Gibson & Anor v Commission for Social Care Inspection [2004] EWCST 265 (EA) (25 October 2004)

Mr T Gibson and Mrs L Gibson
V
The Commission for Social Care Inspection
[2004]  265.EA [2004] 266.EA

Mr Stewart Hunter (Chairman)
Mrs Linda Elliot
Mr Jeff Cohen

Sitting at The Allesley Hotel, Coventry on 20th September 2004 to 1st October 2004

Appeal against decision the National Care Standards Commission dated and served on 15th January 2004, whereby the registration of the Appellants as joint proprietors of the care homes at 1-3 Canberra Road and 359 Aldermans Green Road, Coventry and Mrs Gibson as registered manager of 1-3 Canberra were all cancelled under Section 14 (1)
(c) of the Care Standards Act 2000.

REPRESENTATION:

The Commission were represented by Mr Michael Curtis of Counsel instructed by Messrs Bevan Ashford of 35 Colston Avenue, Bristol BS1 4TI.

The Appellants were represented by Dr Fairburn of Care Professional Consultancy Ltd.  

PRELIMINARY MATTERS

A Restricted Reporting Order was made pursuant to Regulation18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, 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 to members of the public to identify any service user resident at ether of the Homes in this case.

DECISION
The Appeals are dismissed.

REASONS

Background

1.	The two homes have been run as a close knit family business.  The Appellants live at 1 Canberra Road which is connected to 3 Canberra on the ground floor.  Mrs Gibson gave evidence that she and her husband started running 1-3 Canberra in the 1980’s originally for adult fostering.  In or about 2000/2001 they purchased a property at 359  Aldermans Green Road, to which they then transferred residents from 12 Henley Road, an establishment previously run by Mrs Gibson’s mother, Mrs Muriel Latham.  The homes at 1-3 Canberra Road and 359 Aldermans Green Road are in close proximity to each other.

2.	The Appellants were registered as providers in respect of 1-3 Canberra Road on 21st February 1994 under the provisions of the RHA (amendment) Act 1991.  The certificate indicated that they were registered for three residents in the categories I, M/P, PH.  

On 1st August 2002 a Certificate of Registration was issued by the Commission naming the Appellants as registered providers and Mrs Lesley Gibson as the registered manager of the care home.  The service user categories were described as mental disorder excluding learning disabilities or dementia, for a maximum of 3 residents, with an additional condition of registration that they might also provide care, subject to appropriate and ongoing assessment, for people in the category (MD) mental disorder, who were over 65.

3.	At the time of the tribunal hearing there were two service users at 1-3 Canberra Road namely:-

(i)	FC (60), who had arrived from Walsgrove Hospital in 2000, and has a mental health diagnosis of schizophrenia, and is prone to periods of withdrawal and mood swings when unwell.  Although relatively independent, he does need some supervision and prompting in relation to his personal care.  He requires his medication administered and monitored, and his meals and drinks prepared for him.  He is a heavy smoker.  He attends Tamer Day Centre on four days a week.

(ii)	GF (aged 68), has been with the Appellants since 1999, He has long term mental health and depression problems, also physical health problems regarding his bowels.  He requires assistance with personal care, and his medication to be administered and monitored.

(iii)	On 23rd November 2001, Mrs Lesley Gibson was registered by Coventry City Council as the registered proprietor for 359  Aldermans Green Road.  The registration being for three residents, category (MPE), with a temporary additional category of (PH) one resident only.  At the same time Miss Lisa Gibson was registered as care manager.

On 1st August 2002 the Commission issued a Certificate of Registration showing Mrs Gibson as registered provider and Lisa Gibson as manager. The home was registered for three persons under the categories of mental disorder ,excluding learning disability or dementia (MD) service users who were over 65 but did not fall within the category of old age, and physical disability with an additional condition that this category should apply only to one of the current residents. 

4	At the time of the Tribunal hearing there were two service users, resident at 359 Aldermans Green Road:-

(i)	TK (aged 63) prior to residing at Aldermans Green Road TK had lived with Mrs Latham at Henley Road.  As a result of injuries sustained in a car accident he requires assistance with his personal care, he has mobility difficulties and walks with a tripod.  He has a significant speech impairment.  He attends two day centres and is a keen supporter of Wolverhampton Football Club travelling independently to their home games.

(ii)	DW (aged 72) also lived at Henley Road prior to moving to Aldermans Green Road.  He is described as having a long term depressive illness.  He is a heavy smoker and prone to chest infections.  He is generally self caring, making his own snacks and drinks, managing his own finances and is also self medicating.

5	Although the two homes are in close proximity and effectively run by the same family, they have been separately inspected by the Commission and separate inspection reports prepared.

6	On 8th April 2000, the Commission’s area manager, Ms Lesley Ward wrote to Mr and Mrs Gibson advising them of the new changes that needed to be made as a result of the Commission taking over the regulation of care homes, at the same time informing the Appellants that Mrs Arnold would be the named inspector, and providing information about how the Appellants could contact the Commission.  This was followed by an introductory visit to both homes by Mrs Arnold and another inspector, Ms Smart on 14th April 2002.

