing, and although we noted that she sometimes failed to address questions put to her and that it was necessary, on occasion, to re-focus her on what was being asked, we did not consider that this was due to any cultural differences.

129.	There was little evidence before us to support the allegation that she behaved inappropriately to carers or that they found her difficult to get on with. Although there was clearly a dispute between her and the Rs we also heard evidence from two other carers, Mrs RI and Mrs LR, who spoke well of her. Similarly we heard evidence from two members of the TIPF fostering panel, Mary Crane, a local magistrate and councillor and Ian Angus, a retired head teacher, as well as from her accountant, David Cox, all of whom found her an easy person to work with. 

130.	There was, however, ample evidence to show that she had problematic dealings with  social workers and local authorities. On a number of occasions, when questioned about her disagreements with social services in relation to children in TIPF placements she made it clear to us that she felt that her own experience counted for more than their professional expertise. 

131.	Her inability to accept the advice, guidance or authority of social workers also made it difficult for her to work with a manager with social work qualifications, or any senior social worker who questioned her authority. This is demonstrated by her working relationships with William Orr and Graham Buddery, both of which were turbulent. Both accused her, at different times, of bullying behaviour. Catherine Howes, William Orr’s daughter, who gave evidence to us, described her as being volatile and unable to take criticism. 

132.	Similarly, when Jennifer Smith, the first proposed TIPF manager, spoke to Gordon Chadwick and, without consulting Mrs OB cancelled the TIPF panel meeting, apparently because they had not yet had the required training, Mrs OB responded angrily. This led to the resignation of Jennifer Smith, her letter of resignation being followed on the same day by a letter of dismissal from Mrs OB. 

133.	There was also evidence of confrontational exchanges between Mrs OB and local authority employees of Suffolk, Lincolnshire, Peterborough, Brent and Bedfordshire.

134.	So far as the NCSC was concerned Gordon Chadwick had objected to the way she spoke to their administrative staff over the phone and said, of a telephone conversation with her that “he had never experienced a call of such anger and inappropriateness during my time in regulation from any provider in any client group”. Cecilia McKillop had found it impossible to complete the feedback meeting following the February 2003 inspection and similarly refers to intimidating behaviour by Mrs OB at the inspection in March 2004, to the extent that she felt it once again necessary to cut short the inspection.

135.	In the light of all this evidence we find that she did behave in an excessively confrontational way with some members of her staff, with placing authorities and with the registration authority.

5. 	Did she fail to protect the children placed by TIPF? 

136.	Regulation 11 provides that:

The registered person in respect of an independent fostering agency shall ensure that:

(a) 	the welfare of children placed or to be placed with foster parents is safeguarded and promoted at all times

137.	Since the main purpose of all the regulations is to protect children it can be said that any regulatory breach is potentially a failure to do so. 

138.	The mere fact that a placement is problematic or breaks down does not, in itself, indicate a failure to protect. Indeed we heard that many of the children placed by TIPF had a long history of behavioural problems and placement breakdown.

139.	However, we find that Mrs OB did fail to protect NJ in her handling of his move to the Rs.

140.	NJ was a particularly vulnerable child. He was placed with Mrs OB by Lincolnshire in April 2000 and when this placement was initially reviewed his social worker, Philip Brown, praised her total commitment to him. “The alternative”, he said, “would have been a succession of disruptive placements with each breakdown feeding into his low self-esteem and making his behaviours even more extreme.”

141.	Two years later this placement finally broke down, with an incident of restraint on 1st April 2002. We were told that this was around the time when Mrs OB’s male au pair, with whom NJ had formed a close bond, had returned to his native country, and that NJ was angry and upset about this. We were also told that his behaviour tended to deteriorate when he was due to see his birth mother. It must have been a difficult time for NJ and plans for his future should have been made with the utmost sensitivity and caution. Instead, he was placed within days of the incident with the Rs, TIPF carers who had had no previous experience and had not been properly assessed, trained, approved, or even police checked. 

142.	Mrs OB maintained that there had been introductory visits to the Rs during March, something which Mrs R denied. In the absence of any record or other supporting evidence of such visits we do not accept that they took place, especially as the move appears to have been triggered by the incident on April 1st.  There was also a conflict of evidence in relation to the necessary background information about NJ which Mrs OB said she had dropped in at their back door, though Mrs R said they had received no such information. Once again, in the absence of any record that the information was provided by TIPF we are not satisfied that this happened. 

143.	The fact that Mrs OB made arrangements for NJ to stay full-time with the Rs contrary to the placing authority’s plan for part-time weekend and holiday stays, must also have been a potential source of confusion and distress for the child especially in the light of his history of relationship breakdown. His vulnerability is emphasised by the fact that when he went back with the Rs in the car on April 6th he asked whether he could call them mum and dad. Altogether the move was hasty, inappropriate and chaotic.

