Mitchell v The Commission for Social Care Inspection [2004] EWCST 369(EA) (3 May 2005)

WILLIAM MITCHELL

-v-

THE COMMISSION FOR SOCIAL CARE INSPECTION

[2004] 369 EA

Mrs. Carolyn Singleton
Mr. Graham Harper
Mr. John Hutchinson

DECISION

The proceedings took place at Blackpool Magistrates Court on 20th, 21st and 22nd April, 2005.

The Appellant represented himself. The Respondent was represented by Mr. Burrows of Counsel.

Proceedings

1. The Appellant appeals against the Respondent’s decision to refuse his application to become a Registered Manager of a Children’s Home. The refusal is dated 22nd. September 2004 and follows the decision of Mr. Alan Jefferson, Regional Director North West, CSCI, dated 16th September 2004.

The Law

2. The application for registration is made pursuant to S.12 of the Care Standards Act 2000. CSCI has then to consider S.13 of the Act. The relevant part states as follows:
“13(1) Sections (2) to (4) apply where an application under Section 12 has been made with respect to an establishment or agency in accordance with the provisions of this Part.
(2) If the Registration Authority is satisfied that - 
(a) the requirements of the regulations under Section 22; and
(b) the requirements of any other enactment, which appears to be the registration authority to be relevant,
are being and will continue to be complied with (so far as applicable) in relation to the establishment or agency, it shall grant the application otherwise it shall refuse it”

3. The Children’s Homes Regulations 2001 are made under Section 22 of the Act. In this case, those that are relevant are:

Regulation 8	(1) - a person shall not manage a children’s home unless he is fit to do so;
(2) - a person is not fit to manage a children’s home unless -
(a) he is of integrity and good character;
(b)having regard to the size of the children’s home, it’s statement of  purpose and the number and needs (including any needs arising from any disability)  of the children accommodated there - 
(I)  he has the qualifications, skills and experience necessary for managing the children’s home.

Regulation 17 - Behavior management, discipline and restraint

4. Also relevant to this case , in particular, is Standard 22.7 of the National Minimum Standards for Children’s Homes which states, inter alia, “Physical restraint is only used to prevent likely injury to the child concerned or to others, or likely serious damage to property”.

Burden of Proof

5. Counsel for the Respondent argued that the burden of proof is on the Appellant to establish that he is fit, rather than on the Respondent to establish that he is not. Following the Court of Appeal’s decision in Jones v. CSCI [2004] EWCA Civ.1713.  the Tribunal accepted that this was indeed the case. Although that case concerned Regulation 9 of the Care Homes Regulations 2001, the regulations are drafted in virtually identical terms to those of the Children’s Homes Regulation 8. The dicta of Brooke L.J. in the case of Jones applies in this case also:
“I have no hesitation in holding that an applicant must demonstrate to the Commission and, if there is an appeal to the Care Standards Tribunal, that he is a fit person before he can be qualified for registration.”

Background History

6. The Appellant was born on 12th January 1959 and enlisted in the Army in the 1970s. He ended his service as a professional soldier in 1998, holding the rank of Colour Sergeant. After two years as a HGV driver, he commenced employment with North West Child Care (NWCC), commencing employment as a residential social worker on 10th April 2000. He commenced work at a children’s home called The Saplings. It does not appear that NWCC offered any induction programme before the Appellant started his employment. He completed a two day course in non violent crisis intervention in June 2000, which was a CPI recommended course. He attended a one day Child Protection Course in January 2001. On 16th May 2001, he was promoted to the position of Shift Leader. He passed a basic Health and Safety course in June 2001 and that same month enlisted on the Internal Assessors Course (D32 and D33) and in July 2001 the NEBs Diploma in Registered Managers in Care. He passed his NVQ (level 3) in November 2001. He passed his Internal Assessors Award (D32 and D33) in February 2002. He became an Internal Assessor for Blackpool and Fylde College on a part-time basis. In April 2002 he was promoted to Home Manager. In June 2002 the Appellant enrolled on the NVQ (level 4) course in care and in July 2002 he passed his NEB’s diploma. An application for him to be registered as manager of the Saplings had been made in May 2002.

