Mrs. D. Fatile 
(Ebenezer House)

- v -

National Care Standards Commission

[2004] 237.NC

Before:

Mrs. Meleri Tudur (Chairman)
Mrs. P. McLoughlin
Mr. T. Greenacre

Sitting at the Immigration Appellate Authority, Bridge House, Bridge Street, Walsall on the 24th February 2004.

Representation
The Appellant was unrepresented.
The Respondents were represented by Mr. Nicholas Carter of Anthony Collins, Solicitors

Appeal
The Appellant appeals under Section 21 of the Care Standards Act 2000 against the decision of the National Care Standards Commission (“NCSC”), as registration authority, to refuse to register her property, Ebenezer House, 85, Bilston Lane, Willenhall, Wolverhampton as a care home for three adults with learning difficulties.

Issues
The issues before the tribunal for consideration is whether the applicant had satisfied the conditions for registration of Ebenezer House as a care home.  The burden of proof is on the NCSC to show that the decision to refuse registration is correct.

The Law

1.	Part II of the Care Standards Act 2000 (“the Act”) provides that anyone seeking to run an agency or establishment must register in accordance with the appropriate regulations.  

2.	Section 11 imposes an obligation on any person who carries on or manages a relevant establishment or agency to register.

3.	Section 12 provides that a person seeking to be registered shall make an application to the registration authority giving prescribed information about prescribed matters.

4.	Section 13 provides that if the registration authority is satisfied that the requirements of regulations under section 22 and any other relevant enactment are complied with, it shall grant the application for registration.  For the purposes of the present appeal, the relevant regulations are the Care Homes Regulations 2001

5.	Section 21 provides a right of appeal to the Care Standards Tribunal against a refusal to register.  Under Section 21(3), on appeal, the tribunal may confirm the decision of the registration authority or direct that it shall not have effect.

6.	Section 23 provides that the appropriate Minister may prepare and publish statements of national minimum standards applicable to establishments or agencies.  Section 23(4) provides that the standards shall be taken into account in the making of any decision by the registration authority or in any proceedings on appeal against such a decision or order.

7.	In February 2003, the Secretary of State for Health published the National Minimum Standards for Care Homes for Adults (18 – 65) under Section 23(1) the Minimum Standards were applied from the 1st June 2003.

8.	Standard 25.6 provides that “New build registrations and extensions intended for long-term placements provide individual en suite bedrooms with at least 12 sq m usable floor space (15 sq m for wheelchair users) excluding en suite.”

Facts.

1	The Appellant, Mrs. Deborah Fatile, has been the proprietor/manager of Hill Crest Care Home in Smethwick since 1999.  She is the registered person for that establishment.  She is also working as a Health Visitor in the Walsall area.

2.	In 2002, the Appellant decided to find another property in the Walsall area to provide a care home for three young adults between the ages of 18 and 65. According to her Business Proposal, her target clients were adults with a learning disability, autism, mental impairment and/or challenging behaviour.

3.	Mrs. Fatile found an appropriate property namely, Ebenezer House, 85, Bilston Lane, Willenhall, Wolverhampton, and submitted an application for registration to the NCSC in Wolverhampton in about February 2003.  With her application, she submitted the first set of plans, dated February 2003, outlining adaptations to be made to the property.

4.	The submission of Mrs Fatile’s application for registration coincided with a period when the NCSC were inundated with applications for registration.  As a result of this, acknowledgement of receipt of the application to register was delayed until April 2003.

5.	As part of her application to register Ebenezer House, the Appellant identified two referees whom the NCSC could contact to ascertain her suitability for registration.  The NCSC requested references in June 2003, and when Mrs Fatile telephoned to enquire about the progress of her application, she was told that the references had not been received.  She promptly contacted her referees, who both confirmed that they had already sent in their references, but agreed to do so again. 

6.	When all the relevant paperwork was to hand, the NCSC allocated an inspector to deal with the registration application.  Ms Lesley Coton was a recently appointed inspector and Ebenezer House was the first registration application with which she dealt with independently.