144.	Despite these problems the placement might still have been successful had the Rs been properly supported by TIPF. Jacky Hill, who completed their Form F assessment, described them as having “the capacity to offer children of all ages an emotionally warm, safe and secure environment” and Lincolnshire also considered the placement was going well. The Rs however, were given little support by TIPF. We find that for weeks they did not even have a link worker at a time when NJ was at home, full-time with them, following his exclusion from school. We do not accept Mrs OB’s claims that they had in fact been visited by a link worker during that difficult period since it was not clear whether the records she produced referred to visits or telephone calls. Therefore in the absence of any clear records of visits and in the light of other conflicting evidence, we are not satisfied that they took place. 

145.	In all these circumstances it is hardly surprising that the relationship between the Rs and Mrs OB became so acrimonious. The effect on NJ of this conflict and the subsequent breakdown of the placement must have been devastating.

146.	In her representations to Rex Barker, following the NCSC’s Notice of Proposal to refuse her application to register, Mrs OB said that she accepted the fairness of their criticism of the transfer of NJ and that she was aware of the “gravity of the mistake” and would make sure it did not happen again. By contrast in her oral evidence to us she minimised her responsibility for what went wrong. When asked in cross examination whether she accepted that the placement was an irresponsible one she answered, “Yes and no. The placement was monitored by local authority social workers.” When asked about her failure to ensure that the Rs were police checked she told us that “According to strict regulations we failed. But practice on the ground is different.” 

147.	We therefore find that she failed to protect NJ and we are not confident that she would ensure that such a situation did not happen again.

148.	As to the other placements, whilst we accept that serious problems sometimes arose we take into account the fact that there was often a long previous history  of behavioural difficulties and placement breakdown.  We do not consider that there is sufficient evidence to show that the problems encountered by children other than NJ were necessarily the result of failings on the part of TIPF.

6. 	Did she fail to comply with regulations?

(i) 	Late application to register

149.	In order to be deemed registered TIPF should have sent in their application form by April 1st 2002 but it was not received by the NCSC until September 13th. Mr Nelson therefore submitted that the agency was operating illegally. Mr Buck, however, submitted that the Respondent was estopped from relying on this as part of their case since they had accepted her late application. 

150.	We do not accept this argument for the following reasons: first the NCSC did not and indeed could not waive a statutory provision but were simply trying to move forward in a practical way; secondly, even if they were able to do so this does not mean that we are precluded from considering it as part of the evidence; thirdly, even if they had led the appellant to believe that they were waiving a statutory requirement, she did not act to her detriment in reliance on any such representation.

151.	We find that Mrs OB was well aware of the need to apply by April 1st and of the importance of so doing since she had been closely involved in the consultation period prior to the implementation of the new regulations and had attended a Department of Health conference at which timescales had been discussed. 

152.	We therefore find that she knowingly failed to comply with this statutory obligation.

(ii) 	Regulations 27 and 28
 
153.	These regulations deal with the assessment and approval of prospective foster  parents and set out in detail the necessary checks and enquiries to be made prior to approval. However, children were placed with the Rs, the Cs, Mrs S, the Ws and MW before any of these carers were approved. TIPF was therefore in breach of these regulations. Moreover all but one of these placements was made after Gordon Chadwick had advised Mrs OB not to make any more placements in his letter of 29th August 2002.

(iii) 	Regulation 31

154.	This imposes a requirement to keep a register of foster parents to include the specific information detailed in the regulation. According to the respondent the registers provided by Mrs OB were unsatisfactory. In her evidence to us she explained that the register she had shown the inspectors in 2002 was a “working document” only. She told us “I didn’t personally check the minute details. They (her staff) keep this for themselves to understand where they are”. When it was put to her that the term “approved” was used inaccurately to describe carers appearing on the register she said, “That was a mistake of Jennifer Smith…I didn’t see the documents she sent out page by page.” She referred to the fact that there were 51 regulations and 32 standards and that there was too much to do. She told us that TIPF now had a register which complied with the regulation. It was at least 44 pages long but she had never been asked for a copy. However, breach of Regulation 31 had been given as one of the reasons for the decision not to register TIPF long before the hearing of the appeal. 

155.	It was clear to us that she did not consider the requirement to provide a register and to ensure that it was accurate to be an important matter and took no personal responsibility for ensuring that such a document was kept or made available either to the inspectors or to us. 

156.	We, however, consider it to be ordinary good practice to have such a register available as a practical business tool. Indeed it is hard to see how emergency placements can be made unless such information is quickly and readily available. An inaccurate or incomplete “working document” is not sufficient.  If a revised document which complies with the regulation does in fact exist then it was the appellant’s responsibility to produce it to us. 

157.	In the absence of any such evidence we find that she was in breach of Regulation 31.

(iv) 	Regulation 42(1)

158.	This regulation requires the registered person to maintain a system for monitoring matters set out in Schedule 7 and the first of these includes compliance with the responsible authority’s plan for the care of the child. In all but one of the cases we were told about, the placing authority also had parental responsibility for the child concerned and therefore the power to make decisions about the child. 