7	A number of other visits took place during the course of 2002 leading to an announced inspection of 1-3 Canberra Road on 8th October 2002.  As with all of the inspection visits these were undertaken by two inspectors.  The visits highlighted a number of concerns, including service users’ finances and the administration of medicine.  A decision was taken, in the light of these concerns, to carry out an unannounced inspection at 359 Aldermans Green Road, which took place on 10th October 2002.  This was in advance of the announced inspection on 14th October 2002.

	Again the inspectors had a number of concerns including medication, financial records, the physical state of the home and a general lack of written records policies or procedures.   On 23rd October 2002 Mrs Arnold wrote to the Appellants detailing a list of issues of serious concern, following the inspection of 359 Aldermans Green Road.  The Appellants were required to provide a written response within 28 days, of the action being taken to address these issues.  At the same time Mr and Mrs Gibson were invited to telephone Mrs Arnold or another inspector, Mrs Walton if they needed any guidance or support.

8	The Commission made arrangements for inspection of both homes to be undertaken by a fire safety officer and environmental health officer, to advise the Appellants on appropriate procedures; these inspections taking place in November 2002.  Arrangements were also made, following a Multi-Agency Vulnerable Adult Protection Meeting on 11th December 2002, that the service users of both homes, should be reviewed by Social Services, with a view to having an up to date care plan by the end of January 2003, so that the Appellants had baseline care plans to work from and develop.

9	On 23rd December 2003 the inspection report for 1-3 Canberra was issued (relating to the announced inspection on 8th October 2002), giving details of various statutory requirements that the Appellants needed to comply with, and a time scale for action, some 30 requirements were listed.  The report also detailed the extent to which the inspectors found that the relevant National Minimum Standards had been met.  The report in total consisted of some 42 pages.  On 8th January 2003 a meeting was held at the Commissions offices attended by Ms Lisa Gibson and Mrs Gibson, when the inspectors went through their concerns and explained what the Appellants needed to do, including the drawing up of an action plan.

10	On 16th January 2004, the Commission issued its inspection report regarding 359 Aldermans Green Road, (relating to the announced visit on 14th October 2002), in a similar format to the earlier report in relation to 1-3 Canberra Road.  On this occasion the inspectors identified 27 statutory requirements which needed action, with the total report consisting of some 44 pages.

11	On 7th February 2003 the Commission received action plans completed by Ms Gibson and signed by Mrs Gibson for both homes.  The Commission did not consider the action plans adequate, in their view they demonstrated very poor levels of managerial competence.  A letter was written to Ms Lisa Gibson and Mrs  Gibson on 11th February 2003, giving an example of how the action plans might be made more acceptable, and offering a meeting to help the Appellants to complete the action plans.  A meeting was scheduled for 26th February 2003, but was cancelled by Mrs Gibson.

12	On 3rd March 2003 an announced visit of 1-3 Canberra was carried out, which indicated that in the view of the inspectors, there were continuing breaches of the regulations, some 25 in total.  This was followed by unannounced inspections at 359 Aldermans Green Road on 24th March 2003 and 8th April 2003.  

Further meetings with Mrs Gibson took place in April and May 2003 to discuss amended action plans, the Statement of Purpose and the response to the earlier inspection report.

13	The next announced inspection visits were undertaken in June and July 2003.  On 16th June 2003, 359 Aldermans Green Road was visited by Mrs Arnold and Miss Flanagan.  In their view there was an absence of any evidence of real progress in meeting the requirements, issued after previous inspections.  There were 17 earlier requirements unmet or met only in part.  At this stage the Commission issued 20 requirements to be complied with by the Appellants.  An Immediate Requirement Notice was issued on 16th June 2003 relating to Regulation 18 (1) (a) of the Care Home Regulations 2001 (“The Regulations”) regarding staff training, to be actioned by 13th July 2003.  

14     The announced inspection of 1-3 Canberra Road took place on 3rd July 2003 and was conducted by Mrs Arnold and Mrs Flanagan.  The inspectors found an ongoing failure to comply with the requirements in the regulations, including concerns about lack of care planning and risk assessments in respect of service users, lack of records and policies, as well as concerns about medication and documentation regarding staffing, and an absence of training.

15	At a Commission Management Review meeting held on 31st July 2003, a decision was taken to issue Notices of Proposal to Cancel Registration in respect of both homes.  It being agreed that despite 16 months having past since the introduction of the new regulatory regime, the Appellants were still failing to meet the requirements of the regulations, which put the service users at some risk.

The Notices of Proposal to Cancel the Registration of the Appellants as registered providers and Mrs Gibson as registered manager of 1-3 Canberra Road, were issued on 14th October 2003, the grounds being those set out in 14 (i)( c ) of the Care Standards Act 2000.  In addition the notice detailed breaches of Regulations 4, 5,9,12,13,14,15,17 and 19 of the Regulations.

