WOODLANDS COURT RESIDENTIAL HOME (Mr Paul Brook) v THE NATIONAL CARE STANDARDS COMMISSION [2003] 209 NC

Before: Mrs. Carolyn Singleton, Chairman 
Mrs. Gillian Macgregor
Mr. Brian Cairns
On the 2nd, 3rd, 4th and 5th February 2004
This is an appeal made on the 11th August 2003 against the decision of the National Care Standards Commission dated 17th July 2003 to vary the registration of Woodlands Court Residential Home. On the 3rd. November 2003 and the 7th January 2004 the President of the CST gave directions about the documentary and oral evidence.
At the hearing the appellant represented himself and the respondent was represented by Mr. Richard Pearce, instructed by Messrs Hill Dickinson
1. Background
Woodlands Court was first registered as a Care Home on 15th July 1987 under the Registered Homes Act 1984. It was initially registered for 16 residents, including 12 elderly, 2 EPD and 2 PD. Over the years , further increases were made to the number of residents and, following the creation of the National Care Standards Commission in 2002, Woodlands Court was re-registered under the Care Standards Act 2000 to care for 35 people in the following categories:-
(a) 27 Older People
(b) 4 Young Physically Disabled 
(c) 4 Elderly Physically Disabled.
On 3rd April 2003 the appellant Mr. Brook, who is the registered provider of Woodlands Court, applied for a variation in the terms of his registration. He wished for the 4 EPD places to be removed and for those to be replaced with 4YPD places.
An introductory visit to Woodlands Court had taken place on 23rd August 2002, followed by an announced inspection on the 9th and 10th September 2002. Some concerns were raised by the respondent about the facilities provided for the 4YPD already placed. A further unannounced visit on the 28th January 2003 did

not allay those concerns. Following the appellant's application for a variation of the terms of the registration a visit to Woodlands Court was made on the 1st May 2003 by Mrs Vivienne Hare, Area Manager with the National Care Standards Commission and Mrs. Lindsey Withers, who is an Inspector with the NCSC for the Wigan Area in which Woodlands Court is situated.
Following that visit, which had also been attended by the appellant, a proposed variation of the terms of registration was issued on the 29th May 2003. Unfortunately the terms of the proposed variation were not correct due to an administrative error and the appellant, therefore, wrote to the Regional Director of the NCSC, Mr. Jefferson, for his assistance. On 27th June, Mr. Jefferson notified the appellant that he did not feel the matter could be resolved informally and that he was taking his letter as a notice of appeal against the proposed variation in registration. A representation hearing was held on 17th July 2003, following which the Regional Director issued a notice to vary the conditions of registration as follows:-
(a) A maximum number of 35 places in the category of OP of which upto 6 may accommodate people in the PD category.
(b) The service should at all times employ a suitably qualified and experienced manager who is registered by the NCSC.
(c) New admissions of service users in the PD category should not include people under the age of 50 or whose mobility and independence is dependent upon the use of a wheelchair.
It is against this decision of 17th July 2003 that the appeal lies.
2. Legal Issues
At the hearing, Mr. Pearce on behalf of the respondent raised the question of where the burden of proof lies in this case. He argued that, because the proposed variation of the 17th July 2003 was never actually issued because the appellant had immediately appealed, the appeal, effectively, lay against the original registration with the NCSC. The tribunal considered this point but took the view that the appeal had been generated by the proposed variation decision made on the 17th July. The burden of proof, therefore lay with the respondent.
4. Evidence
The tribunal heard evidence from the following witnesses; Respondent
Ms. Lindsay Withers, Inspector NCSC 
Mrs. Vivienne Hare, Area Manager NCSC. 
Ms. Fiona Street, Director (Services), The Leonard Cheshire Foundation 
Appellant
Mr. Ian Rowlands, Proprietor of Orrell Hall Nursing Home 
Mr. John Harrison, YPD resident at Woodlands Court 
Mr. John Darbyshire, YPD resident at Woodlands Court 
Mr. Raymond Boon, YPD resident at Woodlands Court