159.	However, on a number of occasions Mrs OB herself made decisions about children. Sometimes these were in conflict with decisions of the placing authority and sometimes they were made without reference to them. 

160.	We were told by Katherine Harris, who had chaired the Suffolk panel which initially approved Mr and Mrs OB as carers in 1994 that she had arranged with the Education Department to place the twins in a school without the department’s knowledge. Both William Orr and Graham Buddery also subsequently raised with her the issue of failure to inform placing authorities about school arrangements. 

161.	In the case of NJ she failed to comply with the arrangements made for him by the placing authority. She decided to change them and simply informed Lincolnshire of her decision concluding her letter with the words, “I hope this is OK with you.” When Philip Brown objected she wrote, “As I have explained to you, we were going to make the arrangement flexible” and she went on to tell him about plans for the Rs to take NJ abroad. Previously she herself had taken NJ abroad on a number of occasions without obtaining prior permission from Lincolnshire. 

162.	When Bedfordshire decided to move RL and CL temporarily from the RIs she initially agreed to organise the move. However, having discussed the matter with William Orr and Catherine Howes she decided not to do this. Instead she dealt with the matter herself, speaking to the RIs and the children personally and explaining her decision fully in a letter to Bedfordshire. When problems arose over the placement of TD with the Bs she organised an alternative placement for him and informed Brent that she had done so. In the absence of any response or agreement from them she simply went ahead and moved him. 

163.	In all these situations she behaved as though she, not the placing authority, had the right to make plans and decisions about children placed with TIPF carers and that it was sufficient to inform them after the event. We find that she preferred to substitute her own authority for that of the placing authority.

164.	Therefore we find that she was in breach of Regulation 42(1) and Schedule 7, paragraph 1.

165.	Mrs OB’s position was that her plan for the child concerned was better than that of the placing authority. In her view she had a duty under Regulation 11 to “safeguard and promote the welfare of children” which overrode the parental rights of the placing authority. 

166.	This cannot be right. It is a recipe for chaos, uncertainty and conflict which must be damaging to the children concerned.  Mrs OB had no authority to make decisions about placements of children or to permit them to travel abroad. If she felt that wrong decisions were being made she should have discussed her concerns, either with the social workers involved or with more senior members of the local authority team. 

(v) 	Regulation 17

167.	This requires the agency to provide carers with the necessary training, something which the Respondent submitted they had not done. We were provided with limited information about the training actually undertaken by TIPF carers although there was no evidence that any training had been offered to carers since April 2002.

168.	However, in the case of at least three placements there were significant gaps in the training given to carers. 

169.	The Rs, inexperienced carers charged with the responsibility of looking after a child with serious behavioural problems had attended neither a basic preparatory course nor a course on behavioural problems. The RIs only received the necessary training in dealing with behavioural problems after a serious incident. Mr B had not received training in dealing with sexually abused children, despite the relevance of this issue in dealing with TD.

170.	In the light of all this evidence we find that the appellant was in breach of this regulation. 

(vi) 	Regulation 6

171.	This regulation requires that the agency is to have a manager who must be separate from the person responsible for the agency and Mr Buck asked us to consider allowing the appeal subject to a condition that a registered manager be appointed.

172.	We find that this regulation has not been complied with by Mrs OB thus far.  We also find that this is most unlikely to be complied with in the future, since we do not believe that Mrs OB would be able to delegate responsibility for decision making to a manager. This was clearly demonstrated when Jennifer Smith decided, on her own initiative, to cancel the panel meeting something which resulted in her immediate resignation/dismissal. Catherine Howes also told us that her father had left TIPF because of the breakdown of his working relationship with Mrs OB and that in her view there was insufficient clarity of role between himself as social worker and Mrs OB as owner. She told us that Mrs OB was operating as manager and owner. Graham Buddery made similar observations. Thus the evidence we have heard and read demonstrates overwhelmingly that Mrs OB prefers to make her own decisions, rather than accepting the decisions of others. 

173.	We therefore that Regulation 6 has not thus far been complied with, and that were we to impose such a condition it is most unlikely that it would be complied with in the future.  

7. 	Is she a fit person?

174.	One of the requirements of fitness, as set down in Regulation 5, is that a person should be of integrity and good character.

175.	If, as submitted by the Respondent, good character is taken to mean the absence of a criminal record, then Mrs OB fulfils this requirement. Her cv also shows an impressive record of service to the community.

176.	However, integrity even in its narrowest sense, must include a requirement for honesty on the part of the person concerned.  We consider that the matters set out in Section 2 of our findings above demonstrate a lack of honesty, and therefore integrity. Put simply, Mrs OB provided false or misleading information in a number of important respects, both to the NCSC and to this tribunal.

177.	We therefore find that she is not a fit person.

Conclusion

178.	In the light of all these findings it is our unanimous decision that this appeal be dismissed.  

Andrea Rivers (Chair)
Claire Trencher
Ken Coleman