16	On 8th January 2004 Mr Alan Jefferson, the North West and West Midlands Regional Director for the Commission, held a representations hearing against the proposal to cancel the registrations.  After considering evidence supplied by the Commission and letters from Dr Fairburn on behalf of the Appellants, Mr Jefferson found all the breaches proven, save for the alleged breach of Regulation 13 (6) where he did not accept the Commission’s evidence as being clear or robust enough.  

A Notice of Cancellation was issued by the Commission on 15th January 2004 on the same grounds as the earlier Notices.

17	On 14th October 2003 a Notice of Proposal to cancel Mrs Gibson’s registration as the registered provider at 359 Aldermans Green Road was issued, the grounds being those set out in Section 14 (1) (c) of the Care Standards Act 2000.  In addition, alleging breaches of Regulations 4,5,8,9,12,13,14,15,16, and 19 of the Regulations. 

A Separate Notice of Proposal to cancel was issued in respect of Ms Lisa Gibson, the registered manager of 359 Aldermans Green Road.

18     On 8th January 2004, Mr A Jefferson held a representations hearing in respect of Mrs Gibson’s position as the registered provider of 359 Aldermans Green Road.  Again, considering the written documentation supplied by both parties.  Mr Jefferson upheld the Commission’s decision to cancel Mrs Gibson’s registration, finding all the ground proven, save in respect of the appointment of a manager, pursuant to Regulations 8 and 9, where Mr Jefferson found that the responsibility for establishing the fitness of any manager appointed by a provider, rested with the Commission.

On 15th January 2004, the Commission issued a notice cancelling Mrs Gibson’s registration as provider on the grounds as set out in Section 15 (1) ( c) of the Act, and indicating that Regulations 4,5,12,13,14,15,16,17 and 19 of the Regulations had not been complied with. 

A separate Notice of Cancellation was issued in respect of Ms Lisa Gibson.

19     On 4th February 2004, the Tribunal were sent separate appeals by Mr Gibson, Mrs Gibson and Ms Gibson in relation to their respective cancellations at 1-3 Canberra Road and 359  Aldermans Green Road.   They were supported by a letter from their advisor Dr R A Fairburn, a director of an organisation called Care Professional Consulting Limited.  The appeals were separately registered.  On 4th March 2004, the Commission filed its Response to the appeals.  

20	On the 28th May 2004 the nominated chairman gave directions, including that the three appeals should be joined and heard together, and for the Respondent to file amended statements of reasons for their decision under appeal.  The amended Statements in all cases being dated 21st May 2004.

21      On 6th July 2004 Ms Lisa Gibson withdrew her appeal and the same was formally dismissed by the Tribunal.

22	Since the lodging of the appeals by the Appellants, both homes have continued to operate and have been the subject of ongoing inspections by the Commission.

23	In November 2003 unannounced visits were undertaken in respect of both homes.  On 12th November 2003 at 1-3 Canberra Road where a number of improvements were noted in the general standard of hygiene and orderliness throughout the home, although some concerns remain outstanding.  Mrs Gibson advised the inspectors that she had not addressed any of the requirements regarding policies, procedures, care plans, risk assessments and associated records, outstanding from the previous announced inspection report dated 3rd July 2003.  Mrs Gibson had employed a professional company, Care Professional Consultancy Limited, to give support and guidance in this regard.

24	On 20th November 2003, 359  Aldermans Green Road was visited by Ms Arnold and Ms Flanagan.  Their subsequent inspection report noted that “the home had undertaken some steps in working towards the outstanding requirements” citing as an example some improvements in the management of medication and the general environment, including the introduction of a filing system.  However, there continued to be a failure to meet a number of requirements and in the inspectors view, a cause for significant concern, in particular the procedures regarding the employment of staff and the ongoing maintenance of records regarding the welfare of Service Users.  The report contained some 47 pages.

25	In April 2004 an announced inspection took place at 359  Aldermans Green Road on 14th April 2004 and of 1-3 Canberra on 27th April 2004.  In respect of 359 Aldermans Green Road the inspectors  noted that positive action had been taken to meet the requirements arising from the last inspection visit in November 2003, the home had purchased a number of policies and procedures from an independent company. However the inspectors felt that many of the improvements were as a result of the advisor’s involvement, and that the proprietors themselves needed to become more familiar with such records and procedures.  As far as 1-3 Canberra Road was concerned, again positive actions taken by the appellants to meet the outstanding requirements were noted, including the maintenance of some records such as service users’ plans and refrigeration and freezer temperature records, but some concerns still remained.  The most recent inspection took place in July 2004 on an unannounced basis.  The inspection of 359 Aldermans Green Road being on 12th July 2004.  As in previous reports the inspectors set out in their draft inspection report, their findings of the progress that had been made in complying with the requirements arising from the previous inspection in April 2004.  The report considered progress as against the relevant National Minimum Standards.  There were 22 requirements outstanding either in part or completely, with the most serious concerns relating to the staffing of the home.  The Commission issued 25 ongoing statutory requirements.  In the case of 1-3 Canberra Road the inspection took place on 19th July 2004 with the subsequent draft report being in the same format as the one used for 359 Aldermans Green Road, again a number of statutory requirements remained outstanding.  A new list of 32 statutory requirements were issued by the Commission arising from this inspection.