Mr. Michael Plimmer, YPD resident at Woodlands Court
Mr. William Lewis, father of Raymond Lewis, YPD resident at Woodlands Court
5. The Findings of the Tribunal
The tribunal carefully read all the scheduled evidence and heard a number of witnesses for both parties. A Statement of Issues had been filed by each party setting out, as they see it, the relevant matters in this appeal. Furthermore they had both filed written final submissions at the conclusion of the evidence. The tribunal noted that the appellant's final submission claimed that "the burden of proof is on the respondent to show that Woodlands Court residential Home does not meet the standards that apply to pre-existing homes ". That is not the case. The burden of proof is for the respondent to show that the decision of the 17th July 2003 to vary the terms of registration in accordance with that decision is, on the balance of probabilities, correct and appropriate in all the circumstances. The tribunal accepts paragraph 7 of the respondent's final submission. If this were a new home that was being built or an extension being built to an existing home, the National Minimum Standards would have to be complied with. The tribunal accepts the respondent's argument that the standards for existing premises are less significant in this case where the appellant is seeking to increase the number of people who may be wheelchair users. The tribunal considered that the application to vary the terms of registration of Woodlands Court triggered the application of the NMS. Although the appellant indicated in his final submission that he only wished to deal with the issues raised in the Regional Director's decision of 17th July, 2003, the burden of proof lies with the respondent and, therefore, the tribunal considered each of the matters raised by them in their Statement of Issues, which, in any event, encompassed the matters raised by the Regional Director and those raised by the appellant himself. Findings were made by the tribunal in respect of each and every issue raised by the respondent as follows:
(a) The Home does not demonstrate any long term strategic planning,
The tribunal considered that the respondent had discharged the burden of proof on this point. The appellant's strategy, such as it is, is purely to keep an eye on the market. Indeed he agreed in cross-examination that he could not say what his long term plan is. The tribunal accepted that it is not easy for the appellant to make long term plans when he is, to some extent, dependant on how Social Services see the needs of service users for the future, but, given that there are clear NMS applicable to Care Homes for younger adults, a clear strategy would need to be developed if the appellant wished Woodlands Court to move in that direction.	.
(b) In order to accommodate more young physically disabled service users, the Home requires a clear framework with planned transition to ensure
compliance with NMS for the relevant categories of service users. 
The tribunal considered that the respondent had discharged the burden of proof on this point. Having read and listened to the appellant's evidence, it was clear

that no such framework exists. In answer to a question from the tribunal the appellant admitted that he knew very little about NMS before applying for the variation of his registration. The statement of Mrs. Withers at page 68 of the papers confirms that at the unannounced inspection of the Home on 21st to 23rd October 2003 no copy of the NMS for Younger Adults was available. Staff were only familiar with NMS for Older People. The tribunal noted that this was three months after the letter from the Regional Director dated the 17th July 2003 had flagged up the fact that insufficient attention was being paid to the needs of younger adults. Furthermore, it was two months since the letter from Mrs. Hare dated the 13'hAugust 2003 and which appears at page 393 of the papers had been sent to the appellant. Reference to the NMS for Adults aged 18-65 years is made on three occasions in that letter.
(c) Woodlands Court fails to comply with the National Minimum Standards for Younger Adults in the following respects:
(i)	the Home does not demonstrate that it is able to meet the individual service users' individual aspirations;
The tribunal was satisfied that the respondent had discharged the burden of proof on this point. Evidence was taken from a number of the existing residents of Woodlands Court. Mr. Harrison stated that the Home took him and other residents to the pub twice a week. However he expressed an interest in other things, going to the shops and attending a gym, if these opportunities were to be made available to him. In answer to a question from the tribunal Mrs. Brook, who is the manager of Woodlands Court, stated that Mr. Harrison had never mentioned going to a gym before giving evidence at the hearing. However at page 33 of the papers is a copy of Mr. Harrison's statement in which he states that he would like to visit a gym. This statement is dated 19/12/03. Mrs  Brook confirmed that she had, in fact, read that statement before but was not aware of anyone discussing the prospect with him.
Evidence was also heard from Raymond Lewis's father who stated that he had had the idea-of providing Raymond with a laptop computer to help with communication. The tribunal accepted that the laptop used was one provided by Mrs. Brook but that was after Mr. Lewis Senior had brought in his son's own laptop and Raymond had refused to use it.
Mr Plimmer also gave evidence to the tribunal. He expressed a wide ranging number of interests, including music. The tribunal accepted Mrs. Brook's evidence that it had taken a great deal of persuasion to get Mr. Plimmer to attend the hearing because he has a fear of new places. However, it seemed to 