7.	Early in July 2003, Ms Coton telephoned the Appellant to arrange a date for an inspection of the premises.  Mrs Fatile informed her that the property wasn’t quite ready for inspection yet and the visit was deferred for a week.

8.	Before she set out to visit the property, Ms Coton arranged to have a discussion about the plans submitted with the registration application, with her Locality Manager, Ms. Wild.  The discussion covered potential issues which they both identified from an inspection of the plans and which Ms Coton listed on a Post-It note to discuss with the Appellant at the inspection visit.  The issues were identified from an examination of the plan dated February 2003.

9.	On the 9th July 2003, Ms Coton visited Ebenezer House.  Because of delays in the registration process, she hand-delivered a letter to Mrs Fatile, inviting her to a “fit person interview” to be held on the 21st July 2003.

10.	On arrival at the property, Ms Coton was initially confused, because the layout of the ground floor did not accord with the plan in her possession.  The Appellant explained that the plans had been amended in May 2003.  The amended plans had not been submitted to the NCSC and Ms Coton had not had sight of them.  As a result of the amendments to the plan, a number of potential issues identified by Ms Coton and Ms Wild were no longer relevant.

11.	Having inspected the ground floor, Ms. Coton then went upstairs and measured the bedrooms.  The first bedroom was large enough to comply with the National Minimum Standard specification of 12 square metres usable floor space.  With Mrs. Fatile’s help, she measured the remaining two bedrooms and noted the measurements as being 3.15m by 2.94m, making a total of 9.26 square metres of useable floor space in one bedroom and 3.30m by 2.92m, a total of 9.64m in the other.  Ms Coton was concerned that the rooms might not be large enough to meet the National Minimum Standard and she told Mrs Fatile that she would get someone to check the measurements when she returned to the office.  Ms Coton noted several other areas where the National Minimum Standard was not met, and in evidence at the hearing identified these as being matters that could have been resolved by the imposition of a condition on registration and a timescale for carrying out the corrections, if all other standards had been met.  Ms Coton mentioned both in her statement and again in oral evidence that she had been impressed with the facilities at Ebenezer House.

12.	On her return to the office, Ms Coton expressed her concerns about the room sizes to her Locality Manager, Ms T. Wild.  She was advised by Ms Wild to document her findings and then compile her report.  Ms Wild then arranged a discussion with the Area Manager and the Regional Legal Adviser to clarify whether this was a situation where the NCSC should exercise its discretion not to apply the National Minimum Standard.  The consensus was that such a move would set a dangerous precedent if they registered a new property with less usable floor space than that identified by the National Minimum Standard.  Ms Coton was advised to stand by her original view that the recommendation in her report would be not to register.  The decision was endorsed by Ms Wild and finally by the Area Manager, G. Martin.

13.	Ms Wild gave evidence that it was the NCSC view that they have a practical degree of flexibility in deciding on applications for registration because the situation will be different in each case.  She regarded Ebenezer House as a small, family type establishment and she questioned the extent of the flexibility here, where there was only one combined lounge/dining room.  It was her view that there should be an opportunity for residents to receive visitors in a private setting, should they so wish and if any of the residents had challenging behaviour, there should be sufficient space to have “time out” if the circumstances arose.  She explained that the only other room available would be the residents’ bedrooms and in that situation they should have the National Minimum Standard space.  She expressed the opinion that in a larger home with perhaps several lounges, it might be possible for the residents to receive visitors elsewhere than in their rooms, and the Standard might not be of such importance.  She expressed her agreement with Ms Coton’s view that the other six matters could have been dealt with by imposing a condition on the registration.  Ms Wild gave evidence that the logging the application and acknowledging receipt was delayed by the volume of Domicilary Care Service applications leading to Mrs Fatile’s application not being logged onto the system until April.  Ms Wild also confirmed that in the light of her recommendation that registration should be refused, Ms Coton had been advised to cancel Mrs Fatile’s “fit person” interview.