26	At the hearing, the Tribunal heard oral evidence from the Commission’s area manager, Lesley Ward, their inspectors Sue Walton, Maggie Arnold and Patricia Flanagan.  In addition Social Worker Mike Gascoigne, Environmental Health officer, Nicola Castledine, Maggie Boulstridge of the Department of Works and Pensions, Amanda Simpson from the Incapacity Benefit team of the Department of Works and Pensions and Carol Caddy from ASDA and from the Appellants themselves.

27	Section 14 (i)(c) of the Care Standards Act, (“the Act”) permits the cancellation of registration where an establishment is being or has at any time been carried on otherwise than in accordance with the relevant regulations, which by virtue of Section 14 (3) of the same Act, includes requirements imposed by regulations made under Section 22.  In this case the material regulations are set out in the Care Homes Regulations 2001 (“the regulations”).  In the case of both homes, the Commission alleges wide spread regulatory breaches by the Appellants.  By Section 23 (4) of the  Act, in considering whether there has been a breach in regulations, regard must be had to the National Minimum Standards published by the Minister under Section 23 (1).  

The Tribunal in the first instances set out to establish the facts in relation to the alleged breach of regulations.  Whilst the registration of each home needs to be considered separately (particularly given that the registered providers are not the same in each case), in the majority of cases the regulatory breaches concern both homes.  In looking at the breaches we have for ease of reference, grouped them under a number of headings, making reference to a particular home where appropriate, in some cases allegations refer to more than one regulation. 

Food, general hygiene and health and safety.

(Regulations 13, 16 and 23).

28.	The early inspection reports on both homes identified concerns in respect of the state of the premises.  Ms Arnold in visiting the kitchen at 359  Aldermans Green Road in June 2002 described it as being, “dirty and incredibly cluttered with dishes and utensils left on surfaces.  The floor was filthy and the remains of dog food were on the floor”.  In addition the atmosphere was said to be smoky.  In October 2002 the dining room was said to be full of Lisa Gibson’s personal property, including toys belonging to her daughter.  There were also dust covers over the smoke alarms on the first floor.  The kitchen was noted as appearing grubby, cluttered and in need of a thorough clean in April 2003, although improvements in terms of cleanliness were noted during visits in November 2003 and in April 2004.  By July 2004 work had been undertaken in the back garden to level the area outside the conservatory fire exit, to enable the service users to exit the building safely, but in so doing the assembly area had become blocked.  Requirements to replace the upstairs front window had not been acted upon.  

29.	There were similar findings at 1-3 Canberra Road.  In October 2003 the front bedroom was said to be very cluttered as was the kitchen. The bathroom sink and bath were dirty, the atmosphere in the lounge and dining room was smoky.  The Appellants were advised to ensure that at least one of the communal rooms was smoke free.  It was also noted that the dining room window was cracked.  Although some improvements were noted in March 2003, cleanliness still remained an issue.  However, by October 2003 a general improvement in the overall standard of hygiene was noted and works required by the fire safety officer had been completed.  The rear garden had been made safe and was described as being pleasant for use by the service users.  By July 2004 further improvements were noted, but the broken window pane in the dining room had still not been replaced and there were still rotten window frames in existence.  In addition no extractor fan had been fitted to the front lounge to address the smoky atmosphere.  

30.	As at July 2004 a number of risk assessments relating to health and safety issues still needed to be completed, such as the transferring of soiled laundry through the kitchen to the laundry at 359 Aldermans Green  Road, and at 1-3 Canberra Road an assessment of the hot drinks facility located in the laundry.

31.	In terms of food hygiene, the inspectors identified at 359  Aldermans Green Road in March 2003, unwrapped and undated food packages and the fact that the fridge temperature was too low.  Subsequently Mrs Gibson and Lisa Gibson attended a food hygiene course and the inspectors noted various improvements. 

32.	The factual case for the Commission’s findings under this heading were unchallenged by the Appellants at the hearing.  We note that this is an area where the Appellants had made some improvements over time, and those improvements have been noted by the inspectors.  We also take account of the fact that the Appellants in respect of both homes have created a “small homely environment” and that Mrs Gibson has undergone some appropriate training.  Nevertheless there have been breaches of the relevant regulations and some breaches are still continuing.  We therefore conclude that there have been breaches of regulations 13,16 and 23.

Policies Procedures and Records

(Regulations 4,5,13,14,15,17)

33.	The early inspection reports in respect of both homes identified that there was an almost total lack of the records required by the regulations.  Mrs Arnold noted in relation to her visit to 1-3 Canberra Road on 8th October 2002 that “there was no evidence of documents in the form of a Statement of Purpose, policies, procedures or records in the form of care plans and risk assessments or evidence of staff training, to indicate the home had the capacity to meet the service users needs”.  A similar situation was found by the inspectors when they visited 359  Aldermans Green Road.  

34.	In due course certain documentation was provided, a draft Statement of Purpose was submitted on 30th June 2004.  This still required some amendment as there  was some inaccuracies, for example the description of the relationship with Social Services.  Ms Arnold acknowledged that there would be little major impact on the present service users, who were familiar with the homes, but that the document was important for any further perspective residents.