 tribunal that, once that effort had been made by Mr. and Mrs. Brooks, Mr. 
the
Plimmer had been able to come. Therefore, it was concluded that, with persuasion and encouragement, Mr. Plimmer was capable of having his horizon's extended. The tribunal was concerned that Mrs. Brook appeared to see the role of the keyworker as being a means of allowing information to be fed through to her and upon which she would then act. In evidence she stated that she had reduced the number of keyworkers to senior staff and that she intended to have more input. This seemed to the tribunal to be imposing an unnecessarily heavy burden on Mrs. Brook. She already is potentially
t

responsible for 35 residents and has to manage in the region of 20 staff. The tribunal did not doubt for one minute that Mrs. Brook has the interests of each individual resident at heart, but, having read and heard the evidence, it could only conclude that, in the present regime, individual needs were not being met.
(ii)	the Home does not demonstrate that it makes full assessment of the needs of service users;
The tribunal was satisfied on this point. The pre-admission pack for Woodlands Court at page 483 of the papers relates, largely, to physical needs and abilities. There is very little attention paid to social and recreational needs.
(iii)	the Home does not demonstrate a service user plan appropriate to younger adults.
The tribunal was satisfied on this point. This is covered by Standard 6 of the NMS for younger adults. At page 105 onwards of the evidence there is an example of the information pack and care plan currently used by the appellant. The tribunal's criticism of this plan is that it is of the "one size fits all" variety. A plan which specifically addresses the needs of younger adults and complies with Standard 6 is necessary.
(iv)	the Home does not demonstrate adequate risk assessments which clearly identify risks, action to be taken and aims;
The tribunal was not satisfied on this issue. The respondent appeared to rely on the history surrounding the admission of HB and the proposed admission of Mr.W. The tribunal accepted entirely Mrs Brook's evidence that she had been mis-informed by hospital staff as to the extent of HB's problems and requirements and accepted that, had she been made fully aware, she would not have accepted her into Woodlands Court. The tribunal also accepted that the severity of the problems with HB's feet were not apparent when Mrs. Brook carried out her pre-admission assessment and were not something she could have been aware of. Insofar as Mr. W is concerned, Mrs. Brook stated that, even without the intervention of the NCSC, she would not have admitted Mr.W because she had formed the opinion that he needed 24 hour care. The tribunal accepted Mrs. Brook's evidence. The respondent has not discharged the burden of proof on this point.
(v)	the Home does not demonstrate that it provides adequate
opportunities for personal development and independence training. 
The tribunal was satisfied on this point. It is undoubtedly true that there have been some successes, as evidenced by the fact that Mr. Darbyshire is no longer reliant on his wheelchair. However, as stated previously, there is evidence from some residents that they want to do more in terms of personal development. Mrs. Brook is clearly very caring and wishes to help the residents. However, the role of the keyworker in terms of personal development and independence does not seem to be fully understood. There is a lack of clarity in the role of the