7. Following an inspection carried out by the NCSC in October 2002, certain concerns were raised concerning physical intervention and restraint being used in a way that was not reasonable and appropriate. These restraints involved the Appellant and form part of the Respondent’s ultimate decision not to grant his registration as a manager, which is the subject of this appeal. These concerns were raised with the General Manager, Clare Houghton, and resulted in the Appellant attending a disciplinary hearing on 16th October, 2002. As a result of that hearing the Appellant received a Written Warning for Misconduct, Clare Houghton being satisfied that he had breached Regulation 17 of the Children’s Homes Regulations 2001. Consequently the application for the Appellant to be the registered manager of the Saplings was not pursued and he was asked to take up a position as a Senior Residential Social Worker at another home.

8. The Appellant resigned from NWCC on 14th October 2003 and in January 2004 an application was received by NCSC in respect of Horizon Residential Childcare seeking to become the Registered Provider of a new children’s home, “Sea View” at Fleetwood, with the Appellant as responsible individual. This later became an application for him to become the Registered Manager.

9. His application was refused because, in the view of the Respondent,  the Appellant had failed to comply with  Regulation 8 of the Children’s Homes Regulations  2001 as set out above. The Respondent based their decision on the facts that the Appellant has two convictions for driving with excess alcohol, the first being the 28th November 1996 and the second being the 27th June 2003, and the restraint incidents that were the subject of the disciplinary proceedings taken by NWCC in October 2002.

The Restraints

(a)  3/01/2000 - LC was in a room at the Saplings with another resident. Staff outside the room could hear that the lathe and plaster walls were being punched. The door was locked. Having gained entry to the room, LC was asked to leave because she appeared to be encouraging the other resident to cause damage. When she refused, she was physically restrained by the Appellant and his co-worker and removed.

(b) 7/05/2001 - ED was found to have cigarettes in her room. The Appellant requested that she hand them over. She refused. The Appellant and a co-worker physically restrained her .

(c ) 7/01/2002 - NH  was being verbally and physically abusive having been returned to the home by the police. They had picked her up for being drunk and disorderly. Having asked her to go to her room to calm down, the Appellant became concerned that other residents would be disturbed by NH’s continuing noisy behaviour.  The Appellant and a fellow female worker entered the room. They noticed that NH was bleeding from her arm. NH has a history of self-harm but refused to show the Appellant the extent of the injury. She was physically  restrained by the Appellant and his co- worker for seven minutes on her bed.

(d) Later that same day NH entered the room of another resident. She was still hung -over from the night before and was tired. She appeared to be preventing the other resident from getting herself ready for school so she was asked by the Appellant to leave. She refused. She was told that the Appellant and another worker would “extract her from the room using non-violent intervention.” As the Appellant went to hold her, NH began to throw punches so the Appellant placed his hand either on her lower throat or her breastbone and placed her on the bed. He then grasped both her hands.

(e) 8/05/2002 - KC had been taken to the dentist but had been brought back because she had been verbally aggressive. As a punishment she had been told by a member of staff at the home that she would not be allowed to go shopping. KC then locked that worker out of the house and was shouting and screaming. The Appellant had asked her on a number of occasions to calm down and take time out in her room. She refused. The Appellant decided that KC should be escorted to the lounge. KC refused to go willingly so the Appellant and a co-worker took each of KC’s arms, placed another hand under her armpits and took her to the lounge.

(f) 1/06/2002 - KC was involved in an incident in which she appears to have been encouraging residents to bully another resident at the home. She was shouting, swearing and acting in an aggressive manner towards the staff. The Appellant asked her to go inside the house. She did so. She was then asked to go to her room but she refused. The Appellant, therefore, asked her to go into the lounge in an effort to segregate her from her peer group. She complied. However, once in the lounge she continued to be verbally abusive and threatening.  The Appellant, with assistance from another worker, “guided” her to the couch, then onto the floor with her limbs held in place for several minutes.

(g) 10/09/2002 - ED A restraint was carried out which did not involve the Appellant directly. However, he was Acting Manager at the time. The restraint appears to have lasted for a period of twenty minutes but the Appellant’s comments on the incident form merely state that ED had been emotionally upset recently possibly “due to recent bereavement (mother)”.

(h) 21/09/2002 - LW had spent the evening at hospital. She was under the influence of alcohol and had been sick on a number of occasions. The Appellant had collected her and a member of staff from the hospital at 8 a.m. On their return to the home, the Appellant asked LW to shower and change her clothes. She smelled of vomit. Two young men then called at the home to see LW. She came down from her room in exactly the same state as when she had returned from the hospital. The Appellant told the young men to leave and told LW that she could not go with them. She attempted to leave but the Appellant stopped her. She then became verbally and ,according to the Appellant, physically abusive. The Appellant and  another male worker took her arms and held her in a “T” restraint for three minutes.