35.	Mrs Gibson told the Tribunal that at some point in time a set of policies and procedure documents, approximately 50 in number had been purchased over the internet.  Further that with the assistance of a Mr Robertson, Mrs Gibson was going through the policies and “trying to mould them to our ways”.  Whilst Mr and Mrs Gibson are not criticised for acquiring policies and procedures in this way, and indeed in the case of the small home there may be benefits, nevertheless it is important that they are accurate, otherwise they serve no useful purpose and in some instances could be positively dangerous.   The Commission drew attention to various inaccuracies, for example policy number 46 “Use of volunteer staff” refers to the homes induction training  in circumstances where the evidence indicated that in practice no such programme exists.  Mrs Gibson was questioned at some length on the documentation, and openly admitted that paperwork was not one of her strengths.   In addition during the  course of that questioning, it became apparent that Mrs Gibson was not familiar with the contents of the policies, for example as to why the policy entitled “Accidents and Injuries to the Client” only dealt with serious injuries.

36      Regulation 14 requires assessments to be carried out into the needs of the service users and Regulation 15 for there to be a service user’s plan.
During the course of the Commission’s inspections the service users’ care plans for the service users’ at 1-3 Canberra Road and 359 Aldermans Green Road were reviewed by Social Services.  Although those plans themselves carried some omissions, for example that DW experienced hallucinations, they should have given sufficient basic information to enable Mr and Mrs Gibson to prepare their own daily living needs documentation, daily records and risk assessments.   Whilst such documentation was eventually produced by Mr and Mrs Gibson they were considered by the Commission to be deficient.  

37.	In relation to 1-3 Canberra Road, there were assessments of Needs for Daily Living forms for both FC and GF, but in neither case were they signed or dated.  Similarly with the forms for TK and DW at 359 Aldermans Green Road.  In cross- examination a number of “errors” were pointed out to Mrs Gibson by counsel for the Commission, which were accepted by Mrs Gibson, for example in the case of FC  the Social Services Care Plan Review referred to “Mr Gibson helps him to shower” whilst against the question “needs assessment with personal hygiene” on the daily living assessment the answer “no” had been written. 

Although FC takes a variety of medication the section on “medication regime” had been left blank.

In the case of GF a similar picture emerges with the section on medication not having been completed.  
 
38   Mrs Gibson initially told the Tribunal that the blank documents being downloaded from the internet had been completed by Mr Robertson, with Mrs Gibson checking his work, and that the dating and signing of the documents had simply been overlooked.  Mrs Gibson said that  the forms contained errors. If someone else had done them, she had failed to spot the errors, and if she had done them she must  have made the errors herself.  She was trying to do something that did not come naturally to her and her strengths were on the caring side. 

39   As for the Client risk assessments the Commission made similar points in relation to their completeness and accuracy.  One particular issue was the involvement of Mr Gibson in assisting FC and GF with showering/bathing at 1-3 Canberra Road.  Mr Gibson, according to the evidence from Amanda Simpson from the Department of Works and Pension, had been in receipt of Incapacity Benefits since the 1st December 1995, as a result of back problems.  It having been determined that Mr Gibson was incapable of work.  Notwithstanding this, there were various references in the documents to Mr Gibson helping service users with bathing/showering, for example GF’s daily record referred at one point to “Tony help Gordon have a bath”.  Both Mr and Mrs Gibson denied that Mr Gibson gave baths or showers, Mr Gibson said that in the case of GF he simply went into the bathroom to operate the machinery which lowered GF into the water. Even if Mr and Ms Gibson’s evidence was correct on this matter, there were no written risk assessment of the potential risk to either Mr Gibson or the service user, given Mr Gibson’s back condition.  

40.	Another example of the lack of risk assessment, relied on by the Commission related to TK, a keen supporter of Wolverhampton Wanderers football club.  TK travelling, usually on Saturdays, from 359 Aldermans Green Road to Wolverhampton to watch home matches.  TK was  transported to Coventry Railway Station by the Gibsons or by taxi, then by train to Wolverhampton Station and then from there to the ground by taxi.  Despite TK’s mobility problems, and the acknowledgement in the risk assessment document that there was a risk of him “falling over”, no detailed written assessment was available in relation to the trip to and from Wolverhampton.  We acknowledge that this was a journey that TK had done regularly over a number of years without apparent difficulty, nevertheless Mrs Gibson failed in our view to appreciate the need to go through the risk assessment process, in particular, the importance of recording such an assessment.

41.	We also heard evidence regarding other documentation produced by Mr and Mrs Gibson, including the care service contracts, activity sheets, medication charts and rotas.

The activity sheets were intended to show the activities being undertaken by a service user on any particular day.  Mrs Gibson accepted that these forms contained a number of errors, for example TK was stated to attend Tamer Day Centre when he, in fact, attends another centre.  Mrs Gibson gave evidence that the activity sheets were prepared on a daily basis, however the consistency with which the same error appeared cast doubt on this assertion.  