keyworker which is fundamental to the continuing development of each resident.
(vi) the Home does not demonstrate that it provides adequate opportunities for education, training, paid work or meaningful occupation; The tribunal was satisfied on this point. There is little contact with the community at large. The tribunal accepts that the current residents may have shown little interest in participating in the outside world, but there is very little evidence of any encouragement being provided. The appellant and Mrs. Brook are reactive rather than proactive in this area. If ideas are suggested to them they are, generally, happy to comply. However, there is no suggestion of a "menu" of opportunities or that much thought has gone into it. It is noted that an Activities co-ordinator has now been employed but she has only had the job for 6 months and was appointed several months after the appellant's application to vary the terms of his registration.
(vii)	the Home does not provide adequate evidence for integration of service users into community life and leisure activities;
The tribunal was satisfied on this point for the reasons set out at (vi) above .
(viii) there are inadequate facilities for service users to provide food and drinks. The Home does not provide facilities for a person who wishes to eat their main meal in the evening;
The tribunal was not satisfied on this point. No oral evidence was given on this issue. The papers make it clear that there is only one kitchen at Woodlands Court and that the main meal of the day is served at lunchtime. However, the respondent has not discharged the burden of proof on this point.
(ix) the Home does not demonstrate that service users have been involved in the choice of their designated keyworker,
The tribunal was satisfied on this point. Many witnesses did not know the name of their keyworker.
(x)	the Home does not demonstrate that service users are encouraged to self-administer medication;
The tribunal was satisfied on this point. Although no oral evidence was given, it is confirmed in the inspection report of 21St to 23rd October 2003 that this is indeed the case.
(xi) not all doorways to which wheelchair users in the Home have access have a clear opening width of 800mm.
The tribunal was satisfied on this point. Only rooms 13,15,19 and 20 meet both sets of criteria in terms of door width and floor space. However rooms 19 and 20 are at the end of a short, but very narrow, corridor which would make wheelchair access difficult.

(xii) a number of doors in the Home are heavy and difficult to manage for a wheelchair user or for somebody with mobility problems;
The tribunal was satisfied on this point. In answer to a question from Mr. Pearce, Raymond Boon stated that the doors were "a bit heavy" and he is mobile. In answer to a question from the tribunal, John Harrison stated that the people in wheelchairs at Woodlands Court have difficulties opening doors and that he had been told by them that the doorways were narrow. The tribunal accepted that there are restrictions on the weight of doors imposed by fire regulations. However, this does not seem to be an insoluble problem. The appellant in his evidence stated that there was a new device on the market which was cheap and inexpensive to fit which would enable the doors to be opened more easily.
(xiii) the tarmac path leading to the front door of the home is on an incline, creating difficulties for independent wheelchair users;
The tribunal was not satisfied that the respondent has discharged the burden of proof on this point. It was agreed that the incline was 1:20 which is in line with NMS.
(xiv) there is no lift in the Home, preventing wheelchair users from using the upper floor;
This is indeed the case. However the tribunal did not consider that this was a crucial aspect of this case. The current wheelchair users ore accommodated on the ground floor and the appellant's proposals for additional users involve accommodation on the ground floor only.
(xv) there are inadequate bathing facilities in the Home for people of restricted mobility;
The tribunal accepted that there had been no alteration in the number of bathrooms since 31St March 2002. Standard 27 of the NMS for Younger Adults was complied with in that regard. However an "assisted bath" according to the NMS is " A bath, with or without mechanism to vary height which is designed to permit side or end access for a mobile hoist or other mechanism to allow a patient to be transferred from a bed, couch or trolley and raised or lowered into it". The bath pictured on page 96 of the papers does not meet this criteria because it is necessary to step into the bath to use the seat. It does not swivel out. The tribunal was satisfied that the respondent had discharged the burden of proof on this point.
(xvi) there are no facilities in the Home for service users to carry out their own laundry;
This point was not specifically addressed by the respondent at the tribunal hearing. The tribunal accepts that there is only one laundry at the Home.
(xvii) many rooms in the Home are insufficiently large to accommodate a service user who is wheelchair dependent or who has limited mobility;