14.	On the 14th July 2003, Mrs Fatile was issued with a Notice of Proposal to Refuse Registration for Ebenezer House on the basis that only one of the three bedrooms in the property met the minimum space requirement.  The letter confirmed Mrs Fatile’s view that she did not wish to have the property registered for one person.   	

15.	Mrs Fatile appealed against the decision to refuse registration.  She exercised her right to make representations to the NCSC before the final decision was made in a letter dated 1st September 2003 with representations on the Area Officer’s Evidence in support of their Notice of Proposal being submitted by letter dated the 25th September 2003.

16.	By letter dated the 10th October 2003, the Regional Director of NCSC, Mr. T.A. Fraher considered the representations and decided to uphold the Notice of Proposal to Refuse Registration.

17.	Mrs Fatile appealed to the Care Standards Tribunal against the decision.

18.	At the hearing, Mrs Fatile gave evidence about her application, explaining that she had sent it in expecting the NCSC to raise any queries they had from an initial consideration of the plans.  She was annoyed about the delay in processing her application and had made an effort to ensure that the environment offered at Ebenezer House was a good one for the proposed residents.  She stressed her own commitment to making a difference in service users’ lives and her proven track record at Hill Crest.  It was her view that there was ample room at Ebenezer House because of its spacious environment to allow residents to have some privacy with their visitors if they so wished.    She acknowledged that the bedrooms were smaller than originally intended because she had decided to include a shower in the ensuite, but she expressed her view that they were large enough.  She acknowledged that two of the bedrooms were smaller but she still believed that the property was spacious enough to be used as a home for 3 service users.  Mrs Fatile did not confirm that the measurements taken by Ms Coton were correct but she did not present evidence that the measurements were incorrect.

19.	Mrs Fatile went on to explain that it was her intention to employ a manager for Ebenezer House and that it had not been her intention to run both Hill Crest and Ebenezer House herself.  She confirmed that she did not wish to have the property registered for one person because she had intended it to be a family-type unit.  It was her view that a person living alone in the property would be isolated and lonely, and this was contrary to her objectives.  She gave evidence that the residents at Hill Crest spend very little time in their own bedrooms, preferring the communal parts of the property and if they have visitors, then they tend to see them in the communal lounge as well.  She did not accept that the bedrooms were too small to receive visitors.  She stressed that her intention was to offer placements to able bodied young adults with learning difficulties or autism, but not challenging behaviour.

20.	The Tribunal heard evidence from Christine Jude Sarah Kirby, one of Mrs Fatile’s referees in the application for registration.  She gave evidence that she received three requests for a reference from the NCSC and that she had responded to them all, providing four copies of her reference during June and July 2003.  She had, in her previous employment, been employed as lead inspector at Smethwick with Sandwell and Dudley Borough Council.  She gave evidence that Mrs Fatile had provided a very high standard of care for her service users and that she had encouraged Mrs Fatile to consider opening another home.  She explained that Mrs Fatile had set up Hill Crest in 1998 prior to the implementation of the current standards and that there had been exemptions in place for the existing home, so that Mrs Fatile had not had to comply with the National Minimum Standards in respect of it.

21.	In his submissions to the tribunal, Mr Nicholas Carter stressed that Mrs Fatile’s track record, as a manager, was not in issue in the appeal.  The refusal to register was not based on any personal criticism of her.  The reason for the refusal of registration was the room size.  He submitted that the other issues raised by the inspection were remediable, the size of the smaller two bedrooms was not.  He underlined that the National Minimum Standards are minimum standards and should only be departed from in exceptional circumstances.  He described the NCSC’s discretion to be no more than a small degree of flexibility, whereas the margin between the actual size of the rooms and the minimum was in the region of 20%.