We also had grave doubts about the accuracy and authenticity of the rotas produced for each home, and disclosed late in the proceedings.  It was unclear when they were prepared and whether the signatures, “in” and “out” were made on the days in question.   Mr Gibson was unable to recognise all of the signatures purporting to be from him and did not know who prepared the rotas.  He then gave evidence that the rotas did not reflect all the people who were on duty at any given time.  

42  In relation to the administration of medication, various medication charts were produced.  These included a chart for FC a resident at 1-3 Canberra Road.  Mr Gibson told the Tribunal “I don’t do medication” and yet what appeared to be his initials appeared on the “record of medication administered” form for FC for March 2003. Moreover it was accepted that Mr Gibson had not undergone any medication training.  Again, Mrs Gibson in her evidence denied that a worker at 359 Aldermans Green Road, Pam Higgins administered medication, yet the medication records for BG a service user in residence at the time, showed the initials PH on the medication administered record for October 2003.  Mrs Gibson sought to explain this by saying that MrsHiggins was merely accompanying her for the purposes of training when medication was administered.  We found this explanation unconvincing. 

Therefore in summary, whilst various policy plans and various documentation were eventually produced to the Commission, a number of significant documents were either incomplete or inaccurate and, in a number of instances, indicated a lack of awareness of some key care standards. This continued to be the position at the time of the hearing.

We accordingly accept that there have been breaches of the Regulations 4,5,13,14, 15 and 17.

Staff and Training
(Regulations 18 and 19)

43.	The staffing position at the outset of the Tribunal hearing was, apart from Mr and Mrs Gibson themselves, Mrs M Latham (Mrs Gibson’s mother), Lisa Gibson (Mr and Mrs Gibson’s daughter and formerly the care manager at 359 Aldermans Green Road), Mr R Jaggs (Lisa’s partner) and Mr P Edwards.  In addition a Mr Robertson had been employed for several months as a “stand in” manager.

44.	Amongst the policies provided by the Appellants was a document (policy 50) headed “selection and recruitment of staff”, detailing the obtaining of references and the need for CRB checks.  Policy 46 (use of volunteer staff) confirmed the need for references, verification of identity and CRB checks.  The policy went on to say that volunteers would need to be treated as supernumerary and that a qualified member of staff would act as their supervisor and mentor.  

45.  Mr Jaggs and Mr Edwards both work as volunteers.  In the case of Mr Jaggs, a CRB check was undertaken, albeit after he started, but no specific care related references had been obtained.  Mr Edwards had been volunteer since December 2003 although there had been no CRB check completed for him and his reference was out of date.  Notwithstanding Mr Edwards having started in December 2003, we were shown an application form purported to be from him dated April 2004.  Mrs Gibson’s explanation was that this was to replace an earlier application form which had been lost. We found this explanation unconvincing.  In neither case has either Mr Jaggs or Mr Edwards received any essential training nor has any job description been drawn up for them.

46.	As far as Mr Robertson is concerned there is no evidence of satisfactory written references or a contract of employment or a job description being in existence, during the course of the Tribunal hearing, a P60 and CV for Mr Robertson were produced by the Appellants.  

47.	In terms of training, Mrs Gibson and Lisa have themselves completed some training including an NVQ care level III.  Mr Gibson has not undergone any training.

48.	Lisa Gibson was previously the care manager at 359 Aldermans Green Road.  In late 2002 she applied for a job at ASDA as a shop assistant.  A copy of her application form was part of the written evidence submitted to the Tribunal.  The form gave no indication of her role of as a care manager.  Mrs Gibson in her oral evidence to the Tribunal said that she was unaware that Lisa had applied for the job at ASDA or from the 8th December 2002 Lisa was contracted to work night shifts for ASDA from 10pm -6am on Tuesday, Thursdays and Friday nights,. Had she known she would not have approved.  This is contrary to what Mrs Gibson stated at paragraph 28 of her witness statement where she said, “at Christmas 2002 I agreed to let Lisa take time to do additional work at ASDA during the Christmas period”.  In view of the fact that Mr and Mrs Gibson were looking after Lisa’s young child when Lisa was working at ASDA and given the number of hours Lisa was working, we do not accept that Mrs Gibson was unaware that Lisa was working at ASDA at this time.  

The point is also taken by the Commission that in her application form to ASDA, Lisa disclosed that in 2001/2002 she was employed as a general assistant at a Fish and Chip shop, a fact which was not disclosed to the Commission.

49.	Lisa was convicted of theft whilst working at ASDA, and her employment was terminated on 5th April 2003.  Lisa continued to work at 359 Aldermans Green Road.  Mrs Gibson claims to have undertaken a risk assessment, although there was no written documentation of this.  In so far as any mental assessment of the risk was carried out by Mrs Gibson, this seemed to have been based on a view that Lisa was really innocent and therefore there was no risk to service users. 

We accept that there have been breaches of Regulations 18 and 19.	
		
Care Welfare and Protection of Service Users

(Regulations 12 and 13)
50.	There is no suggestion that the service users have been physically abused in any way.  Indeed we accept that the residents of both homes are treated by the Appellants as “part of the family”.  Also that Mr and Mrs Gibson display many caring qualities and during the course of the hearing spoke warmly of the residents.