The tribunal was satisfied on this point for the reasons set out above.
(xviii) the Home does not demonstrate that staff have specialist skills and training appropriate to younger disabled adults;
The tribunal was satisfied on this point. In her evidence, Mrs. Brook confirmed that the only experience of dealing with younger disabled adults that her staff underwent was "on the job" at Woodlands Court.
(xix) staff at the Home have limited time within their rostered hours to provide support for service users outside of the Home;
The tribunal was satisfied on this point. In his evidence the appellant confirmed that the staff did not have time to do things. He complained that there was too much paperwork to do and not enough time to spend with the residents.
(xx) the Home does not employ an activities co-ordinator;
The tribunal was not satisfied on this point as an activities co-ordinator has been employed since August 2003. However there was some concern that most of Mrs. Young's certificates dated from the early 1990s. There did not seem to have been any recent training and no specialist training for dealing with young, physically disabled people. Also, it was not apparent that she had been seeking to meet the needs of the YPD currently at Woodlands 
Court.
(xxi) staff at the Home are not familiar with the NMS for younger adults;
The tribunal was satisfied on this point. No copy of the NMS was at Woodlands Court.
(xxii) policies and procedures at the Home require review.
The tribunal was satisfied on this point. The sequence of inspection reports a steady improvement in the Home but, given the tribunal findings on the matters listed above, it is clear that a review is required.
6. THE TRIBUNAL'S CONCLUSIONS
(a) The tribunal accepted that Woodlands Court is a residential home which has evolved over a number of years and is continuing to do so. In particular, it is apparent that the appointment of Mrs. Brook as manager of the Home has had a considerable impact. The tribunal has no doubt whatsoever that Mrs. Brook and her staff are very caring people and are anxious to do a good job.
(b) However, if there is a desire to increase the number of places for YPD from 4 to 8, there needs to be an acknowledgment by the appellant that this may place a different emphasis on the Home and that there would, therefore, need to be a definite strategy to deal with this. The tribunal noted that in the letter from the appellant to the NCSC dated the 14th August 2003 the appellant stated that he was "still at a loss why there seems to be such a great difference between registration of four EPD beds compared four YPD beds".

(c) The tribunal considered that both Mr. and Mrs. Brook saw the NCSC as an instrument for guidance and leading rather than a regulatory body.
7. THE TRIBUNAL'S DECISION
For the reasons set out above, the tribunal considered that to move to 8YPD would be "a step too far". The tribunal was satisfied, on the balance of probabilities, that the proposed variation as set out in the letter from the Regional Director dated the 17th July 2003 was reasonable in all the circumstances. This would give the appellant an opportunity to see how things progress and give him the opportunity to focus on the NMS he needs to meet for this group.
So far as the proposed conditions are concerned, there can be no argument that Mrs. Brook is a suitably qualified manager for the Home and, indeed, has, been registered as such. The condition that no new service user in this category should be under the age of 50 years appears to have been arrived at purely because that met the needs of the appellant when he met with Mrs. Hare in May 2003.Having said that, Mrs. Hare stated in her evidence that she would have to think very hard before agreeing to reduce that age requirement. The tribunal noted that Mrs. Brook, herself, who is the manager of the Home and who has responsibility for the day-to-day running of the Home said in evidence that she thought 50 was the correct age. The tribunal considered this condition to be a reasonable one.
Finally, the question of wheelchair users and the proposed restriction of them was considered. YPD are likely to wish to be more mobile than EPD who may have a more static lifestyle. Although Woodlands Court already accommodates some wheelchair users the situation is far from ideal as stated in detail above in this decision. Anything that served to potentially increase the number at Woodlands Court at the moment could only add to what is an already awkward situation. For this reason and as a result of the findings set out in detail above, the tribunal considered, on balance, that the proposed condition relating to wheelchair users was reasonable and appropriate.
Therefore, the tribunal was satisfied that the burden of proof had been discharged and the appeal is, therefore, dismissed.
This is a unanimous decision.
Mrs. Carolyn Singleton, Chairman. Mrs Gillian Macgregor.
Mr. Brian Cairns.

February 2004.