Evidence for the Respondent
Monica Farrimond

10. Mrs Farrimond gave evidence that she had been employed by CSCI as a Regulation Inspector since 1/04/2004. Between April 2002 and April 2004 she had been employed in a similar capacity by the National Care Standards Commission, CSCI’s predecessor. She confirmed that her statement which appears at document 81 of the Tribunal bundle was indeed her statement and was signed by her.

11. A statutory inspection of  The Saplings Children’s Home was carried out by her together with her manager, Lindsay Sparrow, on 3rd and 4th October 2002. She confirmed that on every inspection, documentation is checked by the inspectors, particularly that relating to sanctions and control. They always look at the physical intervention documentation.  At the inspection of The Saplings, their attention was drawn to the restraints which  form part of this appeal involving the Appellant. Mrs. Farrimond and her colleague’s view was that the restraints had been used as a means of enforcing compliance, and, therefore, had been used inappropriately. She went on to say that  Regulation 17 of the Children’s Homes Regulations 2001 and Standard 22 of the National Minimum Standards for Care homes make it quite clear that no measure of control should be used to enforce compliance unless there is a serious risk of injury or damage to property. The inspectors’ concerns at this inspection were such that they identified a statutory requirement to the Home in relation to Regulation 17 to reinforce to the Home that this was a statutory  requirement and not just a recommendation. As far as Mrs. Farrimond was concerned, having raised the inspectors’ concerns about the information contained on the physical intervention forms with the General Manager, Clare Houghton, and having issued the Statutory requirement in relation to Regulation 17, it was a matter for the Home as to how those problems were addressed. Mrs. Farrimond had no input in relation to any steps subsequently taken by the Home, but expected the Home to act “appropriately”.

12. In the Spring of 2004 application was made by the Appellant to become Registered Manager of a new children’s home at Fleetwood. The Appellant was required to attend a Fit Person Interview. This was conducted by Ian Jeavons and Mrs. Farrimond was present to record the Appellant’s responses to questions. Mrs. Farrimond confirmed that the interview comprises a standard set of questions. The Appellant gave unsatisfactory answers to four of them. At the end of the interview he was asked about the disciplinary proceedings which had been taken against him following the concerns raised at the inspection in October 2002. The incident involving ED and the cigarettes  referred to above was raised. Mrs. Farrimond formed the opinion that the Appellant had not learned anything from the consequences of his actions. She remained concerned that he would still go down the route of confrontation.

13. A decision was made to offer the Appellant  a second interview to enable the unsatisfactory answers in the first interview to be addressed. At this interview the Appellant answered  appropriately and Mrs. Farrimond and Mr. Jeavons were satisfied as to his answers.

14. However, concerns remained about his previous disciplinary hearing, his two convictions for driving with excess alcohol and his attitude in his post-interview talk when Mrs. Farrimond formed the opinion that the Appellant saw himself as a scapegoat. A meeting was arranged for the 27th April 2004 to discuss the Appellant’ application. This took place between Mrs. Farrimond and  Julia Denham, her then line manager. Mrs. Farrimond was advised to arrange a management review with the Business Relationship Manager, Alan Ricketts. The outcome of this meeting was that a Notice of Proposal to Refuse Registration with regard to the Appellant’s application was issued.

Trevor Williams

15. Mr. Williams is an expert witness who had prepared a report on behalf of the Respondent in relation to the use of behaviour management and the use of restraint in Children’s Homes. In addition he had been required to comment upon the individual incidents of restraint set out above, which form part of the Respondent’s decision not to consider the Appellant a fit person within the meaning of the legislation and to place those incidents within the current national context. His report appears at Document 395 of the papers. Mr. Williams qualifications are set out at some length in that report. Mr. William’s evidence, both in his written report and his oral evidence is compelling. In particular, pages 2 and 3 of his statement set out the accepted view as to how and when physical interventions should be used.  The Children’s Act Guidance states that in residential care settings “physical restraint should be used rarely and only to prevent a child harming him/herself or others or from damaging property”. Furthermore, all guidance stipulates that a minimum amount of force should be used for the shortest period of time and that it should be proportionate in relation to the young person’s age, gender and state of development. Mr. Williams had been provided with the documentation relating to the 8 incidents of physical intervention which formed the basis of the Respondent’s concerns. His view is that the Appellant failed to use effective de-escalation techniques and there is no indication that the use of physical intervention was a last resort. He also comments that DOH circular 11/96 strongly recommends that wherever possible seated positions should be used in ground positions Mr. Williams considered that in a large number of cases, the Appellant made the decision to go to ground, restraining young people on a bed as well as the floor. In these situations, the Appellant failed to ensure appropriate safeguards regarding these holds. No reference is ever made in the documentation in relation to the use of physical intervention, to the young person’s care plan or as to how the use of physical intervention has been agreed with relevant placing agencies and, where appropriate, parents. In his report at document 395(5) to 395(8) Mr. Williams deals with each of the relevant restraints.  For each and everyone Mr. Williams is critical of the Appellant’s methods. In particular the final paragraph of his report on page 395(8) continuing onto the next page sets out his conclusions. He supports the Respondent’s decision to refuse the Appellant’s registration.