51.	However, there are a number of causes for concern, as outlined by the Commission.  We heard evidence from Mr Mike Gascoigne, who was employed by Coventry City Council as a Social Worker in the review team.   From October 2003, he has been the care manager for the service users then at 359 Aldermans Green Road, DW,TK and BG.  It was Mr Gascoigne’s role to consult with these service users as to their wishes in the event that the home had to close.  In the event BG eventually chose to move to another home.  When asked about DW and TK, Mr Gascoigne said that in his view their immediate needs were being met and both men had expressed the wish to remain where they were.  He did however have concerns in the long term, particularly if their needs changed., he would like to see more stimulating activities particularly for DW and more social stimulation for TK, to give them both a better quality of life.  He was not confident that Mrs Gibson was enabling the residents to make decisions.  He also expressed his concerns about some of Mrs Gibson’s comments including Mrs Gibson (in the context of BG’s move, saying that BG’s opinion was not valid because he was “mentally handicapped”.  Mrs Gibson gave evidence that the opinions of everyone counted, whatever their disability or illness..

52.	During the course of the inspections concerns were raised regarding the management of certain of the service users’ finances.  Ms Arnold  received a telephone call on 31st May 2002 from a social worker, Ms Rand, who had carried out a review of service users finances.  We heard from Ms Maggie Boulstridge,  who works as a Customer Liaison Manager within the Department of Works and Pensions.  She described her role as being to ensure that people were receiving all of the benefits to which they were entitled. 

In this case both Mrs Gibson and Mrs Latham had previously been appointed to act as appointees for certain of the service users.  This made them responsible for a person’s social security affairs, completing the necessary forms as required, notifying any change of circumstances and ensuring that benefits were used and administered in the person’s best interest.

In the case of FW, Mrs Gibson was alleged to have failed to produce his birth certificate to confirm that he had reached the retirement age of 65.  As a result FW did not receive his pension on the correct date and other benefits were reduced on the assumption that he was entitled to retirement pension from the time that he reached 65.  Mrs Gibson said that the birth certificate had been supplied at the correct time but had been lost by the pension service.  Ms Boulstridge said that the pension service had no record of Mrs Gibson previously having informed them that the birth certificate had been lost in this way.  Also it was alleged that Mrs Gibson had failed to claim benefits for GF although he had not financially suffered as a result.

In the case of TK where Mrs Latham was appointee, TK had not received any benefits between 17th December 1999 and 12th December 2001.  

On 11th March 2003 a decision was taken that Mrs Gibson was not suitable to act as an appointee.  

Whilst it is not suggested that Mrs Gibson  made any financial gain during this time, indeed it may be the case that the home lost money as a result of fees  not being paid, nevertheless it does, in our view show a lack of financial competence on behalf of Mrs Gibson and neglect of the interests of the service users.

We find breaches of Regulations 12 and 13.

CONCLUSIONS

53.	For the reasons we have given we are satisfied that at the date of the Commission’s decision to cancel the registration of Mr and Mrs Gibson as registered providers and Mrs Gibson as registered manager, there were many breaches of the  Regulations.  Therefore cancellation of the Gibson’s’ registration was an avenue open to the Commission.  It is the role of this Tribunal to decide whether the cancellation by the Commission was appropriate, and if so whether cancellation is still justified.  In considering this matter we have looked at the evidence afresh, including taking into account developments that have occurred since the date of the Commission’s decision.

54.	Whilst Mrs Gibson gave evidence that there had been some measure of misunderstanding by the inspectors of her comments and practices, nevertheless in the main the evidence given by the inspectors and their findings were not challenged by the Appellants.  

55.	It is suggested on the Appellants behalf, that the Commission relied on breaches of the National Minimum Standards to establish a breach of Regulation 10 (1). The role of the National Minimum Standards is set out in Section 23 of the Act, in particular Section 23 (4).  In our view the Commission has properly used the National Minimum Standards in order to inform Mr and Mrs Gibson of good practice and to assist them in complying with the regulations.  

56    The ongoing breaches of the regulations by Mr and Mrs Gibson are clearly set out in the inspectors’ reports and the notices of cancellation of registration makes it clear as to what breaches of the regulations the Commission were relying on. The grounds for cancellation are  that, pursuant to Section 14 (1) (c) of the Care Standards Act 2000, the homes have been carried on otherwise then in accordance with the relevant requirements.  The notices go on to specify the various regulations that had not been complied with.

57.	It is also suggested that the Commission were unreasonable, and its inspectors were excessive in their requirements, particularly in relation to documentation, and given the size of the homes and the number of service users.  In our view documentation is crucial in determining whether there has been appropriate care planning and whether the care and safety of the residents have been fully considered.  It also enables anyone involved with the care of a service user to see at a glance, full details of their personal care regarding for example meals or activities, and  the contact details of families or next of kin.   