Tribunal’s conclusions with reasons
22.	We noted from the submission made to the tribunal that the NCSC wanted to make their position clear in respect of the appellant and we consider that it is important to reiterate it here: the refusal to register Ebenezer House as a care home was not because of any concerns about Mrs Fatile personally, but because of the failure of the property to meet the National Minimum Standards, as set out in the Department of Health’s National Minimum Standards for Care Homes for Adults (18 – 65) published by the Secretary of State for Health under Section 23(1) of the Care Standards Act 2000.

23.	The issue for consideration by the tribunal was whether the decision made by the NCSC on the 10th October 2003 to refuse to register Ebenezer House was correct.

24.	We heard the evidence of both Ms Coton and Ms. Wild in relation to the making of the decision.  Ms Coton confirmed that she had taken the relevant measurements and that the useable floor area in the two smaller bedrooms was 9.26m and 9.64m. Mrs Fatile was not prepared to agree in the hearing that the measurements were correct, however we were not presented with evidence to the contrary, and we have no reason to doubt that Ms Coton would have correctly measured the room and that her evidence was correct.  We therefore find as a fact that the useable floor area in the two smaller bedrooms was 9.26m and 9.64m.  It therefore follows that the useable floor space in both the bedrooms is less than the National Minimum Standard.    

25.	Section 23(4) of the Care Standards Act 2000 provides that the National Minimum Standards “shall be taken into consideration in any decision.”  It does not make the standards an absolute condition of registration.  This allows some discretion to the registration authority as to whether and when it would be appropriate not to adhere to the stated minimum.

26.	Mrs Fatile considered that the environment in the rest of the house was sufficient to compensate for the size of the rooms.  We did not agree with her.  Although we did not visit Ebenezer House, we noted Ms. Coton’s evidence that it had been well appointed and furnished and that she had been impressed with the facilities there.  This is not disputed.  The issue is the size of the bedrooms in comparison with the National Minimum Standard.

27.	We heard evidence from Ms Wild about the decision-making process.  She explained that the question of discretion had been discussed before the decision to recommend refusal to register was made.  She explained the reasons why it had been concluded that it was not reasonable to exercise the discretion in relation to Ebenezer House.  We were impressed with her as a witness and accepted her explanation of the decision making process.  We also accepted her reasons for not exercising any discretion in relation to the minimum useable floor area in the two bedrooms.  We agreed that the circumstances in which the registration authority might properly exercise its discretion to move away from implementation of the National Minimum Standard had not been met in this case.  The introduction to Standards 24 to 30 states that “..the key requirement is that service users’ own room accommodates their possessions, enables them to pursue their chosen interests and activities, and offers sufficient privacy.”  The introduction goes on to state that “Respect for service users’ privacy is fundamentally important, including the freedom to come and go and receive guests as they wish..”.  On the basis of the evidence presented by Ms. Wild, we have concluded that the two smaller bedrooms would not be of sufficient size to comply with the spirit of the standard. 

28.	We also agreed with the submission by Mr Carter that the sizes quoted in the standard are minimum sizes, not desirable or ideal sizes.  In view of the fact that a relaxation of the standard has been introduced for existing homes, we might have considered an argument based on a small discrepancy.  The discrepancy between the size as measured and the National Minimum in this case is about 20% of the total area and is therefore far too much to allow the exercise of discretion.

29.	We have concluded that the decision of the registration authority was correct and we are prepared to confirm the deicison.

30.	As a matter of future reference, we were concerned that the “fit person” interview had not been conducted with Mrs Fatile in advance of the hearing of the appeal.  In the event that the appeal had succeeded, then the tribunal would have been in a position of having to adjourn the case in order for the interview to be conducted, before concluding the appeal.  The registration process is a three stage process and it seems appropriate, where the only remaining item is a “fit person” interview, for the registration authority to complete the whole process of considering the application prior to the appeal hearing, so that the tribunal can make a final decision in the event of the appeal succeeding.   

Order
Appeal dismissed.

Meleri Tudur (Chairman)
P. McLoughlin
T. Greenacre
Dated 1st March 2004