Julia Denham

16. Ms. Denham is a Regulation Manager for CSCI. She confirmed the contents of her statement which is at document 77 of the papers. She confirmed the history of this case as set out in the evidence given by Mrs. Farrimond.

Alan Ricketts

17. Mr. Ricketts is a Business Relationship Manager for CSCI. He confirmed the contents of his statement which is at page 74 of the papers. In that statement he confirms that his reasons for refusing the Appellant’s application for registration are as set out in paragraphs 6 and 7 of that statement.

Lindsay Sparrow

18. Ms. Sparrow is a Regulation Manager for CSCI. She confirmed the contents of her statement which is at page 104 of the papers. She had attended the inspection of The Saplings which took place in October 2002 and confirms in her statement the sequence of events as set out by Mrs. Farrimond.

Ian Jeavons

19. Mr. Jeavons is a Regulation Manager for CSCI. He confirmed the contents of his statement which is at document 94 of the papers. He conducted both Fit Person Interviews with the Appellant. 

Evidence for the Appellant

The Appellant

20. The Appellant did not give evidence in chief but submitted to cross-examination by Mr. Burrows and questions from the Tribunal Panel. The Appellant stated that he understood what the functions of a registered manager are and that the Respondent had a duty to ensure that a registered manager was a fit person for the job with a good character and the necessary skills. He accepted that Regulation 17, referred to above,  dealt with behaviour management and restraint and said that he was familiar with the Regulation. However he told the Tribunal that he had never had any specific training on the Regulation. His understanding was that physical intervention could be used to prevent injury to the young person, staff or damage to the Home. He understood that it should not be used to ensure compliance. He was asked in depth about each of the restraints referred to.

(I) 3/12/2000 - LC - The Appellant felt his actions were justified. LC was encouraging another young person to damage the wall in her room. The Appellant felt there was a risk of injury to LC or the other occupant of the room because there was plaster and debris on the floor.

(ii) 7/05/2001 -ED - The Appellant accepted that there was no immediate risk of danger or damage to property. He himself, with the benefit of hindsight, regards his actions as excessive, inappropriate and unacceptable.

(iii) - 7/01/2002 - NH -the Appellant stated that he was concerned, given NH’s history of self-harm, that the bleeding from her arm may be significant. Although he agreed that the restraint had taken some 7 minutes and he accepted that any restraint has to be proportionate, he considered that this restraint was appropriate and that he would “possibly do it again”. He did, however, accept that it was established early on that the wound was not life-threatening and that it was the restraint itself which made NH kick out.

(iv) - 7/01/2002 - NH - The Appellant accepted that the restraint used by him was unacceptable and that he understood the concerns raised over it. He agreed that this conclusion had only been reached by him on the day of the Tribunal hearing having heard the evidence of the expert witness, Trevor Williams.

(v) - 8/05/2002 - KC - The Appellant accepted that there was no immediate risk of injury or damage to property when physical intervention was used. He further accepted that the action taken was inappropriate.

(vi) - 1/06/2002 - KC - The Appellant accepted that his actions had been excessive and that a reasonable person would be concerned.

(vii) - 21/09/2002 - LW -The Appellant accepted that no attempts had been made to de-escalate the situation but felt justified in his actions because he said that LW was physically attacking him.

The Appellant was not asked specifically about the incident on  10/09/2002 with ED. This did not actually involve the Appellant but he was the acting manager at the time.