58    In this case over two years have elapsed since the present regulations came into force.  A significant amount of the inspectors’ time has been devoted to these two homes in terms of visits and meetings.   We are satisfied that the inspectors have offered help and guidance to Mr and Mrs Gibson throughout, both in terms of meetings and detailed written reports.  Whilst it might be said that it should have been apparent to the inspectors at an early stage that “paper work was not one of Mrs Gibson’s strengths” nevertheless we consider that the onus was on Mr and Mrs Gibson to seek clarification and advice at a much earlier stage.

59.	 In all the circumstances, given the various breaches of the regulations that we have detailed, we conclude that the Commission was entitled to cancel the registrations at the time that they did.

60.	In determining whether cancellation is still justified, we have looked not only at the evidence before the Commission in January 2004, but also what has happened since.  We acknowledge that there have been improvements in a number of areas, the premises are tidier and more hygienic, policies have been purchased and certain plans have been drawn up.  However numerous breaches of the regulations still remain. We would have expected to see a detailed and viable action plan to address the ongoing breaches, and also to have confidence in Mr and Mrs Gibson to carry out any such action plan.

61.	Mr Gibson in giving his evidence showed little understanding of any need for policies or procedures.  He claimed to have glanced at the National Minimum Standards and read through the Regulations, but in the main he left the paperwork to Mrs Gibson.  He had only read the inspectors witness statements during the course of the Tribunal  hearing.  We find that given the evidence and the documentation, Mr Gibson did administer medication without having received appropriate training, and did assist service users to bath/shower, without considering his physical condition and the risk that condition could pose both to himself and the service users concerned.  These both, in our view, demonstrate a worrying lack of judgement on Mr Gibson’s behalf.

62.	We find Mrs Gibson to be an unreliable witness.  We acknowledge the stress involved in giving evidence, and difficulties that can occur in recalling information in detailed documents.  However, there were a number of occasions when we found Mrs Gibson’s evidence to be unbelievable.  For example we do not accept that Mrs Gibson was unaware that Lisa was working at ASDA.  Not only does the oral evidence which she gave to the Tribunal, conflict with her witness statement, but we note that Mr and Mrs Gibson was looking after Lisa’s child at a time when Lisa was working on night shifts at ASDA.

All of this casts doubt on the truthfulness of the other parts of Mrs Gibson’s evidence, such as her assertions regarding DW’s lost birth certificate, Mr Gibson and Mrs Higgins not administering medication and Mr Edwards (copy) application form.  

Apart from the reliability of Mrs Gibson’s evidence we also had concerns about her judgement in a number of areas.  The most important, probably being the recruitment of staff without having undertaking the appropriate checks, a failure to notify the Commission of Mr Robertson’s role and not assessing the potential risk posed by Mr Gibson’s condition or Lisa’s conviction.  As with Mr Gibson the Commission witness statements had not been read by Mrs Gibson prior to the commencement of the hearing.

Although Mrs Gibson did complete an NVQ level iii course, this does not appear to have led to an understanding of a number of policies or other documents submitted by her, there was also confusion as to how and by whom those documents had been prepared. Despite Mrs Gibson saying in oral evidence that she had learned a great deal from her NVQ training, the Commission said in evidence that they could not see any significant improvement in the care practices in the homes following Mrs Gibson’s successful completion of the NVQ level iii.

63.	The Commission had, prior to the hearing made open offers to the Gibsons which would have allowed the homes to remain open, with the current service users’ in residence, but these were rejected.  

64.	It was not until the end of the hearing that Mr and Mrs Gibson produced a plan setting out how the homes should be run in the future.  This followed Mrs Gibson withdrawing her appeal against the cancellation of her registration of the manager of 1-3 Canberra Road.

The plan proposed Mr Robertson as manager and relied on volunteers  acting as core staff.  In the event inadequate research had been carried out into Mr Robertson’s background, which meant that the following day the proposal for Mr Robertson to be the manager was withdrawn.  It was then suggested that a new manager would have to been found, but no indication was given as to when that was likely to happen.  It would in any event lead to a situation where Mr and Mrs Gibson were acting as registered provider, employing the manager, whilst at the same time Mrs Gibson was working as a care worker under the direction of the manager.  We do not consider the plan to be viable, nor have we any confidence that Mr and Mrs Gibson would implement a plan in accordance with the relevant regulations.

In summary we do not consider that either Mr or Mrs Gibson presents the necessary competence and skills needed to carry on as registered providers of a care home in accordance with the regulations, nor for the reasons set out do we have any confidence that the deficiencies that we have identified could be put right within a reasonable time if at all.

65.	We have of course considered the interest of the present service users, the length of time they have been in the homes, their views on the care they have received and their wish to stay where they are.  We are aware that Social Services are committed to the service users’ own views being their first consideration and that, in the event of de-registration, they would discuss other options which would allow them to remain in the accommodation. However, we do not consider that it would be in their interests to allow the homes to stay registered, given our views on Mr and Mrs Gibson’s ability to run the homes in accordance with the regulations.

In all the circumstances it is our unanimous decision that the appeals should be dismissed.

Mr Stewart Hunter
(Nominated Chairman to the Tribunal )
Mrs Linda Elliot
Mr Jeff Cohen 
Date: 25 October 2004