21. The Appellant was asked about his two convictions for driving with excess alcohol. Details of his explanations for those are at pages  457 and 458 of the papers. The Appellant accepts that these were errors of judgment but did not feel that this demonstrated that he had poor judgment in general. 

22. In answer to Mr. Burrow’s final question the Appellant acknowledged that he had exhibited a lack of judgment in his capacity as a social worker but not with regard to his convictions.

The Tribunal’s Findings and Reasons

23. In addition to the evidence detailed above, the Tribunal carefully read the character references provided by the Appellant at documents 527 to 538. They also read the final submissions handed in by the Appellant and  Mr. Burrows for the Respondent. They also had the benefit of reading the notes relating to the personal circumstances of some of the residents at The Saplings which appear at pages 241 and 242 of the papers.

24. As a general comment, the Tribunal considered that, whilst Inspectors acknowledged the difficulties faced in obtaining performance beyond minimum standards, in this particular service, the seeming predominance of male staff in a Home that largely accommodated adolescent females was of concern. Furthermore, the Tribunal was concerned that witnesses for the Respondent, when asked, were unable to give information on the frequency and pattern or restraint in general in the Home.

25. Firstly dealing with the two convictions for driving with excess alcohol. The Tribunal considered that these did demonstrate poor judgment by the Appellant. However, whilst reprehensible, the Tribunal did not consider that, in themselves, those convictions would  be sufficient to establish that the Appellant is not fit to be a registered manager. So far as the Tribunal was concerned, far more serious anxieties were raised by the restraints.

26. The legislation and regulations setting out when and in what circumstances physical intervention can be used in a Children’s Home are quite specific. It is not equivocal or vague.  In respect of all the incidents set out above, the Tribunal considered that the Appellant’s actions had been inappropriate. Indeed, on his own evidence, when questioned by Mr. Burrows, the Appellant himself acknowledged that the majority of the restraints used had been inappropriate. Furthermore, the documentation relating to each incident left much to be desired. In all cases it had been inadequately completed. 

27. The Tribunal accepts that this is not necessarily entirely the Appellant’s fault. He may well have significant grievances against NWCC as his employers. Their training appears to have been wholly inadequate and the culture that prevailed in The Saplings was, again, not necessarily the fault of the Appellant. No risk strategies appear to have been considered for any resident.

28. Nonetheless, the fact remains that the residents of the Home, at the time in question, were predominantly young women aged between 15 and 16 years; they were, in effect, young adults. Their histories included seriously damaging experiences and chaotic lifestyles, leaving them extremely vulnerable and at risk of a lifetime of personal insecurity and unhappiness. They needed to be valued, to experience respect and unconditional concern for them as individuals, as well as  understanding and sensitive support to enable them to take responsibility for their lives and to work through the dilemmas and worries they faced. It is accepted that, in seeking to enable such young people to move to more stable lifestyles, service providers face immense challenges that may, on rare occasions, necessitate physical intervention strategies. The regulations and guidance on the use of such strategies is absolutely clear about the circumstances in which they might, as a last resort, be applied. However, the primary approach should be based on respect and negotiation.

29. The Appellant was considered by the Tribunal to be a sincere, honest man who had done well to gain the required paper qualifications in the residential care of children in a relatively short time following his retirement from the Army. He went to work in a service that appears to have had shortcomings in the way in which staff were trained and developed to support vulnerable young people. A clear sense of the values that underpin child care seemed not to prevail and adaptation to a culture significantly different from the Army must have been a challenge. The development of the Appellant’s approach may have benefited from experience in an ethos focused on the sensitive, caring support of vulnerable children. Whilst his use of physical restraint was well intended and at the time believed by him to be an appropriate intervention in difficult situations, critical analysis revealed lack of judgment and inadequate skills and training. Nonetheless the Tribunal considered the Appellant  to be  a man of ability. His references are commendable, and should he wish to continue working in residential child care, experience in an environment that places a high value on respecting those that rely on the service and negotiates with them in seeking to develop increasing personal responsibility, may well prove to be beneficial.

30. Having considered all the evidence, both written and oral, the Tribunal ‘s decision is that the Appellant has failed to discharge the burden of proof on him to show that he is a fit person in accordance with the legislation. Indeed, the evidence is such that, had the burden of proof been on the Respondent, the appeal would still have been disallowed.

31. The appeal is dismissed. This is a unanimous decision.

Mrs. Carolyn Singleton Chairman
Mr Graham Harper
Mr John Hutchinson

Date: 3 May 2005